Conference on Disarmament: Some misconceptions

On the 10th anniversary of the UN Study on disarmament and non‐proliferation education, these comments are made in the spirit of disarmament education and in the hope that delegates to and observers of the crucial 2012 session of the Conference on Disarmament will find them helpful.

1. The CD – “a single multilateral disarmament negotiating forum”.

The notion of the CD as a single negotiating forum is much misunderstood and misquoted. Even the CD’s own annual resolution and report to the UN General Assembly (UNGA) gets it wrong. The most recent CD resolution tabled in the First Committee at UNGA66 mistakenly refers to the CD as “the sole multilateral disarmament negotiating forum” (emphasis added).

What’s in a word? What’s the difference between “single” and “sole”? Not much ordinarily, but “sole” has come to be used in some quarters as though the CD were the only legitimate multilateral disarmament negotiating forum. The use of the words “a single” was intended by the UN General Assembly to mean something else. This role was conferred on the CD by the UN General Assembly during its first Special Session on Disarmament (UNSSODI) in 1978. What the General Assembly had in mind was that the CD would be a single (as opposed to the sole) forum. That is, it would provide a single edifice within which key disarmament issues would be negotiated by key states as needs arose (assuming the necessary consensus – see further below). It was seen as more effective and efficient to support a single institution and maintain a single repository of knowledge and expertise than to take up disarmament issues, one by one, in an ad hoc manner.

The point about drawing a distinction between “a single” and “the sole” forum is that frustrated members of the CD need not be constrained in any way if they wish to move negotiations elsewhere: for example, to their own or other edifices or processes such as those used to negotiate the Ottawa and Oslo Conventions, or to the parent body of the CD – the UN General Assembly itself.

As a footnote, separate resolutions tabled during UNGA66 by Austria, Mexico and Norway (though not pressed to the vote) and by Canada have each sensitised the broader international community to a role for the UN General Assembly next October if the CD remains deadlocked at that point. The parent, thus, is well seized of the situation surrounding its offspring: the CD, in effect, is on the mat, if not quite yet on formal notice from the UNGA.

2. “Comprehensive and balanced”

The phrase “comprehensive and balanced” is often used in the CD to qualify the programme of work (or priorities) of the Conference, agreement on which has eluded the CD since 1998 except for a false dawn in 2009. The CD’s rules of procedure require that a programme of work must be established each annual session as the basis for the CD’s efforts for that year. But the rules do not require that that programme be “comprehensive and balanced” in those specific terms. There is certainly no need for the programme to be comprehensive (see further below), although it would need to be balanced as a practical element of the consensus necessary for concerted implementation of it.

3. “Programme of work”

The ingredients needed for a programme of work are the source of a damaging misunderstanding in the CD. Modern-day formulations of the programme of work embody mandates for subsidiary bodies/working groups to which the substantive work of the CD would be delegated for the remainder of the annual session. But writing these mandates into the work programme is not required by the rules of procedure (rule 28). Attempting to do so has proved a recipe for the current 13 year-long deadlock.

To be clear, mandates for subsidiary bodies do need to be agreed by the conference, but not in the work programme. But to return to the point. Under the CD’s rules, a work programme need be no more than a “schedule of activities” for the session – simply a timetable that sets out for planning purposes the dates for taking up individual agenda items and the periods of time to be allocated to each topic. It would also list other organizational matters that members wanted to address, such as allocating time to any high level segment and to the preparation of the annual report to the UN General Assembly. If the CD could unburden itself of its endless agonising over its programme of work by reverting to the successful formula of the past, perhaps the trust and confidence necessary for agreeing mandates and getting down to substantive work would ebb back into the Council Chamber. If not, the attraction of alternative processes will surely prove irresistible.

4. “Consensus”

There is no ambiguity in the rules of procedure about the manner of decision-making in the CD. UNSSODI expressed the need for the Conference to operate by consensus, and rule 18 reflects that position. But what does “consensus” mean? Rule 18 does not say that every member has a veto. It is clear from UNSSODI that the circumstances in which a member would object to a decision (i.e., break consensus) is when it believes that the ultimate product of the work of a subsidiary body has not emerged “in such an equitable and balanced manner as to ensure the right of each State to security”.

Short of a threat to national security, “consensus” should be interpreted in its normal manner. That is, decisions should be taken by general agreement where no member feels so discomforted by that decision as to impel it to voice its objection, thereby blocking the outcome. So, members might object to a decision to adopt a draft treaty on a certain topic, say fissile material, where it believed that the outcome, despite intensive negotiations in which it had participated, would prejudice its national security. At the other end of the spectrum, a member would not normally object to a decision to adopt, for example, a programme of work of the simplified kind outlined above even if that member’s “wish list” was not fully met. In other words, the consensus rule entails the exercise by each member of a level of responsibility informed by the likely impact of the decision on the security of that state, rather than by some unfettered freedom to exercise a veto. Indefinite blocking of decisions in the pre-negotiating stage of the CD’s work on a given topic serves only to reinforce doubts about the utility of the Conference.

