The Elusive Consensus

There are good reasons for the inclusion of the consensus rule in the Conference of Disarmament’s Rules of Procedure.  These are discussed below.  But the consensus rule is being eroded tacitly or directly by those who are most keen to preserve it.

Something has to give.  Unless a more enlightened approach is taken to the use of consensus in the CD, the utility if not the integrity of that institution will be further debased. Recent decisions of the First Committee of the UN General Assembly in agreeing three initiatives for dealing with issues from the CD’s agenda in forums outside the Conference are no coincidence.

Sound advice on consensus was recently offered by the current President of the Conference. Introducing the CD’s annual report in the First Committee on 1 November 2012, Ambassador Hellmut Hoffman (Germany) reminded delegates that “consensus is not identical with unanimity”. He explained that consensus is the result of a “fair and honest effort” to arrive at an outcome which reflects a view “vastly prevailing” among member States and is one which those members whose interests are not fully met by it can nonetheless tolerate.  In other words, where voting is not an option, a decision is able to be taken without any member feeling obliged to voice a formal objection to it and thereby block it.

As the CD’s rules of procedure allow no other means of decision-making, there is an unwritten duty in situations where a member is isolated not to block consensus except in extremis.  The consensus rule does not confer an unfettered veto on each member.  Rather it protects a member from the imposition of an outcome by the “vastly prevailing” majority that would demonstrably jeopardise its supreme interests, i.e. its national security.

The prime purpose of the consensus rule in the CD is to assure members that decision-making on a multilateral negotiation of a treaty will not be dominated by the numerical superiority of any group of nations. The rule is also intended to facilitate the achievement of an agreement without the need for a vote and its “inevitable divisiveness”.

In addition, working by way of consensus can help facilitate the emergence of balanced texts that attract wider support, foster concerted uptake and implementation and prove to be longer lasting. The emergence of a dissatisfied minority, out-numbered under a voting procedure, is obviated.

In a body whose mandate is to negotiate matters affecting the security of all nations, those attributes of the rule surely amount to a sound basis for taking decisions only by consensus.  So, what is the problem?  The problem is that the impasse in the Conference does not reflect disagreement over anything as vital as the contents of a legally-binding treaty but simply over the basis on which treaty negotiations might be conducted.  There is no shortage of mandates that could ultimately lead to treaty negotiations – indeed there are four of them, but they have been unhelpfully fused together so that nothing constructive happens on any of them. For as long as agreement to a mandate on one core issue is held hostage to securing agreement to mandates on the other three core issues, the CD will remain rooted to the spot.

Boiled right down to just two central issues, some members who would like negotiations to begin on banning the production of fissile material for nuclear weapons aren’t yet prepared to concede that concrete efforts should also get underway on nuclear disarmament.  And vice-versa.  Perpetuation of the status quo serves no-one’s interests except those that, despite protestations to the contrary, wish to retain their nuclear arsenals or augment their stocks of fissile material.

But to return to the point.  The mere couching of mandates and prioritising of issues for the commencement of work in the CD can scarcely be characterized as constituting a threat to national security.  Therefore, “consensus” should be interpreted in its normal manner. That is, the decision should be taken by general agreement where no member believes that its security is so prejudiced by that decision as to impel it to voice its objection, thereby blocking it.

A member might object to a decision to adopt a draft treaty where it believed that the outcome, despite intensive negotiations in which it had participated, would prejudice its national security. A member might object to a decision to adopt a mandate which specifically precluded a particular outcome thereby demonstrably compromising that member's national security ab initio - an unlikely situation given the sensitivity traditionally shown by CD presidents in tabling only those mandates that have been the subject of exhaustive consultations. But a member would not normally object to a decision to adopt, for example, a document setting out the parameters and timetable for the CD's annual session even if that member’s preferred position was not fully met.

The regional groups of the CD, whose consultations are not covered by the consensus rule but have nonetheless fallen prey to it, might weigh the desirability of moving away from lowest common denominator outcomes and developing a habit of reaching more nuanced ones. For example, a group position that reflected a "vastly prevailing" viewpoint but that noted a different, minority approach albeit one that was not being insisted upon, or on which, perhaps in face-saving terms, instructions were being sought ... an outcome, in other words, that respected a minority position but that wasn't stalled by it.

In any event, as noted before in this column, 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 viability of the Conference.  There may not be a consensus that the CD’s days are numbered but the recent writings on the wall of the UN General Assembly are surely salutary nonetheless.

As Ray Acheson wrote in the final edition for 2012 of Reaching Critical Will’s excellent First Committee Monitor, “The important message coming from the majority of member states and civil society at this year’s First Committee is that a handful of countries must no longer be allowed to hold back the rest of the international community in tackling some of the most dramatic problems of our age.  Stalemates and watered-down outcomes must urgently be replaced by alternatives that can proudly be deemed “successful” for genuine human security and social and economic justice.  Governments and civil society alike should not settle for less.”

Posted by Tim Caughley, Resident Senior Fellow, UNIDIR, Geneva

Photographed is one of the Palais des Nations' beehives offered to the United Nations Office at Geneva by Switzerland on the occasion the 10th anniversary of Switzerland's membership of the UN.

