Will the CCW give birth to a mouse or a monster?

The 4th Review Conference of the Convention on Certain Conventional Weapons (CCW) will come to an end this Friday, 25 November. Until then, the negotiation of a protocol on cluster munitions to be annexed to the CCW is likely to take up most of delegates’ time. Even at this late stage in the negotiations, however, it remains unclear whether states parties to the CCW will be able to reach consensus on a text. If they do, based on draft texts presented this week, it is also unclear whether the CCW will finally give birth to a mouse or a monster.

Monster...

Several aspects of the CCW’s cluster munitions negotiations are disturbing from a humanitarian, international legal and multilateral negotiations perspective. In the view of many, as it stands now, the protocol fails to bring significant and immediate humanitarian benefits. Worse even, the present draft authorizes the use of certain types of cluster munitions. A number of states, the International Committee of the Red Cross (ICRC) and the Cluster Munition Coalition fear that this may result in greater investment in the development and production of cluster munitions that are known to cause grave harm to civilians, lead to growing use of these weapons, and therefore greater civilian casualties.

The CCW negotiations also raise a number of moral and legal questions (see e.g. this backgrounder by international law professor Nystuen). This morning, over 30 countries stated:

The current draft would represent the opposite of what we consider the overall goal of the Convention.

Indeed, a protocol that authorizes continued use of cluster munitions may run counter the very object and purpose of the CCW, whose preamble recalls “the general principle of the protection of the civilian population against the effects of hostilities” and reaffirms “the need to continue the codification and progressive development of the rules of international law applicable in armed conflict”.

As the ICRC - “guardian” of IHL - has pointed out repeatedly, agreeing to a treaty that sets a weaker standard in terms of civilian protection than the one set by the 2008 Convention on Cluster Munitions (CCM) would constitute a regrettable precedent of regression in IHL which would threaten the “coherence, effectiveness and integrity of this field of law”.

The normative effect of a CCW protocol on cluster munitions on the CCM should be of particular concern to states that are parties (or signatories) to both treaties. Mainly, because the CCM prohibits states from “assisting, encouraging and inducing” anyone to engage in prohibited activities, such as cluster munitions use (Art.1), and obliges states parties to take positive measures in their relations with states not party to the CCM to encourage adherence to the CCM, promote its norms and to make their “best efforts to discourage” them “from using cluster munitions” (Art. 21).

Continued involvement in and facilitation of negotiations, and a fortiori, participation in a consensus decision to adopt a CCW protocol that authorizes use of cluster munitions prohibited under the CCM, may constitute a violation of that convention. Support by CCM state parties of a CCW protocol that authorizes use of cluster munitions also constitutes state practice that risks rendering the positive obligations of Art. 21 meaningless. Finally, a CCW protocol that legitimises continued use of cluster munitions would be an obstacle to the extension of the norms embodied in the CCM by way of customary international law.

…mouse…

Few of the substantive elements in the draft texts presented to date enjoy a semblance of consensus. That cluster munitions produced before 1980 should not be used, stockpiled or transferred is one of them. Additional transfer restrictions, for example in relation to non-state actors, are also relatively undisputed. CCW states parties also seem to agree that civilians should be protected from indiscriminate effects of weapons and that the rules of international humanitarian law (IHL) are the relevant standard in this context.

But how to apply the rules of IHL to the weapon technology at hand, the very purpose of any CCW protocol, remains subject to dispute. Given the difficulty of adopting a comprehensive prohibition of cluster munitions in the CCW, attempts are being undertaken to translate general rules of IHL into specific prohibitions on the use of these explosive weapons. But in the latest draft text (Rev.2 of 23 November, 15h30) language previously introduced by Switzerland under the heading “Protection of civilians” was removed. Switzerland, supported by many other states, had suggested the inclusion of a prohibition on the use of cluster munitions in populated areas. A similar provision is contained in CCW protocol III on incendiary weapons and would (if not weakened by qualifiers or overridden by other provisions in the protocol) be of some humanitarian benefit.

Even if restrictions on the use and a prohibition of some (old) cluster munition types are retained in the final text, however, these provisions are hardly adequate and sufficient to address the humanitarian problem caused by cluster munitions. Especially, as other parts of the protocol may well outweigh these humanitarian benefits.

… or hedgehog?!

At the end of this week, states parties to the CCW will have to make up their minds and decide whether the text in front of them is a mouse or a monster. Of course, for musophobics the difference may be slight, but in the view of most, mice are relatively inoffensive and the damage they may cause by gnawing away at the normative structure of humanitarian protection is likely to be limited. The humanitarian and normative impact of a monstrous protocol may be far more damaging.

After years, nay, decades, of CCW talks on cluster munitions, member states still do not agree about the very objective of their endeavor, the frame of reference to assess whether that objective has been attained and/or their mandate fulfilled, let alone the methods to assess likely humanitarian impact (positive and negative) of particular provisions or the protocol as a whole.

It is hence difficult to foresee what comes out of this body on Friday - if anything at all. For many participants in this lengthy process it must by now feel like “giving birth to a hedgehog against the lie of its spines” - to quote one of my favorite Russian proverbs.

This is a guest blog by Maya Brehm. Maya is project manager at UNIDIR.

Photo: "Muppet monster 'Frazzle' is a growling monster on Sesame Street. His deceptively fierce visage hides a child-like personality and a desperate need to be included." (Source: Muppet Wiki)

CCW: decisions, decisions, decisions...and how to take them

The current review cycle of the framework treaty known as the Conventional Weapons Convention (CCW) (a.k.a the Inhumane Weapons Convention) will culminate in the 4th Review Conference of the Convention in Geneva during the period of 14 to 25 November 2011. The most controversial item throughout this review cycle has been the need to build onto the CCW framework a supplementary treaty (or “Protocol”) dealing with cluster munitions. Many of the states party to the CCW have already chosen to be bound by (or have signed and are in the throes of joining) the Cluster Munitions Convention (CCM) that was adopted in 2008 in a process formally unconnected to the CCW.

Most of the signatory states and states party to the CCM are either opposed or indifferent to efforts in the CCW to develop a parallel instrument on cluster munitions, their assumption being that any such Protocol will fall short of the humanitarian standard set by the CCM. Indeed, one current draft Protocol, submitted by the chairperson of the CCW’s Group of Government Experts (CCW/GGE/2011-III/1), described here as the “GGE chair’s text”, would, if adopted in its present form, largely be confined to prohibiting cluster munitions “produced on or after 1 January 1980”, i.e., those that are already more than 30 years old and of questionable military value. For this group of states, a “draft Alternative Protocol” (CCW/GGE/2011-III/WP.1) tabled by Austria, Mexico and Norway has the advantage of being complementary to and compatible with the Cluster Munitions Convention.

