CCW: None of the above?

In late 2007, the Convention on Certain Conventional Weapons (CCW) agreed on a mandate to ‘negotiate a proposal’ on cluster munitions during 2008, if possible. Today, its fourth round of Group of Governmental Experts (GGE) meetings this year concluded, and its outputs are liberally square-bracketed - in particular, the text in Article 4, the core of a notional draft protocol.

There is nothing especially surprising about the use of square brackets in drafting disarmament agreements in negotiating processes like the CCW. (In contrast, the Convention on Cluster Munitions (CCM) agreed in Dublin in May was highly unusual in that this orthodox approach was not used.) But until today, the Chair of the GGE, Ambassador Bent Wigotski of Denmark, had mainly avoided their use in his evolving Chair’s papers presented periodically to delegations over the course of the year.

The latest Chairman’s paper, which has evolved into a working draft, effectively arrived in the hands of most delegations on Thursday morning, having been faxed to missions on Wednesday night. Reportedly, the text resulted primarily from consultations with members of the permanent five of the UN Security Council. CCW delegations spent Thursday and Friday debating that proposal, along with the articles on [storage,] [destruction,] and [transfers]. (We warned you dear reader - there are a lot of square brackets.)

Article 4 of the draft – concerning any prohibitions on use, development, production or acquisition of any cluster munition employing explosive submunitions - is odd. It would give parties to the protocol three options to choose from in terms of what submunitions it could use, develop, produce, or otherwise acquire. The weakest option allows for use of submunitions with "safeguards" that have proven not only ineffective but downright dangerous in actual practice. An example is the use of "two or more fuzing features" - something that can effectively turn a submunition into an anti-personnel landmine with an anti-handling device. The qualifier on such safeguards is that they must "effectively ensure" that unexploded submunitions will no longer function as explosive submunitions. But what in the name of humanitarian urgency does that mean?

The next option calls for a 1 percent unexploded ordnance rate "across the range of intended operational environments." Determining failure rates in testing as well as practice has proven difficult at best. And what about "unintended" operational environments?

The third option, the strongest, is based on the Oslo CCM. Even this option could lead to legal confusion because it takes from the CCM an exclusionary definition. Under the CCM, a weapon with certain characteristics (i.e. a weapon with fewer than ten submunitions, each of which weigh less than 4 kilograms and are equipped with redundant electronic safeguards) is NOT a cluster munition. Under Article 4 of the proposed CCW protocol, such a weapon IS a cluster munition, but is not prohibited. Confused? You should be, especially if you are from a delegation of a country planning to sign both treaties.

Finally, these prohibitions would not go into effect until after a long transition period [as yet to be determined], during which time use and transfer of defective submunitions could continue.

New Zealand put the question to major producers and users - what does this mean in actual practice? Which systems will be off the table as a result of the least of these options? To its credit, the United States came back to say that the practical effects of the one percent option (option B in the Chair’s paper) on stockpiles would affect nearly all of its current systems, including the entire MLRS M74 and M76 submunitions, the 155mm APCIM and DPICM (M42, M43, M46), all BLU-97s including JSOW, and MK20 Rockeye.

No other country ventured into such specifics. The Russian Federation said only that the implementation of the conditions would require it to take "significant steps in transforming the existing arsenal of cluster munitions." More specific elaboration would be welcome, but in light of earlier statements in the week that it had not used cluster munitions at all in Georgia, one has to wonder how much more forthcoming it will be.

The result of the week was the promise of a further thoroughly bracketed Chairman's text to be forthcoming in a number of weeks. Indeed, this was foreshadowed by another room paper on Article 4 circulated at the very end of the meeting. The question at this point running through the minds of some delegations in the negotiation is likely to be: "is [nothing] better than [something]?"


This is a guest blog by Virgil Wiebe. Virgil is an Associate Professor of Law at the University of St. Thomas in Minnesota, and a Visiting Research Fellow at UNIDIR. Next week DI will provide an overview of this week’s CCW meeting, but it’s Friday night and we’re going to the pub.