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)