What to Expect from Next Week’s Fifth CCW Review Conference Focusing on Lethal Autonomous Weapons

On Monday, the Fifth Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW) will kick off in Geneva and focus on Lethal Autonomous Weapons Systems (LAWS). The Review Conference is important for what will be discussed next week, as well as whether – and how – States Parties agree to discuss LAWS moving forward. The spectrum of possible outcomes ranges from the very unlikely extreme of States Parties deciding to end the CCW LAWS discussion to the other end of approving a mandate to negotiate a Protocol to CCW regulating or even banning LAWS. The most likely outcome is in between: The Review Conference will agree to establish a Group of Governmental Experts (GGE) to continue the international LAWS conversation in 2017. Preparing for next week, here is an explanation for why and how the CCW Review Conference is considering LAWS and what to look for in terms of outcomes.

CCW Review Conferences take place every five years so that the States Parties and signatories may review the status and operation of the Convention and its five protocols (I-Non Detectable Fragments; II-Mines, Booby Traps and Other Devices; III-Incendiary Weapons; IV-Blinding Laser Weapons; and V-Explosive Remnants of War). Ambassador Tehmina Janjua of Pakistan will chair this, the fifth such review conference.

CCW States Parties agreed on a LAWS mandate in 2013 and held experts meetings to discuss LAWS in 2014, 2015 and earlier in 2016. The result of the 2016 meeting was that the CCW States Parties recommended that next week’s review conference “may decide to establish an open ended …GGE….to explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS, in the context of the objectives and purposes of the Convention, taking into account all proposals – past, present and future.”

What to look for next week:

1) The big question is will the Review Conference approve a LAWS GGE?

While a LAWS GGE seems the most probable outcome, it’s important to remember that the CCW utilizes a consensus approach, meaning a single State Party may block action. One State Party blocking a GGE seems unlikely, though the possibility that Russia might do so merits consideration. On October 20, 2016, a Russian representative, addressing the United Nations General Assembly First Committee (Disarmament and International Security), explained that Russia has “major doubts regarding the advisability of establishing a [GGE] on [LAWS].” So the answer to the big question may depend on whether Russia will oppose a GGE (which would mean no GGE). If Russia doesn’t block a GGE, the question shifts to the parameters of the GGE mandate.

2) What could the mandate of a LAWS GGE look like?

By itself, a GGE would constitute a departure from the CCW LAWS status quo of the last three years and informal experts meetings. How significant a departure will be measured in terms of the mandate language and time allocated.

On language, the April 2016 Experts Meeting’s recommendation was layered in generality, that a GGE would “explore … possible recommendations on options” related to LAWS. You can fit, or exclude, almost anything within such amorphous parameters. On the one hand, the language says nothing about a mandate to negotiate a CCW Protocol on LAWS. On the other hand, a Protocol could constitute a recommended option.

In terms of time allocated, what will be the duration and frequency of the GGE and its meetings? For example, the CCW States Parties discussed LAWS in 2014, 2015 and 2016, in one-week intervals each year. If the GGE met for more than a week in 2017, it would be notable. While it might not sound like much, the amount of time and effort required (by CCW staff, the chair and their national staff, and States Parties delegations) in the lead up to, and after a week of discussions, is considerable, and also costly.

Funding issues threatened to derail the Review Conference even occurring, and may yet impact the length of any GGE. As the CCW website explains:

A new administrative system introduced at the United Nations at the request of the Member States does not allow the holding of extra budgetary activities if the necessary funding is not available in advance. In other words, it is no longer the case that States can pay for a conference after it has taken place. The current available funds for the Review Conference show a serious shortfall in funding. In order to go ahead with the Review Conference, the United Nations requires all High Contracting Parties and observer States to pay both their outstanding arrears and estimated costs for 2016 by 10 November 2016. (bold in the original text)

The November 10 deadline has obviously come and gone. As of November 30, the UN reported that the CCW was operating at a deficit of roughly $163,000, with 54 of the 123 States Parties having “outstanding contributions,” meaning they still owed funds. The outstanding contributions range from $2.69 (purportedly owed by the Democratic Republic of the Congo) to $194,287.44 (Brazil) and varying amounts in between. But how strict is the new administrative system (or it’s implementation)? We shall see. There will either be a rush of last minute payments or the UN will allow a State Party who still owes money to participate in the Review Conference anyway. What we likely won’t know, but should consider, is whether and the extent by which the requirement that funding be available in advance of a GGE impacts its duration. 

About the Author(s)

Chris Jenks

Assistant Professor at the SMU Dedman School of Law, Formerly Served in the United States Army, Former Chief of the Army’s International Law Branch in the Pentagon Follow him on Twitter (@ChrisJenks_SMU).