New Paradigms Forum Proliferation Issues and Much More …

7Jun/10Off

Cracks in the Shell of Globalist Treaty-Universalism?

Not too long ago, a U.S. administration suggested that formal, multilateral, universal, and treaty-focused modes of wrestling with international security challenges might not be the only way to go.  Governments should be willing to be more flexible in how they addressed such issues, officials in Washington declared.  The solution to every international problem, they contended, did not always lie in signing a sweeping universal convention on the subject, and they showed themselves distinctly cool towards some long-favored treaty instruments.  Instead, they suggested, the international community should be more willing to improvise by looking increasingly to other, less traditional and legalistically formal means to advance shared goals.  They believed that in the right circumstances, such ad hoc approaches might actually work better.

To this end, in the arms control and nonproliferation arena, U.S. officials proposed and led in the development of a variety of innovative steps.  To help stop the spread of nuclear weapons and other weapons of mass destruction (WMD) technology, for example, they set up a relatively informal network of like-minded governments to facilitate and coordinate the employment of national authorities to help interdict proliferation transfers.  (This was the Proliferation Security Initiative, or PSI.)  To help make it harder for non-state actors to gain access to nuclear weapons technology, they enlisted a broad coalition of states behind general support for a set of what were in effect “best practices” principles, and met periodically at various levels of operational and policy decision-making to discuss ways to cooperate better.  (This was the Global Initiative to Combat Nuclear Terrorism, or GICNT.)  And they led the United Nations Security Council, acting pursuant to its authority under Chapter VII of the U.N. Charter, in adopting a new and legally-binding international standard for keeping WMD technology out of the hands of terrorists.  (This was Resolution 1540.)

I.            The Treaty-Universalist Critique of U.S. Policy

Some critics of these approaches, hailing principally from the arms control and disarmament Left – both in the NGO community and in diplomatic circles, especially in the developing world – decried these innovations as being dangerous and unfair derogations from the proper way to approach problems.  These critics preferred to adhere to what might be called a principle of quasi-democratic multilateral formalism, which assumed that decisions in the international community must be made on what is, in effect, a largely consensus-based town-hall basis – or, if necessary, by a simple majority vote – with all states participating as equals, and with outcomes codified in universal treaty form.  PSI’s collection of like-minded friends cooperating informally and according to the degree of their like-mindedness, for example, seemed to offend this principle.  PSI would, it was said, not reinforce but in fact undermine the Nuclear Nonproliferation Treaty (NPT).  (Indeed, to hear some tell it, PSI might even have been intended to replace the NPT, by stealth, with a devious cabal of developed nations acting as a self-appointed global police force.)

GICNT was not notably controversial when it was first advanced – and indeed some 79 countries have declared their support for its statement of principles – but the initiative seems to have slipped quietly off the policy agenda of the most senior American officials.  Its very informality and flexibility did not fit comfortably within the expectations of many critics of U.S. policy, and such criticisms seem to have been credited by the American political Left.  The originators of PSI and GICNT ignored such complaints, being more interested in the effectiveness of such approaches than their arguable diplomatic symbolism.  When the current U.S. administration took power, however, it proclaimed its desire to “turn efforts such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism into durable international institutions” – an idea which seemed to entail taking away precisely the flexibility and informality that was once thought to be the strength of such initiatives.

To the extent that PSI and GICNT still remained foci of U.S. effort, these endeavors were moved to the shadows of the public policy stage.  Even where the Obama Administration claimed to see nuclear terrorism as “the most immediate and extreme threat” facing the United States today, it preferred to claim the issue of nuclear terrorism as its own by acting as if nothing had previously been done.  Real work to prevent nuclear terrorism, the implication seemed to be, could only begin with a vast international convocation of heads of state who would negotiate a consensus “work plan” tied to an unrealistic but politically catchy deadline.  (Hence the brief paroxysm of the Washington Nuclear Security Summit in April 2010.)

Resolution 1540 was harder for critics to dismiss, because it emanated from well-established treaty-based and universalist U.N. machinery, but officials from many governments in the developing world grumbled about the unfairness of being subjected to “legislation” forced upon them by an undemocratic Security Council dominated by an anachronistic Great Power-clique of veto-holding permanent members.  Though a committee had been set up at the United Nations to review countries’ compliance with the Resolution’s strictures, 1540 compliance has slipped down the agenda of policy priorities for the United States and apparently all other governments.  To the extent that it comes up today in U.S. diplomatic discourse, Resolution 1540 is spoken of primarily in the context of “capability building,” which is a fine idea in principle – because there doubtless are governments with resources so limited that it proves difficult for them to do even elementary things required by Resolution 1540 – but which often seems to boil down to little more than yet another reason to call for resource transfers from rich countries to the developing world.

