Conference on Disarmament: Fissile Material

These insights are offered as an abbreviated backgrounder to the current thematic debate in the Conference on Disarmament (CD) on a core issue on the CD’s agenda, a ban on the production of fissile material (FM), a central ingredient in nuclear weapons. Participants in that debate on 31 May will have heard the CD’s president, Ambassador Kahiluotu draw on some, but not all, of the following points.

There have been many working papers on FM submitted to the CD (or its precursors) culminating in CD/1910 tabled a year ago by eight members (Bulgaria, Germany, Mexico, Netherlands, Romania, Spain, Sweden and Turkey). The first occasion on which a firm focus was provided for fissile material was in June 1964 when the US submitted a working paper to the then Eighteen Nation body (ENCD) about "the inspection of nuclear powers under a cut-off of fissionable material for use in weapons." 

Then in 1978, following a Canadian proposal to ban FM for use in weapons, the UN’s first Special Session on Disarmament (SSODI), in a consensus resolution (S-10/2), proclaimed that the achievement of nuclear disarmament would require “urgent negotiation of agreements … with adequate measures of verification … for: … (b) Cessation of the … production of fissionable material for weapons purposes”.

The Cold War and the CD’s pre-occupation with negotiating the Chemical Weapons Convention and the Comprehensive Test Ban Treaty dominated the scene until 24 March 1995 when Canadian Ambassador Shannon (the CD’s Special Coordinator on FM) produced a report known as the Shannon Mandate calling for an Ad Hoc Committee (AHC) within the CD to negotiate a FM treaty that would be “non-discriminatory, multilateral and internationally and effectively verifiable”.  This term was drawn from a UNGA Resolution adopted by consensus in 1993 following a proposal by US President Bill Clinton for negotiations on a treaty to ban the production of FM. It was intended to ensure that the outcome applied the same verification rules to all parties in contrast, for example, to the Nuclear Non-Proliferation Treaty (NPT).

The Shannon Mandate did not explicitly describe the scope of the negotiations but Shannon made it clear that the establishment of an AHC did not preclude any delegation from raising for consideration in the subsidiary body any of the issues noted in his report including the highly contentious one of whether pre-existing stocks of FM would be covered by the eventual treaty.

Uptake of the Shannon Mandate was not immediate, and discussions on forming a subsidiary body to negotiate a FM Treaty (or Fissban) stalled.  Non-aligned members of the CD (NAM) insisted that progress towards the negotiation of such an agreement should be linked to progress towards the elimination of nuclear weapons, another core issue on the CD’s agenda. The NAM called for a specific timetable for nuclear disarmament. The five NPT-recognised nuclear weapons states disagreed with this linkage but several subsequently made linkages of their own including to the negotiation of another core issue, the Prevention of an Arms Race in Outer Space.

In 1998, in the wake of India’s and Pakistan’s nuclear tests, a breakthrough was achieved when the CD formally established an AHC to negotiate a treaty in accordance with the Shannon Mandate.  But the Committee met for only 3 weeks.  Despite many attempts to renew it, that mandate (CD/1299), remains unimplemented.

It has been blocked for various periods since 1998 by difficulties confronting just two delegations at separate times and has continued to be stymied also by linkages drawn with other core issues on the CD’s agenda including nuclear disarmament.

To sum up, the history of FM in the CD is inextricably linked in one way or another to progress on nuclear disarmament.  The challenge facing the CD is not to determine whether one issue is riper than another but to deal with both issues in tandem or, more manageably, in sequence.  To many states the obvious way forward – albeit highly controversial - is the inclusion of pre-existing FM stocks in the negotiation mandate, as Shannon sought to do, investing the process with joint non-proliferation and nuclear disarmament objectives.

This is not the same thing as inclusion of stocks in the eventual treaty. Compromise may lie, for example, in an outcome under which it would be agreed that existing stocks would not directly be dealt with in the treaty except as part of a broader framework. Such stocks could be covered by a separate protocol (as proposed by Algeria in 1998 (CD/1545), or be subject to a phased, multi-faceted approach entailing binding unilateral or plurilateral declarations or other binding commitments by the nuclear weapons-possessing states – see, for instance Brazil’s proposal in 2010 (CD/1888).

Shedding light on these or other variations and possibilities through the current formal discussions may, it is to be hoped, facilitate consensus on a FM mandate, and help the CD resolve its longstanding impasse over determining its negotiating priorities (also known as settling its Programme of Work).

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

The symbol is drawn from Microsoft Clip Art.

Conference on Disarmament: a lifeline?

The Conference on Disarmament (CD) has temporarily set aside pursuit of a programme of work and is operating, without dissent, on the basis of a “Schedule of Activities” [CD/WP.571/Rev.1 of 21 May 2012]. The Schedule amounts to a timetable of plenary meetings in accordance with the rules of procedure. In ordinary circumstances, such a schedule would be one and the same thing as a “programme of work”. Indeed the relevant rule (no. 28) explicitly says that such a programme would encompass a “schedule of its activities”.

But some member states insist on differentiating these two terms.  Why? 

Because they want the programme of work to include specific work mandates. Why? Is there anything in the rules that requires such inclusion? No.

Is it typical past practice to include negotiating mandates in the programme of work? No. So why, insist on it?

As noted in an earlier article, it has been speculated that it suits major powers that the CD is tied up in knots. Subtle shifts in the dialogue and dynamics are, however, afoot. Members are aware that with the annual session already at the halfway point, attention will increasingly turn to the meeting of the UN General Assembly in New York in October. The inability of the CD to make any progress, for instance, on its very first agenda item covering nuclear disarmament and a ban on fissile material production, inevitably gives rise to consideration amongst UN member states as to alternative venues for advancing those pressing issues. 

And, as witnessed last month in Vienna at the first meeting of the new NPT review cycle, the unanimous expression by the 2010 NPT Review Conference of deep concern at the “catastrophic humanitarian consequences” of any use of nuclear weapons is developing a momentum of its own among states and civil society. The extent to which this development will divert attention from dealing with a fissile material ban and nuclear disarmament in the CD remains to be seen, but the ball is very much in the Conference’s court.

