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Wednesday, November 5, 2008

CCW: Update on 5th cluster munition GGE

Half-way through the latest and last week of the 2008 work of the UN Convention on Certain Conventional Weapons (CCW)'s group of experts, how are things shaping up in light of a new Chair's text released last Friday? (See our preceding blog post.)

Frankly, it is too soon to say. Reaction has been mixed. While welcoming Ambassador Bent Wigotski of Denmark's paper, some delegations complained on Monday that they had only just received it, and then only in English and not all of the official UN languages - too soon to have properly considered it and have received instructions from authorities in their home countries.

Delegations also pointed to a range of specific problems the contents in the paper pose for them, especially concerning the scope and strength of its core obligations, how cluster munitions are defined, on transfer restrictions, transition periods and the deferral of its obligations. These concerns have been expressed from both ends of the political continuum - not only from those states concerned that a protocol may conflict or undermine the Convention on Cluster Munitions agreed in Dublin in May, but from some cluster munition users and producers who shunned the Oslo Process. The U.S. delegation has said clearly that it wants a protocol achieved this session, or it would seem to some before the next administration formally takes over in Washington D.C. in January (for current U.S. policy see the Pentagon's June cluster munition news release). But Russia, Israel and Brazil have questioned several parts of the Chair's paper on the conference floor, echoed on some points by others such as China and India.

After a languid summer session in July, in which many expert sessions finished early as delegations could not seem to fill the time, and an, at times, testy further week of talks in September, the Chair is now cracking the whip: there is only the rest of this week left to stand a hope of achieving agreement on his take on a protocol in 2008. Consequently, he has been consulting furiously by means of bilaterals to try to establish whether a consensus actually exists, and whether and how these differ from the signals that delegations are sending on the conference floor. (We don't know what he is being told in those private meetings, and how much this differs from what is being said in the big room.) Meanwhile, Ambassador Wigotski's Friends of the Chair are taking the expert group through issues such as definitions in the hope of whittling away differences, but this is slow and so far with mixed results.

Going into this meeting, I thought the most likely outcome for the CCW expert group's talks on cluster munitions this year would be a continuation of the mandate to work to 'negotiate a proposal' in 2009 in view of the differences of opinion apparent on many substantive issues and the amount of convergence still needed. Even if not having achieved a protocol per se, the Chair could then justifiably claim to have advanced the CCW's work in this area.

The Chair, however, signaled very directly this week that he wants a protocol based on his text to be agreed, if not by the end of this week, then in time for the CCW's annual meeting of states in the second half of next week. His single-minded determination is not without risk - trying to force an agreement could, of course, see the work fail.

But he might also succeed. In any case, I would agree with the International Committee of the Red Cross, which observed this week that the basic criterion for an agreement of value is not, as a few states have argued, primarily whether it has all of the big users and producers of cluster munitions involved. (Comment: the structure of the CCW framework convention means such states could agree to a protocol without any intention of joining anyway, and its transition period and deferral obligation options as drafted are extremely generous, to the point where most of its obligations don't have to be implemented for years or even decades.) The value of any agreement is rather in terms of what difference it makes on the ground in reducing the humanitarian impacts of cluster munitions. Otherwise, a CCW protocol on cluster munitions could simply act as a fig leaf for business as usual concerning use of a weapon of particular and proven hazard to civilians. What will transpire remains to be seen.

Watch this space for further updates.


John Borrie

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