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.

Dublin: read all about it

This morning, the President of the Dublin Conference on cluster munitions, Ambassador, Dáithí O'Ceallaigh, distributed a new draft convention on cluster munitions as a presidency paper. This paper is available at the Dublin Conference website here.

O'Ceallaigh said that about two-thirds of the text of his paper is identical to papers already distributed during the Conference over the last week-and-a-half of work. The rest reflected the outcomes of various consultations - not least an intensive burst of activity during the course of yesterday when the President and his team met with dozens of delegations individually until late into the night.

The President told the Committee of the Whole this morning that his text represents his assessment of where the balance of interests lie, and would require compromise on all sides. (This is all boiler-plate language for multilateral negotiations.) Nevertheless, he felt the draft Convention text was extremely ambitious, especially in the scope of its prohibitions and its clearance, victim assistance and international assistance provisions, and would meet the objectives of the February 2007 Oslo Declaration.

We won't provide a comprehensive overview of the President's paper here. Briefly, on some major issues of interest:

Scope (Article 1): this now captures explosive bomblets, which are anomalous in that although they are, in effect, submunitions, they would otherwise not be captured because they're dispensed from an aircraft, rather than detaching from a parent munition.

Definitions (Article 2): this provision has, if anything, become more robust. There are several criteria here. A munition must meet all of these criteria in order not to be captured by the definition of a cluster munition.

A cluster munition, in O'Ceallaigh's text, means a conventional munition designed to disperse or release explosive submunitions each weighing less than 20kg, and includes those explosive submunitions. However, it doesn't mean the following:

- A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role (this new text on air defence is a bit softer than the formulation in last week's informal consultations).

- A munition or submunition designed to produce electrical or electronic effects.

- a munition, that in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

(1) Each munition contains fewer than 10 explosive submunitions;

(2) Each explosive submunition weighs more than four kilograms;

(3) Each explosive submunition is designed to detect and engage a single target object;

(4) Each explosive submunition is equipped with an electronic self-destruction mechanism;

(5) Each explosive submunition is equipped with an electronic self-deactivating feature.

Therefore the weight formulation is back in - with a change from 5kg as originally proposed to 4kg. In layperson's terms it means all submunitions under 4kg are categorically banned. Submunitions between 4 and 20kg are allowed if they and the parent munition meet a number of stringent criteria as listed above. Any munition above 20kg is not covered by the treaty. In effect, this removes almost all weapons conventionally regarded as cluster munitions in use today, including the M85 used in the Southern Lebanon conflict in 2006. We understand that the SMART155 and BONUS sensor-fuzed munitions meet the exemption criteria and would therefore not be banned.

Clearance, destruction and risk education (Article 4): Ambassador O'Ceallaigh noted that consensus on this article hadn't been possible in consultations; the language here is his shot at a compromise.

International cooperation and assistance (Article 6): the President had directed Canada to carry out consultations to try to achieve consensus on what had been para 9/9 bis, efforts that had run into difficulty yesterday. Canada had another try, and O'Ceallaigh's text contains the outcome of those consultations in its para 10, which he told the CoW he hopes will achieve general agreement.

Entry into Force of the cluster munition convention (Article 17): the UN Convention on Certain Conventional Weapons (CCW) had an EIF threshold of 20 countries; the Mine Ban Treaty had 40. These two options dominated talks on this Article at the Dublin Conference, so the President told the CoW he had split the difference and chosen 30, to many chuckles around the room.

Reservations (Article 19): O'Ceallaigh has kept the text of the earlier draft Convention here, which does not allow reservations. As mentioned in a preceding post [link to Friday's post], this issue will be settled only as part of the final package agreed.

"Relations with States not Party to this Convention" a.k.a. interoperability (Article 21): see our preceding posts for background on this issue, especially our last one today. This text, O'Ceallaigh said, is based closely on yesterday's Swiss Friend of the President informal paper, seen by "almost all delegations as a very good basis for work." It is unclear how this will pan out. Watch this space.

There are no provisions for transition periods in the President's paper, which he said reflected the wishes of a large number of countries.

This afternoon, the CoW will resume at 15h after delegations have had a chance to reflect on the President's paper. We anticipate a long evening of meetings tonight.

John Borrie, Maya Brehm & Patrick Mc Carthy


Photo of Canadian Cluster Munition Coalition marchers on O'Connell Street, Dublin, last Saturday, by John Borrie.

Dublin: A spirit of compromise

Having observed the Dublin Diplomatic Conference on cluster munitions from a distance during its first week, I finally arrived in Dublin over the weekend and observed its sixth full day of negotiations on Monday (a new convention prohibiting cluster munitions that cause unacceptable harm to civilians is due to be adopted this Friday).