First Committee: a weather report

The 2012 session of the First Committee of the UN General Assembly was notable not only for the disruption caused by super-storm Sandy but also for a stirring of the winds of change in multilateral disarmament machinery. Winds at the other end of the Beaufort scale to Sandy, admittedly, but discernible nonetheless...

The endless debate over the causes of deadlock in the Conference on Disarmament and of under-achievement in other disarmament forums has had its instructive moments, but it has not yet thrown up a game-breaker. We seem no closer to getting the CD re-started than to mothballing it.

Not surprisingly, therefore, attention has begun to turn away from the institutions and to concentrate instead on the issues that are trapped within them.  More particularly, on finding other ways of “taking forward multilateral disarmament negotiations”, to use the terminology of the First Committee’s agenda...

This was certainly the case with three new (or revamped) resolutions tabled by the NAM, Canada, and a cross-regional group supporting an initiative by Austria, Mexico and Norway.  Canada’s (annual) proposal on fissile material took a different tack from previous years and included a request for the UN Secretary-General to establish a group of government experts (GGE) drawn from 25 states to meet in Geneva for 2 weeks in 2014 and 2015  to make recommendations (but "not negotiate") on possible aspects for a treaty banning the production of such material.

The other two proposals dealt with another core issue on the CD’s agenda, nuclear disarmament. Under the NAM resolution (adopted without opposing votes and with only 5 abstentions), this topic will be the subject of a high-level meeting of the UNGA on 26 September 2013 “to contribute to the goal of nuclear disarmament”. The remaining measure sought the setting up of an open-ended working group for up to fifteen working days in Geneva in 2013 “to take forward multilateral nuclear disarmament negotiations for the achievement and maintenance of a world without nuclear weapons”.

The NAM resolution, although comparatively modest, is nonetheless significant in that it reflects dissatisfaction over the apparent unwillingness of some CD members to treat nuclear disarmament at least on parity with fissile material. Interestingly, Canada’s proposal - born of frustration with getting negotiations underway in the CD on a fissile material ban  – was adopted by the First Committee with only one negative vote (cast by Pakistan, although the idea of a GGE had, in an earlier, separate vote, been opposed also by Iran and Syria).  In the decision on the resolution as a whole there were 148 votes in favour of it and 20 abstentions (including those of China and a number of Middle East states).

This level of support for the Canadian proposal needs to be seen, though, in the context of its explicit readiness both to offer the CD a further year to resolve the deadlock before the GGE meets as well as to ensure that the Conference will overtake the latter as soon as the CD agrees to negotiate a ban on the production of fissile material for nuclear weapons.

The last of the three proposals just mentioned takes a much more arms-length approach to the CD.  The open-ended working group (OEWG) would report primarily to the UN General Assembly, although its report would be copied to the CD as well as to the UN Disarmament Commission.

The significance of this distinction between the UNGA and the CD can best be illustrated by an extract from India’s explanation of vote. Explaining why it had abstained on the resolution, India said that “an OEWG established outside of the CD under GA rules of procedure may not lead to productive outcomes in taking forward the multilateral nuclear disarmament agenda with the participation of all relevant countries”.

In other words, the OEWG would proceed not under the CD’s sole decision-making rule – consensus – but under those of the General Assembly which, as laid down in Article 18 of the UN Charter, contemplate voting. As for the vote on the proposal itself, the measure easily carried in the First Committee with the support of 133 members. There were 4 against (France, Russia, UK and US) and 20 abstaining (including China, Pakistan, and Israel as well as India).

For those states that are ready to engage directly in the issues rather than merely in how to prioritise the treatment of them, new avenues have clearly opened up.  For nuclear disarmament, 2013 offers a packed programme with an OEWG, a high level meeting and a NPT PrepCom in the offing,  as well as a conference scheduled for March in Oslo on the humanitarian impact of a nuclear detonation.  Whether or not the CD – bending to the winds of change – manages to wrest back the initiative in 2013 and forestall the convening of the GGE on fissile material in 2014 remains to be seen.

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

Nuclear disarmament: Promises and hope

“There are plenty of promises and hope floating around you”.  This was the message inside a Chinese fortune cookie opened during a visit to New York last week for the annual UN General Assembly meeting on disarmament matters (First Committee). It is a message that bears closer analysis to the prospects for nuclear disarmament than first meet the eye…

“Plenty of promises” exist in terms of international commitments to nuclear disarmament as well as recent pronouncements of world leaders that the planet will be a safer place when nuclear weapons are eliminated.

Those self-same undertakings have given rise in turn to a degree of “hope”.  But, if this session of the General Assembly is any measure, that hope has a firmer grounding than in recent years.  What is the difference?  There are several answers, and strangely these expectations arise despite, or perhaps because of, the paralysis in the Conference on Disarmament (CD).

In the margins of the Assembly, there is growing recognition that at least one game-breaker, perhaps several, have emerged in the shape of a new focus on nuclear disarmament outside the CD:

--- There is the resolution promoted by Austria, Mexico and Norway proposing the setting up of a working group open to all states to “develop proposals to take forward multilateral negotiations for the achievement and maintenance of a world without nuclear weapons”. 