Conclusion

These views are intended to encourage dialogue as part of an educative process. Bigger questions are whether these four areas of misinterpretation are accidental or deliberate, and why. In any event, their combined effect prevents the CD from operating in the manner intended by UNSSODI, freezing the opportunity to advance the causes of nuclear disarmament, to ban fissile material production, to achieve more extensive security assurances or to prevent an arms race in outer space, a least under the roof of the Conference on Disarmament. Is it any wonder that efforts to move issues from the CD to another process are intensifying? Please feel free to comment on possible ways forward.

This is a guest blog by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR. 



(The symbol is drawn from Google Clip Art Images)

Will the CCW give birth to a mouse or a monster?

The 4th Review Conference of the Convention on Certain Conventional Weapons (CCW) will come to an end this Friday, 25 November. Until then, the negotiation of a protocol on cluster munitions to be annexed to the CCW is likely to take up most of delegates’ time. Even at this late stage in the negotiations, however, it remains unclear whether states parties to the CCW will be able to reach consensus on a text. If they do, based on draft texts presented this week, it is also unclear whether the CCW will finally give birth to a mouse or a monster.

Monster...

Several aspects of the CCW’s cluster munitions negotiations are disturbing from a humanitarian, international legal and multilateral negotiations perspective. In the view of many, as it stands now, the protocol fails to bring significant and immediate humanitarian benefits. Worse even, the present draft authorizes the use of certain types of cluster munitions. A number of states, the International Committee of the Red Cross (ICRC) and the Cluster Munition Coalition fear that this may result in greater investment in the development and production of cluster munitions that are known to cause grave harm to civilians, lead to growing use of these weapons, and therefore greater civilian casualties.

The CCW negotiations also raise a number of moral and legal questions (see e.g. this backgrounder by international law professor Nystuen). This morning, over 30 countries stated:

The current draft would represent the opposite of what we consider the overall goal of the Convention.

Indeed, a protocol that authorizes continued use of cluster munitions may run counter the very object and purpose of the CCW, whose preamble recalls “the general principle of the protection of the civilian population against the effects of hostilities” and reaffirms “the need to continue the codification and progressive development of the rules of international law applicable in armed conflict”.

As the ICRC - “guardian” of IHL - has pointed out repeatedly, agreeing to a treaty that sets a weaker standard in terms of civilian protection than the one set by the 2008 Convention on Cluster Munitions (CCM) would constitute a regrettable precedent of regression in IHL which would threaten the “coherence, effectiveness and integrity of this field of law”.

The normative effect of a CCW protocol on cluster munitions on the CCM should be of particular concern to states that are parties (or signatories) to both treaties. Mainly, because the CCM prohibits states from “assisting, encouraging and inducing” anyone to engage in prohibited activities, such as cluster munitions use (Art.1), and obliges states parties to take positive measures in their relations with states not party to the CCM to encourage adherence to the CCM, promote its norms and to make their “best efforts to discourage” them “from using cluster munitions” (Art. 21).

Continued involvement in and facilitation of negotiations, and a fortiori, participation in a consensus decision to adopt a CCW protocol that authorizes use of cluster munitions prohibited under the CCM, may constitute a violation of that convention. Support by CCM state parties of a CCW protocol that authorizes use of cluster munitions also constitutes state practice that risks rendering the positive obligations of Art. 21 meaningless. Finally, a CCW protocol that legitimises continued use of cluster munitions would be an obstacle to the extension of the norms embodied in the CCM by way of customary international law.

…mouse…

Few of the substantive elements in the draft texts presented to date enjoy a semblance of consensus. That cluster munitions produced before 1980 should not be used, stockpiled or transferred is one of them. Additional transfer restrictions, for example in relation to non-state actors, are also relatively undisputed. CCW states parties also seem to agree that civilians should be protected from indiscriminate effects of weapons and that the rules of international humanitarian law (IHL) are the relevant standard in this context.

But how to apply the rules of IHL to the weapon technology at hand, the very purpose of any CCW protocol, remains subject to dispute. Given the difficulty of adopting a comprehensive prohibition of cluster munitions in the CCW, attempts are being undertaken to translate general rules of IHL into specific prohibitions on the use of these explosive weapons. But in the latest draft text (Rev.2 of 23 November, 15h30) language previously introduced by Switzerland under the heading “Protection of civilians” was removed. Switzerland, supported by many other states, had suggested the inclusion of a prohibition on the use of cluster munitions in populated areas. A similar provision is contained in CCW protocol III on incendiary weapons and would (if not weakened by qualifiers or overridden by other provisions in the protocol) be of some humanitarian benefit.