As John Borrie’s posts below illustrate, during last week, negotiators made remarkable progress on some complex but less controversial issues on the table – including, notably, the issue of assisting victims of cluster sub-munition explosions, the draft article which is being hailed here as setting a new international standard in this area. Delegations also used last week, however, to stake out quite divergent positions on some of the more contentious issues that remain to be resolved here this week. These include (1) the definition of a cluster munition (that which is to be prohibited), (2) joint military operations and other forms of cooperation with States not party to the new Convention (the so-called “interoperability” issue), and (3) a transition-period after entry into force of the Convention during which States would still be allowed to stockpile and use cluster munitions.

Whereas States used last week to stake out their initial negotiating positions on these issues in fairly unequivocal terms, the tone of the debate on Monday was quite different, with many delegations indicating a willingness to compromise on issues on which, up to now, they had taken a relatively hard line. Complaints are still being voiced in private that not enough compromises are forthcoming from the ‘other side,’ but Monday’s debate in the Committee of the Whole gave a strong indication that States participating in the Dublin conference want a Convention by Friday and that they are willing to enter into the deals and compromises that will make this possible.

This will be no easy task given the deadlines faced by the conference. Although the new Convention must be ready for adoption by lunchtime Friday, in order to have enough time to translate and prepare the convention text, the final English version must be completed on Wednesday. Let’s take a brief look then, at how things are shaping up on the three issues mentioned above.

Joint military operations / Interoperability:
The textual proposal on interoperability prepared by Switzerland (as Friend of the President) foresees a new article and would leave article 1, which contains the convention’s prohibitions, unchanged. The new article would allow States party to the Convention to “host” States not party to it, meaning that the former would be allowed maintain bases, possibly containing cluster munitions, on the latter’s territory. It would also allow a State party to the Convention to engage in joint military operations with States not party to the Convention that uses cluster munitions “so long as a potential use [of cluster munitions] in a specific operation… is out of the effective control of the State party.”

Reactions to the proposal Monday divided into two camps; those delegations that saw no place in the Convention for such a provision and those that thought more work was needed on the proposal. Switzerland convened a further side-meeting on interoperability late Monday afternoon to work further on this.

Definition of a cluster munition:
New Zealand is taking the lead as Friend of the President on definitions. The proposed article 2 contains a straightforward enough definition of what a cluster muntion is, followed by a number of exclusions specifying what they are not. The first two sets of exclusions had so far been relatively uncontroversial since they cover such things as munitions that disperse flares, smoke, etc. or that produce electrical or electronic effects. The recent inclusion in the text, at the request of the UK, of an explicit exclusion for “air defence systems,” however, caused some confusion among other delegations Monday, despite assurances from the UK that such systems would be covered by the cumulative criteria contained in article 2 (c). A number of delegations pointed out that, if air defence systems were indeed covered by another part of article 2, then there was no need to mention them specifically.

“2 (c) or not 2 (c), that is the question” was how Sweden aptly characterised the crux of the debate on definitions. Article 2 (c) currently contains a set of 4 criteria, all of which would have to be met for a weapon to escape being defined as a cluster munition and, therefore, prohibited. These are (a) that the munition contain fewer than 10 sub-munitions, (b) that it can locate and engage a point target (i.e. sensor-fuzed sub-munitions), (c) that sub-munitions have an electronic self-destruct mechanism and (d) that sub-munitions have an electronic self-deactivating feature.

There is a formal proposal on the table to delete article 2 (c) from the draft Convention text but even among those States that have proposed this there is now a new spirit of flexibility that could envisage 2 (c) remaining as long as the so-called cumulative criteria are as tight as possible. Lebanon, one of the States that proposed deleting 2 (c), on Monday showed flexibility and a possible path to a compromise solution by proposing that a requirement to review, report on an evaluate the sufficiency of article 2 (c) be built into the Convention, an idea explicitly supported by Canada and Austria.

There were renewed expressions of support for including the weight of sub-munitions among the cumulative criteria. This proposal was introduced by Norway last week but did not make it into the current proposal by the Friend of the President. The proposal is to categorically prohibit all sub-munitions that weigh under 5 kg and to prohibit all sub-munitions that weigh between 5 and 20 kg if they are not sensor-fuzed and contain self-destruct and self-deactivation mechanisms. Sub-munitions that weigh over 20 kg would be allowed. Norway circulated an explanatory note on Monday that pointed out that this weight criteria would prohibit up to 99 percent of cluster munitions currently stockpiled and 100 percent of existing cluster munitions that have ever been used in war.