Today, while edging symbolically away from non-universalist approaches such as PSI, the United States has recommitted itself to a mid-1990s laundry list of treaty-universalist nuclear disarmament priorities – among them an “effectively verifiable” Fissile Material Cutoff Treaty (FMCT) negotiated at the U.N. Conference on Disarmament pursuant to the “Shannon Mandate” of 1995, and ratification of the Comprehensive Test Ban Treaty (CTBT).  As I have discussed at some length elsewhere, the Obama Administration also invested much in hopes of winning a consensus agreement at the 2010 NPT Review Conference (RevCon), stressing their disarmament-related concessions in an effort thereby to purchase nonproliferation goodwill.  (Many of the officials now running Obama Administration nonproliferation policy had denounced the Bush Administration for failing to get a consensus final document at the 2005 RevCon; achieving such an axiomatic “success” in 2010 was thus particularly critical.)  In short, Washington seems today to be working to skew the disarmament and nonproliferation agenda away from non-traditional remedies and back more toward treaty-universalist models – even making a major concession on “discussions” about “space weapons” in order to win agreement upon a CD work plan designed to revive that body as a vehicle for global disarmament hopes.

One might conclude, therefore, that the critics’ disdain for non-universalist remedies and passion for treaty instruments as the sine qua non of international progress in addressing security challenges has won the day, and that the universalist paradigm reigns triumphant.

II.            Treaty-Universalism and its Discontents

Fascinatingly, however, this might yet be wrong.  Today, just as the United States seems to have reversed course and embraced the treaty-seeking politico-ideological certainties of universalism, there seems to be increasing frustration on the arms control and disarmament Left with traditional approaches’ inflexibility in the face of the complexity of the real world.  This frustration seems to be driving a growing interest in exploring non-universalist remedies.

A look at statements made at and around the time of the 2010 NPT Review Conference provides a fascinating window into a shift that seems to be occurring, or at least beginning, in the disarmament community.  For years, formal multilateral institutions – and the concomitant subjection of serious substantive issues to majoritarian procedures in fora dominated numerically by countries of the developing world often profoundly unsympathetic to the concerns of major powers – were depicted as the ideal venue for approaching international security issues.  Today, however, there seems to be a growing frustration with such institutions, even, or perhaps especially, as they actually have been turned to as the fora of choice for international security policy-making.

The U.N. Conference on Disarmament (CD) is perhaps the best example of this.  The CD was the darling of the arms control and disarmament Left when the conventional wisdom held that its paralysis was the result of American perfidy and distaste for the transcendently worthy goal of nuclear weapons abolition, a ban on “space weapons,” or other favored causes.  It was considered a travesty, for instance, when the Bush Administration for a time all but publicly considered not sending a representative to the CD at all, and its distinctly cool response on many CD pet issues provided many a pleasant opportunity for self-congratulatory America-bashing by other CD representatives.

Now, however, it has become increasingly clear that the very things that made the CD so convenient a focal point for anti-Washington politicking – e.g., the degree to which its status as a universal forum for disarmament speech-making and its consensus-based procedures made it the perfect showcase for how supposed U.S. hostility to disarmament was preventing progress – continue to make the Conference dysfunctional even after Washington has swung around much more in support of drably conventional diplomatic thinking.  The Americans have done everything demanded of them, embracing the CD as the world’s premier disarmament negotiating forum, dropping their annoyingly rigorous assessment of FMCT verifiability, and agreeing to “discussions” of amusingly disingenuous Sino-Russian proposals to ban other countries’ space-related weapons.  Yet these concessions have made the CD no more effective than ever, even as the excuse of American wrongheadedness – behind which so many governments hid for so long – has disappeared.  How awkward it now is.

Today, there is a palpable sense of disappointment in the CD among members of the disarmament community.  As former Australian foreign minister and tireless disarmament activist Gareth Evans put it in recent remarks in Washington, the CD remains so “hopelessly snarled” that it may be time to look for alternatives.

