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Treaty ANALYSIS: The Convention on Cluster Munitions
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Jeff Abramson

On Dec. 3, more than 100 countries are expected to sign the Convention on Cluster Munitions (CCM) during a ceremony in Oslo. If at least 30 states deposit their instruments of ratification that day as anticipated, the new treaty should enter into force six months thereafter. Sharing many features with the 1997 Ottawa Convention on anti-personnel landmines and supported by many of the same individuals and organization who created that treaty, the CCM calls for the clearance and destruction of virtually all existing cluster munitions. It also includes novel measures on victims' human rights and access to health care, education, and decision-making. As such, the CCM could establish an international norm against the use of these weapons and strengthen the rights of victims of armed conflict.

Countries holding the majority of the world's cluster munitions stockpiles, however, have thus far not backed the CCM, instead opting to address the humanitarian impact of the munitions within the Convention on Certain Conventional Weapons (CCW). In 2006, Protocol V of the CCW entered into force addressing explosive remnants of war, a broad category that encompasses cluster munitions. More recently, a separate discussion on a so-called Protocol VI that would explicitly concern cluster munitions has taken place within a CCW group of governmental experts. That process failed to reach agreement on a new cluster munitions-specific protocol in 2008 but is expected to continue work in 2009.

Cluster munitions are bombs, rockets, and artillery shells that disperse small submunitions over broad areas and sometimes fail to explode initially, later injuring or killing noncombatants. The weapons date back to at least World War II. The United States, which possesses a stockpile of more than 700 million submunitions, used the weapons in the 1960s and 1970s in Southeast Asia, leaving an estimated 20 million unexploded bomblets in Laos alone at the end of the Vietnam War. Israel fired cluster munitions into Lebanon during hostilities in the summer of 2006, with perhaps 1 million submunitions failing to explode initially according to Handicap International. (See ACT, January/February 2008.) Hezbollah reportedly fired other cluster munitions into northern Israel that same year. More recently, Russia and Georgia used the weapons against each other this August. (See ACT, September and October 2008.)

The 2006 exchange raised a humanitarian outcry, and at the end of that year, Norway announced that it would take the lead in restricting the weapons after Russia, the United States, and some other countries party to the CCW refused to accelerate the pace of work on the weapons in that forum. The so-called Oslo process drew on a nongovernmental movement that had already coalesced around the weapons, comprised of many of the same individuals and organizations that had led the effort to create the 1997 Ottawa Convention banning anti-personnel landmines. (See ACT, December 2007.) Through major conferences in Oslo (February 2007); Lima (May 2007); Vienna (December 2007); Wellington (February 2008); and smaller, regional meetings, the Oslo process expanded to include more than 100 countries that agreed to the text of the convention on May 30, 2008, in Dublin.

Key compromises made during the Dublin meeting allowed many NATO partners, notably the United Kingdom, to support the convention despite U.S. pressure and disagreement with the Oslo approach. Most notably, Article 21 was inserted permitting military cooperation between states whether or not they were party to the treaty. The definition of cluster munitions also permitted the use of weapons that have cluster-like features provided that they meet five criteria designed to make sure the weapons avoid indiscriminate area effects.

Since the Dublin meeting, the United States has clarified its cluster munitions policy, reiterating that the weapons have military utility against massed formations as well as dispersed and moving targets and stating that by 2018 it will not use weapons with a failure rate of 1 percent or greater. Critics have called into question the reliability of tested failure rates and called on the United States and other major cluster weapons possessors to join the CCM. Within the CCW, member states have considered some limitations on the use of certain cluster munitions, but the last draft text still recognized the military utility of the weapons.

Ultimately, the treaty's effectiveness as a global norm will depend on the actions of nonparties as well as states-parties. It is unclear whether the CCW will be able to negotiate a complementary agreement that will include the world's major producers and users of cluster munitions, but the CCM has demonstrated that the majority of the world's countries seek to eliminate a weapon that endangers innocent civilians long after the fighting ends.