For other CCW members, the GGE chair’s text is broadly acceptable and is seen by many as having the virtue of drawing in key producers and users of cluster munitions for whom the CCM is a step too far. With competing drafts on the table, the upcoming Review Conference promises to be lively, and bets are on as to whether CCW states parties will be able to agree on a cluster munitions Protocol (in some shape or form), or fall back on carrying over negotiations into 2012, or shelving the topic altogether as occurred in 2007 with Mines Other Than Anti-personnel Mines (MOTAPM).

Either way, a decision will have to be made, and such decisions – CCW delegates do not tire to point out – are to be taken by “consensus”. But to what extent is “consensus” a formal requirement in the framework of the CCW? And what does “consensus” actually mean in practice? Would all decisions be required to be taken by consensus of just the adoption of a Protocol?

The CCW, which itself was adopted by consensus, provides in effect that consensus is required for the adoption of any new Protocol. That much is clear, although the relevant provision, as we shall see, curiously avoids the word “consensus”, stipulating instead that Protocols shall be adopted “in the same manner as this Convention”, i.e., by consensus! Strangely enough, nor do the rules of procedure actually use the term “consensus”. Nonetheless, it is safe to say that at the point at which any new Protocol is presented to the Review Conference for adoption the President of the Conference will establish that consensus exists, that is, that there is no state party that objects to the adoption of that instrument.

But, before the Review Conference will decide that issue, the question arises whether lesser decisions also need to be taken by consensus. How will the Conference determine which of the two competing texts should be the focus of its work? Or will it proceed to negotiate on both of them simultaneously? In the face of deadlock, what guidance can be obtained from the CCW, the rules of procedure and the past practice of the parties?

As already noted, the relevant provision of the CCW - Article 8, does not contain the term “consensus”. This article as a whole contemplates more than one way to bring about an outcome. For instance, Article 8. 1 (a) and (b) refer to the majority required for convening a conference of states parties in certain circumstances. Article 8.2(b), instead of explicitly using the word “consensus”, elliptically stipulates that Protocols shall be adopted “in the same manner as this Convention”.

The Rules of Procedure for the November Conference have already been agreed (CCW/CONF.IV/2; see paragraph 19 of CCW/MSP/2010/5) and are the same as those used at the third Review Conference held in 2006. The Rules envisage a number of situations in which a vote would be required. These include rules 19 - 21, 25 – 27, 30 and 32 - 34. Rule 20, for instance, requires that a President’s “ruling shall stand unless overruled by the Conference”, Rule 25 requires that certain motions “ shall be put to the Conference for decision immediately”, and in accordance with Rule 33, a proposal may not be reconsidered unless the Conference “takes a decision to that effect.”

And what do the Rules of Procedure say about such “decision making”? In a somewhat circular fashion, Rule 34 requires the Review Conference to “take decisions in accordance with Article 8 of the Convention”. Rule 30 provides that as a general rule, no proposal shall be discussed or put to a decision unless copies of it have been circulated to all delegations in their respective working languages not later than the day preceding the meeting. The President of the Conference may, however, permit the discussion and consideration of amendments, or motions as to procedure, even though these amendments and motions have not been circulated or have only been circulated the same day. No mention is made, however, as to whether a decision requires consensus or a simple or qualified majority.

What light can the past shed on these questions? Unfortunately, uncertainties about decision-taking in the CCW remain as alive today as they were at the Convention’s adoption in 1980 when those opposing the incorporation of a strict consensus rule apparently went along with adoption of the CCW by consensus only because differences over the terms of the Convention itself - as opposed to the principle of decision-making in general - were negligible. But in doing so they did not regard that instance as settling the matter for all time. In effect, they reserved their position. This background explains the constructive ambiguity inherent in Article 8 that, over the years, has been interpreted mistakenly as mandating a single decision-taking approach, one of consensus. Conversely, it should encourage more tolerance for those who refute the notion that the CCW must take decisions only by consensus.

In any event, consensus should not be required for accepting or rejecting an amendment proposed to the GGE chair’s text. This would be unworkable if not unfair. The draft has no status other than as a working paper submitted by the chairperson of a Group of Government Experts as a personal reflection of the Group’s debate on the issues over which he had presided. The same goes, of course, for the draft proposed by Austria, Mexico and Norway. Short of agreeing to revisit and amend the Rules of Procedure, the only real option that would seem open to the states party to the CCW is to heed Rule 32 which creates the possibility for the tabling of a motion calling for a decision on the competence of the Conference to adopt a proposal submitted to it – in this case, settling the issue of priority to be accorded to competing texts - before the matter is discussed or a decision is taken on it. The Rules of Procedure would thus be applied for a constructive purpose, unlike the situation in the Conference on Disarmament (CD) where the rules of that body tend to be invoked to obstruct rather than facilitate its work.

Whether or not recourse is had to voting, forging consensus is and must remain a central ingredient of multilateral diplomacy. Properly applied, the consensus rule – the reaching of a commonly-accepted position to which no party feels obliged to object - should encourage compromise, leading to an outcome that attracts the widest possible “buy-in” of the international community. The option to vote, however, concentrates the minds of negotiators and improves the ultimate product by raising the level at which compromise is finally brokered. November’s CCW Review Conference may be poised to challenge the grip of the consensus rule, but can the meeting take it in its stride in the time available? We will see.

This is a guest blog by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

(The symbol is drawn from Google Images – diamonds being the symbol for decisions)

Consensus rules the Arms Trade Treaty. Or does it?

The recent adoption of a United Nations resolution to produce legally binding international standards for the transfer of conventional arms is a real boost to the cause of international peace and security. Overwhelming support in the First Committee of the UN General Assembly for the negotiation of these new rules has set the scene for a series of preparatory meetings leading to the convening in 2012 of the United Nations Conference on the Arms Trade Treaty.

This is an important development on at least three levels. First, it surely reflects the international community’s new-found urgency for pursuing arms control, disarmament and non-proliferation initiatives. It follows hard on the heels of the Cluster Munitions Convention adopted in 2008. Russia and the United States in the meantime are negotiating radical cuts to their nuclear arsenals. Efforts are intensifying to resolve long-standing nuclear weapons differences with Iran and North Korea. Nations of Africa have just brought into force the Pelindaba Treaty, significantly increasing the nuclear-weapon-free areas of the world. And the Conference on Disarmament (CD) is on the threshold of pursuing, alongside other major issues, a global ban on the production of fissile materials, the essential ingredient of nuclear warheads.

The Arms Trade Treaty has thus clearly caught the mood. More significant – and this is the second level on which the resolution is so important – is the intrinsic worth of this initiative. As proponents of an arms trade treaty have made clear, with hundreds of thousands of people dying each year from armed violence “Governments must ensure that negotiations live up to the promise of setting the highest possible standards”.

