Disarmament Insight


Tuesday, 8 April 2008

The Pros and Cons of Precedent

Diplomats are often risk-averse in multilateral disarmament negotiations. When questions of national security are at stake, which is often the case, there is really no other choice but to be cautious. The consequences of being too ambitious or too trusting is that one's own State could be taken advantage of and so end up at a net security disadvantage.

One way of trying to maximise the chances that negotiations will follow a predictable path and not come off the rails before their reach their conclusion is to always do things the way they have been done in the past. While this is by no means a sure-fire recipe for success, relying on precedent does bring with it many advantages; not least a set of practices and standard operating procedures that are recognised and accepted by all parties to a negotiation.

But, as I wrote in volume 1 of the Disarmament as Humanitarian Action project series (Alternative Approaches in Multilateral Decision Making: Disarmament as Humanitarian Action; the burgundy volume on the left), precedent brings with it disadvantages as well as advantages:

...the concept of precedent comprises both a conservative and a creative element. Like a ratchet, it has two functions; to allow forward movement (innovation) while preventing backsliding. Unfortunately, much of today’s disarmament diplomacy overemphasizes the conservative element while underutilizing the creative element of precedent. As a result, the concept of precedent tends to constrain more than it enables multilateral disarmament negotiations and, on the whole, actually serves to stifle innovation. Although, thankfully, there are some notable exceptions, many disarmament diplomats have become too used to the idea that, “if it hasn’t been done before, then we can’t do it” (p. 61).

The stifling effect of precedent can sometimes be observed not only in negotiations but also in the processes through which the implementation of multilateral agreements are monitored and evaluated. Here again, the prevailing thinking is often more concerned with how things have been done in the past, regardless on how effective this has been, than with coming up with fresh new ideas that could prove to be more effective than what has gone before.

It’s refreshing, then, when one actually observes such fresh new ideas take hold and promise to make some improvements over past practice. Although it is early days yet, this seems now to be happening in the international process to monitor implementation of the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects.

This multilateral process has been through some tough times. In 2003 and 2005, UN Member States convened so-called biennial meetings to monitor implementation of the agreement. Much of the value that such meetings could have had was whittled away by long, general statements by States and by an insistence on discussing all aspects of what is, by its very nature, a very broad framework of action at the national, regional and global levels. In 2006, the Programme of Action’s first Review Conference, which was meant to evaluate the impact that the agreement had had during its first five years of existence, ended without any agreement whatsoever on what that impact had been or on what the next steps should be.

It’s against this backdrop that the designated Chair of the 3rd biennial meeting of States, scheduled to take place in New York in July of this year, has taken some bold steps towards ensuring that this forthcoming meeting will be more effective that the ones before it. This entails (surprise surprise) proposing to do things differently than they have been done before; breaking with precedent in order to do things better. The innovations being proposed by Ambassador Dalius Cekuolis of Lithuania include:

-- The 2008 biennial meeting should focus on a limited number of issues on which there is already a good deal of common understanding and on which concrete progress can be made by the international community; namely (1) cooperation, assistance and capacity-building, (2) illicit brokering, (3) stockpile management and surplus disposal and (4) implementation of the international small arms tracing instrument.

-- Ambassador Cekuolis has appointed Colombia, Republic of Korea, Switzerland and Egypt, respectively, to prepare these substantive discussions and to facilitate them at the July meeting.

-- States are being asked not to deliver time-consuming national statements at the biennial meeting but to focus instead on the above issues and on identifying other priority issues that could be dealt with in-depth at future meetings; thus developing a longer-term implementation agenda for the Programme of Ation.

-- An attempt seems likely to be made to negotiate a substantive outcome document of the meeting that would go beyond the usual procedural description of who participated and how many sessions were held to make concrete recommendations for next steps that could be taken up subsequently by the UN General Assembly.

If these seem like sensible ways of helping to ensure a more productive meeting that will advance implementation of the Programme of Action on small arms, it is because they are. It is just a pity that is has taken so long for these reforms to be proposed.

The intoxicating power of precedent can sometimes blind us to fact that there are better, more effective ways of doing things.

Patrick Mc Carthy

Photo Credit: United Nations; Poster for the 2006 Review Conference of the UN Programme of Action on the illicit trade in small arms and light weapons