The Oslo process itself, by going outside the CCW, may convince countries to seek new fora for other arms control agreements. In particular, efforts to create a global arms trade treaty (ATT) have the backing of a vast majority of UN members and support from many of the same nongovernmental organizations involved in the CCM and Ottawa Convention. Discussions on an ATT are now headed to a UN open-ended working group, pending anticipated General Assembly approval. If that process moves too slowly, it would not be surprising if a future Oslo-like process were launched to develop norms on the transfer and use of all conventional weapons.

The Convention on Cluster Munitions

The CCM is patterned after the Ottawa Convention, in some places sharing the same language. Similar to that treaty, it expresses a strong commitment to end the humanitarian harm caused by a class of weapons and lacks the extensive implementation, verification, and compliance components of other major treaties.

The treaty's preamble stresses the determination of states-parties to "put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned" and "also to ensure the full realization of the rights of all cluster munitions victims and recognizing their inherent dignity."

In order to highlight those rights, the treaty includes a full article on victim assistance, which is missing in the Ottawa treaty.

It also diverges from the landmine model by not calling for a "total ban," instead allowing for future development of specifically defined weapons that would "avoid indiscriminate area effects and the risks posed by unexploded submunitions." In addition, it contains a unique article permitting states-parties to engage in military cooperation and operations with non-states-parties, even when cluster munitions are used, as long as a state-party does not request the use of the weapons.

Although welcoming CCW Protocol V on explosive remnants of war, the preamble emphasizes the wish "to enhance the protection of civilians" and "the desirability of attracting adherence of all States to this Convention, and [determination] to work strenuously towards the promotion of its universalisation and its full implementation."

Treaty Scope: The CCM's general obligations outlined in Article 1 are unambiguous: no cluster munition use, development, production, acquisition, stockpiling, or transfer to anyone. Subsequent articles oblige states-parties to clear and destroy cluster munitions under their control. Article 2's definition of a cluster munition includes a number of noncontroversial items, such as munitions designed to disperse flares or smoke, to be used for air defense, or to produce "electrical or electronic effects." The most important definitional change, reflecting a compromise worked out at the Dublin convention, is the noninclusion of munitions that have explosive submunitions meeting all of the following characteristics: numbering fewer than 10; weighing more than 8.8 pounds and less than 44 pounds; designed to detect and engage a single target; and equipped with an electronic self-destruct mechanism and an electronic self-deactivating feature. Although this allows for the retention of some weapons, such as the German-produced SMart-155 and the Swedish/French BONUS, and future development of those weapons designed to avoid indiscriminate area effects, treaty advocates stress that the definition captures virtually all cluster munitions that have been used to date. (Mines are also not included in the treaty.)

Exceptions: Article 3 of the treaty defines two exceptions to the accord's general obligations. First, states-parties are allowed to retain or transfer "the minimum number absolutely necessary" for the development of and training in cluster munitions detection, clearance, and destruction techniques, as well as countermeasure development. Second, states-parties may transfer cluster munitions for the purpose of destruction.

Relations With States Not Party to the Treaty: Article 21 obliges states-parties to the treaty to encourage nonmembers to ratify it, but allows for military cooperation between states regardless of membership, even if states not party to the treaty might engage in prohibited activities. States bound by the treaty are not allowed to "expressly request the use of cluster munitions where the choice of munitions used is within its exclusive control." This carefully crafted language represented a compromise at the Dublin conference that helped win the support of NATO countries, in particular the United Kingdom. Prior to the conference, the United States suggested that the treaty might make it impossible for the United States to cooperate on military and humanitarian relief missions because U.S. ships and forces carried cluster munitions. Many treaty advocates had sought to deny interoperability of forces, in the hopes that such provisions would convince those not party to the treaty to abandon cluster munitions.

Destruction and Clearance: Under Article 3's destruction provision, each state-party must destroy its stockpile of treaty-defined cluster munitions within eight years of entry into force of the treaty for that state. Under Article 4, which addresses clearance of cluster munitions-contaminated areas, each state-party commits to "clear and destroy, or ensure the clearance and destruction, of cluster munition remnants located in...areas under its jurisdiction or control" within 10 years of the treaty's entry into force for that state. A party may request an extension of up to four years to complete stockpile destruction and an extension of up to five years to complete clearance of contaminated areas. Such requests must include detailed plans and be approved by a majority of states-parties present at the vote.

