Disarmament Insight


Monday, 16 June 2008

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


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.


Anonymous said...

If the Oslo treaty should turn out to have a higher standard than that which might be produced as a Protocol under the Certain Conventional Weapons Convention (CCW) of the Geneva Conference on Disarmament, does that mean states that signed up to the Oslo Convention first would not be morally/legally permitted to sign up to the CCW Protocol on CM?

If they could sign up to both then that would imply a double standard, if no, then does it mean those states that signed up to Oslo would not be able to have the full set of CCW Protocols in their collection 1 to 6?

Could it mean that if states wanted to sign up to a future possible CCW protocol on CM as well as the Oslo one, they would have to wait and see if a CCW Protocol emerges and, if of a lower standard, sign it first then sign the Oslo one afterwards and then do an integration/subtraction/merging exercise to arrive at a legal baseline for their national implementation legislation?

Should the CCW take on a different tack than competing with the Oslo Process - should it drop the CM issue?


N Apsey

Disarmament Insight said...

That's a very good question.

It's almost certain that the new CCM will have established a higher benchmark than the CCW is capable of reaching. The CCM effectively outlaws most cluster munitions in use today, except for small numbers of munitions using various sensor-fuzing technologies like the BONUS and SMart 155 rounds, which fall outside the CCM definition, exist only in small numbers and haven't been used in anger. There is a very wide spectrum of views about what, if anything, needs to be done in terms of restrictions on cluster munitions in the CCW. China and Russia, for example, have said they see no need for restrictions at all, and the CCW is a consensus body in terms of its practice.

It's possible that some states will say that they wish to wait to see what the CCW produces before they commit to signing the CCM. But there is considerable momentum behind the CCM and desire to see it enter into force internationally soon, including from big NATO countries like France, Germany and the UK. And the signing ceremony in Oslo in December comes after the CCW has finished its work year in November - if next month's meeting of CCW experts in Geneva fails to deliver something more concrete, then the writing will be on the wall for its efforts to produce 'a negotiating proposal' by the end of 2008, as its mandate stipulates.

The challenge for the CCW - which includes many countries who've participated in the Oslo Process - will be to find something that is credible in humanitarian terms, while working within the minimalist parameters of some of the big producers and users of cluster munitions. The CCW's Chair, Denmark, put down a paper last week containing some of his thoughts, but he admits this is not a formal proposal and needs further consultations. It's unclear if this will fly as a basis for further work. (You can download it at the UN's CCW page at www.unog.ch/disarmament - choose CCW at left, and navigate to the 3rd session of its 2008 GGE meetings and select the blue 'cluster munitions' link.)

It is a moot point whether the CCW should drop the cluster munition issue. Some argue that, by capturing users and producers who have not participated in the Oslo Process, the CCW's membership could come up with something that reduces the humanitarian impact of cluster munitions. Others are sceptical, and fear that attempts to 'clarify' existing international humanitarian law rules and 'best practice' will actually undermine existing IHL norms. Either way, it is difficult for anyone within it not give the CCW a shot, since Oslo Process countries will want to show their continued commitment to the CCW, and countries like the US have said it's the forum in which they want to work on the issue.