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

Commentary, Art.1 General obligations and scope of application

Virgil Wiebe, Declan Smyth, Stuart Casey-Maslen

From: The Convention on Cluster Munitions: A Commentary

Edited By: Gro Nystuen, Stuart Casey-Maslen

Subject(s):
Weapons, conventional

(p. 95) Article 1.  General obligations and scope of application

Article 1—  General obligations and scope of application

  1. 1.  Each State Party undertakes never under any circumstances to:

    1. (a)  Use cluster munitions;

    2. (b)  Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

    3. (c)  Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

  2. 2.  Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft.

  3. 3.  This Convention does not apply to mines.

Overview of the Article

1.1  Article 1, and particularly its paragraph 1, can be considered the core of the Convention on Cluster Munitions. Article 1 lays down broad prohibitions whereby States Parties undertake ‘never under any circumstances’ to use, develop, produce, otherwise acquire, stockpile, retain, or transfer to anyone, directly or indirectly, all cluster munitions as defined by the Convention.3 It also prohibits States Parties from assisting, encouraging, or inducing anyone to engage in any activity prohibited under the Convention. The provision reflects the aim of the 2007 Oslo Declaration,4 where 46 States committed themselves to:

[c]onclude by 2008 a legally binding international instrument that will … prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians.5

(p. 97) 1.2  The phrase ‘never under any circumstances’ means that the prohibitions in Article 1 apply at all times, including peacetime, internal disturbances and tensions, and situations of armed conflict.6

1.3  The Convention regulates the behaviour of States.7 While Article 1 does not seek to regulate directly the actions of non-State armed groups (NSAGs), the two references in Article 1 to ‘anyone’ clearly encompass members of such groups.8 Moreover, State Parties are obliged to prohibit to individuals and entities the acts that are prohibited to States Parties under Article 1.9 States Parties also specify their resolve, in a preambular paragraph, whereby ‘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’.10

1.4  The object of the prohibition in paragraph 1 of Article 1 is ‘cluster munitions’. Paragraph 2 of Article 1 serves to prohibit the use, production, development, acquisition, stockpiling, retention, and transfer of ‘explosive bomblets’,11 as well as assisting, encouraging, or inducing others to engage in such activity. The nature and effect of explosive bomblets are very similar to those of explosive submunitions12 but specific provision is made for such bomblets because, as they are released or dispersed from a dispenser fixed to an aircraft rather than from another munition, it was feared that they would not fall within the Convention’s definition of a cluster munition.13

1.5  Under Article 1, paragraph 3, the Convention—and therefore its prohibitions—does not apply to any mines.14 Certain anti-vehicle and (p. 98) anti-personnel mines can be delivered from a dispenser or container and might otherwise be prohibited but for this exclusion.15 These weapons are addressed by other instruments of international law, as discussed below.16

Preparatory discussions and negotiations

1.6  Three issues arising in the preparatory discussions and formal negotiations that led to the agreement on Article 1 of the Convention on Cluster Munitions merit brief attention at the outset.17 While these three issues were resolved in other Articles or ultimately not addressed at all in the Convention, States initially proposed and debated them in the context of Article 1. Those issues are as follows: (1) How would cluster munitions be defined, in light of the Oslo Declaration calling for prohibitions on cluster munitions ‘that cause unacceptable harm to civilians’?;18 (2) Would there be transition periods before all or some of the core Article 1 obligations entered into full legal force?;19 and (3) How would the issue of ‘interoperability’20 with States not party to the Convention be resolved?21 Additional issues emerged in the course of the negotiations and were resolved with less debate, such as the inclusion within the ambit of Article 1 of explosive bomblets22 and issues relating to non-State armed groups (NSAGs).

Cluster munitions ‘that cause unacceptable harm to civilians’

1.7  The Oslo Declaration had called for the imposition of prohibitions on use, production, transfer, and stockpiling of ‘cluster munitions that cause (p. 99) unacceptable harm to civilians’.23 Intentionally imprecise, the ambiguity of this phrase served to attract a wider number of States to the discussions.24 The phrase is not formally defined in the treaty, nor was it ultimately contained in any of its articles, although it is included in the eighteenth preambular paragraph that refers to the Oslo Declaration. As the discussions unfolded, two approaches to resolving this ambiguity emerged: the ‘split cluster munitions into categories’ approach, and the ‘define and ban’ approach.25

1.8  The Lima Discussion Text26 embodied what became the ‘split cluster munitions into categories’ approach. It included a single paragraph for Article 1 which would have introduced prohibitions on specifically defined cluster munitions ‘because of their unacceptable harm to civilians and civilian objects during and after use’.27 Article 2 of that draft text defined the weapons systems that would be ‘considered prohibited cluster munitions under this treaty’. The draft would not have prohibited systems with explosive submunitions ‘designed to, manually or automatically, aim, detect and engage point targets’.28 This approach would have created two classes of cluster munitions: i.e. cluster munitions prohibited by the Convention and those not prohibited.29

(p. 100) 1.9  The views of States at the Lima Conference on Cluster Munitions (the ‘Lima Conference’) on the scope of the weapons to be covered by the prohibition are said to have ‘ranged across a spectrum of those advocating a total ban of all and any cluster munitions, those wishing to draw a line between unacceptable cluster munitions and those which can be used responsibly without endangering civilians, and those advocating a more limited ban exempting cluster munitions with self-destruct mechanisms and certain failure rates’.30

