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The following opinion piece is intended to inject an outsider's view into one aspect of the debate, with a view to making the CD more accountable. It represents the personal opinions of the author at this moment and does not reflect the policy of Disarmament Diplomacy or any organisation with which the author is associated.
Sense and Sensitivity
On first engaging with the CD, as I did in 1994, it is easy to ruffle sensitivities unintentionally. I remember being admonished for referring to the 'UN's Conference on Disarmament'. The CD, I was sternly told, is autonomous of the UN. I was also chastised for saying that the CD had voted for something or other. I had been using the term 'vote' rather loosely to mean 'registered agreement with' the decision in question, but the very mention of the word was clearly unacceptable. The CD decides by consensus. But for consensus to have any meaning, there must be effective procedures for the individuals in the group to register their views of support, opposition, acquiescence or even 'don't know, don't care'. The rotating Presidential Bureau and the system of Western, Eastern and Non-Aligned groups (plus China) are together supposed to manage the flow of information, views and decision-taking. As the last few years have shown, competing political interests within the groups and between a small number of dominant States have paralysed decision-making in the CD.
The much-vaunted independence of the CD from the United Nations is an illusion. The CD meets in UN buildings and is funded by UN contributions. It uses UN resources and UN-employed staff. The CD is guided in its work by UN General Assembly resolutions; consensus resolutions are tantamount to instructions to the CD.
The CD has only 60 members, less than one-third the number of countries in the United Nations. Significant attempts have been made to provide a representative geographical balance in CD membership. However, due to the piecemeal history of its development and enlargement from the days of the Ten Nation Committee on Disarmament in 1959-60, up to the historic decision to add 23 new members in 1996, the CD contains some moribund members and excludes several countries whose past and present contributions on the issue of disarmament have been considerable.
When one of the 60 CD States vetoed adoption of the Comprehensive Test Ban Treaty (CTBT) text last year, there were calls of 'foul' when Australia took the completed treaty to the General Assembly under its own auspices. That Australia's initiative was widely supported was clearly shown when by 9 September, 127 countries had co-sponsored the CTBT resolution. The treaty was adopted by 158 votes to 3, with 5 abstentions - more than 85 percent of UN membership (closer to 95 percent once adjustments are made for those unable to vote by reason of being behind with their UN payments).
Consensus is important in negotiating arms control treaties because States need to know that they have full input in determining the text and small print of agreements which will affect their national security interests. But even after the negotiators have gone as far as they can in meeting the range of interests and concerns, some States may still believe that they can get more. It is in the nature of negotiations that all sides lose something individually in order collectively to gain something perceived as of greater value. If negotiations in the CD have reached their endpoint without consensus, there are presently only three options available:
i) to accept failure (and keep the drafted treaty in limbo);
ii) to keep negotiations open;
iii) to execute the 'Australian manoeuvre' and take the draft to the UN General Assembly with a group of 'friends of the treaty'.
A fourth option (or a variation on option iii) might be for all States which accept the completed measure to adopt it together, outside the context of the CD or United Nations.
At first sight, option ii) might seem to be the best way out of deadlock. In practice, however, more or unlimited time does not necessarily deliver a better agreement. New issues can get opened up, political conditions may worsen, and the opportunity for enacting the measure may be lost altogether. The 'Australian manoeuvre' in its present form is also risky as it can lay the treaty open to amendments, thereby undoing the compromises crafted during negotiations in the CD.
If the CD were formally recognised to be the UN's negotiating forum on disarmament issues, a fifth option could offer a more practical alternative to deadlock or confusion. For the CD to be accountable to the UN would mean that when the 60 delegations in the CD have done their best (and if that has produced near-consensus but not full consensus), they would have a responsibility to report the outcome of their deliberations to the 185 members of the UN General Assembly, who would have the right to accept or reject the measure, or refer it back to the CD.
A Proposed Role for the UN General Assembly
An example of how this might look procedurally follows, with suggested majorities and times in square brackets. If the CD has negotiated an instrument that according to the consultations of its President has the agreement of at least [55] of its members, but which is unable to gain consensus after a certain period of time [1-3 months], that completed draft measure shall be taken to the UN General Assembly under the auspices of the CD President in her/his official capacity. The General Assembly shall have the opportunity to vote either to adopt the treaty, to reject it, or to send it back to the CD for further work. The decision to adopt or reject the treaty would have to have the support of at least [75 percent] of the General Assembly members [present and voting]. The decision to refer the treaty back to the CD would require a simple majority of GA members [present and voting].