Transition Period:
Germany reported back on Monday on consultations it had been holding, at the request of the President, on the question of a transition period during which it would be possible for States party to the Convention to continue using cluster munitions. There is still a great deal of opposition to this idea and Germany did not have any breakthroughs to report from its discussions with other delegations. The conference President announced that he would now hold consultations on this issue.

This is just a taste of some of the main issues discussed on Monday during what was an intense set of discussions in the Committee of the Whole. Other important developments included the forwarding of two more articles to the plenary session that will take place later in the week – article 3 on storage and stockpile destruction and article 8 on facilitation and clarification of compliance - and side negotiations, led by Australia, to finalise the preamble.

Work is proceeding well and the atmosphere in the conference seems very constructive. Delegates are acutely aware, however, of the time pressures that they are now under, made even more pressing by the frequent reminders of the conference President, Ambassador Daithi O’Ceallaigh, that “there will be a Convention by Friday.”

Patrick Mc Carthy


Photo: US Senator Patrick Leahy (D-VT), left, speaking to a CMC briefing for delegates and media Monday on "The US and Cluster Munitions." The United States is not participating in the Dublin negotiations on cluster munitions. On the right is Lord Alfred Dubs of the UK. Photo by the author.

Dublin: Treaty negotiations at the half-way point

Half-way through the two-week negotiations in Dublin on a treaty to ban cluster munitions that cause unacceptable harm to civilians, where do things stand?

As noted in preceding posts, there are a couple of big issues - defining cluster munitions that cause unacceptable harm, and military interoperability among them - that are claiming a lot of attention and are tough nuts to crack. Indeed, much of my week has been spent observing meetings working on these topics. But that shouldn't be taken to mean that considerable progress hasn't been made overall. Below I provide a brief article-by-article state of play on the draft Convention text. A copy of the draft Convention text and other official documents can be downloaded here.

Article 1 (General obligations and scope of application): this Article contains the treaty's core prohibitions. Over the course of the Oslo Process there have been proposals to amend this article, most for reasons bound up with the interoperability issue. By general agreement, draft Article 1 has been left alone, with the Swiss Friend of the President's (FoP) work focusing on developing potential additional provisions on the issue of interoperability in other Articles.

Article 2 (Definitions): this article has been a major focus of attention in informal consultations. New Zealand ambassador Don Mackay has focused work as FoP on the crucial definition of a cluster munition and - more specifically - the nature of any exemption from the definition of a cluster munition under tiret (c). This afternoon he presented a new proposal for everyone to think about for the weekend, basically an earlier proposal by Germany but without the weight criteria for cluster munitions and submunitions suggested earlier in the week.

Other definitions in Article 2 were handled by Irish Colonel Jim Burke, as "friend of the friend" of the President. Considerable progress was made, especially to ensure these are consistent with other international agreements such as protocols of the UN Convention on Certain Conventional Weapons (CCW).

"Cluster munition victims", although in Article 2, were defined as part of work on victim assistance in Article 5.

Article 3 (storage and stockpile destruction): Ambassador Steffen Kongstad of Norway - FoP for this Article - reported that he was close to finalizing a new draft based on morning discussions in the CoW. Issues raised include consistency with the provisions of Article 4, and submunitions retained, ostensibly for the development of and training in cluster munitions and submunitions detection, clearance or destruction techniques, or for the development of cluster munition counter-measures. Agreement seems close, however, and it hoped that there can sufficient agreement emerging early next week for the President to transmit the text to the Plenary as a paper, to join the many other such Articles (see further below).

Article 4 (clearance and destruction): there was considerable progress here. There has been a change in the clearance deadline from 5 to 10 years.

Article 5 (victim assistance): there was a fantastic discussion in the CoW on this Article of paramount humanitarian importance this morning, following a number of consultations on this issue throughout the week. Great credit is due to Markus Reiterer of Austria as FoP on this Article: the President told the CoW today he would transmit language on this Article, which breaks new ground for helping cluster munition survivors and their families, as Presidency text.

Article 6 (international cooperation and assistance): the Irish are carrying out consultations on this, and a new non-paper was to be circulated today for discussion early next week. There is little to worry about here: it was difficult to make a lot of headway in finalizing a proposal on this Article until work on other areas of the draft Convention, such as victim assistance, clearance and destruction had made some progress, which they now have.

Article 7 (transparency measures): Irish-led consultations are underway and "going well", the President told the CoW today. This Article also depends on other articles to be sketched out in sufficient detail to move toward finalizing a proposal, especially Articles 3,4,5 and 6. Likewise, facilitation and clarification of compliance (Article 8) consultations continue, guided by FoP South Africa.