In this regard, it is significant that the most recent president of the CD, Ambassador Getahun (Ethiopia), in his closing remarks hinted that a “comprehensive” programme of work – i.e., one that is inclusive of mandates – may need re-thinking.  He raised the possibility of “de-linking” some of the agenda items. Individual mandates, he implied, could – if they stood on their own – be invested with greater clarity as to their objectives. These are significant points, even if, in the scheme of things, they do not amount to game-breakers.  But the high quality leadership of all three presidents of the CD to date this year (they also include Ambassador Gallegos of Ecuador and Ambassador Badr of Egypt), and the willingness of members to acquiesce in greater use of the presidential prerogative – e.g., witness the adoption of the Schedule of Activities – provide the makings of a lifeline for the Conference as it enters the second half of its annual session.  More, maybe much more, will be needed to impress delegates to this year’s forthcoming UN General Assembly.  But it's a beginning. Ideas on possible ways ahead are invited from readers, and will in any event be the subject of a further article on this website.

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.      [Lifesaver image courtesy of Lifesaver clip art by OCAL shared by Clker.com]

The CD - a conundrum

With the Conference on Disarmament still gripped by paralysis, members are taking careful stock of the CD’s future.  Its role as “a single multilateral negotiating forum”, the mandate given it in 1978 by the UN General Assembly during its first Special Session on Disarmament (UNSSOD-1), has never been more in question. 

Given the Conference’s weighty agenda, what are the consequences for international security of this prolonged breakdown in multilateral disarmament diplomacy? 

It is tempting to think that the answer to that question depends on whether or not one has a nuclear arsenal. This is because the deadlock in the CD is preventing non-nuclear weapon states from:

• pursuing nuclear disarmament in the CD;
• securing legally-binding assurances through the CD that nuclear weapons will not be used against them;
• negotiating in the CD a prohibition of the production of fissile material used in nuclear weapons, a goal also shared by most of the nuclear weapon states;
• developing through the CD the means to reduce existing stocks of weapons-grade fissile material; and
•  legislating to keep outer space free from nuclear and other weapons by concerted efforts in the CD before it is too late to do so.

In other words, for concerned non-nuclear weapons states the CD’s stalemate must be intolerable in security terms.  Those nations have been rendered impotent in the face of some of today’s most critical global issues.  Impotent, that is, for as long as these issues are trapped in the CD.

And what about the perspective of states that possess nuclear weapons in their arsenals or which aspire to do so?  How does the impasse in the CD serve their interests? 

Let’s look again at the five bullet points above.  Deadlock in the CD means that nuclear weapon states are not being held fully to account on any of these issues.  The Economist recently observed that the “reality is that the big nuclear powers prefer stagnation in the disarmament conference to surrendering the consensus rule. It allows them to stall any initiative they oppose.”  

In other words, for the nuclear weapons-possessing states, deadlock in the CD preserves the status quo.  Sure, amongst other things the US and Russia are making valuable contributions towards nuclear disarmament on a bilateral basis, and those two states along with France and the UK have long since unilaterally declared voluntary moratoria on the production of fissile material for use in nuclear weapons.  But the driving consideration of the non-aligned countries in pushing for UNSSOD-1 was that disarmament should be placed on a multilateral footing in which they – and other non-nuclear states – would participate and have their say. 

For that reason, it is understandable that some non-nuclear weapons states continue to attach importance to the CD as a multilateral channel for strengthening international security.  But as other non-nuclear weapon states keep pointing out, the CD is not an end in itself but merely an instrument – a means to an end.  If the Conference can no longer carry out its role as a negotiating body, members wishing to pursue the issues identified earlier will have little option but to use other multilateral avenues. These might include the CD’s creator - the UN General Assembly itself, or diplomatic conferences or other ad hoc processes in which decision-making is not so hidebound as it has become in the CD. 

With each failure of the Conference to agree its work programme (whether of a comprehensive or a streamlined kind), the harder it will be for the CD to live up to the hopes of so many of its non-aligned founding members that it would provide a multilateral negotiating channel in which to seek security in disarmament. 

This situation is compounded by the reality that the CD is deadlocked not by a breakdown in negotiations but by an inability to agree even on the basis on which negotiations should proceed. This is a dismal and bankrupt state of affairs, the more so because the last occasion on which the CD fulfilled its negotiating role was 16 years ago in 1996 when the Comprehensive Test Ban Treaty (CTBT) emerged from an intensive three-year process. 

The time has come to move on from the tired recycling of discussions into a new dimension for the pressing issues languishing on the CD’s agenda.  In the absence of more enlightened applications of the rules on decision-making and on the content of the programme of work, enduring attachment to the CD - whether sentimental or cynical - needs to be seen for what it is – a serious obstacle to multilateral progress on nuclear disarmament and associated issues and to international security.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR. For other comments on the CD in this series see particularly postings dated 21 February 2012, 4 January 2012, 29 November 2011 and 16 March 2011.

The CD: trying to square a circle

The Conference on Disarmament (CD), now into the second month of its annual session, remains frozen to the spot.  No sign of a thaw has emerged, but there has, at least, been a mood-change – the sword of Damocles hanging over the Conference is being taken more seriously now.  In the sombre words of the UN Secretary-General’s Personal Representative to the CD, the current situation has created “a serious credibility and legitimacy deficit. The future of the Conference is at stake”.

Mr Tokayev placed his comments not only in the context of “the existential threat” posed by nuclear weapons but also against the stark backdrop of “budgetary austerity”, reminding the 65 member states that the work of the CD is funded by the entire membership of the United Nations through the UN’s regular budget. He also offered some concrete ideas for ending the CD’s barren streak of 15 successive years in which the CD has produced dividends neither for international security nor for long-suffering global taxpayers.

Another trend this year is a growing readiness amongst Conference members – and observer states – to offer constructive ideas for possible ways forward.  Members are less and less attributing the impasse in the Conference simply to a “lack of political will”.  Increasingly, the problems in the CD are being seen for what they are – a clash, not a lack, of political wills and tyranny by a minority. Divergent priorities – compounded by continuous misuse of the rules on the programme of work and consensus - are thus cancelled out.  Gridlock reigns.