A year ago I wrote an article in Arms Control Today articulating a strategy for taking FMCT negotiations out of the CD in order to pursue them on a more ad hoc basis only among the governments whose adherence to such a treaty would matter anyway (i.e., those countries that are not already subject to a requirement under the NPT that they not produce fissile materials for nuclear explosive purposes).  Even then, in early 2009 – just after President Obama’s arrival in the White House as the bearer of the disarmament community’s  fondest hopes – this proposal was generally treated as a sort of heresy: just one Bush Administration official’s spiteful parting shot at the despised CD, and a call to undermine that body’s work just as it finally had the chance to live up to the disarmers’ dreams.  Not long after publication, in fact, the Obama Administration ostentatiously re-embraced the CD, repudiating the Bush Administration position on FMCT verification and reversing a U.S. position on “space weapons” that had been tenaciously held by Democrats and Republicans alike since the days of Jimmy Carter. Now that it is clear that these Obama concessions have produced essentially nothing at the CD, however – unless one counts an impression of U.S. weakness – the disarmament community is souring on the institution, with NGO disarmament activists (I am told) increasingly passing around copies of my article.

At the NPT Review Conference (RevCon) that just concluded at the United Nations in New York, several delegations spoke out against the CD, decrying its ineffectiveness and suggesting the need for alternative approaches.  The Canadians – who under then-CD Ambassador Paul Meyer had once yielded pride of place to no one when it came to strident and ill-humoredly anti-American disarmament activism – publicly complained that consensus procedures had become an obstacle to progress at the CD.  The example of the landmine treaty, said Canada’s representative, shows that the Conference should be given no monopoly as the exclusive way to approach disarmament matters.  (Canada also opposed linking any Review Conference recommendations to the work of the CD, since that body had failed to demonstrate its capability to do anything particularly useful.)  Norway echoed Canada’s complaints, urging that delegations think hard about the CD’s relevance as a disarmament forum.

These concerns were reflected in draft texts circulated during the RevCon, which expressed concern at the CD’s paralysis, complaining that it has not been able to commence negotiations and substantive deliberations.  To be sure, it has been, in recent years, not unusual for statements to be made at NPT meetings about the CD’s dysfunction.  Now, however, it is no longer possible to pretend that the body’s paralysis is America’s fault, and opinion in disarmament circles seems to be shifting against the Conference on Disarmament per se.  An early NPT draft text within the RevCon’s first main committee called for negotiations on the FMCT, but without actually specifying where.

This is not to say that everyone now thinks the CD is a hopeless disaster.  The Obama Administration seems to have too much political capital invested in its re-embrace of that body to get cold feet now.  Nor do the stalwarts in the Non-Aligned Movement (NAM) yet seem willing to question the axiomatic value of the CD.  At the RevCon, for example, it fell to the NAM to demand more traditionally politically correct language calling out the CD – and that body’s 1995 “Shannon Mandate” for negotiations, which had been rather flamboyantly re-endorsed by the Obama Administration after coming in for criticism under George W. Bush – as the appropriate venue for pursuing an FMCT.  The NAM also called for the creation of a subsidiary body at the CD to deal with disarmament, which may have been a backhanded concession that the main body was indeed hopelessly snarled.  (NAM representatives did not, however, make clear what the CD plenary was to do if the “Conference on Disarmament” was only capable of dealing with disarmament issues in a subsidiary body.)  China also seemed worried about the disarmament community’s growing lack of confidence in the CD, since removing FMCT from that body would imperil Beijing’s hard-won victory in linking “space weapons” talks to the CD’s much higher priority negotiating mandate on fissile materials: China suggested that the CD’s new “agreed programme of work” not be mentioned in textual comments about the CD’s paralysis.

The 2010 “outcome document” agreed at the end of the Review Conference duly reflected this lingering sentimentalism about the CD as the international community’s favorite vehicle for treaty-universalist approaches to disarmament.  The text expressed “deep concern” that the CD had been unable to break its now-traditional paralysis, but rather than suggesting an alternative path, the document simply urged – yet again – that the CD get back to work “without delay.”  As the NAM had demanded, the 2010 text explicitly endorsed the CD’s current negotiating mandate, and it even called upon that body to move into new territory by beginning work on global security assurances.

