Cluster bomb ban in force

Chalk up another law regulating the way that war is waged.
The Convention on Cluster Munitions today enters into force for the 30-plus countries that have joined the treaty since it was adopted on May 30, 2008, in Dublin, Ireland. To date this this legal prohibition on the use, production, stockpiling and transfer of cluster munitions has been ratified by these countries : Albania, Austria, Belgium, Burkina Faso, Burundi, Comoros, Croatia, Denmark, Equador, Fiji, France, Germany, The Holy See, Ireland, Japan, The Lao People’s Democratic Republic, Lesotho, Luxembourg, The former Yugoslav Republic of Macedonia, Malawi, Mali, Malta, Mexico, Moldova, Montenegro, New Zealand, Nicaragua, Niger, Norway, Samoa, San Marino, Seychelles, Sierra Leone, Slovenia, Spain, United Kingdom, Uruguay and Zambia.
This November in Vientiane, Laos, states parties will assemble for the 1st time.
The campaign for more states parties to the treaty continues. (Prior IntLawGrrls posts) Campaign tools include the International Committee of the Red Cross publication Death in the fields, a moving comic book, by Swiss-Lebanese cartoonist Chappatte. It depicts the harm that cluster bombs wreak on children and their communities in South Lebanon.

Guest Blogger: Vivian Tan

Welcome to Vivian Tan (2L Santa Clara University School of Law), who today contributes the guest post below on the 2008 Cluster Munitions Convention.
Vivian (right) discovered the importance of international law while working on anti-sweatshop campaigns in rural China four years ago. Realizing the strong ties between economic disadvantage and the international legal system, Vivian hopes to bring positive change in the world through ethical business and legal practices. She believes humanitarian law and human rights law are fundamental to the alleviation of poverty.
Vivian is currently pursuing her J.D. at the Santa Clara University School of Law. She represented her school in this year's Jean Pictet Competition held in Evian-les-Bains, France. (Her team was one of only four U.S. teams to compete, along with the Air Force Academy, the Military Academy at West Point, and New York University). Her blog on the competition is available here.
Santa Clara team members Ann Marie Ursini (far left), John List (center) and Vivian Tan (far right) are depicted at left with members of the University of Amsterdam team.

