The shock of the old

During a hiking trip last week I began reading David Edgerton's thought provoking book The Shock of the Old: Technology and Global History Since 1900. Edgerton is a technology historian at London's Imperial College. He argues that too many analyses of technological development over-emphasize innovation - and with it connotations of progress in technology from 'low' to high' - and miss the point that it's use of technology that's more salient.

If we think of the important technological developments over the last century from a innovation perspective, Edgerton says, we tend to get a list of boys' toys, for instance, the car, the airplane, the rocket, atomic technology, the digital PC and the internet. But if we look at these from a use perspective we get a different picture. In poorer parts of the world, few technologies on the list above would feature as pivotal. Instead, technologies like asbestos-concrete (still in very widespread use, despite being phased out in rich countries because of health concerns) and corrugated iron feature prominently in most places you go.

And Edgerton offers some fascinating examples of how technological development isn't necessarily linear. Recently the Concorde supersonic airliner, designed and built in the 1960s, was taken out of service leaving only slower, subsonic alternatives. Meanwhile, in Ghana there are huge shanty town magazines in which thousands of people live and work to continually repair and maintain ancient Peugeot taxis, Bedford vans and buses using the most low-tech of available tools and materials. Many vehicles in these environments have reached a state of equilibrium, in which - necessity truly being the mother of invention - they are perpetually maintained, although in very different ways from their original manufacturers' specifications and intentions. Indeed, newer vehicles are often spurned, since the complexity of modern automobiles and dependence on sophisticated components and electronics make them impossible to maintain in such environments.

Meanwhile, parts of the poor world have vaulted over technologies that in richer societies are still familiar. Telephone land lines are too expensive to install in shanty towns in many parts of Africa: mobile infrastructure is cheaper and easier to build and maintain. The locals who can afford it use mobile phones. In Kenya a few years ago, I saw people in the country-side going to vendors by the side of the road who for a small sum would recharge their mobile phone from a contraption based on a car battery, since there was no mains electricity supply. Mixing the old with the new like this are what Edgerton describes as 'creole technologies'.

It seems to me that the Kalashnikov automatic rifle has become a rather creole technology, having escaped the control and imagination of its creators, and a notorious and lethal one at that. It is the embodiment of the phenomenon that the "old will survive alongside the new and sometimes outlast it". Designed in 1947 in the Soviet Union, the Kalashnikov became the Soviet Army's standard issue automatic rifle two years later. Exported all over the world during the Cold War by the million, the AK-47 and its variants became 20th century icons of communist struggle and revolution, famed for their durability and simplicity. Edgerton says that estimates of Kalashnikov production range from 70 to 100 million made since 1947, out of an estimated total production of automatic rifles between 1945 and 1995 of 90-122 million:

"The post-Second World War assault rifles, which could fire powerful bursts of lead, and not just single shots, hugely increased the firepower of small infantry formations. The cost to civilians in war zones has been enormous. With such weapons it was easy to massacre the inhabitants of a village, as US troops did in Vietnam over and over again. Conflicts between people which might have left a few dead were now likely to kill many more. Not surprisingly, th spread of automatic assault rifles to Africa in particular has become a huge source for concern."

As its 61st birthday approaches, the AK-47 and its ilk are still killing. The spread of weapons like Kalashnikov are serious and destabilising enough. But like the proverbial 'grandfather's axe' (continually having parts replaced), such cheap and lethal weapons could be kept going in the field indefinitely once out there. The automatic rifle, Edgerton argues, "was the weapon that civilianised war much more so than the aeroplane or the gas chamber".

Therefore, it seems that if we're serious about combating the deleterious human consequences of the use of illicit weapons, there needs to be thought beyond just curbing the illicit trade. Closer control over ammunition seems an obvious starting point. It's much more difficult and capital intensive to produce reliable ammunition than it is to keep Kalashnikovs going. And, of course, guns are just fancy clubs without bullets. This is indeed something UN groups of experts have looked at and - as such groups do - produced various reports on. But real action has been thwarted for political reasons. More needs to be done.

John Borrie


References

David Edgerton, The Shock of the Old: Technology and Global History Since 1900, Oxford: Oxford University Press: 2007.

Christophe Carle, 'Small arms ammunition: light at the end of the barrel?', Disarmament Forum, 2006: 1, pp. 49-54.