The implications of the three choices are as follows:
i) If it votes to adopt, the UN GA is endorsing the CD President's analysis that the Conference had gone as far as it could to obtain agreement and that the negotiated instrument is viable and represents the best compromise in the circumstances. As with the CTBT, the GA decision to adopt a measure places no legal obligation on any individual State to sign it, This would also be true if a treaty were adopted by consensus in the CD (and is equally true whether a State voted against adoption, as India did, or in favour, as did Pakistan). Engaging in negotiations does not entail an obligation to adhere to the finished instrument, although it is intended that the process of collective negotiations will address the participating States' concerns sufficiently to make full accession more likely.
ii) If it votes to reject, the UN GA is in effect telling the CD that it has got it all wrong and should start again. In practice, it would be extremely unlikely that a measure which had achieved near-consensus in the CD, would be so misguided as to be thrown out by the United Nations in this way. But the option should be available.
iii) If it votes to refer the measure back to the CD, the UN is telling the Conference that it is on the right track but should work harder at getting consensus among its own members. This might include a provision for bringing the measure back to the GA if consensus is not achieved within a certain time [6 months or a year]. Given the grave concerns of some countries regarding the entry-into-force provision (Article XIV) of the CTBT, referral back may have been an attractive option had it been available at the time, although others feared that failure to adopt the CTBT by the target date of 30 September 1996 would cause the treaty to be lost altogether. That is a risk that would have to be weighed in each case. By referring a measure back, the GA would be indicating that the target date is not a deadline, and that more time is in fact required to achieve the best possible compromises.
I have not suggested that the UN be empowered to amend any text before it from the CD. The UN is not structured to negotiate treaties, and asking it to do so would quickly turn into a mess. If delicately-wrought compromises among key States were overturned, governments might refuse to sign. Since in the case of arms control treaties, the 'key' States are usually those which have the largest arsenals, their signatures are more essential to the implementation of such measures than some others, whose objections may have a more ideological function.
Objections and Responses
Objections will no doubt come thick and fast. Primary among them is likely to be the fear that giving the UN a role in assessing the CD's products would 'bypass consensus'. The response of one western official was that 'America would never stand for it' . It is immediately assumed that such a mechanism would nullify the power of individual States to oppose decisions which they deem incompatible with their national security. Smaller States may fear that without consensus their interests would be ignored altogether. When Ambassador Kurokochi of Japan questioned the operation of consensus in her farewell speech on 26 June, Ambassador Arundhati Ghose of India immediately responded that "consensus in the CD is there to protect the weak, not to ignore the weak".
In practice, it is rare that the CD's consensus process exposes an individual State to assert its veto alone. When the US vetoed adoption of the O'Sullivan list of 23 States for CD expansion in 1994, it was isolated in part because its decision to veto was imposed from Washington after everyone at the CD had thought there was consensus, and in part because no-one else shared the US view that Iraq should be kept out of the CD until sanctions were lifted.
The mechanism I suggest is not a routine means of bypassing issues that the CD finds awkward to resolve. Recourse to the UN would be a last resort when a measure has been brought as close to completion as the overwhelming majority in the CD consider to be feasible. It offers a way out of deadlock and only comes into play when consensus has failed. It is not a mechanism that could be utilised to speed negotiations along or impose majority rule on particular aspects of a treaty. In view of the alliances within the CD and the necessity to carry the States whose signature would be regarded as essential, it is inconceivable that the major powers would become so isolated on a genuine matter of their security that near-consensus would be achieved regardless of their objections. However, smaller States would also be able to band together to protect those with valid objections from being ignored. Far from down-grading CD consensus, a relationship of formal accountability to the General Assembly could strengthen the effectiveness of consensus at the CD, giving less power to unjustified obduracy but forcing the CD collectively to seek constructive ways to resolve genuine conflicts and concerns.
Although big power pressure cannot be discounted, a State with serious and well-founded security concerns ought to be able to get the backing of a sufficient number of its friends to ensure that the assessment of 'near consensus' could not be made. That India ended up isolated in 1996 was in part due to the perception of most CD members that the alternative to adopting the draft CTBT as accepted by the P-5 (at whom it was primarily aimed) was to lose it altogether. Additionally, though many shared India's concerns about nuclear disarmament and the rigid entry-into-force provision, they thought that India had been wrong to veto adoption of the treaty by the Conference and try to prevent its transmission to the United Nations.
If my proposed mechanism for bypassing deadlock were to be formally established, it could actually give greater protection to weak countries, providing their arguments were sufficient to persuade a small number of others. International opinion, currently the main mechanism for preventing abuses of veto power, would still have an important role to play in indicating to CD members whether their intention to block consensus has sufficient backing for the issue to remain with the CD.
Concerns have been raised that this suggested mechanism would politicise the Presidency of the CD. An important function of the President is to consult with CD members and interpret the outcome of those consultations. Since by its nature, the decision to bypass deadlock and take a measure to the UN will not have full consensus, the President assumes the responsibility only if s/he has determined that there is near-consensus. The President is not put in the position of advocating the measure, but of presenting it to the UN General Assembly for the wider international community to assess. As with all things, the Presidency may not always work perfectly or impartially. If one President prematurely ships a measure out of the CD, the General Assembly is more likely to refer it back. If another happens to represent one of the countries that opposes the measure in question, s/he may delay taking it to the General Assembly. As long as the principle of the rotating Presidency is retained, as seems likely, a weak or biased President would be replaced in time, thereby enabling the logjam to shift.
