Thank you for the floor Mr. Chairman,
There is an advantage to speaking last, in that we get to hear and reflect on all the other interventions. It is safe to say that, without question, there are wildly different perceptions among states both of where things stand right now in the process, and what the impact would be of a new protocol based on the chair’s draft text.
Here are our perceptions in a nutshell. One, it is crystal clear that there is not anything remotely resembling consensus on the chair’s draft text. And two, the chair’s text is still a convoluted document that will not make a meaningful humanitarian difference, that will set a bad precedent in international humanitarian law, and that is incompatible with the Convention on Cluster Munitions. Adoption of the protocol would, on balance, slow down global progress in addressing the evils of cluster munitions, not advance it.
During this CCW process, states not yet willing to join the ban convention have indicated their willingness to take positive steps on cluster munitions. We encourage them to do so, but not as new international law that steps back from and risks undermining existing international law, but rather as a political declaration in the CCW context, and as binding national laws and policies.
Whatever the outcome, we firmly believe that states should commit now to ending the negotiations in November at the Review Conference, and not allow them to drag on yet another year.
Let me return to what we have heard in today’s interventions.
On the process, some have expressed optimism that states are close to agreement on a new protocol based on the chairman’s latest draft. We have heard that most vigorously from the states whose positions are best reflected in the draft text, and whose demands have been best met. The text allows them to keep huge stockpiles of cluster munitions, and to continue to use without limitation those cluster munitions that their militaries deem most important.
Some other states are not so happy with the text, and not ready to agree to it, because they think it goes too far. These states do not think that their positions have been adequately reflected in the draft text. They will be able to keep huge stockpiles of cluster munitions, but would not be able to continue to use some cluster munitions that their militaries continue to deem important.
And then there is the largest group of states, those that have joined the Convention on Cluster Munitions. Two-thirds of CCW States Parties have already signed or ratified the CCM. As far as we can tell, none of these CCM states believe that the chair’s text as currently drafted goes far enough. Some of them may be willing to go along if there are further improvements in the text.
And, there is a very significant number of Convention on Cluster Munitions States Parties that cannot accept the chair’s text or something that contains only minor changes. We heard from some, but by no means all, of those states today. They recognize the limited benefits of the draft protocol are far outweighed by its negative consequences. A group of them have put forward an alternative protocol text, and have indicated that they have done so in an effort to be constructive, but also out of frustration with their views not being incorporated into the chair’s text, draft after draft, year after year.
The CMC appreciates the motivations of those who have proposed and are supporting the alternative protocol. And there can be no doubt that from a humanitarian perspective, it is superior to the chair’s draft text. In the CCW context, the alternative protocol proposal deserves serious consideration and debate.
But the CMC cannot lend its support to the alternative text. It too falls far, far short of what is needed to deal effectively with the existing and future dangers of cluster munitions. The necessary legal basis already exists—the Convention on Cluster Munitions—and additional international law is both unnecessary and counter-productive.
Let me turn now to the varying opinions on the humanitarian impact of the chair’s draft text. Proponents have focused on the provision calling for a prohibition on the use of some cluster munitions produced before 1980, saying that this will affect a very large number of cluster munitions.
But no one really knows how many cluster munitions will be prohibited, how many will be restricted, and how many will be completely unaffected by this provision or the chair’s draft protocol more generally. Human Rights Watch has produced a chart that looks at how the ban convention and the draft protocol apply to those types of cluster munitions we know have been used in the past. The Convention on Cluster Munitions bans them all. The draft protocol does not immediately ban any of the types. It bans a subset of some of the types, the subset being those that are more than 30 years old. It will ban some others 12 years down the road. In truth, it is impossible to say definitively whether many types will ever be banned because it depends on states’ determinations about an interlocking set of various factors related to age, functioning mechanisms, failure rates, line of sight, anti-runway capability, engagement with ships at sea, and more. It appears to be an unworkable and unverifiable approach.
We don’t know the numbers potentially affected, because of the CCW States Parties that have not joined the ban convention, only the United States has provided detailed information about the number of cluster munitions and submunitions it holds. Without question a large number of cluster munitions will be covered, but it is very important to recognize that it appears that most CCW States Parties would be able to keep a majority of their existing stockpiles, and that would collectively constitute many millions of cluster munitions containing many hundreds of thousands of submunitions, perhaps more than one billion submunitions, all eligible for unlimited use. And many of these cluster munitions have been conclusively found to cause unacceptable harm to civilians.
