Pact on Battlefield Munitions Reached

Wade Boese

The United States and other countries have successfully wrapped up negotiations on an agreement to clean up unexploded and abandoned munitions after conflicts. But U.S. officials have yet to decide whether to endorse the accord and seek Senate approval.

Despite opposing such an outcome throughout three rounds of negotiations this year, the United States Nov. 28 opted not to block adoption of the new agreement as a legally binding document. Because the talks operated by consensus, the United States could have single-handedly prevented the agreement’s conclusion. U.S. officials had preferred a nonbinding statement of political intent.

Edward Cummings, head of the U.S. delegation to the talks, explained the U.S. deferral to all the other negotiating parties’ wishes in a Dec. 10 interview with Arms Control Today. He said that, although the U.S. preference for a political document had not changed, Washington did not want to upset other countries that preferred a more binding document. He also noted that the agreement is consistent with current U.S. policy and practice and reflects Washington’s military and humanitarian objectives.

Cummings said he expected that the U.S. government would soon initiate a “good faith” review of the agreement to decide whether the United States should ratify it. The agreement will enter into force six months after 20 countries ratify it. Only those ratifying the agreement would be legally bound by it.

If it takes effect, the agreement would constitute the fifth protocol to the Convention on Certain Conventional Weapons (CCW), which aims to regulate or ban the use of arms that are judged as indiscriminate or “excessively injurious.” Current CCW protocols apply to incendiary weapons; blinding lasers; nondetectable-fragment weapons; and mines, booby traps, and other devices. CCW states-parties also agreed in November to begin discussions soon on the possibility of a sixth protocol restricting the use of anti-vehicle mines.

Dutch Ambassador Chris Sanders, who chaired the talks on the new agreement, said in a Dec. 11 interview with Arms Control Today that the participating countries were “very satisfied that we managed to conclude a legally binding instrument.” He observed that some may have wanted a stronger or a weaker document but such feelings are typical for any compromise agreement.

Regardless of the new agreement’s status and the United States’ own uncertain position, Washington is urging all countries to abide by the agreement, which is designed to protect civilians from the dangers posed by leftover ordnance on the battlefield, also known as explosive remnants of war (ERW).

The agreement assigns primary responsibility for cleaning up such dangerous debris to the government that controls the territory where the ordnance is located. Some countries pushed for an agreement that made the government whose armed forces created the ERW assume responsibility, but many opposed the concept as impractical because they questioned how a government that no longer occupied or controlled an area could clean it up.

However, the agreement does commit governments that leave behind unexploded or abandoned munitions on another’s territory to provide “where feasible, inter alia technical, financial, material, or human resources assistance…to facilitate the marking and clearance, removal or destruction of such explosive remnants of war.” For example, a government could provide technical information on how best to defuse or destroy its bombs safely.

All of the agreement’s provisions on assistance are qualified by terms such as “where feasible,” “as far as practicable,” and “in a position to do so” that in effect permit governments to interpret their responsibilities broadly. There is no mechanism to compel countries to provide help if they choose otherwise.

The most hotly debated issue during the negotiations was how the agreement should apply to ordnance already scattered on former battlefields around the globe. Countries currently afflicted with ERW wanted the agreement to obligate other governments to help them clean up their territories, but the effort failed. Instead, afflicted countries have a right to ask for aid but are not guaranteed to receive it.

Although the agreement focuses on postconflict responsibilities, it also urges countries to take voluntary steps to make ERW less likely, such as ensuring that bombs and shells explode reliably. The Swiss government proposed that governments institute measures to guarantee that munitions work 98 percent of the time, but others objected that doing so would be too expensive and lead many capitals to avoid endorsing the agreement.

Similar cost concerns could frustrate completion of an agreement on anti-vehicle mines. The United States is not proposing a ban on such mines, but U.S. officials are proposing that anti-vehicle mines be constructed to be detectable. They are also suggesting that all mines designed to be launched from artillery or dropped from aircraft be equipped with effective self-destruct or deactivation mechanisms. Several countries, including China, contend that such requirements would cost too much.

The U.S. proposal, which has 30 co-sponsors, will be debated by the 92 states-parties to the CCW in three rounds of meetings in 2004 with the first in March. Other anti-vehicle mine proposals by Germany, Ireland, and Mexico will also be considered. The Mexican proposal calls for an anti-vehicle mines ban. As with the new ERW protocol, any proposal will have to win consensus to be formally adopted.