In the Dublin negotiations, the destruction timelines were lengthened from earlier drafts or model treaties. The Ottawa landmine treaty only allows four years for stockpile destruction, and the Wellington draft of the CCM called for six years. The Wellington draft also only permitted five years for clearance of cluster munitions-contaminated areas.

Victim Assistance: Victims rights advocates hailed the inclusion of Article 5 on victim assistance because it linked human rights with an arms treaty. The article obligates states-parties to develop a national plan and budget to provide cluster munitions victims with medical care, rehabilitation, and psychological support and to "[c]losely consult with and actively involve" cluster munitions victims. Cluster victims are defined very broadly in Article 2 not only to include those physically harmed, but those who have suffered "psychological injury, economic loss, social marginalization or substantial impairment of the realization of their rights by the use of cluster munitions."

Cooperation and Assistance: Article 6's provisions on international cooperation and assistance are similar to the Ottawa Convention, entitling each state-party to seek and receive aid from other parties and international institutions. No formula is provided in the treaty, instead those states "in a position to do so" are called on to "cooperate with a view of ensuring the full and prompt implementation of agreed assistance programmes." In Article 4, states that have used or abandoned cluster munitions in another state's territory are "strongly encouraged" to provide assistance.

Transparency: Under Article 7, each party shall provide the UN secretary-general (the treaty depositary), within 180 days after the treaty's entry into force for that state, a detailed report of its progress in implementing the treaty. The reports include similar information as that required by the Ottawa Convention, including stockpiles, affected areas, steps taken to protect nearby populations, and clearance and destruction programs, as well as additional information, such as the amount of national resources allocated to stockpile destruction, clearance, and victim assistance and types of cooperation and assistance given and received. These declarations will thereafter be made on an annual basis not later than April 30 and will be transmitted to all states-parties.

Compliance: Article 8 allows any state-party to submit, through the secretary-general, a "Request for Clarification" relating to compliance by another treaty party. In the absence of clarification or the presence of what the requesting party determines is an unsatisfactory clarification, the issue may be brought to the subsequent meeting of states-parties. Unlike the Ottawa Convention, which details a number of timelines and allows for fact-finding missions, the treaty simply empowers the meeting of states-parties to take measures it deems appropriate.

Meetings and Amendments: Under Article 11, the secretary-general must convene the first meeting of states-parties within one year after the convention's entry into force to consider any issue involving treaty implementation. Thereafter, these meetings will occur annually until the first review conference, which the secretary-general will convene five years after the convention's entry into force (Article 12). Subsequent review conferences may occur at intervals of at least five years. Article 13 allows any state-party to propose amendments to the convention any time after it enters into force. If a majority of states-parties support its consideration, the secretary-general will convene an amendment conference, which must approve any amendment by a two-thirds majority of voting states.

The costs of all meetings and conferences shall be borne by states-parties and participating states (for example, as observers) according to the UN scale of assessment.

Entry Into Force: Article 17 stipulates that the convention will enter into force on the first day of the sixth month after the month in which the 30th instrument of ratification is deposited. For states that deposit their instruments after the date of deposit of the 30th instrument, entry into force shall occur on the first day of the sixth month after its date of deposit. Under Article 18, any state may, by declaration, apply provisionally the convention's general obligation (Article 1) at the time of ratification, acceptance, approval, or accession.

Reservations and Withdrawal: Article 19 states that no treaty article is subject to reservation. Article 20 mandates that the convention be of unlimited duration but allows a right of withdrawal to take effect six months after the depositary receives the instrument of withdrawal. If a state-party is engaged in an armed conflict at the end of the six-month period, the withdrawal will not take effect "before the end" of the conflict.

The full text of the CCM is available at www.armscontrol.org.


Posted: December 4, 2008