Words of Wisdom

The United States took over as President of the Conference on Disarmament today. There was a lively debate with many statements lamenting the Conference's inability to break its more than decade-long deadlock and finally begin new negotiations on a treaty dealing with fissile material for nuclear weapons. One statement stood out from the others in terms of its clarity, insight and the fact that it addressed some of the themes that, on this blog, we think are important. Ambassador Glaudine J. Mtshali of South Africa delivered the statement and we reproduce it here, in its entirety, for your reading pleasure:

CONFERENCE ON DISARMAMENT
STATEMENT BY SOUTH AFRICA
24 JUNE 2008

Thank you, Madam President,

At the outset, please allow me to add my delegation 's congratulations on your assumption of the Presidency of the Conference on Disarmament and to express our appreciation for the efforts undertaken by the 2008 CD Presidents thus far to steer our discussions in this forum with a view to moving forward on a Programme of Work.

Since the tabling of document CD/1840 during March of this year, my delegation has closely followed the interventions of numerous delegations that have spoken about the CD's continued inability to agree on a Programme of Work. Many delegations have also lamented the stalemate or impasse that has existed in the Conference over the past number of years.

However, Madam President, if one looks at the Conference on Disarmament, one cannot claim that the structure of the Conference does not allow negotiations to take place. Indeed, if this were the case, then it would not have been possible for the CD to have negotiated any treaty to date. One cannot argue that if the CD's Secretariat had more staff, then negotiations will commence. One cannot say that a lack of funding prevents the CD from negotiating. Neither can one make the case that the Conference's agenda does not allow negotiations to take place.

Similarly, the Rules of Procedure are often said to be in need of a revision. But the Rules of Procedure do not prohibit negotiations. On the contrary, the Rules merely seek to structure, guide and expedite the work of the Conference on Disarmament. Nevertheless, there seems to be an abundance of experts on Rules of Procedure, just as there appears to be an abundance of interpretations of various Rules. An Ad Hoc Committee would sometimes appear to mean two different things to different delegations, whilst a Programme of Work can apparently even mean three different things to only two different delegations.

Madam President,

The consensus rule in the CD has often also been mentioned as the main reason why the Conference has not been able to negotiate anything in the last couple of years. But is it not perhaps the misuse of the consensus rule, rather than the rule itself, that has created the problem? The consensus rule does not apply itself; it is the Members of the CD that choose when and how to apply it. When it is used to block the commencement - not the finalization - of negotiations, one can perhaps understand why some refer to the "tyranny of consensus". We should therefore not forget that it is the Member States who decide whether or not to negotiate: not the "machinery", or the institution.

The lack of negotiations in the CD has been ascribed to a number of things, but many delegations and commentators often refer to the lack of political will as a cause - or perhaps the main cause - of the absence of progress in the Conference over the years. In this regard, we should not overlook the fact that we as representatives of our countries have an important role to play in recommending courses of action to our principals that may influence or shape the exercise of political will.

Madam President,

In his closing remarks as CD President last week, the Ambassador of the United Kingdom reminded delegations that the perfect should not become the enemy of the good. In fact, my delegation would go even further by saying that if we wait for the perfect Programme of Work to be adopted by the CD, we will probably wait for a very long time. None of the 2008 CD Presidents has claimed that CD/1840 is perfect: a fact that has been recognised by a number of delegations since the formal tabling of the document. My delegation certainly also does not believe that CD/1840 is perfect, much as document L.l also was not perfect in 2007. However, whilst not perfect, my delegation believes that CD/1840 represents that which is possible and practical under the present circumstances.

Madam President,

All Member States obviously have priorities, but different priorities need not necessarily be mutually exclusive. With a little ingenuity and a lot of flexibility and compromise it should be possible for us to work with - and not against - each other. My delegation therefore stands ready to join a consensus on document CD/1840.

I thank you, Madam President.

Photo Credit: Pearldirect retrieved from Flickr

Capturing the cost of cluster munitions

Last October we blogged that civil society actors seem to be waking up to the usefulness of satellite imaging technologies in trying to hold governments accountable for their actions, for instance for human rights violations or failure to protect civilians in conflict. (In contrast, the value of satellite imagery in traditional arms control was known from early in the Cold War - but cost and tight government control over access to imagery generally kept it out of the hands of non-state actors.) Amnesty International launched a website last year in partnership with the University of California at Berkeley to watch over parts of Darfur. And the American Association for the Advancement of Science (AAAS) later released similar satellite images of Myanmar.