The Geneva Forum recently held an orientation programme for new disarmament diplomats. A young delegate from a non-member state wondered aloud how a body with the international standing of the CD could allow itself to become hidebound by a matter as mundane as agreeing an annual work programme.  How, he asked, could this situation be explained to his government which was considering seeking observer status?  Good question.

The answer lies at two levels. There is a deep-seated aversion among some members towards issues which they regard as contrary to their national interests but which are being pursued by others in their own national interest. This is the clash of positions mentioned earlier, but it is magnified because it applies across four distinct issues, not just one, and allows a tiny minority to impose its will.  And, secondly, there is the unfortunate spider web that has been woven round these four “core” issues, wrapping them together in one toxic package.

For example, some states want to negotiate a ban on the future production of fissile material while others will only enter into to such an exercise if existing stocks of fissile material are included in the negotiating mandate. Many states want to negotiate or at least get down to pre-negotiations on an agreement on nuclear disarmament while others are content in the knowledge that no progress will be made on this issue for so long as there’s a standoff on fissile material negotiations, or outer space, or security assurances.

Why, the young delegate might have wondered, can’t the four core issues be dealt with separately?  The answer is that they can.  But those few members that prefer the status quo – no multilateral nuclear disarmament, no curbs on the production of fissile material, no action to prevent an arms race in outer space, no multilateral regime to provide security assurances to non-nuclear weapon states – have no incentive to de-link the four issues. Ever since the CD took the fatal plunge in 1999 of trying to incorporate negotiating and other mandates into its annual work programme, the Conference has been in the grip of the naysayers.

If the impasse is intentional, what incentives can be used to get the web untangled?  Or to be more precise, how can the nuclear weapons-possessing states be persuaded that it is in their best interests to unblock the CD? Judging from this year’s debate on the future of the Conference, these questions pose a real dilemma. Saving the institution is one thing: making progress on an issue vital to international security is another matter altogether.  Many non-nuclear weapon states (NNWS) are asserting that their priority in the CD is nuclear disarmament.  In the face of speculation that negotiations on fissile material might be pursued outside the CD, some NNWS are also saying that they are opposed to issues being hived off for less-inclusive treatment elsewhere.

Those states are going to have to make a difficult choice.  Nuclear disarmament, their main priority, is trapped in the CD – at least for so long as the Conference chooses to overload its draft work programme and tolerate irresponsible use of the consensus rule.  What will be the position of those states when their top priority becomes the subject of such irresistible pressure that negotiations on nuclear disarmament get underway outside the blocked CD?  Could the fear of this eventuality be the incentive to impel the nuclear weapon states to revive the CD?   After all, the CD offers them a comfort that is available nowhere else, not even in the NPT – the comfort that decisions can be taken only by consensus.

In the meantime, as Mr Tokayev put it, the CD is “trying to square a circle”.  For the young participant in the Geneva Forum orientation, the message to his government, in these circumstances, might best be to raise questions like his in the UN General Assembly where the views of the broadest constituency of nations can be brought to bear on the Conference on Disarmament whose future lies so delicately in the balance.

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.

The diagram is a file adapted from the Wikimedia Commons.

Prospects for the Conference on Disarmament in 2012

Prospects for the Conference on Disarmament in 2012

Some random thoughts on the Conference on Disarmament (CD) as delegations begin to write their speeches for the opening of the 2012 session of the Conference on 24 January:-

1 The last occasion on which the CD fulfilled the negotiating role given to it by the UN General Assembly was in 1996 when the Comprehensive Test Ban Treaty (CTBT) emerged from an intensive three-year process. That was 16 years ago.

2 Leaving aside the unconsummated agreement of 29 May 2009, the last time that the CD was able to reach consensus on initiating its next negotiation was in August 1998 when it agreed to a mandate for a fissile material production ban. Those negotiations lasted less than a month. That was 14 years ago.

3 Since then the Conference has not been able to agree (except fleetingly in 2009) to get down to negotiations either on a fissile material production ban or on mandates for any of the other core items on its agenda – nuclear disarmament, security assurances, or preventing an arms race in outer space, or on anything else of substance.

4 How can this barren state of affairs be allowed to exist? How can the resources consumed by the 24-week annual sessions of the CD be put to better use? To whom should the CD be held accountable for those resources?

5 In 1978 the UN General Assembly’s first Special Session on Disarmament (UNSSOD I), when mandating the body that is known today as the CD, instructed the Conference to report to the Assembly annually. The CD duly does so. But given the continuing inability of the CD to be able to report the commencement of any negotiations, is the UNGA simply turning a blind eye to the situation?

6 Yes and no. The annual report to the UNGA is merely a procedural one. This is because the CD is unable to agree to spell out clearly why it is failing to carry out the negotiating role that the General Assembly expects of it. Notwithstanding the rules of procedure that stipulate that “reports must reflect faithfully the positions of all the members” (rule 25) , the Conference’s annual reports are of the lowest common denominator variety that are so often the consequence of decision-making not by voting but by consensus as is the case in the CD (rule 18).

7 But the UNGA can read between the lines of the CD’s report. This is because, of course, the CD’s 65 members are also members of the General Assembly. So too are the 40 or more observers of the CD. In any event, such is the level of concern of UN member states about the paralysis of the Conference, shared by the UN Secretary-General himself, that the Assembly has begun to put the CD on notice.

8 As noted earlier on this website , separate resolutions tabled during the most recent session of UNGA by Austria, Mexico and Norway (though not pressed to the vote) and by Canada have clearly sensitized the broader international community to a role for the Assembly this coming October if the CD remains deadlocked at that point.

9 And significantly the UNGA agreed without dissent on a resolution tabled by the Netherlands, South Africa and Switzerland that did two things. The resolution 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”. The parent body (UNGA), thus, is well seized of the situation surrounding its offspring (the CD).

