CCM: humanitarian or disarmament treaty?

At a pre-briefing meeting in Geneva on 8 May for the Dublin conference on cluster munitions, the President-Designate of the Conference, Ambassador Dáithí O’Ceallaigh of Ireland, said that the Conference would not be a disarmament conference but a humanitarian one with a humanitarian purpose.

Throughout the Dublin negotiations, a number of states echoed this view in their statements. And many States and civil society representatives said that the Convention on Cluster Munitions (CCM) was a milestone of humanitarian law (IHL) after the treaty text’s adoption and during the closing ceremony. A few States, such as Indonesia, also mentioned that the Convention contained important disarmament provisions.

What difference does it make, whether an instrument of public international law is described as a humanitarian or disarmament treaty?

Scholarly opinions diverge over how to categorise treaties like the CCM, which contain elements typically associated with both IHL and arms control/disarmament law. These categories can be seen as mere manifestations of functional specialization among diplomats and academic experts. But the significance of this is that special rules of interpretation and practices may have more or less relevance depending on how the problem at issue is described, reflecting the object and purpose of the respective regime (for more details, see the ILC’s Fragmentation of International Law Report: details at the foot of this post). Repeated affirmation that the CCM is an instrument of IHL therefore affects the future interpretation of its provisions.

Under general rules of international law, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. The CCM’s preamble clearly supports interpreting the treaty text in conformity with principles of IHL – and even human rights law. Future State practice in the application of the treaty will play an important role. But where practice leaves the meaning of a provision ambiguous or obscure – as may be the case of Article 21 on “interoperability” – recourse may be had to the preparatory work and the circumstances of the treaty’s conclusion (sometimes known as the 'diplomatic' or 'negotiating 'record). State’s emphasis on the CCM’s humanitarian objective will be a factor to take into consideration here.

The characterisation of the CCM as a humanitarian instrument also has a bearing on the consequences of a material breach of the treaty. Normally (and particularly for arms control agreements), such as situation would entitle all or some state parties to suspend or terminate the treaty. However, suspension or termination as a reaction to a violation of the CCM will not be allowed regarding “provisions relating to the protection of the human person contained in treaties of a humanitarian character” (cf. 60 (5) Vienna Convention on the Law of Treaties).

Finally, international law recognises certain situations in which the non-performance of a state’s obligations may be justified and so – in legal parlance – not engage its responsibility. However, in IHL states are typically not allowed to invoke such “circumstances precluding wrongfulness”. With regard to the CCM, this is evidenced in the formulation of its Article 1, which obliges state parties “never under any circumstances” to engage in prohibited activities. In keeping with the humanitarian object and purpose of the CCM, states parties may not use cluster munitions either in self-defence or as a means of belligerent reprisal.

Designating treaties as humanitarian or disarmament ones may seem to be an academic exercise, but establishing and reaffirming their object and purpose through State practice does have a real effect on a treaty’s interpretation, and eventually its impact on peoples’ lives. And, stepping back from matters of legal understanding for a moment, it’s clear that - in political terms - the CCM outcome is both humanitarian and disarmament.

Maya Brehm


Reference

Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, (UN document A/CN.4/L.682, 13 April 2006, available online at: http://www.un.org/law/ilc/).

Photo credit: Kees de Vos, from Flickr.

CCM: In the spirit of Sigur Ros

In some recent preceding posts on this blog, we've offered analysis concerning the interoperability provisions of the new Convention on Cluster Munitions (or CCM for short), particularly Article 21.

Further to these posts, we thought it would be useful to reproduce here the text of Iceland's statement to the closing session of the Dublin negotiations on 30 May - for two reasons. The first reason is that we thought it was a particularly sensible statement. The second reason is that it was written and delivered by noted international legal expert and Icelandic ambassador, Gudmundur Eiriksson.

Statement by the Government of Iceland upon the adoption of the Convention on Cluster Munitions Dublin, 30 May 2008

The Government of Iceland fully supports the Convention on Cluster Munitions adopted in Dublin today and expresses its appreciation for the cooperation which has led to this result.