Wired Magazine ran an interesting piece on 13 June, which presented some of the images collated by the AAAS's Geospatial Technology and Human Rights Project, which you can take a look at here. Its gallery presents a series of before and after satellite photographs spanning the globe, from Ethiopia to Zimbabwe to Myanmar, Eritrea, Sudan and even North Korea.

Among these images were two from Southern Lebanon. Conflict there in the summer of 2006 between Israeli Defence Forces (IDF) and Hezbollah saw both sides use cluster munitions - IDF launching them into Southern Lebanon on a massive scale, especially in the last few days of fighting.

A Human Rights Watch report, Flooding South Lebanon: Israel's Use of Cluster Munitions in Lebanon in July and August 2006 made considerable use of commercially-available satellite images matched with global positioning data to show the locations of cluster strikes and document their effects. In this way, satellite imagery played a role in raising the profile of concerns about the humanitarian impacts of cluster munitions, and therefore to the achievement of the Convention on Cluster Munitions (CCM) through the Oslo Process, in which Human Rights Watch was active as a member of the Cluster Munition Coalition.

And Human Rights Watch wasn't alone. Aerial and satellite photographs were also used by other NGOs on cluster munitions. Norwegian People's Aid, working with the Norwegian Defence Research Establishment and an independent explosive ordnance expert, Colin King, used similar techniques in their report, M85 - An Analysis of Reliability, which was presented and discussed in two Oslo Process conferences. And a Landmine Action UK report just out, entitled Counting the Cost: The economic impact of cluster munition contamination in Lebanon, cross-referenced satellite imagery of land use with data from the Information Management System for Mine Action (or IMSMA, which despite its title sometimes covers other forms of unexploded ordnance.)

John Borrie

GoogleEarth map of Lebanon from the Google Earth Blog.

CCM: humanitarian or disarmament treaty?

At a pre-briefing meeting in Geneva on 8 May for the Dublin conference on cluster munitions, the President-Designate of the Conference, Ambassador Dáithí O’Ceallaigh of Ireland, said that the Conference would not be a disarmament conference but a humanitarian one with a humanitarian purpose.

Throughout the Dublin negotiations, a number of states echoed this view in their statements. And many States and civil society representatives said that the Convention on Cluster Munitions (CCM) was a milestone of humanitarian law (IHL) after the treaty text’s adoption and during the closing ceremony. A few States, such as Indonesia, also mentioned that the Convention contained important disarmament provisions.

What difference does it make, whether an instrument of public international law is described as a humanitarian or disarmament treaty?

Scholarly opinions diverge over how to categorise treaties like the CCM, which contain elements typically associated with both IHL and arms control/disarmament law. These categories can be seen as mere manifestations of functional specialization among diplomats and academic experts. But the significance of this is that special rules of interpretation and practices may have more or less relevance depending on how the problem at issue is described, reflecting the object and purpose of the respective regime (for more details, see the ILC’s Fragmentation of International Law Report: details at the foot of this post). Repeated affirmation that the CCM is an instrument of IHL therefore affects the future interpretation of its provisions.

Under general rules of international law, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. The CCM’s preamble clearly supports interpreting the treaty text in conformity with principles of IHL – and even human rights law. Future State practice in the application of the treaty will play an important role. But where practice leaves the meaning of a provision ambiguous or obscure – as may be the case of Article 21 on “interoperability” – recourse may be had to the preparatory work and the circumstances of the treaty’s conclusion (sometimes known as the 'diplomatic' or 'negotiating 'record). State’s emphasis on the CCM’s humanitarian objective will be a factor to take into consideration here.

The characterisation of the CCM as a humanitarian instrument also has a bearing on the consequences of a material breach of the treaty. Normally (and particularly for arms control agreements), such as situation would entitle all or some state parties to suspend or terminate the treaty. However, suspension or termination as a reaction to a violation of the CCM will not be allowed regarding “provisions relating to the protection of the human person contained in treaties of a humanitarian character” (cf. 60 (5) Vienna Convention on the Law of Treaties).

