“In war it is not always possible to have everything go exactly as one likes. In working with allies, it sometimes happens they develop opinions of their own.”
As previous posts on this blog have foreshadowed, the issue of “interoperability” proves one of the politically most contentious and toughest to solve. After a week of informal consultations, Switzerland, as Friend of the President (FoP), passed on a text to the President of the Conference on Tuesday, which forms the basis for further bilateral consultations.
As the heading of the present draft article indicates, the issue termed “interoperability” concerns in essence the relationship between States Parties to a future cluster munitions convention and States not parties to it. Challenges of military interoperability can be seen as the result of increasing interstate cooperation in the military field, be it in the framework of a military alliance (e.g. NATO), ‘coalitions of the willing’, troop contributions to operations carried out or authorized by an international organisation (e.g. UN, EU, AU) or on a bilateral basis.
Among the causes for interoperability challenges are differences in technology (e.g. communication systems), procedures, national policies, and – of particular relevance here – differing national and international legal obligations of participating States. Many aspects of military cooperation could create problems for States Parties to a future cluster munitions convention, including: the transit of a non-State Party military aircraft through the airspace of a State Party, transport of equipment by a non-State Party through a State Party’s national territory, access to and use by a non-State Party of a State Party’s ports and infrastructure, or the establishment of military bases or prepositioning of equipment (e.g. stockpiling of cluster munitions) by a non-State Party on a State Party’s territory, joint defence preparations, joint training exercises and joint deployment of troops.
The interoperability issue has been a concern at the fore of many national delegates’ minds over the last year. A number of proposals were made relating to interoperability by various countries at the Wellington Conference in February and were included in the compendium of proposals, each of which were issued as working papers at the outset of the Dublin Conference.
According to many media reports and the scuttlebutt here, the United States (which is not participating in the Oslo Process) has put considerable pressure on perhaps as many as 115 countries to take account of its interoperability concerns. A number of European NATO countries plus Japan, Canada, Australia have said that not having such a provision would be a ‘deal-breaker’ for them, and even Oslo core-group countries like New Zealand have said such a provision is a good idea. But many other countries say they are unhappy with the way things are shaping up.
A number of working papers proposed amending the general obligations and scope of application (Article 1) of the draft cluster munitions convention. Such a solution would have been problematic for many reasons, not least because Article 1 is the home of the general prohibitions of the treaty and tampering with it would – in political terms – be as risky as … well, tampering with an unexploded submunition. By the middle of last week, however, the FoP indicated general support for leaving Article 1 alone, and either amending the national implementation Article (Article 9) or coming up with a new Article, an option which by the beginning of this week had the greater momentum.
The draft article on interoperability aims, first, at preventing, in these varying instances of military cooperation with non-Party States, the engagement of States Parties’ responsibility under international law for acts by non-State Parties that State Parties themselves cannot control and, second, aims at ensuring that members of a State Party’s armed forces (and possibly their nationals) do not incur individual (criminal) responsibility in such situations. At the same time, even States that consider such a provision to be necessary, say that they do not want to create a loophole in the convention. It is evidently not easy to achieve all this without compromising the object and purpose of the convention, or undermining the general undertaking, “never under any circumstances” to engage in a prohibited activity listed in art.1.
The draft article, as it stands now, imposes on every State Party a positive obligations to “encourage” non-State Parties to accede to the convention, to “notify” them of States Parties’ obligations under the convention, to “promote the norms” it establishes and to “make its best efforts to discourage” non-State Parties from using cluster munitions. The second part of the draft article is more controversial and has been the subject of debate in formal and informal sessions. A previous version of the text was criticised for being too complex, lengthy, unclear, unpractical, or was considered to undermine the goal of stigmatising cluster munitions that cause unacceptable harm to civilians. At the same time, certain terms used in the current draft, such as ‘military cooperation’ or ‘exclusive control’ were criticised for being too vague. A suggestion to restrict the effect of the interoperability article on the provisions of article 1 concerning assistance, encouragement and inducement (art. 1(c)) only was not retained in the current text.
The implications of the current text for State Parties’ obligations relating to foreign owned stockpiles on their territory and the use of their ports by vessels transporting prohibited cluster munitions will have to be assessed in light of States’ understanding of the phrase ‘may engage in military cooperation’ and in accordance with States obligation to take all appropriate measures to prevent and suppress prohibited activities undertaken on territory under their jurisdiction (draft article 9). But is does look like under the present text a State Party may, “expressly request the use” of cluster munitions that cause unacceptable harm to civilians “in cases where the choice of munitions used” is not “within its exclusive control”, i.e. in all cases where it is not its own armed forces that carry out the attack.
Nobody expects that military interoperability will achieve substantive agreement before a final endgame in which it’s negotiated alongside the other thorny issues of definitions and a possible transition period on use. Once they see how these jigsaw pieces fit together, delegations will have to assess whether the draft treaty meets their needs as well as the humanitarian imperative of the Oslo Declaration. The next stage in that process – a composite text, in which all of the different bits of the draft treaty (including alternative options in certain instances) are placed alongside one another in the same text – is due Wednesday morning at 10am…
Maya Brehm, John Borrie & Patrick Mc Carthy
Photo: "Liquid Jigsaw" by pbrien49away on Flickr