Geneva, Switzerland
Thank you, Mr. Chairman. We share the deep concerns expressed by numerous states and the ICRC about the many problems with Article 4 on general prohibitions and restrictions. This is both the most important and the most seriously flawed Article in the draft text. Without wanting to repeat too much of what has already been said, we would like to outline our objections to the Article.
The general prohibition in 4.1 does not mention stockpiling, and the language in Article 5 on "Storage" also does not definitively ban stockpiling. Thus, should a state desire to do so, it could keep in its arsenal as long as it wants unlimited quantities of any type of cluster munition.
Article 4.2 is a huge series of exceptions that is made all the worse for its lack of clarity and precision about what is being excepted from the prohibition. We agree fully with Austria that this provision makes the ban meaningless and with Norway that this provision ensures a future protocol would make no meaningful humanitarian difference.
As others have pointed out, there is no way to know what many of the phrases in 4.2(a) mean. What does "is capable of" mean? Or "pre-defined target area?" Or "must effectively ensure?" What does it mean to say a submunition "will no longer function" as an explosive submunition? This would seem to imply a requirement for a 100% reliability rate, a standard that has never been achieved for any weapon.
While we do not know what these various phrases are supposed to mean, we do know that the so-called "safeguards" that are proposed do not work, certainly not well enough to achieve a 100% reliability rate, or well enough to make a sufficient humanitarian difference. Especially since it is permitted to just have one of the four features cited (self-destruct or self-neutralization, or self-deactivation or two fuzes).
In 4.2(b), we are unclear what "mechanism or design" means or "range of operational environments." But much more importantly, this provision is based on a designated failure rate approach that was discussed thoroughly and then rejected by 107 nations during the Dublin negotiations. Failure rates during testing bear little resemblance to rates during combat, and there is no way to ensure consistency in the way that different states determine failure rates.
It is also unclear if States Parties will simply get to choose between the 4.2(a) and 4.2(b) options, and if it is expected that they will make a declaration to that effect.
In addition to the giant loopholes in 4.2, the unfathomably long transition period envisioned in 4.3 is the most objectionable aspect of the draft text. The notion of a 13 to 20 year "timeout" makes a travesty of the rest of the text. Can anyone really argue that 20 years meets the GGE mandate of addressing the problem urgently? States could use any cluster munition, no matter how old, how high its known failure rate, for up to 20 years.
And let's be clear, the 13 to 20 year deferral is designed to permit continued use of the weapon during that time. It is not a lengthy period to allow time for the destruction of the large stocks held by some states, as some have inferred. There is no stockpile destruction deadline or even a requirement.
Finally, with regard to Article 4.4, it seems that the motivation behind the provision is a good one, in that it appears to be designed to take some of the sting out of the long transition period by encouraging some immediate steps upon entry into force with respect to development, production, technical improvements, and use parameters.
However, the language is weak and contains enough qualifiers that a State Party need not feel truly bound by any of its provisions should it not want to be bound. And some of the steps are hardly earth-shattering, such as removing from active inventory stocks of cluster munitions that are "in excess of requirements."
In conclusion, Article 4 appears to demonstrate that the intent of the draft text, and thus the purpose of a future protocol, is more to protect existing and future arsenals of cluster munitions than to protect civilians from their devastating effects.
Thank you.