Finally, international law recognises certain situations in which the non-performance of a state’s obligations may be justified and so – in legal parlance – not engage its responsibility. However, in IHL states are typically not allowed to invoke such “circumstances precluding wrongfulness”. With regard to the CCM, this is evidenced in the formulation of its Article 1, which obliges state parties “never under any circumstances” to engage in prohibited activities. In keeping with the humanitarian object and purpose of the CCM, states parties may not use cluster munitions either in self-defence or as a means of belligerent reprisal.

Designating treaties as humanitarian or disarmament ones may seem to be an academic exercise, but establishing and reaffirming their object and purpose through State practice does have a real effect on a treaty’s interpretation, and eventually its impact on peoples’ lives. And, stepping back from matters of legal understanding for a moment, it’s clear that - in political terms - the CCM outcome is both humanitarian and disarmament.

Maya Brehm


Reference

Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, (UN document A/CN.4/L.682, 13 April 2006, available online at: http://www.un.org/law/ilc/).

Photo credit: Kees de Vos, from Flickr.

Dealing with gun violence

Last week (June 2-8) was the official Global Week of Action against Gun Violence. Judging from the reports that have continued this week to arrive in my email inbox from the organisers of this initiative - the International Action Network on Small Arms (IANSA) - it would seem that this year has seen the most global activity by civil society to raise awareness of the problem of gun violence since IANSA launched the 'week of action' idea in 2003. Details of all of the activities that have taken place worldwide can be found here.

In the same vein, I also gave a talk earlier this week to participants in the Geneva Centre for Security Policy's course on 'New Issues in Security' on the topic of 'dealing with small arms and light weapons.' Preparing for this allowed me to reflect on the various ways in which the international community has tried to respond to the global scourge of gun violence since the issue first emerged on the international agenda in the mid-1990s.

A lot has certainly been achieved. In 2001, States party to the UN Convention against Transnational Organised Crime agreed a protocol to that convention to combat "the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition." This is still the only global, legally-binding instrument on guns in existence today. As important as it is, the protocol is essentially a crime control measure, however, and does not regulate State-to-State transfers of firearms nor, indeed, any other transfer of firearms authorised by a State.

Also in 2001, all UN Member States adopted the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. Although it is not a legally-binding agreement, it does commit States to a broad range of actions at the national, regional and global levels that, if properly implemented, could make a real difference.

Some provisions in the UN Programme of Action have also been further developed. In 2005, UN Member States agreed an International Tracing Instrument that, if properly implemented, would allow them to identify the points at which small arms and light weapons cross the threshold from the legal into the illicit realm (this is crucial since most illicit guns start their lives as perfectly legal weapons). In 2007, a UN Expert Group issued useful recommendations to States on how to prevent small arms brokers within their jurisdictions from engaging in illicit brokering activities.

Outside of this framework, the Geneva Declaration on Armed Violence and Development - a stand-alone initiative coordinated by Switzerland and subscribed to by 94 States (and rising) - aims to achieve a measurable reduction in the global burden of armed violence, as well as tangible improvements in human security by 2015.

The United Nations has developed global standards for the disarmament, demobilisation and re-integration of former combatants in post-conflict situations and has plans to develop another set of global standards for a broad range of small arms control measures. The World Health Organisation is running a Global Campaign for Violence Prevention. Finally, ambitious efforts are underway with strong support from UN Member States to develop an Arms Trade Treaty that would regulate the global trade in all conventional weapons, including guns.

All of this is just what is happening at the global level (and this is not even an exhaustive list). A lot more is happening at the regional and sub-regional levels but outlining this would require a lot more space than is available to me here. It is at the national level, however, where action has been most disappointing. Implementation by States of their existing commitments, especially under the UN Programme of Action, has, generally speaking, been weak and uneven. (UN Member States will have an opportunity to review this situation and to do something about it when they meet next month for their third 'Biennial Meeting' to assess implementation of the UN Programme of Action.)

And yet, despite all of this activity, guns continue to flow into and around the illicit market, aided by shady brokers. They continue to find their way around UN arms embargoes. They continue to be transferred in an irresponsible manner. And, most importantly of all, they continue to be misused on a massive scale, leaving death, disability, displacement and destitution in their wake.