Even if restrictions on the use and a prohibition of some (old) cluster munition types are retained in the final text, however, these provisions are hardly adequate and sufficient to address the humanitarian problem caused by cluster munitions. Especially, as other parts of the protocol may well outweigh these humanitarian benefits.

… or hedgehog?!

At the end of this week, states parties to the CCW will have to make up their minds and decide whether the text in front of them is a mouse or a monster. Of course, for musophobics the difference may be slight, but in the view of most, mice are relatively inoffensive and the damage they may cause by gnawing away at the normative structure of humanitarian protection is likely to be limited. The humanitarian and normative impact of a monstrous protocol may be far more damaging.

After years, nay, decades, of CCW talks on cluster munitions, member states still do not agree about the very objective of their endeavor, the frame of reference to assess whether that objective has been attained and/or their mandate fulfilled, let alone the methods to assess likely humanitarian impact (positive and negative) of particular provisions or the protocol as a whole.

It is hence difficult to foresee what comes out of this body on Friday - if anything at all. For many participants in this lengthy process it must by now feel like “giving birth to a hedgehog against the lie of its spines” - to quote one of my favorite Russian proverbs.

This is a guest blog by Maya Brehm. Maya is project manager at UNIDIR.

Photo: "Muppet monster 'Frazzle' is a growling monster on Sesame Street. His deceptively fierce visage hides a child-like personality and a desperate need to be included." (Source: Muppet Wiki)

CCW: decisions, decisions, decisions...and how to take them

The current review cycle of the framework treaty known as the Conventional Weapons Convention (CCW) (a.k.a the Inhumane Weapons Convention) will culminate in the 4th Review Conference of the Convention in Geneva during the period of 14 to 25 November 2011. The most controversial item throughout this review cycle has been the need to build onto the CCW framework a supplementary treaty (or “Protocol”) dealing with cluster munitions. Many of the states party to the CCW have already chosen to be bound by (or have signed and are in the throes of joining) the Cluster Munitions Convention (CCM) that was adopted in 2008 in a process formally unconnected to the CCW.

Most of the signatory states and states party to the CCM are either opposed or indifferent to efforts in the CCW to develop a parallel instrument on cluster munitions, their assumption being that any such Protocol will fall short of the humanitarian standard set by the CCM. Indeed, one current draft Protocol, submitted by the chairperson of the CCW’s Group of Government Experts (CCW/GGE/2011-III/1), described here as the “GGE chair’s text”, would, if adopted in its present form, largely be confined to prohibiting cluster munitions “produced on or after 1 January 1980”, i.e., those that are already more than 30 years old and of questionable military value. For this group of states, a “draft Alternative Protocol” (CCW/GGE/2011-III/WP.1) tabled by Austria, Mexico and Norway has the advantage of being complementary to and compatible with the Cluster Munitions Convention.

For other CCW members, the GGE chair’s text is broadly acceptable and is seen by many as having the virtue of drawing in key producers and users of cluster munitions for whom the CCM is a step too far. With competing drafts on the table, the upcoming Review Conference promises to be lively, and bets are on as to whether CCW states parties will be able to agree on a cluster munitions Protocol (in some shape or form), or fall back on carrying over negotiations into 2012, or shelving the topic altogether as occurred in 2007 with Mines Other Than Anti-personnel Mines (MOTAPM).

Either way, a decision will have to be made, and such decisions – CCW delegates do not tire to point out – are to be taken by “consensus”. But to what extent is “consensus” a formal requirement in the framework of the CCW? And what does “consensus” actually mean in practice? Would all decisions be required to be taken by consensus of just the adoption of a Protocol?

The CCW, which itself was adopted by consensus, provides in effect that consensus is required for the adoption of any new Protocol. That much is clear, although the relevant provision, as we shall see, curiously avoids the word “consensus”, stipulating instead that Protocols shall be adopted “in the same manner as this Convention”, i.e., by consensus! Strangely enough, nor do the rules of procedure actually use the term “consensus”. Nonetheless, it is safe to say that at the point at which any new Protocol is presented to the Review Conference for adoption the President of the Conference will establish that consensus exists, that is, that there is no state party that objects to the adoption of that instrument.

But, before the Review Conference will decide that issue, the question arises whether lesser decisions also need to be taken by consensus. How will the Conference determine which of the two competing texts should be the focus of its work? Or will it proceed to negotiate on both of them simultaneously? In the face of deadlock, what guidance can be obtained from the CCW, the rules of procedure and the past practice of the parties?