The Left’s growing disillusionment with the treaty-universalism, however, is becoming increasingly noticeable – and it is not limited to the CD.  Activists are also starting to realize that their long-cherished objective of a CTBT may be running aground as well.  When it was “just” a question of evil Republicans in the United States Senate voting down U.S. ratification in 1999, the CTBT became an international rallying cry, and as much a catalyst as an obstacle for disarmament activism.  The anti-CTBT Senate vote presented them what they felt was the perfect foil for political mobilization against America’s nuclear posture, and a marvelous excuse not to worry about whether countries such as North Korea, Iran, India, Pakistan, and China could be brought aboard pursuant to the CTBT’s requirement that all these states ratify the treaty before entry into force (EIF).  Now that the current U.S. administration has uncritically embraced the disarmament orthodoxy and pledged CTBT ratification, however, things aren’t seeming so simple.  With it becoming increasingly apparent that the Democratic Party’s daunting supermajority in the U.S. Senate has been or will be squandered, some observers have even begun voicing doubts about U.S. ratification at all, while most observers are starting to recognize that EIF seems – is there a polite way to put this? – somewhat unlikely anyway.

At the 2010 RevCon, U.N. Secretary-General Ban Ki-Moon gave voice to the disarmament community’s growing frustration with the ratification-based EIF requirements built into the CTBT, openly calling for governments to consider “an alternative mechanism” for bringing the treaty into effect.

Moon’s comment, of course, represents no softening of commitment to the idea of a test ban – a measure that has been a cherished goal of the disarmament community since it was championed, albeit somewhat disingenuously, by Indian Prime Minister Jawaharlal Nehru not long before the commencement of India’s own nuclear weapons program.  But the Secretary-General’s palpable frustration with the EIF procedures built into the Treaty seems clearly to illustrate a growing disenchantment with the ideology of traditional treaty-universalism.  Could one imagine an approach to a test ban through more ad hoc and non-universal processes, in ways analogous to pursuing the landmines treaty or an FMCT outside the CD?  Or the way in which the disarmament community has approached global nuclear weapons abolition for many years in a crabwise fashion, through the promotion of what are in effect “islands” of nuclear-free rectitude by means of regional (or even country-specific) nuclear weapons free zones (NWFZs)?  Time will tell, but if U.S. ratification and (especially) CTBT entry into force are now coming again to be understood as no more than distant prospects, there will be plenty of time to debate such questions.

III.            A New Perspective?

Don’t get me wrong.  I do not mean to suggest that the disarmament community is turning, en masse, against the treaty-universalist remedies its members have long prized.  The RevCon in New York, for example, still saw numerous countries speaking out in favor of prompt agreement upon a “Nuclear Weapons Convention” – a draft of which Costa Rica in fact introduced as a working document at the Conference. This proposed treaty would come into force after ratification by all nuclear weapons states and “all nuclear capable states,” and would give nuclear weapons possessors one year to cease specified activities and both “disable” and (redundantly) “de-alert” their nuclear weaponry.  After an additional year, all weapons systems would need to be removed from deployment sites, and their warheads removed, and after three more years all warheads would have to be dismantled.

The proposed Nuclear Weapons Convention (NWC), of course, is predicated not merely upon the ideology of treaty-universalism but also upon the assumption in certain quarters – an idea that dates back at least to the Kellog-Briand Pact that outlawed war in 1928 – that the global security environment can be reorganized, wholesale, at the stroke of a well-intentioned pen.  (In its consideration of how to build countries’ confidence that nuclear weapons abolition is in fact in their security interest and that the NWC would not be a dangerous exercise in wholesale naïveté, the draft NWC merely asks parties to engage in unspecified confidence-building measures – and even then only in a limited and post hoc fashion, in order to provide reassurance that all are complying with the NWC obligations they would already at that point have undertaken.  No reference is made to the idea that states might need a deep sort of confidence in the global security environment in order to agree to the Convention in the first place.)  Placing the treaty cart before the security horse, the NWC seems to approach disarmament on the assumption that everyone shares its drafters’ confidence that placing signatures upon a congenial document acts as a kind of universal solvent for traditional security dilemmas.

As at least some disarmament activists move along the geopolitical learning curve, however, there seems to be a growing realization that this dully conventional reflex may be both mistaken and counterproductive.  As disarmament advocacy goes, for instance, the 2009 report of the International Commission on Non-Proliferation and Disarmament (ICNND) is a remarkably clear-eyed document.  In its closing pages, the ICNND Report evaluated a number of different approaches to eliminating nuclear weapons, offering fairly candid assessments of the difficulties attendant to various ideas.