This leads directly to the third noteworthy aspect of this development. The terms of the resolution require the 2012 Conference to achieve a strong and robust treaty “on the basis of consensus”. Are these aspirations contradictory? Is it impossible to live up to the “promise of setting the highest possible standards” if governments are only allowing themselves to reach an outcome to which none of them objects? Is this a prescription for a lowest common denominator outcome, rather than a strong and robust treaty?

The answer to these questions must, for the sake of all the victims of inadequate arms transfer controls and in the interest of sustaining the current global arms control and disarmament momentum, be a resounding “no”. The fateful words “on the basis of consensus” should be interpreted with circumspection. First, the rules of procedure of the 2012 Conference are yet to be drafted, let alone adopted. Second, the phrase “on the basis of consensus” cannot and must not be equated with, for example, the consensus rule in the CD’s rules of procedure which state baldly and without qualification that that body will “adopt its decisions by consensus”.

If the phrase in question does not mean the automatic application of the notion that the eventual draft of the Arms Trade Treaty will be adopted only if no State voices an objection to the text (and thus without voting), what does it mean? This remains to be settled by the governments that will participate in the elaboration of the new treaty under United Nations auspices.

It is to be hoped, however, that they will be guided by UN precedents. The Third United Nations Conference on the Law of the Sea, for instance, proceeded to settle fundamental new laws governing all uses of the oceans through a procedure that contemplated voting but with a very significant rider. Before a matter of substance was put to the vote it was required that the Conference make a determination, by a two-thirds majority, that all efforts to reach general agreement had been exhausted. A Declaration, which was appended to the Rules of Procedure provided as follows: “Bearing in mind … the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance, the Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.”

The Law of the Sea approach is the classic way of proceeding “on the basis of consensus”. Voting is a last resort. But it is not foreclosed. Even the UN Standard Rules of Procedure for UN Conferences envisage the possibility of a vote (Rule 51). And, to give a more recent example, the Rules of Procedure for the UN Conference on the Establishment of an International Criminal Court make it clear that if "in the consideration of any matter of substance, all feasible efforts to reach general agreement have failed, the President of the Conference shall consult the General Committee and recommend the steps to be taken, which may include the matter being put to the vote" (Rule 34.2).

The remote possibility of voting concentrates the minds and improves the ultimate product by raising the level at which compromise is finally brokered. Had this rule existed in the CD, the efforts made to reach consensus on the programme of work would patently not have spanned over a decade. (see my post of 18 June)

Let’s not beat about the bush. Some governments prefer outcomes that they see as being representative of the breadth of views in the international community, while others regard them as watered down outcomes. This is the quantitative approach: lower standards but with more adherents. It is the dichotomy represented on the one hand by the efforts of the parties to the Certain Conventional Weapons Convention (CCW) in dealing with landmines and cluster munitions, and on the other by the Ottawa and Oslo processes which have surpassed the CCW in terms of imposing higher standards - the qualitative approach.

With at least a third of a million people killed directly with conventional weapons and many more injured, abused, forcibly displaced and bereaved as a result of armed violence every year, the negotiators of the Arms Trade Treaty will surely be aspiring, as their recent decision envisages, to the highest possible common standards for regulating the transfer of conventional arms. It is to be hoped that as the work intensifies the negotiators will drive the process in an enlightened manner, taking along as many governments as possible but without succumbing to the tyranny of the minority.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

Photo Credit: " Knotted Gun at the United Nations" by Tankwart on Wikimedia Commons

What could the CCW do about improvised explosive devices?

If there is a weapon that reflects our times, it is the improvised explosive device (IED). These weapons come in myriad forms– whether it's the suicide bomber wearing an explosive vest approaching a checkpoint in Afghanistan, the command-detonated roadside bombs encountered by troops in Iraq or, indeed, the seizure of passenger planes in mid-air by hijackers to be used as flying bombs – as occurred on 911.

Most often on this blog, when we’ve provided commentary on the work of the UN Convention on Conventional Weapons (CCW) it’s been with reference to its Group of Government Experts’ efforts on cluster munitions. However, the CCW is a framework treaty that contains five protocols, two of which – Amended Protocol II on mines and booby traps, and Protocol V on explosive remnants of war – have active sub-processes of their own.

Last week, in a discussion facilitated by the Swiss, states party to Amended Protocol II began a discussion about IEDs. Presenting were Chris Clark from the UN Mine Action Service, Richard Moyes from UK NGO Landmine Action, Erik Tollefsen from the Geneva International Centre for Humanitarian Demining, and Colin King, an independent explosive ordnance consultant.
An IED is

“A device placed or fabricated in an improvised manner incorporating destructive, lethal, noxious, pyrotechnic, or incendiary chemicals or explosives and designed to destroy, incapacitate, harass or distract. It may incorporate military stores, but is normally devised from non-military components.” (IED Factsheet)

Colin King observed there has been an evolution of attacks using IEDs over the last few decades. In the 1970s, non-state armed groups like the Irish Republican Army (IRA) really did have to improvise using commonly available materials such as nitrogen-based chemical fertilizers, stolen blasting caps and mechanical or electronic timers cannibalized from devices like alarm clocks. The IEDs tended to be unreliable, and to have uncertain effects in terms of explosive yield and signature. In other words, these types of IED were low-tech, basic weapons not particularly well suited to their targets.

The 1970s seem rather halcyon days now. Armed groups making and deploying IEDs in conflicts in Afghanistan and Iraq have become highly sophisticated in terms of funding and organisation: as their experience and access to materials began to match the scale of their ambitions and inventiveness, it has made life increasingly hazardous for both soldiers and civilians.

The IRA’s best chance of destroying a vehicle in Britain or Northern Ireland in the 1970s, for instance, was by physically attaching a time-delay bomb. More recently, insurgents in Iraq and many other places have long had access to shaped-charge explosives like the High Explosive Anti-Tank (HEAT) rounds launched from rocket-propelled grenade launchers. But in recent years they’ve also been able to hold of explosively formed penetrators able to destroy modern armoured vehicles - potentially from a significant distance, we were told. And along with the technology, methods of attack involving sophisticated means of coordination have made counter-measures against IEDs a difficult cat-and-mouse game for military forces.

And, as Richard Moyes pointed out, IEDs are certainly an issue in humanitarian terms too. Landmine Action’s research into incidents of explosive ordnance based on English language news reports of 1,836 incidents in 38 countries over six months revealed that 60 per cent related to IEDs causing many civilian deaths and injuries.

It’s a moot point what the CCW can actually do – if anything – about IEDs, not least because the primary makers and users of IEDs are armed non-state actors, not governments bound by agreements like Amended Protocol II. And, as the International Committee of the Red Cross pointed out, there isn’t anything especially novel about the fact a munition is improvised from a humanitarian law perspective. IHL rules still apply.

