The proposed CCW protocol poses a threat to the ban on cluster munitions that has been much discussed and should continue to be. But the problem does not end there. The proposed protocol would also have serious implications for international law. As explained in a new Human Rights Watch–Harvard Law School International Human Rights Clinic paper, adoption of the protocol would contravene established principles of international law and set a dangerous precedent for the future. The contents of the new draft protocol distributed Friday do not change this analysis.
First, adoption of a protocol that merely regulates cluster munitions would run counter to the purpose of international humanitarian law (IHL). The Convention on Cluster Munitions already establishes the highest protections for civilians with its ban. Watering down its obligations with a different IHL instrument would be inconsistent with IHL’s humanitarian objective.
Second, it is unprecedented in IHL for a weak treaty to follow a strong one. In fact, that body of law, like most international law, generally moves in the opposite direction. Successive treaties offer increasing protections for civilians. For example, regulations of chemical weapons and antipersonnel landmines ultimately evolved into absolute bans. Even the preamble of the CCW itself reaffirms “the need to continue the ... progressive development of the rules of international law applicable in armed conflict.”Contrary to this principle, valued by CCW’s drafters, adoption of the weak protocol would represent regression, not progression.
Third, the proposed protocol, which permits use of cluster munitions, would frustrate the purpose of the Convention on Cluster Munitions, which is to eliminate the weapons and the harm they cause. As a result, the competing protocol would create a “conflict between treaties.” Conflicts create undesirable incoherency and confusion in international law. According to one scholar, such a conflict of laws is “an anomaly which every possible precaution should be taken to avoid.”
The adoption of a CCW cluster munition protocol threatens to be more than an isolated contravention of accepted international law principles. It could also open the door to future weakening of the law, particularly in the field of weapons treaties. Therefore, to protect the precepts of international law as well as the absolute ban on cluster munitions, CCW States Parties should bring their decade of deliberations to an end and shift their energies to promoting the Convention on Cluster Munitions.