Critique of the Cluster Munitions Convention

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Since their introduction in World War II, cluster munitions have evolved into one of the most effective and devastating weapons used in warfare around the world. Despite their military value, the indiscriminate effects of cluster bombs run afoul of the principles of distinction, proportionality, and military necessity fundamental to international humanitarian law. The high failure rate of cluster bombs imperils civilians who come into contact with unexploded submunitions long after conflicts end. Children face even greater danger as they often mistake the brightly colored submunitions for toys. And yet, until recently, codified international humanitarian law did not fully address the dangers posed by cluster bombs.
Although the Convention on Certain Conventional Weapons was amended in 2003 to include an additional Protocol requiring the clearance of explosive weapons of war, the treaty inadequately addresses the urgent threats posed by cluster munitions due to procedural and substantive defects. First, few developing countries are represented at meetings of the monitoring body for this weapons convention, and many states affected by cluster munitions are not party to the treaty at all. Since states only need to adopt two out of five protocols to become signatories, adherence to the Conventional Weapons Convention varies substantially. The obligation to clear explosive remnants of war cannot be applied retroactively to resolve problems caused by cluster munitions already deployed. Further improvements to this multilateral treaty cannot be made without consensus among the parties. The result is a slow, inefficient process that is incapable of handling pressing humanitarian issues in a timely manner. The rising numbers of post-conflict civilian casualties caused by cluster munitions clearly show that international humanitarian law has so far been ineffective.
The consistent pattern of humanitarian harm caused by cluster bombs demanded action from the international community, prompting the creation of a new dedicated treaty that would address the most critical issues. The 2008 Convention on Cluster Munitions, adopted last summer in Dublin, Ireland (prior IntLawGrrls post), is a necessary addition to international humanitarian law because it fills the gaps in existing weapons regimes and sets out explicit prohibitions and obligations not covered in the conventional weapons treaty.
The general prohibition in the Cluster Munitions Convention against the production, use, stockpiling, and transfer of cluster munitions represents a significant improvement upon the vague standards of the older Conventional Weapons Convention. The later treaty's mandate for the destruction of stockpiles is particularly important, as many countries have retained old cluster bombs dating as far back as the Cold War that have become highly unstable with age. As of 2007, at least seventy-five states were stockpiling cluster munitions, containing billions of explosive submunitions. By prohibiting the transfer of cluster munitions, the Cluster Munitions Convention guards against exportation as a means of reducing stockpiles. This new treaty also sets specific deadlines for bomb clearance and destruction.
In addition, the Cluster Munitions Convention addresses victims already injured. States parties are obligated to develop national plans to assist all victims affected by cluster bombs without discrimination. The treaty also urges international cooperation, providing that state parties with the capabilities to do so “shall provide technical, material and financial assistance” to other state parties to accelerate and facilitate the processes.
Also laudable are transparency measures and requirements for thorough reporting. Within 180 days after the treaty enters into force for a state party, the state must disclose to the United Nations information such as a description of its current stockpile, bomb clearance and destruction programs, known areas of contamination, and proposed plans to achieve the goals of the Cluster Munitions Convention. State parties are also obligated to provide thorough status reports when requesting extensions on deadlines. The convention's flexible amendment process also allows shortcomings to be rectified swiftly. The United Nations may convene an Amendment Conference as quickly as the majority of state parties deems necessary, and a two-thirds vote by the state parties present passes the amendment.
Despite these important contributions, the Cluster Munitions Convention contains several significant flaws, such as the conflicting definitions of cluster munitions. First, the treaty only addresses cluster bombs dispensed by aircraft, leaving out those launched by submarines or on land. At the same time, the treaty gives a generic definition of cluster munitions that may result in an over-inclusive ban on more sophisticated models that do not cause the devastating humanitarian harm associated with the antiquated types. Only particular cluster munitions meeting specific requirements, including the ability to self-destruct, self-deactivate, and detect and engage a single target object, are allowed. According to cluster munitions experts, however, accuracy and self-destruction mechanisms have not proven to be effective or reliable.
Disparity among the state parties' capacities and ill-defined standards are also critical drawbacks. Where there exist no relevant international regulations, the Cluster Munitions Convention requires state parties to apply “any necessary national law” to achieve its goals and penalize non-compliance. This may result in significant inconsistencies in enforcement among state parties. The treaty is also unclear on who should monitor its implementation, such the use of trust funds or mediation of dispute settlements between state parties. While the dispute provisions offer recourse to the annual Meeting of the Parties, this suggests that pressing issues cannot effectively be addressed in the interim. State parties are also obligated to bear the costs incurred by the United Nations in enforcing transparency and compliance measures. The heavier burden will fall upon poorer nations, who may not have the resources to keep up with the strict compliance standards in the first place.
The Cluster Munitions Convention has met resistance from major stockpilers like the United States, Russia, and China, because it does not take into account the military value of cluster munitions or the expensive nature of their clearance and destruction. The key players' refusal to adopt the treaty diminishes other states' incentives to join.
The treaty nevertheless establishes a solid framework for the orderly elimination of cluster munitions and their lingering effects. Going forward, the international community should monitor the systems developed under the Cluster Munitions Convention and focus on setting uniform implementation standards. In addition, ambiguous provisions should be amended when more data becomes available. Amendments might include model policies and procedures for carrying out the treaty's goals and financial assistance plans to encourage more states to join.

Clustering around new treaty

Representatives from more than half the countries in the world met in Oslo, Norway, yesterday to sign the Convention on Cluster Munitions that, as we've posted, was adopted at an international conference in Dublin, Ireland, in May.

The 1st to sign was the host country, followed by Lebanon and Laos, 2 of the many states whose children, women, and men have been maimed by the aerial bomblets. (photo credit)

Not signing were, among others, China, India, Israel, Pakistan, Russia, and the United States, the last for reasons that this post analyzed.

A surprise signer was Afghanistan. The Associated Press reported that the country "appeared to have been swayed by a teenager who lost his legs to a cluster bomb and lobbied the Afghan delegation to sign the treaty." The signature marks a departure from the policy of the United States, engaged since 2001 in aiding Afghanistan's current government militarily. But it is not the 1st: Afghanistan already is a member state of the International Criminal Court, a treaty regime the Bush Administration repudiated soon after entering office in 2000.

Yet to be determined:

► How long will it be before the 30th state deposits its instrument of ratification so that the cluster Munitions treaty may enter into force?

► What will be the policy of the United States with regard to this convention -- not to mention the ICC treaty, the land mines treaty, and a host of others -- once the Obama Administration takes office next month?

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.