Nevertheless, in a ‘food for thought’ paper for the meeting, the Swiss set out some possible avenues for discussion about specific measures such as:

“What are specific best practices to cut the supply?
• What can be done in order to avoid that AXO, UXO, badly managed stockpiles, and commercially available products provide the explosives)?
• Could the CCW APII work towards a best practice guide for the improved storage, security, and transport of explosives?
• What mechanisms would help better controlling the manufacture and trafficking of explosives?
• Are there different approaches to deal with IEDs under domestic criminal law?”

Certainly last week’s CCW talks didn’t come up with any clear answers about what to do next. But, as presenters like King pointed out, a lot of IEDs are ‘local manufactures’ – mass produced, but using parts like abandoned or stolen military munitions. Artillery shells have become a favoured source of explosive for many roadside or vehicle-borne IEDs in Iraq, for instance.

So, governments undertaking practical work at the national level to tighten up stockpile management and storage of explosive material in places under their jurisdiction or control would be an important start. Another thing states can do is to join and fully implement the CCW’s ERW protocol to ensure that unexploded and abandoned ordnance is cleared up quickly, and not diverted to putting the bang into IEDs. Not sexy stuff, but worthwhile.

John Borrie

Image: IEDs made from military munitions found in Baghdad (retrieved from Wikipedia Commons, sourced in turn from U.S. Department of Defense).

CCW cluster munitions: work without end ...

As suggested in my preceding post, although this was the last formal week of time allocated in 2009 for negotiating a proposal for a protocol on cluster munitions in the UN’s Convention on Certain Conventional Weapons (CCW)’s expert group (which had already missed its end of 2008 deadline and awarded itself two more sessions, of which this week’s was the second), its Chair came up with an effective fudge today to allow efforts to continue.

Basically, the group’s Chair, Mr. Ainchil of Argentina, told delegates that he would need more time: he would write to government shortly, he said. The upshot is that the Chair intends to hold ‘informal consultations’ later in the year – tentatively scheduled for the week of 17 to 21 August in Geneva.

The Chair then opened the floor and the Czech Republic (as European Union President), Brazil, Croatia, Japan, Canada, France, Austria, India, China, Ukraine, Switzerland, the United States, Norway, Germany, Russia, Israel, Turkey, Ecuador, Republic of Korea, Pakistan, Mexico and Cuba spoke. Some huffed and puffed about the need for flexibility (from others, mostly, of course), some tut-tutted about the weakness/rigorousness/absence/presence of specific provisions, but all assented to the further consultations.

What does this mean? It means – on the face of it – that the chances of some sort of Protocol VI on cluster munitions is increasingly likely to be presented this November at the CCW’s next meeting of State Parties.

To this end, the Chair was able to get his procedural report agreed, annexed to which is an updated ‘consolidated text’ based on his consultations bilaterally and in small groups over the course of the week. That this text has evolved further toward a final product since his last text issued in February is undisputed. But it has not grown noticeably any more robust in its provisions, and some argued that on key issues such as definitions, general prohibitions and restrictions, and articles on stockpile storage and destruction clearance, as well as rules on cluster munition transfers, the new text was a backward step.

States that have shunned the Oslo process and the Convention on Cluster Munitions (CCM) such as Brazil, China, India, Israel, Pakistan, Russia and the United States are the keenest to forge ahead. They insist that the CCM should not be the benchmark for the CCW’s efforts (certainly the strength of that Convention’s provisions make the ‘consolidated drafts’ proposals look wan indeed), and that any product of the CCW will automatically have substantial humanitarian benefit by virtue of the fact that (if they joined and applied its rather loose provisions) the protocol would apply to their large current stocks of cluster munitions. As it has argued before, the US argued that the text, if agreed, would have implications for 95 per cent of its cluster munition arsenal.

In the other corner are many countries, including many in the European Union, as well as the International Committee of the Red Cross and the Cluster Munition Coalition who argue the CCW exercise has some way to go before it delivers real humanitarian benefit, will not conflict with the CCM’s more robust provisions or contain much in the way of meaningful prohibitions.

And, they argue their proposals to improve the text have not been reflected in the new version of the consolidated text to any great degree. Several pointed out that the emphasis on submunition reliability as a basis for acceptability in the consolidated text is based on assumptions about testing that were discredited during the course of the Oslo process, and that the Chair’s draft has little to say to address the inaccuracy of cluster munitions and the hazards that poses to civilians.

These are sound arguments, in my view. The problem for the maximalists at present is that however firmly they make their points, the psychological advantage lies with the more minimalist in the negotiation. It is easier for the Chair to believe that the latter may play procedural games to prevent an outcome too strong for their liking, rather than others blocking an agreement on the grounds that they perceive it to be weak.

John Borrie

CCW: Still searching in the undergrowth

The UN Convention on Certain Conventional Weapons (CCW)’s Group of Governmental Experts began a four-day meeting today, the latest – and perhaps the last – in its efforts to negotiate a protocol on cluster munitions.

When the last CCW Meeting of States Parties wrapped up late last year it had not been able to produce an agreement. Two-third of the CCW’s membership were about to sign the new Convention on Cluster Munitions (CCM) in Oslo, and concerns were widespread and deeply felt that the CCW product being touted by Denmark, the GGE’s Chair at the time, would deliver too little humanitarian benefit, and would conflict with the CCM’s obligations to ban the weapon and help victims. They dug in, much to the chagrin of CCW members shunning the CCM and unhappy at being depicted as international bad guys in the media and by civil society.

So, the compromise achieved was for two more short GGE sessions in early 2009 to see what could be salvaged. Argentina took over from Denmark as GGE Chair, and we reported in February that the new Chairman had made some progress – although the differences between the ambitions of major possessors and producers shunning the CCM (like Brazil, China, India, Israel, Pakistan, Republic of Korea, Russia and the United States) for a cluster munition protocol still seemed very different from the higher humanitarian standard others expected. The European Union, for instance, has repeatedly stated that any new protocol should deliver measurable humanitarian benefit, be compatible with the obligations of the CCM, and must contain some sort of substantive prohibition, whether on use, transfer or some other aspect of cluster munitions.

In this morning’s general debate to start off the four days of GGE meetings this week, there seemed little new of note. Argentina’s “consolidated Chair’s text” distributed at the end of the February meeting was generally accepted as a basis for work, although most countries also raised problems about key Articles such as its definitions, how the protocol’s obligations would sit with existing international humanitarian law obligations, the nature of its prohibitions, and derivative questions related to stockpile destruction such as transition periods.