10 What then are the options for the Conference, assuming that the status quo is without viability? One idea that has been pursued by Russia is to reprise the short-lived work programme of May 2009 with a small twist to get work underway on analysing the main elements of a fissile material treaty without actually branding that work as negotiations, while continuing substantive discussions on the three other key issues. The point at which “discussions” morph into “negotiations” is not, after all, some kind of confidence trick but an evolution in trust – a growing acceptance that the parameters in which compromise can be brokered have begun to emerge. This is in stark contrast to the current situation where, far from charting the way forward, the would-be participants are blocked even from any form of substantive engagement be it described as “discussions” or “negotiations”.

11 Another option is to simplify the programme of work, perhaps along the lines suggested recently on this website. This would involve returning to the successful formula of the distant past when the work programme served the purpose originally intended by the rules of procedure (rule 27) of being essentially procedural rather than substantive. That is, it would incorporate a schedule of its activities for that session, without trying also to specify mandates or other matters of substance.

12 Each of these options has the merit of breaking the ice that encases the CD, paving the way for re-building a measure of trust amongst members, trust that is a vital precondition to serious negotiations and thus to meeting the original expectations of the CD as spelled out by UNSSOD I. If that degree of trust is currently unobtainable, the CD may need to explore longer term options such as laying the foundations for an eventual negotiation by setting up an open-ended experts group of the kind that created the right conditions for the CTBT, discussed in an earlier posting on this site.

13 Whatever the way forward, it is difficult to escape the conclusion that in 2012 the future of the CD will be under the spotlight as never before. Clearly it will not be sufficient to continue merely to lament the constraints of the rules of procedure or the “absence of political will”. The rules can and must be used to facilitate rather than frustrate progress. It is essential to overcome not the absence of political will but the clash of wills that exists between those for whom the CD offers a channel for progress on issues of high international security and those for whom it has become a convenient parking place for those same issues. Will the destiny of the Conference be determined by its members or by its creator, the UN General Assembly? Time will tell soon enough.

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

(The symbol is drawn from the Microsoft Clip Art Gallery)

Conference on Disarmament: Some misconceptions

On the 10th anniversary of the UN Study on disarmament and non‐proliferation education, these comments are made in the spirit of disarmament education and in the hope that delegates to and observers of the crucial 2012 session of the Conference on Disarmament will find them helpful.

1. The CD – “a single multilateral disarmament negotiating forum”.

The notion of the CD as a single negotiating forum is much misunderstood and misquoted. Even the CD’s own annual resolution and report to the UN General Assembly (UNGA) gets it wrong. The most recent CD resolution tabled in the First Committee at UNGA66 mistakenly refers to the CD as “the sole multilateral disarmament negotiating forum” (emphasis added).

What’s in a word? What’s the difference between “single” and “sole”? Not much ordinarily, but “sole” has come to be used in some quarters as though the CD were the only legitimate multilateral disarmament negotiating forum. The use of the words “a single” was intended by the UN General Assembly to mean something else. This role was conferred on the CD by the UN General Assembly during its first Special Session on Disarmament (UNSSODI) in 1978. What the General Assembly had in mind was that the CD would be a single (as opposed to the sole) forum. That is, it would provide a single edifice within which key disarmament issues would be negotiated by key states as needs arose (assuming the necessary consensus – see further below). It was seen as more effective and efficient to support a single institution and maintain a single repository of knowledge and expertise than to take up disarmament issues, one by one, in an ad hoc manner.

The point about drawing a distinction between “a single” and “the sole” forum is that frustrated members of the CD need not be constrained in any way if they wish to move negotiations elsewhere: for example, to their own or other edifices or processes such as those used to negotiate the Ottawa and Oslo Conventions, or to the parent body of the CD – the UN General Assembly itself.

As a footnote, separate resolutions tabled during UNGA66 by Austria, Mexico and Norway (though not pressed to the vote) and by Canada have each sensitised the broader international community to a role for the UN General Assembly next October if the CD remains deadlocked at that point. The parent, thus, is well seized of the situation surrounding its offspring: the CD, in effect, is on the mat, if not quite yet on formal notice from the UNGA.

2. “Comprehensive and balanced”

The phrase “comprehensive and balanced” is often used in the CD to qualify the programme of work (or priorities) of the Conference, agreement on which has eluded the CD since 1998 except for a false dawn in 2009. The CD’s rules of procedure require that a programme of work must be established each annual session as the basis for the CD’s efforts for that year. But the rules do not require that that programme be “comprehensive and balanced” in those specific terms. There is certainly no need for the programme to be comprehensive (see further below), although it would need to be balanced as a practical element of the consensus necessary for concerted implementation of it.

3. “Programme of work”

The ingredients needed for a programme of work are the source of a damaging misunderstanding in the CD. Modern-day formulations of the programme of work embody mandates for subsidiary bodies/working groups to which the substantive work of the CD would be delegated for the remainder of the annual session. But writing these mandates into the work programme is not required by the rules of procedure (rule 28). Attempting to do so has proved a recipe for the current 13 year-long deadlock.

To be clear, mandates for subsidiary bodies do need to be agreed by the conference, but not in the work programme. But to return to the point. Under the CD’s rules, a work programme need be no more than a “schedule of activities” for the session – simply a timetable that sets out for planning purposes the dates for taking up individual agenda items and the periods of time to be allocated to each topic. It would also list other organizational matters that members wanted to address, such as allocating time to any high level segment and to the preparation of the annual report to the UN General Assembly. If the CD could unburden itself of its endless agonising over its programme of work by reverting to the successful formula of the past, perhaps the trust and confidence necessary for agreeing mandates and getting down to substantive work would ebb back into the Council Chamber. If not, the attraction of alternative processes will surely prove irresistible.

4. “Consensus”

There is no ambiguity in the rules of procedure about the manner of decision-making in the CD. UNSSODI expressed the need for the Conference to operate by consensus, and rule 18 reflects that position. But what does “consensus” mean? Rule 18 does not say that every member has a veto. It is clear from UNSSODI that the circumstances in which a member would object to a decision (i.e., break consensus) is when it believes that the ultimate product of the work of a subsidiary body has not emerged “in such an equitable and balanced manner as to ensure the right of each State to security”.

