Disarmament Diplomacy

Opinion & Analysis

The Conference on Disarmament Concludes Another Frustrating Year

Introductory Note

The Geneva Conference on Disarmament (CD) concluded its 2003 Session on September 9, having failed for a fifth consecutive year to adopt a work programme. There was a flicker of hope in August, when China compromised further on its position advocating negotiations on preventing an arms race in outer space (PAROS). Though this may initiate a much-needed breakthrough, no agreement was achieved this year. It is understood that the United States will be carefully considering its options before the CD is due to reconvene in January 2004.

China's compromise, announced on August 7, signalled a further lessening of its linkage between negotiations on a ban on fissile materials for weapons production, the mandate for which was agreed as far back as March 1995, and Beijing's demand for equal treatment on space weaponisation, which became a priority for China as a result of US missile defence plans. As a consequence of China's acceptance of the work programme proposed by a group of five senior CD ambassadors, led by Belgium, US opposition to addressing the PAROS issue substantively now stands as the chief obstacle to an agreement that would enable the CD to start working effectively again.

It is now seven years since the CD concluded negotiations on the Comprehensive Test Ban Treaty (CTBT). In that time it has been unable to undertake any substantive work on any of its priority issues. In the following article, adapted from a paper presented to the UN Conference on 'Arms Control, Multilateral Disarmament and Their Future', Osaka, August 19-22 2003, the first President of the CD in 2003, Ambassador Rakesh Sood of India, takes a close look at the CD's history and considers recent efforts to enable the Conference to overcome its years of deadlock and play a significant role in multilateral disarmament and arms control once more.

Overcoming Deadlock in the CD

By Rakesh Sood

How have we reached this impasse? Why is it that when the world is no longer constrained by the Cold War, we find the CD deadlocked? It would be useful to examine the historical background in which the CD came into being and the environment that shaped its activities. Secondly, we need to look at the present day environment and explore what needs to be done in order to make the CD work effectively.

In its present form, the CD came into being in 1978. The First Special Session of the UN General Assembly (SSOD I) devoted to disarmament adopted a far-reaching Final Document containing a Programme of Action on the multilateral disarmament machinery in which the CD was described as the 'single multilateral disarmament negotiating forum.'¹ The body was "open to the nuclear weapon states, and thirty-two to thirty-five other states"² representing all geographical regions and political groupings. Since then, the membership has been expanded through two decisions during the past decade to 66 (now standing at 65).

The CD is not a UN body but, over time, has developed a close working relationship with the UN. The reason is that the CD originated in 1959 as a 10-nation Committee on Disarmament (5 NATO and 5 Warsaw Pact countries). It was expanded to an 18-nation Committee by including 8 neutral and Non-Aligned countries (1962-69) and subsequently became a Conference of the Committee on Disarmament (1969-78) with the addition of another 13 members. This has enabled the CD to adopt its own Agenda and Rules of Procedure, though linkages with the UN have become closer since 1978. It submits its Report to the UN General Assembly (UNGA) and takes into consideration, though is not bound by, the UNGA Resolutions. The budget of the CD is included in the UN budget and its meetings are serviced by the UN. The Secretary-General of the CD is appointed by the UN Secretary-General and is described as his 'Personal Representative'.

Substantive work in the CD mostly takes place in subsidiary bodies called Ad Hoc Committees. All decisions, whether in subsidiary bodies or the plenary, are taken by consensus.

In 1979, the CD developed a comprehensive "Decalogue" by taking into account the relevant provisions of the Final Document of SSOD-I that remains valid: (a) Nuclear weapons in all aspects. (b) Chemical weapons; (c) Other weapons of mass destruction; (d) Conventional weapons; (e) Reduction of military budgets; (f) Reduction of armed forces; (g) Disarmament and Development; (h) Disarmament and International Security; (i) Collateral measures - CBMs and effective verification methods in relation to appropriate disarmament measures, acceptable to all parties concerned; and (j) Comprehensive programme of disarmament leading to general and complete disarmament under effective international control.³ Based on the Decalogue, the CD adopts its annual Agenda. This has remained relatively unchanged. Of course, chemical weapons and the nuclear test ban no longer figure on the Agenda and items like Prevention of an Arms Race in Outer Space (PAROS) and Transparency in Armaments were added during 1980s and 1990s respectively.

The template of disarmament treaties has evolved over time. Before 1978, the treaties negotiated in this forum include the Partial Test Ban Treaty (PTBT), the Nuclear Non-Proliferation Treaty (NPT), the Seabed Treaty, the Biological and Toxin Weapons Convention (BWC) and the Environmental Modification Convention. After 1978, the Chemical Weapons Convention (CWC) and the Comprehensive Test Ban Treaty (CTBT) were negotiated in the CD, though the CD was unable to formally adopt the CTBT in 1996.

