The CD – some stirrings?

The Conference on Disarmament (CD) has just concluded its second session.  It will resume on 2 August for its final 7 weeks for 2016.

The CD remains in the grip of its 20-year paralysis. There have, however, been several twitches of life this year. Draft programmes of work tabled by the Russian Federation and the United Kingdom have in different ways challenged the Conference to rethink the manner in which it might best approach its responsibilities as a negotiating forum. (The last time the CD exercised that role was in 1996 when developing a comprehensive testban.)

By way of an additional topic to the perennial four ‘core’ issues on which the CD has long been blocked, Russia proposed negotiations on elements of a treaty for the suppression of acts of chemical terrorism. This new topic hasn’t broken the log-jam but it has caused some soul-searching as to what the Conference might usefully take up if progress on the core issues remains elusive.

The United Kingdom took a more radical approach. Rather than repeating the CD’s stubborn, two-decades-long approach of trying to set up a working group for each of the four core issues, the UK proposed that there be just one such group. Its ostensible focus would be nuclear disarmament, one of the four core issues (the others being fissile material, negative security assurances and outer space).

Single-mandate proposals like the British one are a welcome echo of the good old days of the CD (pre-1996). So too, are work programmes that are cast in part at least as a schedule of activities. In more productive days, the work programme was no more than a schedule of activities, allowing real work – the development of a negotiating mandate – to get underway at the beginning of the annual session.

Whether the CD is seeing the possible beginnings of a return to better habits of the distant past is too early to say. Russia has yet to convince all CD members that its proposal is an appropriate topic for the Conference.  The UK has yet to convince all members that the proposed mandate is truly a negotiating one and not a duplication of the discussion mandate of the current UN General Assembly’s Open-ended Working Group (OEWG) on nuclear disarmament. Time will tell.

One final point concerns the vexed issue of CD v. OEWG. Given the emergence of forums such as OEWGs and GGEs dealing with issues in parallel to those on the CD’s agenda, some debate has arisen about the Conference’s true role. This comes down to recognising the difference between “single” and “sole” negotiating body?

“Sole” has come to be used as though the CD were the only legitimate multilateral disarmament negotiating forum. However, UNSSOD1’s use of the words “a single negotiating body” was intended to mean something else. What the General Assembly had in mind was that the CD would be a standing body, a single - as opposed to the sole - forum.

That is, it would be a standing institution to which key disarmament issues could be brought and negotiated by key states as needs arose (assuming the necessary consensus). It was seen as more effective and efficient to support a single establishment 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, pre-existing, readily resourced one.

That point may seem esoteric, but in any event competition breeds innovation. In the CD’s case, the signs of some re-invention may slowly be emerging, if the Russian and UK proposals are anything to go by.

Tim Caughley

Resident Senior Fellow

“Comprehensive and Balanced”: Sink or Swim

The report (CD/2033) of the chair of the Conference of Disarmament’s informal working group on the vexed question of the CD’s programme of work is commendably concise. Perhaps too concise. One of its conclusions appears to run together a number of separate issues.

The text in question says this: “The focus on the core agenda items should remain as a priority in order to find a consensus formula for a comprehensive and balanced programme of work” (paragraph 6 (a)). Let’s break this down in terms of the CD’s rules of procedure:

- The four core issues will require—if negotiations on each of them are to be undertaken—negotiating mandates individually or collectively.

- But there is no requirement that those mandates be incorporated in the programme of work.

- Nor is there any requirement that the programme of work be “comprehensive and balanced”.  This is simply code for linking all four negotiating mandates together so that none is agreed until all are agreed (in the time-honoured way of multilateral diplomacy).

The Conference is making things very hard for itself in the following ways:

-  Its programme of work need be no more than a schedule of activities.

- The negotiation of mandates can simply be listed as an item on that schedule, with an appropriate allocation of time.

- Lumping together the four core issues (dealing with nuclear disarmament, a fissile material ban, preventing an arms race in outer space, and multilaterally agreed negative security assurances) constitutes a hugely indigestible feast of work.  Even if negotiating mandates on those topics can be agreed, imagine the difficulty of finding consensus on the sequence in which they should be negotiated.  Negotiating them more or less simultaneously would be beyond the means of all but the largest delegations.

A short look at the history of the CD (repeated from earlier posts on this site) puts this mis-application of the rules of procedure in context:

The Rules of Procedure, as well as CD/1036 (a decision on the “Improved and Effective Functioning” of the Conference adopted on 21 August 1990), envisage a streamlined approach whereby the programme of work would be no more than a mere schedule of business rather than an overarching mandate or mandates for beginning to elaborate a treaty or a politically binding text on one or more of the core issues.