Articles 9 to 12 (national implementation measures, settlement of disputes, Meetings of States Parties, Review Conferences) have been forwarded as President's texts to the Plenary.

Articles 13 (amendments): President's texts, along with guidance from the UN's Office for Legal Affairs (OLA) have been forwarded to the Plenary, as well as one other proposal.

Articles 14, 15 and 16 (costs, signature and ratification, acceptance, approval or accession) have been forwarded as President's texts to the Plenary.

Article 17 (entry into force) has been discussed in the CoW, but the President has decided to come back to it later. In my view, this is sensible, as this a question usually settled late in multilateral negotiations, when delegations have a better sense of a treaty text overall and its implications for them.

Article 18 (provisional application): the President said no difficulties had been identified with this Article, but there is, of course, a German proposal for a transition period for cluster munition possessing states, and there are two other proposals for a separate article to the same effect. Today, the President asked Germany to consult with other delegations over the weekend with a view to narrowing differences next week. The latest Swiss FoP's proposal today circulated to the CoW still does not specify which Article interoperability text - if it is agreed - would reside in. At least 35 delegations said today that they oppose such a provision, with half a dozen or so speaking in favour.

Article 19 (reservations): this is being set aside for now, probably because it might prove to be a source of options on the interoperability issue, it seems to me.

Article 20 (duration and withdrawal) text has been transmitted by the President to the Plenary.

Likewise Article 21 (depositary) and Article 22 (authentic texts). Treaty depositary is to be the UN Secretary-General, like the Mine Ban Treaty and CCW.

There is also a proposal by one country for an additional Article on the relationship between the cluster munition convention and other treaties. It's unclear to me whether this will be taken up.

In addition to what's going inside the conference chambers, there is a lot of other stuff going on. The Cluster Munition Coalition (CMC) have been extremely active, and I'd recommend Katie Harrison's very comprehensive daily updates on the proceedings of the Dublin Conference on the WILPF website if you wish for more detail. There is a cluster munition survivor's blog I've already mentioned, a CMC/ Handicap International 'Ban Bus' blog, a daily campaign newsletter and, of course, a huge amount of media coverage of the Conference out there.

John Borrie

Photo courtesy of Mary Wareham of Aotearoa New Zealand Cluster Munition Coalition. Survivors of landmines and cluster munitions at a photo call for media in O'Connell Street, Dublin on 22 May. From left to right: Ny Nhar (Cambodia), Soraj Ghulam Habib (Afghanistan), Tun Channereth (Cambodia), Youen Sam En (Cambodia), Branislav Kapetanovic (Serbia), Pham Quy Thi (Vietnam) and Berihu Mesele (Ethiopia).

Dublin: No hysteria over criteria (yet)

As I've noted in previous blog posts, defining a cluster munition is essential to the negotiation of the cluster munition convention because its obligations and general scope are structured in such a way that what is defined as a cluster munition will be banned.

The way things seemed to be shaping up yesterday after extensive - some might say exhausting even - discussions of a variety of criteria for exemption is as follows: there is general agreement that no single criterion is enough. Instead, any solution will be comprised of multiple criteria in combination, or what is termed by those negotiating it as the cumulative criteria (sic).

Having had a run-through on Monday of elements for discussion a new outline was produced first-thing this morning, which summarised various proposals made in the Oslo Process on 'cumulative lists of criteria' marked from 'A' to 'H'.

Very soon, the argument became about whether, for example, a numerical criterion was needed and, if so, what that number should be. Strong supporters of a complete ban on cluster munitions found themselves in the slightly unfamiliar position of defending a criterion in combination that they hadn't been enamoured of in isolation. And so it goes.

As it that wasn't enough excitement (jeesh, listen to me) a written proposal was made in Tuesday afternoon notable for the fact that it includes the weight of a submunition as a criterion. This is an idea that's been floating around in the background since at least last September, and was talked about quite a bit this morning. This idea has focused minds, and has staked out a new potential parameter for inclusion in a draft definition. More numbers for the numerates.

Once the dust had settled from this bit of numerology, the Friend of the President hustled off with his happy helpers to craft some text tonight to try on delegations tomorrow morning. It puts him on track to make good on his promise to have something to offer the Irish President before the close of play Thursday, although Murphy's Law ("anything that can go wrong, will go wrong") is of course still relevant.

