CCW: Hark, a new Chairman's text

In our post of 24 October ('A Global Year of Cluster Munitions') we noted that preparations are underway for the fifth round of expert talks as part of the UN Convention on Certain Conventional Weapons' attempts to "negotiate a proposal" on cluster munitions. One element impatiently awaited was a new text by the Chairman of the group of experts, Ambassador Bent Wigotski of Denmark, containing his take of a possible draft protocol.

At an informal consultation earlier this week, and having just arrived that morning from UN 1st Committee in New York, Ambassador Wigotski told those present that despite delays, he would bring out a new text before the end of the week. And so he has. As of earlier today this text could be downloaded from the webpage of the UN Office for Disarmament Affairs in Geneva.

A key Article in this Chairman's text - as he highlighted at his informal consultation - is Article 4, which contains general prohibitions and restrictions on cluster munitions. These were always likely to be less comprehensive or far-reaching than those of Article 2 of the Convention on Cluster Munitions (CCM) agreed in Dublin, Ireland on 30 May in view of the CCW's membership (including some big cluster munition user and producers who shunned the Oslo Process). The formulation of these provisions became a key point of difference at the preceding sessions of the Group of Governmental Experts (GGE) this year.

The newest version of Article 4 in the Chairman’s text is as follows:

"Article 4. General prohibitions and restrictions

1. It is prohibited for a High Contracting Party to use, develop, produce, transfer or otherwise acquire cluster munitions that do not meet the criteria in paragraph 2.

2. The prohibition in paragraph 1 shall not apply if:

(a) The cluster munition is capable of being directed to a pre-defined target area and each explosive submunition possesses one or more of the following safeguards that must effectively ensure that unexploded submunitions will no longer function as explosive submunitions:

(i) a self-destruct mechanism;
(ii) a self-neutralization mechanism;
(iii) a self-deactivating feature; or
(iv) two or more fuzing features.

or

(b) The cluster munition is capable of being directed to a pre-defined target area and incorporates a mechanism or design which, after dispersal, results in no more than 1% unexploded ordnance across the range of operational environments.

3. A High Contracting Party may defer compliance with Paragraph 1 of this Article for a transition period not exceeding [8/10/12/15] years from the Protocol’s entry into force for it. This deferral shall be announced by declaration at the time of its notification to be bound by this Protocol. In case a High Contracting Party is unable to comply with paragraph 1 of this Article within this [8/10/12/15] year period, it may notify a Conference of the High Contracting Parties that, with the exception of transfers, it will extend this period of deferred compliance for a period of up to [5] additional years.

4. Notwithstanding a High Contracting Party’s deferral, pursuant to paragraph 3, of the application of the provisions of paragraph 1, each High Contracting Party undertakes, immediately upon entry into force:

(a) Not to develop new cluster munitions which do not meet the requirements of paragraph 1;

(b) To use cluster munitions that do not meet the criteria in paragraph 1 only after approval by its highest-ranking operational commander in the area of operations;

(c) To take steps in any design, procurement, or production of cluster munitions to minimize the unexploded ordnance rate or incorporate additional safeguard mechanisms or designs;

(d) To improve, to the extent possible the accuracy of their cluster munitions;

(e) To endeavour to use only cluster munitions with the lowest possible unexploded ordnance rate, consistent with military requirements; and

(f) To complete an evaluation of the military requirements and remove the stocks of cluster munitions in excess of these requirements from active inventory as soon as possible and designate these stocks for destruction.

5. The obligations in this Article do not apply to cluster munitions acquired or retained in a limited number for the exclusive purpose of training in detection, clearance, and destruction techniques, or for the development of cluster munitions countermeasures.

6. The High Contracting Parties in a position to do so are encouraged, through bilateral or multilateral mechanisms established between them, to facilitate the exchange of equipment, material, and scientific and technological information that will lessen the humanitarian impact of cluster munitions."

We have only had a preliminary look at the new text. While we commend the Chairman for his efforts in drafting a text that he hopes might be adopted by consensus as a new protocol to the CCW, we are nevertheless slightly bewildered at the formulation of Article 4. The key question in our minds is: Will this version move the different poles of opinion within the CCW on the nature of core prohibitions closer together?

For instance, we were struck by the absence of previously included provisions, such as cumulative criteria that weapons would have to fulfill in order to be allowed (similar to Article 2 of the CCM), or a requirement that all submunitions be capable of engaging single point-targets. The brackets around the concept of a transition period have now been removed. Accordingly, a state party may defer application of article 4(1) for 8,10,12 or even 15 years, and even extend that period by another [5] years, if the concerned state feels it is unable to comply. Next week’s discussions at the CCW are going to be very interesting.

John Borrie and Maya Brehm

Photo Credit: 'le ring' by sgoralnick on Flickr.