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The Convention on Cluster Munitions - A Commentary edited by Nystuen, Gro; Casey-Maslen, Stuart (21st October 2010)


Virgil Wiebe, John Borrie, Declan Smyth

From: The Convention on Cluster Munitions: A Commentary

Edited By: Gro Nystuen, Stuart Casey-Maslen

Weapons of mass destruction — Weapons, conventional

(p. 1) Introduction

Development and use of cluster munitions

Origin and development of cluster munitions

0.1  The precise origin of cluster munitions is the subject of debate. Research suggests that their development, at least conceptually, can be tracked as far back as the fifteenth century, to the time of Leonardo da Vinci. An inveterate weapons designer, da Vinci produced sketches of an exploding cannonball that would shatter into smaller bomblets2 (although there is no evidence that (p. 2) the design reached the production stage). Leonardo’s reported rationale for the weapon foreshadowed the later design of some cluster munitions:

Leonardo realized that while the iron cannon ball is useful against large and immobile targets like fortresses, [it] is of little use against small, moving targets like advancing troops. Against these targets he thinks of using explosive cannon balls … which shatter on impact into many deadly fragments upon impact. He [Leonardo] comments: ‘It is the most deadly machine that exists. And when the cannon ball falls the nucleus sets fire to the other balls, and the central ball explodes and shatters the others which catch fire in the time it takes to say a “Hail Mary”. And it has an outer shell which encloses everything.’3

0.2  According to one authority, the British had come up with the idea of cluster bomb incendiaries in the 1914–1918 War.4 The United States (US) Army Air Corps developed and produced explosive bomblets released directly from aircraft dispensers (similar to those defined by the Convention)5 in the mid-1920s and refined their use during the 1939–1945 War in the South-west Pacific.6 Further developments came in the 1950s and 1960s:

Compared to the bomb clusters of World War II, the cluster bombs of the 1960s embodied many advances. The little bombs, now called ‘bomblets,’ were smaller, (p. 3) more numerous, and covered a wider area. They came in many varieties, including some employing the latest techniques of controlled fragmentation. They were scattered from ‘dispensers’ of various types, some of which were streamlined for carriage on high-speed jet aircraft. Many were interchangeable: different types of bomblets could be used with different dispensers, and vice versa. They could be used to attack multiple targets, wide-area targets, and small or moving targets which the pilot of a jet aircraft could not easily hit with a single munition.7

0.3  Developments in cluster munitions technology from the 1970s and into the present have largely focused on reducing the submunition failure rate through multiple fuzes, self-destruction mechanisms, and so-called sensor fuzing, in which each individual submunition is able to detect and target heat signatures and profiles. Efforts have also been made to target more accurately the main conventional munition from which submunitions are dispersed. Despite advances in technology, however, in some cases accuracy fell short of claims made by States and manufacturers, leading to scepticism about technological fixes to humanitarian concerns.

An overview of the use of cluster munitions

0.4  Any overview of the actual use of cluster munitions will doubtless not be comprehensive. Nonetheless, cluster munitions have certainly been used widely over the past seven decades and non-governmental organizations (NGOs) have attempted to document their use in detail. A report issued in 2009 by two international NGOs, Human Rights Watch and Landmine Action, affirms that cluster munitions:

have been used during armed conflict in 33 countries and disputed territories since the end of World War II, including Afghanistan, Albania, Angola, Azerbaijan, BiH [Bosnia-Herzegovina], Cambodia, Chad, Croatia, DRC [Democratic Republic of Congo], Eritrea, Ethiopia, Georgia, Grenada, Iraq, Israel, Kuwait, Lao PDR [Lao People’s Democratic Republic, Laos], Lebanon, Montenegro, Saudi Arabia, Serbia, Sierra Leone, Sudan, Syria, Tajikistan, Uganda, Vietnam, and Zambia, as well as Chechnya, Falkland Islands/Malvinas, Kosovo, Nagorno-Karabakh, and Western Sahara. At least 14 government armed forces have used cluster munitions.8

(p. 4) Yet even this in-depth study has already been overtaken by new information. Later in 2009, evidence suggests that Morocco, which used cluster munitions in the Western Sahara region, also used cluster munitions in Mauritania at some time in the 1980s in its conflict with the Polisario Front.9 There is also evidence that Libya has a previously unknown problem with unexploded submunitions.10

0.5  Given the lack of comprehensive knowledge of even the number of conflicts in which cluster munitions have been used, a fortiori no one knows to within even a reliable order of magnitude how many cluster munitions (parent munitions and/or submunitions) have been used in armed conflict, much less how many remain to be cleared.11 Thus, according to the Belgian NGO, Handicap International, which undertook a study in the mid-2000s of global usage:

[s]ince their first deployment, tens of millions, perhaps hundreds of millions, of cluster submunitions have become the most deadly and persistent form of ERW [explosive remnants of war].12

0.6  The Germans dropped incendiary cluster munitions during the Spanish Civil War in 1937 and both Axis and Allied forces used cluster munitions in significant numbers during the 1939–1945 War. The massive use of cluster munitions during the conflict in South-east Asia in the 1960s and 1970s, and more recent use in Afghanistan, Iraq, and Lebanon, have tended to overshadow earlier use in the twentieth century. Nonetheless, the characteristics that would make cluster munitions a significant humanitarian concern were also manifest decades earlier.

0.7  In support of the Nationalist forces in the Spanish Civil War, German aircraft dropped conventional unitary bombs and incendiary cluster munitions on the Spanish town of Guernica on 26 April 1937.13 This infamous raid (p. 5) may not be the only one in which cluster munitions were used during that conflict.14

0.8  During the 1939–1945 War, perhaps the best known incident of the use of ‘butterfly bombs’ was the dropping of German SD-2 cluster munitions on the English port of Grimsby, England, on 13 June 1943. There are, however, reports of them being dropped on the town of Ipswich and the nearby RAF Wattisham airbase before that time.15 Stuka dive bombers dropped cluster munitions on British troops evacuating by sea from the French port of Dunkirk in May 1940.16 Germany also used SD-2 cluster munitions against Russian forces in 194117 and in 1943 along the Kursk gradient.18 In October 2009, an 11-year-old boy found a butterfly bomb on the island of Malta; one such device had claimed the life of a 41-year-old man in 1981.19 On 27 November 2009, a butterfly bomb was found by an oil company survey crew in Libya. (p. 6) Subsequent survey by an explosive ordnance disposal expert identified six more butterfly bombs.20

0.9  The Russian air force dropped RRAB-3 ‘Molotov bread basket’ incendiary cluster munitions on Finland during the ‘Winter War’ in January 1940, and perhaps even earlier.21 The Russian air force also used cluster munitions against German armour on the Eastern Front in 1943.22 Beginning in September 1942, the US Army Air Corps made heavy use of the 23 pound ‘parafrag bomb’ in the South-west Pacific, a type of parachute-equipped bomblet delivered from dispenser racks and ‘just as capable of killing ground troops as shredding exposed planes and equipment’.23

0.10  From the earliest use of these weapons, the characteristics that would later raise concerns about their spatial and temporal effects were apparent to observers. An early observer of the use of these weapons in Finland in 1940 noted their tendency for indiscriminate wide area effects:

The very nature of this apparatus makes any question of accurate aiming quite out of the question: the object is the indiscriminate spraying of a wide area, and the effect can be seen after a raid in the numerous black patches on the snow where each bombs was dropped. Only a very few, in accordance with the laws of probability, strike buildings; but they make a wide area untenable by mere force of numbers. In fact, the ‘Molotov bread basket’ is the equivalent of the automatic gun for the infantryman.24

As for the lingering effects of unexploded submunitions, the 1943 attack on Grimsby involved more than 1,000 German SD-2 submunitions being dropped and it is reported that ‘the majority of fatalities (47 of 61) occurred after, not during the attack’.25 Already in the early 1940s, the US Army Air Corps faced problems with its parafrag bomblets, which got caught in trees (p. 7) or blinds [unexploded submunitions] resulted from being dropped from the wrong altitudes.26

0.11  During the 1950s, a few reports exist suggesting limited use by the US of air-dropped cluster munitions during the so-called ‘police action’ in Korea,27 but the Korean War served more as an inspiration for the development of antipersonnel cluster munitions (in order to thwart large scale ‘human waves’) than as an actual theatre of use.28

0.12  During the conflict in South-east Asia, the US is believed to have dropped a total of nearly 400 million submunitions on Cambodia, Laos, and Vietnam.29 Of these three countries, Laos absorbed the heaviest bombing (p. 8) with cluster munitions. On average, US forces flew one bombing run every eight minutes for nine years.30 With more than 266 million submunitions dropped (based on records released by the US Government), cluster munitions comprise a significant portion of the bomb attacks from 1964 to 1973.31 UXO Lao has estimated that up to 78 million unexploded ‘bombies’ (unexploded submunitions) remained in the ground as a result.32 According to data provided by the US Embassy in Cambodia, ‘between 1965 and 1975, 10% of the 150,000 air attacks on Cambodia employed various types of cluster bombs’.33

0.13  The 1970s saw use of cluster munitions in several other countries. In Zambia, remnants of cluster munitions used during that decade, including unexploded submunitions from air-dropped bombs, were found at Chikumbi and Shang’ombo in 2008–2009. In 1973, Israel used air-dropped cluster munitions against non-State armed group (NSAG) training camps near Damascus in Syria. In 1975–1988, Moroccan forces used artillery-fired and air-dropped cluster munitions against the Polisario Front in Western Sahara. In 1978, Israel used cluster munitions in southern Lebanon.34

0.14  Use expanded in the 1980s, especially in Afghanistan where between 1979 and 1989, Soviet forces used air-dropped and rocket-delivered cluster munitions on a wide scale. NSAGs also used rocket-delivered cluster munitions, but on a smaller scale. In 1982, Israel used cluster munitions against Syrian forces and NSAGs in Lebanon. That same year, United Kingdom (p. 9) (UK) forces dropped 10735 BL-755 cluster bombs containing a total of 15,729 submunitions against Argentine positions on the Falkland Islands/Malvinas. In 1983, US Navy aircraft dropped 21 Rockeye cluster munitions during close air support operations in Grenada. That same year, US Navy aircraft dropped 12 CBU-59 and 28 Rockeye cluster munitions against Syrian air defence units near Beirut in Lebanon. In 1986–1987, French aircraft dropped cluster munitions on a Libyan airfield at Wadi Doum, in Chad. Libyan forces also used AO-1SCh and PTAB-2.5 submunitions against Chad.36

0.15  The 1990s witnessed a significant increase in the use of cluster munitions in terms both of the number of conflicts in which they were used and the number of States using them. In 1991, ‘Saudi Arabian and US forces used artillery-delivered and air-dropped cluster munitions against Iraqi forces during the battle of Khafji’ in Saudi Arabia.37 In 1991, in Iraq and Kuwait, the ‘US, France, and the UK dropped 61,000 cluster bombs containing some 20 million submunitions. The number of cluster munitions delivered by surface- launched artillery and rocket systems is not known, but an estimated 30 million or more dual purpose improved conventional munitions (DPICM) submunitions were used in the conflict.’ In 1992–1994, PTAB submunitions were found in various locations in Angola. Submunitions were used during the same period in Nagorno-Karabakh, Azerbaijan, with submunition contamination identified ‘in at least 162 locations’ and ‘in other parts of occupied Azerbaijan, adjacent to Nagorno-Karabakh’.38

