Tuesday, May 26, 2009

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.

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