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III. THE 2008 CLUSTER MUNITIONS CONVENTION: STEPPING OUTSIDE THE CCW FRAMEWORK (AGAIN)

Published online by Cambridge University Press:  06 February 2009

Karen Hulme
Karen Hulme
Affiliation:
Senior Lecturer, University of Essex
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Abstract

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Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 58 , Issue 1 , January 2009 , pp. 219 - 227
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 Simon Conway, Director of Landmine Action.

2 Letter to the UK Secretary of State for Defence published in The Times, ‘Cluster bombs don't work and must be banned’, The Times, 19 May 2008, signed by General Sir Hugh Beach, Field Marshal Lord Bramall, Major-General Patrick Cordingley, Lieutenant-General Sir Roderick Cordy-Simpson, Lieutenant-General Sir Jack Deverell, Major-General the Rev Morgan Llewellyn, General Lord Ramsbotham, General Sir Michael Rose and General Sir Rupert Smith.

3 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, (1980) 19 I.L.M. 1523–36.

4 International Committee of the Red Cross, Conference of Government Experts on the Use of Certain Conventional Weapons, Official Statement (Lucerne, 1975) at 54.

5 Wiebe, Virgil, ‘Footprints of Death’ (2000) 22 Mich. J Int'l L. 85, at 154–6.Google Scholar

6 1997 Ottawa Treaty on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, (1997) 36 I.L.M. 1507 [Ottawa Treaty]. States refused to discuss cluster weapons during the Ottawa process.

7 Available online at http://www.regjeringen.no/upload/UD/Vedlegg/Oslo%20Declaration%20(final)%2023%20February%202007.pdf

8 See Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities, Handicap International, May 2007.

9 Including Belgium, Austria, Norway, Hungary, Bosnia-Herzegovina, the Holy See, Ireland, Mexico, New Zealand; see Human Rights Watch, Survey of Cluster Munition Policy and Practice, February 2007, available online at http://hrw.org/backgrounder/arms/cluster0207/cluster0207web.pdf

10 Canadian Department of National Defence, Backgrounder, ‘Disposal of Rockeye Cluster Bombs at CFAD Dundurn’ (27 July 2004), available online at http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=1439

11 Adam Ingram, ‘Answer to Parliamentary Question on Cluster Munitions’, Hansard, Column 504W, February 1, 2007.

12 See the Human Rights Watch Briefing Paper, ‘Cluster Munitions a Foreseeable Hazard in Iraq’, March 2003, and Secretary of Defense William Cohen, ‘Memorandum for the Secretaries of the Military Departments, Subject: Department of Defense Policy on Submunition Reliability (U),’ January 10, 2001.

13 The wording refers to the 2006 ICRC call for a moratorium on use of cluster munitions.

14 The US is not convinced that a ban is necessary; suggesting that the 289 recorded global cluster munition casualties in the 2007 edition of the ‘Landmine Monitor’ does not warrant such a prohibition, see White Paper: Putting the Impact of Cluster Munitions in Context with the Effects of all Explosive Remnants of War, 15 February 2008, available online at http://www.state.gov/t/pm/rls/fs/100751.htm

15 Protocol V to the to the 1980 Conventional Weapons Convention, available at http://untreaty.un.org

16 Article 1.

17 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, 2003), at 94.

18 Article I, 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, (1993) 32 ILM 800.

19 Articles I to III, 1972 Convention on the Prohibition and Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction, (1972) 11 ILM 309.

20 Available at http://www.icbl.org/treaty

21 Forged in the Fire: Legal Lessons Learned During Military Operations, 1994–2006, US Centre for Law and Military Operations, September 2006, available online http://www.loc.gov/rr/frd/Military_Law/CLAMO.html at 70, and 151–5.

22 There are other indications that interoperability would not be such a problem, noting the policy of ISAF in Afghanistan not to use cluster weapons and the non-use by the US in Iraq since 2003, see Human Rights Watch, Statement to the Vienna Conference on Cluster Munitions, 6 December 2007, available online at http://hrw.org/english/docs/2007/12/06/global17637.htm

23 HL Deb 17 May 2007, cols 320–1, and House of Commons Foreign Affairs Committee, Global Security: The Middle East, Eighth Report of Session 2006–07, HC 363, p. 48. Estimates of duds from ‘dumb’ cluster munitions are now approaching 30%, see p. 48.

24 ‘Gordon Brown: Britain will Scrap Cluster Bombs’, The Telegraph, 28 May 2008. The Prime Minister also stated his intention to work to ‘bring in’ other countries such as the US, see HC Deb, 4 June 2008, col 769.

25 The quoted terms are further defined at Article 2(3)(9)(10).

26 Note the CCM does not allow reservations, Article 19.

27 Technical Annex, ERW Protocol V.

28 Text available at http://www.un.org

29 Article 8(2), ERW Protocol and Article 6(3), Ottawa Treaty.

30 Article 4, CCM and Article 5, Ottawa Treaty.

31 Article 4(6), CCM. Similarly, as regards the destruction of stockpiles, States have a renewable period of eight years and stringent conditions are demanded in requests for extensions, Article 3(4), CCM.

32 Article 3(1), ERW Protocol.

33 Article 4(4), CCM.

34 Article 4(4)(b), CCM.

35 Article 6, CCM.

36 Article 4(2) CCM, building on Technical Annex paragraph 4, Amended Protocol II to the CCW; Technical Annex to the ERW Protocol, and Article 5(2), Ottawa Treaty.

37 Article 8(8), Ottawa Treaty.

38 Article 4(1)(c), CCM.

39 Article 1(1)(b), CCM.

40 Articles 3(6)(8), CCM.

41 Article 3(8), CCM.

42 Article 7(1)(c), CCM.

43 Article 7(1)(h), CCM.

44 Article 7(1)(e)(f)(i), CCM.

45 Article 7(1)(e)(f), CCM.

46 Article 7(1)(e)(f), CCM.

47 Article 7(1)(k), CCM.

48 Article 7(1)(j), CCM.

49 Article 7(1)(m), CCM.

50 Article 7(1)(n), CCM.

51 Article 7(1)(m), CCM.

52 Article IX and Verification Annex to the Chemical Weapons Convention.

53 Article 8(2), CCM.

54 Article 8(3), CCM.

55 Article 8(5)(6), CCM.

56 Article XII, Chemical Weapons Convention and Article VI, Biological Weapons Convention.

57 Article 17, CCM.

58 See the US Secretary of Defense statement of 19 June 2008, available online at http://www.defenselink.mil/news/d20080709cmpolicy.pdf

59 Both Britain and the US have undertaken extensive mine clearance in Afghanistan, Iraq, and Kosovo and other affected countries, see US White Paper, supra note 14.

60 Note the UK's human rights obligations under the 1998 Human Rights Act, although there may be problems with jurisdiction issues—note R (on the application of Al-Skeini and others) v. Secretary of State for Defence [2007] All ER 106, and R (on the application of Al-Jedda and others) v. Secretary of State for Defence [2007] All ER 185; and Article 91 of the 1977 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (1977) 16 ILM 1391–1441.

61 Richard Moyes, ‘Implications of the Convention on Cluster Munitions for developing a norm against area-effect use of explosive weapons’, Landmine Action, 23 July 2008, available at http://www.landmineaction.org/

62 Current drafts are available online at http://www.unog.ch/