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

Commentary, The Title and Preamble of the Convention

Théo Boutruche, Stuart Casey-Maslen, Andrew Clapham, Thomas Nash, Markus Reiterer, Declan Smyth

From: The Convention on Cluster Munitions: A Commentary

Edited By: Gro Nystuen, Stuart Casey-Maslen

Subject(s):
Armed conflict — Weapons, conventional

The Title and Preamble of the Convention

The Convention on Cluster Munitions

The States Parties to this Convention,

Deeply concerned that civilian populations and individual civilians continue to bear the brunt of armed conflict,

Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned,

Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of livelihood, impede post-conflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international (p. 39) peace-building and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use,

Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction,

Believing it necessary to contribute effectively in an efficient, coordinated manner to resolving the challenge of removing cluster munition remnants located throughout the world, and to ensure their destruction,

Determined also to ensure the full realisation of the rights of all cluster munition victims and recognising their inherent dignity,

Resolved to do their utmost in providing assistance to cluster munition victims, including medical care, rehabilitation and psychological support, as well as providing for their social and economic inclusion,

Recognising the need to provide age- and gender-sensitive assistance to cluster munition victims and to address the special needs of vulnerable groups,

Bearing in mind the Convention on the Rights of Persons with Disabilities which, inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realisation of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability,

Mindful of the need to coordinate adequately efforts undertaken in various fora to address the rights and needs of victims of various types of weapons, and resolved to avoid discrimination among victims of various types of weapons,

Reaffirming that in cases not covered by this Convention or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law, derived from established custom, from the principles of humanity and from the dictates of public conscience,

Resolved also that armed groups distinct from the armed forces of a State shall not, under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention,

Welcoming the very broad international support for the international norm prohibiting anti-personnel mines, enshrined in the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti- Personnel Mines and on Their Destruction,

Welcoming also the adoption of the Protocol on Explosive Remnants of War, annexed to the Convention on Prohibitions or Restrictions on the (p. 40) Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its entry into force on 12 November 2006, and wishing to enhance the protection of civilians from the effects of cluster munition remnants in post-conflict environments,

Bearing in mind also United Nations Security Council Resolution 1325 on women, peace and security and United Nations Security Council Resolution 1612 on children in armed conflict,

Welcoming further the steps taken nationally, regionally and globally in recent years aimed at prohibiting, restricting or suspending the use, stockpiling, production and transfer of cluster munitions,

Stressing the role of public conscience in furthering the principles of humanity as evidenced by the global call for an end to civilian suffering caused by cluster munitions and recognising the efforts to that end undertaken by the United Nations, the International Committee of the Red Cross, the Cluster Munition Coalition and numerous other nongovernmental organisations around the world,

Reaffirming the Declaration of the Oslo Conference on Cluster Munitions, by which, inter alia, States recognised the grave consequences caused by the use of cluster munitions and committed themselves to conclude by 2008 a legally binding instrument that would prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and would establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation for victims, clearance of contaminated areas, risk reduction education and destruction of stockpiles,

Emphasising the desirability of attracting the adherence of all States to this Convention, and determined to work strenuously towards the promotion of its universalisation and its full implementation,

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and the rules that the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only, that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations,

(p. 41) HAVE AGREED as follows:

Overview

0.77  The simple title of the Convention on Cluster Munitions is a deliberate break with the practice of most other treaties outlawing conventional or non-conventional weapons, which have tended to be long. Its title does not refer to the core prohibitions set out in the Convention. The preamble covers a range of subjects, notably the humanitarian and developmental impacts underpinning the need for the treaty, the rights of those affected by cluster munitions, and the legal basis for the treaty. The preamble also identifies the main actions required to ensure the implementation of the Convention, contains references to key documents forming part of the ‘Oslo Process’,2 and includes a paragraph addressing the application to non-State armed groups (NSAGs) of the core prohibitions set out in the Convention.

The Title of the Convention

The Convention on Cluster Munitions

0.78  The Convention’s simple title was presented to the negotiating States by the President of the Dublin Diplomatic Conference in his consolidated text of 28 May 2008.3 There were no formal negotiations on the title; although Hungary made a written proposal to rename the title of the draft Convention, this was not accepted.4 The title of the Convention as adopted was deliberately short.5 The title of the first draft of the Convention, the Lima Discussion Text, had referred to ‘a legally binding international instrument that will prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians’.6 The second draft, the Vienna Discussion (p. 42) Text, however, did not include this language, nor did the Draft Cluster Munitions Convention submitted as the formal basis for negotiation at the Dublin Diplomatic Conference of May 2008.7

The preamble

0.79  The preamble of an international treaty typically sets out its purpose and the context of its adoption although there is no legal requirement that it do so,8 nor even that a preamble be included.9 Although not legally binding provisions, the content of the preamble can be usefully considered in an attempt to discern the object and purpose of the Convention.

Background to the preamble

0.80  The Lima Discussion Text did not contain draft preambular language. Four draft preambular paragraphs specifically addressing the issue of victims of cluster munitions were circulated as part of the Vienna Discussion Text. A complete draft preambular text, incorporating these paragraphs, was then developed by Ireland and considered by the core group at its meeting in Geneva on 10 and 11 January 2008. The Irish delegation chaired informal consultations during the February 2008 Wellington Conference10 on most elements of the draft preamble (those paragraphs addressing victim issues were discussed by delegations at the consultations convened to consider Article 5).11

Negotiation of the preamble

0.81  A full draft preamble was included in the Draft Cluster Munitions Convention submitted by the Wellington Conference to the Dublin Diplomatic Conference as the formal negotiating text.12 As no amendments (p. 43) were to be made to the Draft Cluster Munitions Convention in advance of the Diplomatic Conference, where the consultations at the Wellington Conference had suggested likely agreement on the amendment of specific preambular text Ireland (acting in its national capacity) sought to capture this by submitting such text to the Diplomatic Conference as its own proposal for amendments.13

0.82  At the Diplomatic Conference, the President of the Conference, Ambassador O’Ceallaigh, asked Ambassador Caroline Millar of Australia to act as the Friend of the President on the preamble. She convened openended informal consultations on 26 May 2008 following which she issued a non-paper setting out a revised draft preamble. This text differed from the draft Convention text principally by the inclusion of additional text relating to assistance for cluster munition victims, the Martens’ clause, non-State armed groups, and United Nations (UN) Security Council resolutions on women and children in armed conflict. A second non-paper, which corrected a small number of syntax errors, was issued on the morning of 27 May. This was then discussed at the Committee of the Whole at its meeting that afternoon following which some small editorial changes were made before its incorporation into the final draft Convention14 presented to the Conference by the President on 28 May.

The States Parties

The States Parties to this Convention,

0.83  The term ‘States Parties’ is used in the 1969 Vienna Convention on the Law of Treaties, and generally in multilateral treaties.15 It was first inserted in the Draft Cluster Munitions Convention discussed at the February 2008 Wellington Conference and forwarded without amendment to the Dublin Diplomatic Conference.

(p. 44) First preambular paragraph: the protection of civilians in armed conflict

Deeply concerned that civilian populations and individual civilians continue to bear the brunt of armed conflict,

0.84  Increasingly in modern armed conflict the principal victims have been civilians, through death, injury, displacement, and the loss of both livelihood and property. This growing phenomenon was expressly recognized in 1999 by the UN Security Council, which stated ‘its grave concern at the growing civilian toll of armed conflict and note(d) with distress that civilians now account for the vast majority of casualties in armed conflict and are increasingly directly targeted by combatants and armed elements’.16

0.85  Since 1999, the Secretary-General of the UN has provided regular, comprehensive reports to the Security Council on the issue of the protection of civilians in armed conflict, including recommendations for the improvement of their protection, many of which have been subsequently endorsed by Council resolution.17 The effects of cluster munitions on civilian populations were specifically recognized by the Secretary-General for the first time in his 2007 report to the Council on civilians in armed conflict.18 The first preambular paragraph of the Convention on Cluster Munitions situates the Convention firmly in the context of the broader objective of reducing the now widely recognized harm caused to civilians by armed conflict.

0.86  The first paragraph of the preamble to the draft Convention on Cluster Munitions expressed deep concern ‘that civilian populations and individual civilians continue to suffer most from armed conflict’. During discussion of this paragraph in informal consultations at the Diplomatic Conference a small number of delegations proposed that the word ‘most’ be deleted from this paragraph. When this proved unacceptable to the majority, Ireland proposed that the phrase ‘bear the brunt’, which had recently been endorsed by all States at the Thirtieth International Conference of the Red Cross and Red Crescent Movement, be used instead.19 The phrase was first used in this context by (p. 45) the Secretary-General of the UN when he recorded ‘[s]tark and disturbing evidence that civilians continue to bear the brunt of armed conflicts’ in his 2004 report to the Security Council on the protection of civilians in armed conflict.20

Second preambular paragraph: the humanitarian impact of cluster munitions

Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned,

0.87  This paragraph describes the primary object and purpose of the Convention, which is to end the suffering and casualties caused by cluster munitions, both during and after attacks. The paragraph is drawn from the first preambular paragraph in the 1997 Anti-Personnel Mine Ban Convention but the two elements of that single paragraph (first, the determination to end the harm, and second, the description of what this harm is) have been divided into two paragraphs in the Convention on Cluster Munitions.

0.88  The determination to ‘put an end for all time’ to the harm caused by cluster munitions stresses the definitive nature of the Convention’s comprehensive prohibition—rather than a regulation, restriction, or partial prohibition of the weapon—as the appropriate solution. This can be compared, for example, to the preamble of 2003 Protocol V,21 which outlines the object of the instrument as the need to ‘minimise the risks and effects of explosive remnants of war’.22

0.89  The paragraph refers to both the ‘suffering’ and the ‘casualties’ caused by cluster munitions. While the ‘casualties’ refer to the individuals who have suffered death or injury from cluster munitions, ‘suffering’ can be taken as a broader concept that encompasses also the other forms of harm that cluster munitions inflict: on individuals, their families, and communities, indirectly and directly, in terms of survival, health, livelihood, and development. The (p. 46) Convention’s definition of ‘cluster munition victims’23 reinforces this broad concept of the suffering experienced by people affected by cluster munitions.

0.90  Although a significant motivation for the prohibition on cluster munitions was the evidence gathered by non-governmental organizations (NGOs) and international organizations on the harm caused by the weapons to civilians,24 this preambular paragraph is broader than the preceding or following one, as it implicitly encompasses also the harm caused to combatants. Thus, in line with the definition of a ‘cluster munition victim’, which itself includes military casualties, the paragraph reaffirms the purpose of the convention to prevent all harm from cluster munitions, whether experienced by civilian or military personnel.

0.91  The ‘suffering and casualties’ are attributed to three main causes: the actual attacks with cluster munitions (‘at the time of their use’); the unexploded ordnance (UXO) from cluster munitions (‘when they fail to function as intended’); and the abandoned explosive ordnance (‘when they are abandoned’). Taken together, these distinct problems caused by cluster munitions can be considered the underlying rationale for the prohibition on the weapon category. A number of prohibitions on entire categories of weaponry have been justified either on the basis that they cause superfluous injury or unnecessary suffering (which was never argued for cluster munitions as part of the Oslo Process but had been raised as an issue in the 1970s),25 or on the basis that they are inherently indiscriminate or disproportionate.26 The Cluster Munition Coalition (CMC), for example, argued not that cluster munitions were inherently indiscriminate, but that they were ‘prone to indiscriminate effects’.27

(p. 47) 0.92  The preambular text circulated prior to the Wellington Conference did not recognize these distinct causes of harm from cluster munitions. During the first informal consultations on the Preamble in Wellington, the International Committee of the Red Cross (ICRC) and the CMC both called for an explicit recognition of the harm from cluster munitions during attacks as well as afterwards whether from UXO or from abandoned munitions.28 The Irish proposal for the preamble that formed the basis for negotiations at the Diplomatic Conference in Dublin suggested some changes from the text discussed in Wellington, but did not refer to the distinct causes of harm from cluster munitions both during and after attacks as there was no consensus on this point at that time.29

Impact at time of use

0.93  The first means of harm identified in the second preambular paragraph is the suffering and casualties caused at time of use. The distribution of explosive force and fragmentation over a wide area was one of the technical characteristics of cluster munitions first identified as problematic. As noted above, in 1974 seven countries had submitted a proposal for a prohibition on ‘cluster warheads’ to a diplomatic conference in Geneva.30 The rationale for this prohibition was entirely based on the impact of cluster munitions at the time of use, the working paper noting, for instance, that:

It would certainly be desirable to introduce a broad prohibition or restriction of use of fragmentation weapons which typically are employed against a very large area, with the substantial risk for indiscriminate effects that such use entails.

0.94  This theme continued in the consideration of cluster munitions within the Convention on Certain Conventional Weapons, where in a declaration at the Third Review Conference in 2006, 25 States recognized that in addition to prohibitions on certain types of cluster munitions, ‘due to their tendenc[y] of having indiscriminate effects’ an agreement should also ‘prohibit the use of cluster munitions within concentrations of civilians’.31 (p. 48) The risk to civilians from cluster munitions at the time of use was a theme of concern throughout the Oslo Process; indeed, some States continued to argue that any cluster munitions not prohibited by the eventual treaty should be subject to an explicit prohibition against their use in populated areas.32 Ultimately, the definition of ‘cluster munitions’ adopted in the Convention on Cluster Munitions identified, indirectly, ‘indiscriminate area effect’ as a fundamental characteristic of these weapons and this, combined with the risk from unexploded submunitions, is a key pillar supporting their prohibition.33

Impact from unexploded submunitions

0.95  The second pillar on which the prohibition is based is the risk to civilians from unexploded submunitions. Some risk of UXO is presented by all explosive weapons—as recognized by 2003 Protocol V—but cluster munitions have been found to cause a particularly severe type of UXO threat, due to the large numbers of submunitions deployed, the complexity of their delivery (which increases the risk of unexploded submunitions, also called ‘blinds’), their small size, the sensitivity of their fuzing systems, and the density of resultant contamination.34

0.96  Concerns over UXO were not the primary focus of the earliest articulations of public disquiet over cluster munitions (as evidenced by the 1974 working paper cited above, which does not even mention the UXO problem). By 1999, however, concerns over UXO had become the primary motivation for concern about the weapon.35 The first international legal consideration of the weapon since the diplomatic conferences in 1974 and (p. 49) 1976 took place within the broader discussion on ERW in the context of the CCW.36

0.97  Problems of UXO from cluster munitions had been specifically identified, among others, in Cambodia, the Lao People’s Democratic Republic (Laos), and Vietnam following US bombardment during the Vietnam War; in the former Yugoslavia and in particular in Kosovo following the NATO bombardment in 1999; in Afghanistan during the US attack in 2001–2002; in Iraq in the Gulf War in 1991; and again in the US-led invasion in 2003.37 As observed above,38 the consequences of Israel’s widespread use of the weapon in Lebanon in 2006 contributed significantly to the momentum towards a global ban on the weapon. Concern over UXO can also be seen in the context of developing legal norms to minimize the persistent harm to civilians caused by such weapons after the end of armed conflict, culminating in the Convention on Cluster Munitions.39 Also relevant in the context of these developing norms are 1996 Amended Protocol II, the 1997 Anti-Personnel Mine Ban Convention, and 2003 Protocol V.40

Impact from abandoned cluster munitions

0.98  Concerns over abandoned cluster munitions were not a major motivating factor in the development of the Convention on Cluster Munitions. Rather this reference reflects a generic concern that abandoned explosive weapons present a threat to the civilian population, as reflected in 2003 Protocol V.41 The reference to abandoned cluster munitions serves to rationalize the preamble’s consideration of, especially, the post-conflict causes of harm from cluster munitions with the concept of ‘cluster munition remnants’, which, based on the Protocol V model, were defined in the Convention on Cluster Munitions (p. 50) as ‘unexploded submunitions’ and ‘abandoned cluster munitions’.42 However, the concern expressed here is not just linked to armed conflict, but is broader as munitions may be abandoned because of poor State control of their own munitions during peacetime.43

Third preambular paragraph: cluster munition remnants

Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of livelihood, impede post- conflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international peace-building and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use,

0.99  The third preambular paragraph of the Convention is loosely based on the first preambular paragraph of the 1997 Anti-Personnel Mine Ban Convention, which noted the negative effects of anti-personnel mines.44 In expressing concern at the effects of cluster munition remnants45 on civilians, this paragraph identifies one of the main factors motivating States in adopting the Convention.46 In addition to death and injury caused to individual civilians by remnants these effects include long-term ‘area denial’, which is a consequence of the fear of unexploded submunitions. This fear acts to prevent or dissuade people from returning to their homes, land, and places of work in areas attacked by cluster munitions, as well as delaying reconstruction, a task (p. 51) that must await the completion of often costly and time-consuming clearance operations.47

0.100  The third preambular paragraph developed from the second preambular paragraph of the Draft Cluster Munitions Convention of January 2008. In informal consultations chaired by the Friend of the President on the Preamble at the Diplomatic Conference in Dublin there was broad agreement to take up the suggestion first made at the Wellington Conference by the ICRC48 that this draft paragraph should be subdivided into two new paragraphs to reflect the fact that while cluster munitions can continue to affect civilian populations for many years after use, they also have serious consequences for them at time of use.49

0.101  Accordingly, while the second preambular paragraph of the Convention identifies the three characteristics of cluster munitions and their use that give rise to adverse humanitarian consequences,50 the third preambular paragraph focuses on the adverse long-term consequences of cluster munition remnants, particularly on peace-building, reconstruction, and development. It incorporates the reference to concerns at the impact of cluster munitions on ‘international efforts to build peace and security’, which had first been included in the third preambular paragraph of the Draft Cluster Munitions Convention.