Decision 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 means that having established through his or her consultations that no reasonable objection exists to the schedule of business (i.e., work programme) for the year, the Conference president would get work underway without a formal decision. In theory, the work programme, shorn of mandates, would be so simple as not to require a formal, consensus decision of the Conference.  It would be wiser, however, to establish formally by a decision of the CD that there was no objection to this course of action (i.e., consensus).

Returning to successful approaches prior to 1999 would involve the following:

1. In the opening days of the annual session, there would be an allocation of time to be spent on each of the 4 core issues and other substantive agenda items.  That schedule or timetable would also allocate space for the annual high-level segment and for agreeing the CD’s report to the UN General Assembly.  In addition, it would reserve time for discussion of the outcomes of its work especially on mandates.

2. In the course of its work on the core issues, the central matter for CD members to resolve would be: under rule 23 of the Rules of Procedure, is there a need to establish a subsidiary body in which engagement would be intensified? That is, does a basis exist for the negotiation of “a draft treaty or other draft texts”?  Note that a subsidiary body is generally regarded as being more appropriate for facilitating intense engagement than the comparatively stilted, formal option of conducting work in plenary, although under the Rules, plenary meetings are the default option.

3. As, when and if the questions arising under rule 23 are answered in the affirmative, members would immediately apportion time from the reserved allocation (see 1. above) for the negotiation of the necessary mandate(s).

4. Agreement on the negotiated mandates would require consensus. For so long as Members insist on linkages among the four core issues, agreement on mandates is most unlikely to be achieved individually.  The timetable would need to be flexible enough to deal with the reality that a package deal would thus need to be developed.

The key difference from the present situation is that work on the mandates would be taking place under an agreed, streamlined work programme within the rules constituting a schedule of activities shorn of negotiating mandates. With the work progamme blockage removed, the beginnings of a basis of trust might be regenerated. The focus would turn to determining whether a basis exists for developing a negotiating mandate, issue by issue, and hence for setting up subsidiary bodies and tackling issues of substance rather than procedure. The CD’s sense of purpose as a negotiating body would be restored.

It remains to be seen, however, whether the weight of a linked set of negotiating mandates will ultimately sink the Conference. There is a way, however, if there’s a will…

Tim Caughley

Resident Senior Fellow

CD: Face-to-Face

Fifteen years have elapsed since the Conference on Disarmament last engaged in substantive work.  Briefly in August 1998 the CD tried to fulfil a newly agreed mandate to negotiate a ban on the production of fissile material.  Those efforts lasted three weeks.  Since then, negotiations on that issue have never risen beyond a procedural level.  The same is true for the other core agenda items – nuclear disarmament, preventing an arms race in outer space and negative security assurances.

During these barren years, no less than 90 presidents of the conference have grappled with the task of developing a programme of work for dealing with these four topics in a manner that is tolerable to the CD’s membership.  As required by the CD’s rules, the responsibility for chairing the 24-week annual session of the conference changes no less than six times each year. 

Sharing the presidency in alphabetical order of member states may be democratic, but it takes a toll on continuity.  And during this past decade and a half it has also proved a very lonely task.  In the absence of consensus on mandates for getting down to serious work, it has fallen to successive presidents to conduct constant shuttle diplomacy among individual delegations to find a breakthrough.  While those consultations take place off stage, the CD is effectively at a standstill.  Disarmament experts have begun to turn their attention to opportunities offered by new forums and approaches outside the conference.

Recently, the CD took a decision to mitigate both the effects of the discontinuity of the presidency and also its loneliness.  An informal working group has been established to produce the elusive programme of work. 

The duration of the new body will not be constrained by the rapid rotation of presidents.  Even better, as the group is open to all CD members and observers, a more transparent and inclusive process for uncovering and narrowing rooted differences of view should result (although this benefit will be tempered by the apparent exclusion of civil society, again).  Successive presidents will still have a role in conducting private consultations with concerned delegations, but that will no longer be the central dynamic.

One other reflection, in passing, on the rule to confine each CD presidency to four working weeks... If the conference does eventually succeed in elaborating and agreeing a programme of work, the issue of presidential rotation will fall away.  Attention would turn instead to the chairs of the subsidiary bodies established to carry out the real work of the conference.  The chairs of those bodies will become the key actors, and on past practice they won’t – and shouldn’t – be rotated month-by-month.  At that point the CD president’s role will revert largely to a titular one. 

In the meantime, if the informal working group is to salvage the CD’s credibility, it will recognise that its creation has surmounted a current short-coming in the conference’s methods of work.  An obstacle to face-to-face efforts, delegation-to-delegation, to forge the necessary compromises on matters of real substance has been removed. The issue of presidential continuity has been dealt with, and the responsibility for settling the CD's long-standing differences has been placed where it belongs - on the membership as a whole. Let the thawing begin...