Other wheels have been turning too. The Committee of the Whole worked through the rest of the draft Convention text numbered above Article 2, and the President has circulated text to be transmitted to the Plenary for eventual decision on at least a couple of articles (11 and 12 that I've seen, and there may be others). Other Friends of the President have been beavering away, with meetings on issues like victim assistance and storage and stockpile destruction of cluster munitions . These efforts have thus far produced an informal discussion paper containing at least a couple of unexploded sub-issues, not least that of submunitions and cluster munitions for training and development, which is rather controversial.

Military interoperability has been interactive both privately and in a small group format. Interoperability has become a totemic political issue for some. So a first try, when it emerges, will have to have a large dollop of skill and luck to win enough hearts and minds - especially as it's bound up with the eventual outcome on the scope of the definition and, to some extent, to the phrase that currently none dare speak its name, that of transition periods.

John Borrie

Photo of Croke Park by author.

Dublin: the bunfight begins

As Patrick Mc Carthy observed in the preceding post on this blog, the Dublin Conference on cluster munitions commenced yesterday. I'm here in Dublin at the Conference throughout its duration, and a lot is going on - hence this post at midnight, and it's only the second day.

Conference proceedings got off to a smooth start on Monday morning. Consistent with Ireland's emphasis on getting down to work as soon as possible on negotiating a treaty to ban cluster munitions that cause unacceptable harm to civilians, the opening high-level segment was mercifully short. The Irish Foreign Minister, Micheál Martin, spoke. There was a video message from the United Nations Secretary-General, Ban Ki-moon. Also addressing the Conference was Ad Melkert, Associate Administrator of the UN Development Programme (UNDP), who emphasized the devastating impact of cluster munitions on development and humanitarian action. And President Jakob Kellenberger gave a hard-hitting statement on behalf of the International Committee of the Red Cross, as did cluster munition survivor and Cluster Munition Coalition representative Branislav Kapetanovic.

Irish Disarmament Ambassador Dáithí O'Ceallaigh was elected as president, as expected, and the agenda was adopted. So far so good. There had been uncertainty in the lead up to the Conference about whether its rules of procedure would be agreed without challenge - it's understood that a few (mainly European) countries had been apprehensive about the level of civil society participation in Conference talks, and they had of course probed hard in Wellington in the hope that their national proposals would be put on a par with the draft Convention text. Nevertheless, these rules were agreed without comment.

President O'Ceallaigh lost no time in setting out how he intended to proceed in leading the throng of 700 or so delegates - including from 109 or so participating states and around 19 observer states, as well as many civil society representatives - to culmination of a treaty text by 28 May. (In principle, at least, there will then be a couple of days for the treaty text to be prepared before final agreement on 30 May.)

General statements, which the President discouraged, could take place in the plenary, which would run until the speakers' list exhausted, O'Ceallaigh said. Few would be there to listen however, because from lunchtime on the first day the Committee of the Whole would begin meeting one floor below at the cavernous Croke Park facility.

O'Ceallaigh duly began taking those present in the CoW through the draft treaty text from Article 1 from 3 o'clock on Monday, spinning off trickier issues to Friends of the President as he did so. Meanwhile, most unusually (and most welcome) for a diplomatic conference of this size, the plenary wound up its speakers' list by the middle of Monday afternoon.

The two biggest challenges for these negotiations are defining what cluster munitions (which will be banned) are for the purposes of the treaty, and satisfying concerns about interoperability for states involved in the future in joint military operations. There are a host of other issues, of course, but these are the biggies. O'Ceallaigh was very clear in his opening remarks on Monday that he would make every effort to bring the Conference to a consensus on a treaty, and avoid voting. At the same time, he was very firm: there would be a treaty come Friday 30 May, he said.

With the plenary having adjourned its meeting, today the Committee of the Whole ran in parallel with informal consultations on interoperability (facilitated by Switzerland) and then definitions (New Zealand) from early this morning.

There was (to me at least) what seemed to be a significant breakthrough in these informals on the interoperability issue, which a number of (mainly Western) states have maintained over at least the last six months is a potential deal-breaker for them. There is general agreement that Article 1(c) of the draft Convention text, which is based on the 1997 Anti-Personnel Mine Ban Treaty, is not enough. Even New Zealand and Norway - two Oslo core-group countries - said so today. Moreover, there was widespread support for a separate article, to clarify and reconcile potentially conflicting obligations in Article 1 (general obligations and scope of application) and 9 (national implementation measures) of the cluster munition treaty.

The Oslo Process, and the Swiss in particular, are certainly not out of the woods and onto the meadow yet. But the interoperability challenge has now been re-framed from a question of whether there needs to be specific provision to have a common understanding on interoperability in the treaty, to how it will be drafted. The Swiss are continuing their work on this text in private consultations for the time being.

