Adoption of the Convention on Cluster Munitions

On May 30, 2008, delegates at the Dublin Diplomatic Conference on Cluster Munitions adopted the Convention on Cluster Munitions (CCM), a new treaty that seeks to ban the use, development, acquisition, stockpiling, retention, and transfer of cluster munitions.[1] The CCM will be opened for signature on December 3, 2008 (CCM, Article 15). This Insight provides background on the development of this new treaty and describes the key components of the CCM.

The Cluster Munitions Problem

Cluster munitions are weapons that disperse sub-munitions or small bombs over a wide area. Cluster munitions have been used in a number of conflicts across the world. The most recent widespread use of cluster munitions took place in the conflict between Israel and Hezbollah in Lebanon in 2006, where Israel used an estimated 4 million sub-munitions delivered by cluster bombs.[2]

Use of cluster munitions in areas with concentrations of civilians increases the likelihood that such use cannot discriminate between a military and a civilian target. Experts have also argued that the harm cluster munitions cause to civilians violates the proportionality test in international humanitarian law.[3] In addition, once a conflict is over, many unexploded cluster munitions cause death and disabilities among civilians. The inaccuracy, disproportionate civilian harm, and unreliability of cluster munitions account for widespread condemnation of their use and stimulated growing calls for a prohibition on such weapons.[4]

The Diplomatic Negotiations on the Cluster Munitions Convention

PAlthough Protocol V on Explosive Remnants of War of the Convention on Conventional Weapons relates to unexploded ordnance, it does not ban the production, use, or stockpiling of any weapon.[5] The failure of States to negotiate a ban on cluster munitions within this treaty framework led to calls for a process outside the Convention on Conventional Weapons. Thus, treaty negotiations commenced with the Oslo Conference on Cluster Munitions in February 2007, at which the delegates determined to conclude a treaty banning cluster munitions by the end of 2008.

The Wellington Declaration of February 2008 laid down some fundamental principles to guide the negotiation of the treaty.[6] The last step was the Dublin Diplomatic Conference in May 2008, during which over a hundred states as well as humanitarian organizations deliberated on the final text of the treaty. The Dublin Conference used the Draft Cluster Munitions Convention of 21 January 2008 (Draft Convention) to finalize the text of the CCM.[7] However, not all states participated in the CCM negotiations. Notable absentees were countries that produce, stockpile, and use cluster munitions, including the United States, Israel, India, and China.

Overview of the Cluster Munitions Convention

General obligations and scope of application (Article 1)

Under Article 1(1), States Parties agree never under any circumstances to use, produce, acquire, transfer, and stockpile cluster munitions, or to assist, encourage, or induce anyone to engage in any of these prohibited activities. The use of the term “anyone” includes individuals and non-state actors, and is not restricted to states. The CCM does not apply to mines (Article 1(3)).

Some states wanted to permit the use of cluster munitions upon a declaration at the time of accession, for a finite number of years, “only when strictly necessary.”[8] Another proposal wanted to delay the obligations under the treaty for a period of years after entry into force of the treaty.[9] However, the CCM does not include these proposals.

Definition of “cluster munition” (Article 2(2))

The CCM defines a cluster munition as “a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions” (Article 2(2)). The CCM excludes from this definition:

• A munition or submunition designed to dispense flares, smoke, pyrotechnics, or chaff; or a munition designed for an air defense role [e.g., anti-aircraft munitions];
• A munition or submunition designed to produce electrical or electronic effects; and
• A munition that has all the following characteristics:
  • Each munition has fewer than ten explosive submunitions;
  • Each explosive submunition: (1) weighs less than four kilograms; (2) is designed to detect and engage a single target object; and (3) is equipped with both an electronic destruction mechanism and an electronic self-deactivating feature.

Destruction of cluster munitions (Article 3)

The CCM requires States Parties to destroy their stockpiles of cluster munitions as soon as possible but not later than eight years from the CCM’s entry into force (Article 3(2)). A State Party can request an extension of up to four years from a Meeting of the States Parties or a Review Conference (Article 3(3)). In exceptional circumstances, a State Party may request additional extensions of up to four years (Article 3(3)). States Parties shall consider such extension requests and decide by a majority vote whether to grant them (Article 3(5)). States Parties may agree to grant an extension for a shorter period of time than requested (Article 3(5)).

The CCM permits States Parties to retain the minimum number of cluster munitions absolutely necessary for the purposes of training in munitions destruction and detection (Article 3(6)).[10] The CCM allows States Parties to transfer cluster munitions to each other for destruction (Article 3(7)). To guard against abuse, States Parties retaining cluster munitions for training purposes or transferring such munitions for destruction must submit a detailed report to the UN Secretary-General on the planned and actual use of the cluster munitions and their type, quantity, and lot numbers (Article 3(8)).

Clearance and destruction of cluster munition remnants (Article 4)

The CCM requires States Parties to clear and destroy cluster munition remnants in areas under their jurisdiction or de facto control (Article 4(1)). The CCM defines “cluster munition remnants” as failed or abandoned, munitions and unexploded sub-munitions and bomblets (Article 2(7)). For cluster munition remnants that exist at the time the CCM enters into force, the State Party with jurisdiction or control must clear and destroy such remnants within ten years of such entry into force (Article 4(1)(a)). For cluster munition remnants created after the CCM’s entry into force, the State Party with jurisdiction or control must clear and destroy such remnants no later than ten years after the end of the hostilities in which the cluster munitions were used (Article 4(1)((b)). States Parties may request a renewable five-year extension for complying with the duty to clear and destroy cluster munition remnants (Article 4(5), (8)), and States Parties shall decide whether to grant such extensions, or shorter ones, at Meetings of States Parties or Review Conferences (Article 4(6)-(7)).