--- Another draft resolution in circulation is being promoted by Cuba. The aim of Cuba’s paper is to have the General Assembly agree to convene a one-day long High-level Meeting on Nuclear Disarmament in September 2013.

--- And last but not least there is the Norwegian initiative to host a meeting in Oslo next March to bring a new focus to the humanitarian impacts that would result from the use of a nuclear weapon whether accidental or deliberate.

Although it doesn’t deal specifically with nuclear disarmament, mention should also be made of Canada’s annual General Assembly resolution on fissile materials, the latest version of which proposes the setting up by the UN Secretary-General of a group of government experts in Geneva until such time as the CD reaches agreement on a programme of work. The experts would be tasked with elaborating a treaty banning the production of fissile material for nuclear weapons.

At the time of writing it is difficult to predict the outcome on any of these initiatives, but in sum – and in terms of the fortune cookie - they offer “plenty of…hope” that a new departure towards nuclear disarmament will emerge. 

How or when will we know whether that hope is well founded? One measure will be whether members of the CD are ready to face facts and acknowledge that prospects for progress on nuclear disarmament in that forum are negligible no matter how much some of them would like to believe otherwise.  Even if the new developments just noted prompted the Conference to overcome its chronic inability to agree its priorities and to adopt without dissent its elusive annual “programme of work”, a more difficult barrier looms.

The 14-year standoff over the CD’s priorities has eroded the level of trust amongst members.  Restoring it will take time, perhaps further testing the patience of some members. An early sign of the existence of improved trust following a breakthrough on the CD’s priorities will be the absence of the gerrymandering that scuppered the 2009 work programme.  On that occasion certain procedural steps were unnecessarily put to the Conference for formal decision and fell just short of the necessary consensus.

Of course, several political factors of regional and international significance will come into play before the end of this year. Nonetheless it is tempting to conclude that, after a dearth of activity on nuclear disarmament in a multilateral context, 2013 holds the promise and hope of at least some progress of one kind or another.

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

The photograph of a fortune cookie is a file from the Wikimedia Commons

Political will/Political won’t. Compromise?

Apart from the ritualistic and sometimes ironic “congratulations” that are offered each month to the incoming president of the deadlocked Conference on Disarmament, the most common expression heard in the Council Chamber  is “political will”.  

Or more accurately, “the lack of political will”. 

I was asked by one of this year’s UN Disarmament Fellows what “political will” means.  My response was to duck the question by saying that what was lacking in the CD was “compromise”, not political will.  

- Compromise between those states that don’t want a ban on the production of fissile material to cover existing stocks of such material, and those that do 

- Compromise between those that want a binding agreement to prevent an arms race in outer space, and those that don’t

- Compromise between those that don’t want negotiations to eliminate nuclear weapons, and those that do 

- Compromise between those on the one hand that want the nuclear weapon states to provide legally binding assurances that nuclear weapons will not be used against non-nuclear weapon states, and on the other hand those that believe existing assurances are sufficient

- Compromise amongst those championing negotiations on any one or more of those activities

- Compromise between those that see the CD’s rules of procedure as a constraint, and those that see their national sovereignty as diminished by such constraint... 

But to return to the question.  “Political will” was described by the previous High Representative for Disarmament Affairs Sergio Duarte as the source of energy that allows for movement past agreed milestones. A former Director of UNIDIR Patricia Lewis defined political will as “the sustained determination to advance a public interest, even in the face of strong resistance”.  Both recognised that the current problem in the disarmament arena is not so much a lack of political will but a clash of political wills.

As has been apparent in the CD’s thematic debate on revitalising the Conference, views on how to overcome this clash of wills remain far apart.  Indeed, some doubt whether the political will to forge compromises and negotiate broadly acceptable outcomes is even possible in a more complicated post-Cold War security environment.  If this is so, sustaining the CD in its current mode will be harder to justify, spawning perhaps ad hoc processes driven by like-minded states, but open to all, where political energy is more readily harnessed to achieve a public interest. Those states that choose to stand aside from such processes deny themselves the ability to influence the outcome, outcomes that strive for consensus but which allow recourse to voting to prevent endless deadlock.

In the meantime, it would be nice to hear and see more use of the word “compromise” in the Conference on Disarmament in a practical effort by its members to give meaning to "political will" as the CD finalises its annual report to the UN General Assembly and completes its otherwise barren 2012 session.

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

For brief background material on the CD see the publication “The Conference on Disarmament Issues and Insights” 

Consensus in the CD and multilateralism

Despite the committed efforts of its six chairs, the 2012 session of the Conference on Disarmament had few highlights.  The closest it came was the readiness of all but one Member State not to oppose the Egyptian president’s recipe – the mandates for work set out in CD/1933/Rev.1 - for reviving the CD’s negotiating mode after a 16-year hiatus. The Conference’s annual report to the UN General Assembly will thus be bereft of good news.  It may even be bereft of any real news.