In addition to finalised draft agreements, one other aspect of the CD's organisation might benefit from a more formal mechanism of UN oversight: the programme of work. As before, the primary responsibility for achieving consensus should rest with the CD. But if there is persistent deadlock, then the other 120-plus nations should have a right to say what they want the Conference to do, particularly as they contribute to its funding. Furthermore, once the CD has adopted a negotiating mandate and embarked on a particular set of negotiations, the ad hoc committee convened for that purpose should be automatically re-established each year until the negotiations are completed or a decision is taken by the UN General Assembly to drop the issue. The establishment of ad hoc committees with non-negotiating mandates could still be subject to agreements obtained annually.
For the CD to be made accountable to the UN General Assembly could enhance rather than diminish the practice of consensus building in the Conference. Under the mechanism outlined above, the onus will still be on the CD to reach its decisions by consensus. Therefore the tools and structure for managing consensus need to be overhauled, starting with the groups system, about which I have written previously (see Disarmament Diplomacy, No. 8, September 1996).
The CD's primary function is as a negotiating forum. But, as noted by Ambassador Jaap Ramaker of the Netherlands in his farewell statement to the CD on 8 August, "the CD cannot always...negotiate." Putting in a plea to recognise and value preparation work which lays the foundations for negotiations, Ramaker emphasised that "negotiating does not exclude - on the contrary I would say - exploratory work". The two principal mechanisms for exploring an issue are by a special coordinator or the establishment of an ad hoc committee with an exploratory mandate. In any case, a committee should be established once the CD has decided that it has a role to play in addressing certain issues. Unless a negotiating mandate has been quickly agreed, the committee may first be convened with a deliberative mandate, to consider the parameters of its role, the area to be negotiated, the relationship between CD negotiations and other fora or existing negotiations, such as the bilateral START process on reducing strategic weapons or the Ottawa Process on landmines. Getting the negotiating mandate right may be half the political battle in arms control. Preparation work, confidence building, and, where relevant, the setting up of experts groups, to exchange information or explore technical issues, are important contributions which can be made by a CD committee before the political conditions ripen sufficiently for a negotiating mandate to be agreed. As long as the focus of CD work is negotiating or preparing for negotiations, the fact that it may not be negotiating at all times does not mean that the CD will be turned into a talk-shop like the UN Disarmament Commission.
conclusion
The problems besetting the CD are both political and structural. In this opinion piece I have chosen to address two aspects of the structural impasse: accountability and consensus. In my view, the rule of consensus in the CD itself should be retained for all negotiations. Procedure and substance in many aspects of the CD's work are intertwined, so the option of majority decision-making for procedural issues would create as many difficulties as it seeks to resolve. The one exception to consensus I suggest is the decision to transmit a near-consensus measure or programme for consideration by the higher authority of the UN General Assembly. That decision to break CD deadlock would need to be enacted by the Conference President, under the authority of that august position.
Formalising the CD's responsibility towards the larger international community can provide a last resort mechanism for moving beyond deadlock if one or a very few delegations hold up major agreements that have near-consensus among CD members. The checks and balances in the proposed mechanism can protect the genuine security interests of States, provided they are able to win support for the legitimacy of their concerns from several others. To accomplish the suggested changes, it would be necessary to formulate a small number of new rules of procedure for both the CD and the General Assembly, as appropriate.
Though in this opinion piece I have dealt only with structural questions, there are important political issues that will need to be addressed at the same time. There are several possible ways of moving past the current impasse on CD work, none of them easy. On the broader canvass, the proposed fourth UN Special Session on Disarmament should happen sooner rather than later, and be used to address the post-cold war security environment and the future agenda for nuclear and conventional arms control and disarmament. The nuclear-weapon States (NWS) need to recognise the legitimate interest of the non-nuclear-weapon States (NNWS) and international community in promoting and overseeing the complete elimination of nuclear weapons.
It is as important for multilateralism to play its part in nuclear disarmament as in the recently concluded CTBT. While the CD works out its role and contribution towards nuclear disarmament, negotiations to ban the production of fissile materials could pave the way. Five power talks among the declared NWS on transparency and confidence-building could also start the ball rolling on technical and policy matters. An initial menu for P-5 talks could include issues such as the declaration of fissile material and nuclear weapon holdings, de-alerting of nuclear weapons, no first use, commitments not to increase the size or modernise existing arsenals, and no stationing of nuclear weapons outside the territory of the NWS.
Rebecca Johnson is Director of Disarmament Intelligence Review.
© 1998 The Acronym Institute.