Cluster munitions: breaching the firewall?

This week I've been reporting on the Wellington Conference on cluster munitions, as regular readers of this blog no doubt know. Many of the discussions at the Conference, both in plenary and in accompanying informal consultations on tricky issues like defining unacceptable cluster munitions and military inter-operability, are highly technical. To the uninitiated these talks are a morass of acronyms and legal or diplomatic-speak. And, as the (incomplete) timeline I prepared above shows, there have been many written proposals and other documents circulated.

Tomorrow, New Zealand as Chair of the Conference will try to bring it to a successful conclusion, in readiness for formal negotiations on the draft Convention in Dublin, Ireland, in the second half of May. This, as I'll explain, will be a delicate task.

The Oslo core-group of countries are seeking to take a leaf out of the Ottawa Process toward a treaty banning anti-personnel mines more than a decade ago. Way back then, a conference in Brussels paved the way for negotiations in Oslo in September 1997 by agreeing on several key documents. The first was a text on which the negotiations in Oslo would be based. The second were rules of procedure governing how decisions there would be made: crucially, a significant majority would be needed to change the draft text in Oslo, which differ from the peculiar consensus rule in disarmament bodies like the Conference on Disarmament. Third, there was the so-called Brussels Declaration - the 'ticket to ride' for individual states to be admitted to the Oslo negotiation. Essentially, the Declaration committed those states subscribing to it to accept the text as the basis for negotiation and the rules of procedure on which it could be amended.

The rolling assemblage of ideas co-ordinated by the Oslo Process core-group, based on the February 2007 Oslo Declaration and influenced by inputs from countries in international meetings in Lima (May) and Vienna (December) evolved into the Wellington draft Convention text by early this year. It and the Wellington Declaration were made available in late January. The Wellington Declaration is intended to be the Oslo Process's equivalent of the Brussels Declaration. And, late today, draft rules of procedure were circulated, closely based on those for the Oslo negotiations, to be adopted in Dublin.

What does all of it mean? It appears likely that the Oslo core-group will choose not to revise the existing Wellington text of 21 January before the end of this week's Conference. Nevertheless, a group of states in military alliances with the United States have been pushing hard for their proposals, in particular on exemptions to a ban on cluster munitions, on inter-operability and to try to secure transition periods during which they can still use cluster munitions before phasing them out in favour of alternative weapon systems, as I previously reported. This loose grouping includes Australia, Canada, Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Sweden, Switzerland and the UK. Many other states are opposed to these various proposals on a variety of grounds, as they feel the eventual treaty would be weakened.

At times and on certain issues, the tone of informal discussions this week have become antagonistic. Without over-stating the extent of difficulties - none of which in substance seem insurmountable - some of these self-styled "like-mindeds" have threatened that they might walk out of the Oslo Process.

They want to penetrate the 'firewall' between general discussion at the Conference - in which the co-chairs listen to everyone's proposals and try to balance these views in their revisions of text - to see their written proposals directly expressed in text in a revised draft treaty document. This means such proposals would be difficult to remove or amend in Dublin, even though many of these proposals are minority views among the roughly 120 national delegations present in Wellington. And it raises important issues of equity: some core-group diplomats privately feared that if they took such proposals on board from certain countries on certain still-contested issues, it would become an open slather.

The likely compromise is the Wellington Declaration appending the existing draft Convention text alongside a compendium of existing additional proposals to amend. The majority of written proposals submitted this week are from European countries such as France, Germany and the UK, as well as Australia, Canada and Japan. Core-group countries themselves, such as Norway have also submitted ideas in writing.

Would this be "less bad" enough to mollify the so-called like-mindeds, at least for now? It remains to be seen. I don't think major Western democracies like the so-called like-mindeds want to walk away, however. And there were indeed many subtle signs today that a Wellington Declaration appending the existing draft Convention text as well as a compendium of existing additional proposals to amend it might be the tonic. At root, what is at issue are not differences of fundamental preference over prohibiting cluster munitions "that cause unacceptable harm to civilians", but disagreements over instrumental preference (the 'means' rather than 'ends').

I'll let you know of tomorrow's outcome.

John Borrie

Most proposals and other documents mentioned are available at the Wellington Conference website. Hopefully, the Dublin draft rules of procedure should be up there soon too.