Fourth preambular paragraph: stockpiled cluster munitions

Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction,

0.102  This preambular paragraph is an important recognition of the rationale behind the obligation in the Convention on Cluster Munitions to destroy stockpiles of the weapons. It also reflects the widespread view among negotiating States that the Convention was a preventive as well as a responsive effort.51 For instance, while Latin America was virtually unaffected by cluster (p. 52) munition remnants and Africa was affected in a limited way—at least relative to its problem with landmines—countries in these regions consistently repeated their concern about the potential harm from cluster munitions should they be used in their regions. Thus, for example, Botswana noted during the negotiations at the Diplomatic Conference in Dublin that:

while Botswana is not directly affected by this menace of cluster munitions, we have a serious concern regarding the possible proliferation of this type of weapon… . We note that, with billions of submunitions believed to be stockpiled in more than 70 countries, there is a need to avoid incidences of their transfer to other places, such as our own. Non-proliferation could, therefore, only be meaningfully achieved through the adoption of an international covenant which will be binding on all.52

0.103  The preamble’s reference to the ‘dangers presented by the large national stockpiles’ is based on the consideration that the stockpiles of many, in particular European, countries involved in the negotiations reached into the millions of individual submunitions. The combined numbers of submunitions stockpiled by Germany, France, the Netherlands, and the United Kingdom (UK), for example, are estimated at more than 112 million.53 The fact that the United States (US) alone is estimated to have a stockpile of at least 730 million submunitions54 was also a major concern for participants in the Oslo Process.

0.104  The determination to ensure the ‘rapid destruction’ of cluster munitions provides the rationale for the obligation in the Convention to destroy all cluster munitions ‘as soon as possible’. While the Convention allows States Parties to take up to eight years to complete the destruction of cluster munition stockpiles, and also includes the possibility of additional extensions to this deadline, the preamble emphasizes the requirement to fulfil the obligation ‘as soon as possible’.55

Fifth preambular paragraph: efficient and coordinated clearance

Believing it necessary to contribute effectively in an efficient, coordinated manner to resolving the challenge of removing cluster munition remnants located throughout the world, and to ensure their destruction,

0.105  Article 4 of the Convention on Cluster Munitions requires that each affected State Party clear and destroy all cluster munition remnants within 10 years of the treaty entering into force for it (although there is a possibility of requesting (p. 53) an extension from the Meeting of States Parties or a Review Conference of up to five years at a time). The fifth preambular paragraph sets out the States Parties’ commitment to clearance of cluster munition remnants—and not merely in areas under the jurisdiction or control of States Parties—as well as to the manner in which clearance operations are to take place: in an ‘efficient’ and ‘coordinated’ manner through effective contribution by the States Parties.

0.106  With respect to efficiency, within the mine action sector in general,56 and in the context of the 1997 Anti-Personnel Mine Ban Convention in particular, significant efforts have been paid in recent years to improving the productivity of demining, which has been termed ‘land release’.57 As the International Mine Action Standards (IMAS) on land release state: ‘on some occasions, land has been subjected to full clearance unnecessarily’.58 Any land that is fully cleared but which proves not to have been contaminated with any explosive ordnance represents inefficiency and a potentially huge waste of resources for a national demining programme. Thus, there is now a better understanding that an array of techniques in addition to full clearance can enable suspected hazardous areas to be addressed efficiently and with a high degree of safety for both programme personnel and the intended beneficiaries. These techniques include better information gathering and verification, and greater use of high-quality non-technical59 and technical survey.60

(p. 54) 0.107  Coordination—the ‘harmonious functioning of different, interrelated mine action projects’—is a major challenge for all mine action programmes. The recommended approach to such programme management and coordination is through a two-tier structure: an inter-ministerial National Mine Action Authority that sets overall policy and strategy for the programme, and a mine action centre that conducts operational coordination, including tasking of clearance operations.61

0.108  An effective contribution to resolving the challenge of removing cluster munition remnants in affected countries and areas could be made in a number of ways. Donor States can do so by providing appropriate resources (human, technical, material, and financial) in a timely fashion. In turn, recipient States can ensure support is used swiftly and appropriately in accordance with defined priorities (whether humanitarian, social, or economic, or a mixture).

Sixth preambular paragraph: the rights of cluster munition victims

Determined also to ensure the full realisation of the rights of all cluster munition victims and recognising their inherent dignity,

0.109  Preambular paragraphs six to ten set the stage for the Convention’s focus on assisting cluster munition victims by highlighting the Convention’s basic concepts for this topic: (a) a principled approach to victim assistance that is based on the rights of the victims and their dignity; (b) a commitment to provide victim assistance in a holistic manner covering its constituent elements, which include medical care, rehabilitation, psychological support, as well as social and economic inclusion; (c) sensitivity concerning the age and gender of the victims as well as the needs of vulnerable groups; (d) a reference to the Convention on the Rights of Persons with Disabilities; (e) the need for coordination with victim assistance work undertaken in various fora; and finally (f) the principle of non-discrimination.

0.110  Preambular paragraph 6 relates to the rights of all ‘cluster munition victims’, which in Article 2 are defined as meaning ‘all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalization or substantial impairment of the realization of their rights (p. 55) caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities.’ Thus the determination to ensure the full realization of the rights of all cluster munition victims and recognizing their inherent dignity not only relates to those persons directly impacted by a cluster munition incident but also to their affected families and communities. In addition, the use of the term ‘all’ before ‘persons’ clarifies that victimization does not depend on the legal status of affected persons and hence covers persons who had suffered harm regardless of any status as citizens, migrants, refugees, internally displaced persons, etc.62

0.111  The formulation used in this preambular paragraph provides the first entry point of the so-called ‘rights-based’ approach to victim assistance; this approach essentially aims to prevent victims being seen as mere objects of treatment or charitable activities. The paragraph serves as a reminder that victims, as all other human beings or groups of human beings, are subjects or bearers of rights. This approach is parallel to the one taken in the Convention on the Rights of Persons with Disabilities, which the then-UN Secretary General, Kofi Annan, lauded as the ‘dawn of a new era’ for people with disabilities.63 In the context of this preambular paragraph, it is noteworthy that the formulation chosen does not refer to ‘human rights’, but more generally to the ‘rights’ of cluster munition victims. The full realisation of the rights therefore relates not only to human rights as such, but also to other rights to which the victim is entitled.64 The element of the full realization of victims’ rights also mirrors one of the defining elements of victimization as contained in Article 2, paragraph 1, i.e. the ‘substantial impairment of the realisation of their rights’, which similarly and in striking contrast to preceding documents does not refer to fundamental or human rights, but rights in general.65

0.112  The recognition of the inherent dignity of human beings is an essential foundation of international human rights law. In addition to the second preambular paragraph of the UN Charter, the concept of human dignity has (p. 56) been most prominently employed in the first preambular paragraph of the 1948 Universal Declaration of Human Rights and its Article 1. The Universal Declaration proclaims the recognition of the inherent dignity and equal and inalienable rights of all members of the human family as the foundation of freedom, justice, and peace in the world.66 As cluster munition victims, many of whom are persons with disabilities, frequently face particular challenges in their societal lives and often face social (and sometimes legal) marginalization, preambular paragraph 6 serves an important reminder of their inherent dignity and rights.

Seventh preambular paragraph: the provision of assistance to cluster munition victims

Resolved to do their utmost in providing assistance to cluster munition victims, including medical care, rehabilitation and psychological support, as well as providing for their social and economic inclusion,

0.113  Preambular paragraph 7 expresses the States Parties’ resolve to ‘do their utmost’ to provide assistance to cluster munition victims. It also lists some of the constituent elements of this assistance, which include medical care, rehabilitation, and psychological support, as well as assistance for the social and economic inclusion of cluster munition victims. The resolve, thus expressed, mirrors the wide array of needs and rights of cluster munition victims. By consequence, the commitment expressed in the preambular paragraph, and elaborated in more detail in Article 5, signifies an holistic approach to the provision of victim assistance.67

0.114  In the Vienna Discussion Text68 this paragraph also contained the nucleus of the eventual definition of cluster munition victims in as far as it relates to affected families and communities. Through the inclusion of this reference in Article 2, paragraph 1 it was no longer necessary to retain this reference in the preambular paragraph.

(p. 57) Eighth preambular paragraph: age and gender sensitivity

Recognising the need to provide age- and gender-sensitive assistance to cluster munition victims and to address the special needs of vulnerable groups,

0.115  The main purpose of this preambular paragraph is to serve as a reminder that victim assistance needs to be carried out in a manner that is age- and gender-sensitive and should address the special needs of vulnerable groups.69 This preambular paragraph should be considered in conjunction with preambular paragraph 15, which refers to UN Security Council resolutions 1325 on women, peace, and security, and 1612 on children in armed conflict.

0.116  According to data gathering and estimates by Handicap International (HI) a preponderance of casualties are men and boys: HI has found that some 84 per cent of cluster munition victims are male, while 27 per cent are young boys.70 Some 40 per cent of cluster munition casualties concern children.71 Yet, according to the ICRC, the implications of cluster munition incidents may often be worse for women and children than for men. For example, permanent disabilities in the perception of many societies render women unmarriageable. In addition, women are less likely to know about treatment, rehabilitation, and prosthetic services, and the manner in which services may be available often poses cultural and other impediments to women and children in need of assistance (e.g. through lack of privacy during examination and treatment or sex-separated accommodation, etc.).72 Recognizing the need for age- and gender-sensitive assistance, therefore serves important practical purposes in order to remove existing barriers and aim at assistance that suits the needs of men, women, and children alike.

(p. 58) Ninth preambular paragraph: Convention on the Rights of Persons with Disabilities

Bearing in mind the Convention on the Rights of Persons with Disabilities which, inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realisation of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability,

0.117  Preambular paragraph 9 establishes a direct link to the 2006 Convention on the Rights of Persons with Disabilities which had been adopted by the UN General Assembly some two months before the formal start of the Oslo Process in February 2007. Throughout the negotiation of the Convention on Cluster Munitions, the Convention on the Rights of Persons with Disabilities served as a source of inspiration for the elaboration of the victim assistance package. Yet, unlike preambular paragraphs 13 and 14, which, respectively, welcome the broad support for the 1997 Anti-Personnel Mine Ban Convention and the adoption and entry into force of 2003 Protocol V, preambular paragraph 9 merely bears in mind the Convention on the Rights of Persons with Disabilities. As at the time of the adoption of the Convention on Cluster Munitions not all negotiating States had fully clarified their position vis-à-vis the Convention on the Rights of Persons with Disabilities, it became necessary to use this compromise language, rather than any more positive and forthcoming formulation. Yet, the fact that the reference to the Convention was included in the preamble as well as the fact that the States Parties declared that they would bear it in mind, has an important bearing on the interpretation of the provisions of the Convention on Cluster Munitions as it forms part of the context that needs to be taken into consideration in that interpretation.73

0.118  The second part of this preambular paragraph reiterates the main content of the Convention on the Rights of Persons with Disabilities, which requires its States Parties to ensure and promote the full realization of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability. In the history of the Convention’s negotiations this paragraph was the first to mention the principle of non-discrimination.74 As this reference was deemed to be insufficient to address concerns related to the creation of a separate category of victims and the prevention of instances of discrimination, more specific (p. 59) elaborations of the principle of non-discrimination were included in the Convention.75

Tenth preambular paragraph: coordination of assistance to victims of weapons and non-discrimination

Mindful of the need to coordinate adequately efforts undertaken in various fora to address the rights and needs of victims of various types of weapons, and resolved to avoid discrimination among victims of various types of weapons,

0.119  Preambular Paragraph 10 addresses two distinct, yet related issues. First, it highlights that victim assistance efforts are also undertaken in other fora than the Convention and expresses the need to coordinate these efforts; and second, it expresses the desire of the States Parties to avoid discrimination among victims of various types of weapons. During the negotiations of the victim assistance package both issues were discussed on various occasions. The question of non-discrimination and the wish not to create separate categories of victims that might receive differing levels of care was especially prominent during the Oslo Process.

0.120  Victim assistance efforts are currently carried out under a number of international agreements dealing with various types of weapons or explosive remnants of war, most notably according to Article 6, paragraph 3 of the 1997 Anti-Personnel Mine Ban Convention and Article 8, paragraph 2 of 2003 Protocol V. Both Conventions have refined their understandings of victim assistance through additional political declarations. In the case of the 1997 Anti-Personnel Mine Ban Convention, the First and the Second Review Conferences held, respectively, in Nairobi, Kenya, in 2004, and in Cartagena, Columbia, in 2009, adopted the Nairobi Action Plan and the Cartagena Action Plan containing specific actions on victim assistance.

0.121  In a similar vein, and largely following the example of the Convention on Cluster Munitions’ victim assistance package, States Parties to 2003 Protocol V at their 2008 annual meeting adopted a Victim Assistance Action Plan with a set of concrete actions to be undertaken.76 The 1997 Anti-Personnel Mine Ban Convention also established a Standing Committee on Victim Assistance to guide the victim assistance activities under that treaty and provide a platform (p. 60) for intersessional work on the topic. States Parties to 2003 Protocol V have, since their first meeting in 2007, organized intersessional work through a coordinator for victim assistance appointed by the States Parties.

0.122  Work conducted within the auspices of the Convention on the Rights of Persons with Disabilities is also of great importance to victim assistance. Global victim assistance efforts are characterized by a multitude of actors: affected States, donor States, international institutions such as the UN; the ICRC; and an even bigger number of NGOs active on various levels such as the CMC, Survivor Corps (formerly known as Landmine Survivors Network), HI, Licht für die Welt, MSF, etc. This preambular paragraph highlights the fact that the better the work carried out under the various Conventions and fora and by the various actors is coordinated, the more improvement can be brought about on the ground for the lives of the victims. The paragraph thus expresses the sentiment that ensuring an efficient level of coordination is a joint responsibility by all for the benefit of the victims.77

0.123  During the negotiations of the Convention on Cluster Munitions many delegations expressed their support for the inclusion of a non-discrimination clause in the victim assistance package. In particular, the ICRC placed a special emphasis on the desire that the Convention should not be used to establish better treatment for cluster munition victims at the expense of other victims of armed conflict. The first reference to the principle of nondiscrimination was contained in the Vienna Discussion Text’s preambular paragraph on the Convention on the Rights of Persons with Disabilities, which itself aims at preventing discrimination on the ground of disability.