None of these issues are new, although many delegations speaking today seemed keen to sound as constructive as possible. Even so, it is difficult to see how a protocol agreeable by consensus could be agreed in the space of four days: the International Committee of the Red Cross has pointed out in detail a number of serious problems remaining in the text, which many Europeans and others agree with, for instance, and which others will resist.

That said, while the GGE mandate for meetings (which cost money, and therefore need the CCW Meetings of States Parties to okay them) effectively runs out at the week, it doesn’t necessarily mean negotiations will end. There is nothing to stop Argentina continuing bilateral and small group consultations with a view to having a final draft to offer to the next CCW Meeting of States Parties later this year. That is what I suspect it will do.

John Borrie.

Photo by author of battle area clearer searching for unexploded submunitions. From a photograph in an exhibition in the Esplanade des Nations (outside the CCW's meetings in the Palais), taken in November 2007.

CCW: The Sounds of Science...

"Now here we go dropping science, dropping it all over
Like bumping around the town, like when you're driving a Range Rover
Expanding the horizons and expanding the parameters
Expanding the rhymes of sucker MC amateurs

"Naugels, Isaac Newton, Scientific EZ
Ben Franklin with the kite, getting over with the key
Now rock shocking the mic, of the many times times the times tables
Rock well to tell dispel all of the old fables"

- Beastie Boys, Sounds of Science"

Last week I postulated Borrie's third law of CCW diplomacy (I'll tell you about the others some time - but it will cost brave readers at least a drink, and perhaps some sanity). The hypothetical law states that the CCW process will expand to fill all available time, and is based on my empirical observations of the UN Convention on Certain Conventional Weapons process over a long period - especially when the CCW is held over a steady flame and shaken, for example by proximate precipitation of a weapons ban treaty like a Convention on Cluster Munitions (CCM).

I invited falsification of my theory by observation or physical experiment. Yet, the theory still stands for now. On Friday, the Argentinean Chair of the 2009 CCW Group of Governmental Experts, Gustavo Ainchil, adjourned the meeting after he quickly gavelled through a procedural report that included agreement for a further four days of meetings in April in Geneva, based on an agreement in late 2008 that:

"The GGE will meet for up to two weeks in 2009, from 16 to 20 February 2009 and subsequently, if required, from 14 to 17 April 2009".

As explained in the preceding blog post, although the atmosphere at last week's GGE was significantly improved over a testy November Meeting of CCW States Parties, there are no firm signs anything will come of the extra sessions. The positions of states still seem to be too far apart. An annex to Friday's procedural report containing the Chair's take on a "consolidated text" of a draft protocol appeared to display the same characteristics that caused substantial disagreement over November's text. Implicitly, this is recognised in the new Chair's text, with various footnotes noting delegations' "expressions of concern" and that "discussions continue".

This should not detract from Mr. Ainchil's efforts, which appear to have been exemplary so far. Argentina is really giving the negotiation its best shot and most of last week's allotted time to the GGE was mostly taken up with various Chair-faciliated bilaterals and other informal meetings, and it was a clearly tired Mr. Ainchil who adjourned Friday's session. But few in the room envy him his rather thankless task - of achieving a protocol that looks as far from agreement as in November, or of winding down the process in as face-saving a manner as possible, thus sparing the CCW regime any damage.

April will tell whether the CCW's work will be a Solid Gold Hit, or or the end of the road for the GGE work. And, of course, another test for the hypothetical third CCW law....

John Borrie

Papers from the CCW GGE meeting should eventually turn up on the UN Office for Disarmament Affairs' website here.

Look into my eyes: CCW and the kinetic theory of gases

In my preceding post, I posed the question: has anything really changed since last year's difficulties in the UN Convention on Certain Conventional Weapons (CCW)'s efforts to negotiate a protocol on cluster munitions in the wake of agreement by 107 states in Dublin in May on a Convention on Cluster Munitions (CCM) that comprehensively prohibits the weapon?

As the CCW Group of Governmental Experts meeting this week approaches its end, the answer looks like 'No'. As foreshadowed, the incoming GGE Chair, Argentina, has focused his efforts on informal consultations at the bilateral and small group level, and there have been few meetings in Plenary, except for an hour on Monday morning and a few minutes yesterday. In each case Argentina distributed "elements for discussion papers". Monday's paper contained textual options on general "prohibitions and restrictions" for a putative agreement, "storage / and destruction" and "transfers". On Wednesday morning the Chair's second discussion paper was circulated, this time on "Protection of civilians, the civilian population and civilian objects" - previously the purview of the Japanese Friend of the Chair on these issues, who has now left.

Where does this leave us? Pretty much where we were in November, in my view. The Chair's "elements for discussion" do not differ significantly from what was put on the table by the previous Chair, Ambassador Wigotski of Denmark, in November, and which was unacceptable then to a significant proportion of the CCW's membership . Nor are there really any signs of significant shifts in position since: if anything, the more issues of ratification and practical implementation loom for CCM signing countries, the less keen they will be on weaker restrictions being agreed in the CCW. Russia has made noises that it is now willing to go along with agreeing a protocol in principle, but really this confirms the hunch most operated on previously. The US has reiterated its position, and unlike the other major users and possessors of cluster munitions outside the CCM, has explained in clear terms what the implications of its proposals (as taken up in the Wigotski draft and new elements papers) would have for its national arsenal. But it is unclear whether there actually is anyone at a senior policy level to give them further instructions right now in Washington D.C. with the change in administration.

The International Committee of the Red Cross (ICRC) perhaps put it best. The ICRC has noted its surprise to the Chair that what is in effect the Wigotski package is still on the table since it is hard to imagine it being either effective or agreed upon. At best, the package is a menu of things countries might do, and would have the effect of legitimising for decades a weapon type that the majority of the international community have now specifically prohibited. The ICRC (again) urged a very different approach: a comprehensive transfer ban on cluster munitions and a prohibition on use of the weapon in populated areas - as has been argued previously on this blog, these would have real humanitarian impact.

It is a very peculiar situation. As several colleagues (who shall remain nameless) put it to me; if the CCW were working on, say, torture issues rather than cluster munitions, it would never be acceptable to negotiate a package of weak restrictions allowing the continued use of torture by the biggest culprits after the establishment of a standard prohibiting it. It would be seen as an egregious double standard and there would be outcry. Yet it seems to be acceptable to many in the CCW on the assumption that weak restrictions capturing non-CCM likely candidates is better than nothing. I'm not convinced of that: those countries would be better (as the Cluster Munition Coalition has argued) to take national level actions until such time as they're in a position to join the CCM.

Meanwhile, in side meetings and lunchtime events, the members of the CCM along with international organisations and NGOs such as the CMC have been getting on with the task of figuring out how to bring the treaty into force as soon as possible and position the new regime for implementation.