Earlier this year when the president (Ambassador Badr, Egypt) tabled his carefully nuanced proposal for decision, Pakistan was unable to join the consensus, and the measure thereby failed.  The Pakistani Ambassador (Zamir Akram) explained on 15 March that the (deliberate) ambiguity over the inclusion of existing fissile material in the scope of the proposed negotiation of a fissile material production ban would compromise that nation’s security – the stakes were described as being of an “existential” nature for Pakistan.  Italy’s rejoinder, that conceivably only the outcome of such negotiations, rather than the negotiations themselves, could compromise a state’s security, cut no ice.

The point at issue here is whether the CD’s sole manner of decision-taking should be used somewhat more sparingly, say, at an advanced stage of the negotiations and certainly when a fully-fledged treaty text is tabled for adoption.  Pakistan’s diplomats are widely admired as skilful negotiators and are highly adept at multilateral negotiations, but even if their nation failed to secure an outcome that met its needs it could block consensus at the point of adoption of the resulting treaty. 

And, of course, no state can be bound by treaty obligations unless it has ratified or otherwise formally signified its acceptance of them.  Pakistan’s stance in the Conference is therefore a puzzling one, the more so because of its strong attachment to multilateralism. During the recent Arms Trade Treaty Conference in New York, Pakistan’s delegate Ambassador Raza Bashir Tarar said this:

“We hope all of us can marshal the true spirit of multilateralism which necessitates flexibility, compromise, consensus and a balance of interests of all States. Such a spirit is not without precedent within the UN context.” The Ambassador went on to give some examples drawn from the disarmament arena, such as the “unanimous adoption of UNDC guidelines on international arms transfers, the successful conclusion of UN Programme of Action on Small Arms and the UN Fire Arms Protocol, along with voluntary transparency mechanisms of [the] UN Arms Register and the UN Report on military expenditures, [which] together represent a firm foundation for the structure of an Arms Trade Treaty”.

Fast-forward to the final presidency of this year, that of Germany. Ambassador Hellmut Hoffman’s main task in the chair is to secure agreement to the CD’s annual report to the UN General Assembly. Again, such agreement must be by consensus, that is, the absence of any formal objection by a Member State.  What Ambassador Hoffman said about multilateralism and consensus warrants repeating here:

“Since the question of the rule of consensus continues to be a matter of much debate in this Chamber - which is not surprising given the role it has played in making things possible or not possible in our work in the last decade or so - let me quite emphatically say at this point that in my book of multilateralism working towards consensus is a goal of great importance.  At the same time it has to be said as well that for multilateralism to be effective, achieving consensus must not be misunderstood as a licence to force vast majorities to settle for outcomes at the very lowest common and at times banal denominator”. Somewhat more pointedly, the chair continued: “If achieving consensus is misunderstood as a free ticket to veto whatever one does not like, even if entirely isolated on an issue which is not involving one's fundamental interests, multilateralism cannot achieve any substantive results at all. If and when this happens multilateralism starts to exist for its own sake as a more or less empty process. The CD represents a good example of this danger”.

What is inherent in the president’s words is that the exercise of the right to withhold consensus carries with it certain responsibilities.  As the CD’s rules of procedure allow no other means of decision-making, there is an unwritten duty in situations where a Member State is isolated to withhold consensus only in extremis.  This is why Ambassador Akram described the situation confronting Pakistan as “existential”, albeit in relation to the adoption of negotiating mandates rather than a painstakingly negotiated treaty.  Curiously, however, Pakistan’s deputy representative took the floor immediately after the chair had made the remarks just quoted to voice what seemed like - but may not have intended to be - a less nuanced approach. Expressing the need to make his views clear “on the record” of the CD, Pakistan’s delegate described the president’s interpretation of the rule of consensus as “rather innovative”.

Whatever was the intention of Pakistan’s recent remarks, it would be unfortunate if they were construed as taking issue with Ambassador Hoffman’s central point that multilateralism will not be well served by treating the consensus rule as a right to “veto” in every instance.  In prescribing the “requirement for a single multilateral disarmament negotiating forum … taking decisions on the basis of consensus”, the UN General Assembly’s first special session on disarmament was very conscious of the security considerations that might influence a State’s position.  UNSSOD-1 specifically recognized that the “adoption of disarmament measures should take place in such an equitable and balanced manner as to ensure the right of each State to security and to ensure that no individual State or group of States may obtain advantages over others at any stage”. In the context of the broader objectives of operating at the multilateral level, it cannot be supposed, however, that the General Assembly would have regarded “measures” (e.g., treaties) as encompassing mere working mandates such as those in CD/1933/Rev.1.

Where are these comments leading?  The exchange between the president and Pakistan was in the context of agreeing the CD’s annual report to the UN General Assembly.  Traditionally this involves a rather animated but hollow exercise in which a small minority prevents the Conference from including anything in the report that would, for example, inform the UNGA of the divergence of views in the CD on the nature and causes of its longstanding deadlock. Logic dictates that with the future of this forum under such a dark cloud, the patience of the General Assembly would be tested less, if not improved, if the consensus rule were used more sparingly and the Conference could thus volunteer a formal insight into the current state of affairs. In these worrying times for multilateralism, not to mention the viability of the CD, let’s hope that common sense prevails on this occasion.
This is a guest post by Tim Caughley, Resident Senior Fellow at UNIDIR. See also earlier comments on the CD.