In cases where a State Party used or abandoned cluster munitions prior to the CCM’s entry into force in areas under the jurisdiction or control of another State Party, and those munitions became cluster munition remnants before the CCM’s entry into force, the CCM encourages the former State Party to provide assistance to the latter State Party in clearing and destroying such remnants (Article 4(4)(a)).

Victim assistance (Article 5)

Despite efforts during the negotiations to define “cluster munition victims” only to cover those directly affected,[11] the CCM defines such victims broadly to cover death, physical or psychological injury, economic loss, social marginalization, or substantial impairment of the realization of their rights caused by the use of cluster munitions (Article 2(1)). This definition includes persons directly affected as well as their affected families and communities (Article 2(1)).

The CCM requires States Parties to provide, in accordance with international humanitarian and human rights law, age- and gender-sensitive assistance, including medical care, rehabilitation, psychological support, social and economic inclusion efforts, to cluster munition victims (Article 5(1)). States Parties must also make every effort to collect data on cluster munition victims (Article 5(1)) and implement specific policies and measures to support the obligation to provide assistance to victims (Article 5(2)).[12]

International cooperation and transparency measures (Articles 6-7)

The CCM stresses that each State Party has a right to seek and receive assistance (Article 6(1)) and an obligation to provide assistance, when in a position to do so, to States Parties affected by cluster munitions (Article 6(2)), for clearance and destruction of cluster munition remnants (Article 6(4)), for destruction of cluster munition stockpiles (Article 6(5)), for assistance to cluster munition victims (Article 6(7)), and for helping States Parties recover economically and socially from cluster munition use (Article 6(8)). Assistance under the CCM can be provided through the United Nations, regional and national organizations, non-governmental organizations and other organizations such as the International Committee of the Red Cross (Article 6(2), (7)).

To enhance transparency, the CCM includes a mandatory and detailed reporting mechanism involving the UN Secretary-General, which commences 180 days after the CCM’s entry into force and includes annual update reports (Article 7(1)-(2)). These reporting requirements cover a wide range of information, including the status and progress of efforts to destroy cluster munitions, to clear and destroy cluster munition remnants, and to provide assistance to cluster munition victims (Article 7(1)).

National implementation, compliance facilitation, and dispute settlement (Articles 8-10)

The CCM contains numerous obligations relating to States Parties facilitating compliance with the treaty and clarifying questions relating to compliance (Article 8). States Parties are also required to take all appropriate national measures, including penal legislation, to prevent and suppress any activity the CCM prohibits (Article 9). Disputes under the CCM may be settled through mediation or other peaceful means, including referral to the International Court of Justice (Article 10).

Administrative mechanisms and development of the Convention (Articles 11-14)

The CCM requires regular meetings of the States Parties in the form of annual Meetings of States Parties (Article 11) and periodic Review Conferences (Article 12). Amendments to the CCM shall be discussed at Amendment Conferences, adopted by a two-thirds majority of States Parties present and voting at Amendment Conferences, and enter into force for States Parties that accept the amendments (Article 13). States Parties shall bear the cost of operating the CCM in accordance with the UN scale of assessment, as appropriately adjusted (Article 14).

Reservations and right of withdrawal (Articles 19-20)

The CCM does not permit any reservations (Article 19), but it allows States Parties to withdraw after six months notification, which should include full explanation of the reasons for the withdrawal (Article 20(2)). Notification of withdrawal does not become effective if the withdrawing State Party is engaged in an armed conflict when the six-month notification period expires (Article 20(3)). Instead, the withdrawal becomes effective after the end of the armed conflict (Article 20(3)).

Relations with states not party to the Convention (Article 21)

The CCM allows States Parties to engage in military cooperation and operations with States not party to the treaty that might engage in activities the CCM prohibits (Article 21(3)). This provision originated in amendments proposed by NATO countries concerned about the CCM’s potential effect on their military relationships with the United States, which was not present at the Dublin Conference and was unlikely to join the Convention.[13]

Entry into force (Article 17)

The CCM will enter into force six months after the 30th instrument of ratification or accession, acceptance or approval is deposited. Subsequently, for each depositary state, the CCM will enter into force six months after submission of the instrument.

Conclusion

The CCM is an important step in the development of international humanitarian law because it creates legally binding obligations on States Parties to prohibit the use and development of cluster munitions, destroy cluster munitions, clear and destroy cluster munition remnants, and assist cluster munition victims. However, many States that produce and use cluster munitions did not participate in the negotiations and, at present, shown no intention of becoming parties to the CCM. Article 21 allows States Parties to continue military cooperation and operations with States that decide not to join the CCM, potentially weakening a source of leverage for States Parties to encourage non-party States to accede to the treaty. What effect Article 21 might have on the CCM’s impact on the production and use of cluster munitions will not be known until after the CCM has entered into force.

About the Author

Priya Pillai (B.A., LL.B. (Hons.), and LL.M. (NYU)) is a Legal Officer at the International Federation of Red Cross and Red Crescent Societies, Geneva. The opinion in this Insight is the personal view of the author, and does not reflect the views of the organization.

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