In light of these grave doubts about the humanitarian impact of the chair’s draft protocol, it is fair to ask, what are some of those who have joined the Convention on Cluster Munitions thinking?
Why would states that have committed to a comprehensive and categorical ban on the weapon now agree to a protocol based on the chair’s text? There seem to be two key arguments. One, that something is better than nothing, that it will be beneficial to get states with large stockpiles and major past users that are not yet ready to join the ban convention to agree to some measures that will restrict their use of some cluster munitions. And two, that the credibility and viability of the CCW are at stake.
First, let’s look at the “save the CCW” rationale. From our perspective, and no doubt that of the media and general public, this protocol would not enhance the reputation of the CCW. Instead, it will look like a haven for states that will only commit to half-measures, for those who need political cover for their refusal to embrace fully the humanitarian imperatives driving new international law, driving humanitarian disarmament, like the Mine Ban Treaty and the Convention on Cluster Munitions.
Second, the “something is better than nothing” rationale. Although logical on its surface, this argument does not hold up. One has to consider just how bad the “something” is, and what its potential negative consequences will be, then assess benefits against losses. We have already touched on how bad the draft protocol is, and how unlikely it is to have a meaningful humanitarian impact. In fact, it could lead to even more widespread use of cluster munitions than in the past, by (in the view of some) re-legitimizing and facilitating the use of cluster munitions that might otherwise not be used.
The CMC has prepared a paper, available to all delegates, that enumerates the many ways in which the protocol would offer weaker protections for civilians. The ICRC has also made a strong statement, and issued a convincing paper, in this respect.
But beyond the flaws of the protocol itself, there are other highly troublesome potential negative consequences to the protocol. It will set a very bad precedent in international humanitarian law, for the first time creating new international law on a matter that is weaker than existing law on the subject. IHL should be cumulative and offer ever greater protections for civilians.
The protocol could serve to undercut the norm-building and standard-setting represented by the Convention on Cluster Munitions. The most powerful advocacy tool that those who want to eliminate cluster munitions have is stigmatization of the weapon. The protocol will work against that and instead serve to re-legitimize the use of cluster munitions in the eyes of some.
The protocol could also undermine or at least slow down universalization of the Convention on Cluster Munitions. Some states will be more than happy to have a “half-measures” or “interim” option to join, and then proclaim they are doing all they can on cluster munitions at this time. Without the existence of a protocol, they would be much more likely to embrace the ban convention in the near future.
Finally, there are serious questions to raise about the consistency, and even the legality, of Convention on Cluster Munitions States Parties engaging in these negotiations aimed at enshrining continued use of cluster munitions. Promoting the draft CCW protocol is at odds with the CCM Article 21 requirement to discourage all use of cluster munitions, and to encourage accession to the ban convention. Promotion of the CCW protocol could also run afoul of the CCM Article 1 prohibition on encouraging any act prohibited by the convention.
In conclusion, Mr. Chairman, let us stress our conviction that there can be something very positive to emerge from all these years of CCW discussions and negotiations on cluster munitions. The choice does not have to be a new protocol or nothing. A new protocol is not the only way, or the best way, to get those not ready to join the ban convention to do something positive. For several years, we have been urging CCW states to look at a political declaration, not a protocol, as the optimal outcome. This would be in keeping with the final result of years of CCW discussions and negotiation on Mines Other Than Anti-Personnel Mines. We have also urged states to adopt binding national policies and laws that incorporate the positive elements of CCW discussions. If a state is prepared to agree to limitations on cluster munitions in a legally binding international instrument such as the CCW, it should be ready to do so at the national level as well.
Whatever the outcome, Mr. Chairman, be it a protocol, a political declaration, or deadlock, we think it is time for states to acknowledge openly that the end game is here. States should commit now to an end to CCW negotiations at the Review Conference in November. A firm deadline is the surest way to get things done. After the Review Conference, it is time for states to move on to other pressing issues, in an effort to make the CCW relevant and vibrant in addressing the humanitarian problems posed by certain conventional weapons.
Thank you.
