Vienna, Austria
Thank you, Mr. Chairman.
The Vienna discussion text introduces three provisions, new since the Lima text, that are essential for minimizing the civilian harm caused by existing cluster munition duds. Articles 6(4) and 4(4) require user states to assist in the clearance of their unexploded submunitions, even if the use occurred before the treaty takes effect. Article 6(6) provides similar obligations but should also apply to user states in particular. Although all of these provisions could be written more clearly, the Cluster Munition Coalition welcomes the new language and urges states to support these provisions for inclusion in the final treaty.
The principle of holding user states responsible for existing duds is a logical extension of the Convention on Conventional Weapon (CCW) Protocol V on Explosive Remnants of War. Protocol V includes one article requiring user states to assist with clearance of new explosive remnants of war (ERW) and another requiring all states parties, in a position to do so, to assist with clearance of existing ERW. The Vienna discussion text explicitly combines these two obligations-special responsibility for user states and clearance of ERW that pre-dates the treaty.
Other international law provides more precedent for the principle. The requirement for user states to assist with clearance or destruction of abandoned munitions appears in multiple weapons treaties, including the Chemical Weapons Convention and CCW Amended Protocol II on Landmines.
Additionally, states parties can be and have been assigned responsibility for actions initiated before a law takes effect. First, under certain legal principles, notably applied in environmental cases, states have a duty to clear harmful materials they left behind, even before there was a codified legal obligation, if the harm was foreseeable. States could foresee the humanitarian dangers of cluster munitions since their earliest use. Second, several international legal bodies have held states responsible for harm initiated by them before a treaty entered into force if the harm continues in the present. Unexploded submunitions launched in the past pose present harm, killing and injuring scores of civilians each year. Third, under international law, states can choose to take responsibility for actions that occurred before a treaty enters into force. Thus, international and domestic law does not prohibit imposing clearance responsibilities on states whose use of cluster munitions pre-dates the convention.
Finally, the principle requiring user states to assist with clearance of existing submunitions is a critical element of any treaty banning cluster munitions because it contributes to efficient and effective clearance. In particular the treaty should include specific language requiring the sharing of the kind of information that facilitates clearance, including the types, quantities, and precise locations of cluster munitions used. The next version of the cluster munition treaty text should add stronger language to that effect.
In conclusion, a cluster munition convention offers the international community an opportunity not only to prevent future use of cluster munitions, but also to eliminate the existing threat to civilians from remaining cluster duds. It should do so by adopting some version of the international cooperation provisions discussed here. They will help advance the core goal of the convention, which is to prevent humanitarian harm to the civilian population.
Thank you.
