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.