I would be very surprised if the CCW Chair - despite his patient, best efforts, which are to be commended - is in a position to present a protocol package tomorrow that can command agreement among the CCW's membership, which operates on a consensus practice. The question remains whether, then, use will be made of the CCW GGE's optional four days of further talks after Easter from 14 to 17 April.

Borrie's third law of CCW diplomacy (itself derived from the kinetic theory of gases, naturally) states that the CCW process will expand to fill the available time. In this way, it will be compelled to award itself its short week in April, just as this session was awarded by the CCW despite its undertaking to "negotiate a proposal" by the end of 2008.

Like any Popperian I invite falsification of my theory. Come on CCW, this is your chance to prove me wrong ... ;-)

John Borrie

Image of the 19th century Austrian physicist Ludwig Boltzmann (who developed a kinetic theory of gases), aged 31 with his wife, Henrietta, courtesy of Wikipedia Commons.

CCW: From pause to play?

Next week, the big bag of diplomatic hurt the UN Convention on Certain Conventional Weapons (CCW) process on cluster munitions seems to have become will resume again in Geneva, for the first of what might be two sessions to see if something can be salvaged from last year's fraught efforts to "negotiate a proposal" on restrictions or prohibitions on the weapon.

At the end of 2008, Argentina bravely stepped up to the plate to chair the CCW's Group of Governmental Expert (GGE) sessions in February and (optionally) April 2009, and to try to fashion a consensus in that timeframe. This week, the incoming Argentinian Chair, Mr. Gustavo Ainchil, shared his views in consultations with states and others here in Geneva about how he intends to proceed.

In sum:

• - Next week's agenda remains the same as the previous Group of Governmental Experts' meeting in November 2008;
• - The Friends of the Chair (FoC) on various issues have been re-confirmed in their roles for next week's session, although the Japanese FoC (who was dealing with thorny international humanitarian law questions) has departed;
• - The Argentinian Chair will not present any new papers before next week's meeting starts.

In effect, next week's GGE presses the play button after a three-month pause. Will the message on the tape now sound sweeter, or will it self-destruct? Mr. Ainchil's task of consultation to identify where some forward progress might be achieved on the contentious issues in the paper put forward by the 2008 GGE Chair, Ambassador Wigotski of Denmark (which was one basis for last November's talks and which looks set to continue for now) will not be easy.

The Argentinian Chair also stressed that he doesn't want to re-open issues for which he already considers there is consensus, preferring to focus only on contentious ones. But such delineations may not be easy to maintain in view of the nature of these negotiations in which "nothing is agreed until everything is agreed". He looks willing to take a shot at trying his hand at some compromise text, in any case.

So, we'll see what happens. Personally, I'm not hopeful anything will be achieved, especially as the Convention on Cluster Munitions (CCM) has now been signed by 95 countries and the tactical importance of negotiating work in the CCW may have passed, both for those strongly supportive of the new CCM, as well as those unfriendly toward it.

But, of course I've been proven wrong before. Nevertheless, it's a pretty safe bet that if clear evidence of a consensus doesn't emerge in the course of next week's CCW GGE, the likelihood of a new, sixth CCW protocol on cluster munitions will be considerably diminished.

John Borrie

Image of 'Tape' by Ronald K, sourced from Flickr.

2008: What a year!

2008 is drawing to an end. If you're concerned about the humanitarian effects of cluster munitions or you've just been a Democratic Presidential candidate in the United States it's been a pretty good year, but not so if you run a large car manufacturing company, or a bank, or indeed just have a mortgage. Indeed, the Roaring Naughties are well and truly over - with human security implications down the line I'm sure no-one can fathom yet, although already it looks like around a billion people will go hungry in coming months because of rises in food prices, the majority of them in the developing world. Why are people still going hungry in this day and age? Where have our priorities been?

In Geneva we've had a snowy cold snap in the last little while, so while the global financial meltdown continues we can at least snowboard while Rome burns, and watch the newly-bankrupted mega-rich huddle in their fur coats and Jimmy Choo shoes on the rue du Rhone around the Porsche Cayennes they've torched to keep warm.

Just kidding. But the festive season is coming, and so it's time for Disarmament Insight to sign off until January. Below we continue our long-standing tradition (well, okay, the one we started last year) of looking back at some of our main blogging themes of 2008.

It's hard to believe that this time a year ago the Vienna Conference of the Oslo process on cluster munitions was underway. Twelve months on and the Convention on Cluster Munitions (CCM) is a reality after a tough meeting in Wellington, New Zealand in February, and the negotiations themselves over two weeks in May in Dublin, Ireland, not to mention a huge amount of effort from so many people over the last several years. It's been truly inspiring to participate in the Oslo process, and the week before last 94 states signed the treaty in Oslo, Norway, which just capped it all off. Disarmament as humanitarian action, indeed.

Things haven't gone so well in the UN Convention on Certain Conventional Weapons (CCW) talks in Geneva, which underwent something of a crisis in November as the Danish Chair's attempt to push through a protocol based on his draft text were rebuffed by a group of 26 states. A rather nasty blame game ensued, but the CCW managed to agree to come back for a week or two in the first part of 2009 to have another shot at trying to achieve something acceptable both to those cluster munition user/possessor states who shunned the Oslo process, and the majority of the CCW's membership that support the CCM. With the best will in the world, the CCW will have its work cut out for it in the New Year.

There was an extremely important domestic election for world politics in November. Yes, that's right, Helen Clark's Labour Government in New Zealand were voted out in favour of the centre-right National Party. Oh, yes, and there was that other election...of that Obama guy. Currently the arms control world - particularly inside the Washington beltway - is rife with speculation about what Obama's administration will do after taking up the reins of power in January '09 on nuclear weapons. President Obama pushing for successful U.S. ratification of the Comprehensive Test Ban Treaty would be a great start it seems to me: it may not bring the treaty negotiated more than a decade ago into force thanks to the CTBT's international entry-into-force formula, but it would send a very positive signal and further embed the emerging global norm against nuclear testing.

And some leadership and clear momentum is needed right now on nuclear issues, especially if the Nuclear Non-Proliferation Treaty (NPT) 2010 review conference is to be a success. Issues over Iran and compliance continue to dominate its preparatory process, of course. But more generally there is the sense around that we may be on the cusp of something hopeful with respect to nuclear disarmament. While the last two decades have seen too many missed opportunities for the world to move closer to nuclear abolition, the next couple of years hold considerable promise if some of the new ideas and new coalitions that have emerged over the last year or two are taken up by states and Iran's alleged NPT non-compliance is substantively addressed. Meanwhile, paralysis in the Conference on Disarmament continues.

The Arms Trade Treaty (ATT) initiative is evolving too, and an Open-Ended Working Group will meet in 2009. An ATT resolution in the UN General Assembly late this year was opposed by only two countries - the U.S. and Zimbabwe . The prospect of a negotiating process on an ATT seems tantalisingly close...