Although many of the provisions of the Convention reflect the need to reach political compromises during the negotiations, the States concerned, having agreed on the form of a legally binding treaty, have brought the results into the realm of international law. States Parties will thus be guided in their interpretation and application of the Convention by the rules of international law, in particular, International Humanitarian Law and the Law of Treaties, including the overarching principle of good faith performance (1969 Vienna Convention on the Law of Treaties, article 26), with the concomitant rules on State Responsibility, including on attributability (e.g. International Law Commission Articles on State Responsibility, Chapter II).

Specifically, the language in Article 21 on relations between States Parties and States not parties to the Convention was drafted to deal with particular concerns on the operability of the Convention in cases where a State Party engages in military cooperation with a State not a party to the Convention. While the article sets out an appeal to States which are not parties to join the regime of the Convention, it recognizes the need for continuing cooperation in what is hoped will be a short transition period. This intention is captured clearly in paragraph 3 of the Article which should not be read as entitling States Parties to avoid their specific obligations under the Convention for this limited purpose. The decision to reinforce this position by listing some examples in paragraph 4 cannot therefore be interpreted to allow departures in other respects.

We've highlighted in italics some legalese in Iceland's statement we think will be particularly important in the course of implementation of the CCM. In plain language what it means is that, as a general principle of international law, states parties have to give effect to the obligations assumed under the CCM, and that they are responsible for activities over which they exert effective control - whether or not these are conducted together with other states or international organisations. In other words, states are responsible for what they actually control, and not for what they don't.

John Borrie & Maya Brehm


Picture of wrecked American plane in Iceland, from the Icelandic band Sigur Ros's beautiful recent documentary film Heima.

Cluster ban treaty: 'interoperability' in context

There has been a lot of media coverage of last week's agreement in Dublin on a Cluster Munition Convention - a groundbreaking agreement that prohibits cluster munitions that "cause unacceptable harm to civilians".

Some of this media coverage has been thoughtful, measured and insightful. Indeed, some journalists, especially a number from Japan (for instance, see here), have followed the Oslo and UN Convention on Certain Conventional Weapons (CCW) processes closely for many months now and are well aware of their many nuances. Certain other media coverage has been less thoughtful, and sometimes even misguided.

I guess this is to be expected when overworked journos are under pressure to produce copy quickly for the general public, which captures the Dublin negotiation's essential elements. But it's hard to communicate something accurately when you don't properly understand it, especially on the vexed issue of so-called interoperability (Article 21 on "relations with states not parties to this Convention" - for relevant Dublin documents see here).

The Convention's interoperability provision has been held up in some news stories as a massive loophole - The Times of London even led with a story that the British Prime Minister "Gordon Brown blows a loophole in ban on cluster bombs". To be sure, in a perfect scenario, it would be better not to have such a provision in a treaty and international legal experts I have spoken with are a mite unimpressed with the clumsy wording of Article 21. Bonnie Dochety, a Harvard academic and Human Rights Watch legal researcher described Article 21 as "a step backwards".

But let's see it in context here. For one thing, it's wrong to single out the UK. Concerns to ensure that states party to the new treaty could continue to interoperate with non-members were widely held, including by Oslo Process core group countries such as New Zealand and Norway, as well as some countries of the South. And it's no secret that a number of American allies - by no means only the UK - were consulting frequently with their American counterparts during the Dublin negotiations. Given that they are military allies, this is only to be expected, and is no cause for surprise, let alone scandal among those involved in the Oslo Process.

Interoperability has, meanwhile, also been an issue in the context of the 1997 Anti-Personnel Mine Ban treaty throughout its implementation. The Mine Ban Treaty process has depended on national statements interpreting its prohibitions on things like "assist", "encourage" and "transfer" in its Articles 1 and 2, but unanimity has never been achieved. The new Cluster Munition Convention has managed to improve on the Mine Ban Treaty's provisions for helping victims and in other areas - its not unreasonable to expect some governments want to achieve greater clarity on the issue of interoperability too.

