Alexander Holder

In recent years I have been fortunate enough to spend a considerable amount of time observing the interactions that take place at some of the United Nation’s major deliberative forums. Last month, I spent several days observing the negotiations that constitute the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons (CCW), and having returned home I have found myself pre-occupied with what appears to be a contradictory element to the deliberations that I witnessed during my time there. It is worth making clear from the outset that such a pre-occupation has not struck me from out the of the blue. I am a sociologist. Specifically, I am a sociologist with an abiding disciplinary concern with procedure, organisation and interaction in complex discursive environments.

As I see it, the contradiction is rooted primarily in the fact that a substantial portion of the deliberations that are conducted in the UN consists of statements which have been written in advance. Now, the proposal here is not that there is something wrong with statements being written in advance per se – indeed, given the complex relationship between state representatives and those who they represent in giving these statements, the fact that they are not spontaneously produced should probably come as no surprise. Rather, this piece arises from a concern for the ways in which such an arrangement might affect the status of the deliberations that are supposedly taking place here. In this regard, the problem can be framed as follows.

Pre-written statements and the possibility of deliberation

If it is accepted that there are periods of deliberation at the Meeting of the High Contracting Parties to the CCW in which all of the statements have been written in advance, and that those statements therefore articulate positions which have been decided in advance, then it should be accepted that there can be no spontaneous dialogue between those statements. If this is so, then it is quite possible to argue that there is no room for organic deliberations to take place during these periods. What we are left with, therefore, is not so much a deliberative forum as it is a platform from which states can list off their positions on the issues of the day.

Granted, it might well be argued that this is the best possible arrangement in what is a complex and delicately balanced form of discourse, but such a response leaves the door open to a troublesome question: Why are we here? If all of the statements have been produced in advance, and there can be no naturally occurring dialogue between them, then why does everyone need to be gathered in a room to see them presented? If the work of deliberating can have no influence on the deliberation’s outcome, doesn’t this whole affair start to seem like an empty spectacle?

As it happens, it is the intention of the remainder of this short piece to illustrate that this is not the case. Though there will be no effort to find spontaneity within the statements themselves, I will propose that state delegations play a significant role in producing organic deliberations through their management of the order in which statements are given. The suggestion here is not that this is the only work in which state representatives are engaged. Indeed, in the context of the broader practices of state representatives in these forums the ordering of statements is only a tiny fragment of their daily work. Nevertheless, by paying close attention to the sequential features of a short period of actual deliberation[1] this piece will demonstrate that, far from being merely the sum of a collection statements prepared in advance, deliberation in the Meeting of the High Contracting Parties to the CCW is a locally produced, unfolding phenomenon.

CCW Protocol III and the issue of incendiary weapons

The period of deliberation under scrutiny in the following paragraphs covers the initial statements made by delegations concerning Agenda Item 12 of this year’s meeting, which relates to ‘The Status of Implementation and Compliance with the CCW and its Protocols’. This year, statements given under this agenda item were almost entirely concerned with Protocol III of the CCW, which restricts the use of incendiary weapons in armed conflict.

In previous years, the discussion of Protocol III has taken place under a specific agenda item, but a minority of states were particularly vocal in opposing this arrangement during last year’s meeting. The continued inclusion of a specific agenda item concerning Protocol III was eventually blocked by the Russian Federation. Fortunately, A focus on ‘implementation and compliance’ remains pertinent to the discussion of Protocol III and provides space for the numerous states and civil society groups concerned with the humanitarian impacts of weapons with incendiary effects to raise these issues. As we shall see, some amount of this concern arises from Protocol III’s present limitations – particularly regarding what have been described as legislative ‘loopholes’ by which certain weapons with incendiary effects can still be used.

The status of these loopholes is a matter of ongoing contention in the CCW, with many states calling for Protocol III to be amended such that the inhumane impacts of the use of such weapons can be more effectively addressed. Importantly, the present state of consensus among the High Contracting Parties to the CCW suggests that such calls are unlikely to result in effective change for the time being. Though, as we shall see, this fact does not prevent the deliberation of these issues from taking its course.

The sequential orderliness of collaborative deliberation

With that all that being said, let’s turn to our short period of deliberation on incendiary weapons during the CCW’s November 2019 Meeting of High Contracting Parties. As a starting point, it will be wise to focus on how these deliberations are initiated. In this regard, one thing that is noticeable right away is that not just anyone is willing to do ‘beginnings’. When Agenda Item 12 on implementation and compliance was opened to the floor, of the ten states who would eventually speak, just four delegations requested the floor: Austria, Chile, Mexico and New Zealand.