The pre-1978 treaties are comparatively simpler. They do not contain elaborate verification provisions but rely upon 'National Technical Means.' Post-1978, treaties contain elaborate verification provisions. Naturally, this is consistent with the prevailing approach in arms control negotiations on the bilateral track, i.e. between US and former USSR, where detailed verification provisions were first included in the 1987 Intermediate Nuclear Forces (INF) Treaty. However, both pre-1978 and post-1978 multilateral treaties have one thing in common - they are legally binding instruments. It is important to highlight this because today there is a debate about whether all disarmament undertakings need to be cast in this mould.

An examination of the CD's history reveals that progress was only possible when the United States and the former USSR had reached a mutual understanding on an issue. Though described as the 'single multilateral negotiating forum,' the CD functioned in an age of bipolarity. (It can be said that the CTBT negotiations took place from 1994 to 1996 after the Cold War was over, but the item itself was a legacy of the Cold War and, in the final stages, both USA and former USSR had adopted national decisions to suspend underground nuclear tests). Non-Aligned Movement (NAM) initiatives helped develop public opinion but were never enough to commence or sustain a negotiation.

Today, the political environment has changed. There are no joint US-Russia initiatives. In any event, forward movement requires a more broad-based agreement. In order to be adopted, a proposal would need support from the US, Russia, EU countries, China and a number of key NAM countries. This makes the task of consensus building more difficult.

The content of disarmament negotiations is also undergoing a change. A pointer was the US decision on the BWC Protocol negotiations where, after six years, the United States claimed in 2001 that legally-binding verification provisions were not the solution, and "the traditional approach that has worked well for many other types of weapons is not a workable structure for biological weapons."⁴ The US focus, therefore, is more on best practices, codes of conduct and national implementation. Such outcomes, though requiring a multilateral negotiating forum, are not designed to be legally binding instruments but are better characterized as politically binding.

The dilemma over what is 'legally binding' lies at the heart of the present deadlock, and is reflected in debates over 'negotiating' versus 'non-negotiating' mandates. Since 1995, there has been agreement in the CD to establish an Ad Hoc Committee to negotiate a Fissile Materials Cut-Off Treaty (FMCT).⁵ However, it has not been possible to do so because of an insistence by China on the need for establishment of an Ad Hoc Committee on PAROS to negotiate a treaty preventing the weaponisation of outer space.⁶ Subsequently, China has modified its position, indicating that the Ad Hoc Committee could deal with relevant issues, with the objective of leading to eventual negotiations.⁷ The US, given its current position on ballistic missile defences, is only willing to examine such issues and is opposed to any suggestion that would pre-judge the outcome in the direction of negotiations.⁸

Looking back, we find that the CD has also set up Ad Hoc Committees with non-negotiating mandates. For example, on chemical weapons, initially the CD set up Ad Hoc Committees in 1982⁹ and 1983, but only in 1984¹⁰ did it begin the full and complete process of negotiations. On the other hand, on certain items like PAROS, the CD continued to have Ad Hoc Committees with non-negotiating mandates for nearly 10 years¹¹, a decision preceded by informal plenary meetings. Further, the CD's history also shows that a negotiating mandate only provides for commencing negotiations; it does not provide a guarantee for its successful conclusion. Mandates for negotiating universal 'negative security assurances,'¹² a convention on Radiological Weapons¹³ and a Comprehensive Programme on Disarmament¹⁴ were renewed regularly during the 1980s, but have not led to treaty texts on these issues.

From a legalistic point of view, one can claim that since the CD is a negotiating forum, consideration of any item is part of an overall negotiating process and, simultaneously, it can also be claimed that moving from a stage of consideration and identification to negotiations would require a specific decision by the CD which, as mentioned earlier, works by consensus. However, political differences have grown in recent years that have prevented reaching mutually agreeable understandings on the basis of the rules of procedure and past practice.

Many former Presidents of the CD have tried to find language to bridge the political gaps. Proposals by Ambassador Dembri¹⁵ (Algeria, June 1999), Ambassador Lint¹⁶ (Belgium, June 2000), Ambassador Amorim¹⁷ (Brazil, August 2000) and now a joint proposal put forward by the Ambassadors of Algeria, Belgium, Colombia, Chile and Sweden¹⁸ are some of the recent initiatives.