0.124  During the subsequent discussions it became evident that a more specific rule of non-discrimination needed to be included in the Convention. This rule is not referred to in this preambular paragraph but is contained in Article 5, paragraph 2(e), which provides that States Parties, in fulfilling their obligation under Article 5, paragraph 1, shall:

[n]ot discriminate against or among cluster munition victims, or between cluster munition victims and those who have suffered injuries or disabilities from other causes; differences in treatment should be based only on medical, rehabilitative, psychological or socio-economic needs.

The Convention’s non-discrimination rule, therefore, does not only apply to instances of discrimination among cluster munition victims, but also more generally between cluster munition victims, other victims of armed violence, (p. 61) and persons who suffered injuries or disabilities from other causes. The Convention thus lays down a non-discrimination rule which is also relevant to the wider disability sector.

Eleventh preambular paragraph: ‘Martens clause’

Reaffirming that in cases not covered by this Convention or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law, derived from established custom, from the principles of humanity and from the dictates of public conscience,

0.125  This preambular paragraph restates the ‘Martens clause’ in its most contemporary wording, so named following a declaration by Professor von Martens, the Russian delegate at the Hague Peace Conferences in 1899. The formulation in this preambular paragraph is to be read in conjunction with the seventeenth preambular paragraph referring to the ‘role of public conscience’.78 The Martens clause was first included in the preamble of the 1899 Hague Convention II,79 albeit with a slightly different formulation.80 Although it originally sought to overcome the failure by delegates to agree on the question of the status of civilians who took up arms against an occupying force, the clause was then introduced in the Preamble of the 1907 Hague Convention IV81 and later included as a provision in the 1949 Geneva Conventions82 and in (p. 62) 1977 Additional Protocol I.83 The latter instrument contains the same wording as in the Convention on Cluster Munitions.

0.126  When considering the Martens clause in the context of the treaties governing the use of specific weapons, it is worth noting that the preamble of the CCW contains the same wording as the Convention on Cluster Munitions84 whereas no such reference is found in the 1997 Anti-Personnel Mine Ban Convention. The inclusion of such a preambular paragraph was first proposed by the Holy See during the Dublin Diplomatic Conference at informal consultations convened on 26 May 2008 by the Friend of the President on the Preamble, where it was accepted in broad terms (though subsequently it was amended slightly).85 The term ‘reaffirming’ was preferred to ‘confirming their determination’.86 The text of the clause first appeared in an official document in the Presidency Paper of 28 May 200887 and was kept in the final text of the Convention.

0.127  The Martens clause means that no situation is outside the law. While this underlying logic seems widely recognized, various interpretations among scholars and lawyers as well as in State practice exist concerning the legal (p. 63) effects of the clause.88 In its most restrictive reading, this clause would serve as an interpretative guideline when applying international humanitarian law rules. Commonly it is also construed as recalling the articulation between the two main sources of international law (custom and treaty law). Since treaties are not in place to regulate all situations and every issue, the Martens clause reiterates that customary law remains applicable.89 This restatement of the scope of international humanitarian law is, however, rather superfluous given that such logic is inherent to international law and that treaties do not subsume or supersede customary law.90

0.128  A broader understanding of the Martens clause is that it rules out any argumentum a contrario, whereby a conduct which is not prohibited under international humanitarian law treaties would be ipso facto lawful. More broadly still, the text of the clause could be understood as introducing two other sources of international law, conferring a normative role to ‘the principles of humanity’ and ‘the dictates of public conscience’.91 Pleadings by States and dissenting opinions of several of the judges in the International Court of Justice’s 1996 Advisory Opinion on the Legality of Nuclear Weapons illustrated the stark differences with regard to legal conceptions of the clause.92 While the Court did not clarify the scope of the Martens clause in its advisory opinion,93 the opinion shed light on its significance in the particular context of international humanitarian law governing the use of weapons. Notably, the Court claimed (though without adducing evidence) that the Martens clause ‘has proved to be an effective means of addressing the rapid evolution of military technology’.94

(p. 64) 0.129  Given the various interpretations of the legal implications of the Martens clause, one may question the value of this clause in the context of the Convention on Cluster Munitions. However, given the discussions as to the definition of a cluster munition, and the absence of any additional specific regulation95 on those weapons excluded from the Convention’s ambit on the basis that they meet the criteria set out in Article 2, paragraph 2(c), a particular value could be discerned in this area.96 Thus, the explicit exception included for such weapons under the Convention does not ipso facto make the weapons inherently lawful, particularly if they prove to have similar adverse humanitarian consequences as cluster munitions. More generally, in the light of debate over the legality of cluster munitions even absent the Convention on Cluster Munitions, this clause recalls that the Convention is part of a broader and coherent legal framework as confirmed by the reference to the general principles in the Convention’s preamble.97

Twelfth preambular paragraph: application of prohibitions to non-State armed groups

Resolved also that armed groups distinct from the armed forces of a State shall not, under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention,

0.130  This preambular paragraph describes the ‘resolve’ of States Parties to the Convention on Cluster Munitions not to allow non-State armed groups (NSAGs) to engage in any activity prohibited by the Convention. This refers particularly to the general prohibitions set out in Article 1,98 namely on use, development, production, acquisition, stockpiling, retention, or transfer of cluster munitions, as defined.99 In fact, use of cluster munitions by NSAGs has been relatively infrequent. Research by Human Rights Watch and Landmine Action in 2009 confirmed use by NSAGs of cluster munitions with only four States: Afghanistan, Bosnia and Herzegovina, Croatia, and Israel.100

(p. 65) 0.131  Preambular language on NSAGs did not appear in the draft Convention submitted to the Dublin Diplomatic Conference.101 Draft language on NSAGs first appeared in a proposal for amendment of Article 1, tabled by the Philippines on the first day of the Conference:

  1. 3.  This Convention shall also apply to situations resulting from conflicts referred to in Art. 1, paragraphs 1 to 6, of 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, as amended on 21 December 2001.

  2. 4.  Armed groups that are distinct from the armed forces of a State shall not, under any circumstances, engage in any activity prohibited to a State Party under this Convention.102

0.132  The intent of the Philippines was to apply the Convention specifically to both international armed conflicts and armed conflicts of a noninternational character, by reference to the extension of scope of the CCW, agreed by States Parties to that instrument in 2001. However, given the far broader language already included in Article 1 (‘Each State Party undertakes never under any circumstances to …’), the effect might have been to narrow the scope of the Convention on Cluster Munitions.

0.133  In discussions at the Diplomatic Conference, Botswana called for the inclusion of language in the preamble ‘referring to cooperation of nonstate actors’. This proposal was supported by the Philippines, which declared that it would welcome language on the role of non-State actors either in the preamble or in Article 1. The inclusion of language on non-State actors in the preamble was also supported by Uganda.103 Ultimately, the negotiating States agreed that similar language to that put forward by the Philippines should be included in the preamble.104

The implications of the preambular paragraph

0.134  There are a number of means by which a State Party could prevent an NSAG from engaging in conduct prohibited to a State Party to the Convention on Cluster Munitions. First and foremost, each State Party can (p. 66) respect its own obligations under Article 1, which include not transferring any cluster munitions to any NSAG. Second, it can adopt legislation, as sought by Article 9 of the Convention, which criminalizes possession or use of cluster munitions by any person within its jurisdiction or control (absent specific authority, for example, in the case of use or retention as permitted by Article 3 of the Convention).105 Third, it can condemn any use of cluster munitions by any NSAG at any time.

0.135  Potentially, however, the impact of the Convention on NSAGs is relatively modest, given the limited recourse to these weapons that such entities have made in the last decades. As noted above, use has been reported by NGOs in only four conflicts. In Afghanistan, a non-State armed group, the Northern Alliance, used rocket-delivered cluster munitions during the civil war in the 1990s.106 In Bosnia and Herzegovina, a Serb militia force used cluster munitions during the 1992–1995 conflict.107 In Croatia, ethnic Serb forces delivered cluster munitions by Orkan rocket in early May 1995 against Zagreb. These cluster munition attacks were reported to have killed seven civilians and injured more than 200 others (see further below).108 During the 2006 armed conflict in Lebanon, Hezbollah reportedly fired more than 100 Chinese-made Type-81 122mm cluster munition rockets into northern Israel.109 Israel has said that it has since cleared all the UXO from these cluster attacks.110

0.136  Yet, despite the relatively scant practice of use by NSAGs, there has been a noted instance of an individual being held criminally responsible under international law for use by an NSAG of cluster munitions and for civilian deaths and injuries that resulted. In June 2007, Milan Martic was (p. 67) convicted by the International Criminal Tribunal for the former Yugoslavia of war crimes and crimes against humanity and sentenced to 35 years’ imprisonment. His crimes included the targeting of civilians in Zagreb using cluster munitions in early May 1995 in the two instances referred to above.111

0.137  According to the judgment of the tribunal:

The evidence shows that the M-87 Orkan was fired on 2 and 3 May 1995 from the Vojnic area, near Slavsko Polje, between 47 and 51 kilometres from Zagreb. However, the Trial Chamber notes in this respect that the weapon was fired from the extreme of its range. Moreover, the Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. By 2 May 1995, the effects of firing the M-87 Orkan on Zagreb were known to those involved. Furthermore, before the decision was made to once again use this weapon on Zagreb on 3 May 1995, the full impact of using such an indiscriminate weapon was known beyond doubt as a result of the extensive media coverage on 2 May 1995 of the effects of the attack on Zagreb.112

0.138  Individual criminal liability for a member of an NSAG violating international humanitarian law regarding the protection of civilians is now enshrined in the 1998 Statute of the International Criminal Court,113 and there may be further crimes under customary international law that are not codified in this way.114 In order for the International Criminal Court to obtain (p. 68) jurisdiction over the mere fact of using cluster munitions as a war crime per se the Statute of the Court would have to be amended in accordance with the amendment procedures.115

0.139  In fact this provision currently only applies to international armed conflicts, but at the time of any negotiated amendment it would be possible to amend the Article on war crimes so as to include prohibited weapons in situations of armed conflict of a non-international character, thus covering NSAGs. Such an extension of international criminal law would generate a war crime even where a member of an NSAG (or the armed forces of a State) uses cluster munitions ‘proportionately’ and against lawful military objectives.

0.140  If a State with jurisdiction over the specific actions of an NSAG has adopted legislation outlawing their use, a member of such an NSAG that possesses or uses cluster munitions will likely have violated national criminal law. But the imposition of international humanitarian law, human rights law, and international criminal law to an NSAG qua a distinct entity with international obligations is more complex.116

0.141  Lastly, it should be noted that the preamble refers to the resolve of States Parties that NSAGs ‘shall not, under any circumstances, be permitted to engage’ in any prohibited activity.117 According to one commentator:

(p. 69) With its explicit reference to NSAGs, the convention also lays the groundwork for weapons treaties to address the behavior of more parties. Instead of merely relying on indirect clauses related to proliferation and use, it names NSAGs and suggests that the states in which they operate have a duty to limit their activities. By moving in the direction of more stringent IHL instruments, the Convention on Cluster Munitions could inspire future weapons treaties to go even further. Ultimately such treaties could impose both binding obligations on states parties to regulate NSAGs and responsibility on the groups themselves to control their own conduct.118

Thirteenth preambular paragraph: the norm prohibiting anti-personnel mines

Welcoming the very broad international support for the international norm prohibiting anti-personnel mines, enshrined in the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction,

0.142  The prohibitions on the development, production, stockpiling, transfer, and use of anti-personnel mines,119 enshrined in the 1997 Anti-Personnel Mine Ban Convention,120 is an important precedent for the Convention on Cluster Munitions and its own creation of a new international norm against cluster munitions. Indeed, many of the provisions included in the Convention on Cluster Munitions are drawn from, or inspired by, those set out in the 1997 Anti-Personnel Mine Ban Convention.121

0.143  In launching the ‘Ottawa Process’ in October 1996, a freestanding process of treaty negotiation outside a UN-facilitated forum with the aim of outlawing anti-personnel mines, Canada had taken a diplomatic and political risk in pursuit of greater human security.122 A total of 122 States signed the (p. 70) Convention when it was opened for signature on 3–4 December 1997, and by March 2010, 156 States—more than three-quarters of the world’s nations— had become party to it.

0.144  The creation of the ‘norm’ against anti-personnel mines was deemed critical to modifying the behaviour of combatants. It was clear from the outset that certain major military powers would be unlikely to join the Convention in the short or medium term,123 and with a ready supply of anti-personnel mines across conflict zones, stigmatizing the weapon was a key strategy for committed governments, the ICRC, and the NGOs making up the International Campaign to Ban Landmines. As a result of their collective efforts, since 2006, the only States confirmed to be using anti-personnel mines have been Myanmar and Russia, down from some 15 States a decade earlier.124 A similar downward trend has been seen with respect to NSAGs.125

0.145  On 2 December 2009, the UN General Assembly adopted Resolution 64/56 on the Implementation of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction.126 The resolution was adopted by a recorded vote of 160 in favour to none against, with 18 abstentions.127 Among those voting in favour were the following States not party to the 1997 Anti-Personnel Mine Ban Convention: Armenia, Azerbaijan, Bahrain, China (which holds the world’s largest stockpiles of anti-personnel mines), Finland (the only member of the European Union not a State Party), Georgia, Kazakhstan, Laos, Marshall Islands (a signatory), Micronesia, Mongolia, Morocco, Oman, Poland (a signatory), Singapore, Somalia, Sri Lanka, Tonga, and the United Arab Emirates.

0.146  Some have argued that at least certain aspects of the prohibition on anti-personnel mines are an emerging customary norm.128 The ICRC’s study of customary international humanitarian law, published in 2005, but based (p. 71) on research conducted over a period of several years prior to that, concluded that State practice ‘appears to indicate that an obligation to eliminate antipersonnel mines is emerging’.129 Writing in 2008, two ICRC experts concluded that:

from a strictly legal standpoint, the practice of states not party to the Mine Ban Treaty [the 1997 Anti-Personnel Mine Ban Convention] taken together is insufficient to conclude that these states consider themselves bound by a norm of customary law comprehensively prohibiting antipersonnel mines. However, much of their behaviour and statements give rise to an expectation that they will eventually, at some undetermined point in the future, fully adhere to the antipersonnel mine ban norm. At best, it can be said to be a ‘universal-norm-in-waiting’.130

0.147  The primary advantage of customary international law over an international treaty is that whereas a treaty legally binds only those States which are parties to it, in most cases customary international law constrains all States,131 even those that have not agreed to it.132 Once a rule attains the status of customary international law,133 States may not unilaterally repudiate it, and (p. 72) newly emerging States will be deemed to accede to the rule as a condition of Statehood.134

0.148  To determine the existence of custom with regard to certain behaviour, it is necessary to identify ‘a general recognition among States of a certain practice as obligatory’.135 As generally accepted,136 and, as clearly formulated by the Statute of the International Court of Justice,137 the existence of customary international law demands two main elements: State practice (sometimes known under the Latin name usus) and opinio juris sive necessitatis (a belief that certain behaviour is required or prohibited by law).138 This view is still predominant in State practice, literature, and court decisions, even though the question of how and when a norm can be seen as part of customary international law remains the subject of debate.