0.16  In 1992–1995, Yugoslav forces and NSAGs used cluster munitions during the armed conflict in Bosnia and Herzegovina, where ‘NATO aircraft [also] dropped two CBU-87 bombs’. During the 1992–1997 conflict in Tajikistan, unknown forces in the ‘Civil War’ used ShOAB and AO-2.5RT submunitions ‘in the town of Gharm in the Rasht Valley’. In 1994–1996, Russian forces used cluster munitions against NSAGs in Chechnya. ‘On May 2–3, 1995, an NSAG used Orkan M-87 multiple rocket launchers to conduct attacks in the city of Zagreb, [Croatia]. Additionally, the Croatian government claimed that Serb forces used BL-755 bombs in Sisak, Kutina, and along the Kupa River.’ In 1996–1999, Sudanese government forces air dropped cluster munitions in southern Sudan, including Chilean-made PM-1 submunitions.39

(p. 10) 0.17  In 1997, Nigerian ECOMOG (Economic Community of West African States Cease-fire Monitoring Group) peacekeepers used BLG-66 Beluga bombs on the eastern town of Kenema in Sierra Leone. In 1998, ‘Ethiopia and Eritrea exchanged aerial cluster munition strikes. Ethiopia attacked Asmara airport, and Eritrea attacked Mekele airport. Ethiopia also dropped BL-755 bombs in Gash-Barka province in Eritrea.’ In 1998–1999, ‘Yugoslav forces used rocket-delivered cluster munitions in disputed border areas, and NATO forces carried out six aerial cluster munition strikes’ in Albania. Sometime between 1998 and 2003, ‘BL-755 bombs were used by unknown forces in Kasu village in Kabalo territory’, in the Democratic Republic of the Congo. In 1999, it is reported that the ‘US, UK, and Netherlands dropped 1,765 cluster bombs containing 295,000 submunitions’ across what is now Serbia, Montenegro, and Kosovo.40 In a failed attempt to kill Osama bin Laden in 1998, the US launched TLAM-D cruise missiles containing explosive submunitions on al-Qaeda training camps in Afghanistan.41

0.18  In 2001–2002, the ‘US dropped 1,228 cluster bombs containing 248,056 submunitions’ in Afghanistan. In 2003 in Iraq, the ‘US and UK used nearly 13,000 cluster munitions, containing an estimated 1.8 to 2 million submunitions, in the three weeks of major combat.’ Russian and Georgian forces both used cluster munitions during the August 2008 conflict in Georgia.42

0.19  Of particular note, cluster munitions were used extensively in south Lebanon in 2006. The UN Mine Action Coordination Centre of South Lebanon (MACC-SL) estimated that Israel used between 2.6 million and 4 million submunitions in its war with Hezbollah in July and August of 2006. Human Rights Watch received additional information from Israeli soldiers that pushed the estimates to between 3.2 and 4.6 million submunitions. The submunitions used were delivered by air-dropped bombs, artillery shells, and ground rockets. MACC-SL estimated that several hundred thousand unexploded submunitions were left behind.43 As of December 2008, MACC-SL reported that 153,755 submunitions had been cleared through its efforts.44 A (p. 11) total of 265 civilians died or were injured as a result of unexploded submunitions between 14 August 2006 and 1 January 2009.45 Human Rights Watch also reported that Hezbollah fired ground rockets containing at least 4,600 submunitions into Israel.46 The massive use of cluster munitions by Israel in 2006 has been identified as a critical tipping point in efforts to prohibit cluster munitions.47

The negotiation of the Convention on Cluster Munitions48

0.20  Concern about the effects of cluster bombs on civilians, along with other anti-personnel weapons such as napalm, emerged in the late 1960s due to the use of these weapons in the war in South-east Asia.49 This and related concerns about the impact of that and other conflicts contributed to international momentum for the development of two new protocols additional to the four 1949 Geneva Conventions50 in order to enhance the protection of civilians in armed conflict. The diplomatic conferences negotiating these protocols also lent consideration to weapon-specific measures, but agreement proved elusive and ultimately it was decided to adopt the two 1977 Additional Protocols51 without regulation of specific conventional weapons. Weapon-specific talks continued in a specially convened UN conference, which culminated in (p. 12) the adoption in 1980 of the Convention on Certain Conventional Weapons (CCW).52

0.21  In 1974, a group of countries led by Sweden had called for the prohibition of a number of anti-personnel weapons including ‘cluster warheads’,53 and these proposals were subsequently discussed during the remainder of the decade in the diplomatic conferences that resulted in the two 1977 Additional Protocols and the CCW, as well as in meetings of experts convened by the International Committee of the Red Cross (ICRC) in Lucerne54 and Lugano, Switzerland.55 When the CCW was adopted in 1980, however, it contained no measures on cluster munitions. Further, despite accumulating evidence over the 1980s and 1990s of, particularly, the post-conflict impact on civilians of cluster munition use in places such as Afghanistan, Cambodia, Iraq, Kuwait, Laos, and Vietnam,56 and following the North Atlantic Treaty Organization (NATO) air campaign against Federal Republic of Yugoslavia forces over the province of Kosovo in 1999,57 States Parties to the CCW did not formally take up the issue at that time.

0.22  The achievement of the 1997 Anti-Personnel Mine Ban Convention58 led to an expansion of the international mine action sector,59 and greater assessment of the post-conflict effects of failed or abandoned explosive weapons accompanied it.60 The efforts of civil society and of the ICRC, in particular, (p. 13) heightened awareness among the international community about the hazards to civilians such explosive remnants of war (ERW)61 cause—including submunitions. In late 2001, States Parties to the CCW agreed to negotiate a new protocol on ERW,62 which was adopted in November 2003 as the Protocol on Explosive Remnants of War (2003 Protocol V). As a result of the particular hazards of unexploded submunitions relative to other kinds of ERW, discussions within the context of the CCW gave humanitarian actors a platform on which to draw attention to the impact of cluster munitions on civilians after conflict as well as at time of use, especially as the weapons were used again in Afghanistan in 2001–200263 and in Iraq in 2003.64 Such use underlined problems associated with the accuracy and reliability of a weapon intended to saturate areas with explosive force, and increased disquiet among national policy-makers in a number of States Parties to the CCW, such as Norway.65

0.23  While 2003 Protocol V adopted post-conflict measures generic to all weapons, including provisions regarding clearance, risk education for civilians, and information exchange relating to the use of munitions, it did not address the characteristic problems created by cluster munitions through any weapon-specific provisions, and the agreement is not retroactive in application.66 Nevertheless, the issues around cluster munitions were kept alive in the CCW after 2003 in technical discussions revolving around what might constitute ‘good’ versus ‘bad’ submunitions, as well as in talks about the adequacy of existing humanitarian law rules governing their use. It was clear, however, that at that time several major military powers (and actual or potential cluster munition user or stockpiling nations) such as China, India, Israel, Pakistan, Russia, and the US firmly opposed negotiation of legally binding restrictions specific to cluster munitions.

(p. 14) The emergence of the Oslo Process

0.24  On the margins of an international conference hosted in Ireland on the issue of ERW in April 2003, NGOs—mostly those involved in the antipersonnel mine ban movement—agreed to undertake sustained and coordinated campaigning against cluster munitions.67 Correspondingly, a new NGO consortium, the Cluster Munition Coalition (CMC) was launched in November 2003 in The Hague.68 ‘The CMC was united behind a call for an immediate moratorium on the use of cluster munitions, an acknowledgement of States’ responsibility for the explosive remnants they cause, and a commitment to provide resources to areas affected by ERW.’69 With 2003 Protocol V adopted shortly thereafter, the CMC’s focus was really on cluster munitions. But, until 2006 the CMC’s efforts made little headway in the CCW, with the focus of that multilateral process largely on efforts to achieve agreement of a protocol on ‘mines other than anti-personnel mines’.70

0.25  More progress occurred at the national level in some countries. Norwegian elections in the autumn of 2005 resulted in a ‘Red-Green’ coalition of parties that made ‘work for the introduction of an international ban on cluster bombs’ part of its governing manifesto.71 In June 2006, Norway declared a national moratorium on use of its stockpile of artillery-delivered cluster munitions until further testing in order to confirm whether they achieved levels of reliability matching their manufacturers’ claims.72 Meanwhile, among other (p. 15) national measures in a number of States,73 Belgium had passed a national law prohibiting cluster munitions in February 2006, although it showed no inclination to play a lead role on trying to achieve a ban on the weapon in the CCW.74

0.26  In July 2006, conflict broke out in southern Lebanon between Hezbollah and Israel. As noted above,75 both parties deployed cluster munitions during the 34-day conflict, and during the last few days of the conflict the Israeli Defence Forces fired massive quantities of ground-launched cluster munitions into southern Lebanon.76 Israel’s bombardment underlined both the humanitarian risks the weapons posed to civilians,77 and soon revealed much higher submunition failure rates in operational use than the typical claims of manufacturers and the representatives of national militaries possessing them.78

0.27  The southern Lebanon conflict thus served to lend weight to the concerns of the CMC, the ICRC, the UN, and others about cluster munitions, as well as to increase support for the argument from some governments for weapon-specific measures internationally. In the context of the CCW, a growing number of its States Parties began to call for negotiation of a cluster munition-specific protocol—a prospect still opposed by several major military powers, which maintained that proper implementation of existing humanitarian law rules (perhaps combined with certain voluntary technical ‘improvements’ to submunitions such as self-destruct mechanisms intended to reduce failure rates) were sufficient. In view of the rejection by China, Russia, and others of the proposed protocol on ‘mines other than antipersonnel mines’ in late 2005, prospects for agreement to negotiate a robust (p. 16) legal instrument to curb the humanitarian impact of cluster munitions were hardly promising. Indeed, in the second half of 2006 Norway’s Government began making plans for an international conference it would host to take up the prospect of a separate humanitarian treaty on cluster munitions.

0.28  The impending third review conference of the CCW (November 2006) was seen by many as a ‘critical test of its ability to address a pressing humanitarian issue’.79 The then-Secretary-General of the United Nations, Kofi Annan called for a ‘freeze’ on the use of cluster munitions in populated areas and for ‘inaccurate and unreliable’ cluster munitions to be destroyed.80 Twenty-six States Parties to the CCW supported a proposal for a mandate to negotiate a specific protocol on cluster munitions.81 But the proposal was rejected at the Review Conference, and States Parties were only able to agree on a weaker mandate to convene ‘as a matter of urgency’ further discussions on ERW in 2007.82 The Review Conference’s outcome left a number of governments involved feeling that the process had little potential to confront effectively the humanitarian hazards of cluster munitions. Its new ERW mandate stated little more than the obvious—that after adoption of the ERW protocol in 2003 and the subsequent Lebanon conflict, attention had turned to cluster munitions.