2008 was also a significant year for work on curbing the effects of small arms and gun violence. In July, Patrick Mc Carthy wrote that the UN small arms process is "back on track" in its implementation of the 2001 Programme of Action following difficulties in 2006 that prevented assessment of the PoA's overall impact and strengthening of implementation. Despite opposition from Iran and Zimbabwe, the 2008 Biennial Meeting of States in New York adopted a substantive and forward-looking final document.

We've had a bunch of other interesting posts on this blog covering all sorts of issues, from piracy to the Mine Ban Treaty to expertise in mediation and negotiation with respect to Zimbabwe, biological weapons and even why the Arcade Fire and Duran Duran are like the Oslo process and CCW. We've also had the odd book review, which have prompted some spin-off blogs.

Meanwhile, we've been very fortunate on the Disarmament as Humanitarian Action project at UNIDIR to have had two sterling Visiting Fellows this year, who've provided welcome intellectual argument, lots of coffee and prolific blogs. Maya Brehm came from Copenhagen University for three months and never left, which worked out very nicely for us. Our other visiting fellow, Rocky Horror Picture Show fan Virgil Wiebe, helped us to keep track of the CCW, but finally had to return with his family to tropical Minneapolis at the end of November. Ferney-Voltaire will never be the same again... We've seen some other departures too, with Patricia Lewis leaving UNIDIR and taking up a new role as Deputy Director and Scientist-in-Residence at the Monterey Institute. And Patrick Mc Carthy moved to a new role with UNDP from October concerning the Coordinating Action on Small Arms (CASA). His successor as Geneva Forum Network Coordinator, Silvia Cattaneo, has now come on board, so welcome Silvia, and good luck Patrick!

As 2008 ends, so too the Disarmament as Humanitarian Action project draws to a close after five years of research and outreach, four volumes of published work (our final volume will be out very shortly) and numerous articles, meetings and, of course, blog posts. A big thank you is due to our principal donor, the Government of Norway, as well as to the Netherlands along with all of those people who've helped us with input and support along the way (not least our guest bloggers).

However, this is not really the end of DHA. The Disarmament Insight blog will continue in the New Year, and we might run further meetings along the lines of the five symposia we've held with our partner the Geneva Forum, which have been very successful and culminated in our November residential seminar in Glion. And, Maya and I have been carrying out research since March of this year on a spin-off DHA project to research an analytical history of international efforts to address the humanitarian impacts of cluster munitions, to be published in late 2009. The CCM and the Mine Ban Treaty's implementation have shown that humanitarian disarmament is alive and well.

So, it's busy, busy, busy. I hope everyone who reads our blog has a wonderful festive season. Keep reading Disarmament Insight and commenting on it: we'll be back in the New Year.

John Borrie

Picture by John Borrie. We're tired out pussycats too.

CCW: Let's do the time warp again...and again in 2009

For the last two days, the UN Convention on Certain Conventional Weapons (CCW) has been holding what is, in effect, its annual general meeting. It follows a week of difficult cluster munition expert group talks (see preceding DI blog posts), and annual meetings of two of the CCW's protocols earlier this week - on explosive remnants of war (Protocol V) and mines and booby traps (Amended Protocol II) respectively.

Although general in scope, the High Contracting Parties meeting that concluded this afternoon has been dominated, of course, by the saga of cluster munitions. With no prospect of collective agreement on Chairman Bent Wigotski of Denmark's text of a protocol this year, there have been some ill-tempered exchanges and blame game politics going on.

The U.S. and Israel, in particular, yesterday tried to lay the blame squarely at the feet of the 25 or more countries who told the expert group meeting last week that the Chair's text in its current form would not be an acceptable outcome for them. Israel - failing to mention the strong objections it raised over the course of this year about key provisions of the Chair's text as recently last week - was particularly strident. The U.S. argued that failing to agree on the Chair's text was a missed opportunity, since the users and producers of cluster munitions had moved so far in dealing with the issue. Some states who shunned the Oslo Process bemoaned its (alleged) insidious effects in making states unrealistic (that is, too ambitious) about what could be achieved in humanitarian terms in the CCW. Looking around the room, this observer noted that many eyes rolled at this - and it is not clear to me that even those saying such things really believe it.

And evidence of that movement was hard to see in Russia's interventions. Yesterday afternoon's Russian statement showed scant movement in substance from their position a year earlier. And Russia again said it would not agree to a mandate for continued work on cluster munitions - this time for 2009 - containing the word 'protocol' (2008's expert group mandate talks of "negotiating a proposal"). Pakistan, the incoming CCW president for 2009, urged everyone to keep calm: everyone agreed they wanted a mandate for continued work, the Pakistani ambassador said, and everyone knew what the mandate would mean in substance, if not in precise form. Rather, the real issue was political will to complete the negotiation, not the wording of the mandate. The refrain of many Western states, especially the Dutch: Why can't we just call a protocol a protocol then? Nyet, came the reply.

Subsequent consultations - both inside the CCW chamber and in private - were thus concerned about actually summoning the flexibility the most vocal protagonists in this debate all said they possessed. And, lo, the CCW did achieve a mandate, which was agreed this afternoon. It is as follows:

"The Group of Governmental Experts (GGE) will continues its negotiations, taking into account document CCW/GGE/2008-V/WP.1 and other present and future proposals by delegations, to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations.

"The GGE should make every effort to conclude its negotiations as rapidly as possible and report to the next meeting of the High Contracting Parties.

"The work of the GGE will be supported by military and technical experts.

"The GGE will meet, [sic] up to two weeks in 2009, from 16 to 20 February 2009 and subsequently, if required, from 14 to 17 April 2009."

The mandate doesn't mention a protocol. Nevertheless, it means that in the New Year the CCW will have another window of opportunity to try to come to a consensus on the work it has started on agreeing a protocol/proposal/instrument/thingummy.

So the CCW seems to be on a trajectory to achieve something on cluster munitions in its expert group: the question is how robust that outcome will be, and that probably has a bearing on how legally-binding it is, which is perhaps where the Russians are coming from in saying they won't agree to a protocol until they see what's in actually in it. The ICRC warned at the end of today's meeting that in view of 2008's developments, cluster munitions could no longer be considered as just another weapon able to be dealt with adequately by general international humanitarian law rules: whatever comes out of the CCW, all states need to take relevant national actions. The Cluster Munition Coalition (CMC), for its part, was in no doubt about what it thought of the situation: it immediately issued a press release stating that, in the CMC's view, the talks had failed despite a renewed expert group mandate.