Moreover, concerns about jurisdiction and state and individual liability have cropped up in recent years in a number of areas, not least in how detainees have been transferred in the so-called Global War on Terror. For better or worse, the cluster ban treaty's interoperability provision reflects the times we're living in.

...Again, this is not to say Article 21 is optimal. But three points, which haven't come out clearly in the media, are salient here. The first point is that it's now a matter of treaty implementation to ensure interoperability doesn't act as a loophole in the cluster bomb treaty - an issue to be confronted whether the Article 21 provision existed or not. The fact that the provision does exist, unlike in the Mine Ban Treaty, will at least form some benchmark for monitoring. As Bonnie Docherty further pointed out:

"The codification of a legal precedent qualifying the prohibition on assistance is unfortunate for the development of future weapons treaties, but in practice it is unlikely to cause a humanitarian problem. States can still make declarations explaining their understandings of the provision, and the United States will likely bow to political pressure and not put their allies in awkward positions."

I agree. And the fact that Article 21 is news can be seen as a good thing: it raises attention to an issue of implementation that would otherwise not be on the public record, and might be slid under the carpet.

The second point is that the cluster ban treaty will have a stigmatizing value over the longer term, even if it is below the media's collective radar most of the time. Parties to the treaty will have to spell out their treaty commitments every time they interoperate with a non-party, which will be a continual reminder of the stigma attached to using cluster munitions.

And, thirdly, the interoperability provision is part of an overall package: as one ICRC colleague put it to me: "If I were playing baseball, I'd call this a 6-1 win, rather than 7 runs to zero. Nevertheless, it's a good day on the ball-field." In addition to the various strong provisions mentioned earlier, the treaty has a robust, cumulative definition of cluster munitions.

Some media stories have been quick to point out that there is an eight year period until cluster munition stockpiles have to be destroyed. But those acceding to the cluster ban treaty are actually obligated to destroy their stockpiles "as soon as possible and no later than eight years after entry into force of this Convention" (my italics), and signatories are obliged not to act against the treaty's object and purpose in the meantime.

Importantly, a formal transition period didn't make it into the cluster ban treaty: once states accede to it, they won't be able to operationally use their stocks of cluster munitions or transfer them on to others for use. Countries like the UK, Germany and France, which have historically used cluster munitions, are already unilaterally moving to take much of their stockpile out of service right now. Gordon Brown's announcement toward the end of the negotiations that the UK would destroy its M85 and M73 cluster munitions was a hugely important positive signal of commitment.

So, let's keep things in perspective: the cluster ban treaty is good news, whatever the cynics say. It will be interesting to see what all of this means for the CCW's work in July.

John Borrie
Photo of a random old bomb at the Warbirds Museum in Wanaka, New Zealand.

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: Fitting together the final pieces

“In war it is not always possible to have everything go exactly as one likes. In working with allies, it sometimes happens they develop opinions of their own.”
Winston Churchill

As previous posts on this blog have foreshadowed, the issue of “interoperability” proves one of the politically most contentious and toughest to solve. After a week of informal consultations, Switzerland, as Friend of the President (FoP), passed on a text to the President of the Conference on Tuesday, which forms the basis for further bilateral consultations.

As the heading of the present draft article indicates, the issue termed “interoperability” concerns in essence the relationship between States Parties to a future cluster munitions convention and States not parties to it. Challenges of military interoperability can be seen as the result of increasing interstate cooperation in the military field, be it in the framework of a military alliance (e.g. NATO), ‘coalitions of the willing’, troop contributions to operations carried out or authorized by an international organisation (e.g. UN, EU, AU) or on a bilateral basis.

Among the causes for interoperability challenges are differences in technology (e.g. communication systems), procedures, national policies, and – of particular relevance here – differing national and international legal obligations of participating States. Many aspects of military cooperation could create problems for States Parties to a future cluster munitions convention, including: the transit of a non-State Party military aircraft through the airspace of a State Party, transport of equipment by a non-State Party through a State Party’s national territory, access to and use by a non-State Party of a State Party’s ports and infrastructure, or the establishment of military bases or prepositioning of equipment (e.g. stockpiling of cluster munitions) by a non-State Party on a State Party’s territory, joint defence preparations, joint training exercises and joint deployment of troops.

