“I also want to thank Daryl Kimball and the Arms Control Association for allowing me to address all of you today and for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war.”

– Joseph Biden, Jr.
January 28, 2004
Letter to the Editor: Cluster Munitions and the CCW: Is There a Happy Ending?

Lou Maresca

As highlighted by François Rivasseau (“The Past and the Future of the CCW,” March 2011), review conferences have been important landmarks in the evolution of the Convention on Certain Conventional Weapons (CCW). The conferences have been used by states-parties to adopt new protocols, strengthen existing provisions, and decide on proposals for work on new weapons issues. They also have adopted tools to facilitate compliance and implementation and to promote universalization. The conferences have added important protections to the fabric of international humanitarian law.

Nonetheless, these meetings also have struggled at times to find agreement on important issues. Despite three years of intense negotiations, CCW parties in 2006 were unable to finalize a protocol to improve the rules on anti-vehicle mines. As a result, 25 states committed themselves to new national standards on anti-vehicle mines similar to those proposed for a new protocol. Dissatisfaction with the modest amendments adopted for Protocol II (on mines, booby traps, and other devices) in 1996 led to a process to develop a treaty outside the CCW to impose a comprehensive ban on anti-personnel mines.

As Rivasseau suggests, there is a risk that the 2011 CCW Review Conference could have a similar outcome, namely, that CCW parties again will fail to reach agreement on rules for a weapon about which there is widespread concern or, if they do agree, that the rules adopted are likely to be criticized and viewed by many states and organizations as inadequate. This time, the issue is cluster munitions. After deciding not to negotiate rules on cluster munitions in 2006, parties later changed course and have struggled over the past four years to develop a protocol to address the humanitarian impact of these weapons.

The CCW’s work on cluster munitions is complicated by the fact that 73 out of 114 CCW parties already have signed or ratified the Convention on Cluster Munitions (CCM), which prohibits the use, production, stockpiling, and transfer of these weapons. The proposals currently under consideration in the CCW are far less comprehensive than those of the CCM and would allow the continued use, production, and transfer of models of cluster munitions known to have severe consequences for civilians. It is difficult to predict at this stage if a CCW protocol on cluster munitions will be adopted. Yet, a protocol based on existing proposals is likely to be widely criticized for having weak standards and for “relegitimizing” weapons that many CCW states deemed to cause “unacceptable harm” to civilians when those states signed the CCM in 2008.

Underlying Rivasseau’s points on cluster munitions is the often-asked question of whether the failure to conclude a new protocol on cluster munitions would undermine the CCW’s credibility and the success of the upcoming review conference. It should be noted that the CCW does not seem to have been harmed by its failure to conclude a protocol on anti-vehicle mines in 2006. Few outside CCW circles mention it today, nor is it a critical issue in discussions with nonparty states considering adherence to that convention. On the other hand, the amendments agreed on by CCW states in 1996 on anti-personnel mines, which are weaker than those of the Mine Ban Treaty, are often raised as a matter of concern. States that are not parties to the CCW regularly question the value of adhering to a convention that contains obligations weaker than those already binding on it from other instruments.

Thus, assessments of the CCW’s credibility should consider whether parties should settle for a protocol that may not be effective in addressing the humanitarian problem at hand if they are unable to agree on clear and strong standards. Such assessments also should include other measures. Rivasseau is right to highlight the valuable lessons that can be drawn from the 2006 review conference and the approach it took on anti-vehicle mines. If it is not possible to adopt strong standards for cluster munitions at this year’s review conference, states not party to the CCM could still make a contribution through national action such as transfer prohibitions, the elimination of old stockpiles, and vigorous implementation of the CCW’s Protocol on Explosive Remnants of War, which was adopted in 2003.

Lou Maresca is a legal adviser at the International Committee of the Red Cross.