Crucially, each of these delegations is firmly in favour of the re-introduction of a specific agenda item for the deliberation of issues pertaining to Protocol III, and their statements expressed this fact in strong terms. Whilst none of these statements makes any explicit reference to their shared perspective, their joint emergence at the outset of deliberations is far from incidental. These states were engaged in the collaborative production of one side of the debate that would eventually develop under the discussion of Agenda Item 12, and in this capacity their statements produced the concerted articulation of their proposal.

Now, whilst there may be a great deal more to be said about the content of those statements, the language they used, and the ways in which they framed their concerns surrounding the use of incendiary weapons, what is really significant as far as this piece is concerned is that they articulated those positions together. Not only did the formation of a bloc of thematically aligned statements placed at the beginning of proceedings imbue those statements with a deliberative force that they would have lacked independendently of one another, their placement here also dressed the stage for the responses which would undoubtedly follow them.

With that being said, by the time the last of this first wave of statements had been given, the delegation from the United States had requested the floor. This statement, which opened with the assertion that “The United States does not support adding a separate item on Protocol III to the agenda of next year’s meeting” is easily identifiable as constituting a rejection of the concerted proposals made by Austria, Chile, Mexico and New Zealand. Given our concern for the sequential features that bind these statements together into a period of deliberation, a simple observation that can be made about ‘rejections’ is that they tend to follow proposals rather than preceding them. The statement delivered by the delegation from the United States was orderly, therefore, in that it produced a rejection in ‘the right place’.

I am interested in this particular move because it illustrates nicely that the production of orderly deliberation occurs as a result of the collaboration between states who have entirely different motivations from one another as far as the content of the debate is concerned. Despite the fact that the delegation from the United States explicitly disagreed with the content of the statements delivered by Austria, Chile, Mexico and New Zealand, they were compelled to respect the orderly placement of those statements at the outset of deliberations such that their ensuing rejection of their proposals would be coherent.

In producing that rejection, the United States had completed the construction of the ‘other side’ of the debate, and though it was presumably of little interest to them at the time, everyone in the room had been witness to a marvellously orderly piece of collaborative work. Without ever acknowledging the fact that any organisational work was taking place, four states had chosen to present the same proposal at the outset of deliberations, and a fifth state had waited until they were finished before they presented a rejection to those proposals. This unacknowledged work on the part of delegations is oriented towards something that exists independently of the issue under deliberation, which is to say that it is oriented towards the goal of deliberation itself.

The gap between orderly deliberation and progress towards meaningful change

These efforts on the part of state delegations may appear, at a first glance, to be a reflection of the UN’s efforts to produce a deliberative forum in which all member states are equal and all those who wish to speak will be respectfully heard. Unfortunately, despite such appearances, a couple of simple facts remain unchanged after this year’s Meeting of the High Contracting Parties to the CCW. Weapons with incendiary effects will continue to be used in armed conflict despite their well-documented injurious effects; those weapons will continue to cause unnecessary suffering in communities that have already been devastated by conflict; and a small number of powerful states will continue to undermine the justified humanitarian concerns of the majority.

The sad reality is that all this was known from the outset. The efforts of those states who spoke towards the re-introduction of a specific agenda item concerning Protocol III did so in the knowledge that the likelihood of such a change was very slim, and the states who spoke against them were able to so in the confidence that they would eventually get their way. As a final word, I would note that whilst the orderliness that has been described throughout this piece may well be a valuable object of study in and of itself, it is important to consider its ability to serve as a veneer that masks the extent to which a small minority of states hold a disproportionate degree of power in these forums.

Alexander Holder is a PhD candidate at the University of Liverpool in the School of Law and Social Justice. Article 36 is collaborating with sociologists at the University of Liverpool on a project looking at the changing character of law in war, and the role that legal considerations play in decisions around targeting and the use of force.

[1] This period of deliberation took place on Thursday 14th November 2019. The audio is available at: http://149.202.215.129:8080/s2t/UNOG/CCW_MSP_14-11-2019_A_M__mp3.html

 

Read more

Struggling for meaning at the CCW

Human Rights Watch resources and documentation on incendiary weapons

 

Image: Detail from the wall in Room XIX at the Palais des Nations in Geneva, designed by Italian architect Giampiero Peia and executed by the Italian firm CCM, financed by Qatar. Photo: E. Minor.

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