As already noted, the relevant provision of the CCW - Article 8, does not contain the term “consensus”. This article as a whole contemplates more than one way to bring about an outcome. For instance, Article 8. 1 (a) and (b) refer to the majority required for convening a conference of states parties in certain circumstances. Article 8.2(b), instead of explicitly using the word “consensus”, elliptically stipulates that Protocols shall be adopted “in the same manner as this Convention”.

The Rules of Procedure for the November Conference have already been agreed (CCW/CONF.IV/2; see paragraph 19 of CCW/MSP/2010/5) and are the same as those used at the third Review Conference held in 2006. The Rules envisage a number of situations in which a vote would be required. These include rules 19 - 21, 25 – 27, 30 and 32 - 34. Rule 20, for instance, requires that a President’s “ruling shall stand unless overruled by the Conference”, Rule 25 requires that certain motions “ shall be put to the Conference for decision immediately”, and in accordance with Rule 33, a proposal may not be reconsidered unless the Conference “takes a decision to that effect.”

And what do the Rules of Procedure say about such “decision making”? In a somewhat circular fashion, Rule 34 requires the Review Conference to “take decisions in accordance with Article 8 of the Convention”. Rule 30 provides that as a general rule, no proposal shall be discussed or put to a decision unless copies of it have been circulated to all delegations in their respective working languages not later than the day preceding the meeting. The President of the Conference may, however, permit the discussion and consideration of amendments, or motions as to procedure, even though these amendments and motions have not been circulated or have only been circulated the same day. No mention is made, however, as to whether a decision requires consensus or a simple or qualified majority.

What light can the past shed on these questions? Unfortunately, uncertainties about decision-taking in the CCW remain as alive today as they were at the Convention’s adoption in 1980 when those opposing the incorporation of a strict consensus rule apparently went along with adoption of the CCW by consensus only because differences over the terms of the Convention itself - as opposed to the principle of decision-making in general - were negligible. But in doing so they did not regard that instance as settling the matter for all time. In effect, they reserved their position. This background explains the constructive ambiguity inherent in Article 8 that, over the years, has been interpreted mistakenly as mandating a single decision-taking approach, one of consensus. Conversely, it should encourage more tolerance for those who refute the notion that the CCW must take decisions only by consensus.

In any event, consensus should not be required for accepting or rejecting an amendment proposed to the GGE chair’s text. This would be unworkable if not unfair. The draft has no status other than as a working paper submitted by the chairperson of a Group of Government Experts as a personal reflection of the Group’s debate on the issues over which he had presided. The same goes, of course, for the draft proposed by Austria, Mexico and Norway. Short of agreeing to revisit and amend the Rules of Procedure, the only real option that would seem open to the states party to the CCW is to heed Rule 32 which creates the possibility for the tabling of a motion calling for a decision on the competence of the Conference to adopt a proposal submitted to it – in this case, settling the issue of priority to be accorded to competing texts - before the matter is discussed or a decision is taken on it. The Rules of Procedure would thus be applied for a constructive purpose, unlike the situation in the Conference on Disarmament (CD) where the rules of that body tend to be invoked to obstruct rather than facilitate its work.

Whether or not recourse is had to voting, forging consensus is and must remain a central ingredient of multilateral diplomacy. Properly applied, the consensus rule – the reaching of a commonly-accepted position to which no party feels obliged to object - should encourage compromise, leading to an outcome that attracts the widest possible “buy-in” of the international community. The option to vote, however, concentrates the minds of negotiators and improves the ultimate product by raising the level at which compromise is finally brokered. November’s CCW Review Conference may be poised to challenge the grip of the consensus rule, but can the meeting take it in its stride in the time available? We will see.

This is a guest blog by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

(The symbol is drawn from Google Images – diamonds being the symbol for decisions)

Last throw of the dice for the CD?

The notion of a streamlined programme of work - along the lines of those used before the current impasse in the CD – was raised in Disarmament Insight on 14 October 2009. The idea gained some support during recent debates in the Conference on the CD’s future. But what would a streamlined programme of work look like?

One possibility - comprising a “schedule of activities” and associated “understandings” - is suggested below as a means of stimulating discussion.

The draft seeks to do a number of things to bring into the open, and simplify, the CD's approach to the programme of work. It relies heavily on rule 23 to try to de-emphasise the debate over the “ripeness” of an issue for negotiation. In other words, a subsidiary body would be established only when "it appears that there is a basis to negotiate a draft treaty" (emphasis on “negotiate”).

It must be acknowledged that in delaying the decision on establishing a (or each) subsidiary body, the draft merely postpones the inevitable crunch on deciding that such a body or bodies is/are needed. However, if the CD can at least get over the hurdle of settling its programme of work, then there is surely a better chance of establishing momentum for substantive work.

Nonetheless, the draft in effect puts everyone on notice that if this approach doesn't work, then the state of affairs in the CD would be brought formally to the attention of the UN General Assembly.