0.29  Norway’s announcement on the penultimate day of the 2006 Review Conference was therefore regarded with considerable interest among governments, for varying reasons. Norway’s Minister of Foreign Affairs, Jonas Gahr Støre, announced:

Norway will organise an international conference in Oslo to start a process towards an international ban on cluster munitions that have unacceptable humanitarian consequences … We must take advantage of the political will now evident in many countries to prohibit cluster munitions that cause unacceptable harm. The time is ripe to establish broad co-operation on a concerted effort to achieve a ban.83

(p. 17) Some States, especially those supporting the proposal in the CCW for negotiation on cluster munitions, were positive, although any effort outside the UN was widely seen as a political risk. In contrast, Ronald Bettauer, the head of the US delegation to the CCW, said Washington was ‘disappointed’ with Norway, and claimed that the ‘effort to go outside this framework is not healthy for the CCW’ and would ‘weaken the international humanitarian law’ effort.84

The Oslo Conference on Cluster Munitions

0.30  Initially envisaged by the Norwegian Government as a gathering of fewer than 30 States, representatives of civil society and relevant international organizations, ultimately a total of 49 governments85 as well as the UN, the ICRC, and the CMC participated in the Oslo Conference on Cluster Munitions (hereinafter, the ‘Oslo Conference’) on 22–23 February 2007. Participating governments included several cluster-munition-affected States as well as significant users or stockpilers of cluster munitions such as France, Germany, Japan, and the UK. The conference resulted in the issuing of the Oslo Declaration, which contained commitments to complete an international treaty by the end of 2008 to ‘prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians’ and to ‘establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation for survivors and their communities, clearance of contaminated areas, risk education and destruction of stockpiles of prohibited cluster munitions’.86

The Core Group

0.31  Between the 2006 CCW Review Conference and the Oslo Conference in February 2007, a ‘core group’ of interested States had (p. 18) emerged in support of the Norwegian government initiative.87 This move was inspired by the Ottawa Process, where, in the lead up to the negotiations on the 1997 Anti-Personnel Mine Ban Convention, a similar core group of States had been one of several key driving forces. The core group in the Oslo Process consisted of Austria, Ireland, Mexico, New Zealand, Norway, Peru, and the Holy See.88

The Oslo Process

The Oslo Declaration

0.32  The Declaration of the Oslo Conference on Cluster Munitions (the ‘Oslo Declaration’) is the founding document of the so-called Oslo Process. Importantly for that process, the Oslo Declaration translated its stated concerns into a clear objective (‘to effectively address the humanitarian concerns caused by cluster munitions’). Astutely, the Oslo Conference did not try to pre-negotiate key understandings crucial to achieving this—thereby allowing some States to defer their concerns about how the freestanding Oslo Process would fit in with the CCW, or what the eventual implications would be for their own stockpiles of cluster munitions. The obvious challenge would be about how to define ‘cluster munitions that cause unacceptable harm to civilians’,89 which would be the subject of intensive debate in the course of 2007 and 2008 in the lead-up to the formal negotiations on a treaty which took place at a diplomatic conference in Dublin in May 2008.

0.33  The Oslo Declaration also made humanitarian concerns a central focus, as shown by the document’s reference to measures such as clearance, stockpile destruction, victim assistance, and international cooperation, elements which ostensibly resembled those of the 1997 Anti-Personnel Mine Ban Convention.90 This increased the attractiveness of the Norwegian initiative to a large body of States not party to the CCW as well as in the developing world, (p. 19) including some affected States. This in turn lent the Oslo Process additional humanitarian legitimacy.

0.34  The Oslo Declaration also created a concrete timetable for progress toward a legally binding instrument on cluster munitions, one not contingent on decision-making by consensus privileged in the Convention on Certain Conventional Weapons. Comprised initially of multilateral conferences in Lima (late May), Vienna (early December), and then Dublin (in ‘early 2008’), as well as mentioning a European regional meeting to be held in Belgium, the Declaration timetable envisaged a legally binding instrument’s adoption by the end of 2008 at the latest. Soon after this, it was also decided that one further meeting in Wellington (February 2008) would form part of the Oslo Process to set the stage for the Dublin negotiations. In the course of the Process, there would also be regional meetings and an important conference of States affected by cluster munitions held in Belgrade in October 2007.

The Oslo Process and the Convention on Certain Conventional Weapons

0.35  The emergence of the Oslo Process would spur on the efforts of certain States involved in both processes to achieve a negotiating mandate within the CCW by the end of 2007 despite the initiative started in Oslo.91 For it became apparent that major possessors and producers of the weapons, such as China, Russia, and the US, all of which had shunned the Oslo Process and indicated concern about its ambitions, were now willing to show greater flexibility on such a negotiating mandate.92

0.36  As in dealing with anti-personnel mines in the 1990s, it had taken a freestanding international initiative outside the CCW to galvanize effective action. The difference this time was that instead of such a process following the adoption of an agreement by States Parties to the CCW (as with the Convention’s 1996 Amended Protocol II),93 the Oslo Process and the CCW were working in parallel. Divisions between the two processes would not be neat, especially as a majority of the Convention’s members had, by the end of 2007, become involved in the Oslo Process even while continuing to (p. 20) participate in the much less ambitious talks under the CCW. Indeed, the ‘core group’ of States steering the Oslo Process continued to attend the sessions convened under the CCW.

0.37  The prospect for other countries, especially Australia, Canada, Japan, and most European NATO allies of the US, was that they would have to balance public concern and their commitment to the aspirations of the Oslo Declaration with the operational concerns of their military forces and the potential disapproval of their transatlantic ally. Their involvement in both processes might help to keep the Oslo Process’s ambitions within acceptable bounds for them, and create pressure for agreement on lesser measures in the CCW in 2008 that would stand a chance of attracting those major users and producers of cluster munitions outside the Oslo Process.

0.38  Several important developments occurred during the period between the adoption of the Oslo Declaration and the Dublin negotiations 15 months later. The first real opportunity to wrestle collectively with substantive issues related to the content of a treaty on cluster munitions occurred at a meeting of experts convened by the ICRC in Montreux, Switzerland on 18–20 April 2007.94 The Montreux meeting brought together both diplomatic and military experts from governments—including major military powers not participating in the Oslo Process—with humanitarian experts, including from international organizations and NGOs belonging to the CMC. In the course of the Montreux meeting it became apparent to an increasing number of diplomatic participants that suggested technical solutions (such as equipping submunitions with selfdestruct features) would not prevent the problems cluster munitions cause.

0.39  Moreover, States arguing for continued retention and use of cluster munitions did not make a credible case for the legitimacy of the weapon in the face of contrasting perspectives from other governments, explosive ordnance disposal personnel, and civil society advocates of a ban. Not only were the military utility-centred positions (which usually trumped humanitarian considerations in discussions in the context of the CCW) found wanting in the face of empirical evidence of humanitarian harm, the Montreux meeting offered indications that the burden of proof was shifting from the shoulders of those trying to show the weapons caused ‘unacceptable harm’ to those claiming that cluster munitions did not do so.95

(p. 21) 0.40  Another significant development at the Montreux meeting was the unveiling of a ‘non-paper’ by Germany, later submitted to the CCW, which contained the draft text of a proposed new CCW protocol on cluster munitions.96 Although welcomed as a sign of Germany’s political commitment to the cluster munition issue, the proposal also drew sharp criticism from NGOs and some States for its perceived lack of ambition or clarity on key issues such as scope.97

The Lima Conference on Cluster Munitions

0.41  The first Chair’s Discussion Text98 of a treaty banning cluster munitions (the ‘Lima Discussion Text’)99 was a sketch of what a treaty might look like, but was deliberately not referred to as a draft convention by the core group, because it was believed to be important not to start drafting and negotiations at this early stage. The text was designed to facilitate discussions on the key issues such as prohibitions and definitions. The text was issued prior to the next formal conference of the Oslo Process, held in Lima, Peru, on 23–25 May 2007. The Lima Conference on Cluster Munitions (the ‘Lima Conference’) attracted participation from 67 States,100 27 of which were participating in the Oslo Process for the first time and who were generally more concerned with the humanitarian problems posed by cluster munitions than ensuring exclusions for weapon systems (that many did not possess).

(p. 22) 0.42  While specific drafting of provisions was not discussed, the Lima Conference established the general framework and various elements of a future humanitarian treaty including the locations of its prohibitions, and measures on stockpile destruction, clearance of contaminated areas, and the victim assistance obligation.101 On the whole, the Lima Conference went smoothly, although differences over the meeting’s agenda showed that some countries, especially Australia, Canada, and many European members of NATO, were keen to settle the definition of ‘cluster munitions that cause unacceptable harm to civilians’ to their satisfaction as soon as possible. Some possessors of submunitions with self-destruct systems, for instance, believed these weapons should be excluded from any prohibition of cluster munitions that cause unacceptable harm to civilians.

The Vienna Conference on Cluster Munitions

0.43  At the next conference of the Oslo Process, held in Vienna, Austria, on 5–7 December 2007, the number of States attending had more than doubled to 138,102 and again there was a strong CMC-led civil society contingent along with the ICRC and concerned UN bodies and agencies. Regional meetings in Costa Rica for Latin American States in September and for European nations in Brussels on 30 October, as well as a global conference of clustermunition- affected States hosted by Serbia and UNDP in early October, had also served to bolster interest and attendance among States. Affected countries at the Belgrade Conference had endorsed the Oslo Process, which also saw several cluster munition survivors advocating for a strong humanitarian (p. 23) treaty as ‘Ban Advocates’. The same week as the Vienna Conference on Cluster Munitions, Austria’s parliament passed a national law outlawing cluster munitions as it defined them nationally.103

0.44  Austria, as chair of the Vienna Conference, tabled an updated discussion text reflecting the core group’s revisions based on discussions at the Lima Conference.104 Good progress was made in several substantive areas, in particular in building collective support for strong victim assistance and international cooperation and assistance measures. But the Vienna Conference also underlined that much work still needed to be done on the two most contentious issues emerging in the Oslo Process: how to define ‘cluster munitions that cause unacceptable harm to civilians’, and how to address ‘interoperability’,105 especially the concern about joint military operations involving both States Parties and States not party to a future treaty outlawing cluster munitions. No general agreements emerged on possible solutions.

0.45  Of the two contentious issues, defining cluster munitions was to take centre stage at the Vienna Conference. As already noted, the Oslo Declaration had contained a commitment for States to ‘prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians’ and this categorical approach of defining and then banning had been maintained at the Lima Conference. The Vienna Discussion Text,106 however, excluded the phrase ‘that cause unacceptable harm to civilians’ in Article 2 on definitions, which caused alarm among several countries. Some States reiterated their view that not all cluster munitions have unacceptable consequences for civilians. Other States disagreed, and a detailed report prepared by Norwegian defence scientists and NGOs entitled M85—An Analysis of Reliability107 argued strongly (and persuasively, in the eyes of many national delegations present) that such a ‘split-the-category’ approach was inherently flawed and unlikely to be effective in addressing the risks to civilians posed by cluster munitions.

(p. 24) 0.46  The Vienna Conference did make useful progress in clarifying other aspects of the definition debate, including what should be exempted from the scope of the prohibition in Article 2 of the discussion text (which covered definitions). A common view emerged on less problematic exclusions from the definition, such as mines (already covered in other treaties),108 and cluster munitions containing submunitions that emitted flare, smoke, and chaff rather than explosive submunitions. Proposals for exclusions for explosive submunitions based on reliability, low numbers contained in a single cluster munition, or sensor-fuzed technologies109 did not, however, command wide support and would continue to be discussed at the next Oslo Process meeting in Wellington, New Zealand, from 18 to 22 February 2008.