0.149  In practice, the burden of proving the existence of a customary rule falls on the one who asserts its existence.139 Although it is acknowledged to be generally difficult to isolate the proof of opinio juris from State practice itself, jurisprudence has refused to accept this difficulty as an excuse removing the requirement of separate proof.140 Having said that, (p. 73) however, in many cases the International Court of Justice has been willing to assume the existence of an opinio juris on the basis of evidence of a general practice.141 Without admitting that the mere repetition of conduct suffices in itself to prove the requisite opinio juris,142 the Court has accepted on a number of occasions that solid proof of State practice evidences the opinio juris.143 In other cases, the Court has adopted a more rigorous approach, calling for more positive evidence of the recognition of the validity of the rules in question.144

0.150  It may be that certain aspects of a customary norm against antipersonnel mines are emerging more rapidly than others. For while States not party to the Convention continue to stockpile far more anti-personnel mines than have been destroyed to date,145 and several States either continue to use or produce anti-personnel mines (or reserve the right to do so) there is scant evidence of any transfer of anti-personnel mines. In 2009, Landmine Monitor concluded that for the past decade:

A de facto ban on the transfer of antipersonnel mines has been in effect since the mid-1990s; this prohibition is attributable to the mine ban movement and the stigma that the Mine Ban Treaty has attached to the weapon. Landmine Monitor has never conclusively documented any state-to-state transfers of antipersonnel mines. For the past decade, global trade in antipersonnel mines has consisted solely of a low-level of illicit and unacknowledged transfers.146

The proliferation of anti-personnel mines was the first aspect of the problem that the UN General Assembly sought to address, with a resolution calling for a moratorium on export in 1993.147 Since then, the absence of any transfers or even of States defending their right to transfer anti-personnel mines has been notable.

0.151  The similarities between the Oslo Process on cluster munitions and the Ottawa Process on anti-personnel mines are notable. Both were launched (p. 74) by a single State, supported by a core group of other States committed to a prohibition, and both resultant treaties were adopted by a Diplomatic Conference convened outside the UN. John Borrie has also noted significant differences, for example the fact that existing treaties within the UN already regulated anti-personnel mines148 whereas efforts to regulate cluster munitions were ongoing while the Oslo Process was underway.149 He affirms that:

for most of those individuals building the Oslo process during its prologue and then steering the initiative for some of its course, the Ottawa process—for all of its apparent similarities—represented an example to learn from, and adapt, rather than follow too closely.150

0.152  It may take many years for the new norm prohibiting cluster munitions to crystallize as international custom. Similar to the norm against antipersonnel mines, however, new use of cluster munitions by those States that have not yet adhered to the Convention on Cluster Munitions will likely be subject to greater international scrutiny and condemnation as a result of its existence.

Fourteenth preambular paragraph: the protocol on explosive remnants of war

Welcoming also the adoption of the Protocol on Explosive Remnants of War, annexed 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, and its entry into force on 12 November 2006, and wishing to enhance the protection of civilians from the effects of cluster munition remnants in post-conflict environments,

0.153  This preambular paragraph welcomes the adoption and entry into force of 2003 Protocol V. Several provisions of the Convention on Cluster Munitions are drawn from or inspired by those set out in 2003 Protocol V. As of March 2010, 2003 Protocol V was the most recently adopted protocol of the CCW. It requires parties to a conflict (whether in an international armed conflict or an armed conflict of a non-international character) to reduce the (p. 75) dangers from explosive remnants of war (ERW).151 As of 24 March 2010, 65 States were party to the Protocol.152

0.154  Specifically, the Protocol requires each party to an armed conflict to mark and clear ERW in territory they control after a conflict;153 to provide technical, material, and financial assistance to facilitate the removal of ERW that result from its operations and which are located in areas it does not control;154 to take ‘all feasible precautions’ to protect civilians from the effects of ERW;155 and to record information on the explosive ordnance used by its armed forces and, after the end of active hostilities, to share that information with the other parties to the conflict and organizations engaged in ERW clearance or risk education programmes.156 In addition to the obligations placed upon the parties to a conflict, all States Parties in a position to do so must provide assistance for the marking and clearance of ERW, risk education, and assistance for the care, rehabilitation and socio-economic reintegration of ERW victims.157

Fifteenth preambular paragraph: UN Security Council resolutions on women, peace, and security, and on children in armed conflict

Bearing in mind also United Nations Security Council Resolution 1325 on women, peace and security and United Nations Security Council Resolution 1612 on children in armed conflict,

(p. 76) 0.155  This preambular paragraph notes the relevance of two landmark UN Security Council resolutions: 1325, adopted on 31 October 2000, on women, peace, and security, and 1612, adopted on 26 July 2005, on children in armed conflict.158 The particular impact of cluster munitions on women and children was already highlighted in the third preambular paragraph to the Convention on Cluster Munitions, whereby States Parties expressed their concern that ‘cluster munition remnants kill or maim civilians, including women and children …’.159

0.156  Resolution 1325 was the first resolution passed by the UN Security Council that ‘specifically addresses the impact of war on women, and women’s contributions to conflict resolution and sustainable peace.’160 In contrast, the 2005 resolution on children in armed conflict had been preceded by numerous Council resolutions highlighting the plight of children in such situations.161

0.157  Preambular language on the two UN Security Council resolutions did not appear in the draft Convention submitted to the Dublin Diplomatic Conference,162 nor in any of the formal proposals to amend the preamble tabled by negotiating States at the Conference itself. In the tenth session of the Committee of the Whole, Canada proposed that the preamble contain a reference to UN Security Council Resolution 1325 on the ‘differential impact of conflict on different genders’. Norway supported the proposal, as did Argentina, South Africa, and Sweden.163 Argentina added a suggestion (p. 77) to include a reference to children in armed conflict, which was supported in turn by Canada.164 The text of the preambular paragraph first appeared in the Presidency Paper issued on 28 May 2008.165 The text was unchanged in the text of the Convention as adopted.

0.158  The impact of armed conflict on women is an important—but not the only—theme addressed in UN Security Council Resolution 1325. According to the fourth preambular paragraph of the resolution, the Council expressed its concern that:

… civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict, including as refugees and internally displaced persons, and increasingly are targeted by combatants and armed elements, and recognizing the consequent impact this has on durable peace and reconciliation.

A general reference to the need to respect international humanitarian and human rights law protecting the rights of women and girls appears in the sixth preambular paragraph:

Reaffirming also the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts.

0.159  There is no specific reference in either the preambular paragraphs or operative text of the resolution to the impact of cluster munitions, nor indeed to any specific weapons, but by its operative paragraph 9, the Council called upon:

… all parties to armed conflict to respect fully international law applicable to the rights and protection of women and girls, especially as civilians, in particular the obligations applicable to them under the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, the Refugee Convention of 1951 and the Protocol thereto of 1967, the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and the Optional Protocol thereto of 1999 and the United Nations Convention on the Rights of the Child of 1989 and the two Optional Protocols thereto of 25 May 2000, and to bear in mind the relevant provisions of the Rome Statute of the International Criminal Court.

0.160  Available data suggests that women and girls are not the primary postattack victims of unexploded submunitions,166 but little data on those killed or injured during attacks is available. Thus, the final preambular paragraph of (p. 78) Resolution 1325 refers to the ‘need to consolidate data on the impact of armed conflict on women and girls’.

0.161  Children, however, are a major risk category as far as unexploded submunitions are concerned, typically at far greater risk of becoming casualties than are women.167 Available data suggests that they formed more than half of all recorded submunition casualties in 2007,168 and half of those in 2008.169 Resolution 1612 is focused on the impact of armed conflict on children, whether as civilians or combatants. The resolution:

[s]trongly condemns the recruitment and use of child soldiers by parties to armed conflict in violation of international obligations applicable to them and all other violations and abuses committed against children in situations of armed conflict.170

0.162  Resolution 1612 is especially noteworthy because it established the UN-led Monitoring and Reporting Mechanism on Children and Armed Conflict (‘the Mechanism’) and its operational country-level Task Forces.171 Indeed, according to one child rights advocacy body: ‘With the adoption and implementation of Council Resolution 1612, the children and armed conflict … agenda became a hallmark of the Security Council’s thematic work.’172 The Mechanism and its Task Forces monitor and report on six grave violations:

  • •  killing and maiming of children;

  • (p. 79) •  recruiting and using child soldiers;

  • •  attacks against schools or hospitals;

  • •  rape or other grave sexual violence against children;

  • •  abduction of children; and

  • •  denial of humanitarian access for children.

Thus, the use of cluster munitions against a school or, potentially, the killing or maiming of children as a result of either indiscriminate or disproportionate use of cluster munitions or even potentially through a wilful failure to clear unexploded submunitions, might meet the criteria set out under the resolution.

0.163  In order to ensure that grave violations reported through the Mechanism receive consistent and ongoing attention from the Security Council, Resolution 1612 also established the Security Council Working Group on Children and Armed Conflict (Working Group), the first of its kind. The Working Group is an official subsidiary body of the Council, and consists of all 15 Council Members. The Working Group is empowered to take concrete actions towards halting violations and holding perpetrators accountable, and also to make recommendations for concrete actions to the Security Council.

0.164  In August 2009, the Security Council adopted Resolution 1882, by which the Council noted its deep concern that:

children continue to account for a considerable number of casualties resulting from killing and maiming in armed conflicts including as a result of deliberate targeting, indiscriminate and excessive use of force, indiscriminate use of landmines, cluster munitions and other weapons …173

The resolution further asked the Secretary-General to ‘include in the annexes to his reports on children and armed conflict those parties to armed conflict that engage, in contravention of applicable international law, in patterns of killing and maiming of children … in situations of armed conflict’.174

Sixteenth preambular paragraph: unilateral measures prohibiting cluster munitions

Welcoming further the steps taken nationally, regionally and globally in recent years aimed at prohibiting, restricting or suspending the use, stockpiling, production and transfer of cluster munitions,

(p. 80) 0.165  This language is based on a similar paragraph in the preamble to the 1997 Anti-Personnel Mine Ban Convention. In 1993, a UN General Assembly resolution calling for a moratorium on the export of anti-personnel mines was adopted by consensus.175 In 1995, the Assembly unanimously adopted a resolution calling for the eventual elimination of anti-personnel mines. By May 1996, when 1996 Amended Protocol II was adopted, more than 40 States were supporting an international ban on anti-personnel mines, according to the ICRC.176 In contrast, relatively few States had declared support for a ban on cluster munitions in advance of the negotiations at the Diplomatic Conference in Dublin in May 2008 and no consensus existed internationally even on the need to address the problem.

0.166  Nevertheless, a number of steps were taken towards the goal of curbing cluster munitions prior to the negotiation of the treaty. At the Third Review Conference of the CCW in November 2006, 26 States177 supported a proposed negotiating mandate for a legally binding instrument ‘that addresses the humanitarian concerns posed by cluster munitions’.178 When this mandate was rejected, 25 States endorsed a joint declaration calling for an agreement that would prohibit the use of cluster munitions that ‘pose serious humanitarian hazards because they are for example unreliable and/or inaccurate’.179 In May 2007, at the Lima Conference on Cluster Munitions, Peru announced an initiative for a Latin American cluster-munition-free zone, which was supported by many States from the region.180

0.167  At national level, the Belgian parliament enacted a domestic prohibition on cluster munitions in February 2006, the first country to do (p. 81) so, as it had been for anti-personnel mines in 1995.181 In October 2006, Luxembourg started work on a draft law prohibiting cluster munitions. This law was enacted in 2009 as part of Luxembourg’s ratification of the Convention.182 In December 2007 Austria passed a national law prohibiting cluster munitions.183

0.168  In 2004, Denmark adopted a temporary prohibition on the use of cluster munitions with a failure rate of more than 1 per cent.184 In March 2005, Germany adopted a moratorium on the use of cluster munitions with a failure rate of more than 1 per cent.185 In June 2006, Norway adopted a moratorium on use of cluster munitions pending review of its stockpile. This was extended in November 2006 to remain in effect until a new international treaty was in place.186 In February 2007, Austria adopted a moratorium on the use of cluster munitions.187 In June 2007, the Netherlands announced a temporary suspension of the use of cluster munitions.188 In October 2007, Albania adopted a moratorium on the use (p. 82) of cluster munitions,189 joined by Hungary in November 2007,190 Croatia in December 2007,191 and Bulgaria192 and Bosnia and Herzegovina193 in February 2008.

0.169  Other national steps included Norway’s destruction of its airdelivered cluster munitions in 2003;194 the UK’s withdrawal from service in March 2007 of its RBL-755 cluster bombs and M26 rockets, which it labelled ‘dumb cluster munitions’.195 States that opposed the Convention on Cluster Munitions had also taken steps nationally in advance of the treaty negotiation, notably the US, which in 2001 adopted a policy requiring cluster munitions acquired after 2005 to satisfy a failure rate of no more than 1 per cent.196 In 2007, the US enacted a one-year legislative moratorium on exports of cluster munitions that did not meet the maximum (p. 83) 1 per cent failure rate and this export ban was made permanent in March 2009.197

Seventeenth preambular paragraph: the role of public conscience

Stressing the role of public conscience in furthering the principles of humanity as evidenced by the global call for an end to civilian suffering caused by cluster munitions and recognising the efforts to that end undertaken by the United Nations, the International Committee of the Red Cross, the Cluster Munition Coalition and numerous other nongovernmental organisations around the world,

0.170  This preambular paragraph elaborates on the role played by civil society and more generally the public conscience in the process leading to the adoption of the Convention on Cluster Munitions. Although there may not have been explicit linkage in the negotiations between this paragraph and the one restating the Martens clause, both are closely linked.198 Unlike the latter paragraph, this one was included in the Draft Cluster Munitions Convention of January 2008 and remained unchanged throughout the negotiations at the Diplomatic Conference in Dublin.199 This preambular paragraph draws on the unprecedented recognition of the campaigning work by civil society in a similar paragraph of the preamble of the 1997 Anti-Personnel Mine Ban Convention.

0.171  The wording of this preambular paragraph is interesting if put into perspective with the construction of the Martens clause. While this clause places ‘the principles of humanity’ and ‘the dictates of public conscience’ on an equal footing,200 this paragraph spells out the interaction between the two: the public conscience plays a role in advancing the principles of humanity. This elaboration views the public conscience as a means to put forward the demands of humanity in relation to a given weapon that would not respect these principles.

(p. 84) 0.172  There are many references to the notion of humanity in the international legal regulation of weapons,201 including with respect to the prohibition of a specific weapon.202 While the border between legal considerations and morals could be difficult to discern, the Convention on Cluster Munitions and previously the 1997 Anti-Personnel Mine Ban Convention clearly illustrate the dynamic role public conscience and civil society can play in the process of adopting a prohibition on specific weapons.

0.173  It is worth noting that the first specific recognition in this preambular paragraph concerns the efforts undertaken by the UN even though the Convention was negotiated outside UN auspices. Such reference was absent in the similar paragraph of the 1997 Anti-Personnel Mine Ban Convention. In 2006, the Secretary-General of the UN stressed the ‘atrocious, inhumane effects of cluster munitions’ and urged States Parties to the CCW ‘to make full use of this framework to devise effective norms that will reduce and ultimately eliminate the horrendous humanitarian and development impact of these weapons’.203 UN efforts include active participation in attempts to regulate cluster munitions such as the work of the UN Mine Action Team (UNMAT) on substantive issues within the CCW framework or the Oslo Process204 and activities on the ground by various UN bodies.205

(p. 85) 0.174  The specific reference to the work of the ICRC in an international treaty is no novelty. Provisions in the 1949 Geneva Conventions206 and their 1977 Additional Protocols207 attribute a formal role to the ICRC as an impartial humanitarian body. What may be new is the recognition of the ICRC’s work in the preamble of a Convention. Under its general mandate to assist victims of war, the ICRC works to minimize the impact of armed conflict, including the consequences of cluster munitions, on the civilian population. As for the involvement of the ICRC in the attempts to regulate those weapons, it dates back as far as the first initiatives in this regard. The ICRC used its expertise both legally and in the field to document the effects of cluster munitions208 and address the various challenges posed by those weapons.209

0.175  As the preamble to the 1997 Anti-Personnel Mine Ban Convention recognized the campaigning role of the International Campaign to Ban Landmines (ICBL),210 so the corresponding preambular paragraph of the Convention on Cluster Munitions refers to the work of the CMC. This paragraph undoubtedly benefited from the momentum created by the action and recognition of the ICBL during the development of the 1997 Anti-Personnel Mine Ban Convention. The CMC campaigned for a comprehensive prohibition on cluster munitions and, since the adoption of the Convention on Cluster Munitions, has worked to promote universal adherence to and full implementation of this treaty. Its work, as well as the work of other NGOs, was acknowledged throughout the Oslo Process. The Declaration of the Wellington Conference specifically referred to their active support. In this regard, and in the continuation of the process undertaken to ban anti- personnel mines beforehand, the Convention on Cluster Munitions is partly the result of a (p. 86) collective effort of various organizations reflecting a certain form of public conscience against cluster munitions.

