Disarmament Insight


Tuesday, 3 June 2008

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.