All of these proposals have the same basis: beginning negotiations on an FMCT in an Ad Hoc Committee, and simultaneously beginning substantive consideration, examination, identification, deliberation - but not negotiations - on Nuclear Disarmament and on PAROS in two other Ad Hoc Committees. On Nuclear Disarmament, the language broadly conforms to the 2000 NPT Review Conference language, "establishing in the CD an appropriate subsidiary body with a mandate to deal with nuclear disarmament."¹⁹

The central problem lies with the formulation on PAROS. For example, the proposal by Ambassador Amorim tasks the PAROS Ad Hoc Committee to "examine and identify specific topics or proposals which could include confidence building or transparency measures, general principles, treaty commitments and the elaboration of a regime capable of preventing an arms race in outer space."²⁰ The proposal of the Five Ambassadors tasks the Ad Hoc Committee to "identify and examine, without limitation and without prejudice, any specific topics or proposals, which could include confidence building...."²¹ However, none of these efforts have succeeded in bridging the gap, though the proposal of the Five Ambassadors enjoys the support of nearly 50 countries, including Australia, Canada, India, Indonesia, Iran, Japan, Mexico, South Africa.²²

On August 7, prospects for an agreement brightened, with a Chinese statement²³ accepting a slightly amended formulation of the Five Ambassadors' proposal, namely to establish an Ad Hoc Committee with a mandate to "...identify and examine, without limitation, any specific topics or proposals which could include confidence building or transparency measures, general principles, treaty commitments and the elaboration of a regime capable of preventing an arms in outer space, including the possibility of negotiating a relevant international legal instrument." It remains to be seen whether this move will succeed in breaking the deadlock.

Especially regrettable is the fact that the impasse in the CD comes at a time when new threat perceptions and uncertainties cloud the horizon. In brainstorming sessions within the CD and on its margins, the nexus between 'terrorism' and 'weapons of mass destruction' figures prominently. Evidently, such an issue cannot be addressed by a treaty modelled on the CTBT or the CWC because there already exists a body of international law dealing with both 'terrorism' and 'weapons of mass destruction.' Addressing the two together requires a different approach - akin more to a declaration or a covenant that would be consistent with existing international law.

Another issue assuming growing importance in the eyes of many is the 'compliance' of states parties with their international treaty obligations. Not all treaties have equivalent compliance and enforcement mechanisms. However, non-compliance by states parties in certain cases can have wide-ranging implications. Therefore, judgments about non-compliance become a sensitive matter and need to be reached through transparent and legitimate means involving all states parties as they have a stake in the health of the treaty. Can a generic approach to compliance be elaborated, particularly when concerns about effective national implementation are rising because of emergence of non-state actors and global terrorism? Once again, traditional approaches do not seem to offer a feasible model.

At the same time, traditional models remain relevant for negotiating an FMCT or an international instrument on marking and tracing of small arms and light weapons (SALW), on which a decision will be taken by the forthcoming UNGA session. Radiological weapons are today receiving renewed attention under the label of 'dirty bombs' because of the risk of non-state actors acquiring radioactive materials that could be detonated with conventional explosives to cause widespread radiological contamination. An understanding on this would need to be implemented in terms of finding the ground between nuclear safety and nuclear security.

Many countries have suggested that the CD look at 'missiles'. Preliminary multilateral efforts in this area, outside the CD, have led to the development of an 'International Code of Conduct.' In other words, new threat perceptions demand new solutions. We are seeing this also in the case of the multilateral processes underway following the last BWC Review Conference and in the negotiations on an Explosive Remnants of War (ERW) Protocol in the framework of the Convention on Certain Conventional Weapons (CCW). Yet, these approaches are also being developed through a process of multilateral negotiations.

This brings me back to my starting point that the CD is the 'single multilateral negotiating forum' in the field of disarmament. It is a valuable resource because if it did not exist, we would need to convene one every time a negotiation was envisaged. In recent years, we have tried to find a way out of the deadlock by looking at the Agenda of the CD or its Rules of Procedure but that is not where the source of the problem lies. The source lies in the absence of adequate political will, reflected in debates over 'negotiating' and 'non-negotiating' mandates. Overcoming the deadlock requires a political realisation on the part of the international community and key member states that without multilateral negotiations it is not possible to address today's security concerns because multilateral approaches offer the only legitimate and lasting solutions.

Notes and References

1. Final Document of the Tenth Special Session of the General Assembly, June 30, 1978, para 120.

2. Ibid.

3. CD/12, April 12, 1979.

4. Statement by Ambassador Donald A. Mahley on July 25, 2001 to the Ad Hoc Group of BWC States Parties.

5. CD/1229, March 25, 1995.

6. CD/1576, March 18, 1999, in which China calls for the establishment of an Ad Hoc Committee which "...shall negotiate and conclude an international legal instrument banning the test, deployment and use of any weapons, weapon systems and their components in outer space, with a view to preventing the weaponization of outer space."