0.47  The Meeting of States Parties to the CCW in November 2007, meanwhile, had achieved a mandate to ‘negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations’110 with seven weeks of negotiations scheduled in Geneva in 2008. At the first week of these meetings in January, a number of States pushed hard—unsuccessfully as it turned out—for a working definition of cluster munitions. This would have raised the prospect of the States outside the Oslo Process being able to affect work on elaborating a definition at the Wellington Conference and Dublin Diplomatic Conference, because most governments would not want to develop two differing definitions of a cluster munition.111

The Wellington Conference on Cluster Munitions

0.48  The Wellington Conference on Cluster Munitions in February 2008 (hereinafter, the ‘Wellington Conference’) demonstrated more clearly the divisions in opinion regarding difficult issues such as defining what would be covered by the term cluster munitions and how interoperability would be addressed. In late 2007, a loose group of so-called ‘like-minded’ States (p. 25) had emerged, many of them military allies of the US. The States associated with this group, however, were not necessarily ‘like-minded’ on many issues of substance. Some were in favour of retaining many, if not all, of their cluster munition arsenals, including the types of cluster munition shown to be particularly hazardous to civilians, while others were not users of cluster munitions and were not believed to have large stockpiles. In addition, many of the ‘like-minded’ were concerned about interoperability with the US, even though some of them were not US allies. Rather, the issue that served to unite the ‘like-minded’ countries was concern about whether the Oslo Process would safeguard their respective national proposals on issues such as the definition of cluster munitions, a transition period for continued use, or interoperability.112

0.49  Work proceeded on the basis of an evolving discussion text at the Lima and Vienna conferences, in which core group States factored in proposals made in the meetings by various delegations according to their collective assessment of how these views balanced out. This process differed from the traditional approach used in forums like the CCW of negotiating on a rolling text with square brackets around contentious points. The Wellington Conference would be key to managing the Oslo Process’s transition to a treaty negotiation in Dublin and so, in late January 2008, New Zealand made available a draft ‘Convention text’, an important psychological change from the two earlier ‘discussion’ texts.113 In addition, a draft Wellington Conference Declaration was distributed: this echoed the Ottawa Process on anti-personnel mines more than a decade before, in which each State participating in the Oslo Diplomatic Conference negotiations in September 1997 was required to subscribe to the June 1997 Brussels Declaration that set out basic understandings.114

0.50  At the Wellington Conference, it became clear as soon as the conference began its discussions that some States, particularly those from the ‘likeminded’ group, had come determined to get their proposals into the draft Convention text. This was something the Conference’s chair, Ambassador Don MacKay, firmly resisted, referring to the plan agreed at the Oslo Conference that textual negotiation was going to take place at the Diplomatic Conference in Dublin and not before.

(p. 26) 0.51  Partly because of the tactics of the group of 15 or so ‘like-minded’ delegations, opposition to their desire for formal negotiation on their proposals before the Diplomatic Conference emerged among a range of States from various regions.115 They advocated strongly that there should be no exclusion from the definition of a cluster munition under Article 2, paragraph 2(c) of the draft Convention text, and they also shared opposition to a transition period for cluster munition use.116

0.52  As it became clear that textual negotiation would not be undertaken in Wellington, the discussions turned to the status of a compendium paper.117 The compendium was a document prepared by the Chair comprising all of the various non-papers presented in Wellington and which contained proposals to amend the draft Convention text. The issue revolved around whether the proposals in the compendium text would have equal status with the draft Convention text in Dublin.

0.53  Draft rules of procedure for the Diplomatic Conference118 circulated on the penultimate day of work at the Wellington Conference stated that the draft Convention text ‘shall constitute the basic proposal for consideration by the [Dublin] Conference’; the compendium proposals would count as ‘other proposals’, a distinction that could conceivably make a difference if the Diplomatic Conference resorted to voting, which some delegations feared might occur. Some argued that the draft Convention text was not an agreed document, and so there should be no difference in status between it and their proposals. The Chair’s view, with support from many others, was that the draft Convention text possessed legitimacy, as it was the product of several rounds of talks in open format since early in the Oslo Process.119

(p. 27) 0.54  In the end, the Wellington Declaration stated that States:

also welcome the important work done by participants engaged in the cluster munitions process on the text of a draft Cluster Munitions Convention, dated 21 January 2008, which contains the essential elements identified above and decide to forward it as the basic proposal for consideration at the Dublin Diplomatic Conference, together with other relevant proposals including those contained in the compendium attached to this Declaration and those which may be put forward there.120

Some of the delegations who had wanted inclusion of text proposals already in Wellington linked their adherence to the Wellington Declaration with the understanding that the draft Convention text and compendium would—or should—have equal standing in Dublin. By the end of the first week of the Diplomatic Conference on 23 May 2008, 119 countries had supported the Wellington Declaration.121 As it turned out, the status of the compendium did not become an issue in Dublin.122

The lead-up to the Diplomatic Conference

0.55  The Wellington Conference had ultimately succeeded in its objectives. The Conference also exposed differences in approach within the core group itself, with Norway becoming more active in promoting a position that differed from States seeking a total prohibition of all weapons with submunitions regardless of their technical features, such as Austria and Mexico. Meanwhile, by April, it was obvious that prospects for the CCW to address cluster munitions were at best uncertain in the face of few signs of flexibility from China, Russia, and others. Although it was negative in public statements to the Oslo Process and ‘consulted’ with its friends and allies in the lead-up to (p. 28) the Dublin negotiations it would not attend, a US Government internal policy review underway had months left to run, which further limited momentum in negotiations under the CCW.123

0.56  There was plenty of other activity in support of the Oslo Process in the final months leading up to the Dublin Conference. Bilateral consultations between core group States and others were increasing. Forty African states signed up to the Livingstone Declaration agreed in Zambia on 1 April in support of the Oslo Process and the adoption of a humanitarian treaty on cluster munitions.124 Mexico hosted a conference of 22 Latin American and Caribbean states in Mexico City on 16–17 April 2008. On 23–24 April, the ICRC convened a workshop of around 10 ASEAN (Association of South East Asian Nation) States in Bangkok to engage them on cluster munition issues, which served to encourage Asian attendance at the Diplomatic Conference. And a Global Day of Action on 19 April 2008 coordinated by the CMC in more than 50 countries underlined civil society’s advocacy efforts.125

Organization of the Diplomatic Conference: Basic Proposal, Rules of Procedure, and Structure of Work

0.57  As noted above, the Wellington Conference concluded with the adoption of the Wellington Declaration. By the terms of that Declaration the States concerned decided to forward the Wellington draft Convention text to the Dublin Diplomatic Conference as the basic proposal for consideration there, together with other relevant proposals made at Wellington as well as those that would be made in advance of, or at, Dublin.

0.58  Draft Rules of Procedure for the Diplomatic Conference were circulated to all delegations on the penultimate day of the Wellington Conference.126 Developed by the core group, they were based on rules of procedure used at recent diplomatic conferences for the adoption of new instruments of international humanitarian law (in particular for the adoption of the Statute of the International Criminal Court127 and of the 2005 Additional Protocol III to the 1949 Geneva Conventions). They also drew on the draft standard rules (p. 29) of procedure for UN Conferences128 as well as the rules of procedure used for the Oslo Diplomatic Conference for the adoption of the 1997 Anti-Personnel Mine Ban Convention.129

0.59  The principal features of the draft rules were the provisions concerning participants and observers (rules 1 and 2), the basic proposal (rule 30) and decision-making (rule 36). Only States that had subscribed to the Wellington Declaration would be invited to participate in the Conference, while other States, as well as intergovernmental and non-governmental organizations, would be invited to attend as observers. Rule 30 established the Wellington text as the basic proposal for the Diplomatic Conference.130

0.60  As host of the Diplomatic Conference, the Government of Ireland was determined to achieve the adoption of a Convention text by consensus. Paradoxically, the existence of a provision in the rules of procedure enabling the Conference to achieve its objective by vote, if necessary, was considered essential for this purpose as it encouraged delegations to find a compromise for fear that a vote might be called, which they could lose. (This is in contrast, for instance, to the Conference on Disarmament in which each member of the Conference has a veto on decision-making.) The draft Rules accordingly provided at rule 36, paragraph 1 that ‘the Conference shall make its best endeavours to ensure that (its) work … is accomplished by general agreement’ but, failing that, a decision on any matter of substance could be put to a vote.131 A decision on a matter of substance put to a vote would require a two-thirds majority of those present and voting.132

0.61  In accordance with tradition at diplomatic conferences, the Government of Ireland, as host, nominated the President of the Conference (Ambassador Daithí O’Ceallaigh).133 As Ambassador O’Ceallaigh was the (p. 30) only candidate he was duly elected by acclamation at the opening plenary session on 19 May 2008. The Conference then formally adopted its agenda134 and Rules of Procedure135 by consensus and appointed eight Vice-Presidents.136 Following this, Ambassador O’Ceallaigh set out how he proposed to organize the work of the Conference.137 General statements were to be heard in Plenary while at the same time, given the relatively brief period available in which to achieve the objective of the Conference (just two weeks), consideration of individual articles of the draft Convention, together with relevant proposals for amendment, would begin in the Committee of the Whole138 meeting in parallel.

0.62  Ambassador O’Ceallaigh explained that he did not intend to permit the introduction of text in square brackets into the draft Convention. Instead he proposed that where, following discussion, general agreement was recorded within the Committee of the Whole on the text of a provision of the draft Convention that text would be transmitted to the Plenary. If consensus on a particular provision were not possible in the Committee of the Whole the President would appoint a Friend to convene informal consultations in the search for agreement or would convene such consultations himself. Nothing would be formally agreed until everything was agreed in Plenary.

0.63  There had been some concern as to how non-governmental organizations, as observers, would be treated during the Conference and in particular whether they would have access to, and the right to speak at, all Conference meetings. The President explained that meetings of the Plenary and the (p. 31) Committee of the Whole would be open to participants and observers alike and that he expected the same to be the case with open-ended informal meetings. However where Friends chose to convene smaller informal meetings he acknowledged that the question of who to invite would be very much a matter for their judgement, although he pointed out that that judgement would inevitably be informed by the need to achieve the broadest possible agreement.

0.64  Ambassador O’Ceallaigh concluded his statement on the organization of the work of the Conference by stressing that a Convention text would be adopted at its conclusion: while he made it clear that he hoped this would be achieved by consensus, for which he would make every effort, the strong implication he conveyed to delegations was that he was prepared to submit a Convention text to the Conference for adoption by vote if necessary and that there was no question of reconvening the Conference at a later date. Knowledge of this intended course of action further encouraged all delegations to work for consensus.139

The negotiations at the Dublin Diplomatic Conference

0.65  From the first day of the Diplomatic Conference it was strikingly apparent that virtually all of the participating States at the Croke Park Stadium and Conference Centre140 where the negotiations were taking place were genuinely seeking to agree on and adopt a treaty. Strong statements of resolve were made by Ireland’s Foreign Minister, Micheál Martin, T.D.; the Secretary-General of the United Nations, Ban Ki-moon (in a video message); the President of the ICRC, Jakob Kellenberger, and Ad Melkert, Associate Administrator of UNDP.141 There is no need here to give more than a general sense of how the Dublin negotiations progressed since the evolution of specific provisions of the Convention on Cluster Munitions is covered in detail in the main body of this Commentary. It is important to mention, however, that although there were controversies over definitions, associated concepts, and (p. 32) military interoperability throughout the Oslo Process, excellent progress was quietly made in developing agreement on many of the substantive areas of a Convention text. These provisions included groundbreaking new standards on victim assistance, as well as for cluster munition clearance, stockpile storage and destruction, international assistance and cooperation, and transparency measures.

