CCW and Cluster Munitions: Let’s Do the Time Warp Again

Stay Tuned in 2009 . . .

The Convention on Certain Conventional Weapons (CCW) 2008 cluster munition protocol saga has stopped, in order to continue. The Group of Governmental Experts (GGE) met last week for the fifth and last time this year to ‘negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations ’ and report back to the CCW Meeting of States Parties (MSP) that takes place Thursday and Friday this week.

But at 5pm last Friday evening, when the GGE should have wrapped up its work, Chairman Bent Wigotski announced that there was growing support for 'stopping the clock' in order to push the process forward. Several states, among them France (on behalf of the European Union), Japan, China, Israel, the U.S. Pakistan, Brazil, and Turkey, spoke out in support of the plan. The Swiss ambassador, President-designate of the Tenth Annual Conference of the High Contracting Parties to Amended Protocol II taking place on Wednesday this week, offered an hour out of that process in order to complete the GGE’s work. Other states were merely lukewarm or clearly against the idea of 'stopping the clock'.

Despite rather secretive efforts over the weekend and on Monday and Tuesday, the Chairman and those working closely with him were unable to secure any additional progress. On late Tuesday afternoon, Wigotski was allowed to address the delegates at the CCW Protocol V Review Conference.

He stated that he would recommend an Amendment (in bold below) to paragraph 13 of the Draft Procedural Report for the GGE:

13. At its final plenary meeting of 12 November 2008 the Group of Governmental
Experts heard reports of the Chairperson and Friends of the Chair. The GGE did not conclude its consideration of document CCW/GGE/2008-V/WP.1 and recommended to the MSP that further consideration takes place in future meetings of the GGE in 2009, including but not limited to a one week session, without prejudice to any future proposals made by delegations.

Assuming the GGE adopts this procedural report, and assuming the MSP agrees to a continued mandate later in the week, the cluster munition process in the CCW will continue to limp along in the year to come. But don’t be surprised if we have to return to these pages to report on additional twists and turns later in the week.

Stopping the Clock

So what happened on Friday? And what does it mean to 'stop the clock' in the world of international negotiations? Such a step is occasionally taken in international negotiations when there’s genuine hope for reaching a final agreement but the parties face a hard and fast deadline. Parties agree to continue negotiations, usually deep into that same night and into the early morning hours, pretending that the pre-set deadline has not passed. Examples in recent memory include the negotiations around the final declarations of the second review conference of the Chemical Weapons Convention in April 2008 and the review conference of the Nuclear Non-Proliferation Treaty in April/May 2000.

So why stop the clock here, and then go home for the weekend? The States Parties to the CCW had decided in 2007 that the GGE’s work in 2008 would end on 7 November, enabling it to report to the Meeting of States Parties on the progress made. At that meeting on coming Thursday and Friday, States Parties could extend the GGE’s mandate into next year. Failing to reach an agreement in the GGE, while a disappointment, would not prevent the possibility of future progress.

Even the Chair acknowledged during the late Friday afternoon session that he didn’t have the ambition to try to finish these negotiations. He nonetheless proposed this extraordinary step of stopping the clock in order to make it possible for a future GGE to produce a 'consensus as broad as possible'.

Misgivings about process

The praise heaped upon the Chair by some states during Friday afternoon, lauding his wisdom, professionalism and expertise stand in stark contrast to the frustrations expressed by a considerable number of states with his handling of the process.

Earlier in the day on Friday, the collapse of negotiations had been likened by one state to a funeral. Following a long afternoon, sentiments, as noted above, had changed somewhat in a hopeful direction. At the late Friday session, some states (like Canada) expressed limited support for the idea of a 'resurrection', so long as propositions made during the week and worked through by Friends of the Chair were incorporated into any new Chairman's paper. These suggestions were characterized by opponents (like Brazil) as turning the clock back to July.

New Zealand expressed a willingness to continue work, but raised a number of questions. With respect to 'stopping the clock', the delegate noted that it is not a normal procedure. It is done on occasion when there is an absolute deadline. Here there is a different situation: States Parties can agree to continue the mandate. He also asked about procedure for continued negotiations. Would there be a small group? Who would be in the group? Would there be a report to the GGE? Or to the States Parties meeting on Thursday and Friday? At what stage would that group's work be available for consideration?

Croatia voiced concern (echoed by Norway and Costa Rica) about being able to participate in ongoing negotiations on cluster munitions when faced with a full schedule of meetings in the CCW this week. In reponse to this the Chairman appealed to delegates' stamina and requested and told them to work harder: 'we’re not retirees here'.

The South African delegate raised serious objections, saying that his head of delegation was on the plane back to South Africa, and that he, too, would shortly be returning to South Africa. He saw the text as having nine lives, rather than being resurrected. 'If I’m 10,000 kilometers away the issues of stamina will not matter.' He reiterated frustrations with his and other countries being locked out of the process thus far and was not in support of more of the same. The Russians, while not going as far in their criticism, did note that the majority of their experts were flying out on Saturday – continued consultations were one thing, but negotiations another.

Mexico, Honduras, the Netherlands, and Croatia all expressed concerns about the lack of transparency and the inability to participate in the negotiations – effort was not the question, but ability to participate.

The misgivings also seemed to have the effect of driving opponents of a broad agreement back to original positions. India stated that proposals will be measured by whether they can take states closer to consensus. India also raised the issue of exceptionalism: Why was it that one category of weapons has been singled out by a convention and has since been an obstacle to progress for the GGE?

Where things stood on Friday

By the end of the week, patience on all fronts had worn thin. The Chair did not want to consider proposals to which the so-called major users and producers would not agree. States outside of the small group of countries being regularly consulted felt locked out of the process and complained about a lack of transparency. Those from non-English speaking states felt even more frustrated. Depending on one’s perspective, the Chair’s sometimes indelicate language could be taken as refreshing diplomatic frankness or rude dismissal. The expectation on Friday afternoon nonetheless was that the Chair would produce yet another draft text – the seventh if my counting is correct – to springboard into next year’s negotiations.

Monday and Tuesday’s (Non) Developments

Come Monday morning, rumors circulated that there had been ongoing consultations, with the United States, India, Brazil, the UK, France, Israel and perhaps a handful of other states being consulted. By the end of the day, no clarity had emerged. Little had leaked out about what might be found in the new text – rumors circulated that the non-text that had been floating around the EU might form some basis for negotiations. By Tuesday morning, rumors as yet to be confirmed circulated that discussions were taking place 'campus' (i.e., not at the United Nations complex). By Tuesday afternoon, efforts had failed, as reported above.

A small lesson learned from this may be that the extraordinary 'stop the clock' procedure should be used only when the moment is truly ripe for agreement. That was not the case here.

Signs of Hope

Through all of the bluster and ill will, there are some signs of glacial movement. As a close observer of the CCW for well over a decade, I take some hope from the fact that some producers and users have agreed to the CCM and are pushing for a meaningful instrument in the CCW. I also take hope from the fact that producers and users who chose to forego the CCM have felt compelled to pick up pace of the CCW and acknowledge the humanitarian problem caused by cluster munitions. The structure of the CCM (particularly in terms of the basic definition), if not yet the substance, has been taken on board. Victim’s assistance has been acknowledged as a necessary component of any new protocol. But a final accord remains beyond reach this year.

Virgil Wiebe

Video Credit: 'The Time Warp!' available on YouTube

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