Realism and the cluster bomb ban

Is the 2008 Convention on Cluster Munitions unreal?
So one might conclude from statements last week by our Opinio Juris colleague Julian Ku and others.
On Friday in Dublin, Ireland, 111 nation-states voted to adopt the treaty. On December 3 Norway will host a signing ceremony for the treaty, which will not enter into force until after 30 states have ratified it.
Key to the treaty is Article 1, "General obligations and scope of application," which provides:

1. Each State Party undertakes never under any circumstances to:
(a) Use cluster munitions;
(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;
(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

This undertaking explicitly applies not only to cluster bombs, but also "to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft." These bomblets are dropped by the hundreds from the air. Many do not explode for years, until, that is, the bomblets are picked up, "often by children attracted by their small size and bright colors." Hence the poster above right. Answer to its question is: 2d from right, cluster bomb. (photo credit) Some bomblets, like that depicted near left, resemble food aid packages like that at far left. (photo credit) In total, 4 out of 10 cluster bomb victims are children.

The treaty further provides in Article 3, "Storage and stockpile destruction":

1. Each State Party shall, in accordance with national regulations, separate all cluster munitions under its jurisdiction and control from munitions retained for operational use and mark them for the purpose of destruction.
2. Each State Party undertakes to destroy or ensure the destruction of all cluster munitions referred to in paragraph 1 of this Article as soon as possible but not later than eight years after the entry into force of this Convention for that State Party. ...

Julian Ku wrote that adoption of the treaty

may or may not be a good idea. But since key cluster bomb producers and users like the United States, Russia, China, Israel, India and Pakistan are not signatories, the importance of this treaty, beyond its symbolism, is questionable. Like the treaty to ban landmines, the vast majority of countries that will sign on to this treaty do not possess cluster bombs anyway. Hence, this is, for most countries, a costless decision and the use of landmines or cluster bombs is not substantially affected.

John Pike, "defense analyst and director of GlobalSecurity.org," offered harsher criticism:

'This is a treaty drafted largely by countries which do not fight wars. Treaties like this make me want to barf. It's so irrelevant. Completely feel-good.'

In point of fact, treaty adopters include "many of America's major NATO partners" -- countries now stationed in Afghanistan and Iraq. Treaty adopters include, moreover, many countries whose nationals suffer death or permanent injury from the use of this weapon to fight wars.

Even putting those facts to 1 side, the claims deserve further debate.

It's worth noting that the number of states supporting the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction has swelled from 85 to 156 signatories. And though it stayed out of the land mine treaty regime, Marc Garlasco of Human Rights Watch told the Toronto Star, the United States "has not planted a single land mine since then." Others, including a Norwegian Defense Ministry official predict the same result for the cluster bomb treaty, though U.S. officials disagree.

Julian's post did allow that "for some countries, there are real costs to signing on." He mused:

Britain had the most difficult decision, and it is a challenge for realists to explain why a country like Britain would give up a military weapon without gaining any concessions from most of its treaty partners.

This claim falls prey to a common conflation, that of "realism" with "militarism." In point of fact, a real realist will not always choose the use of power. Indeed, the debacle in Iraq is due to a decision to ignore realists who opposed invasion.

A decision to promote humanitarian ends likewise may serve realist ends. In that vein I've pondered why countries approved nonconsensual jurisdiction in the International Criminal Court treaty. I wrote (p. 204) that what I called a "relational" view

does not deny that states may seek to maximise self-interest; nevertheless, it accepts that self-interest may entail something other than aggrandisement of political and economic power. A state may, for example, come to find self-interest in the promotion of international respect for human rights. At the very least, a state will want to be seen as acting in this manner, even if it simultaneously pursues less idealistic paths. This well may have a pragmatic dimension: the self-interest of a weaker state in restraining the power of others is evident. But there also may be an idealistic dimension, a self-interest in placing the needs of the cross-border human collectivity over those of any individual state. ...

Weapons control, in short, need not be at odds with realism.