0.66  Differences still existed on issues like whether cluster munitions could be permitted for training and development purposes and the nature of provisions relating to the particular obligations of past user States. But most substantive issues were settled in the first week of the Diplomatic Conference under the auspices of Friends of the President that Ambassador O’Ceallaigh had appointed on various provisions.142 Many of these provisions already showed lessons had been learned from the negotiation and implementation of previous multilateral agreements such as the 1997 Anti-Personnel Mine Ban Convention, 2003 Protocol V, and the UN Convention on the Rights of Persons with Disabilities. The Convention on Cluster Munitions, for example, contains broader provisions on victim assistance than those earlier agreements and has more robust transparency provisions than the 1997 Anti-Personnel Mine Ban Convention.

0.67  Such advances were significant not least because they gave affected States and others in the developing world stakes in a successful outcome to the negotiations, and helped to ameliorate any perceived ‘North-South’ divide, which some had feared might occur. As for the ‘like-minded’, there appeared to be recognition among most that pursuit of their interests could be nuanced. As a consequence, certain delegations often prefaced their statements by reaffirming their commitment to the humanitarian aims of the Oslo Declaration. There were signs too that these countries were feeling domestic political pressure to promote a successful outcome. The CMC, in particular, had intensified its lobbying efforts in the lead-up to the Diplomatic Conference.

(p. 33) 0.68  An important target for civil society lobbying was the UK, which was a past user and, at the time, a possessor of cluster munitions, a NATO Member State, and a close ally of the US. Throughout the Diplomatic Conference, the UK’s cluster munition policies and negotiating posture attracted major coverage in the British media and lobbying from British NGOs. A letter in The Times newspaper from several senior former British military generals on 19 May was especially significant and helped to further undermine military arguments for retaining weapons of humanitarian concern in the Oslo Process. In particular, the letter called for:

the Government of the United Kingdom to give up its remaining stocks of cluster munitions and agree the strongest possible ban on the weapon in the treaty negotiations in Dublin, starting today. Such a treaty will establish a new benchmark for the responsible projection of force in the modern world.143

Two days later, Gordon Brown’s spokesperson announced that ‘the Prime Minister had asked the Ministry of Defence to assess the remaining munitions to ensure there was no risk to civilians’.144

0.69  Although most of the rest of the draft Convention had taken shape by Tuesday of the second week of negotiations in Dublin—including a categorical prohibition on cluster munitions—at the end of that afternoon no solution had been found on interoperability, despite the intensive informal work led by Switzerland, as the ‘Friend of the President’ on this matter. President O’Ceallaigh told his Friends that he would resume direct responsibility for the draft Convention text, and announced to the Conference he would use the next 24 hours for bilateral consultations. The Irish carefully kept their concerns about interoperability to themselves: if the UK was not on board it might make it harder for other ‘like-minded’ States with stockpiles of cluster munitions and US alliance commitments to join—and those States were clearly anxious.

0.70  Having asked the UK for greater flexibility there was little more the President could do. On Tuesday night, as O’Ceallaigh and his team were in the midst of their consultations with individual delegations, a news story appeared on the website of the Guardian newspaper, which would be printed the next (p. 34) morning.145 It reported that the British Government was preparing to scrap Britain’s entire arsenal of cluster munitions. This was confirmed the next day when Prime Minister Brown announced that:

In order to secure as strong a Convention as possible in the last hours of negotiation we have issued instructions that we should support a ban on all cluster bombs, including those currently in service by the UK.146

The announcement, in effect, signalled that Britain would buy into the Dublin outcome. But it was still by no means clear whether unanimous agreement on a treaty text in the Conference plenary would be possible.

0.71  On Wednesday morning (28 May), the President issued a complete draft Convention text, CCM/PT/15,147 prepared during the night, and asked all delegations to seek instructions from their capitals on whether they could accept it.148 The ‘Presidency Paper’ was based on the work in the Friends’ consultations and the Committee of the Whole, rounded out with the President’s take on solutions to the remaining issues following his bilateral meetings and drawing heavily on his team’s judgement. However, some States still opposed on principle any Article 2, paragraph 2(c) exemption in the cluster munition definition. Moreover, several did not support a weight criterion being reinserted into the definition as part of cumulative criteria for exclusion. At the same time, some delegations would have to come to terms with the fact that 2(c) would exclude certain munitions using sensor-fuzed technologies from a ban.149 On the other hand, cluster munitions as a category were to be clearly banned, and there were no transition periods on use that some States had wanted.

0.72  The conclusion the President and his team had drawn from their many bilateral discussions was that his Presidency Paper should not be changed further, lest the Dublin negotiations unravel. During the lunchtime on Wednesday, the Irish Presidency met with the African group and then the Latin Americans to promote this course of action. However, emerging from these meetings, it was still not certain that all of the States seeking a total (p. 35) prohibition without exclusion would support the adoption of the Convention on the plenary floor.

0.73  The CMC’s representatives were unhappy with the interoperability formulation, and wanted drafting changes in order to specify further the prohibition on assistance to prohibited activities by a State not party in Article 1 of the draft Convention. The CMC hoped to secure agreement from Canada and the UK—two countries that had been among the toughest on interoperability—and so persuade the President to amend the draft Convention text. Canada, however, said that it would not go along with further changes. O’Ceallaigh therefore told the CMC representatives that he would not make the changes they were proposing. Although the CMC was an observer rather a State participant in the negotiations, civil society support was important to the legitimacy of the Dublin outcome, and the CMC had been a crucial partner throughout the Oslo process. For their part, although unhappy about Article 21, paragraph 3, CMC campaigners realized that the strengths of other elements of the Presidency Paper far outweighed what it later described as the ‘only stain on the fine fabric of the treaty text’.150

0.74  By now it was around five o’clock on Wednesday afternoon. The clock had been stopped and more than 100 delegations had been waiting for several hours for the last of the three language versions of the Presidency Paper (Spanish) to become available.151 The President now had another outstanding problem to solve: Lebanon, a State affected by cluster munitions and an active and influential country among those seeking a total prohibition without exclusions, reiterated that it would not agree to the draft Convention unless the word ‘strongly’ was added to the provisions in Article 4 to give more weight to calls for assistance from past user states for clearance of cluster munition remnants and risk reduction education. The UK and others had earlier opposed this proposal.152 The President conferred briefly with the relevant delegations, and the amendment was made.

(p. 36) 0.75  The President called the meeting to order and asked the Deputy Foreign Minister of Zambia, Fashion Phiri, who had just arrived in Dublin, to deliver his general statement to the Plenary. The President then informed the Conference:

The Presidency paper before us now represents my assessment at this point of where the best balance of interests and compromise consistent with the Oslo Declaration now lies. It is a package of elements that entails concession for all sides but remains nevertheless an extremely ambitious Convention text that meets the objectives we set ourselves in Oslo in February last year.

0.76  Zambia took the floor again, this time on behalf of the Africa Group, and made clear that African States could endorse the package, although they remained unhappy with certain elements of the text. Zambia sternly warned that if others opened up the text then the African States would reconsider. A cascade of endorsements ensued with New Zealand, Canada, Mexico, South Africa, Switzerland, France, the Philippines, and Indonesia echoing support for the text. Spotting his moment, Ambassador O’Ceallaigh intervened again to alter Article 4, paragraph 4 to make a ‘correction’ and insert the world ‘strongly’. No delegation objected. More than two hours of statements endorsing the Convention on Cluster Munitions followed from States, international organizations, and the CMC. Finally, early that Wednesday evening, the decision was made to return to Croke Park on Friday to adopt formally the Convention on Cluster Munitions. The world now had a new humanitarian treaty categorically banning cluster munitions. On Friday 30 May 2008, 107 States returned to Croke Park to adopt the Convention on Cluster Munitions.153


1  Virgil Wiebe wrote the section, Development and Use of Cluster Munitions, and John Borrie wrote the section, The Negotiation of the Convention on Cluster Munitions, apart from the subsection, Organization of the Diplomatic Conference: Basic Proposal, Rules of Procedure and Structure of Work, which was written by Declan Smyth.

2  Marco Cianchi, Leonardo da Vinci’s Machines (Becocci: 1988), p. 31, illustrations 36 and 38.

3  Ibid., p. 31.

4  Eric Prokosch, Technology of Killing: A Military and Political History of Antipersonnel Weapons (London: Zed Books, 1995), p. 82.

5  See, infra, the commentary on Article 2, paragraph 15.


[Fragmentation bombs] are sometimes called personnel bombs, as they are designed for use against personnel targets, such as troops in action, on the march, in camp, or in unprotected cantonments. They are also effective against exposed personnel on the decks of ships, against airdromes, motor convoys, searchlights, field artillery units, antiaircraft batteries, and similar targets easily damaged or destroyed by fragments. … It has been found that the greatest number of men can be killed per unit weight by a bomb weighing about 25 pounds.

Air Service Tactical School, Bombardment, Government Printing Office, Washington, DC, 1926, pp. 11–12, cited in Rodman, M. K., A War of Their Own: Bombers over the Southwest Pacific (Alabama: Air University Press, Maxwell Air Force Base, 2005), p. 9.

While I was down at Langley I [then Captain George Kenney] developed this parachute bomb—this fragmentation bomb with a little parachute on it so that you would be able to get away from the thing at the time it exploded, and as soon as I got out there [SWPA] I got the 3,000 of those bombs that were left over from early testing—back about 1929 or 30 and which nobody wanted—they were stored in some forgotten warehouse.

General George C. Kenney, in interview by Colonel Marvin M. Stanley, 25 January 1967, transcript, 8, AFHRA, K 239.0512-747, quoted in Rodman, M. K., A War of Their Own: Bombers over the Southwest Pacific, op. cit., p. 44. It is further reported that:

To facilitate the use of these weapons, [Lieutenant] Pappy Gunn ‘came up with the “squirrel cage” for the B-25. This was a metal rack that looked just like a cage with columns of rods. It held parafrags [see, infra, §0.9] in fours stacked on top of the other, nose to tail. I recall that the cage carried about 200 23-pounders and the idea was that when you were over a target you toggled the whole lot.’

Cited in Rodman, A War of Their Own: Bombers over the Southwest Pacific, op. cit., p. 45. See also Behrens, A., ‘Secret Weapon’, in Scutts, J. (ed.), B-25 Mitchell at War (London: Ian Allan, 1983), p. 51.

7  Eric Prokosch, Technology of Killing, op. cit., pp. 82–83. Prokosch notes further (at p. 116) that:

The origins of modern cluster munitions are still surrounded in secrecy. A request in 1994 for the release under the Freedom of Information Act of sixteen technical reports on the development of cluster weapons in the 1950s and 1960s was denied.

8  Human Rights Watch and Landmine Action, Banning Cluster Munitions, Government Policy and Practice, Mines Action Canada, Canada, May 2009, p. 13, available at: <http://www.lm.icbl.org/cm/2009/banning_cluster_munitions_2009.pdf> (accessed 5 March 2010).

9  See, e.g., Human Rights Watch, ‘Timeline of Cluster Munition Use’, Fact Sheet, April 2010.

10  See, e.g., Bolger, D. P., Americans at War: 1975–1986, An Era of Violent Peace (Novato, CA: Presidio Press, 1988), p. 423.

