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).

The Conference on Disarmament: Getting Underway in 2010

On 29 May the Conference on Disarmament (CD) adopted its programme of work for 2009 after a 10-year gestation period (as recorded on this site on 18 June). That heady moment of four months ago is not easily forgotten despite the ensuing anti-climax.

The work programme (CD/1864) wasn’t, it turned out, quite still-born. But unfortunately it expired when the CD’s annual session came to an end in mid-September. “Expired” might be too strong a word to describe the fate of the decision. It certainly lay dormant on the table while CD Members sought to give it life by agreeing on the seven individuals who would co-ordinate work on seven major issues and on a timetable that would fairly reflect the hierarchy of treatment accorded to those issues in the programme of work. Their efforts, however, were in vain. But this outcome need not mean that CD/1864 has entirely expired.

There is no disputing that agreeing the work programme is an annual event. (What is actually contemplated by the term “programme of work” is another question, and will be addressed shortly.) For better or worse, the rules of procedure require both the agenda and the programme of work to be adopted at the beginning of each yearly session. More accurately and significantly, the Conference shall “establish” its programme of work (rule 28) rather than “adopt” it (as is the case of the agenda according to rule 27). The agenda is regularly rolled over or renewed from year to year, and it is similarly open to the CD to accept that, with an obvious change of date, the work programme established in 2009 can be refreshed in its entirety for 2010.

Such an outcome is devoutly to be desired if the CD is really serious about pursuing a comprehensive programme embracing a range of issues of central importance to improving international peace and security. The only circumstances in which a Member might require the 2010 version of CD/1864 to be revisited would be if some sea-change in the international security environment were to occur before the next session of the Conference.

Pakistan made it clear two years ago (on 3 August, 2007) that it saw the US-India Nuclear Agreement as having implications on strategic stability in enabling India to produce quantities of fissile material and nuclear weapons from un-safeguarded nuclear reactors. Hence Pakistan’s ability to join in the consensus on the work programme on 29 May this year was clearly not without reservations. Those reservations, although not pursued to the point of an objection to the adoption of the work programme, were expressed instead in the context of the mere procedure - determination of timetable and chairs - by which that programme would be given life. (Curiously, Pakistan’s procedural arguments went largely unchallenged.)

This outcome served to cast a further cloud over the operation of the CD’s consensus rule (rule 18 of the Rules of Procedure), and it would be equally disturbing were Pakistan’s reservations to be revived next year and pressed to the point of objecting to what would effectively be an extension to the life of CD/1864. A question, however, that the membership of the Conference needs to ask itself in the meantime is why it has acquiesced in elevating matters of implementation of a formal decision to the same level of decision-making that it chose to apply to the work programme itself.

As each week passed without resolution of the proposed timetable, it was very painful to witness the CD having to lop another five working days off its schedule, running it down until the opportunity to give effect to CD/1864 was lost altogether. The burden of negotiating a way forward via a further formal decision was placed heavily – and unfairly so – on the Conference’s Presidents shuttling ever industriously between the nay-sayers and representatives of the overwhelming majority of the CD for whom substantive work cannot begin soon enough.

On the face of it, the task of implementing CD/1864 was not complicated. Indeed there seemed to be no difficulty with any of the proposed chairs and co-ordinators, at least not until the appointment of the seven individuals was linked with the timetable by which those office-bearers would carry out their work. Had the office-bearers been appointed first, the meeting time for their subsidiary bodies could have been divided equally, pending future adjustments based on the pace of the progress in their work, if warranted.

Unfortunately, the timetable became a battleground on which attempts were made to re-litigate the very decision that was in the process of being implemented. This strenuous rearguard action, in other words, had as its objective a re-jigging of the subtle hierarchy of treatment of issues so carefully crafted in the May work programme by Ambassador Jazairy and his fellow Presidential colleagues.

The dispute over how to fairly reflect - or “balance” - that hierarchy in the timetable warrants close analysis as Members gear themselves up to getting the CD underway in 2010. Several matters arise for debate. First, in the case of a comprehensive series of mandates or programme of work such as CD/1864, is it wise, or even feasible, to prescribe in advance a detailed timetable that can anticipate every eventuality? Changes along the way will be required whether they are brought about by the need to accommodate a visiting dignitary or to reflect qualitative changes in the intensity of the activities of any one or more of the Working Groups.

Secondly, there is nothing in the Rules of Procedure that requires the CD to take a formal decision on either the office bearers or the daily conduct of the activities of the Conference. These matters should be left in the hands of the President in the certain knowledge that no President would be rash enough to proceed to announce the way ahead on either front unless his or her consultations had established that all Members could agree with, or tolerate, the proposed timetable and list of office-bearers. The mandates of subsidiary bodies must, however, be formally agreed, but that rule was clearly met in CD/1864.

