Adopted by consensus on October 10, 1980, by a UN conference in
In 2001 the focus of the convention was extended to internal conflicts. As with many disarmament and arms control treaties of the second half of the last century, such as the nuclear Nonproliferation Treaty; the Biological Weapons Convention; the Chemical Weapons Convention; the Mine Ban Treaty, also known as the Ottawa Convention; and the Convention on Cluster Munitions, also known as the Oslo Convention, the CCW establishes a regime marked by quinquennial review conferences. This regime has provided room for establishing under the convention itself five different protocols, on detectable fragments, mines and booby traps,[1] use of incendiary weapons, blinding laser weapons, and explosive remnants of war (ERW).
The next review conference, the fourth one, will take place in November. It is therefore appropriate to review the history and current workings of the CCW as a first step in updating the thinking about the usefulness of the convention and considering ways and means to ensure the success of the upcoming conference.
The 2006 Review Conference
The last CCW review conference, in 2006, ended in a relatively satisfactory way with a consensus on a modest result of substance. This result was not predetermined. Indeed, during George W. Bush’s presidency, there were extremely few review conferences of disarmament bodies that did end with some substantial results.
The flexibility of the participants in this CCW review conference and a focus on nondivisive issues such as adopting Protocol V on ERW, universalizing the treaty and its protocols, and strengthening compliance mechanisms helped avoid a negative outcome, the impact of which would have been very unfortunate for the future development of humanitarian law.
By its specific approach (a regulatory logic seeking a balance between military requirements and humanitarian needs) and its modus operandi (consensus, flexibility, and the parties’ option not to join the protocols that prove to be too difficult to swallow), the CCW offers a unique forum for dialogue and negotiation and serves as the main laboratory for the development of humanitarian international law.
Another advantage, which also could be a handicap, is that most of the important countries in the field of disarmament and humanitarian international law are parties to the CCW. That is not the case in some other important conventions such as
The CCW is one of two international processes addressing cluster munitions. The other, known as the
In the past, many nongovernmental organizations (NGOs) have opposed the two ways of achieving a norm, often criticizing the CCW process for being unable to push forward norms that would be advanced enough to satisfy the requirements of modern humanitarian law and for being hijacked by some countries that, for national security reasons, do not want to renounce some of their weapons. They have praised ad hoc processes, such as the Oslo effort, for being the source of better humanitarian law as well as setting up a framework more independent of UN power relationships, friendlier to NGOs, and more apt to attract financial sponsorship.
History, although short, already has demonstrated that it would be a mistake to oppose either the CCW process or ad hoc processes such as those of
In the real world, this complementarity implies that, in political terms, the two exercises cannot be conducted at the same time. Historically, efforts in the CCW always have preceded the others.
Sometimes, a case is made for a protocol that is less demanding than the Oslo Convention and that could be completed in a CCW framework. Those fearing such a development argue that a more recent and less demanding norm would weaken the existing Oslo Convention. This argument is more the expression of a moral aspiration than a realistic view. The common logic that underpins the
In certain cases, the international community should recognize and accept that there is no room for a new norm for the time being. That is the case when countries with strong defense constraints do not want a new norm and, on the opposite side of the board, when affected countries are not numerous or affected enough to give the required impetus to establish a norm derived from the CCW but independent of it. This clearly was the situation with mines other than anti-personnel mines (MOTAPM), a slightly broader concept than anti-vehicle landmines. Work done in the CCW context made the issue of a ban or restrictions on MOTAPM ripe for a new protocol, but strong opposition and the relatively small number of affected countries prevented the effort from coming to fruition.
The solution in that case has been to try to capture the voluntary commitment of a significant number of countries to accept new constraints regarding their own MOTAPM. The 2006 CCW Review Conference took note of this commitment, which, although weak, has some value. In other words, each situation should be assessed to determine the appropriate solution. In some cases, that will mean recognizing that the issue, although deserving to be periodically reviewed, should be left at rest. There is no wisdom in remaining at a permanent impasse.
One also should not overplay the arguments about the need to maximize political pressure on states that are reluctant to sign the highest norm and about the risk of giving them an escape route by agreeing to a less rigorous norm. In the golden 1990s, in the aftermath of the end of the Cold War, such reasoning had some value, but now countries with strong defense constraints may make the clear choice of paying a certain price in terms of public opinion rather than increasing their own insecurity as they perceive it. That is particularly true if the norm has been developed without them. Once a government has made the decision that it will not adhere to a new norm on these grounds, the prospects for changing its mind probably will be slim.