Short of a threat to national security, “consensus” should be interpreted in its normal manner. That is, decisions should be taken by general agreement where no member feels so discomforted by that decision as to impel it to voice its objection, thereby blocking the outcome. So, members might object to a decision to adopt a draft treaty on a certain topic, say fissile material, where it believed that the outcome, despite intensive negotiations in which it had participated, would prejudice its national security. At the other end of the spectrum, a member would not normally object to a decision to adopt, for example, a programme of work of the simplified kind outlined above even if that member’s “wish list” was not fully met. In other words, the consensus rule entails the exercise by each member of a level of responsibility informed by the likely impact of the decision on the security of that state, rather than by some unfettered freedom to exercise a veto. Indefinite blocking of decisions in the pre-negotiating stage of the CD’s work on a given topic serves only to reinforce doubts about the utility of the Conference.

Conclusion

These views are intended to encourage dialogue as part of an educative process. Bigger questions are whether these four areas of misinterpretation are accidental or deliberate, and why. In any event, their combined effect prevents the CD from operating in the manner intended by UNSSODI, freezing the opportunity to advance the causes of nuclear disarmament, to ban fissile material production, to achieve more extensive security assurances or to prevent an arms race in outer space, a least under the roof of the Conference on Disarmament. Is it any wonder that efforts to move issues from the CD to another process are intensifying? Please feel free to comment on possible ways forward.

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



(The symbol is drawn from Google Clip Art Images)

Will the CCW give birth to a mouse or a monster?

The 4th Review Conference of the Convention on Certain Conventional Weapons (CCW) will come to an end this Friday, 25 November. Until then, the negotiation of a protocol on cluster munitions to be annexed to the CCW is likely to take up most of delegates’ time. Even at this late stage in the negotiations, however, it remains unclear whether states parties to the CCW will be able to reach consensus on a text. If they do, based on draft texts presented this week, it is also unclear whether the CCW will finally give birth to a mouse or a monster.

Monster...

Several aspects of the CCW’s cluster munitions negotiations are disturbing from a humanitarian, international legal and multilateral negotiations perspective. In the view of many, as it stands now, the protocol fails to bring significant and immediate humanitarian benefits. Worse even, the present draft authorizes the use of certain types of cluster munitions. A number of states, the International Committee of the Red Cross (ICRC) and the Cluster Munition Coalition fear that this may result in greater investment in the development and production of cluster munitions that are known to cause grave harm to civilians, lead to growing use of these weapons, and therefore greater civilian casualties.

The CCW negotiations also raise a number of moral and legal questions (see e.g. this backgrounder by international law professor Nystuen). This morning, over 30 countries stated:

The current draft would represent the opposite of what we consider the overall goal of the Convention.

Indeed, a protocol that authorizes continued use of cluster munitions may run counter the very object and purpose of the CCW, whose preamble recalls “the general principle of the protection of the civilian population against the effects of hostilities” and reaffirms “the need to continue the codification and progressive development of the rules of international law applicable in armed conflict”.

As the ICRC - “guardian” of IHL - has pointed out repeatedly, agreeing to a treaty that sets a weaker standard in terms of civilian protection than the one set by the 2008 Convention on Cluster Munitions (CCM) would constitute a regrettable precedent of regression in IHL which would threaten the “coherence, effectiveness and integrity of this field of law”.

The normative effect of a CCW protocol on cluster munitions on the CCM should be of particular concern to states that are parties (or signatories) to both treaties. Mainly, because the CCM prohibits states from “assisting, encouraging and inducing” anyone to engage in prohibited activities, such as cluster munitions use (Art.1), and obliges states parties to take positive measures in their relations with states not party to the CCM to encourage adherence to the CCM, promote its norms and to make their “best efforts to discourage” them “from using cluster munitions” (Art. 21).

Continued involvement in and facilitation of negotiations, and a fortiori, participation in a consensus decision to adopt a CCW protocol that authorizes use of cluster munitions prohibited under the CCM, may constitute a violation of that convention. Support by CCM state parties of a CCW protocol that authorizes use of cluster munitions also constitutes state practice that risks rendering the positive obligations of Art. 21 meaningless. Finally, a CCW protocol that legitimises continued use of cluster munitions would be an obstacle to the extension of the norms embodied in the CCM by way of customary international law.

…mouse…

Few of the substantive elements in the draft texts presented to date enjoy a semblance of consensus. That cluster munitions produced before 1980 should not be used, stockpiled or transferred is one of them. Additional transfer restrictions, for example in relation to non-state actors, are also relatively undisputed. CCW states parties also seem to agree that civilians should be protected from indiscriminate effects of weapons and that the rules of international humanitarian law (IHL) are the relevant standard in this context.

But how to apply the rules of IHL to the weapon technology at hand, the very purpose of any CCW protocol, remains subject to dispute. Given the difficulty of adopting a comprehensive prohibition of cluster munitions in the CCW, attempts are being undertaken to translate general rules of IHL into specific prohibitions on the use of these explosive weapons. But in the latest draft text (Rev.2 of 23 November, 15h30) language previously introduced by Switzerland under the heading “Protection of civilians” was removed. Switzerland, supported by many other states, had suggested the inclusion of a prohibition on the use of cluster munitions in populated areas. A similar provision is contained in CCW protocol III on incendiary weapons and would (if not weakened by qualifiers or overridden by other provisions in the protocol) be of some humanitarian benefit.

Even if restrictions on the use and a prohibition of some (old) cluster munition types are retained in the final text, however, these provisions are hardly adequate and sufficient to address the humanitarian problem caused by cluster munitions. Especially, as other parts of the protocol may well outweigh these humanitarian benefits.

… or hedgehog?!

At the end of this week, states parties to the CCW will have to make up their minds and decide whether the text in front of them is a mouse or a monster. Of course, for musophobics the difference may be slight, but in the view of most, mice are relatively inoffensive and the damage they may cause by gnawing away at the normative structure of humanitarian protection is likely to be limited. The humanitarian and normative impact of a monstrous protocol may be far more damaging.