Tim Caughley, Resident Senior Fellow, UNIDIR

CD: Three Mysteries

Three aspects of the Conference on Disarmament’s longstanding paralysis are particularly mystifying.

First, despite all the agonising among the 65 CD members about the current deadlock, there has been no emergence of a group of concerned countries to explore a way though the impasse.  Every month a new president alone takes on the responsibility of finding a breakthrough.  Why is this such a lonely task?  Have members tacitly accepted that the CD’s usefulness has come to an end?  After all, 16 years have elapsed since the Conference last fulfilled its mandate as a negotiating body.  If this is not the case, why is there no coordinated activity – sustained across the monthly presidencies – to shore it up? 

The Secretary-General of the Conference, Mr Tokayev, recently proposed the establishment of an informal working group with a mandate to produce a Programme of Work that would lead to negotiations. This idea has struck a chord with a number of member states. It will be interesting to see whether those members actively lobby and meet among themselves - ideally as an informal cross-regional group - to pursue this promising avenue, or whether it is simply left to successive presidents to painstakingly consult on its general acceptability.

Another mysterious aspect of the CD’s malaise is this.  Strong statements are made regularly by members of the Conference about the need to negotiate on the topic to which they attach priority.  The trial of strength over which of the core issues is “ripest” for negotiation amounts to a direct clash of political wills. The result is that there is no agreement on anything. The consensus needed for the Programme of Work and the conduct of negotiations is altogether absent.

Why is this so strange?  Well, take the case of a fissile material negotiation, or “fissban”.  The principal proponents of this issue profess to being frustrated by their inability to re-launch the negotiation that began and prematurely ended in 1998 and has never been resumed.  But what is stopping them from rallying their supporters and conducting a sustained debate in Plenary, focused ideally on a working paper containing a framework or elements of an eventual treaty?  They don’t need a Programme of Work for such an initiative – under the Rules, working in Plenary is the CD’s default option (Rule 18).

Assuming such discussions gather momentum in Plenary and build up the necessary trust along the way, a negotiating mandate will in due course be needed to intensify the work.  And time will have to be allocated to the working group in which the negotiations would be conducted.  So procedural hurdles would still remain.  The CD would, however, have rediscovered the will to work which is currently absent judged by the lack of initiatives of the kind just described.  This should in itself have a cathartic effect. By the way, a “simplified” Programme of Work (see previous postings on this site) would be the obvious vehicle for making time available for the intensified phase of negotiations just noted (to be pursued alongside other business agreed by the Conference).

Finally, it is interesting to speculate why no state has come forward with any concrete working paper on fissile material negotiations in recent years? Draft treaties were tabled in 2006 and 2009 by the US and by Japan and the Netherlands respectively, while Brazil, Canada and Australia each made proposals in 2010.  But since then, there has been nothing quite as specific apart from the working paper of Bulgaria, Germany, Mexico, Netherlands, Romania, Spain, Sweden and Turkey in June 2011.  The lack of any recent proposal on fissile material  - as a new focus for Plenary debate - is hardly a ringing endorsement of the CD. 

Maybe, as with nuclear disarmament, attention is turning elsewhere. UNOG’s website records that, in advance of the convening in Geneva in 2014 and 2015 of a Group of Government Experts (GGE) on fissile material, 25 states and the EU have recently responded to the UN Secretary-General’s request to submit their views to him on a fissile material ban.  The GGE will proceed on the specific understanding that if the CD meanwhile agrees and implements a programme of Work that includes the negotiation of a fissban, the GGE will cease and any product of its work will be passed on to the CD. 

With very little time left during the current session of the CD for the tabling of concrete proposals on a fissban, let alone a Programme of Work, and in the absence of any member-driven, cross-regional initiative to caucus to overcome the sorry deadlock, these mysteries about getting work underway seem set to remain unsolved.  Yet the solutions aren’t nearly as complicated as the current, discredited efforts to agree fatally-linked, multiple mandates in a single document. Persisting with the latter is the third and most worrisome mystery.

Tim Caughley, Resident Senior Fellow, UNIDIR

CD: “Simplified” programme of work

The notion of a “simplified” programme of work is getting increasing airplay in the Conference of Disarmament (CD) these days. (For those unfamiliar with the chronic stalemate in the CD, agreeing a programme of work setting out the priorities of the Conference is a necessary precursor to real engagement in that body.)

It is not surprising that interest in simplifying the annual work programme should be growing.  Since 1999, drafts of the programme have been unnecessarily laden with mandates that have defied the consensus required for their adoption except in 2009 when there was an-all-too short-lived breakthrough (CD/1864). Mandates included in draft work programmes since 1999 are to begin real work on up to four “core” priorities dealing with nuclear disarmament, fissile material, outer space and security assurances.

