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The Revision of the Mines Protocol

Published online by Cambridge University Press:  27 February 2017

Michael J. Matheson
Michael J. Matheson*
Affiliation:
U.S. Department of State, and Review Conference on Conventional Weapons
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Type
Current Developments
Information
American Journal of International Law , Volume 91 , Issue 1 , January 1997 , pp. 158 - 167
Copyright
Copyright © American Society of International Law 1997

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References

1 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, Oct. 10, 1980, 1342 UNTS 137, reprinted in 19 ILM 1523 (1980) (entered into force Dec. 2, 1983). The CCW was signed by the United States on April 8, 1982, submitted to the Senate on May 12, 1994, given advice and consent by the Senate and ratified by the United States on March 24, 1995, and entered into force for the United States on September 24, 1995.

2 Mines Protocol to the CCW, as amended, May 3, 1996, Final Document of the Review Conference of the States Parties to the Convention [hereinafter Final Document], Conf. Doc. CCW/CONF.I/16, at 14 (1996), reprinted in 35 ILM 1206 (1996).

3 Final Document, supra note 2, at 13, reprinted in 35 ILM at 1218. For comment, see Burrus M. Carnahan & Marjorie Robertson, The Protocol on “Blinding Laser Weapons”: A New Direction for International Humanitarian Law, 90 AJIL 484 (1996).

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 3, reprinted in 16 ILM 1391 (1977) [Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 609, reprinted in 16 ILM 1442 (1977) [Protocol II].

5 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

6 Protocol on Non-Detectable Fragments, Oct. 10, 1980, 1342 UNTS 168, reprinted in 19 ILM 1529 (1980). For a more detailed description of Protocol I, see Message from the President of the United States Transmitting the Convention, S. Treaty Doc. No. 25, 103d Cong., 2d Sess., at 3 (1994).

7 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, Oct. 10, 1980, 1342 UNTS 168, reprinted in 19 ILM 1529 (1980) [hereinafter Original Protocol]. See Message from the President, supra note 6, at 3.

8 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, Oct. 10, 1980, 1342 UNTS 171, reprinted in 19 ILM 1534 (1980). See Message from the President, supra note 6, at VI.

9 See U.S. Dept of State, Hidden Killers: The Global Problem with Uncleared Landmines (1993); and U.S. Dept of State, Hidden Killers: The Global Landmine Crisis (1994).

10 Final Document, supra note 2, at 4.

11 Id.

12 Resolution of Ratification, para. 3(c)(3), 141 Cong. Rec. S4568, S4569 (daily ed. Mar. 24, 1995).

13 Article 1 of the Convention states: “This Convention and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, including any situation described in paragraph 4 of Article 1 of Additional Protocol I to these Conventions.”

Article 2 common to the 1949 Conventions provides, in part:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Paragraph 4 of Article 1 of Additional Protocol I includes “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination.”

The administration was not satisfied either with the limited scope of the Convention or with the politicized basis on which it was extended to these “wars of national liberation.” Accordingly, the President requested and the Senate approved a declaration that the United States would apply the Convention to “all armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War Victims of August 12, 1949.” Resolution of Ratification, supra note 12, para. 3(b) (2), 141 Cong. Rec. at S4568. (Article 3 common to the 1949 Geneva Conventions applies “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”) As a result, the United States has effectively declared its intention to apply the CCW in all armed conflicts, whether international or internal.

14 See the State Department’s reports, note 9 supra.

15 Article 1(2) of the revised Protocol, supra note 2, states that the Protocol shall apply “in addition to situations referred to in Article 1 of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August 1949.” On Article 3 common to the 1949 Conventions, see note 13 supra. Article 1(2) goes on to repeat language from Article 1(2) of Additional Protocol II to the 1949 Geneva Conventions, which states that the Protocol “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” In the message from President Reagan submitting Additional Protocol II to the Senate, this language was characterized as identifying “situations of internal violence that have not been traditionally considered as armed conflicts and are not covered by the 1949 Conventions.” S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at 2 (1987).

16 The language of paragraphs 4–5 of Article 1 of the revised Protocol, which is taken essentially verbatim from Article 3 of Additional Protocol II to the 1949 Geneva Conventions, reiterates that nothing in the Protocol may be invoked to affect the sovereignty of a state or its responsibility to defend itself or to maintain law and order, or to justify intervention by any other state in its internal affairs. The message from President Reagan submitting Additional Protocol II to the Senate stated that “[t]he recognition of this point is essential in persuading states to accept Protocol II and apply its provisions to conflicts within their territory.” Letter of Transmittal, supra note 15, at 2.

17 The revised Protocol does not include the language of Article 1(1) of Additional Protocol II, supra note 4, which limits the scope of the latter to conflicts between a party and “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

18 Mines Protocol, supra note 2, Art. 2(2).

19 Original Protocol, supra note 7, Art. 5.

20 CCW Review Conference, Main Committee II Working Documents, Informal Working Paper No. 2, Conf. Doc. CCW/CONF.I/WP.2 (1995).

21 Mines Protocol, supra note 2, Technical Annex, para. 3(a).

22 Id., para. 3(c).

23 Mines Protocol, supra note 2, Art. 5.

24 Id., Technical Annex, para. 3(b)–(c).

25 CCW Review Conference, Main Committee II Working Documents, Informal Working Paper No. 3, Conf. Doc. CCW/CONF.I/WP.3 (1995).

26 Mines Protocol, supra note 2, Technical Annex, para. 2.

27 Mines Protocol, supra note 2, Art. 3(5).

28 Id., Art. 3(6).

29 Id., Arts. 3(2), 10.

30 See Final Report of the Group of Governmental Experts, Conf. Doc. CCW/CONF.I/GE/23, App. I (1995).

31 Mines Protocol, supra note 2, Art. 13.

32 Id., Art. 14.

33 Id., Art. 8(1).

34 Id., Technical Annex, para. 1.

35 Mines Protocol, supra note 2, Art. 12.

36 Id., Art. 11.

37 Id., Art. 13.

38 U.S. Dep’t of State, Fact Sheet: U.S. Initiatives for Demining and Landmine Control (Jan. 27, 1995).

39 White House Press Office, Fact Sheet: U.S. Announces Anti-Personnel Landmine Policy (May 16, 1996). The announcement also stated that, effective immediately, “the United States will unilaterally undertake not to use … all non-self-destructing APL not needed to (a) train personnel engaged in demining and countermining operations, or (b) defend the United States and its allies from armed aggression across the Korean Demilitarized Zone.”