After years, nay, decades, of CCW talks on cluster munitions, member states still do not agree about the very objective of their endeavor, the frame of reference to assess whether that objective has been attained and/or their mandate fulfilled, let alone the methods to assess likely humanitarian impact (positive and negative) of particular provisions or the protocol as a whole.

It is hence difficult to foresee what comes out of this body on Friday - if anything at all. For many participants in this lengthy process it must by now feel like “giving birth to a hedgehog against the lie of its spines” - to quote one of my favorite Russian proverbs.

This is a guest blog by Maya Brehm. Maya is project manager at UNIDIR.

Photo: "Muppet monster 'Frazzle' is a growling monster on Sesame Street. His deceptively fierce visage hides a child-like personality and a desperate need to be included." (Source: Muppet Wiki)

CCW: decisions, decisions, decisions...and how to take them

The current review cycle of the framework treaty known as the Conventional Weapons Convention (CCW) (a.k.a the Inhumane Weapons Convention) will culminate in the 4th Review Conference of the Convention in Geneva during the period of 14 to 25 November 2011. The most controversial item throughout this review cycle has been the need to build onto the CCW framework a supplementary treaty (or “Protocol”) dealing with cluster munitions. Many of the states party to the CCW have already chosen to be bound by (or have signed and are in the throes of joining) the Cluster Munitions Convention (CCM) that was adopted in 2008 in a process formally unconnected to the CCW.

Most of the signatory states and states party to the CCM are either opposed or indifferent to efforts in the CCW to develop a parallel instrument on cluster munitions, their assumption being that any such Protocol will fall short of the humanitarian standard set by the CCM. Indeed, one current draft Protocol, submitted by the chairperson of the CCW’s Group of Government Experts (CCW/GGE/2011-III/1), described here as the “GGE chair’s text”, would, if adopted in its present form, largely be confined to prohibiting cluster munitions “produced on or after 1 January 1980”, i.e., those that are already more than 30 years old and of questionable military value. For this group of states, a “draft Alternative Protocol” (CCW/GGE/2011-III/WP.1) tabled by Austria, Mexico and Norway has the advantage of being complementary to and compatible with the Cluster Munitions Convention.

For other CCW members, the GGE chair’s text is broadly acceptable and is seen by many as having the virtue of drawing in key producers and users of cluster munitions for whom the CCM is a step too far. With competing drafts on the table, the upcoming Review Conference promises to be lively, and bets are on as to whether CCW states parties will be able to agree on a cluster munitions Protocol (in some shape or form), or fall back on carrying over negotiations into 2012, or shelving the topic altogether as occurred in 2007 with Mines Other Than Anti-personnel Mines (MOTAPM).

Either way, a decision will have to be made, and such decisions – CCW delegates do not tire to point out – are to be taken by “consensus”. But to what extent is “consensus” a formal requirement in the framework of the CCW? And what does “consensus” actually mean in practice? Would all decisions be required to be taken by consensus of just the adoption of a Protocol?

The CCW, which itself was adopted by consensus, provides in effect that consensus is required for the adoption of any new Protocol. That much is clear, although the relevant provision, as we shall see, curiously avoids the word “consensus”, stipulating instead that Protocols shall be adopted “in the same manner as this Convention”, i.e., by consensus! Strangely enough, nor do the rules of procedure actually use the term “consensus”. Nonetheless, it is safe to say that at the point at which any new Protocol is presented to the Review Conference for adoption the President of the Conference will establish that consensus exists, that is, that there is no state party that objects to the adoption of that instrument.

But, before the Review Conference will decide that issue, the question arises whether lesser decisions also need to be taken by consensus. How will the Conference determine which of the two competing texts should be the focus of its work? Or will it proceed to negotiate on both of them simultaneously? In the face of deadlock, what guidance can be obtained from the CCW, the rules of procedure and the past practice of the parties?

As already noted, the relevant provision of the CCW - Article 8, does not contain the term “consensus”. This article as a whole contemplates more than one way to bring about an outcome. For instance, Article 8. 1 (a) and (b) refer to the majority required for convening a conference of states parties in certain circumstances. Article 8.2(b), instead of explicitly using the word “consensus”, elliptically stipulates that Protocols shall be adopted “in the same manner as this Convention”.

The Rules of Procedure for the November Conference have already been agreed (CCW/CONF.IV/2; see paragraph 19 of CCW/MSP/2010/5) and are the same as those used at the third Review Conference held in 2006. The Rules envisage a number of situations in which a vote would be required. These include rules 19 - 21, 25 – 27, 30 and 32 - 34. Rule 20, for instance, requires that a President’s “ruling shall stand unless overruled by the Conference”, Rule 25 requires that certain motions “ shall be put to the Conference for decision immediately”, and in accordance with Rule 33, a proposal may not be reconsidered unless the Conference “takes a decision to that effect.”

And what do the Rules of Procedure say about such “decision making”? In a somewhat circular fashion, Rule 34 requires the Review Conference to “take decisions in accordance with Article 8 of the Convention”. Rule 30 provides that as a general rule, no proposal shall be discussed or put to a decision unless copies of it have been circulated to all delegations in their respective working languages not later than the day preceding the meeting. The President of the Conference may, however, permit the discussion and consideration of amendments, or motions as to procedure, even though these amendments and motions have not been circulated or have only been circulated the same day. No mention is made, however, as to whether a decision requires consensus or a simple or qualified majority.

What light can the past shed on these questions? Unfortunately, uncertainties about decision-taking in the CCW remain as alive today as they were at the Convention’s adoption in 1980 when those opposing the incorporation of a strict consensus rule apparently went along with adoption of the CCW by consensus only because differences over the terms of the Convention itself - as opposed to the principle of decision-making in general - were negligible. But in doing so they did not regard that instance as settling the matter for all time. In effect, they reserved their position. This background explains the constructive ambiguity inherent in Article 8 that, over the years, has been interpreted mistakenly as mandating a single decision-taking approach, one of consensus. Conversely, it should encourage more tolerance for those who refute the notion that the CCW must take decisions only by consensus.