Of course, the political constellation next year will also be different, following the Oslo CCM signing ceremony this December and changes of government in various places. But will 1 or 2 weeks of extra time in 2009 be enough to transform the Wigotski text into something that isn't too strong for cluster munition producers and users, while at the same time not too weak for those countries concerned about whether it will deliver sufficient humanitarian benefit? I'm not particularly optimistic.

John Borrie

P.S. Best of luck and many thanks to Virgil Wiebe, who has been our visiting research fellow for the last three months. Virgil is returning to his day job at the University of St Thomas, Minnesota next week. Kia kaha (stand strong) Virgil, and thanks for all the blogging!

References

The procedural report and other documents from the CCW meetings over the last fortnight can be found - or will shortly be found - on the UN's website here.

Random picture of a penguin (made by Lizzy Borrie) celebrating further CCW work for 2009 by dancing to the Rocky Horror Picture show vid from the preceding blog. Photo by John Borrie.

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

Stay Tuned in 2009 . . .

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

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

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

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

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

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

Stopping the Clock

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

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

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

Misgivings about process

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

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

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

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

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

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

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

Where things stood on Friday

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

Monday and Tuesday’s (Non) Developments

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

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

Signs of Hope

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

Virgil Wiebe

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

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CCW: The wailing wall

In the preceding post on this blog on Wednesday, I observed that the Chair of the UN Convention on Certain Conventional Weapons (CCW)'s determined efforts to achieve agreement on a cluster munitions protocol based on his own text this week was not without risk - that trying to force an agreement (or, as importantly, being perceived to be doing so) could see work fail.

That afternoon in CCW session, Costa Rica read out a statement on its behalf and that of Austria, Belgium, Benin, Bosnia & Herzegovina, Chile, Croatia, Ecuador, El Salvador, Guatemala, Holy See, Honduras, Indonesia, Ireland, Lebanon, Mexico, New Zealand, Nicaragua, Norway, Peru, the Philippines, South Africa, Uganda, Uruguay and Venezuela. Senegal also subsequently associated itself with the statement, which said:

"We have been encouraged to see the growing recognition of the humanitarian impact of cluster munitions within CCW since 2006. We have constructively engaged in working towards a credible outcome that would effectively address the grave humanitarian problems caused by the use of cluster munitions.

"The Chair's text as it stands does not, however, meet that standard. Instead, by allowing states to choose from a menu of vaguely-worded options, we do not see how it would provide sufficient added value over the current situation, and it could be used as a justification for the continued use of cluster munitions that have already proven over the past decades to cause exactly the humanitarian consequences that we are trying to address.

"For these reasons, the Chair's text as it stand is not acceptable to our delegations.

"The credibility is measured by its substantive outcomes, and whether they make a contribution to the strengthening of IHL [International Humanitarian Law]. This protocol could set a dangerous precedent in allowing the CCW to fall behind stronger existing standards [i.e. the Convention on Cluster Munitions]. To ensure a strong and credible CCW any outcome must represent a significant development of IHL, rather than affecting its clarity and coherence. We are prepared to work constructively towards this end."

There were some strong reactions in response, including from India, the Czech Republic and Russia, against attempts - as Russia saw it - to carry over the logic of one process (the CCM) to another (the CCW). For its part, the Cluster Munition Coalition told the meeting that, in its view, "we believe that the text as drafted will not enhance the CCW's reputation or credibility. Instead, it will hurt the CCW's reputation and credibility because it is fundamentally flawed".

The Chair, Ambassador Bent Wigotski of Denmark - clearly one very unhappy man - said he would hold private consultations on Thursday morning to try to sort out the situation. But these did not appear to make much head-way. That afternoon, he told another meeting of the CCW group of experts in plenary that, as a result of his intensive consultations, he didn't see any possibility of arriving at an agreed Chair's text, and that he did not plan any more initiatives from the Chair. Moreover, Wigotski said he had become a "mobile wailing wall" for delegations.

This morning, the last allotted day of 2008 expert work on cluster munitions under the current CCW mandate, the plenary convened again for general statements. Most in the room were bracing themselves for the almost inevitable commencement of the blame-game. And so some of the statements proved to be. Countries which had earlier in the week criticized a Chair's text that they claimed violated their national red-lines on multiple, substantive points such as Pakistan, Brazil, China, Russia, Israel and India could now be heard praising it as the basis for agreement and bemoaning attempts to exert the influence on the CCW of standards set elsewhere (that is, in Dublin in May) - and thus now the national red-lines of many others present - as a sort of fifth column. The U.S. said it was unrealistic to expect it to adhere to any kind of prohibition related to cluster munitions: they remained lawful weapons, in its view, and critical to its national security interests.

Another target for their ire were the re-issued amendment proposals of some of the Costa Rican group as well as a Mexico-New Zealand-Norway proposal for an alternative protocol text containing only the CCM definition of a cluster munition and provision for a complete transfer ban on the weapon. That proposal aside, the amendments had largely been re-issued existing proposals (done so at the Chair's request) because one reason for the joint-statement on Wednesday had been growing frustration that the views of these countries were not being reflected in any of the Chair's series of texts. This allowed the Chair to say he hadn't heeded them because he didn't think they would fly, which to this observer seemed to be at odds with the earlier surprise he had expressed that such views still existed. For good measure some of these re-issued proposals were attacked as "unrealistic" by certain cluster munition possessor states in the CCW although, of course, most were less ambitious than provisions agreed by 107 states at the CCM negotiations earlier this year.

On the whole, those countries associating themselves with Wednesday's statement read by Costa Rica kept their powder dry and their microphones switched off today, although Mexico, Costa Rica, Honduras and Croatia did speak. Croatia argued, in particular, that the CCW needed to get beyond the orthodox national security mindset so dominant, and think more deeply about the human consequences of what it did or didn't do in terms of the difference it would make to people on the ground.

So where does that leave things? Consultations continue in the margins, but there is little time left. The procedural report and meeting wrap-up session is due to commence at five o'clock this afternoon (CET). The tone of many of those who spoke today, both among the 25 and their critics, was that work needs to continue to achieve a consensus on a CCW protocol. Although there are persistent rumours of textual compromise proposals in certain back-pockets, it's unlikely the gulf in views can be bridged between now and next Friday, when the CCW's annual general meeting wraps up. But that conference may well agree on a mandate extension for cluster munitions for one more year (the ninth that the CCW has been working to 'urgently' address humanitarian problems related to cluster munitions in one form or another). Or, as Canada suggested, a couple more weeks in spring 2009 might be sufficient.

A new year, and with it a new mandate and Chair (Ambassador Wigotski is no doubt sick to the back teeth by now of anything to do with cluster munitions), may well change the tense atmospherics that have developed this year in the CCW. Maya, Virgil and I will provide further thoughts in the course of next week, once we've had a chance to reflect on what has been a turbulent few days.

John Borrie


Picture of the CCW conference room by John Borrie.