From 2000 until 2007, the United States and others rejected the idea of negotiations on cluster munitions within the Convention on Certain Conventional Weapons (CCW). In November 2006, at the Third Review Conference of the CCW, the US, with support from the UK, prevented a mandate to negotiate an instrument on cluster munitions, proposed by 27 states. As a result, Norway launched a freestanding process to negotiate an international treaty on cluster munitions. In 2007, reacting to the ‘Oslo process,’ the United States reversed its position and called for a mandate to negotiate an instrument in the CCW.

With the majority of CCW states focused on the Oslo process, CCW work made little progress from 2007-2009. However, in 2010 a new Chair of the negotiations, Jesus ‘Gary’ Domingo of the Philippines, began to make progress by proposing a ban on certain cluster munitions produced before 1980. At the last session in August, there was no consensus in favour of the current draft protocol. At the Fourth Review Conference from 14-25 November, states will decide whether a) to adopt the draft protocol; b) to end negotiations with no result; or c) to adopt a political agreement that is not legally binding, but that contains certain interim steps.

Key issues

The CMC, ICRC and pro-CCM states such as Norway, Mexico and Austria have strongly criticised the current draft protocol as weak, convoluted, and impossible to put in practice or verify. Crucially, the 1980 date is arbitrary and a range of cluster munitions produced after that date would be allowed even though they have caused unacceptable humanitarian harm. In addition, there has been strong criticism that the protocol would set a highly negative precedent, being the first time International Humanitarian Law (IHL) has moved backwards, going from a high standard to a lower standard. States Parties to the CCM have a legal obligation to promote the norms it establishes and to discourage use of cluster munitions by others. These states should not facilitate a CCW deal that clearly contradicts the CCM.

 

Those in favour of a CCW protocol claim that ‘something is better than nothing’ – that even a partial ban would be a positive step for those not ready to join the CCM. But the draft text actually falls short of the US national policy and China and Russia have not revealed what the protocol would actually oblige them to do. Under the surface there is another reason the US is pushing the CCW protocol. It is a reaction against the ‘Oslo process,’ which they see as having circumvented the proper channels of multilateral work. Seen this way, the negotiations are less about cluster munitions and more about who makes the rules in international affairs.

What should be done

The UK and other states bound by the CCM should reject any new protocol based on the current draft. Other states outside the CCM should take national steps to bring them closer into line with this emerging international norm.

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