11  This includes a number of countries in which cluster munition have been used in military training.

12  Handicap International, Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities (Brussels: Handicap International, 2007), p. 9, available at: <http://www.stopclustermunitions.org/wp/wp-content/uploads/2009/02/circle-of-impact-may-07.pdf>.

13  The German aircraft of the Condor legion conducted the raid in the following manner:

Su táctica consistió en arrojar primero bombas rompedoras ordinarias, luego racimos de pequeñas bombas incendiarias y simultáneamente, ametrallar al personal al descubierto, no sólo el que se encontraba en la ciudad, sino también en sus alrededores e incluso en las anteiglesias comarcales.

Martinez Bande, J. M., Vizcaya. Monografias de la Guerra de España, No. 6 (Madrid: Libreria Editorial San Martin, 1971), pp. 107–108. An official translation is as follows:

The tactics employed were to drop ordinary shells first, and then small incendiary cluster bombs, at the same time machine-gunning any villagers who had not yet reached cover—not only in the town itself, but also in its outlying districts and also around the neighbouring parishes.

Guernica Peace Museum <http://www.peacemuseumguernica.org/en/documentation/bombingdocu.html> (visited 17 August 2009).

14  According to a recent account:

[t]here was nothing new about the attack on Guernica. Other villages on the Basque frontlines, notably the town of Durango in late March, had been bombed in a similar fashion.

Corum, J. S., Wolfrum von Richthofen: Master of the German Air War (Lawrence, KS: University Press of Kansas, 2008), pp. 134–135.

15  Jappy, M. J., Danger UXB (UK: Macmillan’s Publisher’s, 2001), pp. 155–175. Each SD-2 antipersonnel submunition weighed 2 kilograms, contained 225 grams of explosive, had a kill-radius of 25 metres, and an injury radius of 150 metres. Each was equipped with one of three fuses (impact, time delay, or motion-activated). The submunitions were packed 23 to a cylinder, which would open at a pre-set height to scatter the butterfly bombs. The bombs proved lethal on impact as well as long after impact, foreshadowing the effects of future cluster munitions. See ibid., pp. 157–159; and also King, C., Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study (Geneva: ICRC, August 2000), pp. 10–11, Appendix B.

16  Grant, R., ‘The Stuka Terror’, Air Force Magazine, November 2008, p. 68.

17  Corum, J. S., Wolfrum von Richthofen: Master of the German Air War, op. cit., p. 270. According to Corum, the SD-2 bomb:

was first used in a large scale in the 1941 Soviet campaign and provided a huge increase in the Luftwaffe’s effectiveness … when attacking ground troops or vehicles in the open. Since each SD-2 was a container of ninety-six bombs that covered an area of a few hundred meters, one aircraft dropping two or three of the canisters could effectively wipe out an entire Soviet road column.

18  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 14.

19  Coster, K. B., ‘Boy finds lethal WWII bomb in Qormi valley’, Times of Malta.com, 29 October 2009, <http://www.timesofmalta.com/articles/view/20091029/local/boy-finds-lethal-wwiibomb-in-qormi-valley> (accessed 24 March 2010).

20  Report by Jan-Ole Robertz, EOD Technical Advisor, Countermine Libya, 27 November 2009.

21  ‘Big Russian Bomb Holds Sixty Little Ones’, Popular Science, July 1940, <http://blog.modernmechanix.com/issue/?magname=PopularScience&magdate=7-1940> (accessed 28 July 2009); Langdon-Davies, J., Finland: The First Total War (London: George Rutledge & Sons, 1940), pp. 141, and 156–157.

22  King, C., Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study, op. cit., p. 10.

23  Rodman, M. K., A War of Their Own: Bombers over the Southwest Pacific, op. cit., pp. 44–45 and 47. The US also made extensive use of four-pound incendiary thermite bombs, ‘designed to be carried in large numbers and spread over wide areas’. Ibid., pp. 77–78.

24  Langdon-Davies, J., Finland: The First Total War, op. cit., p. 157.

25  King, C. Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study, op. cit., pp. 10–11.

26  ‘Since the parafrags are likely to hang in trees and thus become duds, the 100lb parademo is substituted for the parafrag against such targets as aircraft and fuel dumps situated in wooded areas.’ Headquarters V Bomber Command, Office of the Ordnance Officer, ‘First Phase Recommendations on Bomb Loading for Various Primary Targets’, 18 April 1944, 1, AFHRA, 732.804-1, cited in Rodman, M. K., A War of Their Own: Bombers over the Southwest Pacific, op. cit., p. 103.

The statement as to duds among parachute (frag.) bombs is correct. The principal cause—release of parafrags from altitudes below 100 feet, which did not allow bomb fuzes sufficient time to arm completely.

Ibid., p. 123, citing the Assistant Chief of Air Staff, Intelligence, US Army Air Forces, ‘Jap Opinion of AAF Bombing Tactics’, Informational Intelligence Summary, No. 44-26, 20 August 1944, p. 4.

27  According to US Navy records, on 8 October 1952, ‘[e]leven B-29s of the FEAF Bomber Command and 89 TF 77 aircraft struck the Kowon rail center. B-29s carried VT [proximity] fuzed 500 pound cluster bombs for effective flak suppression.’ Department of the Navy, Naval Historical Center, ‘Korean War: Chronology of U.S. Pacific Fleet Operations, September–December 1952’, 21 June 2000, <http://www.history.navy.mil/wars/korea/chron52c.htm> (visited 30 July 2009). It is not clear if the term ‘500 pound cluster bomb’ refers to a high explosive unitary bomb or a cluster munition. Another source claims that the US ‘manufactured a copy of the SD2 for use during the Korean War and Vietnam War, designating it the M83 Butterfly Bomb.’ ‘US M-83 “Butterfly Bomb,”‘ <http://www.inert-ord.net/usa03a/usa6/bfly/index.html> (visited 30 July 2009). Corum notes that the ‘U.S. Air Force found the SD-2 such an effective weapon that it copied and produced the bomb after the war; the SD-2 remained in the U.S. inventory as a standard munition into the 1960s.’ Corum, J. S., Wolfrum von Richthofen: Master of the German Air War, op. cit., p. 270.

28  According to Simon Conway:

The most significant event in the development and subsequent use of cluster munitions was the Korean War—when American military might was challenged by an enemy that was technologically inferior but with inexhaustible supplies of manpower. US commanders confronted the nightmare of seeing their forces over-run by hordes of enemy soldiers. The result was a revolution in anti-personnel weapons with an emphasis on the production of large quantities of fast-flying lethal fragments over a wide area. … The war that cluster munitions were designed for was over by the time they had reached the stage of mass production.

Simon Conway, ‘Cluster Munitions: Historical Overview of Use and Human Impacts’, in International Committee of the Red Cross (ICRC), Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions, Montreux, Switzerland, 18 to 20 April 2007, pp. 13–14.

29  ‘According to an analysis of US bombing data conducted by Handicap International, some 80,000 cluster munitions, containing 26 million submunitions, were dropped on Cambodia between 1969 and 1973; more than 414,000 cluster bombs, containing at least 260 million submunitions, were dropped on Laos between 1965 and 1973; and more than 296,000 cluster munitions, containing nearly 97 million submunitions, were dropped in Vietnam between 1965 and 1975.’ See Human Rights Watch, Cluster Munition Information Chart, 17 July 2009, <http://www.hrw.org/en/news/2009/07/17/cluster-munition-information-chart>; and also ‘The Unexploded Ordnance (UXO) Problem,’ Lao National Unexploded Ordnance Programme (UXO Lao) <http://www.uxolao.org/uxo%20problem.html> (visited 19 August 2009).

30  Lin, J., ‘Shellshocked Laos’, Hobart Mercury (Australia), 20 December 1996.

31  Lao National Unexploded Ordnance Programme 2008 Annual Report, UXO Lao, Vientiane, 2009, p. 18, <http://www.uxolao.org/Download%20files/2008%20Annual%20Report.pdf>.

32  In its 2006 report, UXO Lao put the total number at 288,485,886 used, with an estimated failure rate between 12 and 30%. Shane, K., ‘Lao PDR’, Journal of Mine Action, Winter 2006, <http://maic.jmu.edu/JOURNAL/10.2/profiles/laos/laos.htm>, citing email correspondence with John Dingley, UN Development Programme (UNDP), 9 November 2006.

33  ‘Cambodia National Level 1 Survey’, 2002, <http://www.sac-na.org/pdf_text/cambodia/executive%20summary.htm>. According to the Cluster Munition Coalition (CMC):

An estimate based on US military databases states that 9,500 sorties in Cambodia delivered up to 87,000 air-dropped cluster munitions.

CMC, ‘A History of Harm’, <http://www.stopclustermunitions.org/the-problem/history-harm/> (visited 22 August 2009).

34  Human Rights Watch, Cluster Munition Information Chart, 17 July 2009, op. cit.

35  Or 106. The UK is not certain which figure is correct. See Hansard, 12 May 2000, Vol. 349, col. 512W, <http://www.hansard.millbanksystems.com/written_answers/2000/may/12/clusterbombs#S6CV0349P0_20000512_CWA_175>.

36  Human Rights Watch, Cluster Munition Information Chart, 17 July 2009, op. cit.

37  Ibid.

38  Ibid.

39  Ibid.

40  Ibid.

41  Kilian, M., ‘“The War Has Just Started”: Terrorist Vows Revenge as the U.S. Stands Firm’, Chicago Tribune, 22 August 1998, p. 1.

42  Human Rights Watch, Cluster Munition Information Chart, op. cit. At some point during the decade, cluster munitions were also used in Uganda, as ‘RBK-250/275 bombs and AO-1SCh submunitions have been found in the northern district of Gulu.’ Ibid.

43  See Human Rights Watch, Flooding South Lebanon: Israel’s Use of Cluster Munitions in Lebanon in July and August 2006, Vol. 20, No. 2(E), February 2008, pp. 36–37.

44  MACC-SL, ‘November—December 2008 Report of the Mine Action Co-ordination Centre, South Lebanon’, 18 December 2008, <http://www.maccsl.org/reports/Monthly%20Reports/Monthly%202008/Monthly%20Report%20Nov-Dec%2008.pdf>, p. 6 (accessed 6 August 2009). This does not include submunitions cleared by Hezbollah forces or by the civilian population.

45  Civilian Cluster Bomb Victims Graph since 14 August 2006 up to 1 January 2009, <http://www.maccsl.org/reports/Victims/Victims.pdf> (visited 6 August 2009).

46  Human Rights Watch, Civilians under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War, Vol. 19, No. 3(E), August 2007, pp. 44–46.

47  See further, infra, §0.26.

48  For a detailed history of international efforts to address the humanitarian impacts of cluster munitions culminating in the Convention on Cluster Munitions, see Borrie, J., Unacceptable Harm: A history of how the international treaty banning cluster munitions was won (Geneva: United Nations Institute for Disarmament Research/United Nations, 2009).

49  Prokosch, E., The Technology of Killing, op. cit.

50  Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949; and Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.

51  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

52  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, adopted in Geneva on 10 October 1980.

53  ‘Working Paper submitted by Egypt, Mexico, Norway, Sudan, Sweden, Switzerland and Yugoslavia to the Diplomatic Conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts’, CDDH/DT/2, 21 February 1974.

54  ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September–18 October 1974): Report (Geneva: ICRC, 1975).

55  ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session — Lugano, 28 January–26 February 1976): Report (Geneva: ICRC, 1976).