7. CD/1682, August 30, 2002, in which China calls for the establishment of an Ad Hoc Committee which"...shall examine and identify specific topics or proposals, which could include confidence-building or transparency measures, general principles, treaty commitments and the elaboration of a regime capable of preventing an arms race in outer space, with a view to negotiating relevant international legal instrument."

8. US statement, CD/PV.912. pp. 21-22: "We will not, however, accept a PAROS mandate that prejudges where PAROS discussions will lead."

9. CD/243, February 19, 1982.

10. CD/440, February 28, 1984.

11. CD/1125, February 14, 1992, which mandated the Ad Hoc Committee to "continue to examine and to identify, through substantive and general consideration, issues relevant to the Prevention of an Arms Race in Outer Space."

12. CD/77, January 17, 1980.

13. CD/79, March 17, 1980.

14. CD/78, March 17, 1980.

15. Informal proposal discussed during Algerian Presidency.

16. CD/1620, June 29, 2000.

17. CD/1624, August 24, 2000.

18. CD/1693, January 23, 2003. This is colloquially known as the 'Five Ambassadors' (or A5) Initiative.

19. Final Document, NPT Review Conference, 2000 (Article VI, para 15.4).

20. CD/1624, op.cit., endnote 17.

21. CD/1693, op.cit., endnote 18.

22. Plenary statement by Ambassador Jean Lint June 26, 2003.

23. Plenary statement by Ambassador Hu Xiaodi on August 7, 2003.

Ambassador Rakesh Sood is the Permanent Representative of India to the Conference on Disarmament. This article is adapted from a paper presented to the UN Conference on 'Arms Control, Multilateral Disarmament and Their Future', held in Osaka, Japan, from August 19-22, 2003.

Appendix: CD Press Release, August 7

'China accepts "Five Ambassadors" proposal on Prevention of an Arms Race in Outer Space as amended', Press Release, United Nations in Geneva, August 7, 2003 (excerpts); UN website, http://disarmament.un.org/cd/cd-press.html.

The Conference on Disarmament this morning heard China say that it would express flexibility once again and accept what the "Five Ambassadors" proposal stated about prevention of an arms race in outer space, as amended on 26 June. The Conference also heard statements by Russia on the "Five Ambassadors" proposal and Ukraine on the stalemate in the Conference. The President of the Conference also gave an account of the results of his consultations.

Ambassador Hu Xiaodi of China said that the Conference had been unable to conduct any substantive work for six years now. In order to break the deadlock, China had demonstrated immense flexibility. China would demonstrate its flexibility once again and accept the amendment in the "Five Ambassadors" proposal on prevention on an arms race in outer space (PAROS), even though the newly amended mandate of the Ad Hoc Committee on PAROS in the proposal still fell far short of China's position on the need to negotiate an international legal instrument. China hoped that the other interested parties would respond positively so that the Conference could start its substantive work as soon as possible.

Ambassador Leonid Skotnikov of the Russian Federation said his country would be ready to join in a consensus on the "Five Ambassadors" proposal in its present form, with the corrections made by Ambassador Lint. Naturally, the Russian Federation would have preferred a negotiating mandate on space and not a discussion approach as proposed by the five ambassadors. However, the Russian Federation understood how complex it was to harmonize the positions of all the members of the Conference on the programme of work. It believed that with the "Five Ambassadors" proposal, the necessary balance had been found and it hoped that this proposal would be supported generally in the near future.

The President of the Conference, Ambassador Carlo Trezza of Italy, said that in his consultations, he had tried to discuss in depth the proposal of the "Five Ambassadors" which remained the most updated and advanced proposal for a programme of work. He would continue to try his best, through formal and informal consultations, to reduce the gap between the different positions in order to revitalize the work of the Conference. From an operational point of view, he suggested that the Conference continue working on the main themes contained in the Five Ambassadors proposal with a view to discuss more in depth some subjects of negotiations which were at a more advanced stage of preparation. On the whole, he had the feeling that further work was necessary to reach a compromise on a programme of work, and that, with a certain degree of flexibility, centimetre by centimetre, it was possible to reach a compromise. ...

Statements

Carlo Trezza (Italy), President of the Conference on Disarmament, said that he had continued his consultations this week. He had held presidential consultations yesterday and had listened very carefully to the reports by the coordinators on the results of their group meetings. He had also consulted with the previous and future presidencies of the Conference as well as with delegations. So far, he had had 32 of these encounters in addition to 21 institutional consultations. He had tried to discuss in depth the proposal of the "Five Ambassadors" which remained the most updated and advanced proposal for a programme of work.

