Cluster munitions convention is an international humanitarian law milestone


"The pound of a gavel Friday ushered in a new era of international humanitarian law (IHL) and marked the beginning of the end for a weapon that has caused tens of thousands of civilian casualties over the past 40 years.


(01.06.2008)

Without a single objection, 111 states attending a negotiating conference in Dublin adopted a Cluster Munitions Convention on May 30. In the final speeches that followed, delegates repeatedly referred to the treaty as a "groundbreaking" instrument and a "milestone" of IHL.

The Cluster Munitions Convention bans the use, production, stockpiling, and transfer of cluster munitions and will set new legal precedent in several ways. When the process began in February 2007 in Oslo, the treaty looked like it would be primarily an adapted version of the highly successful Mine Ban Treaty. The original draft borrowed heavily from the latter's structure, and like the mine ban process, the Oslo Process went outside of the traditional United Nations forum (the Convention on Conventional Weapons (CCW)) and involved civil society. But the final text is much more than a second Mine Ban Treaty.

First and probably foremost, the Cluster Munitions Convention revolutionizes the rules of victim assistance, which are laid out in a separate article as well as sprinkled through other parts of the text. It links IHL to human rights law to provide victims with physical and psychological aid. It also uses a broad definition of victim, which encompasses survivors, their families, and their communities. While containing elements of a disarmament treaty, this convention is at heart a humanitarian one.

Second, the treaty structures the definition of "cluster munitions" in an innovative way. It describes the prohibited weapon in broad terms as a munition that contains submunitions. The definition then establishes five restrictive and cumulative technological criteria that exclude only such weapons that do not have an indiscriminate area effect and produce large numbers of explosive duds that endanger civilians. The comprehen-sive ban that results covers all types of cluster munitions that have ever been used and almost all of those stockpiled. It puts the onus on state parties to prove a weapon falls under the exclusion before using it.

Third, the treaty includes a provision that places special responsibility on user states to assist with clearance of cluster munition duds that predate the treaty's entry into force. Although there is precedent for such a retroactive obligation in international law, this provision is the first of its kind in a weapons treaty. It was weakened somewhat during negotiations-"shall" assist become "strongly encouraged to" assist, but it still puts pressure on user states to accept legal responsibility for their actions and help expedite clearance of the deadly weapons they left behind.

Finally, the treaty takes a step backwards on the issue of conduct during joint operations with non-states parties. Like at least a half a dozen other weapons treaties, the Cluster Munitions Convention obliges states parties not to assist non-states parties with acts prohibited under the treaty. Due to US pressure on its allies, however, drafters added a separate article that qualifies obligations during joint military operations. The new Article 21, which a Cluster Munition Coalition (CMC) co-chair referred to as a "stain on the fine fabric" of the convention, is drafted in a vague manner; as a result, contrary to the purpose of the treaty, some states parties might choose to interpret Article 21 as if they could host foreign stockpiles of cluster munitions and intentionally assist with violations of the treaty. The codification of a legal precedent qualifying the prohibition on assistance is unfortunate for the development of future weapons treaties, but in practice it is unlikely to cause a humanitarian problem. States can still make declarations explaining their understandings of the provision, and the United States will likely bow to political pressure and not put their allies in awkward positions.

Despite the mixed feelings around the room about the controversial Article 21, negotiating states, observers, and the CMC all recognized the treaty for the historic achievement it was. When the conference president's gavel fell, hundreds of delegates rose clapping to their feet and tears welled up in many eyes. Now, as delegates from all sides began talking about at the CMC party Friday night, the work turns to the signature, ratification, universalization, and implementation campaigns to make the comprehensive ban on cluster munitions a legally binding reality."

Von: 2.6.2008, jurist.law.pitt.edu, by Bonnie Docherty

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