Disarmament Insight


Wednesday, 17 September 2008

Run with the Hare and Hunt with the Hounds?

This blog has repeatedly reported on the two “complementary and mutually reinforcing” processes currently underway to address the humanitarian impact of cluster munitions. The Oslo Process, which culminated in the adoption of the Convention on Cluster Munitions (CCM) in May this year, and the Convention on Certain Conventional Weapons (CCW) which has mandated a Group of Governmental Experts (GGE) to “negotiate a proposal to address urgently the humanitarian impact of cluster munitions”.

In November, the GGE will meet for the last time this year, perhaps producing a Protocol VI on cluster munitions. The CCM will be opened for signature in Oslo a month later. For States that intend to sign the CCM in December, some interesting legal questions arise as to the CCM’s relationship with a future CCW protocol on cluster munitions.

Defeating the Object and Purpose of a Cluster Munitions Ban?
States that sign the CCM become bound by its provisions as soon as the treaty enters into force for them through ratification. Until such time, all signatories are under a legal obligation not to defeat the CCM’s object and purpose (art. 18 Vienna Convention on the Law of Treaties (VCLT)). As such, they may not engage in actions that undermine the CCM’s aim “to put an end for all time to the suffering and casualties caused by cluster munitions”, to ensure the rapid destruction of cluster munitions stockpiles, effectively and efficiently clear cluster munitions remnants and to ensure the full realization of victims’ rights – in short to completely ban cluster munitions.

In all likelihood, a protocol on cluster munitions emerging from the CCW will be much more permissive than the CCM. The transfer and even the use of many existing types of cluster munitions would be allowed in certain situations, in particular during an initial “transition period” (see our last blog). Are CCM signatories that continue to partake in negotiations on a CCW protocol (in case no text is agreed in November) and that sign or ratify such a protocol defeating the CCM’s object and purpose? - Especially since the CCM prohibits to “assist, encourage or induce anyone to engage in any activity prohibited to a State Party” under the CCM? “It depends”, would probably be the lawyer’s answer, on whether the prohibition to encourage others forms part of the CCM's object and purpose, and on whether negotiating, signing or ratifying an instrument that regulates rather than prohibits cluster munitions is in itself an act of encouragement – encouragement being quite an open concept.

A Succession of Treaties on Cluster Munitions.
Under the assumption that the CCM enters into force before a future CCW protocol, how will that impact on the CCM?
In accordance with the Vienna Convention on the Law of Treaties, the CCM’s provisions will prevail over those of the CCW protocol only if the CCW protocol provides that “it is subject to or that it is not to be considered as incompatible with” the CCM (art. 30 VCLT). If however - as is presently the case - both treaties are silent on their mutual relationship, the provisions of the earlier treaty - most probably the CCM - will only apply “to the extent that they are compatible with the provisions of the later treaty”, i.e. the CCW protocol. Depending on how this “compatibility” requirement is interpreted, the CCM’s impact could be significantly reduced. For instance, if the CCW protocol allows the use of cluster munitions with a self-destruct mechanism (such as the M85, which wreaked havoc in Lebanon), the CCM’s obligation never under any circumstances to use cluster munitions would be incompatible and would simply not apply.

States wishing to prevent this could clarify in the CCW protocol’s text that its provisions are without prejudice to any more restrictive rules on cluster munitions by which the parties are bound. A phrase reserving the continued applicability of international humanitarian law (IHL) is already included in the Chairman’s draft text (art. 1(4)):
This Protocol is without prejudice to existing or future international humanitarian law [which provide for stricter obligations or which have wider applicability] [applicable to the High Contracting Parties establishing [stricter] obligations][which specifically addresses the subject matter of this Protocol].
To avoid ambiguity (Is the CCM an IHL treaty, a disarmament treaty, or both?) the brackets in this paragraph could be removed and a specific reference to a cluster munitions treaty binding on the parties could be introduced. Additionally, parties to the CCM could declare upon signature and/or ratification of a CCW protocol that the CCM continues to govern their mutual relations. The provisions of the CCW protocol would then only apply to the relations between States Parties to both treaties on the one hand and States Parties to the CCW protocol only on the other.

Complementary but Mutually Exclusive?
Under international law, States have to perform all treaties they are bound by in good faith. Assuming that some States will in the future be bound both by the CCM and a CCW protocol on cluster munitions, how will States implement two differing sets of rules on cluster munitions?

Clearly, the CCM is wider in scope than any future CCW protocol on cluster munitions. The CCM applies at all times, whereas a CCW protocol will probably only apply during international and non-international armed conflict. Furthermore, the CCM binds State parties in their relations to all other States and reservations are not permitted, whereas a CCW protocol will normally not govern the relations between a State Party to the protocol and a State not party to it. Reservations and objections to those reservations will further bi-lateralise treaty relations under the CCW protocol. Finally, the CCM bans all activities with weapons it defines as cluster munitions (with few exceptions), whereas the CCW protocol will probably only regulate or ban a portion of the weapons it defines as cluster munitions (although its definition of what weapons are cluster munitions is wider). Given the CCM’s broad scope, States bound by both treaties are unlikely to violate the CCW protocol by simply applying the provisions of the CCM in all aspects regulated by both treaties.

As mentioned above, however, once the CCM enters into force, States Parties to it are under a legal obligation never under any circumstances to “assist, encourage or induce anyone to engage in any activity prohibited” under the CCM (art. 1(c)). As but one example of a potential conflict, in the latest draft of the GGE Chairman’s room paper there is a provision (art. 1(4)) that encourages (Option A) or obliges (Option B) States “in a position to do so” to “facilitate the exchange of equipment, material, and scientific and technological information” to improve cluster munitions. Clearly, such assistance would contribute to the development, production, stockpiling, transfer or use of cluster munitions that are banned under the CCM. Providing assistance in this way must be considered a violation of the CCM.

One way out of these conflicting obligations for States Parties to both treaties is to argue that they are not “in a position to” facilitate technology exchange. Another, somewhat cynical argument is that in military cooperation and operations with States not parties to the CCM, technology exchange is allowed under infamous article 21 of the CCM (see our previous posts). That, however, would probably contravene the obligation on CCM States Parties to promote the norms of the CCM in situations of military cooperation with non-party States (art. 21(2)).

Legitimize or Stigmatize?
After 3 December 2008, CCM signatories have to give some serious thought to whether their continued participation in negotiations of a “weak” CCW protocol and eventually its signature and ratification are compatible with their obligations under the CCM. If States end up being bound by both instruments they have to clearly address their mutual relationship so as to avoid replacing the CCM with a subsequent “weaker” CCW protocol. As to the substantive obligations, the CCM’s provisions, which are likely to be wider in scope and more restrictive, will in practice overshadow those of the CCW protocol. All this raises serious doubts about the added benefit of negotiating and joining a “weak” CCW protocol on cluster munitions.

This should, however, not be a reason for States wishing to urgently and effectively address the humanitarian impact of cluster munitions to defer signature of the CCM until after a CCW protocol has entered into force - especially as such entry into force may be a long time in coming. Rather, States should sign the CCM and, if they remain engaged in the CCW process, do their utmost to ensure that any future CCW protocol on cluster munitions does not legitimize weapons that the CCM bans. A strong, though partial solution, such as a complete and immediate transfer ban on all cluster munitions, would be one solution.

Maya Brehm and Virgil Wiebe.

Photo Credit: "Dog 'shooting' rabbit" by Kaspar's Butlers on Flickr.