Eighteenth preambular paragraph: the Oslo Declaration

Reaffirming the Declaration of the Oslo Conference on Cluster Munitions, by which, inter alia, States recognised the grave consequences caused by the use of cluster munitions and committed themselves to conclude by 2008 a legally binding instrument that would prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and would establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation for victims, clearance of contaminated areas, risk reduction education and destruction of stockpiles,

0.176  The Oslo Conference on Cluster Munitions was convened by the Government of Norway and took place on 22 to 23 February 2007. Forty-nine States attended the Conference, together with several UN programmes and specialized agencies, the ICRC, and a number of NGOs. At the conclusion of the Conference, 46 of the 49 States endorsed the Oslo Declaration,211 which expressly recognized ‘the grave consequences caused by the use of cluster munitions and the need for immediate action’ to address them. It marked the commencement of the ‘Oslo Process’ which would culminate in the adoption of the Convention on 30 May 2008 and its opening for signature five months later in Oslo.212

0.177  The States that endorsed the Oslo Declaration committed themselves to a number of actions, including the conclusion of ‘a legally binding international instrument that will … prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation to survivors and their communities, clearance of contaminated areas, risk education and destruction of stockpiles of prohibited cluster munitions’. The reaffirmation of the Declaration in the preamble of the Convention serves as an acknowledgement of the central (p. 87) role of the process that was set in train by the Oslo Conference on Cluster Munitions 15 months earlier.

Nineteenth preambular paragraph: universalization and implementation of the Convention on Cluster Munitions

Emphasising the desirability of attracting the adherence of all States to this Convention, and determined to work strenuously towards the promotion of its universalisation and its full implementation,

0.178  The desire for universality of adherence to the Convention is an obvious aim for States Parties. A similar paragraph was contained in the 1997 Anti-Personnel Mine Ban Convention, and although the negotiations leading up to its inclusion in that instrument were fractious,213 this was not the case in the Convention on Cluster Munitions. The proposal for such a paragraph was first made by Ireland in its broader proposal to the Diplomatic Conference for amendment of the preamble:

Emphasising the desirability of attracting the adherence of all States to this Convention, and determined to works trenuously towards the promotion of its universalisation.214

The only change in the final text was to add ‘and its full implementation’ at the end of the paragraph during the Diplomatic Conference negotiations.215 This is significant as it suggests a collective endeavour to ensure that full implementation of the Convention and not merely an individual State responsibility.

0.179  The preambular paragraph should be read in conjunction with Article 21, paragraph 1 of the Convention on Cluster Munitions, which provides that:

Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.216

(p. 88) In contrast to the corresponding paragraph in the 1997 Anti-Personnel Mine Ban Convention, however, neither Article 21, paragraph 1, nor the present preambular paragraph indicates in which fora, or by which means, promotion of adherence should take place.217

Twentieth preambular paragraph: the principles and rules of international humanitarian law

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and the rules that the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only, that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations,

0.180  Similar to the 1997 Anti-Personnel Mine Ban Convention, the Convention on Cluster Munitions can be seen as having a hybrid nature that mixes elements of international humanitarian law and disarmament law.218 This final paragraph of the preamble explicitly places the Convention on Cluster Munitions within the framework of international humanitarian law whereas its link to disarmament law implicitly stems from the fourth preambular paragraph and substantive provisions on the development, production, stockpiling and transfer of cluster munitions. One may argue that the Convention primarily derives from a humanitarian imperative given that the main driving force of the Oslo Process was the impact of cluster munitions on civilians.219

(p. 89) 0.181  Furthermore, this paragraph illustrates the dual normative structure of international humanitarian law governing the use of weapons combining general principles and rules on the one hand, and specific norms on particular weapons on the other hand.220 The issue arises when considering the proper articulation between those two types of norms and when determining ‘how far the definite prohibitions are only specific expressions or materializations of the general prohibitory provision’.221

0.182  While some may argue that the reference to general principles of international humanitarian law in the Convention on Cluster Munitions merely results from the repetition of a similar formula, almost as a standard clause, in the preamble of treaties on weapons,222 in fact this preambular paragraph has significant value. This paragraph not only serves to aid interpretation of certain terms but also links the Convention with existing principles and rules of international humanitarian law. This is relevant, for example, when considering the question of whether cluster munitions are inherently indiscriminate, an issue which is closely linked to that of the definition of cluster munitions under the Convention.223 Of course, suggesting that cluster munitions are indiscriminate per se would mean that past uses amounted to violations of international humanitarian law,224 an implication to which many States would have objected.225

0.183  The negotiation of this preambular paragraph aimed to ensure that relevant international humanitarian law norms with regard to cluster munitions were coherently reflected. The corresponding paragraph in the Draft Cluster Munitions Convention of January 2008 was slightly different from (p. 90) the one finally adopted.226 The most significant difference was the absence of the mention of certain rules and principles of international humanitarian law. Ireland’s proposal to the Diplomatic Conference to amend the preamble was to replace the word ‘guided’ by ‘basing themselves’ using the same phrasing as the preamble to the 1997 Anti-Personnel Mine Ban Convention. Most notably, it added a reference to other rules of international humanitarian law.227 Following the decision by the President of the Conference to leave the discussions to the end of the negotiations, this proposal was discussed on 27 May 2008 at the thirteenth session of the Committee of the Whole.228

0.184  When addressing the significance of this final paragraph and the proper relationship between the Convention on Cluster Munitions and the general principles and rules contained in the preamble, the case of the 1997 Anti-Personnel Mine Ban Convention is an interesting one. While the former refers to principles and rules aimed at protecting civilians, the preambular paragraph on general principles of the 1997 Convention also mentions the principle that prohibits the employment in armed conflicts of weapons, projectiles, and means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. It could therefore be argued that this principle served as a legal rationale to prohibit the use of anti-personnel mines,229 and that this was not (p. 91) the case in the Convention on Cluster Munitions. On the other hand, effects of anti-personnel fragmentation weapons towards combatants already raised concern in the past vis-à-vis the prohibition of unnecessary suffering.230

0.185  The discussions on the final paragraph during the conference led to a broadening of the reference to norms of international humanitarian law. With a view to also contributing to solving the issue of additional provisions governing the relationship with other treaties, the Netherlands suggested to include further principles of international humanitarian law, by changing the first line of the paragraph as stated in the Draft Cluster Munitions Convention to read as follows:

basing themselves upon already existing rules and norms of international humanitarian law, including the principle (delete international humanitarian law) that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited ( …).231

To stress the importance of the principles at stake Mexico proposed to use ‘particularly’ instead of ‘including’.232 To avoid redundancy, Austria suggested deleting the words ‘already existing’.233 Following those discussions, the phrasing adopted in the Presidency Paper draft Convention on Cluster Munitions of 28 May 2008234 referred both to ‘principles and rules of international humanitarian law’ and spelled out the relevant norms on which the Convention is based. Also worth noting is the use of the term ‘principle’ concerning the absence of an unlimited right to choose means and methods of warfare whereas the other norms are referred to as ‘rules’. This was done in order to separate the very general principle from more concrete rules which were to follow.

(p. 92) 0.186  The final paragraph details the norms of international humanitarian law that serve as a basis for the regulation of cluster munitions. While the Draft Convention of January 2008 only referred to two general norms— the ‘principle’ of the absence of an unlimited right to choose weapons and the ‘general rule’ of distinction— Ireland proposed adding the rules of international humanitarian law whereby ‘in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations’.235 The desire to protect civilians against the effects of cluster munitions is the primary raison d’ être of the Convention.236

0.187  Article 22 of the 1907 Hague Regulations lays down the principle that ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’. 1977 Additional Protocol I restates this principle in a broader scope: ‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.’237 The ‘means of warfare’ refer to the weapons, arms, or projectiles, whereas the ‘methods’ relate to the way in which weapons are used.238 Those terms ultimately cover the two issues that may arise when considering the legality of the use of a weapon and are fully relevant for cluster munitions: either those weapons are inherently indiscriminate or they are used in an indiscriminate manner in certain circumstances. While this vague principle does not carry much effect in itself, it may be read as a reaffirmation of the principle of military necessity limiting the conduct of warfare, including for means and methods of warfare. In this regard the principle of the absence of unlimited choice, likewise the principle of humanity, serves as structural element of international humanitarian law from which sub-principles developed239 as well as norms on specific weapons.

0.188  The rule of distinction is one of the most fundamental tenets of international humanitarian law. It aims at protecting both civilians and civilian objects. The final paragraph restates this rule as contained in 1977 Additional Protocol I.240 It holds that:

the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only.

(p. 93) This general rule is materialized through more specific rules, notably the prohibition of indiscriminate attacks, which is of a customary nature, applicable in both international and non-international armed conflict.241

0.189  With regard to weapons, it is consequently prohibited to use means of warfare that are indiscriminate and such use is considered to constitute an indiscriminate attack. According to Article 51, paragraph 4 of 1977 Additional Protocol I indiscriminate attacks are inter alia those:

(b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently which, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

0.190  The potential for cluster munitions to have extensive indiscriminate effects served as the main incentive to campaign for an international ban.242 In his opening speech to the Diplomatic Conference, the Minister for Foreign Affairs of Ireland, Mr. Micheál Martin, noted that:

there was broad consensus that cluster munitions may be indiscriminate at the time of use and that their high failure rate created a hazard of unexploded ordnance for civilians in post-conflict environments.243

Also of importance is that under the law on the conduct of hostilities, even when an attack is directed at a clear military objective, such an attack is prohibited as being indiscriminate if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.244 This is a codification of the principle of proportionality.

0.191  The rule ‘that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects’ constitutes the precautions in attack that are to be respected by a party to a conflict. It first appeared in Article 2 of 1907 Hague Convention IX with Respect to Bombardments by Naval Forces in Time of War. The wording ‘constant care’ is taken from 1977 Additional Protocol I.245 The general principle complements the principle of distinction by encompassing a series of more specific (p. 94) obligations, notably in the application to weapons, whereby ‘each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects’.246

0.192  This reference to the rule of ‘constant care to spare the civilian population, civilians and civilian objects’ is unprecedented in the preamble of a treaty on weapons. This is notable as within the context of the work of the Group of Governmental Experts established by States Parties to the CCW, only half of respondent States identified the particular principle of ‘constant care to spare the civilian population, civilians and civilian objects’ when asked to identify existing principles of international humanitarian law applicable to the use of force during an armed conflict which they considered to be relevant to the use of munitions, including submunitions, that may become ERW.247

0.193  Of particular importance in the list of ‘rules’ contained in the twentieth preambular paragraph is the last one, the norm ‘that the civilian population and individual civilians enjoy general protection against dangers arising from military operations’. This was added, together with the rule of constant care, in the Ireland’s proposal to the Diplomatic Conference to amend the preamble.248 The rule of the general protection against the effects of hostilities is a restatement from Article 51, paragraph 1, of 1977 Additional Protocol I. The other paragraphs of this provision spell out detailed rules, including the prohibition on indiscriminate attacks, to ‘give effect’ to the general protection of the civilian population and individual civilians against the dangers arising from military operations. This rather neglected rule of the general protection against the effects of hostilities may be the most significant element of the last paragraph of the preamble as it sets out a broad protection for the civilians against the effects of hostilities that goes beyond the attacks themselves.

Footnotes:

1  Théo Boutruche wrote the commentary on the eleventh, seventeenth, and twentieth preambular paragraphs; Andrew Clapham wrote the commentary on the twelfth preambular paragraph, Thomas Nash wrote the commentary on the second, fourth, and sixteenth preambular paragraphs, Markus Reiterer wrote the commentary on the sixth, seventh, eighth, ninth, and tenth preambular paragraphs, and Declan Smyth wrote the commentary on the first and third preambular paragraphs as well as on the negotiation of the preamble. The remaining commentary was written by Stuart Casey-Maslen.

2  See, supra, the Introduction (§§0.32 et seq.) for details of the Oslo Process.

3  ‘Presidency paper, draft Convention on Cluster Munitions’, Diplomatic Conference doc. CCM/PT/15, 28 May 2008.

4  Under Diplomatic Conference document 62 of 19 May 2008, Hungary had proposed to name the future treaty the ‘Convention on the Prohibition of Cluster Munitions that Cause Unacceptable Harm to Civilians’.

5  The core group discussed in January 2008 the desirability of a short title.

6  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.

7  See Draft Cluster Munitions Convention of 21 January 2008. The title of the Convention changed slightly in the formal draft of the Convention introduced as Diplomatic Conference doc. CCM/3 on 19 May 2008. In this document it was titled the Convention on Cluster Munitions. The reason for this amendment is not known.

8  See, e.g., Aust, A., Modern Treaty Law and Practice, Second Edition (Cambridge: Cambridge University Press, 2007), pp. 425–426.

9  Thus, e.g., the four 1949 Geneva Conventions do not contain a preamble, but merely cite the conditions of their adoption.

10  See, supra, §§0.48–0.54 for details of the Wellington Conference.

11  See, infra, esp. the commentary on Article 2, paragraph 1.

12  See Draft Cluster Munitions Convention of 21 January 2008 in Annex 5; see also ‘Draft Convention on Cluster Munitions’, Diplomatic Conference doc. CCM/3, 19 May 2008.

13  ‘Proposal by Ireland for the amendment of the Preamble’, Diplomatic Conference doc. CCM/4, 19 May 2008.

14  ‘Presidency Paper—draft Convention on Cluster Munitions’, Diplomatic Conference doc. CCM/PT/15, 28 May 2008.

15  The Convention on Certain Conventional Weapons, however, and other instruments of international humanitarian law tend to use the formulation ‘High Contracting Parties’. (The formal title of this treaty is 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, as amended on 21 December 2001. It is often shortened to the Convention on Certain Conventional Weapons or simply CCW.)

16  Statement by the President of the Security Council, UN doc. S/PRST/1999/6, 12 February 1999.

17  See UN Security Council Resolutions 1265 (1999), 1296 (2000), 1674 (2006), and 1738 (2006).

18  ‘Report of the Secretary-General on the protection of civilians in armed conflict’, UN doc. S/2007/643, 28 October 2007, §61 et seq. See also ‘Report of the Secretary-General on the protection of civilians in armed conflict’, UN doc. S/2009/277, 29 May 2009, para. 35.

19  Resolution 3 (on the reaffirmation and implementation of international humanitarian law) of the Thirtieth International Conference of the Red Cross and Red Crescent Movement (Geneva, 26–30 November 2007) expressed deep concern that ‘civilian populations and individual civilians continue to bear the brunt of armed conflicts and remain the main victims of violations of international humanitarian law committed by parties to an armed conflict.’

20  ‘Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict’, UN doc. S/2004/431, 28 May 2004, para. §3.

21  The formal title of this instrument is the Protocol on Explosive Remnants of War of 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, as amended on 21 December 2001.

22  Preambular paragraph 2, 2003 Protocol V.

23  See, infra, the commentary on Article 2, paragraph 1.

24  According to Handicap International (HI), which reviewed available casualty data, 98% of recorded cluster munition casualties through 2006 were civilians. (This does not mean, of course, that this is an accurate representation of all submunition casualties.) The study confirmed a total of 13,306 victims—killed and injured—from cluster munitions. See HI, Fatal Footprint: The Global Human Impact of Cluster Munitions, Preliminary report, Brussels, November 2006.