BEGINS

Draft Programme of Work: 2012

[the timetable below is dependent on the adoption of the Programme of Work at the end of the second week of the 2012 session of the CD]

Schedule of Activities

1 From the beginning of week 3 until the end of week 12, the Conference will deal with the following topics. Each topic will be allocated two weeks:

(a) Agenda items 1 and 2: Nuclear disarmament – weeks 3 to 4

(b) Agenda items 1 and 2: Fissile material – weeks 5 to 6

(c) Agenda item 3: Prevention of an arms race in outer space – weeks 7 to 8

(d) Agenda item 4: Negative security assurances – weeks 9 to 10.

2 The Conference will deal with these topics in informal plenary meetings, without prejudice to the right of any delegation to address them, or any other matter, in plenary meetings.

3 At least three informal plenary meetings will be allocated to each topic each week.

4 If there are insufficient speakers to justify three informal meetings each week, the President will invite delegations to address Agenda items 5, 6 and 7. In any event, time will be allocated for dealing, inter alia, with those Agenda items in week 11.

5 From the beginning of week 11 until the end of week 18, the Conference will consider whether the manner of dealing with any topic to date warrants intensification of work on that or those topics.

6 In the event that the Conference decides to intensify its work on any topic, it may decide to establish a subsidiary body for that purpose. [Note: rule 23 sets out clearly the purpose of a subsidiary body: “Whenever the Conference deems it advisable for the effective performance of its functions, including when it appears that there is a basis to negotiate a draft treaty or other draft texts, the Conference may establish subsidiary bodies…”]

7 If the Conference agrees to establish a subsidiary body or bodies, the mandate for each body will be based on rule 23 of the rules of procedure and will be subject to the understandings listed below.

8 If by the end of week 18 the Conference is not able to agree to establish any subsidiary body, the following steps will occur:

(a) there will be a debate on the need for more time to form a subsidiary body or bodies – week 19

(b) there will be a debate on the prospects for productive work on other topics including the working methods of the Conference – week 20

(c) in the absence of agreement that more time is needed for the formation of a subsidiary body or bodies and if there is no agreement that there are firm prospects for productive work on other topics including the working methods of the Conference, the President of the Conference will write to the President of the United Nations General Assembly indicating that for the foreseeable future the CD is unlikely to be able to fulfil its mandate as a negotiating body, and the Conference will reflect this conclusion in its 2012 report to the General Assembly - weeks 21 to 24.

Understandings

1 In establishing any subsidiary body it will be the understanding of the Conference that any delegation will be able to raise and pursue any issue affecting its national interests during the work of that body.

2 In the event that two or more subsidiary bodies are to be established by the Conference, they will be established in consecutive decisions of the CD unless the Conference decides otherwise.

3 The work of any subsidiary body or other mechanism agreed by the Conference will continue beyond 2012 until such time as the Conference agrees to adjourn or conclude it.

4 The convening of formal plenary meetings under rules 19, 20 and 30 is unaffected by this programme of work.

5 If there is agreement at any time to do so, or if the President believes that it would not attract an objection, the Conference may review this programme of work.

6 If any review of this programme of work is conducted, the programme will be revised only if there is agreement to the proposed revision or revisions.

ENDS

This idea is put forward in an effort to stimulate discussion. It is based on the type of streamlined programme of work habitually used in the 1980s and 1990s (see also here). The challenge is for those who favour the current approach of loading the programme of work with mandates for subsidiary bodies to explain why they believe that a return to the successful recipe, on which the draft above is based, is not worth a try, perhaps as the last throw of the dice for the Conference on Disarmament.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR – for other comments on the CD see here.

[Photograph attributed to http://commons.wikimedia.org/wiki/User:Diacritica).

CD – one step forward…

A feature – for better or worse – of the Conference on Disarmament is the sanctity attributed to the CD’s rules of procedure (CD/8/Rev.9). Incoming Presidents, when assuming the chair of the CD in the alphabetical rollover of the presidency every four weeks, solemnly insist that they will abide by the rules of procedure throughout their (derisorily short) term. This has become code for saying that they will not countenance presiding over any action of the CD unless there is unanimous support for such action – the literal, and misplaced, embodiment of rule 18 that the Conference shall conduct its work and adopt its decisions by consensus.

Sometimes it seems that strict observance of the rules of procedure is an objective in itself, whereas the purpose of the rules is to facilitate orderly work rather than frustrate it. Perhaps, however, a new sense of enlightenment is afoot. Recently the CD took the unusual step of acting in direct contradiction to its rules. Rule 9 ordains that the rotation of the presidency, based on the English alphabetical list of Member States, “shall be followed”. Yet the Conference has acquiesced in a reversal of that order, placing the Democratic People’s Republic of Korea before Cuba for the remaining presidencies of this year. (This outcome does not fall within the circumstances envisaged in rule 10 which afford a temporary relaxation of rule 9 within a presidency.)