His consultations had confirmed his understanding so far that this proposal was not a "take it or leave it" package. Although there should not be a specific hierarchy between the seven items as suggested, some might be considered as being more advanced for negotiation or discussion. A vast majority agreed that not all the items could be treated simultaneously. A compromise on the issues, which were at a more advanced stage appeared therefore to be necessary. The view was also strongly expressed that no theme should be held hostage to others. Indeed, a strict linkage could paralyse the Conference. He would continue to try his best, through formal and informal consultations, to reduce the gap between the different positions in order to revitalize the work of the Conference.

From an operational point of view, he suggested that the Conference continue working on the main themes contained in the Five Ambassadors proposal with a view to discuss more in depth some subjects of negotiations which were at a more advanced stage of preparation. On the whole, he had the feeling that further work was necessary to reach a compromise on a programme of work, and that, with a certain degree of flexibility, centimetre by centimetre; it was possible to reach a compromise. The Conference could examine how the new realities could affect the various issues, which were contained in the Five Ambassadors proposal of a programme of work. He continued to be ready to consider suggestions or presentations on new themes, especially on those that could be instrumental for a better understanding and updating of the main issues. ...

Hu Xiaodi (China) said that he wished to address the issue of the prevention of an arms race in outer space (PAROS). Today, he wanted to expound on the position of the Chinese delegation on the programme of work of the Conference. China all along had held that given the divergent views on the priorities of the work of the Conference, it was imperative to take into consideration all the views and to conduct negotiations simultaneously on PAROS, a fissile material cut-off treaty (FMCT), negative security assurances (NSA) and nuclear disarmament. This was the right way to continue the programme of work of the Conference in a smooth way. It was regrettable that the Conference had not formulated such a programme of work. It was well known that China had always been supportive of the work of the Conference on Disarmament and was in favour of negotiations on FMCT, NSA and nuclear disarmament. With the insufficiency of the current legal system in the prevention of an arms race in outer space and the fast development weapons, outer space was under threat of becoming weaponized. Therefore, negotiations on PAROS were important in order to prevent mishaps.

The Conference on Disarmament should establish an Ad Hoc Committee on PAROS to negotiate an international legal system to prevent a weapons race in outer space. This would be in the interest of all delegations, including the major space powers. The Conference had been unable to conduct any substantive work for six years now. In order to break the deadlock, China had demonstrated immense flexibility. Many delegations had suggested proposals and had tabled constructive proposals. Ambassador Lint of Belgium had amended the "Five Ambassadors" proposal on 26 June concerning the Ad Hoc Committee on PAROS, deleting the phrase "and without prejudice" and adding the phrase "including the possibility of negotiating relevant international legal instruments. China wished to point out that the newly amended mandate of the Ad Hoc Committee on PAROS in the "Five Ambassadors" proposal still fell far short of China's position on the need to negotiate an international legal instrument. However, China would demonstrate its flexibility once again. China accepted the PAROS mandate as amended on June 26. It was its hope that the other interested parties would respond positively so that the Conference could start its substantive work as soon as possible.

(The relevant part of the revised paragraph 4 of the "Five Ambassadors" proposal, as amended on 26 June and as accepted by China today, reads as follows...:

"4. The Conference establishes, for the duration of the current session, an Ad Hoc Committee under agenda item 3 entitled 'Prevention of an arms race in outer space' to deal with the prevention of an arms race in outer space. The Ad Hoc Committee shall identify and examine, without limitation and without prejudice, any specific topics or proposals, which could include confidence-building or transparency measures, general principles, treaty commitments and the elaboration of a regime capable of preventing an arms race in outer space, including the possibility of negotiating relevant international legal instrument. In doing so, the Ad Hoc Committee shall take appropriate account of the need to contribute actively to the objective of the peaceful use of outer space and the prevention of an arms race there, while also promoting international stability and respecting the principle of undiminished security for all. ..." )

Leonid Skotnikov (Russian Federation) said that after the statement by Ambassador Hu of China, it was necessary to say a few words on the programme of work of the Conference. First of all, the Russian Federation would be ready to join in a consensus on the Ambassadors" proposal in its present form, with the corrections made by Ambassador Lint. Naturally, the Russian Federation would have preferred a negotiating mandate on space and not a discussion approach as proposed by the five ambassadors. The Russian Federation understood how complex it was to harmonize the positions of all the members of the Conference on the programme of work. It believed that with the "Five Ambassadors" proposal, the necessary balance had been found and it hoped that this proposal would be supported generally in the near future.

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