Vienna, Austria
Thank you for the floor, Mr. Ambassador.
With respect to Scope, we strongly support the "never under any circumstances" approach contained in the draft treaty text.
With respect to General Obligations, in addition to the disarmament prohibitions, we encourage states to consider adding references in Article 1 to the humanitarian undertakings required by the treaty, noting that each State Party undertakes to destroy stockpiles, clear contaminated areas, provide risk education, and, very importantly, provide victim assistance.
Interpretation and Clarification of General Obligations
Mr. Ambassador, although they should be, general obligations are not always crystal clear. They can leave room for interpretation, which in turn affects how a treaty is implemented and perceptions of compliance. Contrary or contradictory interpretations and implementation by various States Parties can fundamentally undermine the credibility and effectiveness of a treaty.
In this regard, we believe that it is very important that states make clear either through additional treaty text or through the diplomatic record the following:
- that "use" is not just new deployment of cluster munitions, but also encompasses the intentional gaining of military or strategic advantages from areas previously contaminated;
- that the transit of cluster munitions through the national territory of a State Party is also prohibited;
- that the prohibitions also apply to components of cluster munitions; and,
- that the prohibition on assistance includes a prohibition on investments in cluster munitions, on foreign stockpiling of cluster munitions on the national territory of a State Party, and on the planning or implementation of activities related to the use of cluster munitions in joint military operations with a state not party to the convention which may use cluster munitions.
Mr. Ambassador, this would appear to be the appropriate time to address the issues of a transition period and of interoperability.
Transition Period
We note that a small number of states have indicated their support for a transition period during which prohibited cluster munitions could still be used. This is a completely counter-intuitive concept. It does not work when a prohibition is being pursued. It would totally undermine efforts to stigmatize the weapon. If states have agreed that a cluster munition causes unacceptable harm to civilians, how can they then agree to allow on-going use by States Parties? When the treaty enters into force, all use of banned cluster munitions must be condemned, not legally permitted.
Proposals for a transition period for the Mine Ban Treaty were soundly rejected ten years ago. It is true that the Convention on Conventional Weapons Amended Protocol II has a transition period, a provision criticized by many, but it is somewhat less objectionable in an instrument that simply contains weak restrictions on use and requirements regarding new production. The transition approach is wholly inappropriate for a treaty prohibiting a weapon because it causes unacceptable harm to civilians.
If states wish to continue using cluster munitions that predictably kill and injure far too many civilians, they are not really yet prepared to be part of the Oslo Process. They should instead take the necessary steps to allow them to join at a later date. That approach is better than a provision that fundamentally undercuts the purpose and integrity of the treaty.
Interoperability
Mr. Ambassador, interoperability has been raised as a concern in a very generic way by a number of states. We are aware that the United States has been lobbying states on this issue with visits and documents. States need to be more specific first about the nature of their concerns and second about what they envision as possible measures to address them.
The experience of the past decade with the ban on antipersonnel mines shows that this kind of situation can be dealt with without fracturing alliances. It is worth noting up front that the US has publicly said that it has not used cluster munitions in Iraq since 2003 or in Afghanistan since 2002, and ISAF in Afghanistan has a policy of no use of cluster munitions.
States Parties will no doubt reject the notion that states that have banned a weapon can fight alongside an armed force actively using it. This would shred the credibility of a new treaty. Stigmatization, not legitimization, is the goal.
The basic point of departure is how States Parties will react to on-going use of banned cluster munitions by non-States Parties. They cannot condemn use by some, perhaps unfriendly, forces, then accept use by an ally. If a cluster munition has been banned because it causes unacceptable harm to civilians, then all use must be stigmatized by all armed forces. Unacceptable is unacceptable, it is not a case-by-case analysis.
The Mine Ban Treaty provides some guidance on this matter, in two ways. First, a number of States Parties have national declarations and national laws addressing the issue of the potential criminal responsibility of a soldier unknowingly involved in some way in a joint operation where cluster munitions are present or used. Second, there have been extensive discussions about what the prohibition on assistance means. States Parties to this new cluster munition treaty should be clear on this matter and elaborate for the diplomatic record what acts are prohibited and what acts might be permissible.
In the Mine Ban Treaty context, most States Parties have made clear that "mere participation" in joint military operations with non-States Parties, even those that stockpile cluster munitions, is not prohibited. The issue only comes into play when non-States Parties may contemplate use of cluster munitions in joint operations. There has been general, albeit informal, understanding that States Parties may not participate in the planning for use of the weapon; agree to rules of engagement permitting use of the weapon; accept orders to use the weapon; request others to use the weapon; knowingly derive military benefit from the use of the weapon by others; train others to use the weapon; provide security, storage or transportation for the weapon.
In closing, Mr. Ambassador, we would like to draw attention to one specific matter in the draft treaty text. There has been a change from the Lima draft to the Vienna draft in which the phrase "in any way" has been deleted under Article 1 (c) in which it is prohibited to "Assist, encourage or induce [in any way] anyone to engage" in prohibited acts. This could be seen as a weakening of this obligation as compared to the Mine Ban Treaty, from which the language comes. We believe the phrase should be re-inserted.
Thank you.