There are no simple, 'one-size-fits-all' policy solutions to the complicated problem of the proliferation and misuse of guns. A full three-quarters of the world's estimated 875 million firearms are thought to be in the hands of civilians. Two thirds of the 300,000 or so killings carried out each year using guns happen not in traditional 'armed conflict' situations, but in the context of criminality and inter-personal violence. And there is no simple link between the availability of guns and their misuse.

Despite having been on the international agenda for more than a decade now and despite a lot having been achieved during that time, we are still in the relatively early stages of really getting a grip on this problem. Focusing on the effects that guns have on people - as the global week of action does - is a useful way of setting priorities for the next decade of action on this issue.

Patrick Mc Carthy


Video credit: "Stop the bullets. Kill the gun." Film by Choice FM available on the IANSA Global Week of Action website.

CCM: In the spirit of Sigur Ros

In some recent preceding posts on this blog, we've offered analysis concerning the interoperability provisions of the new Convention on Cluster Munitions (or CCM for short), particularly Article 21.

Further to these posts, we thought it would be useful to reproduce here the text of Iceland's statement to the closing session of the Dublin negotiations on 30 May - for two reasons. The first reason is that we thought it was a particularly sensible statement. The second reason is that it was written and delivered by noted international legal expert and Icelandic ambassador, Gudmundur Eiriksson.

Statement by the Government of Iceland upon the adoption of the Convention on Cluster Munitions Dublin, 30 May 2008

The Government of Iceland fully supports the Convention on Cluster Munitions adopted in Dublin today and expresses its appreciation for the cooperation which has led to this result.

Although many of the provisions of the Convention reflect the need to reach political compromises during the negotiations, the States concerned, having agreed on the form of a legally binding treaty, have brought the results into the realm of international law. States Parties will thus be guided in their interpretation and application of the Convention by the rules of international law, in particular, International Humanitarian Law and the Law of Treaties, including the overarching principle of good faith performance (1969 Vienna Convention on the Law of Treaties, article 26), with the concomitant rules on State Responsibility, including on attributability (e.g. International Law Commission Articles on State Responsibility, Chapter II).

Specifically, the language in Article 21 on relations between States Parties and States not parties to the Convention was drafted to deal with particular concerns on the operability of the Convention in cases where a State Party engages in military cooperation with a State not a party to the Convention. While the article sets out an appeal to States which are not parties to join the regime of the Convention, it recognizes the need for continuing cooperation in what is hoped will be a short transition period. This intention is captured clearly in paragraph 3 of the Article which should not be read as entitling States Parties to avoid their specific obligations under the Convention for this limited purpose. The decision to reinforce this position by listing some examples in paragraph 4 cannot therefore be interpreted to allow departures in other respects.

We've highlighted in italics some legalese in Iceland's statement we think will be particularly important in the course of implementation of the CCM. In plain language what it means is that, as a general principle of international law, states parties have to give effect to the obligations assumed under the CCM, and that they are responsible for activities over which they exert effective control - whether or not these are conducted together with other states or international organisations. In other words, states are responsible for what they actually control, and not for what they don't.

John Borrie & Maya Brehm


Picture of wrecked American plane in Iceland, from the Icelandic band Sigur Ros's beautiful recent documentary film Heima.

Ripples from Dublin

It was a bit of an anti-climax coming back to Geneva following the historic breakthrough in Dublin last week that led to the adoption by 111 States of a new, legally-binding Convention on Cluster Munitions (CCM). (This will be opened for signature in Oslo in December and will enter into force as soon as 30 States have ratified it).

After the suspense, drama, emotions and celebrations of Dublin, getting back to ‘business as usual’ in Geneva has not been easy. Not that most Geneva-based disarmament diplomats have had any choice in the matter: On Monday morning it was straight into a week of meetings of the Standing Committees of the Anti-Personnel Mine Ban Convention. After two weeks of intense negotiations on cluster munitions, a further week of implementation discussions on landmines would not seem to me to be the ideal way to wind down. But the disarmament calendar has no mercy this year it seems.