The ICNND spoke relatively favorably of models based upon the approach taken in recent treaty efforts regarding landmines and cluster munitions, in which a core of specially interested parties gradually enlisted the involvement of others in an expanding circle, and in which adherence remains notably non-universal even as the effort has helped encourage reductions in the production and use of such devices even among non-parties.  The ICNND also spoke well of the idea of working for a relatively unspecific “framework convention” – a sort of general agreement-in-principle treaty, details of the implementation of which would be deliberately left open and addressed in a more step-by-step basis through flexible negotiations over time.

With regard to other approaches, however, the Report was rather less enthusiastic.  The idea of a “no use” convention, for instance, was described as perhaps being useful as “a rallying point for global civil society organizations,” but as an approach “not … likely to be taken seriously enough by enough governments to accelerate in any way the actual move toward disarmament.”  The idea of a “no first use” agreement was also found wanting: “is not clear that anything much is to be gained in advancing this agenda now … given the complexity and sensitivity of the issues involved.”  In particular, the ICNND spoke unsparingly of the aforementioned draft NWC, noting that “the issues it addresses are simply too complicated and too controversial – certainly for all the existing nuclear-armed states, but for many others as well – to be able to command the immediate broad-based support from governments that has been characteristic of the other vehicles mentioned and made them so practically useful.”

Rather than coming down squarely in support of a traditional treaty-universalist deus ex machina, in fact, the ICNND focused upon the need to steer our way through some interim phase before the world would be ready to plunge into nuclear weapons abolition.  In this transitional period, the primary focus of work would be upon “minimization” of the role nuclear weapons play in countries’ security strategies, with the aim of helping possessors “feel they have time to test the stability of security relationships while nuclear weapons are not yet completely absent.”  Rather than simply assuming a treaty’s magical capacity to declare away the security problematique, the ICNND admitted the need to

“acknowledge the reality that there will be very large psychological confidence barriers to overcome before all nuclear-armed states are willing to give up all their nuclear weapons, and that given the need to satisfy a number of geopolitical and technical verification conditions, about all of which there is great uncertainty, setting a specific target date for elimination is not likely to be credible or helpful.”

Nor was such perceptive assessment of the challenges of disarmament the monopoly of specialized NGO experts.  At the 2010 NPT RevCon, even one member of the NAM offered some notably keen insight.  Singapore’s representative explained that “[c]omplete nuclear disarmament remains a very long term aspiration.  We will not see it realized in any of our lifetimes.”  Speaking specifically of the issue of a Middle East NWFZ – but articulating the challenge in terms that speak as readily to the broader challenges of global disarmament – he noted that efforts to ban nuclear weapons “cannot ignore the broader political and geopolitical context … and must be undertaken in tandem with the creation of conditions that will make [prohibition] a realistic objective that will be regarded as being in the security interest of all states.”

Such honesty and conceptual clarity are welcome, to say the least, and pick up on some wisdom that the drafters of the NPT managed to embed in that Treaty’s Preamble: the idea that nuclear disarmament is fundamentally a challenge of global security, and not first and foremost a question simply of nuclear weaponry per se.  As the Preamble puts it, “the easing of international tension and the strengthening of trust between States” is needed “in order to facilitate” the abolition of nuclear weapons.

For all the Obama Administration’s politically correct reflex toward treaty-universalism, this idea that disarmament requires the creation of “very demanding” conditions – conditions of security, stability, dispute resolution, and effective deterrence of violations that would require a world capable of “zero” to look very different from ours today – was also expressly recognized in the recent 2010 Nuclear Posture Review Report. This is a critical point that unites the U.S. policy community, having been made in very similar terms by Bush Administration diplomats beginning in 2007 and echoed in the 2009 report of the Congressionally-appointed, bipartisan Strategic Posture Review Commission. And well it should have been.  Merely recognizing disarmament’s entanglement with broader dynamics of military power and international conflict, tension, and trust is hardly a sufficient condition for any real disarmament success, of course, but it is surely a necessary one.

In a sense, therefore, one might thus see a ray of hope in the contemporary disarmament Left’s growing frustration with the U.N. Conference on Disarmament and with the CTBT’s demanding provisions for EIF.  If recent developments signal the beginning of the end of disarmament activists’ intoxication with rigid treaty-universalism and their greater willingness to pursue more flexible and improvisational approaches – while acknowledging, understanding, and working with challenges of conflict and security that exist in the real world, through newfound seriousness in their dialogue with national decision-makers – this is to be welcomed.  Even if it takes the demise of the CD to make this point and to help catalyze constructive new approaches to wrestling with global security challenges, true friends of disarmament should have little cause to complain.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford presently served until December 2016 as Chief Legislative counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.
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