If the Swiss are expecting a tough time in developing a textual formula on interoperability in the next couple of days, Ambassador Don Mackay of New Zealand made it clear that he intends to spread the pain around in his informal consultations on definitions. These talks began at 10h30, and the Friend of the President informed delegations that informals would continue all day and every evening if necessary - starting today - until something emerged he could take back to the President. He was true to his word: today's proceedings finished at 20h30.

Time is a big constraint here: there is still considerable work to do to consensus-build around a workable formula for what will be exempted from the definition of a cluster munition. There are more than a dozen textual proposals for amendment of Article 2 on the table, some dating from Wellington, and many of them are competing approaches. And discussions on definitions over the course of the Oslo Process have become sprawling, and have tended to go around in circles.

Today was no exception, as useful returns diminished from late afternoon. Ambassador Mackay may sense that some of the more self-assured delegations need to wear each other down attritionally, and he and his team seem resigned to facilitating this - armed also with some probing questions for those delegations becoming repetitive or implausible. He and his team are probably right. At, indeed, at the end of the day many delegations across the political spectrum left feeling tired and irritable after working through Mackay's elements paper. However, some hard yards have been gained.

It's an important point to bear in mind that although there are tough negotiations ahead, it is only the end of day 2 of the Dublin Conference. The President and his Friends have already made surprising progress. Just as importantly, the psychological heat is already being turned up.

John Borrie


References

The Secretary-General of the United Nations Ban Ki Moon gave a televised address to the opening plenary of the Dublin Diplomatic Conference on Cluster Munitions in which he called on governments to create a "visionary" global treaty prohibiting cluster munitions, which he called "inherently inaccurate, particularly indiscriminate and unreliable." (19 May 08). Photo courtesy of Mary Wareham (Aotearoa NZ Cluster Munition Coalition Flickr photostream).

The Cluster Munition Coalition launched a new, improved website yesterday. Embedded in it is the UNSG's video address as a YouTube clip.

To find out more about what cluster munition survivors think about the Dublin negotiations, visit the Ban Advocates blog.

Plenary statements, official and national working papers from the Dublin Conference are available on its website.

Cautious steps around cluster bombs

Today the UN Convention on Certain Conventional Weapons (CCW)'s group of governmental experts wrapped up its second session of work for 2008. Scheduled as the only major multilateral meeting on cluster munitions between the Wellington Conference and culminating negotiations of the Oslo Process on a cluster munition treaty in Dublin in May, this week's CCW shindig was, in effect, also an informal on-the-margins Dublin preparatory meeting. So it's worth briefly taking stock of where things are on international efforts to address the humanitarian effects of cluster munitions.

Readers may be aware that last November the CCW managed to agree on a mandate to "negotiate a proposal" on cluster munitions with several weeks of work in 2008 to elaborate exactly what this would entail. It's fair to say that the CCW achieved its mandate because of the momentum the Oslo Process was generating outside it (see previous posts to see how this unfolded). The irony of this is not lost on those involved in both processes - Oslo emerged from frustration about lack of momentum in the CCW. Now the two are working in parallel, but to see them as being in competition would be to fail to capture their rather complicated relationship (more about that another time).

In January, the CCW expert group began efforts on a 'draft working definition' of cluster munitions under its chair, Ambassador Bent Wigotski of Denmark, with assistance from Major-General Lars Fynbo. The 'draft working definition' ended up as a heavily square-bracketed annex in the January meeting's procedural report. Despite the 40 square-brackets indicating considerable divergence of views, and even though no one was sure what the definition would be for, this was hailed in the CCW as promising progress.

At the CCW's second expert meeting this week, these differences were still apparent. The positions of major users and producers of cluster munitions, as we've noted previously on this blog, have become more nuanced over the last year - but they don't seem to have changed. Russia is resistant to any agreement that would do more than clarify existing international humanitarian law (IHL) rules of relevance to cluster munitions. China's interventions are sparse and, while softer in tone, indicate a similar approach. The U.S., which is currently reviewing its cluster munition policy internally, is reluctant to engage on many issues until the July CCW session, although it said today it was pleased with discussions on IHL and assistance and cooperation this week. Brazil, India, Israel, Japan, Pakistan and South Korea are all very cautious.

Consequently, the Chair scheduled little time to develop the draft working definition at this meeting, and when definitions did come up it was mainly for various delegations to say the subject should be put off for later. And although there were talks about various potential elements of a "negotiating proposal" such as transfer restrictions, relevant IHL provisions, victim assistance (under Oslo Process core-group country Austria's direction) and types of cluster munitions that cause humanitarian harm, many sessions finished early as those states present literally ran out of things to say. Nevertheless, Japan's consultations as friend of the chair on IHL elements and its written products led to expressions of concern from the ICRC and some states such as New Zealand and Switzerland that these might undermine existing IHL rules.