The Rules of Procedure, as well as CD/1036 (a decision on the “Improved and Effective Functioning” of the Conference adopted on 21 August 1990), envisage a streamlined approach whereby the programme of work would be no more than a mere schedule of business rather than an overarching mandate or mandates for beginning to elaborate a treaty or memorandum of understanding on one or more of the core issues.

Decision 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 means that having established through his or her consultations that no reasonable objection exists to the schedule of business for the year, the CD president would get work underway without a formal decision. In theory at least, the work programme, shorn of mandates, would be so simple as not to require a formal, consensus decision of the Conference.

Things haven’t panned out as envisaged.  Mandates on the 4 core issues have become inseparably linked, and worse, they have been embodied unnecessarily in draft work programmes. These linkages aren’t accidental.  They are deliberate.  Therefore they can be broken. A simplified programme of work might help in that regard.

What would a simplified programme look like? This column has been offering ideas since 2009 – see list below – and suggested a possible format in 2011.  Boiled right down, a simplified approach would have these features:

1. There would be an allocation of time to be spent during the annual session on each of the 4 core issues and other substantive agenda items.  That timetable would also allocate space for the annual high-level segment and for agreeing the CD’s report to the UN General Assembly.  In addition, it would reserve time for discussion of the outcomes of the second feature of the programme.

2. Within the allocation of time for each of the core issues, the central matter for CD members to resolve would be: under rule 23 of the Rules of Procedure, is there a need to establish a subsidiary body in which engagement would be intensified? That is, does a basis exist for the negotiation of “a draft treaty or other draft texts”?  Note that a subsidiary body is generally regarded as being more appropriate for facilitating intense engagement than the comparatively stilted, formal option of conducting work in plenary, although under the Rules, plenary meetings are the default option and would be the venue for fulfilling this part of the simplified work programme.

3. As when and if the questions arising under rule 23 are answered in the affirmative, members would immediately apportion time from the reserved allocation (see 1. above) for the negotiation of the necessary mandate. Mandates would evolve independently of each other.

4. Agreement on the negotiated mandates would require consensus.  Decisions on mandates would take place singly rather than collectively, unless otherwise agreed (by consensus)(see further below).  Agreement on individual mandates is most unlikely to be achieved simultaneously.  The timetable would need to be flexible enough to deal with that reality.

In weighing the pros and cons of this simplified approach, the following key considerations arise:

- Does this approach involve bending the Rules of Procedure? No, it entails applying them more faithfully.

- Will the mandates that have been refined and embodied in successive draft programmes of work since 1999 remain on the table? Yes, of course, but they will be examined one-by-one, and judged on their individual merits rather than as a package of four.

- What is the main advantage of this approach? It will help members to gauge issue-by-issue whether there really exists a will to begin serious work on each priority and, if so, their readiness to compromise on the ingredients of the mandate that will be required.  This may assist in recalibrating the 4 priorities, for example, in downgrading the push for security assurances, an issue whose need may have subsided marginally relative to the other 3 issues.  And by considering each issue on its own merits, members should be able to weigh more acutely the CD’s capacity to make progress on elaborating more than one “draft treaty or other draft texts” at a time.

- Will treating the mandates one-by-one guarantee that linkages among them are avoided? No, but any attempt to forge linkages will necessarily be more transparent.  Linkages may be needed, for instance, in developing a framework of issues as a compromise solution to the standoff over fissile material and nuclear disarmament.  Or there may need to be an understanding over the sequence of treatment of core issues to ensure that none is unacceptably overwhelmed by intensifying work on others.  Members protecting their interests in such a way on a given issue will necessarily do so openly on the record of the CD. 
The key difference from the present situation is that work on the mandates will be taking place under an agreed work programme, albeit a simplified one. The clock will actually be running. Members will no longer be wringing their hands waiting for the president to pull a rabbit out of the hat.

Tim Caughley, Resident Senior Fellow, UNIDIR

http://disarmamentinsight.blogspot.ch/2013/02/back-to-basics-in-conference-on.html

http://disarmamentinsight.blogspot.ch/2013/01/conference-on-disarmament-cd-echoes-of.html

http://disarmamentinsight.blogspot.ch/2011/07/last-throw-of-dice-for-cd.html

http://disarmamentinsight.blogspot.ch/2011/03/cd-getting-to-first-base-on-simplified.html

http://disarmamentinsight.blogspot.ch/2010/02/shannon-mandate-aged-15.html

http://disarmamentinsight.blogspot.ch/2009/10/conference-on-disarmament-getting.html