56  See King, C., Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study, op. cit.

57  See Human Rights Watch, Ticking Time Bombs: NATO’s use of cluster munitions in Yugoslavia, Vol. 11, No. 6 (D), June 1999; and Maslen, S., Explosive Remnants of War: Cluster Bombs and Landmines in Kosovo, Revised Edition (Geneva: ICRC, June 2001).

58  The formal title of this treaty is the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.

59  Mine action is the term used to describe efforts to address the threat from landmines and ERW. See, e.g., the International Mine Action Standards: IMAS 02.10: ‘Guide for the Establishment of a Mine Action Programme’, First Edition, 1 January 2003, available at <http://www.mineactionstandards.org/IMAS_archive/Final/IMAS%2002.10%20Guide%20for%20the%20establishment%20of%20a%20mine%20action%20programme%20(First%20Edition).pdf>.

60  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 2.

61  According to the definition in Article 2 of Protocol V on Explosive Remnants of War to the Convention on Certain Conventional Weapons (2003 Protocol V), ERW comprise abandoned explosive ordnance and unexploded ordnance, linked to an armed conflict. See further, infra, the commentary on Article 2, esp. §§2.184 et seq.

62  ‘Final Document of the Second Review Conference of the States Parties to the CCW, Geneva, December 11–21, 2001’, UN doc. CCW/CONF.II/2.

63  See, e.g., Human Rights Watch, Fatally Flawed: Cluster Bombs and their use by the United States in Afghanistan, Vol. 14, No. 7 (G), December 2002.

64  See, e.g., Human Rights Watch, Off Target: The conduct of the war and civilian casualties in Iraq (Washington, DC: Human Rights Watch, 2003).

65  See Petrova, M. H., Small States and New Norms of Warfare, EUI Working Papers MWP 2007/28 (San Domenico di Fiesole: European University Institute, 2007).

66  See Maresca, L., ‘A new protocol on explosive remnants of war: The history and negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons’, International Review of the Red Cross, Vol. 86, No. 856, December 2004, pp. 815–835.

67  The Irish Department for Foreign Affairs and Pax Christi Ireland hosted this conference, which was held on 23–25 April 2003. For information about the formal Dublin conference see Explosive Remnants of War and Development—Voices from the Field: Conference Report, Dublin Castle, 23–25 April 2003.

68  Pax Christi Netherlands, Conference Report: Cluster Munition Coalition International Launch Conference, 12–13 November 2003, The Hague, Netherlands.

69  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 2.

70  i.e. anti-vehicle mines. Continued use of the term ‘mines other than anti-personnel mines’ stemmed from previous work in the CCW in the context of Amended Protocol II. See, e.g., Maslen, S., Commentaries on Arms Control Treaties, Volume I: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, Second Edition, Oxford Commentaries on International Law (Oxford: Oxford University Press, 2005), pp. 17–21, and §§2.44 et seq. Hereinafter, this work is referred to as the Commentary on the 1997 Anti-Personnel Mine Ban Convention.

71  Office of the Norwegian Prime Minister, The Soria Moria Declaration on International Policy (in English, translated from Norwegian): <http://www.regjeringen.no/en/dep/smk/documents/Reports-and-action-plans/Rapporter/2005/The-Soria-Moria-Declaration-on-Internati.html?id=438515>.

72  According to a statement of Norway in the Convention on Certain Conventional Weapons in June 2006:

In the process towards an international regulation prohibiting cluster munitions that may have unacceptable humanitarian effects, the Norwegian government has introduced a moratorium on Norwegian cluster munitions until these munitions have been further tested and a decision on their future is made … . It is imperative to start working, without further delay, towards an international ban on cluster munitions that cause unacceptable humanitarian problems.

Statement of Norway on ERW, Convention on Certain Conventional Weapons, 20 June 2006 (copy on file with the author).

73  See, infra, §§0.167–0.169.

74  See Petrova, M. H., Small States and New Norms of Warfare, op. cit.

75  See, supra, §0.19.

76  Rappaport, M., ‘Israeli Defence Force commander: We fired more than a million cluster bombs in Lebanon’, Haaretz, 12 September 2006.

77  See Nash, T., Foreseeable Harm: The use and impact of cluster munitions in Lebanon (Landmine Action, London, 2006) and Human Rights Watch, Flooding South Lebanon: Israel’s Use of Cluster Munitions in Lebanon in July and August 2006 (Washington, DC: Human Rights Watch, February 2008).

78  See, e.g., King, C., Dullum, O., and Østern, G., M85—An Analysis of Reliability (Oslo: Norwegian People’s Aid, 2007).

79  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 3. The fact that attempts to negotiate a new protocol on mines other than anti-personnel mines (i.e. antivehicle mines) were not successful did not go unnoticed by several States.

80  Secretary-General of the United Nations, ‘Message to the Third Review Conference of the Convention on Certain Conventional Weapons’, 7 November 2006.

81  ‘Proposal for a Mandate to Negotiate a Legally-Binding Instrument that Addresses the Humanitarian Concerns Posed by Cluster Munitions, Presented by Austria, Holy See, Ireland, Mexico, New Zealand, and Sweden’, Third Review Conference of States Parties to the CCW, Geneva, 25 October 2006, UN doc. CCW/CONF.III/WP.1.

82  ‘Final Document of the Third Review Conference of the High Contracting Parties to the CCW’, Geneva 7–17 November 2006, UN doc. CCW/CONF.III/11 (Part II), Decision 1.

83  Norwegian Ministry of Foreign Affairs, ‘Press Release: Norway takes the initiative for a ban on cluster munitions’, No. 104/06, 17 November 2006 (copy on file with the author).

84  Bettauer, R. J., ‘Statement of the Head of the United States Delegation to the Closing Plenary Session of the Third CCW Review Conference’, Geneva, 17 November 2006.

85  The following 46 States endorsed the Oslo Declaration at the end of the Oslo Conference: Afghanistan, Angola, Argentina, Austria, Belgium, Bosnia and Herzegovina, Canada, Chile, Colombia, Croatia, Costa Rica, the Czech Republic, Denmark, Egypt, Finland, France, Germany, Guatemala, Holy See, Hungary, Iceland, Indonesia, Ireland, Italy, Jordan, Latvia, Lebanon, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Mozambique, Netherlands, New Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. Japan, Poland, and Romania withheld their endorsement of the Declaration at the conclusion of the Conference.

86  Declaration, Oslo Conference on Cluster Munitions, 22–23 February 2007, contained in Annex 2 of this Commentary.

87  See Borrie, J., Unacceptable Harm, A History of How the Treaty to Ban Cluster Munitions Was Won (New York and Geneva: UN and UNIDIR, 2009), pp. 162–163.

88  Sweden was a part of the Core Group in the very beginning of the process, but withdrew soon after the Oslo Conference, see Nystuen, G., ‘A New Treaty Banning Cluster Munitions: The Interplay between Disarmament Diplomacy and Humanitarian Requirements’, in Baillet, C. (ed.), Security: A Multidisciplinary Normative Approach (Leiden/Boston: Brill, 2009), p. 144.

89  The Oslo Declaration language has been described by the author in his history of the Oslo Process as ‘masterfully ambiguous’. Borrie, J., Unacceptable Harm, op. cit., p. xxiv.

90  The tradition of unanimity for decision-making in the Convention on Certain Conventional Weapons means that it is very difficult to establish or restore a balance between military utility and the requirements of humanity when the use of a particular weapon system threatens the latter. Thus, the Convention on Certain Conventional Weapons tends to favour the status quo.

91  See Borrie, J., ‘The “long year”: Emerging international efforts to address the humanitarian impacts of cluster munitions, 2006–2007’, Yearbook of International Humanitarian Law, Vol. 10 (2007), (Cambridge: T. M. C. Asser Press/Cambridge University Press, 2009), pp. 251–275.

92  See, e.g., ‘U.S. open to negotiations on cluster bombs but no ban’, Reuters, Geneva, 18 June 2007.

93  The formal title of this instrument is the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996 to the CCW).

94  See ICRC, Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions, Montreux, Switzerland, 18 to 20 April 2007.

95  For more on ‘burden of proof ’ arguments see Rappert, B., and Moyes, R., ‘The Prohibition of Cluster Munitions: Setting International Precedents for Defining Inhumanity’, Nonproliferation Review, Vol. 16, No. 2 (July 2009), pp. 237–256.

96  Germany, ‘Draft CCW Protocol on cluster munitions’, UN doc. CCW/GGE/2007/WP.1, 1 May 2007.

97  CMC, ‘German proposal is not a basis for a new cluster munition treaty’, Press release, Geneva, 27 April 2007.

98  The chair’s discussion texts, which were issued prior to the Lima and Vienna Conferences, were the result of discussions within the core group of States, taking into account the views of other States engaged in the Oslo Process.

99  Chair’s discussion text on a legally binding international instrument that will prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, Lima, 23–25 May 2007.

100  States participating in the Lima Conference were as follows: 14 from Africa (Angola, Burundi, Chad, Ghana, Guinea-Bissau, Lesotho, Liberia, Mauritania, Mozambique, Nigeria, Senegal, Tanzania, Uganda, and Zambia); 14 from the Americas (Argentina, Bolivia, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Mexico, Panama, Paraguay, Peru, and Venezuela); eight from the Asia-Pacific (Australia, Bangladesh, Cambodia, Indonesia, Japan, Laos, New Zealand, and Thailand); 28 from Europe (Albania, Austria, Belgium, Bosnia and Herzegovina, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Holy See, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Serbia, Slovakia, Spain, Switzerland, and the UK), and three from the Middle East (Egypt, Lebanon, and Yemen). See, e.g., Harrison, K., ‘Report from the Lima Conference on Cluster Munitions, 23–25 May 2007’, Women’s International League for Peace and Freedom, p. 31.

101  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 4.

102  States participating in the Vienna Conference were: Afghanistan, Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Bangladesh, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Chad, Chile, Colombia, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Fiji, Finland, France, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Holy See, Honduras, Hungary, Iceland, Indonesia, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Laos, Latvia, Lebanon, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Mauritania, Mexico, Monaco, Montenegro, Morocco, Mozambique, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Palau, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Samoa, San Marino, Sao Tome & Principe, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, South Africa, Spain, Sri Lanka, St. Kitts & Nevis, Sudan, Suriname, Swaziland, Sweden, Switzerland, Tajikistan, Tanzania, Thailand, the former Yugoslav Republic of Macedonia, Togo, Trinidad & Tobago, Turkey, Turkmenistan, Uganda, Ukraine, the UK, Uruguay, Venezuela, Vietnam, and Zambia. Source: Vienna Participants List from Austrian Ministry of Foreign Affairs (webpage discontinued; copy on file with author).

103  ‘Bundesgesetz über das Verbot von Streumunition’ (NR: GP XXIII RV 232 AB 350 S. 42. BR: AB 7873 S.751.), Austrian Federal Law Gazette BGBl. I Nr. 12/2008, 7 January 2008, available at: <http://ris1.bka.gv.at/Appl/findbgbl.aspx?name=entwurf&format=html&docid=COO_2026_100_2_367285>.

104  Vienna Discussion Text of 14 November 2007.

105  Interoperability, in general terms, refers to the ability of forces or agents of various States or international organizations to operate jointly in the performance of a task, mission, or operation. It has particular impact on the respective legal obligations of, and military relationship between, the armed forces of two or more States operating in a joint military alliance or operation. See further, infra, the commentary on Article 21, esp. §21.2.