The Conference on Disarmament (CD) also continues to plod along, trying - valiantly but with ever decreasing vigour it would seem - to break its now 11-year deadlock. Observing the CD's public plenary meeting on Tuesday morning was a rather surreal experience. The room looked strangely empty (probably due to the intersessional meetings of the Mine Ban Treaty going on at the same time down the street). Although this was the first CD meeting I’d managed to get to in over a month, the tone and tenor of the statements were much the same as the last ones I had heard. Nothing’s changed. The deadlock remains.

In the middle of proceedings, the Irish representative lobbed into this stagnant pool a report of what had happened in Dublin over the previous two weeks: A new treaty banning a whole class of conventional weapons; agreed in 18 months; setting a new norm and a new standard of international humanitarian law that will protect civilians and assist victims of these weapons. The contrast exposed by this statement could not have been starker, as was recognised by the CD's current President, the UK, who said that the success of the Dublin conference "flows directly from dissatisfaction at the existing international architecture for arms control and disarmament's ability to grapple with these issues" (see the 'Reaching Critical Will' CD report of June 3).

It will be interesting to see what ripple effects, if any, the Dublin negotiations will have on other areas of disarmament and arms control, including, but not limited to, the CD. Minds are already turned to this question. In its closing statement in Dublin, for example, Norway wondered how the lessons of the Oslo Process on cluster munitions could be applied to revitalising other areas of disarmament and arms control. Many others would like to know too, and this has, of course, been the focus of research by my Disarmament Insight colleagues at UNIDIR's Disarmament as Humanitarian Action project.

As foreshadowed in our last DI post, it will be particularly interesting to see the impact that the new Convention on Cluster Munitions will have on the remaining 5 weeks of negotiations that are scheduled to take place this year in the framework of the Convention on Certain Conventional Weapons (CCW). The CCW, as reported in previous posts, is negotiating a 'proposal' on cluster munitions intended to balance military with humanitarian concerns. Many of the States that have just adopted the new Convention banning cluster munitions are also party to the CCW. Some of the big users and producers of cluster munitions that did not participate in the Dublin negotiations - such as the US, China, Russia, India, Pakistan and Israel - are too.

This should create an interesting dynamic when the CCW meets again in July. States that were in Dublin could find themselves in the awkward position in the CCW of negotiating relatively weak provisions on cluster munitions when they have themselves already agreed to ban them. States that were not in Dublin might wonder why they are negotiating with other States that have already committed themselves to standards that are much higher than the CCW is every likely to achieve.

The question then is, does the CCW still have something to offer on cluster munitions? I think yes. The Dublin conference focused on the weapons themselves - particularly on their humanitarian impact - and banned them. The CCW, given its membership, will not achieve this and is not attempting to do so. However, the CCW could make a contribution by seeking to moderate the behaviour of States that possess cluster munitions but that have not (yet) agreed to ban them. This could include strongly urging these States never again to use cluster munitions and/or getting them to sign up to strict regulation of their (potential) use of cluster munitions in the future (although we know that any further use of these weapons will result in severe condemnation by the rest of the international community).

Any contribution that the CCW can make along these lines cannot, however, conceal the fact that almost three-fifths of UN Member States have already agreed to ban cluster munitions. The weapon is already well and truly stigmatized and it will be this that defines the debate from now on, rather than anything the CCW might be able to achieve in the time left to it this year.

As a colleague of mine asked me this week: What do you get when you take the CCW and turn it upside-down? The CCM!

Patrick Mc Carthy


Photo Credit: The Dublin Spire by IrishPics on Flickr.

Cluster ban treaty: 'interoperability' in context

There has been a lot of media coverage of last week's agreement in Dublin on a Cluster Munition Convention - a groundbreaking agreement that prohibits cluster munitions that "cause unacceptable harm to civilians".

Some of this media coverage has been thoughtful, measured and insightful. Indeed, some journalists, especially a number from Japan (for instance, see here), have followed the Oslo and UN Convention on Certain Conventional Weapons (CCW) processes closely for many months now and are well aware of their many nuances. Certain other media coverage has been less thoughtful, and sometimes even misguided.

I guess this is to be expected when overworked journos are under pressure to produce copy quickly for the general public, which captures the Dublin negotiation's essential elements. But it's hard to communicate something accurately when you don't properly understand it, especially on the vexed issue of so-called interoperability (Article 21 on "relations with states not parties to this Convention" - for relevant Dublin documents see here).