Transparency in Armaments

These historical insights on the treatment in the CD of agenda item 7, Transparency in Armaments, were offered by UNIDIR as background to the debate on that issue in the Conference on 14 August 2012 under the presidency of Ambassador Jean-Hughes Simon-Michel (France).

During the 1991 session of UNGA the EU and Japan sponsored a resolution on transparency (46/36L). Recalling the 1990 Gulf War, the resolution asserted that no single state especially in areas of tension should be able to strive for levels of armaments that did not bear any relationship to its self-defence needs.  The CD was requested to address the question of the excessive and destabilizing accumulation of arms and to elaborate universal and non-discriminatory practical means to increase openness and transparency in this field.

Initially, there was no consensus in the CD on inscribing this issue as an agenda item. However, agreement was eventually reached to hold informal meetings chaired by a Special Coordinator. In 1993 the CD established an Ad Hoc Committee on Transparency in Armaments. Disagreement soon emerged over whether resolution 46/36L did or did not limit the mandate just to the UN Register of Conventional Arms. Some members took the view that the subsidiary body should focus on the gradual expansion of the Register to include all categories and types of arms including WMD. Other states, however, opposed inclusion of WMD in the Register because to do so would imply international acceptance of transfers of such weapons.

Work in the Ad Hoc Committee came to an end in 1995 when members were unable to reach agreement on its re-establishment. Since then, CD delegations, as with agenda items 5 and 6, have not envisaged re-convening a subsidiary body, preferring instead the appointment of a Special Coordinator to seek the views of members on the most appropriate way to deal with this issue. The item has become a place of convenience for raising issues about conventional weapons rather than for seeking new agenda items to cover those issues.

This posting was published for UNIDIR by Tim Caughley, Resident Senior Fellow

Comprehensive programme on disarmament

These historical insights on the treatment in the CD of agenda item 6, “Comprehensive Programme of Disarmament”, were offered by UNIDIR as background to the debate on that issue in the Conference on 14 August 2012 under the presidency of Ambassador Jean-Hughes Simon-Michel (France).

The comprehensive programme of disarmament (CPD) has its origins in article 11 of the UN Charter. Under that article UNGA is mandated to consider and make recommendations on “principles governing disarmament and the regulation of armaments”. Then in 1969 when declaring the 1970s as a Disarmament Decade, UNGA requested the CD to elaborate a comprehensive programme on all aspects of the cessation of the arms race and general and complete disarmament under effective international control. UNSSOD-I did likewise.

As an instance of the relationship envisaged for the three standing disarmament forums, interestingly UNSSOD-I also requested the Disarmament Commission (UNDC) to consider the elements of the CPD and submit its recommendations to UNGA and, through it, to the CD. UNDC duly elaborated the “Elements of a comprehensive programme of disarmament” and submitted them to the CD.

The item “Comprehensive programme of disarmament” has been on the CD’s agenda since 1980. That year a subsidiary body adopted an outline of the CPD. While there was a measure of agreement on several elements of the outline, fundamental divergences of views emerged on actual measures and stages of implementation and their time frames. Many CD members argued that the CPD should include a firm commitment to its implementation but there was disagreement over whether that commitment should be expressed in legally binding terms.

Since 1989, the item has not been considered as requiring a subsidiary body although over the years Special Coordinators have been appointed to consult members on its future. In recent years, Coordinators appointed by the Presidents of the Conference have chaired informal plenaries during which delegations raised a broad range of issues, both on conventional armaments and nuclear weapons. While some members saw value in resuming consideration of the CPD under the original mandate, others argued for reviewing what they saw as a predominantly nuclear agenda of the CD and updating it with items on conventional weapons.

This posting was published for UNIDIR by Tim Caughley, Resident Senior Fellow

New types of WMD and new systems of such weapons; radiological weapons

NEW

WMD

These historical insights on the treatment in the CD of agenda item 5, "New Types of WMD and New Systems of such Weapons; Radiological Weapons", were offered by UNIDIR as background to the debate on that issue in the Conference on 14 August 2012 under the presidency of Ambassador Jean-Hughes Simon-Michel (France).

This issue was first presented to the UN General Assembly (UNGA) in 1969 by Malta, and the CD in turn was tasked with considering the implications of possible military applications of laser technology. Early conclusions of the CD were that (a) laser technology applied to weapons did not warrant consideration at that time, and (b) the possibilities of radiological warfare were of limited significance for arms control.

In 1975, however, the then Soviet Union, tabled a draft international agreement in UNGA on the prohibition of the development and manufacture of new types of weapons of mass destruction and new systems of such weapons. When discussion of the item resumed in the CD, the USSR indicated that its purpose was to cover “ray” (i.e., radiological) weapons affecting human organs and behaviour as well as genetic weapons affecting heredity. But Western states, while supporting efforts to ban particular weapons of mass destruction, objected to the conclusion of a comprehensive convention banning unspecified future weapons.