25  See, e.g., Borrie, J., Unacceptable Harm: A history of how the international treaty banning cluster munitions was won, op. cit., p. 5, and cf. also infra the commentary on the twentieth preambular paragraph.

26  But see, infra, §§0.136–0.137, which describes the Martic case before the International Criminal Tribunal for former Yugoslavia in which the judges determined that cluster munitions delivered by Orkan rocket in early May 1995 against Zagreb were indiscriminate weapons.

27  The CMC call, updated following the February 2007 Oslo Conference, read as follows:

The Cluster Munition Coalition calls for the conclusion of an international treaty banning cluster munitions by 2008. Cluster munitions are understood to be unreliable and inaccurate weapons that are prone to indiscriminate use and that pose severe and lasting risks to civilians from unexploded submunitions.

CMC call as emailed by Thomas Nash, CMC Coordinator, to CMC members on 19 April 2007.

28  ‘ICRC proposed text on the Preamble’, contained in the Wellington Compendium; and the CMC, ‘Observations by the Cluster Munition Coalition on the draft Convention on Cluster Munitions, dated 21 January 2008’.

29  ‘Proposal by Ireland for the amendment of the Preamble’, Diplomatic Conference doc. CCM/4, 19 May 2008.

30  Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, ‘Working Paper CDDH/DT/2 submitted by Egypt, Mexico, Norway, Sudan, Sweden, Switzerland and Yugoslavia’, 21 February 1974, p. 9. See, supra, the Introduction, at §0.21.

31  See UN doc. CCW/CONF.III/WP.18. The declaration was endorsed by Austria, Belgium, Bosnia and Herzegovina, Croatia, Costa Rica, the Czech Republic, Denmark, Germany, Holy See, Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, Sweden, and Switzerland.

32  Statements at the Lima Conference, 24 May 2007; and at the Vienna Conference, 6 December 2007 (all from Landmine Action notes; copies on file with the author).

33  The preamble’s recognition of the impact of cluster munitions ‘at the time of their use’ is thus significant and relates to the language in the definition of ‘cluster munition’ at Article 2, paragraph 2(c) whose chapeau prefacing to the list of characteristics required for a munition not to be considered a cluster munition reads:

A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics.

34  See, e.g., J. Flanagan, UN Mine Action Service, ‘ERW—Experience from field operations’, UN doc. CCW/GGE/II/WP.13, July 2002.

35  Human Rights Watch’s call for a moratorium on cluster munitions following the bombing of Kosovo in 1999 referenced the area effect of cluster munitions, but was largely based on the post-conflict impact of unexploded submunitions. Similarly, concern over unexploded submunitions in South-east Asia had been the motivation for the call by the Mennonite Central Committee’s call for a moratorium in 1999.

36  Draft Mandate on Explosive Remnants of War for a Group of Governmental Experts, ‘Final Document of the Second Review Conference of the 1980 Convention on Certain Conventional Weapons’, UN doc. CCW/CONF.II/2, 11–21 December 2001.

37  It was following the evidence of humanitarian harm from the use in Iraq in 2003 that NGOs came together to establish the Cluster Munition Coalition. See Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 2.

38  See, supra, the Introduction to the Commentary, esp. §§0.19 and 0.26–0.27. In a similar vein, the Declaration of the Third Review Conference of the Convention on Certain Conventional Weapons noted: ‘the foreseeable effects of explosive remnants of war on civilian populations as a factor to be considered in applying the international humanitarian law rules on proportionality in attack and precautions in attack’.

39  See, e.g., Opening statement by Jakob Kellenberger, President of the ICRC, Dublin Diplomatic Conference, 19 May 2008.

40  ‘Final Document of the Third Review Conference of the Convention on Certain Conventional Weapons, Part II, Final Declaration’, UN doc. CCW/CONF.III/11 (Part II), p. 4.

41  2003 Protocol V.

42  See Article 2, paragraph 7, Convention on Cluster Munitions.

43  Examples include abandoned cluster munitions in the Republic of Congo and arguably also Guinea-Bissau. See, e.g., International Campaign to Ban Landmines (ICBL), Landmine Monitor Report 2008: Toward a Mine-Free World (Ottawa: Mines Action Canada, 2008), pp. 295, 411, and 412.

44 Determined to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement …’.

45  Defined by Article 2, paragraph 7 as ‘failed cluster munitions, abandoned cluster munitions, unexploded submunitions and unexploded bomblets’; see, infra, §§2.193 et seq.

46  At the outset of the Oslo Process, Handicap International Belgium published two reports based on available data on casualties caused by cluster munitions: ‘Fatal Footprint: the Global Human Impact of Cluster Munitions’, November 2006 and ‘Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities’, May 2007. These reports indicated that a very high proportion of recorded casualties from cluster munitions were civilians.

47  An example of this indirect impact of cluster munition remnants is set out in a report published by Landmine Action shortly after the ceasefire in Lebanon in 2006: ‘Foreseeable Harm: the use and impact of cluster munitions in Lebanon, 2006’.

48  ‘Comments of the International Committee of the Red Cross on the Wellington draft of a future cluster munitions convention’, ICRC, 8 February 2008.

49  See, supra, §§0.84 et seq.

50  i.e. those resulting from use of cluster munitions that function as intended (i.e. explode on impact) as well as the persistent effects arising from unexploded submunitions and failed or abandoned cluster munitions (collectively known as ‘cluster munition remnants’).

51  e.g., the agenda of the Belgrade Conference of States Affected by Cluster Munitions dealt with the issue of stockpile destruction in an agenda item entitled: ‘Preventing Proliferation of Cluster Munitions’.

52  Statement of Botswana to the Plenary, Dublin Diplomatic Conference, 19 May 2008; see ‘Summary Record of Second Session of the Plenary’, Diplomatic Conference doc. CCM/SR/2, 18 June 2008.

53  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 20.

54  Ibid.

55  Article 3, paragraph 2, Convention on Cluster Munitions.

56  Mine action is the term used to describe efforts to eliminate or reduce the impact of mines and explosive remnants of war. The UN definition comprises five core activities (also called ‘pillars’): demining, mine/ERW risk education, victim assistance, stockpile destruction, and advocacy. See, e.g., IMAS 04.10: ‘Glossary of mine action terms, definitions and abbreviations’, Second Edition 1 January 2003, available at: <http://www.mineactionstandards.org>.

57  See, e.g., ICBL, Landmine Monitor Report 2009: Toward a Mine-Free World (Ottawa: Mines Action Canada, 2009), <http://lm.icbl.org/index.php/publications/display?url=lm/2009/es/mine_action.html> (accessed 22 November 2009).

58  IMAS 08.20: ‘Land release’, First Edition, New York, 10 June 2009, p. v, available at: <http://www.mineactionstandards.org>.

59  Non-technical survey is defined by the relevant IMAS as survey which involves:

collecting and analysing new and/or existing information about a hazardous area. Its purpose is to confirm whether there is evidence of a hazard or not, to identify the type and extent of hazards within any hazardous area and to define, as far as is possible, the perimeter of the actual hazardous areas without physical intervention. A non-technical survey does not normally involve the use of clearance or verification assets. Exceptions occur when assets are used for the sole purpose of providing access for non-technical survey teams. The results from a non-technical survey can replace any previous data relating to the survey of an area.

IMAS 08.21: ‘Non-Technical Survey’, First Edition, New York, 10 June 2009, pp. 1–2.

60  IMAS defines technical survey as:

a detailed intervention with clearance or verification assets into a CHA [confirmed hazardous area], or part of a CHA. It should confirm the presence of mines/ERW leading to the definition of one or more DHA [defined hazardous area] and may indicate the absence of mines/ERW which could allow land to be released when combined with other evidence.

IMAS 08.20: ‘Land release’, First Edition, op. cit., p. 2.

61  See, e.g., IMAS 02.10: ‘Guide for the Establishment of a Mine Action Programme’, First Edition, 1 January 2003, available at <http://www.mineactionstandards.org>; and Geneva International Centre for Humanitarian Demining (GICHD), A Guide to Mine Action and Explosive Remnants of War, Second Edition (Geneva: GICHD, 2007), esp. Chapter 10, available at: <http://www.gichd.org>.

62  For a discussion of the term ‘cluster munition victim’ see, infra, the commentary on Article 2, paragraph 1.

63  See UN, ‘Lauding disability convention as “dawn of a new era,” UN urges speedy ratification’, Press release, <http://www.un.org/apps/news/story.asp?NewsID=20975&Cr=disab> (accessed 8 March 2010).

64  On the distinction between human rights and other rights of a person, see also infra the commentary on Article 5. Insofar as rights other than human rights are concerned one may think of e.g. certain procedural rights in legal proceedings, such as access to certain information, etc.

65  See, infra, the commentary on Article 2, paragraph 1, esp. §§2.26–2.28.

66  Universal Declaration of Human Rights, adopted by the UN General Assembly in Resolution 217 A (III) of 10 December 1948. The full text of the first preambular paragraph reads as follows:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

See also Article 1 of the declaration: ‘All human beings are born free and equal in dignity and rights.’

67  For a more detailed discussion see, infra, the commentary on Article 5.

68  See Annex 4.

69  For a brief introduction into the question of gender and cluster munitions see Women International League for Peace and Freedom, ‘Cluster Munitions and Gender’, 2008, <http://www.wilpf.int.ch/PDF/DisarmamentPDF/ClusterMunitions/SweClusterPublication.pdf> (visited 23 November 2009).

70  HI, Circle of Impact—the Fatal Footprint of Cluster Munitions on People and Communities (Brussels: HI, 2007), available at: <http://en.handicapinternational.be>.

71  See Women’s International League for Peace and Freedom, ‘Cluster Munitions and Gender’, op. cit.

72  Cf. ICRC, ‘Women and War’, p. 16, <http://www.peacewomen.org/ressources/Human_Rights/womenandwar08.pdf> (accessed 23 November 2009).

73  Cf. Article 31, 1969 Vienna Convention on the Law of Treaties, included in Annex 1.

74  The reference to the Convention was first included in the Vienna Discussion Text.

75  See Preambular Paragraph 10 and Article 5, paragraph 2(e) of the Convention.

76  See Plan of Action on Victim Assistance, contained in Annex IV to the Final Document of the Second Conference of the High Contracting Parties to Protocol V on Explosive Remnants of War to the CCW, UN doc. CCW/P.V/CONF/2008/12 of 23 January 2009; available at: <http://www.unog.ch>.

77  On the foregoing cf. Reiterer, M. A., ‘Assistance to cluster munition victims: a major step towards humanitarian disarmament’, in Disarmament Forum 2009, No. 4.

78  See further, infra, the commentary on the seventeenth preambular paragraph.

79  The formal title of this treaty is Hague Convention (II) with Respect to the Laws and Customs of War on Land.

80  The relevant paragraphs of the preamble reads as follows:

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

81  The formal title of this treaty is Hague Convention (IV) respecting the Laws and Customs of War on Land. The restatement of the clause in the preamble reads as follows:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

82  The Martens Clause appears in all four 1949 Geneva Conventions. See Article 63, paragraph 4, of Geneva Convention I, Article 62, paragraph 4, of Geneva Convention II, Article 142, paragraph 4, of Geneva Convention III, and Article 158, paragraph 4 of Geneva Convention IV. e.g., Article 158, paragraph 4, in Part IV on ‘Execution of the convention’ reads as follows:

The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.

83  The formal title of this treaty is the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. Article 1 paragraph 2 reads as follows:

In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

84  There are only a few slight differences. The preambular paragraph of the CCW reads as follows:

Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

85  The word ‘applicable’ placed before ‘principles of international law’ in the Friend of the President non-paper of 26 May 2008 was then deleted in the non-paper dated 27 May. See Friend of the President non-papers of 26 and 27 May 2008 (on file with the author).

86  ‘Proposal by the Holy See for amendment of the Preamble’, not submitted as an official document to the Dublin Diplomatic Conference (on file with the author).

87  ‘Presidency Paper, draft Convention on Cluster Munitions’, Diplomatic Conference doc. CCM/PT/15, 28 May 2008.

88  For an overview of those interpretations, see, e.g., Cassese, A., ‘The Martens Clause: Half of a Loaf or Simply Pie in the Sky?’, European Journal of International Law, Vol. 11, No. 1 (2000), pp. 129 et seq.

89  Abi-Saab, G., ‘The Specificities of Humanitarian Law’, in Swinarski, C. (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix Rouge en l’ honneur de Jean Pictet (Dordrecht: Martinus Nijhoff, 1984), p. 275.

90  This was clearly stated by the International Court of Justice in the Nicaragua case. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. ICJ Reports 1986, p. 94, §176.

91  For an extensive and thorough discussion on this issue see Cassese, A., ‘The Martens Clause: Half of a Loaf or Simply Pie in the Sky?’, op. cit., pp. 193–208. Cassese concluded that ‘no international or national court has propounded and acted upon the notion that there existed in the international community two additional and distinct sources of law, in addition to the treaty and custom processes’ (p. 208).

92  See ibid., pp. 210–211, as well as Ticehurst, R., ‘The Martens Clause and the Laws of Armed Conflict’, International Review of the Red Cross, 1997, No. 317, pp. 125–134.

93  See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, paragraphs 78, 84, and 87.

94  Ibid., paragraph 78.

95  Beyond customary law and applicable treaty law, such as 1977 Additional Protocol I or 2003 Protocol V.

96  For a detailed discussion of how the Martens Clause could be a relevant framework to address potential pitfalls stemming from a restrictive definition of cluster munitions under the Convention, see Di Ruzza, T., ‘The Convention on Cluster Munitions: Towards a Balance between Humanitarian and Military Considerations?’, Military Law and the Law of War Review, Vol. 47, Nos. 3–4 (2008), pp. 422–425.

97  See further, infra, the commentary on the twentieth preambular paragraph.

98  See further, infra, the commentary on Article 1, paragraph 1(a) of the Convention.

99  See, infra, the commentary on Article 1, paragraphs 2 and 3, and Article 2 of the Convention.

100  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 13.

101  See Draft Cluster Munitions Convention.

102  ‘Proposal by the Philippines for additional text to Article 1’, Diplomatic Conference doc. CCM/56, 19 May 2008 (footnotes omitted).

103  See ‘Summary Record of Tenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/10, 18 June 2008; see also Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 46.

104  Although the formulation was changed from an obligation of the groups themselves to one seemingly on States Parties to prevent NSAGs from undertaking a prohibited act.

105  See, infra, the commentary on Article 3, paragraph 6 of the Convention.

106  See CMC, ‘Cluster Munitions in the Asia-Pacific Region’, October 2008, prepared by Human Rights Watch; and Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 27.

107  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 45.

108  In the mid-morning of 2 May 1995, troops of the self-styled Republic of Serbian Krajina launched several M-87 Orkan rockets that struck locations in Zagreb, including the main square, several shopping streets, a school, the village of Plešo near Zagreb airport, and the airport itself. Five persons, all civilians, were killed in these attacks, and at least 160 persons were severely injured. The following day, Zagreb was again hit by Orkan rockets. The areas hit were the Croatian National Theatre at Marshall Tito Square and a children’s hospital, as well as another square. These attacks claimed two lives and injured 54 people. See Trial Chamber of the ICTY, ‘Summary of Judgment for Milan Martic,’ Press release, The Hague, 12 June 2007; and Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 66.

109  Human Rights Watch, Civilians Under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War, Vol. 19, No. 3(E), August 2007, pp. 44–48, <http://www.hrw.org/sites/default/files/reports/iopt0807.pdf>. Hezbollah denied to the BBC that it had used cluster munitions. ‘Hezbollah Denies Cluster Bomb Use’, BBC News, 19 October 2006, <http://news.bbc.co.uk/2/hi/middle_east/6068154.stm> (both accessed 11 June 2009).

110  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 214.