But that's not to say the week was without value. For one thing, it helped to prepare minds for the July session. I'm not hopeful CCW states will be able to agree on much then, but there is a glimmer of hope. And, with so many of those who will be participating in Dublin present at the CCW's session this week it also helped those preparations, as I mentioned above.

Moreover, this week was also an opportunity for various states, as well as the Cluster Munition Coalition (the civil society consortium helping to drive efforts for a ban on cluster munitions that cause unacceptable harm), to smooth over various ruffled feathers from what were sometimes bruising contacts at the Wellington Conference. And, from what they said in their interventions, most countries in the Oslo Process, including many among the so-called like-mindeds such as Australia, Canada, France, Germany, Sweden and the UK, have a good deal in common in their approaches - even if final negotiations at Dublin still face real challenges.

There is of course also quite a bit of pre-Dublin positioning and posturing going on. But I also sense a willingness to engage, even on the two most contentious issues; how cluster munitions will finally be defined (and therefore which weapons are banned), closely followed by finding an acceptable solution for text on military interoperability. The latter is a particular headache: while a likely formula seems to be shaping up in the context of definitions, a proposal that looks like a winner on meeting all concerns about interoperability has been more elusive so far.


John Borrie

Photo of Tajik AO2.5 and ShOAB submunitions taken in August 2007, courtesy of Andy Smith.

Cluster Munitions: Vienna – tough talk on definitions

As foreshadowed in our preceding post about the first day of the Vienna international conference on cluster munitions, definitions were the focus of today's discussions.

Why are definitions important? February's Oslo Declaration contains a commitment for states to “prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians”. Article 2 of the Vienna discussion text arguably goes further – it doesn’t mention the phrase “that cause unacceptable harm to civilians”.

In setting out scope Article 1 says as follows:

“Each State Party undertakes never under any circumstances to:
a) Use cluster munitions.
b) Develop, produce, otherwise acquire, stockpile, retain or transfer to
anyone, directly or indirectly, cluster munitions.
c) Assist, encourage or induce anyone to engage in any activity prohibited
to a State Party under this Convention.”

And the Vienna discussion text defines cluster munitions broadly. There is also an explanatory annex in it to reflect the divergence of views expressed over a definition expressed at an earlier conference of the Oslo process in Lima, Peru in May.

Today’s discussions were a chance to test views on the new language, and to hear proposals, including for exceptions to a general prohibition.

Talks on this agenda took most of the day, co-chaired by New Zealand and Austria. It began, however, with a presentation from an expert, Colin King, and a presentation of a ground-breaking report he and colleagues at the NGO Norwegian People’s Aid produced entitled M85: an analysis of reliability pictured above.

M85 bomblets are considered ‘state-of-the-art’ cluster submunitions, with so-called self-destruct mechanisms. M85s, or their derivatives, were used in Iraq this decade by British forces and by Israel in Southern Lebanon in 2006.

The M85 analysis showed, among its findings, that claims of 1 percent failure rates are way off: instead, it was around 10 percent – a big concern in view of the large number of submunitions dispersed in any cluster munition attack. King’s presentation (drawing on the report) showed definitively that “there’s a lot to go wrong” in the M85 arming sequence, which results in the submunition malfunctioning and prevents the self-destruct mechanism from activating.

In many cases, the arming sequence can be completed by an accidental encounter. (Norwegian defence scientists spinning M85 bomblets in concrete mixers – with often fatal results for the mixer, around 40 "killed" so far.) It helps to underline that there is no such thing a “non-hazardous dud” submunition, a term sometimes heard.

It also shows that testing doesn’t offer a realistic indication of what will happen during actual cluster munition use because they’re always carried out under favourable conditions.

King’s powerful presentation set the scene for what was a constructive but occasionally fractious debate that continued from mid-morning until late this afternoon.

Many countries spoke. Some, such as France, Switzerland, Netherlands and the UK reiterated that they do not think all cluster munitions have unacceptable consequences for civilians, arguing that concepts of accuracy and reliability should be benchmarks for what is deemed acceptable or not – drawing on an ICRC formulation. The ICRC responded that its terminology was to describe the characteristics of cluster munitions unacceptable in terms of their harm to civilians (in its view, virtually all used to date) and not threshold criteria for a definition.