The interoperability issue has been a concern at the fore of many national delegates’ minds over the last year. A number of proposals were made relating to interoperability by various countries at the Wellington Conference in February and were included in the compendium of proposals, each of which were issued as working papers at the outset of the Dublin Conference.

According to many media reports and the scuttlebutt here, the United States (which is not participating in the Oslo Process) has put considerable pressure on perhaps as many as 115 countries to take account of its interoperability concerns. A number of European NATO countries plus Japan, Canada, Australia have said that not having such a provision would be a ‘deal-breaker’ for them, and even Oslo core-group countries like New Zealand have said such a provision is a good idea. But many other countries say they are unhappy with the way things are shaping up.

A number of working papers proposed amending the general obligations and scope of application (Article 1) of the draft cluster munitions convention. Such a solution would have been problematic for many reasons, not least because Article 1 is the home of the general prohibitions of the treaty and tampering with it would – in political terms – be as risky as … well, tampering with an unexploded submunition. By the middle of last week, however, the FoP indicated general support for leaving Article 1 alone, and either amending the national implementation Article (Article 9) or coming up with a new Article, an option which by the beginning of this week had the greater momentum.

The draft article on interoperability aims, first, at preventing, in these varying instances of military cooperation with non-Party States, the engagement of States Parties’ responsibility under international law for acts by non-State Parties that State Parties themselves cannot control and, second, aims at ensuring that members of a State Party’s armed forces (and possibly their nationals) do not incur individual (criminal) responsibility in such situations. At the same time, even States that consider such a provision to be necessary, say that they do not want to create a loophole in the convention. It is evidently not easy to achieve all this without compromising the object and purpose of the convention, or undermining the general undertaking, “never under any circumstances” to engage in a prohibited activity listed in art.1.

The draft article, as it stands now, imposes on every State Party a positive obligations to “encourage” non-State Parties to accede to the convention, to “notify” them of States Parties’ obligations under the convention, to “promote the norms” it establishes and to “make its best efforts to discourage” non-State Parties from using cluster munitions. The second part of the draft article is more controversial and has been the subject of debate in formal and informal sessions. A previous version of the text was criticised for being too complex, lengthy, unclear, unpractical, or was considered to undermine the goal of stigmatising cluster munitions that cause unacceptable harm to civilians. At the same time, certain terms used in the current draft, such as ‘military cooperation’ or ‘exclusive control’ were criticised for being too vague. A suggestion to restrict the effect of the interoperability article on the provisions of article 1 concerning assistance, encouragement and inducement (art. 1(c)) only was not retained in the current text.

The implications of the current text for State Parties’ obligations relating to foreign owned stockpiles on their territory and the use of their ports by vessels transporting prohibited cluster munitions will have to be assessed in light of States’ understanding of the phrase ‘may engage in military cooperation’ and in accordance with States obligation to take all appropriate measures to prevent and suppress prohibited activities undertaken on territory under their jurisdiction (draft article 9). But is does look like under the present text a State Party may, “expressly request the use” of cluster munitions that cause unacceptable harm to civilians “in cases where the choice of munitions used” is not “within its exclusive control”, i.e. in all cases where it is not its own armed forces that carry out the attack.

Nobody expects that military interoperability will achieve substantive agreement before a final endgame in which it’s negotiated alongside the other thorny issues of definitions and a possible transition period on use. Once they see how these jigsaw pieces fit together, delegations will have to assess whether the draft treaty meets their needs as well as the humanitarian imperative of the Oslo Declaration. The next stage in that process – a composite text, in which all of the different bits of the draft treaty (including alternative options in certain instances) are placed alongside one another in the same text – is due Wednesday morning at 10am…

Maya Brehm, John Borrie & Patrick Mc Carthy


Photo: "Liquid Jigsaw" by pbrien49away on Flickr

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.