111  See also, e.g., Landmine Action UK, ‘International Criminal Tribunal: Milan Martic guilty of indiscriminate use of cluster munitions in Zagreb war crime verdict’, London, 12 June 2007; and Maslen, S. and Wiebe, V., Cluster Munitions, A Survey of Legal Responses (London: Landmine Action, March 2008), Chapter 6, <http://www.stopclustermunitions.org/wp/wp-content/uploads/2008/07/a-survey-of-legal-responses-lma.pdf> (accessed 8 March 2010) and Wiebe, V., ‘For Whom the Little Bells Toll: Recent Judgments by International Tribunals on the Legality of Cluster Munitions’, 35 Pepperdine L. Rev. 895 (2008), pp. 916–963.

112  ICTY, Prosecutor v. Milan Martic, Judgment, Case No. IT-95-11-T, 12 June 2007, §463, p. 166, <http://www.icty.org/x/cases/martic/tjug/en/070612.pdf> (accessed 21 September 2009). In his subsequent appeal against conviction, Martic argued, inter alia, that the Court had erred in holding that the M-87 Orkan is an indiscriminate weapon. The Appeals Chamber dismissed his argument. See Prosecutor v. Milan Martic, Judgment, Case No. IT-95-11-A, 8 October 2008, paras. 239 et seq., <http://www.icty.org/x/cases/martic/acjug/en/mar-aj081008e.pdf> (accessed 8 March 2010).

113  See, e.g., Article 8, paragraph 2(c) (i) and (e) (i), 1998 Statute of the International Criminal Court.

114  Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law — Volume 1: Rules (Cambridge: Cambridge University Press, 2005) at pp. 591–603, esp. pp. 599–601, which deals with prohibited weapons and launching indiscriminate attacks:

Launching indiscriminate attacks in non-international armed conflicts has been so frequently and vigorously condemned by the international community as to indicate the customary nature of this prohibition, which protects important values and is an offence under the legislation of numerous States.

Ibid., p. 601.

115  See Article 8, paragraph 2(b) (xx) and Article 121. Belgium initially proposed an amendment that, if accepted, would have made it a war crime to use cluster munitions in international or non-international conflicts as prohibited in the Cluster Munitions Convention. This suggestion was removed in Belgium’s revised proposal in response to concerns regarding the fact that the Convention had yet to enter into force. See ‘Proposal of Belgium on amendments to Article 8 of the Rome Statute’, reported by the Coalition for the International Criminal Court, <http://www.iccnow.org/?mod=belgianproposal> (accessed 15 December 2009).

116  See Sivakumaran, S., ‘Binding Armed Opposition Groups’, International and Comparative Law Quarterly, Vol. 55 (2006) pp. 369–394; Sassòli, M., ‘Transnational Armed Groups and International Humanitarian Law’ (Harvard University: Program on Humanitarian Policy and Conflict Research, 2006); Clapham, A., ‘Human rights obligations of non-state actors in conflict situations’, International Review of the Red Cross, Vol. 88, No. 863 (2006), pp. 491–523; and Clapham, A., ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’, Journal of International Criminal Justice, Vol. 6 (2008), pp. 899–926.

117  The language follows the wording included to cover the acts of NSAGs in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. For a discussion of the language used, see Clapham, A., Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), p. 75; and also UNICEF and Coalition to Stop the Use of Child Soldiers, Guide to the Optional Protocol on the Involvement of Children in Armed Conflict (New York: UNICEF, 2003), p. 17.

118  Docherty, B., ‘Breaking New Ground: The Convention on Cluster Munitions and the Evolution of International Humanitarian Law’, Human Rights Quarterly, Vol. 31 (2009), p. 962.

119  The proposed preambular language contained in the Draft Cluster Munitions Convention was slightly amended in the final text, replacing global support with ‘very broad international support’ and ‘prohibiting the use of anti-personnel mines’ with ‘prohibiting anti-personnel mines’.

120  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.

121  Under Article 1, paragraph 3 of the Convention, all landmines, including anti-personnel mines, are excluded from the purview of the Convention on the basis that they are regulated by other instruments of international law, notably the 1997 Anti-Personnel Mine Ban Convention, 1980 Protocol II on mines, booby-traps and other devices, and 1996 Amended Protocol II.

122  For details of the Ottawa Process, see, e.g., Cameron, M. L., Lawson, R., and Tomlin, B. (eds.), To Walk without Fear: The Global Movement to Ban Landmines (Ottawa: Oxford University Press, 31 December 1998). This represented a return to the traditional approach of elaborating new rules of international humanitarian law.

123  Notably, China, India, Pakistan, Russia, and the US.

124  See, e.g., the ban policy section of ICBL, Landmine Monitor Report 2009: Toward a Mine-Free World (Ottawa: Mines Action Canada, 2009), <http://lm.icbl.org/index.php/publications/display?url=lm/2009/es/ban.html> (accessed 8 March 2010).

125  Over the past 10 years, at least 59 NSAGs across 13 countries have committed to halt use of antipersonnel mines. See ibid.

126  UN doc. A/64/391.

127  Cuba, the Democratic People’s Republic of Korea, Egypt, India, Iran, Israel, Kyrgyzstan, Lebanon, Libya, Myanmar, Nepal, Pakistan, Republic of Korea, Russian Federation, Syria, United States, Uzbekistan, Vietnam. Of these, only Lebanon had signed the Convention on Cluster Munitions as of December 2009.

128  Most commentators affirm that a customary norm has not coalesced under international law. Professor Yoram Dinstein, e.g., observes that:

With a view to elaborating clear norms of conduct in hostilities, a plethora of treaty provisions—each dealing with a chosen weapons—have been negotiated, signed, and ratified. Some of these treaty clauses (by no means all) have generated customary international law applicable to all states. Others (pre-eminently the repudiation of anti-personnel mines) remain binding only among Contracting Parties.

Dinstein, Y., ‘Foreword’ in Boothby, W. H., Weapons and the Law of Armed Conflict (Oxford: Oxford University Press, 2009), p. viii.

129  Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law — Volume 1: Rules, op. cit., p. 283.

130  Herby, P. and Lawand, K., ‘Unacceptable Behavior: How Norms Are Established’, in Williams, J., Goose, S. D., and Wareham, M. (eds.), Banning Landmines—Disarmament, Citizen Diplomacy, and Human Security (US: Rowman and Littlefield, 2008), p. 208.

131  According to the international lawyer, Malcolm Shaw, ‘where treaties reflect customary law, then non-parties are bound, not because it is a treaty provision but because it reaffirms a rule or rules of customary international law.’

Shaw, M. N., International Law, Fourth Edition (Cambridge: Cambridge University Press, 1997), p. 79.

132  An important exception is a State that has attained the status of ‘persistent objector’ to a given rule, thereby refusing to accept the application of a specific customary law norm to itself. See Charney, J. I., ‘The persistent objector rule and the development of customary international law’, British Yearbook of International Law, Vol. 56, 1985, p. 2. Several States not party to the 1997 Anti-Personnel Mine Ban Convention could credibly claim such status.

133  International law recognizes the crystallization of norms of behaviour into customary rules binding on all States, irrespective of their adherence to specific international treaties. Indeed, for centuries, customary law was the predominant source of international law. Indeed, according to the Statute of the International Court of Justice, ‘international custom, as evidence of a general practice accepted as law’ is expressly recognized as one of the primary sources of international law along with international conventions and general principles of law. Statute of the International Court of Justice, Article 38(1), annexed to the UN Charter. Theodor Meron, however, affirms that general practice demonstrates custom and not vice versa, and points out that paragraph 102(2) of the Third Restatement of the Foreign Relations Law of the United States of 1987 provides ‘more accurately’, that customary international law ‘results from a general and consistent practice of States which is followed by them from a sense of legal obligation’. Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1991), p. 3. See also Villiger, M. E., Customary international law and treaties (The Hague: Kluwer Law International, 1997), p. 15.

134  See, e.g., Benesch, S. et al., ‘International Customary Law and Anti-Personnel Landmines: Emergence of a New Customary Norm’, Appendix in ICBL, Landmine Monitor Report 1999: Toward a Mine-Free World (US: Human Rights Watch, 1999), p. 1030.

135  See Brownlie, I. Principles of Public International Law, Fifth Edition (Oxford: Clarendon Press, 1998), pp. 5–7.

136  See for instance Rousseau, C., Droit International Public, Tome I (Paris: Sirey, 1970), pp. 315–325; Quoc Dinh, N., Dailler, P. and Pellet, A., Droit International Public, Sixth Edition (Paris: L.G.D.J, 1999), pp. 321–329; Bernhardt, R., ‘Customary International Law’, in Bernhardt, R. (ed.), Encyclopaedia of Public International Law, Vol. 1, 1992, p. 901.

137  Article 38, paragraph 1(b).

138  According to the work of Oppenheim, a custom is:

a clear and continuous habit of doing certain actions which has grown up under the aegis of the conviction that these actions are, according to international law, obligatory or right.

Jennings, R. and Watts, R. (eds.), Oppenheim’s International Law, Ninth Edition (Oxford: Oxford University Press, 2008). In the corresponding French literature, State practice is defined as the material element (élément matériel) and opinio juris is the psychological constituent element of custom (élément psychologique).

139  Brownlie, I., Principles of Public International Law, op. cit., p. 11; Quoc Dinh, N., Dailler, P. and Pellet, A., Droit International Public, op. cit., p. 330.

140  Quoc Dinh, N., Dailler, P. and Pellet, A., Droit International Public, op. cit., p. 330.

141  Brownlie, I., Principles of Public International Law, op. cit., p. 7.

142  In the North Sea Continental Shelf Cases, the Court stated that: ‘the frequency, or even habitual character of the acts is not in itself enough.’ ICJ Reports 1969, para. 77, p. 44.

143  See Quoc Dinh, N., Dailler, P. and Pellet, A., Droit International Public, op. cit., p. 331. See Interhandel Case, ICJ Reports 1959, p. 27.

144  See for instance the Nicaragua Case wherein the rule unanimously accepted was repeatedly violated but the Court noted that there was evidence of a considerable degree of agreement between the Parties as to the content of the customary international law relating to the non-use of force and non-intervention. ICJ Reports 1986, §184 et seq.

145  See, e.g., the overview on ban policy contained in ICBL, Landmine Monitor Report 2009: Toward a Mine-Free World, op. cit.

146  ICBL, Landmine Monitor Report 2009: Toward a Mine-Free World, op. cit.

147  UN General Assembly Resolution 48K of 16 December 1993.

148  1980 Protocol II on mines, booby-traps and other devices and 1996 Amended Protocol II.

149  Remarks at the launch of his 2009 work, Unacceptable Harm. However, it should be noted that during the Ottawa Process a number of States sought to pursue a prohibition on the transfer of anti-personnel mines in the Conference on Disarmament and further that 2003 Protocol V, which entered into force prior to the Convention on Cluster Munitions, addresses a part of the cluster munitions problem.

150  Borrie, J., Unacceptable Harm: A history of how the international treaty banning cluster munitions was won (Geneva: United Nations Institute for Disarmament Research, 2009), pp. 334–335.

151  ERW are defined as explosive ordnance that has been used or fired but which has failed to explode as intended (UXO) and stocks of explosive ordnance left behind on the battlefield (abandoned explosive ordnance). Such weapons include artillery shells, mortar shells, hand grenades, submunitions, and other similar weapons. The Protocol does not apply to the weapons covered by 1996 Amended Protocol II (mines, booby traps and other devices). ICRC, ‘Fact Sheet on the Convention on Certain Conventional Weapons’, Geneva, March 2004.

152  Albania, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Finland, France, Georgia, Germany, Guatemala, Guinea-Bissau, Holy See, Hungary, Iceland, India, Ireland, Italy, Jamaica, Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Madagascar, Mali, Malta, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Paraguay, Peru, Portugal, Republic of Korea, Republic of Moldova, Qatar, Romania, Russian Federation, Senegal, Sierra Leone, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Tunisia, Ukraine, United Arab Emirates, the United States of America, and Uruguay.

153  Article 3, paragraph 2, 2003 Protocol V.

154  Article 3, paragraph 1, 2003 Protocol V. Assistance can be provided directly to the party in control of the territory or through a third party such as the UN, international agencies, or NGOs.

155  Article 5, 2003 Protocol V. This may include the fencing and monitoring of territory contaminated with ERW, and the provision of warnings and risk education.

156  Article 4, 2003 Protocol V.

157  Cf. Articles 7 and 8, 2003 Protocol V, which deal, respectively, with assistance with respect to ‘existing explosive remnants of war’ (i.e. those existing when the Protocol entered into force for the relevant State Party), and broader cooperation and assistance.

158  Both resolutions were adopted unanimously.

159  Third preambular paragraph. However, the draft text of the Convention submitted to the Dublin Diplomatic Conference referred to the determination of States Parties ‘to put an end for all time to the suffering and casualties caused by the use of cluster munitions that kill or maim innocent and defenceless civilians and especially children’, thus not highlighting the specific impact on women. See Draft Cluster Munitions Convention, Second preambular paragraph. Lesotho proposed including a reference to women in its suggested amendment to the draft paragraph:

Aware/cognizant of other irreparable harm caused by the use of cluster munitions including to kill or maim innocent and defenceless civilians [and] especially women and children; obstruct economic development and reconstruction; delay or prevent the return of refugees and internally displaced persons and have other severe humanitarian consequences that can persist for many years after use.

‘Proposal by Lesotho for the amendment of the Preamble’, Diplomatic Conference doc. CCM/7, 19 May 2008.

160  Women’s International League for Peace and Freedom, ‘PeaceWomen’, <http://www.peacewomen.org/un/sc/1325.html> (accessed 4 June 2009).

161  See, notably, UN Security Council Resolutions 1261 (1999) of 25 August 1999, 1314 (2000) of 11 August 2000, 1379 (2001) of 20 November 2001, 1460 (2003) of 30 January 2003, and 1539 (2004) of 22 April 2004.

162  See Draft Cluster Munitions Convention.

163  See ‘Summary Record of Tenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/10, 18 June 2008.

164  Ibid.

165  ‘Presidency Paper, draft Convention on Cluster Munitions’, Diplomatic Conference Doc. CCM//PT/15, 28 May 2008.

167  Again, little data on those killed or injured during attacks is available, although in a notorious incident in Ethiopia in 2000, cluster bombs dropped by an Eritrean aircraft hit a school in Awder near the northern city of Mekele, reportedly killing 53 civilians, including 12 school children, and wounding another 185 civilians, including 42 school children. While Eritrea did acknowledge that one of its aircraft dropped cluster bombs in the vicinity of the Ayder School, it contended that this was an accident incidental to legitimate military operations, not a deliberate attack. See, e.g., Maslen, S. and Wiebe, V., Cluster Munitions, A Survey of Legal Responses, Landmine Action, March 2008, p. 9, citing Central Front (Eritrea v. Ethiopia), Ethiopia’s Claim 2, Partial Award (Eritrea Ethiopia Claims Commission, 28 April 2004), 43 ILM 1275 (2004)(Partial Award), p. 1, accessed at: <http://www.pca-cpa.org/upload/files/ET%20Partial%20Award(1).pdf>.

168  See ‘Landmine/ERW/IED Casualties in 2007’, in ICBL, Landmine Monitor Report 2008, <http://lm.icbl.org/index.php/publications/display?url=lm/2008/es/landmine_casualties_and_survivor_assistance.html#Landmine/ERW/IED_Casualties_in_2007> (accessed 17 June 2009).

169  See ICBL, Landmine Monitor Report 2009, <http://lm.icbl.org/index.php/publications/display?url=lm/2009/es/mine_casualties.html>; cf. also, supra, the commentary on the eighth preambular paragraph, in §0.116.

170  Operative Paragraph 1.

171  Operative Paragraphs 2 and 3; and see Watch List on Children in Armed Conflict, ‘UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict’, New York, May 2009, <http://watchlist.org/reports/pdf/PolicyPaper_09.pdf> (accessed 4 June 2009), p. 4. The establishment of the mechanism had earlier been proposed by the Security Council in Operative Paragraph 2 of its Resolution 1539, adopted unanimously on 22 April 2004.