The purpose of this switch between Cuba and the DPRK was seen as a pragmatic one to accommodate exigencies of the respective delegations. It is in any event harmless enough, although on a future occasion such a swap might be engineered for less innocent reasons. The point, however, is that the Conference has shown itself ready to overlook its rules when it suits it to do so.

Nonetheless, these particular circumstances have led indirectly to an unfortunate outcome. The Foreign Minister of Canada announced on 11 July that Canada will boycott the CD through the remaining three weeks of the DPRK’s rotation as President. Whether this stance was triggered by the switch of presidencies is not clear. But one of the values of the CD is that it brings under the one roof all the States that possess nuclear weapons irrespective of their international standing, and affords an opportunity for principled advocates for nuclear disarmament like Canada to make their views very clear.

Canada has taken full advantage of that opportunity, and its leadership – including as one of this year’s collegium of presidents for 2011 – Canada, Chile, China, Colombia, Cuba and the DPRK – has been exemplary. It is for no want of skill and energy of the Canadian presidency, whose efforts bridged the 2010 and 2011 annual sessions of the CD, that the Conference remains in its decade-long deadlocked state.

To go back to the beginning of these comments, the rotation of presidents of the Conference takes place strictly by rule rather than by election. And more importantly, the President, in the time-honoured manner of the office, acts first and foremost in a neutral capacity. If the chair needs at any point to project a national viewpoint, he or she makes it clear that they are speaking on that occasion as a Member State rather than as President. Given the current state of the CD, what is needed is a constructive, concerted effort of trust-building rather than individual acts of self-acknowledged symbolism.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR – see here for other comments on the CD.

Graphic courtesy of Google images.

WMD: Giving new expression to the “conscience of humanity”

In a statement issued on 15 March this year at the end of their latest meeting, the foreign ministers of the G8 uttered some commendably strong words about biological weapons. The statement was made in the context of preparations for the seventh review conference of the Biological and Toxin Weapons Convention (BTWC) which will take place in Geneva this December. It is worth setting out their commitment in full:

"4. Guided by the objective of a more secure and safer world, and convinced that the use of such weapons is unacceptable to the conscience of humanity and would pose a grave threat to international security, we reaffirm our commitment to fully respect all obligations under the BTWC and in particular to never, under any circumstances, develop, produce, stockpile or otherwise acquire, retain or use this type of weapon."

This statement bears scrutiny in several respects. Is it not merely a routine affirmation of existing, legally binding obligations on biological weapons that might be expected to be made in the lead-up to an important, five-yearly review conference? The G8 foreign ministers certainly affirm the undertaking in article 1 of the BTWC that their countries will never in any circumstances develop, produce, stockpile or otherwise acquire or retain these kinds of weapons. But they go further in specifically precluding use of them.

Efforts to remedy the curious omission from article 1 of the word “use” amongst the prohibitions of the BTWC are not new, and are not the purpose of these comments. Attention is drawn, however, to the foreign ministers’ statement that use of biological weapons would be “unacceptable to the conscience of humanity”. This inhibition is interesting at several levels.

First, the words just quoted differ from the phraseology used in the BTWC itself. In the preamble to the Convention, the relevant term is the slightly stronger “repugnant to the conscience of mankind”.

But let’s not quibble about words. More significantly, are there analogies that can be drawn with other weapons of mass destruction? For instance, would the same group of states brand all weapons of mass destruction as “unacceptable to the conscience of humanity”? If is safe to think that they would refer to chemical weapons in the same vein, it is surely a no-brainer that the use of nuclear weapons would be even more unacceptable.

The Chemical Weapons Convention (CWC) makes it quite clear that parties undertake never under any circumstances to use chemical weapons, based on their determination “for the sake of all mankind, to exclude completely the possibility of use of [such] weapons”. The CWC moreover reaffirms the principles, objectives and obligations of the Geneva Protocol of 1925 which, like the BTWC, also invokes the conscience of the civilised world (“the use in war of asphyxiating, poisonous or other gases … has been justly condemned by the general opinion of the civilized world; and … prohibition of such use … shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations”).

What about the Nuclear Non-proliferation Treaty (NPT)? The parties to that treaty are very clear about the risks of using nuclear weapons. The opening words of the NPT speak about “the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples”.

This passage from the preamble of the NPT possesses a clarity that is somewhat lacking in the commitment in the body of the treaty (article VI) to bring about nuclear disarmament and thereby avert the devastation of a nuclear war. But that is not the end of the story. In much the same way that, over time, the prohibitions in the BTWC have been interpreted as including the use of biological weapons, the NPT parties have augmented and strengthened the nuclear non-proliferation regime.