In any event, consensus should not be required for accepting or rejecting an amendment proposed to the GGE chair’s text. This would be unworkable if not unfair. The draft has no status other than as a working paper submitted by the chairperson of a Group of Government Experts as a personal reflection of the Group’s debate on the issues over which he had presided. The same goes, of course, for the draft proposed by Austria, Mexico and Norway. Short of agreeing to revisit and amend the Rules of Procedure, the only real option that would seem open to the states party to the CCW is to heed Rule 32 which creates the possibility for the tabling of a motion calling for a decision on the competence of the Conference to adopt a proposal submitted to it – in this case, settling the issue of priority to be accorded to competing texts - before the matter is discussed or a decision is taken on it. The Rules of Procedure would thus be applied for a constructive purpose, unlike the situation in the Conference on Disarmament (CD) where the rules of that body tend to be invoked to obstruct rather than facilitate its work.

Whether or not recourse is had to voting, forging consensus is and must remain a central ingredient of multilateral diplomacy. Properly applied, the consensus rule – the reaching of a commonly-accepted position to which no party feels obliged to object - should encourage compromise, leading to an outcome that attracts the widest possible “buy-in” of the international community. The option to vote, however, concentrates the minds of negotiators and improves the ultimate product by raising the level at which compromise is finally brokered. November’s CCW Review Conference may be poised to challenge the grip of the consensus rule, but can the meeting take it in its stride in the time available? We will see.

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

(The symbol is drawn from Google Images – diamonds being the symbol for decisions)

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).

CD – one step forward…

A feature – for better or worse – of the Conference on Disarmament is the sanctity attributed to the CD’s rules of procedure (CD/8/Rev.9). Incoming Presidents, when assuming the chair of the CD in the alphabetical rollover of the presidency every four weeks, solemnly insist that they will abide by the rules of procedure throughout their (derisorily short) term. This has become code for saying that they will not countenance presiding over any action of the CD unless there is unanimous support for such action – the literal, and misplaced, embodiment of rule 18 that the Conference shall conduct its work and adopt its decisions by consensus.

Sometimes it seems that strict observance of the rules of procedure is an objective in itself, whereas the purpose of the rules is to facilitate orderly work rather than frustrate it. Perhaps, however, a new sense of enlightenment is afoot. Recently the CD took the unusual step of acting in direct contradiction to its rules. Rule 9 ordains that the rotation of the presidency, based on the English alphabetical list of Member States, “shall be followed”. Yet the Conference has acquiesced in a reversal of that order, placing the Democratic People’s Republic of Korea before Cuba for the remaining presidencies of this year. (This outcome does not fall within the circumstances envisaged in rule 10 which afford a temporary relaxation of rule 9 within a presidency.)

The purpose of this switch between Cuba and the DPRK was seen as a pragmatic one to accommodate exigencies of the respective delegations. It is in any event harmless enough, although on a future occasion such a swap might be engineered for less innocent reasons. The point, however, is that the Conference has shown itself ready to overlook its rules when it suits it to do so.

Nonetheless, these particular circumstances have led indirectly to an unfortunate outcome. The Foreign Minister of Canada announced on 11 July that Canada will boycott the CD through the remaining three weeks of the DPRK’s rotation as President. Whether this stance was triggered by the switch of presidencies is not clear. But one of the values of the CD is that it brings under the one roof all the States that possess nuclear weapons irrespective of their international standing, and affords an opportunity for principled advocates for nuclear disarmament like Canada to make their views very clear.

Canada has taken full advantage of that opportunity, and its leadership – including as one of this year’s collegium of presidents for 2011 – Canada, Chile, China, Colombia, Cuba and the DPRK – has been exemplary. It is for no want of skill and energy of the Canadian presidency, whose efforts bridged the 2010 and 2011 annual sessions of the CD, that the Conference remains in its decade-long deadlocked state.

To go back to the beginning of these comments, the rotation of presidents of the Conference takes place strictly by rule rather than by election. And more importantly, the President, in the time-honoured manner of the office, acts first and foremost in a neutral capacity. If the chair needs at any point to project a national viewpoint, he or she makes it clear that they are speaking on that occasion as a Member State rather than as President. Given the current state of the CD, what is needed is a constructive, concerted effort of trust-building rather than individual acts of self-acknowledged symbolism.

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

Graphic courtesy of Google images.

WMD: Giving new expression to the “conscience of humanity”

In a statement issued on 15 March this year at the end of their latest meeting, the foreign ministers of the G8 uttered some commendably strong words about biological weapons. The statement was made in the context of preparations for the seventh review conference of the Biological and Toxin Weapons Convention (BTWC) which will take place in Geneva this December. It is worth setting out their commitment in full:

"4. Guided by the objective of a more secure and safer world, and convinced that the use of such weapons is unacceptable to the conscience of humanity and would pose a grave threat to international security, we reaffirm our commitment to fully respect all obligations under the BTWC and in particular to never, under any circumstances, develop, produce, stockpile or otherwise acquire, retain or use this type of weapon."

This statement bears scrutiny in several respects. Is it not merely a routine affirmation of existing, legally binding obligations on biological weapons that might be expected to be made in the lead-up to an important, five-yearly review conference? The G8 foreign ministers certainly affirm the undertaking in article 1 of the BTWC that their countries will never in any circumstances develop, produce, stockpile or otherwise acquire or retain these kinds of weapons. But they go further in specifically precluding use of them.

Efforts to remedy the curious omission from article 1 of the word “use” amongst the prohibitions of the BTWC are not new, and are not the purpose of these comments. Attention is drawn, however, to the foreign ministers’ statement that use of biological weapons would be “unacceptable to the conscience of humanity”. This inhibition is interesting at several levels.

First, the words just quoted differ from the phraseology used in the BTWC itself. In the preamble to the Convention, the relevant term is the slightly stronger “repugnant to the conscience of mankind”.

But let’s not quibble about words. More significantly, are there analogies that can be drawn with other weapons of mass destruction? For instance, would the same group of states brand all weapons of mass destruction as “unacceptable to the conscience of humanity”? If is safe to think that they would refer to chemical weapons in the same vein, it is surely a no-brainer that the use of nuclear weapons would be even more unacceptable.