This issue also arose at the First Special Session of the General Assembly devoted to Disarmament (UNSSOD-I). The final document included a compromise between a general prohibition approach and the idea of specific agreements and stated that, “a convention should be concluded prohibiting the development, production, stockpiling and use of radiological weapons”.

During the 1980s a subsidiary body on radiological weapons considered a number of working papers but no consensus emerged. Since 1993 no subsidiary body has been re-established. In 2002, Germany tabled a discussion paper for revisiting the issue in light of new threats. The item was also discussed in 2006 in plenary, and from 2007 onwards in informal settings. Discussions remained inconclusive. 

As with agenda items 6 and 7, CD delegations have not in recent years envisaged re-convening a subsidiary body, preferring instead the appointment of a Special Coordinator to seek the views of members on the most appropriate way to deal with this issue.

This posting was published for UNIDIR by Tim Caughley, Resident Senior Fellow

CD 2012: the endgame

At the end of an item posted on this site on 30 May this year, the comment was made that the adoption by the Conference on Disarmament (CD) of a schedule of activities was a step in the right direction.  It would have been more momentous if this schedule had been recognised for what it is, in practice – the essence of the elusive “programme of work” required by the rules of procedure. With its priorities adequately reflected in the schedule of activities, the CD could then have turned its energies to negotiating the necessary mandates for dealing with the chosen subjects. 

Such a return to keeping mandates separate from the programme of work might have been viewed by the UN General Assembly during its scrutiny of the CD later this year as a positive sign that the Conference was capable of responding to deep concerns about its effectiveness.  The Gordian knot tying the main priorities inextricably together would have been cut.  But, on the contrary, it was made clear by some CD members that the schedule of activities was not to be a Trojan horse for the programme of work.  The schedule, they stated, was to be no more than a timetable for the formal thematic debates that followed.

So, can signs of progress be gleaned from the debates themselves?  Possibly.  Lines perhaps have become a little more clearly drawn on the ranking of the four core issues. A fissile material ban and nuclear disarmament are neck-and-neck, with negative security assurances and preventing an arms race in outer space both following behind – running strongly in the race though not in first or second place but seen by some as possible compromise candidates for future focus if the deadlock on fissile material and nuclear disarmament persists.

This state of affairs had been recognised in the work programme proposed by the President (Egypt) on 14 March, albeit in a document including both a schedule of activities and mandates for working groups and special coordinators.  The mandates for the working groups on nuclear disarmament and fissile material would require the latter to “deal with elements” of a treaty banning fissile material production for use in weapons (FMT) while the former would simply “deal with nuclear disarmament”. This distinction softened the earlier disparity between “negotiate” a FMT and “exchange views and information on practical steps for" nuclear disarmament (see CD/1864).

The divergence of views over which of these two topics is the “riper” for treatment continues, but it sounds increasingly ritualistic.  The respective champions of these subjects know that the endgame entails either broadening out the mandate on a FMT to cover existing fissile material thereby expanding the nuclear disarmament value of the exercise, or launching parallel working groups dealing separately with a FMT and nuclear disarmament either contemporaneously or (more workably) in sequence.

Are the signs of entering the endgame sufficient to warrant a sympathetic consideration by members of the UNGA when they “review progress made in the implementation of [last year’s resolution A/66/420] and, if necessary, to further explore options for taking forward multilateral disarmament negotiations”? 

Many members made it clear during the thematic debate on revitalising the CD that their patience is wearing very thin. The debate was marked by urgings for members to show more “political will”, a thoroughly hollow imprecation as pointed out by the US Disarmament Ambassador who noted that the problem was not an absence, but a clash, of political will.  As an aside, perhaps it will be a measure of progress of sorts when members, instead of lamenting the lack of political will, spell it out more clearly in terms of an absence of willingness to compromise.

After its current recess the CD will have seven weeks in which to satisfy the doubters that it is responsive to concerns about its viability. It may choose to do so either by seeking the solution for the disagreement over its priorities by developing a less complicated programme of work shorn of its linkages. Or it may take some overt step such as appointing a friend of the President to explore the scope for compromise on the mandates for nuclear disarmament and a FMT without discounting the validity of other core issues.

Whether such steps would be sufficient to re-engage disaffected members remains to be seen. But in light of the current impasse it is unsurprising that alternatives to the CD are being voiced in the margins of the Conference, albeit without any option emerging yet as the most favoured. Meanwhile to help breathe life into these issues Germany and the Netherlands have initiated meetings of scientific experts on fissile material, and, on nuclear disarmament, Norway will host a meeting in Oslo early next year on the humanitarian consequences of the use of nuclear weapons.

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

Revitalisation of the Conference on Disarmament III

CD III

These additional insights on current practices and procedures of the Conference on Disarmament (CD) are the final of a three part posting of what was offered by UNIDIR as an abbreviated backgrounder to the current thematic debate in the CD on ways to revitalize the Conference. Participants in that debate on 14 June will have heard the CD’s president, Ambassador Kahiluotu (Finland), draw on some of the following points.

1.  Self-review:

There is no mechanism in the CD’s rules for self-review. Reform of the Conference might include provision for a 5-yearly review of the kind familiar to parties to many disarmament treaties.