Thirdly, why does the CD allow itself to be held hostage to matters of procedure when the mandates for dealing with substance have already been agreed? In the Conference, it is true that matters of procedure are inextricably linked with substance, and this is certainly the case when it comes to developing an appropriately balanced timetable to implement the mandates set out in the work programme. But the balance that is being sought must be responsive to the qualitative differences in the mandates contained in CD/1864, and above all, to the progress achieved in the subsidiary bodies, rather than to the notion of “equal and balanced allocation of time” in CD/1873 tabled by Pakistan almost 3 months after the breakthrough on the work programme.

In reality, the CD has allowed confusion among various procedural requirements to dominate its existence. Current practice is surely not what was intended by the Rules of Procedure. Why would one want to handicap the CD by having it take formal decisions on its agenda, its programme of work, the mandates of its Working Groups, its timetable and its office bearers before it can actually conduct substantive work? The tail is wagging the dog.

The Rules of Procedure, as well as CD/1036 (the decision on the “Improved and Effective Functioning” of the Conference adopted on 21 August 1990), envisage a much more streamlined and sensible process whereby the programme of work would be no more than that which its literal interpretation suggests, that is, a mere programme rather than an overarching mandate. CD/1036 led to the current rule on the work programme, rule 28, with its emphasis on establishing rather than adopting. This is not a matter of semantics. It contemplates that mandates such as those contained in CD/1864 could be given effect through the efforts that a President would undertake in establishing through his or her consultations that no reasonable objection exists to the proposed manner of implementing the decision on the Working Groups’ mandates.

No-one underestimates the complexity of the substantive work facing the Conference. But surely that challenge will be less debilitating and damaging for the CD as an institution - and for the standing of its Members - than any prolongation of the charade of elevating the implementation of a formal decision to the same level of decision-making as for the work programme (i.e., mandate) itself. The immediate way ahead requires a greater readiness among Members to address the CD’s current problems on the floor of the Council Chamber rather than leaving it to successive Presidents to work miracles behind the scenes.

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

Image Credit: "wag the dog" by Linda Silvestri from her blog "sketched out - drawing on my perspective".

CCW and Cluster Munitions: Let’s Do the Time Warp Again

Stay Tuned in 2009 . . .

The Convention on Certain Conventional Weapons (CCW) 2008 cluster munition protocol saga has stopped, in order to continue. The Group of Governmental Experts (GGE) met last week for the fifth and last time this year to ‘negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations ’ and report back to the CCW Meeting of States Parties (MSP) that takes place Thursday and Friday this week.

But at 5pm last Friday evening, when the GGE should have wrapped up its work, Chairman Bent Wigotski announced that there was growing support for 'stopping the clock' in order to push the process forward. Several states, among them France (on behalf of the European Union), Japan, China, Israel, the U.S. Pakistan, Brazil, and Turkey, spoke out in support of the plan. The Swiss ambassador, President-designate of the Tenth Annual Conference of the High Contracting Parties to Amended Protocol II taking place on Wednesday this week, offered an hour out of that process in order to complete the GGE’s work. Other states were merely lukewarm or clearly against the idea of 'stopping the clock'.

Despite rather secretive efforts over the weekend and on Monday and Tuesday, the Chairman and those working closely with him were unable to secure any additional progress. On late Tuesday afternoon, Wigotski was allowed to address the delegates at the CCW Protocol V Review Conference.

He stated that he would recommend an Amendment (in bold below) to paragraph 13 of the Draft Procedural Report for the GGE:

13. At its final plenary meeting of 12 November 2008 the Group of Governmental
Experts heard reports of the Chairperson and Friends of the Chair. The GGE did not conclude its consideration of document CCW/GGE/2008-V/WP.1 and recommended to the MSP that further consideration takes place in future meetings of the GGE in 2009, including but not limited to a one week session, without prejudice to any future proposals made by delegations.

Assuming the GGE adopts this procedural report, and assuming the MSP agrees to a continued mandate later in the week, the cluster munition process in the CCW will continue to limp along in the year to come. But don’t be surprised if we have to return to these pages to report on additional twists and turns later in the week.

Stopping the Clock

So what happened on Friday? And what does it mean to 'stop the clock' in the world of international negotiations? Such a step is occasionally taken in international negotiations when there’s genuine hope for reaching a final agreement but the parties face a hard and fast deadline. Parties agree to continue negotiations, usually deep into that same night and into the early morning hours, pretending that the pre-set deadline has not passed. Examples in recent memory include the negotiations around the final declarations of the second review conference of the Chemical Weapons Convention in April 2008 and the review conference of the Nuclear Non-Proliferation Treaty in April/May 2000.

So why stop the clock here, and then go home for the weekend? The States Parties to the CCW had decided in 2007 that the GGE’s work in 2008 would end on 7 November, enabling it to report to the Meeting of States Parties on the progress made. At that meeting on coming Thursday and Friday, States Parties could extend the GGE’s mandate into next year. Failing to reach an agreement in the GGE, while a disappointment, would not prevent the possibility of future progress.