The Chemical Weapons Convention (CWC) makes it quite clear that parties undertake never under any circumstances to use chemical weapons, based on their determination “for the sake of all mankind, to exclude completely the possibility of use of [such] weapons”. The CWC moreover reaffirms the principles, objectives and obligations of the Geneva Protocol of 1925 which, like the BTWC, also invokes the conscience of the civilised world (“the use in war of asphyxiating, poisonous or other gases … has been justly condemned by the general opinion of the civilized world; and … prohibition of such use … shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations”).

What about the Nuclear Non-proliferation Treaty (NPT)? The parties to that treaty are very clear about the risks of using nuclear weapons. The opening words of the NPT speak about “the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples”.

This passage from the preamble of the NPT possesses a clarity that is somewhat lacking in the commitment in the body of the treaty (article VI) to bring about nuclear disarmament and thereby avert the devastation of a nuclear war. But that is not the end of the story. In much the same way that, over time, the prohibitions in the BTWC have been interpreted as including the use of biological weapons, the NPT parties have augmented and strengthened the nuclear non-proliferation regime.

The significance attached by the NPT parties at their five-yearly review conferences to producing consensual outcomes, adopted without voting, invests those outcomes with strong moral and political, if not legal, force. Expressed in the 2010 review conference outcome, for instance, is a reaffirmation of the unequivocal undertaking of the nuclear weapon states to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all NPT parties are committed under article VI.

And in the context of the G8’s inhibition that is the subject of these observations, the NPT review conference also expressed its “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed the need for all states at all times to comply with applicable international law, including international humanitarian law.

In the light of this expression of concern by the NPT parties, how likely is it that G8 foreign ministers prior to the next NPT review conference might echo their recent BTWC statement and describe the use of nuclear weapons as being unacceptable to the conscience of humanity? Unless they are prepared radically to alter the statement they issued prior to the 2010 review conference, then the answer is “not very likely”. Their ambitions for that conference amounted to no more than the following: “We are committed to seeking a safer world for all and to creating the conditions for a world without nuclear weapons, in accordance with the goals of the NPT. … Our goal is a safer and more secure world for all”.

For the G8 nations, Japan amongst them, to state that the use of nuclear weapons is unacceptable to the conscience of humanity is more difficult than it would (and should) seem. There is an issue in the US as to whether an apology for the use of atomic weapons over Hiroshima and Nagasaki would be appropriate. But there is a more fundamental matter at stake, one in which the notion of use of nuclear weapons gives way to considerations surrounding possession of those armaments.

This brings us to a conundrum about the possession of nuclear weapons. Nations with nuclear arsenals like to claim that possession is an insurance policy against attack by an aggressor. Inherent in that assertion is that the possessor’s threat of use deters its enemies. But does the deterrence theory hold water? The risk of relying on nuclear weapons for deterrence is the subject of the latest opinion piece of George Schultz, William Perry, Henry Kissinger and Sam Nunn in the Wall Street Journal.

The four former US political and military leaders advance the view that reliance on nuclear weapons for deterrence is becoming “increasingly hazardous and decreasingly effective”. The prospect in the Cold War era of “mutual assured destruction” – an unrestrained nuclear war between superpowers - raised “enormous inhibitions” against employing the weapons. In the opinion of the four statesmen, these inhibitions opened a gap between the psychological advantage of possessing such a powerful deterrent and the readiness of leaders actually to take the responsibility for the extent of loss of life and destruction that would result from unleashing them.

In other words, the military commander in the field possessed a class of weapon that had the potential to make a decisive (though horrifying, and ultimately suicidal) impact, but the use of which was unlikely ever to be authorized by the commander in chief. Faced with this reality, US defence leaders, the opinion piece chillingly recounts, made serious efforts to give the president “more flexible options for nuclear use short of global annihilation”.

In a world in which there has been an increasingly strong and widespread impulse against the production, let alone use, of other weapons of mass destruction such as biological and chemical weapons, it is tempting to conclude that leaders of nations possessing nuclear arsenals would be inhibited from deploying any options for nuclear weapons use, flexible or otherwise. Those inhibitions would be primed, one hopes, above all by the unthinkability of sanctioning the use of weapons that would be indiscriminate in their effect, killing soldiers and civilians alike, and wreaking immediate environmental damage with lingering, long-term pollution of land, water and atmosphere. And, as we have witnessed in Hiroshima and Nagasaki, long-term human suffering as well.

The four statesmen envisage a “safer and more stable form of deterrence” without spelling it out in detail. They appear to place their faith mainly in encouraging a “joint enterprise among nations” that would be the vehicle for greater cooperation, transparency and verification. Given the paralysis of the Conference on Disarmament, current limitations of routine deliberative and review forums (First Committee of the UN General Assembly, UN Disarmament Commission, various regular meetings of states parties), and the allergic reaction of nuclear weapon states to the notion of convening a fourth UN General Assembly special session on disarmament, one is left wondering what are the options and avenues for such a joint enterprise.

The spirit of the G8 foreign ministers in respect of one category of weapons of mass destruction and the NPT’s recent expression of deep concern at the catastrophic humanitarian consequences of any use of another such category are commendable. Noble expressions of the conscience of humanity are important in providing the context for prohibitions on the use of all weapons of mass destruction. But the challenge for the international community in the case of nuclear weapons is to harness these impulses and back them with the force of law in a formal process or framework leading towards the elimination of nuclear arsenals.

As international processes to achieve the treaties banning anti-personnel mines (1997) and cluster munitions (2008) have demonstrated, inspired leadership amounting in effect to a “joint enterprise among nations” in response to a humanitarian imperative can overcome procedural blockages and achieve the stigmatisation of an entire class of weapons. This may not be the kind of enterprise envisaged by the four statesmen, but the clamour for it is undoubtedly growing.

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

Note: The G8 is comprised of Canada, France, Germany, Italy, Japan, Russia, the United States, and the United Kingdom. The European Union has been associated with the G8 since 1977.