Cejiss

The Convention on Cluster Munitions Comes into Force

The Convention on Cluster Munitions[1] that prohibits all usage, stockpiling, production, and transfer of cluster munitions was adopted by 107 states on 30 May 2008 in Dublin. It was signed on 03 December 2008 and it entered into force on 01 August 2010.[2] Although this development was adequately described by the UN as a ‘major advance for the global disarmament and humanitarian agendas'[3], it remains to be seen whether the move towards universal compliance with the Convention will occur in the years to come.

Overview of the Convention

The main commitments formulated in the Convention are of two types. First, each State Party to the Convention undertakes never, under any circumstances, to use cluster munitions, ‘including explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft.' [4] They also undertake not to develop, produce or otherwise acquire, stockpile, retain or transfer cluster munitions, nor to assist, encourage or induce anyone to engage in any activity prohibited to a State Party under the Convention.[5]

Second, States Parties undertake to destroy or ensure the destruction of all cluster munitions under their jurisdiction as soon as possible but no later than eight years after the Convention entered into force for the relevant State Party, using methods complying with applicable international standards for protecting public health and the environment.[6] In case of necessity, the States can submit a request to convene a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the destruction of such cluster munitions by a period not exceeding four years. Article 4 provides for the clearance and destruction of cluster munitions remnants and risk reduction education, and for a similar possible extension of the relevant deadline, under request by the interested State, by a period not exceeding five years. Article 5 contains provisions on victim assistance, while Article 6 deals with international cooperation and assistance; Article 7 is devoted to transparency measures. States Parties to the Convention shall take ‘all appropriate legal, administrative and other measures'[7] to implement this Convention, including the imposition of penal sanctions. Article 10 addresses the issue of the settlement of disputes arising between two or more States Parties with respect to the interpretation or application of the Convention and it provides for the settlement of such disputes by negotiation or by other peaceful means of their choice, including a recourse to the Meeting of States Parties and referral to the International Court of Justice. Provisional application of the obligation defined in Article 1 of the Convention, pending its entry into force for the relevant State, is possible on a voluntary basis.[8] Article 21 provides that each State Party ‘shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.'[9] However, the same article stipulates a noticeable indirect restriction to the scope of the Convention, i.e. that ‘[n]otwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.'

Commentary

It is interesting to observe the Oslo Process follow a voluntarist and ultimately successful, path that is quite similar to the so-called ‘Ottawa Process,' which resulted in the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.[10] Indeed, ‘in 1996, in the wake of the Geneva-based Convention on Certain Conventional Weapons (CCW) that failed to deal adequately with anti-personnel mines, Canada challenged the world to conclude a ban treaty within one year, and the world responded to the challenge. In the wake of the failure of the CCW to address the issue of cluster munitions in 2006, Norway spearheaded a process to develop a treaty banning such weapons by the end of 2008'.[11] Just as in the case of the Convention on Anti-Personnel Mines[12], there is one significant source of concern regarding cluster munitions that remains, i.e. the fact that some of the main owners of cluster munitions are reluctant to withdraw them from their arsenals. It is evident that the Convention will hardly constitute a truly global ban on cluster munitions unless countries that produce, stockpile and use cluster munitions, including Russia and the United States, ratify the treaty[13].

05 September 2010

[1] Diplomatic Conference for the Adoption of a Convention on Cluster Munitions, Convention on Cluster Munitions, 30 May 2008, CCM/77 (hereinafter ‘the Convention'), available at: http://www.unhcr.org/refworld/docid/4843e59c2.html [accessed 17 August 2010]. The Convention stems from the so-called ‘Oslo process', named after the first global conference on cluster munitions, which took place in Oslo (Norway) in February 2007, and issued the ‘Oslo Declaration', a commitment to establish an international treaty prohibiting cluster munitions before the end of 2008. Numerous documents relating to the negotiation process are available at: http://www.clusterconvention.org/pages/pages_vi/vib_osloprocess_document..., [accessed 19 August 2010].
[2] Article 17 of the Convention provides that the ‘Convention shall enter into force on the first day of the sixth month after the month in which the thirtieth instrument of ratification, acceptance, approval or accession has been deposited'. So far, 108 countries have signed the Convention and 38 have ratified it.
[3] See UN News Centre, ‘UN hails entry into force of global pact banning cluster munitions', available at: http://www.un.org/apps/news/story.asp?NewsID=35479 [accessed 30 July 2010].
[4] Convention, Article 1.
[5] Ibid.
[6] Ibid, Article 2.
[7] Ibid, Article 9.
[8] Ibid, Article 18.
[9] It is also to be noted that Article 19 precludes reservations to the Convention by signatory States.
[10] See Stuart Maslen, Commentaries on Arms Control Treaties, Volume I, The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (Oxford: Oxford University Press, 2004); W. Boothby, Weapons and the Law of Armed Conflict (Oxford: Oxford University Press, 2009).
[11] See G. Dube, Negotiating the Convention on Cluster Munitions. The Role of African States, ISS Paper No. 187 (Tshwane, Pretoria, South Africa: Institute for Security Studies, 2009), p. 15.
[12] See W. Boothby; supra note 10, p. 193.
[13] On the US position with respect to cluster munitions, see J. Anzalone, ‘The Virtue of Proportional Response: The United States Stance Against the Convention on Cluster Munitions', in: Pace International Law Review 22. 1 (2009): 154-185.