The significance attached by the NPT parties at their five-yearly review conferences to producing consensual outcomes, adopted without voting, invests those outcomes with strong moral and political, if not legal, force. Expressed in the 2010 review conference outcome, for instance, is a reaffirmation of the unequivocal undertaking of the nuclear weapon states to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all NPT parties are committed under article VI.

And in the context of the G8’s inhibition that is the subject of these observations, the NPT review conference also expressed its “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed the need for all states at all times to comply with applicable international law, including international humanitarian law.

In the light of this expression of concern by the NPT parties, how likely is it that G8 foreign ministers prior to the next NPT review conference might echo their recent BTWC statement and describe the use of nuclear weapons as being unacceptable to the conscience of humanity? Unless they are prepared radically to alter the statement they issued prior to the 2010 review conference, then the answer is “not very likely”. Their ambitions for that conference amounted to no more than the following: “We are committed to seeking a safer world for all and to creating the conditions for a world without nuclear weapons, in accordance with the goals of the NPT. … Our goal is a safer and more secure world for all”.

For the G8 nations, Japan amongst them, to state that the use of nuclear weapons is unacceptable to the conscience of humanity is more difficult than it would (and should) seem. There is an issue in the US as to whether an apology for the use of atomic weapons over Hiroshima and Nagasaki would be appropriate. But there is a more fundamental matter at stake, one in which the notion of use of nuclear weapons gives way to considerations surrounding possession of those armaments.

This brings us to a conundrum about the possession of nuclear weapons. Nations with nuclear arsenals like to claim that possession is an insurance policy against attack by an aggressor. Inherent in that assertion is that the possessor’s threat of use deters its enemies. But does the deterrence theory hold water? The risk of relying on nuclear weapons for deterrence is the subject of the latest opinion piece of George Schultz, William Perry, Henry Kissinger and Sam Nunn in the Wall Street Journal.

The four former US political and military leaders advance the view that reliance on nuclear weapons for deterrence is becoming “increasingly hazardous and decreasingly effective”. The prospect in the Cold War era of “mutual assured destruction” – an unrestrained nuclear war between superpowers - raised “enormous inhibitions” against employing the weapons. In the opinion of the four statesmen, these inhibitions opened a gap between the psychological advantage of possessing such a powerful deterrent and the readiness of leaders actually to take the responsibility for the extent of loss of life and destruction that would result from unleashing them.

In other words, the military commander in the field possessed a class of weapon that had the potential to make a decisive (though horrifying, and ultimately suicidal) impact, but the use of which was unlikely ever to be authorized by the commander in chief. Faced with this reality, US defence leaders, the opinion piece chillingly recounts, made serious efforts to give the president “more flexible options for nuclear use short of global annihilation”.

In a world in which there has been an increasingly strong and widespread impulse against the production, let alone use, of other weapons of mass destruction such as biological and chemical weapons, it is tempting to conclude that leaders of nations possessing nuclear arsenals would be inhibited from deploying any options for nuclear weapons use, flexible or otherwise. Those inhibitions would be primed, one hopes, above all by the unthinkability of sanctioning the use of weapons that would be indiscriminate in their effect, killing soldiers and civilians alike, and wreaking immediate environmental damage with lingering, long-term pollution of land, water and atmosphere. And, as we have witnessed in Hiroshima and Nagasaki, long-term human suffering as well.

The four statesmen envisage a “safer and more stable form of deterrence” without spelling it out in detail. They appear to place their faith mainly in encouraging a “joint enterprise among nations” that would be the vehicle for greater cooperation, transparency and verification. Given the paralysis of the Conference on Disarmament, current limitations of routine deliberative and review forums (First Committee of the UN General Assembly, UN Disarmament Commission, various regular meetings of states parties), and the allergic reaction of nuclear weapon states to the notion of convening a fourth UN General Assembly special session on disarmament, one is left wondering what are the options and avenues for such a joint enterprise.

The spirit of the G8 foreign ministers in respect of one category of weapons of mass destruction and the NPT’s recent expression of deep concern at the catastrophic humanitarian consequences of any use of another such category are commendable. Noble expressions of the conscience of humanity are important in providing the context for prohibitions on the use of all weapons of mass destruction. But the challenge for the international community in the case of nuclear weapons is to harness these impulses and back them with the force of law in a formal process or framework leading towards the elimination of nuclear arsenals.

As international processes to achieve the treaties banning anti-personnel mines (1997) and cluster munitions (2008) have demonstrated, inspired leadership amounting in effect to a “joint enterprise among nations” in response to a humanitarian imperative can overcome procedural blockages and achieve the stigmatisation of an entire class of weapons. This may not be the kind of enterprise envisaged by the four statesmen, but the clamour for it is undoubtedly growing.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

Note: The G8 is comprised of Canada, France, Germany, Italy, Japan, Russia, the United States, and the United Kingdom. The European Union has been associated with the G8 since 1977.