2.  Regional meetings:

Members may wish to bear in mind that originally regional meetings had the purpose of streamlining the president’s consultations on matters of basic procedure and timetabling of meetings. There is no rule governing the role of regional groups.  Nor are regional groups required to agree on matters of substance, although if no agreement exists within a regional group – whether on a matter of substance or procedure - it can usually be assumed that there will not be a consensus in the Conference as a whole.  Sometimes, however, when it comes to the crunch in the Plenary, and on the record, members may not pursue their objection to the point of breaking a consensus.

3.  Rotating presidencies:

The extremely short time frame for the rotating presidencies is often cited as a serious CD inefficiency. However, if and when negotiations get underway, continuity of those negotiations will be at least yearly, rather than monthly, because they will be presided over by an elected chair separate from the role of president. (Rule 9.)

4.  Agreeing the programme of work annually:

More problematic is the rule that requires the work programme to be agreed annually. However, again, if the programme of work were to be seen in its original form as a schedule of activities, the CD should be able to rise above this obstacle especially if substantive negotiations had developed a momentum of their own. (Rule 28.)

5.  Agenda:

A comprehensive review of the CD would include a review of its agenda to update it to reflect modern realities. (Rules 27 and 31.)

6.  Expansion of the membership:

Pressure is building for an expansion of the membership of the CD. It is anomalous that all UN members contribute to the costs of this body whether or not they are members of it. (Rule 2, Rules 32–36, Annex 1.)

7.  NGOs:

Pressure for improved rules for access by NGOs to the work of the CD, comparable to that in other disarmament processes, also continues to build. NGOs enjoy no greater access to the Conference than members of the public in general. Unfortunately, the decision in 2004 to enhance the level of access is dependent first on agreement by the CD of its programme of work. (Rule 42.) (see also CD/PV.946).

8.  UN specialized agencies:

The rule for access by UN specialized agencies and other relevant organs has not been updated to reflect the growth in disarmament bodies and processes that could help advance the work of the CD. (Rule 41.)

9.  CD as “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 (A/C.1/66/L.13/Rev.1) tabled in the First Committee at UNGA66 mistakenly refers to the CD as “the sole multilateral disarmament negotiating forum” (emphasis added). What is the difference between “single” and “sole”? “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 at its first Special Session on Disarmament (UNSSODI) in 1978 to mean something else. 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). 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.  Not an exclusive forum for disarmament negotiations, but a convenient one.

10.  Relationship of the CD to UNGA/SSOD I:

There is no authoritative statement of this relationship to UNIDIR’s knowledge. Analysts most commonly describe the CD as an “autonomous body” but that word does not appear in the Final Document of UNSSOD-I or anywhere else.  Nor, given the CD’s close relationship with the United Nations, does that forum have all the qualities of autonomy. It is not fully independent.  For instance, the CD meets on UN premises, is serviced by UN personnel, its Secretary-General is appointed directly by the UN Secretary-General and acts as his Personal Representative, its rules require it to take into account UNGA resolutions on disarmament (although it is not obliged to act on them), it is required to send its reports to the UN, and it has become the practice for the Conference to transmit the texts of any treaties or agreements to the GA to be formally adopted and then opened for signature.  Nor – crucially - is it self-sufficient: its budget is included in the UN budget, and the UNGA has the capacity to withhold funding in total or in part.

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

Revitalisation of the Conference on Disarmament II

CD II

These insights on current practices and procedures of the Conference on Disarmament (CD) are the second of a three part posting of what was offered by UNIDIR as an abbreviated backgrounder to the current thematic debate in the CD on ways to revitalize the Conference. Participants in that debate on 14 June will have heard the CD’s president, Ambassador Kahiluotu (Finland), draw on some of the following points.

1.  Simplifying the “programme of work”, confining it largely to a schedule of activities, shorn of negotiating mandates:

Until 1992 the programme of work (rule 28) consisted mainly of a schedule of activities of the Conference and the agenda (rule 27), adopted together in a single document. However, after the conclusion of negotiations on the Chemical Weapons Convention in 1992, the presidency of the Conference began consultations on reviewing both the agenda and the membership of the Conference. This separate focus on the agenda led to it being treated as separate from the programme of work thereafter.

2.  De-linking mandates from the programme of work:

The reason why the agenda and the programme of work were once embodied in a single document was 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 can still 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 (pre-CTBT).

In the past, the first step of the CD each year was to agree on the organizational framework for the session ahead, including the allocation of time or space for subsidiary bodies. No mention was made of actual mandates.  The second step was to settle on mandates for the subsidiary bodies that members agreed to establish. At its broadest abstraction, the UN General Assembly’s mandate for the CD is that it must operate as a negotiating body. Hence, it was seen as logical that at least one of the mandates for subsidiary bodies would be a negotiating mandate or would foreshadow one. In any event, the CD is not compelled to establish subsidiary bodies, but can do so “when it appears that there is a basis to negotiate a draft treaty” (rule 23).