172  Watch List on Children in Armed Conflict, ‘UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict’, New York, May 2009, <http://watchlist.org/reports/pdf/PolicyPaper_09.pdf> (accessed 4 June 2009), p. 4.

173  UN Security Council Resolution 1882 of 4 August 2009, twelfth preambular paragraph.

174  Ibid., Operative Paragraph 3.

175  UN General Assembly Resolution 48K of 16 December 1993.

176  Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §0.43.

177  In its ‘Daily update 7’ from the review conference the CMC listed the 26 States supporting the mandate as: Argentina, Austria, Bosnia and Herzegovina, Chile, Costa Rica, Czech Republic, Denmark, Germany, Guatemala, Holy See, Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New Zealand, Peru, Portugal, Serbia, Slovakia, Slovenia, Spain, Sweden, and Switzerland. Belgium, Croatia, and Norway also signalled their commitment to negotiations during the Review Conference but did not support the negotiating mandate.

178  The negotiating mandate is contained in UN doc. CCW/CONF.III/WP.1.

179  The declaration is contained in UN doc. CCW/CONF.III/WP.18. It was endorsed by Austria, Belgium, Bosnia-Herzegovina, Croatia, Costa Rica, Czech Republic, Denmark, Germany, Holy See, Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, Sweden, and Switzerland.

180  Opening statement by Ambassador Gonzalo Gutierrez, Deputy Minister of Foreign Affairs, Peru, Lima Conference on Cluster Munitions, 23 May 2007.

181  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 39.

182  Ibid., p. 112. ‘Projet de lois portent approbation de la Convention sur les armes a sousmunitions ouverte a la signature a Oslo, le 3 decembre 2008’ (‘Draft legislation approving the Convention on Cluster Munitions open for signatures in Oslo, 3 December 2008’), No. 5981, Chambers of Deputies, Normal Session 2008–2009, 12 January 2009.

183  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 36. Statement of Austria, Vienna Conference, 5 December 2007.

184  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 68. Communication from the Danish Ministry of Defence, Division of International Law and Security Cooperation, to Pax Christi Netherlands, 16 February 2005.

185  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 78. It then noted that BL-755 cluster bombs were being phased out since 2001 due to an unacceptable dud rate and that the M26 cluster munition for the Multiple Launch Rocket System will not be used unless modernised. Statement by Amb. Volker Heinsberg, Permanent Representative to the Conference on Disarmament, on the Use and Reliability of Cluster Munitions, Working Group on ERW, Tenth Session of the CCW GGE, Geneva, 8 March 2005.

186  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., pp. 135–136; and Norwegian Ministry of Foreign Affairs, ‘Norway to take the lead in efforts to achieve an international ban on cluster munition’, Press release, 3 November 2006, <http://www.regjeringen.no>; and ‘Klasebomber laases ned’ (‘Cluster Bombs Locked Down’), Aftenposten, 3 November 2006, <http://www.aftenposten.no>.

187  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 36. Statement by Amb. Wolfgang Petritsch, Oslo Conference, 22 February 2007, <http://www.regjeringen.no>.

188  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 126; IKV Pax Christi, ‘Netherlands suspends use of cluster munitions, but questions remain’, Press release, 27 June 2007, <http://ikvpaxchristi.nl>; Corder, M., ‘Dutch military ordered to stop using cluster bombs until further notice’, Associated Press, 26 June 2007; and ‘Netherlands imposes moratorium on cluster bombs’, Xinhua, 26 June 2007.

189  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 29; and the CMC, ‘Survivors and States Join Forces Against Cluster Bombs’, Press release, Belgrade, 4 October 2007.

190  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 90; and Ministry of Foreign Affairs of the Republic of Hungary, ‘The Hungarian Government Introduced a National Ban on the Use of Cluster Munitions’, <http://www.mfa.gov.hu>.

191  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 65. Statement of Croatia, Vienna Conference on Cluster Munitions, 5 December 2007. Notes by CMC/WILPF.

192  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 47; and Statement by Amb. Petko Draganov, Permanent Mission of Bulgaria to the UN, to the Conference on Disarmament, Geneva, 14 February 2008. He also urged the international community to negotiate such a legally binding instrument.

193  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 44. The decision was taken by the Council of Ministers and approved by the President. Harrison, K, ‘Report from the Wellington Conference on Cluster Munitions, 18–22 February 2008’, Women’s International League for Peace and Freedom, p. 30.

194  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 134. Norway, ‘National interpretation and implementation of International Humanitarian Law with regard to the risk of Explosive Remnants of War’, Sixth Session of the CCW Group of Governmental Experts (GGE) on Explosive Remnants of War, Geneva, UN doc. CCW/GGE/VI/WG.1/WP.3, 24 November 2003. The paper stated that ‘some countries may have self-imposed restrictions and policy that go further than the restrictions contained in the existing IHL. For the Norwegian Armed Forces, these restrictions i.a. imply that only air-delivered cluster bombs with a high reliability rate/self destruct mechanism may be used in international military operations.’

195  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 175; and Statement by Des Browne, Secretary of State for Defence, House of Commons, Hansard (London: HMSO, 15 December 2006), Column 1764, <http://www.publications.parliament.uk>.

196  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 251; and Secretary of Defence William Cohen, ‘Memorandum for the Secretaries of the Military Departments, Subject: DOD Policy on Submunition Reliability (U)’, 10 January 2001.

197  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 251; and Making omnibus appropriations for the fiscal year ending September 30, 2009, and for other purposes (H.R.1105), 111th Congress, 2009, <http://Thomas.loc.gov>. Section 7056 deals with the export of cluster munitions.

198  See, supra, §§0.125 et seq.

199  The only attempt to modify this preambular paragraph came from the UK in its proposal for amendment of the preamble of 19 May 2008. The amendment concerned the deletion of the word ‘global’ to qualify the call for an end to civilian suffering caused by cluster munitions. This might have been motivated by the will to mirror the same preambular paragraph contained in the 1997 Anti-Personnel Mine Ban Convention where there is no reference to this term. See ‘Proposal by the United Kingdom for the amendment of the Preamble’, Diplomatic Conference doc. CCM/6, 19 May 2008.

200  Be they interpretative guidelines, notions inspiring the development of international humanitarian law, or sources of law.

201  The 1976 US Air Force Pamphlet holds that:

completing the principle of necessity and implicitly contained within it is the principle of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes. The principle of humanity results in a specific prohibition against unnecessary suffering …

See ‘International Law—The Conduct of Armed Conflict and Air Operations’, Air Force Pamphlet 110–31, US Department of the Air Force, 1976, §§1–3 (a) (2).

202  The preamble of the Saint Petersburg 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight stated that: ‘employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable … would, therefore, be contrary to the laws of humanity’.

203  Secretary-General of the United Nations, ‘Message to the third Review Conference of the Convention on Certain Conventional Weapons’, UN doc. SG/SM/10720, 7 November 2006.

204  See e.g.: UNMAT statement on humanitarian impact of cluster munitions at the CCW Group of Governmental Experts, Geneva, June 2007; UNMAT statement on legal issues concerning cluster munitions to the CCW Group of Governmental Experts, Geneva, June 2007; and UNMAT statement regarding the clearance of cluster munitions at the Lima Conference, May 2007, available at: <http://www.mineaction.org/overview.asp?o=1324&status_flag=L&rand=0.5885431> (accessed 8 March 2010).

205  In her opening address on behalf of UNMAT at the February 2008 Wellington Conference, UNICEF’s Deputy Executive Director stressed that the UN-system contributes in a variety of ways. She stated:

Our extensive experience on the ground and at global level in providing both risk reduction education and assistance to survivors is complemented by UNDP and UNMAS’s technical expertise and support to cluster munitions-affected countries. The Office for the Coordination of Humanitarian Affairs, the Office for Disarmament Affairs, the UN Institute for Disarmament Research, UNHCR, OHCHR, WFP and six other UN bodies also contribute to addressing the obstacles to humanitarian access and development caused by cluster munitions and to preventing humanitarian crises.

206  See, e.g., common Article 3.

207  See, e.g., Article 5, paragraph 3, 1977 Additional Protocol I, and Article 24, 1977 Additional Protocol II.

208  See Maslen, S., Cluster Bombs and Landmines in Kosovo: Explosive Remnants of War (Geneva: ICRC, 2001), available at: <http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/explosiveremnants-of-war-brochure-311201?opendocument> (accessed 8 March 2010).

209  In 2007, the ICRC hosted an Expert Meeting to look at the various challenges of cluster munitions. See Humanitarian, Military, Technical and legal Challenges of Cluster Munitions, Expert Meeting — Montreux, Switzerland, 18–20 April 2007, ICRC, available at: <http://www.icrc.org/web/eng/siteeng0.nsf/html/p0915> (accessed 8 March 2010); and see also supra §0.36.

210  Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §0.125 and fn. 56.

211  The following 46 States endorsed the Oslo Declaration: 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 UK. Japan, Poland, and Romania withheld their endorsement of the Declaration at the conclusion of the Conference.

212  For a detailed history of the Oslo Process, see generally Borrie, J., Unacceptable Harm, op. cit.

213  This was due to the explicit references to where such efforts at universalization should be made. Maslen reports that:

France was especially determined that a future role of the Conference on Disarmament in the elimination of anti-personnel mines be explicitly recognized and had included a paragraph to that effect in its proposal for the preamble introduced at the Oslo Diplomatic Conference. Less contentious were the references to the United Nations and the Review Conferences of the CCW.

Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §0.129 [footnotes omitted].

214  ‘Proposal by Ireland for the amendment of the Preamble’, Diplomatic Conference doc. CCM/4, 19 May 2008.

215  This was at the suggestion of the Philippines.

216  See, infra, the commentary on this provision.

217  Although Article 21, paragraph 2 provides that:

Each State Party shall notify the governments of all States not party to this Convention, referred to in paragraph 3 of this Article, of its obligations under this Convention, shall promote the norms it establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions.

218  In its statement to the closing plenary, Norway, reflecting on the Oslo Process, remarked that it had taken a ‘humanitarian approach to disarmament’. See, e.g., ‘Summary Record of Fourth Session of the Plenary and Closing Ceremony of the Conference’, Diplomatic Conference doc. CCM/SR/4, 18 June 2008; cf. also Borrie, J., Unacceptable Harm, op. cit., p. 314.

219  The ICRC stated, e.g., that ‘the starting-point of the Convention was international humanitarian law rather than an arms control approach’. See ‘Summary Record of Eleventh Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/11, 18 June 2008, p. 8.

220  On this dual structure, see, e.g., Cassese, A., ‘Means of Warfare: The Traditional and The New Law’, op. cit., p. 161; Solf, W. A., ‘Weapons, Prohibited’, in Bernhardt, R. (ed.), Encyclopaedia of Public International Law, Vol. 4 (Amsterdam: North-Holland, 2000), p. 1437.

221  Oeter, S., ‘Methods and Means of Combat’, in Fleck, D. (ed.), The Handbook of Humanitarian Law of Armed Conflicts (Oxford: Oxford University Press, 2004), p. 114.

222  In this regard, Cassese refers to ‘a phenomenon of “viscosity” of legal notions and phrases, that frequently occurs in legislative drafting’. Cassese, A., ‘Weapons causing unnecessary suffering: are they prohibited?’, Rivista di diritto internazionale, Vol. 58, 1975, p. 23.

223  See further infra the commentary on Article 2, paragraph 2.

224  On the same discussion with regard to landmines, cf. Maslen, S., and Herby, P., ‘An international ban on anti-personnel mines: History and negotiation of the “Ottawa treaty”‘, International Review of the Red Cross, No. 325, 1998, pp. 693–713.

225  Thus, the wording of the 2007 Draft CCW Protocol on Cluster Munitions submitted by Germany was not kept. The preamble of this text read as follows:

Recognizing that cluster munitions, due to their indiscriminate effects and high risk of becoming explosive remnants of war, are of serious humanitarian concern during and after armed conflict.

See Draft CCW Protocol on Cluster Munitions submitted by Germany, UN doc. CCW/GGE/2007/WP.1.

226  The paragraph in the preamble of the Draft Convention reads as follows:

Guided by the principle of international humanitarian law that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and in particular on the general rule that parties to a conflict must at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only.

227  See ‘Proposal by Ireland for the amendment of the Preamble’, Diplomatic Conference doc. CCM/4, 19 May 2008. The new paragraph reads as follows:

Basing themselves on the rules of international humanitarian law that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, that the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives, that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations,’ (original emphasis).

See also Friend of the President non-papers of 26 and 27 May 2008 (copies on file with the author).

228  ‘Summary Record of Thirteenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/13, 18 June 2008.

229  See Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law—Volume 1: Rules, op. cit., p. 241. In addition to the discussion in the context of the ICRC’s SIrUS Project (cf. Coupland, R. M., ‘Abhorrent weapons and superfluous injury or unnecessary suffering: from field surgery to law’, British Medical Journal, Vol. 315, 1997, p. 1450), see ICRC, Les armes de nature à causer des maux superflus ou à frapper sans discrimination, Rapport sur les travaux d’un groupe d’experts, ICRC, Geneva, 1973, p. 79, para. 247; Coupland, R. M., ‘Antipersonnel Mines: Why a Ban?’, Community Eye Health Journal, Vol. 10, 1997, No. 23, pp. 33–35, and Sommaruga, C., ‘Does the nature of mine injuries also justify a total ban?’, Landmines: Demining News from the United Nations, Vol. 1.4, September 1996, p. 11.

230  A Working Paper submitted to the Diplomatic Conference in 1974 specifically referred to ‘cluster warheads with bomblets which act through the ejection of a great number of small calibred fragments or pellets’ and called for their prohibition of use on the basis of both the principle against causing superfluous injury or unnecessary suffering, and the prohibition on indiscriminate attacks. See 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 conflict, CDDH/DT/2, 21 February 1974, pp. 8–9 (on file with the author). On this example, cf. also Borrie, J., Unacceptable Harm, op. cit., pp. 5–6.

231  See ‘Summary Record of Thirteen Session of the Committee of the Whole’, op. cit., p. 4.

232  Ibid.

233  Ibid.

234  Presidency Paper, draft Convention on Cluster Munitions, op. cit.

235  See ‘Proposal by Ireland for the amendment of the Preamble’, op. cit.

236  See the first, third, and fourteenth preambular paragraphs of the Convention on Cluster Munitions.

237  See Article 35, paragraph 1.

238  Sandoz, Y., Swinarski, C., and Zimmermann, B. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, op. cit., p. 498, §1402.

239  Oeter, S., ‘Methods and Means of Combat’, in Fleck, D. (ed.), The Handbook of Humanitarian Law of Armed Conflicts, op. cit., p. 112.

240  Article 48.

241  See Rule 11, in Henckaerts, J-M. and Doswald-Beck, L. (eds.), Customary International Humanitarian Law—Volume 1: Rules, op. cit.

242  See e.g., Statement of Mozambique, ‘Summary Record of Opening Ceremony and First Session of the Plenary’, Diplomatic Conference doc. CCM/SR/1, 18 June 2008, p. 5.

243  See ‘Summary Record of Opening Ceremony and First Session of the Plenary’, op. cit., p. 1.

244  See, e.g., Article 51, paragraph 5(b) of 1977 Additional Protocol I.

245  See Article 57, paragraph 1 of 1977 Additional Protocol I.

246  See Article 57, paragraph 2(a) (ii), of 1977 Additional Protocol I. See also the other paragraphs of Article 57.

247  See McCormack, T., Mtharu, P. B., and Finnin, S., Report on States Parties’ Responses to the Questionnaire: International Humanitarian Law and Explosive Remnants of War, Asia Pacific Centre for Military Law, University of Melbourne Law School, March 2006, p. 7.

248  See ‘Proposal by Ireland for the amendment of the Preamble’, op. cit.