The Convention's interoperability provision has been held up in some news stories as a massive loophole - The Times of London even led with a story that the British Prime Minister "Gordon Brown blows a loophole in ban on cluster bombs". To be sure, in a perfect scenario, it would be better not to have such a provision in a treaty and international legal experts I have spoken with are a mite unimpressed with the clumsy wording of Article 21. Bonnie Dochety, a Harvard academic and Human Rights Watch legal researcher described Article 21 as "a step backwards".

But let's see it in context here. For one thing, it's wrong to single out the UK. Concerns to ensure that states party to the new treaty could continue to interoperate with non-members were widely held, including by Oslo Process core group countries such as New Zealand and Norway, as well as some countries of the South. And it's no secret that a number of American allies - by no means only the UK - were consulting frequently with their American counterparts during the Dublin negotiations. Given that they are military allies, this is only to be expected, and is no cause for surprise, let alone scandal among those involved in the Oslo Process.

Interoperability has, meanwhile, also been an issue in the context of the 1997 Anti-Personnel Mine Ban treaty throughout its implementation. The Mine Ban Treaty process has depended on national statements interpreting its prohibitions on things like "assist", "encourage" and "transfer" in its Articles 1 and 2, but unanimity has never been achieved. The new Cluster Munition Convention has managed to improve on the Mine Ban Treaty's provisions for helping victims and in other areas - its not unreasonable to expect some governments want to achieve greater clarity on the issue of interoperability too.

Moreover, concerns about jurisdiction and state and individual liability have cropped up in recent years in a number of areas, not least in how detainees have been transferred in the so-called Global War on Terror. For better or worse, the cluster ban treaty's interoperability provision reflects the times we're living in.

...Again, this is not to say Article 21 is optimal. But three points, which haven't come out clearly in the media, are salient here. The first point is that it's now a matter of treaty implementation to ensure interoperability doesn't act as a loophole in the cluster bomb treaty - an issue to be confronted whether the Article 21 provision existed or not. The fact that the provision does exist, unlike in the Mine Ban Treaty, will at least form some benchmark for monitoring. As Bonnie Docherty further pointed out:

"The codification of a legal precedent qualifying the prohibition on assistance is unfortunate for the development of future weapons treaties, but in practice it is unlikely to cause a humanitarian problem. States can still make declarations explaining their understandings of the provision, and the United States will likely bow to political pressure and not put their allies in awkward positions."

I agree. And the fact that Article 21 is news can be seen as a good thing: it raises attention to an issue of implementation that would otherwise not be on the public record, and might be slid under the carpet.

The second point is that the cluster ban treaty will have a stigmatizing value over the longer term, even if it is below the media's collective radar most of the time. Parties to the treaty will have to spell out their treaty commitments every time they interoperate with a non-party, which will be a continual reminder of the stigma attached to using cluster munitions.

And, thirdly, the interoperability provision is part of an overall package: as one ICRC colleague put it to me: "If I were playing baseball, I'd call this a 6-1 win, rather than 7 runs to zero. Nevertheless, it's a good day on the ball-field." In addition to the various strong provisions mentioned earlier, the treaty has a robust, cumulative definition of cluster munitions.

Some media stories have been quick to point out that there is an eight year period until cluster munition stockpiles have to be destroyed. But those acceding to the cluster ban treaty are actually obligated to destroy their stockpiles "as soon as possible and no later than eight years after entry into force of this Convention" (my italics), and signatories are obliged not to act against the treaty's object and purpose in the meantime.

Importantly, a formal transition period didn't make it into the cluster ban treaty: once states accede to it, they won't be able to operationally use their stocks of cluster munitions or transfer them on to others for use. Countries like the UK, Germany and France, which have historically used cluster munitions, are already unilaterally moving to take much of their stockpile out of service right now. Gordon Brown's announcement toward the end of the negotiations that the UK would destroy its M85 and M73 cluster munitions was a hugely important positive signal of commitment.

So, let's keep things in perspective: the cluster ban treaty is good news, whatever the cynics say. It will be interesting to see what all of this means for the CCW's work in July.

John Borrie
Photo of a random old bomb at the Warbirds Museum in Wanaka, New Zealand.