106  Vienna Discussion Text of 14 November 2007.

107  King, C., Dullum, O., and Østern, G., M85—An Analysis of Reliability, op. cit.

108  See, infra, the commentary on Article 1, paragraph 3.

109  These weapons use sensors and electronic micro-processors to identify and then attack targets, primarily vehicles, based on their heat-signature and profile. The use of the general term sensor-fuzed weapons should not be confused with the specific US CBU-97/CBU-105, which is often called the ‘Sensor Fuzed Weapon’. See further, infra, §2.64.

110  ‘Report of the Meeting of the High Contracting Parties to the 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’, UN doc. CCW/MSP/2007/5, 3 December 2007, p. 9.

111  Although the definition of an anti-personnel mine differs somewhat between 1996 Amended Protocol II and the 1997 Anti-Personnel Mine Ban Convention. See, e.g., Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §§2.1 et seq.

112  For a more comprehensive description and analysis of the Wellington Conference, see Borrie, J., Unacceptable Harm, op. cit.

113  Draft Cluster Munitions Convention, 21 January 2008. See also Draft Cluster Munitions Convention Explanatory Notes, 21 January 2008 and the Draft Wellington Declaration.

114  See Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §§0.73–0.82.

115  One member of the core group referred to them as the ‘teetotal’ States.

116  The structure of the draft prohibition in Article 2(c) meant that anything defined as a cluster munition would be banned.

117  See Compendium of Proposals submitted by Delegations during the Wellington Conference Addendum 1, <http://www.mfat.govt.nz/clustermunitionswellington/conference-documents/WCCM-Compendium-v2.pdf> (accessed 5 March 2010). Proposals by States were issued as formal papers at the Dublin Diplomatic Conference. Proposals by others, such as the ICRC, are included in Annex 6.

118  The chief features of the draft Rules of Procedure were, namely, that only States that had subscribed to the Wellington Declaration were entitled to participate at the Diplomatic Conference (other States would be observers); that every effort should be made to reach general agreement but that where this was not possible provision was made for decision-making by two-thirds majority vote (the standard rule of decision making for the adoption of multilateral conventions); that NGOs would be observers with speaking rights; and that the Draft Cluster Munitions Convention would form the basic proposal before the Conference.

119  The matter was resolved only on the final morning of the Conference when it was agreed that Ambassador McKay would transmit the Wellington Declaration (in which the draft Convention text is established as the basic proposal) and the compendium of delegations’ proposals attached to it to the Government of Ireland which, as host of the Diplomatic Conference, would treat the proposals set out in the compendium as proposals submitted in accordance with rule 31 of the draft Rules of Procedure, i.e. as ‘other proposals’. This was accepted by the ‘like-minded’ and publicly confirmed by the Conference Chairman and the head of the Irish delegation (the Irish Government’s nominee for President of the Diplomatic Conference) at the conclusion of the Wellington Conference.

120  Declaration of the Wellington Conference on Cluster Munitions, 22 February 2008, <http://www.mfat.govt.nz/clustermunitionswellington/conference-documents/Wellington-declarationfinal.pdf> (accessed 5 March 2010).

121  List of countries subscribing to the Declaration of the Wellington Conference on Cluster Munitions (prepared by the New Zealand Ministry of Foreign Affairs and Trade), 23 May 2008, <http://www.clustermunitionsdublin.ie/pdf/Subscribing_23.5.08.pdf> (accessed 5 March 2010).

122  List of countries subscribing to the Declaration of the Wellington Conference on Cluster Munitions (prepared by the New Zealand Ministry of Foreign Affairs and Trade), 23 May 2008, <http://www.clustermunitionsdublin.ie/pdf/Subscribing_23.5.08.pdf> (accessed 5 March 2010).

123  The US Secretary of Defence, Robert Gates, would eventually sign-off on a new policy on ‘cluster munitions and unintended harm to civilians’ on 19 June 2008. Available online at: <http://www.defenselink.mil/news/d20080709cmpolicy.pdf> (accessed 5 March 2010).

124  Livingstone Declaration on Cluster Munitions, 1 April 2008, accessed at: <http://www.iss.co.za/dynamic/administration/file_manager/file_links/LIVINGSTONEDECL.PDF?link_id=19&slink_id=5859&link_type=12&slink_type=13&tmpl_id=3> (accessed 5 March 2010).

125  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 6.

126  Subsequently published as Diplomatic Conference doc. CCM/2, 19 May 2008.

127  UN doc. A/CONF.183/6 of 23 June 1998.

128  UN doc. A/40/611 of 11 September 1985.

129  Doc. APL/CRP 3 of 1 September 1997.

130  The status of the Wellington text as the basic proposal would become relevant if and when voting were to take place at the Diplomatic Conference. When concern was expressed by a number of delegations about the status of other proposals made in Wellington the Government of Ireland, as host of the Diplomatic Conference, agreed to treat those proposals as proposals submitted in accordance with rule 31 (i.e. ‘other proposals’) and they were registered and published as such in advance of the Diplomatic Conference. However, only proposals made by States could be so treated: suggestions made by the ICRC and the CMC at Wellington could not be regarded as ‘other proposals’ under rule 31 because only States could subscribe to the Wellington Declaration and only such states could participate in the Diplomatic Conference (and therefore make proposals).

131  Rule 36, paragraph 2.

132  This reflects the generally applicable rule of international law, as provided at Article 9(2) of the 1969 Vienna Convention on the Law of Treaties (‘(t)he adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule’).

133  Then the Permanent Representative of Ireland to the UN in Geneva.

134  ‘Agenda’, Diplomatic Conference doc. CCM/51, 19 May 2008.

135  ‘Rules of Procedure’, Diplomatic Conference doc. CCM/52, 19 May 2008.

136  The eight Vice-Presidents appointed by the Diplomatic Conference were the following: Ambassador Najla Riachi Assaker of Lebanon, Ambassador Jean-Francois Dobelle of France, Ambassador Juan Eduardo Eguiguren of Chile, Ambassador Mohamed Yahya Ould Sidi Haiba of Mauritania, Ambassador Steffen Kongstad of Norway, Ambassador Pablo Macedo of Mexico, Ms. Sheila Mweemba of Zambia, and Ambassador Sándor Rácz of Hungary.

137  ‘Summary Record of Opening Ceremony and First Session of the Plenary’, Diplomatic Conference doc. CCM/SR/1, 18 June 2008.

138  It is not usually possible to accomplish the work of a large international conference entirely in Plenary meetings, which are regarded as too cumbersome to carry out detailed preparation of the decisions to be taken at the conference. The annual General Assembly of the United Nations, for instance, allocates its work to six separate committees, all of which report to the Assembly in plenary. However, at a smaller conference with a relatively straightforward agenda, such as a diplomatic conference for the negotiation of a new convention, the conference may undertake detailed examination of a text while sitting as a committee of the whole. At such a conference general discussion and decision-making is reserved for the plenary. At the Dublin Diplomatic Conference provision was made for the Committee of the Whole at rule 50 of the Rules of Procedure. By convening it in parallel to the plenary, it was possible to hear general statements while simultaneously beginning work on the detailed examination of the draft Convention text.

139  Thus, the President of the Diplomatic Conference stated his intention to:

adopt a Convention at the conclusion of this Conference. It’s my hope that that Convention will be adopted by consensus, and as I’ve emphasised throughout my consultations, it’s my intention to make every feasible effort to reach general agreement. But I want to underline once again: we will adopt a Convention by the end of next week.

Author’s transcript; cf. Borrie, J., Unacceptable Harm, op. cit., p. 267.

141  Summary records of all of the formal sessions of the Dublin Diplomatic Conference were prepared by the Irish Department of Foreign Affairs. The summary records are available at the archives of the Irish Department of Foreign Affairs and through the website of the Diplomatic Conference at <http://www.clustermunitionsdublin.ie>.

142  Ambassador Caroline Millar of Australia served as a Friend of the President on the Preamble. Ambassador Christine Schraner Burgener of Switzerland served as a Friend of the President on ‘interoperability’. Ambassador Don MacKay of New Zealand served as a Friend of the President on Article 2. Ambassador Steffen Kongstad of Norway served as a Friend of the President on Article 3. Lieutenant Colonel Jim Burke of the Irish Defence Forces served as a Friend of the President on Article 4. Mr. Markus Reiterer of Austria served as a Friend of the President on Article 5. Mr. Xolisa Mabhongo of South Africa served as a Friend of the President on Article 8. In addition, the delegation of Germany was asked to hold informal consultations on the possibility of transition periods and the delegation of Canada was asked to hold informal consultations on international cooperation and assistance.

143  Letter from 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, ‘Cluster bombs don’t work and must be banned’, The Times, 19 May 2008.

144  10 Downing Street press briefing, 21 May 2008, ‘cluster bombs’, <http://www.number-10.gov.uk/output/Page15599.asp>.

145  Richard Norton-Taylor, ‘UK ready to scrap killer cluster bombs: Ministers overrule opposition from military over controversial weapons’, Guardian, 28 May 2008.

146  10 Downing Street, ‘Breakthrough on cluster bombs draws closer’, 28 May 2008, <http://www.number10.gov.uk/output/page15608.asp>.

147  Initially, this paper was incorrectly numbered as PT/14, but this number had been reserved for a revised draft of Article 8.

148  ‘Presidency Paper: Draft Convention on Cluster Munitions’, Diplomatic Conference doc.CCM/PT/15, 28 May 2008. The Presidency paper became available that morning.

149  For explanation, see ‘CMC Briefing Paper on the Convention on Cluster Munitions’, July 2008; for details of sensor-fuzed weapons, see, infra, §2.64.

150  CMC, ‘CMC Statement on the Agreement to Adopt the Cluster Munition Convention’, delivered by Steve Goose, Human Rights Watch, CMC Co-Chair, 28 May 2008, Dublin Diplomatic Conference.

151  Official documents at the Dublin Conference were produced in English, French, and Spanish.

152  Lebanese Government authorities in Beirut insisted that the word ‘strongly’ be prefixed to ‘encourage’ in paragraph 4(a) of Article 4—a formulation of important symbolic value to some cluster munition affected countries. The UK apparently opposed this initially because the British Government saw little difference between ‘encouraged’ and ‘strongly encouraged’ in practical terms.

153  The following 107 States participated in the Dublin Conference: Albania, Argentina, Australia, Austria, Bahrain, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Chad, Chile, Comoros, Republic of the Congo, Cook Islands, Costa Rica, Côte d’Ivoire, Croatia, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Ghana, Guatemala, Guinea, Guinea-Bissau, Holy See, Honduras, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan, Kenya, Kyrgyzstan, Laos, Lebanon, Lesotho, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Mauritania, Mexico, Moldova, Montenegro, Morocco, Mozambique, The Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Portugal, Qatar, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sudan, Swaziland, Sweden, Switzerland, Tanzania, the former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Uganda, the UK, Uruguay, Vanuatu, Venezuela, and Zambia. In addition, Colombia, Cyprus, Egypt, Eritrea, Ethiopia, Greece, Iraq, Kazakhstan, Kuwait, Latvia, Libyan Arab Jamahiriya, Oman, Poland, Romania, Saudi Arabia, Singapore, Thailand, Turkey, Ukraine, and Vietnam attended as observers. See ‘Final Document’, Diplomatic Conference doc. CCM/78, 30 May 2008.