Germany again put forward proposals for exceptions to a total ban. It has crafted what it called a 3-step approach that while immediately banning some cluster munitions (step 1), would allow others to continue to be used for an as-yet unspecified period (step 2) before – optional – replacement with “alternative munitions” (step 3), as yet undetermined and possibly not invented. This met with considerable criticism from a range of states and the Cluster Munition Coalition (CMC). For its part, Norway acidly commented that it could not follow the German proposal’s logic.

The discussions underlined that there’s still a long way to go on definitions. Today’s talks were never intended by the co-chairs to be more than a ventilation of views, but they did make some progress on discussing less problematic exceptions to a comprehensive prohibition including mines (covered by other treaties), flare, smoke and chaff munitions and sub-munitions that are inert post impact. And, they paved the way for further talks this afternoon on Article 1 of the Vienna discussion text on general obligations and scope, in which military inter-operability concerns dominated. But that’s for another post.

John Borrie

Cluster munitions: Vienna Conference day one

Yesterday, the Vienna international conference on cluster munitions formally commenced. On Tuesday it had been preceded by a civil society forum (see our previous post for Patrick Mc Carthy's impressions of that gathering). The Vienna Conference is the latest step in the so-called Oslo process to address the humanitarian impacts of cluster munitions on civilians.

Readers may recall from earlier posts on this blog that, less than a month ago, members of the Convention on Certain Conventional Weapons (CCW) agreed a mandate to work on addressing cluster munitions in 2008 - a mandate that most involved seemed prepared to concede had come about largely because of the existence of the Oslo process. Nevertheless, there was uncertainty in some quarters about what the impact of the CCW mandate might be for participation in Vienna. Would it undercut support for the Oslo process? Hopes among campaigners on cluster munitions were that the goal of 100 states would nevertheless be achieved.

In fact, 133 states have registered, according to the Austrian Foreign Minister, Ursula Plassnik, who launched Wednesday's proceedings. This is astounding progress for an international humanitarian initiative launched only in February of this year: it means that more than two-thirds of the international community want to see a treaty to address the impacts of cluster munitions on civilians by the end of 2008.

And that number doesn't count a large civil society contingent (mainly within the umbrella of the Cluster Munition Coalition (CMC)) along with international and regional organizations including United Nations agencies, the International Committee of the Red Cross, the European Commission and the Organization for Security and Cooperation in Europe. Later, in welcoming the broad turn-out, the CMC noted that a majority of past users and producers of cluster munitions are now participating in the Oslo process, as well as almost all affected states.

Certain user and producer states were not at the meeting though, such as China, India, Pakistan, Russia and the U.S. The need to try to engage with all users and producers clearly concerns some states, and was a theme throughout the agenda item on "a treaty on cluster munitions" co-chaired by Austria and New Zealand. This agenda item ran grossly beyond time, however, as the co-chairs' request for delegations to keep general statements to a bare minimum went largely ignored. After a brief introduction of the Vienna text by New Zealand, Australia, Portugal (on behalf of the EU), Egypt, Hungary, Montenegro, the CMC, Thailand, Denmark, Germany, Italy, the UN Office for Coordination of Humanitarian Affairs (OCHA), Morocco, Mali, Japan, Argentina, Finland, France, United Kingdom, Guatemala, Chile, Canada, Croatia, Sudan, Luxembourg, Switzerland, Algeria, Lithuania, Sweden, Democratic Republic of Congo, Tanzania, Netherlands, Senegal, Bangladesh, Turkey, Mozambique, Uganda, Honduras, Zambia, Sierra Leone, Liberia, and Albania spoke.

I'm not going to try to summarize what they said. And yesterday there was also some productive discussion of cluster munition clearance issues and victim assistance (the latter talks continue this morning) under subsequent agenda items. But a recurrent theme - beside wide support for the Vienna text as a basis for discussions and the need for a legally binding international instrument (a treaty, in other words) - was of the need to define unacceptable cluster munitions.

Definitions are pivotal because, following the terms of February's Oslo Declaration, unacceptable cluster munitions will be banned. For their part, the members of the CMC would like to ban all cluster munitions, and this seems to be the avowed view of at least several states too.

But a total ban on cluster munitions is not what all states signed up for - and some, such as the United Kingdom, Sweden and the Netherlands - said as much yesterday. So the definitions agenda item today will be a key testing ground for various proposals for how cluster munitions, submunitions and associated concepts should be defined, and deriving from that, a better idea of what is likely to be outlawed in the agreement to be negotiated next year. At present, the core group's suggested Article 2 in the Vienna text is drafted as a pretty comprehensive prohibition on cluster munitions. But it makes provision for possible exceptions - the burden of proof being on states to justify why such exceptions are necessary.

It's going to be an interesting discussion. Watch this space.


John Borrie