Incidentally, “Comprehensive and balanced”, the qualifying words used frequently in references to the work programme, carry no weight in terms of the CD’s rules, but are political interpolations used to perpetuate linkages. 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 no procedural requirement for the programme to be comprehensive, although it would need to be perceived to be balanced as a practical element of the consensus necessary for concerted implementation of it.

3.  Consensus rule:

In the absence of any likelihood of obtaining agreement to replace the consensus rule, there is a case for developing an understanding amongst CD members of the responsibilities attached to invoking the consensus rule. Such an understanding might situate the rule in the context of actual substantive negotiations and decisions on the mandate for those negotiations, leaving decisions setting the procedural parameters for those negotiations to a more relaxed “general agreement” approach – that is, the absence of any persistent objection. (Rule 18.)

4.  Adoption of reports by consensus:

There also needs to be a better understanding about the rule on adoption of reports by consensus. That rule makes it clear that the approval by consensus of Conference reports such as the annual report to the General Assembly requires the faithful reflection of the positions of all the members. This rule underpins the furnishing of substantive reports rather than minimalistic ones by making it clear that a member cannot object to the inclusion in a draft report of a viewpoint with which it disagrees as long as that viewpoint faithfully reflects the position of its proponent(s). (Rule 25.)

5.  Annual reports to the UN General Assembly (UNGA):

It is arguable that in the current circumstances of deadlock, the CD’s annual report to the UNGA should reflect substantive positions on issues of both substance and procedure, rather than the customary, anodyne procedural reports. (See also the note on rule 25 above.)

6.  Conduct of work in Plenary Meetings:

Better understanding is needed of the rule that the work of the Conference shall be conducted in plenary meetings—the default option. It is open, of course, for the CD to agree on any additional arrangements, such as informal meetings with or without experts. There is a mistaken view that negotiations can only be carried on in subsidiary bodies.  This is not the case.  Subsidiary bodies are to be convened only on a discretionary basis 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. (Rules 19, 22 and 23.)  In practice, however, negotiations of a draft treaty lend themselves to the greater informality - off the record - offered by subsidiary bodies compared to formal plenaries.

A further posting will cover additional possible areas for reform within the CD’s practices and rules of procedure.

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

Revitalisation of the Conference on Disarmament I

CD I

These insights are part of what was offered by UNIDIR as an abbreviated backgrounder to the current thematic debate in the Conference on Disarmament (CD) on ways to revitalize the Conference. Participants in that debate on 14 June will have heard the CD’s president, Ambassador Kahiluotu (Finland), draw on some of the following points.

1.  On 24 September 2010, the UN Secretary-General Ban Ki-moon, noting that “Moving forward on multilateral disarmament negotiations requires political courage, creativity, flexibility and leadership”, convened and opened the High-Level Meeting on Revitalizing the Work of the Conference on Disarmament and taking forward Multilateral Disarmament Negotiations (HLM).  The UN General Assembly held a follow-up meeting on the HLM on 27 July 2011 chaired by GA President Deiss (Switzerland).  And in the Conference itself, CD Secretary-General Tokayev made a statement on 14 February this year drawing the attention of members to Mr Ban Ki-moon’s “persistent calls for serious decisions to be taken with regard to the future of the Conference on Disarmament”, and made a number of suggestions for moving forward.

2.  “Revitalizing the Work of the Conference on Disarmament and taking forward Multilateral Disarmament Negotiations” has become an agenda item of the UN General Assembly (UNGA).  Separate resolutions under that item were tabled during the most recent session of UNGA by Austria, Mexico and Norway (though not pressed to a vote) and by the Netherlands, South Africa and Switzerland (A.66/66).  The latter resolution, adopted by the UNGA without dissent, urged the CD to adopt and implement a programme of work to enable it to resume substantive work on its agenda early in its 2012 session, and it decided that at its next annual session it would “review progress made in the implementation of the present resolution and, if necessary, to further explore options for taking forward multilateral disarmament negotiations”.

3.  In his summing up of the HLM, UN Secretary-General asked his Advisory Board on Disarmament Matters to undertake a thorough review of the issues raised at the meeting, including the possible establishment of a high-level panel of eminent persons with special focus on the functioning of the Conference on Disarmament. In its report of 11 July 2011 (A/66/125), the Advisory Board expressed differing views on such a panel as well as on its possible composition. Further steps towards setting up an eminent person panel have yet to be taken.

4.  The CD’s Rules of Procedure (CD/8/Rev.9) have not been substantively revised since the origin of the Conference post UNSSOD I except to reflect changes in membership and to give effect to a decision in 1990 on the “Improved and Effective Functioning” of the CD (CD/1036).  As well as amending rules 7, 9 and 28, that decision included a direction to the Secretariat to simplify the programme of work, that is, to construct it as a schedule of activities giving indications of the weeks in which those activities would occur.

5.  “Improved and Effective Functioning” of the CD was last taken up by the CD in 2002 under a Special Co-ordinator who reported that his consultations had not led to a consensus (CD/PV.911, pp 14-19). Two subsequent postings will cover issues on which the Special Co-ordinator consulted, together with additional possible areas within the CD’s practices and rules of procedure that may warrant revitalisation.

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