To sum up, the 2006 review conference teaches us a simple lesson: goodwill, common sense, and modesty are never wasted. They produce results, although not enough. It is typical of humanitarian law, where progress is often slow, painstaking, and incomplete.
The Upcoming Review Conference
During the last several years, there have been two main subjects in the meetings that are part of the CCW review process: a protocol on cluster munitions and universalization of the treaty.
Cluster munitions. Negotiations on the cluster munitions protocol are continuing, and lessons drawn from the last review conference indicate that there would be real merit in achieving what would be a sixth protocol, provided the negotiations are completed quickly. Because of their humanitarian nature, negotiations in the CCW context should not follow the pattern of more classical disarmament treaty negotiations, whose lack of progress paralyzes entire forums. If there is not a consensus, it may be the result of objections coming from militarily constrained countries or the most zealous partisans of the Oslo Convention.
The main problem lies within the first category of objections. The militarily constrained states should remember that allowing a sixth protocol to be approved does not mean that they are obliged to sign, ratify, and implement it. One of the greatest advantages of the CCW in this regard is its mandated adherence to only two protocols, not six. One sometimes hears the argument that accepting a sixth protocol without signing it would damage the image of the state concerned. This is not a strong argument. States that are not willing to accept a cluster munitions protocol always will feel pressure from public opinion, but the pressure will result first and foremost from the existence of a more ambitious norm, the Oslo Convention, which is much more visible.
For the same reason, the fears of the Oslo Convention’s most zealous advocates should not constitute an obstacle. Indeed, the CCW is much less visible than the
If success nevertheless remains elusive, leaving the issue at rest, perhaps the MOTAPM precedent could be applied. That would mean widening the range of international commitments, although they might be voluntary on cluster munitions, and reviewing the issue regularly. This approach could provide an outcome that is not too frustrating. The worst approach would be to continue “digging the hole” because, at a certain point, being too obstinate would damage the whole regime.
Universality. The other main issue has been universalization, and it should be considered a serious one. Even if the major players are there, only 101 states are parties to the CCW, and the numbers for adherents to the protocols are even worse. The review conference should agree to a “new plan” to promote universality of the CCW and its protocols, a plan more ambitious and far reaching than the one agreed five years ago. Also, there should be a new effort to attract sponsors of such a plan, under the mechanism set up in 2006.
The purpose of review conferences, however, is not only to try to complete efforts that have begun years ago. They offer the CCW the opportunity to be the scout of the international community in the field of international humanitarian law. In this context, the results of the 2006 review conference suggest two additional axes of efforts.
The first is to identify new issues. With the progress of technology and the mutation of the forms of conflict, new weapons are appearing. Others are used in new ways that make them relevant to the CCW community.
It would be an interesting challenge to try to set up an expert mechanism that would be tasked as appropriate to reflect on identifying new areas of concern and the rationale for these concerns. This would serve as a kind of early-warning system, helping the CCW community to avoid involving itself in efforts that would not be supported by a strong enough humanitarian justification.
In recent years, some issues that could be considered as ripe for consideration by the CCW community have been mentioned. These include phosphorus weapons or depleted-uranium weapons. Do these subjects, from scientific and humanitarian points of view, really deserve the effort? The evidence is not convincing, at least not yet, thus the need for better assessments.
Conversely, it should be interesting to study new restrictions or prohibitions on weapons that are only in the testing phase. After all, as the CCW’s early story shows, it is always easier to establish norms related to weapons that are in the development and testing phase rather than weapons that are of traditional use in the doctrines and practices of large armies.
The second axis is to pursue the “
Conclusion
Although and perhaps because the CCW is not very well known, its regime constitutes an important and unique tool in the development of humanitarian law. Until now, it has been successful enough to attract interest and goodwill so that the three first review conferences ended with a consensus on procedures and substance. This spirit should be preserved in November during the fourth review conference under all circumstances.
François Rivasseau, the deputy chief of mission of the French embassy in
ENDNOTE
1. A 1996 amendment strengthened this protocol.