CD: Getting to first base on a simplified programme of work

The need to simplify the programme of work of the Conference on Disarmament is at last gaining some momentum. Already the subject of an item on this blog on 24 February last year, the notion of reviving an earlier practice of the CD is increasingly seen as a means of getting the Conference to first base.

In short, the idea is to view the organizational tasks of the CD in two steps, rather than one. First, the Conference would agree on the direction of its work for the annual session, scheduling (or timetabling) the activities in such a way as to assist delegations to plan ahead.

What would be included in such a programme? Under rule 28 of the CD’s rules of procedure, the Conference would want to reflect its activities in a manner consistent with its agenda, and would need to take into account any recommendations, proposals and decisions that had been made to it by the UN General Assembly as well as decisions of the CD itself and proposals of its Members.

In the 1990s, the agenda and the programme of work were sometimes embodied in a single document, for ease of allocating blocks of time to respective agenda items. But if the work programme is treated in a manner separate from (but related to) the agenda, it would serve the same purpose. The programme would set out specific periods of time and the relevant dates for taking up specific agenda items. It would also list other organizational matters that it wanted to address.

For instance, in CD/963 of 7 February 1990 and CD/1119 of 22 January 1992, the Conference projected the need to convene subsidiary bodies “according to the circumstances and needs” of those bodies. It also agreed dates for the meeting of the Ad Hoc Group of Scientific Experts on seismic events (see also a previous post I wrote on this topic last November).

The first step, thus, is to agree on the organizational framework for the year ahead, including the allocation of time or space for subsidiary bodies. No mention of actual mandates.

The second step is to settle upon mandates for the subsidiary bodies that Members agree to establish. Obviously, at its broadest abstraction, the UN General Assembly’s mandate for the CD is that it must operate as a negotiating body. Hence, it would be logical that at least one of the mandates for subsidiary bodies would be a negotiating mandate or would foreshadow one. The CD is not compelled to establish subsidiary bodies, but would do so “when it appears that there is a basis to negotiate a draft treaty” (rule 23).

Having come to the view that it should take an issue forward in a subsidiary body, the CD would need to reach agreement on the mandate for such a body (rule 23). This immediately raises the question whether, in terms of the current impasse, the idea of simplifying the work programme by separating out the four mandates will serve the cause of progress. Will it not simply postpone the inevitable discord over the terms of the mandates?

Certainly, the act of separating mandates from the programme of work will not automatically overcome the issue of linkages. For so long as there is more than one mandate, the risk of linkages will persist. Nonetheless, in 1998 the Conference agreed separate – unlinked - mandates on fissile materials and negative security assurances (see paragraph 9 of this UNIDIR paper on fissile material negotiations in the CD for more detail).

Moreover, if Members really want to preserve the CD and help it to get to first base, a solution is at hand through taking a less complicated approach to the contents of the work programme. Getting to second base then becomes the challenge, but the tempo of action will have been raised and the unseemly situation of being unable even to get off home plate and agree formally on the annual sequence of its activities would have been laid at last to rest.

But, as already acknowledged, the question of linkages still lingers. How can the CD avoid the self-cancelling situation that paralyses it through these linkages? What incentives can ever be devised to prevent the tit-for-tat approach of “I will not agree to the mandate on topic A until you stop blocking the mandate on topic B”? There may not be easy answers to these questions, but that is not the end of the story. Second base can still be reached.

Once the simplified work programme is adopted and the focus of attention moves to mandates for subsidiary bodies, it will be essential for the CD to deal with mandates one by one. Succumbing to the temptation to lump mandates together will ensure deadlock in the same way as currently exists with the overloaded programme of work.

How will dealing with mandates separately help advance the runner to second base? In treating each mandate individually (as in 1998), the concerns of delegations with the terms of that particular mandate can be brought out into the open and treated specifically rather than generally, as is now the case. For example, can Member State X explain more precisely why mandate A does not meet its needs? Will Member State Y clarify why it is unable to accept a negotiating mandate on issue B? No more hiding behind the programme of work…. Without honest engagement at this level in which hold-out Members are placed on the spot, issue by issue, the prospects of breaking the deadlock are negligible.

This year’s plenary debates have served their purpose of putting the focus on substance rather than letting matters of procedure (especially the work programme) dominate activities. To get answers to the questions just raised, it would be necessary to do so off the official records of the CD, that is, in informal meetings of the Conference. The readiness of Members to provide answers to such questions in a constructive vein will demonstrate whether the CD is capable of moving to first and second bases or whether it prefers to remain rooted still to home base.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

Also see this collection of discussion pieces by Tim Caughley on the disarmament machinery, and in particular, the CD. These pieces were first published on this blog.