Even the Chair acknowledged during the late Friday afternoon session that he didn’t have the ambition to try to finish these negotiations. He nonetheless proposed this extraordinary step of stopping the clock in order to make it possible for a future GGE to produce a 'consensus as broad as possible'.

Misgivings about process

The praise heaped upon the Chair by some states during Friday afternoon, lauding his wisdom, professionalism and expertise stand in stark contrast to the frustrations expressed by a considerable number of states with his handling of the process.

Earlier in the day on Friday, the collapse of negotiations had been likened by one state to a funeral. Following a long afternoon, sentiments, as noted above, had changed somewhat in a hopeful direction. At the late Friday session, some states (like Canada) expressed limited support for the idea of a 'resurrection', so long as propositions made during the week and worked through by Friends of the Chair were incorporated into any new Chairman's paper. These suggestions were characterized by opponents (like Brazil) as turning the clock back to July.

New Zealand expressed a willingness to continue work, but raised a number of questions. With respect to 'stopping the clock', the delegate noted that it is not a normal procedure. It is done on occasion when there is an absolute deadline. Here there is a different situation: States Parties can agree to continue the mandate. He also asked about procedure for continued negotiations. Would there be a small group? Who would be in the group? Would there be a report to the GGE? Or to the States Parties meeting on Thursday and Friday? At what stage would that group's work be available for consideration?

Croatia voiced concern (echoed by Norway and Costa Rica) about being able to participate in ongoing negotiations on cluster munitions when faced with a full schedule of meetings in the CCW this week. In reponse to this the Chairman appealed to delegates' stamina and requested and told them to work harder: 'we’re not retirees here'.

The South African delegate raised serious objections, saying that his head of delegation was on the plane back to South Africa, and that he, too, would shortly be returning to South Africa. He saw the text as having nine lives, rather than being resurrected. 'If I’m 10,000 kilometers away the issues of stamina will not matter.' He reiterated frustrations with his and other countries being locked out of the process thus far and was not in support of more of the same. The Russians, while not going as far in their criticism, did note that the majority of their experts were flying out on Saturday – continued consultations were one thing, but negotiations another.

Mexico, Honduras, the Netherlands, and Croatia all expressed concerns about the lack of transparency and the inability to participate in the negotiations – effort was not the question, but ability to participate.

The misgivings also seemed to have the effect of driving opponents of a broad agreement back to original positions. India stated that proposals will be measured by whether they can take states closer to consensus. India also raised the issue of exceptionalism: Why was it that one category of weapons has been singled out by a convention and has since been an obstacle to progress for the GGE?

Where things stood on Friday

By the end of the week, patience on all fronts had worn thin. The Chair did not want to consider proposals to which the so-called major users and producers would not agree. States outside of the small group of countries being regularly consulted felt locked out of the process and complained about a lack of transparency. Those from non-English speaking states felt even more frustrated. Depending on one’s perspective, the Chair’s sometimes indelicate language could be taken as refreshing diplomatic frankness or rude dismissal. The expectation on Friday afternoon nonetheless was that the Chair would produce yet another draft text – the seventh if my counting is correct – to springboard into next year’s negotiations.

Monday and Tuesday’s (Non) Developments

Come Monday morning, rumors circulated that there had been ongoing consultations, with the United States, India, Brazil, the UK, France, Israel and perhaps a handful of other states being consulted. By the end of the day, no clarity had emerged. Little had leaked out about what might be found in the new text – rumors circulated that the non-text that had been floating around the EU might form some basis for negotiations. By Tuesday morning, rumors as yet to be confirmed circulated that discussions were taking place 'campus' (i.e., not at the United Nations complex). By Tuesday afternoon, efforts had failed, as reported above.

A small lesson learned from this may be that the extraordinary 'stop the clock' procedure should be used only when the moment is truly ripe for agreement. That was not the case here.

Signs of Hope

Through all of the bluster and ill will, there are some signs of glacial movement. As a close observer of the CCW for well over a decade, I take some hope from the fact that some producers and users have agreed to the CCM and are pushing for a meaningful instrument in the CCW. I also take hope from the fact that producers and users who chose to forego the CCM have felt compelled to pick up pace of the CCW and acknowledge the humanitarian problem caused by cluster munitions. The structure of the CCM (particularly in terms of the basic definition), if not yet the substance, has been taken on board. Victim’s assistance has been acknowledged as a necessary component of any new protocol. But a final accord remains beyond reach this year.

Virgil Wiebe

Video Credit: 'The Time Warp!' available on YouTube

Non-free use rationale:
# It illustrates an educational article about the entity that the picture depicts.
# The image is used as the primary means of visual identification of the article topic.
# It is a low resolution image, and thus not suitable for production of counterfeit goods.
# The logo is not used in such a way that a reader would be confused into believing that the article is written or authorized by the owner of the logo.
# It is not replaceable with an uncopyrighted or freely copyrighted image of comparable educational value.