1.10  In the Vienna Discussion Text,31 prepared for the December 2007 Vienna Conference,32 the draft Article 1 took the ‘define and ban’ approach, which included a prohibition of all ‘cluster munitions’ as defined. Under this approach the term ‘unacceptable harm to civilians and civilian objects’ would be explained only indirectly, by defining what cluster munitions are—or are not—under Article 2, paragraph 2. This approach eventually prevailed, with language of the Vienna Discussion Text for Article 1, paragraph 1,33 carried through verbatim to the Draft Convention submitted to the May 2008 (p. 101) Diplomatic Conference in Dublin34 and into the final text of the Convention it adopted.35

1.11  The controversy between the two approaches was not resolved until Dublin. Some States were concerned that newer versions of cluster munitions containing explosive submunitions equipped with point target detection would be banned under the treaty, and still others sought to retain older versions of cluster munitions.36 Several States, including Austria, Cambodia, Ghana, Indonesia, and Mexico, are said to have ‘supported more all-encompassing definitions that made no allowances for any weapons that employ explosive submunitions’.37

1.12  The definition of cluster munitions in the Vienna Discussion Text omitted any proposal of what weapons systems would—and would not—be covered by the Convention, leaving ellipses in Article 2, paragraph 2(c) to indicate the need for further elaboration.38 While the discussions at the Vienna (p. 102) Conference certainly did not resolve the issue of what constituted ‘unacceptable harm to civilians and civilian objects’, they did attempt to move those discussions out of Article 1 and into Article 2 of the Convention.39 Following the Conference, the core group of States driving the Oslo Process produced a Draft Cluster Munitions Convention in January 2008. This was done in advance of the Wellington Conference due to be held in February 2008.40 Following the approach of the Vienna Discussion Text, the Draft Convention applied the prohibitions to all cluster munitions, while leaving the definition of just what the term ‘cluster munitions’ meant for further negotiations.41

1.13  Discussions continued at the February 2008 Wellington Conference. The Draft Convention issued in January was forwarded unchanged to the Diplomatic Conference as the formal basis for negotiation.42 A ‘Compendium of Proposals’ was also produced to allow States to present their proposals that they felt had not been adequately considered in the Draft Convention.43 Several of those proposals called for prohibitions in Article 1 to be placed on cluster munitions or submunitions ‘as defined in Article 2’,44 thereby attempting to preserve the distinction between ‘acceptable’ and ‘unacceptable’ cluster munitions.45 This debate was renewed at the Diplomatic Conference. Despite (p. 103) a number of proposed amendments to the Draft Convention,46 the approach taken in the Draft Convention ultimately prevailed, although not until the final day of active negotiations.47 The definition of what constitute ‘cluster munitions’ (and therefore what were covered by the Article 1 prohibitions) was resolved in the negotiations around Article 2, paragraph 2.48

Transition periods

1.14  An issue raised early49 in the process and only resolved on the final day of active negotiations at the Diplomatic Conference was that of a transition period on the prohibitions on use, production, and transfer of cluster munitions following entry into force. States in favour of such transition periods argued that time was needed to develop alternative weapons systems in national defence capabilities. Such an approach would encourage States possessing the weapons to adhere to the treaty sooner rather than later and force them to develop concrete plans to make cluster munitions obsolete.50 States and civil society groups who opposed such transition periods argued that such an approach would undermine (p. 104) the Convention: if cluster munitions were worthy of being banned due to the excessive harm they caused to civilians, allowing them to be used, produced, or transferred, for example, for a set period of years seemed difficult to justify and would frustrate the object and purpose of the Convention.

1.15  At the February 2008 Wellington Conference, the UK stated that

if transition periods are agreed, Article 1 is the right place to include them. There is an argument that in the real world of delivering an improvement to those whose communities are affected by Cluster Munitions, rather than having no commitment from possessing states at all, it would be better to put in place a structured plan for the removal from service of weapons systems.51

In contrast, on 1 April 2008 at the conclusion of the Livingstone Conference on Cluster Munitions,52 39 African States declared that a ‘prohibition should be total and immediate from the convention’s entry into force in order to prevent further suffering’.53 The view of the Cluster Munition Coalition (CMC) was that ‘any treaty on cluster munitions must include … [n]o provision for a transition period on the prohibition on use, production and transfer [and] [n]o geographic exceptions for the prohibition on use, production and transfer’.54

1.16  The Dublin Diplomatic Conference rejected transition periods. While a number of States argued vigorously for transition periods, a significant majority of States opposed them. On behalf of the participating African States, Zambia restated its opposition to transition periods based upon the Livingstone Declaration.55 Several other States56 made it clear at the outset of the Diplomatic Conference that they opposed transition periods, particularly (p. 105) with respect to use.57 In contrast, both Japan and the UK tabled proposals for transition periods to be included in Article 1, though without suggesting a specific time period. Japan’s proposals were limited to transition periods on use only and in the form of country-specific declarations, while the UK proposal would have applied to Article 1 in its entirety and to all States Parties.58

1.17  At the end of the first week of negotiations, five States in a session of the Committee of the Whole sought to preserve the possibility of including transition periods by postponing final discussions on the issue. In response, more than 50 States expressed opposition to any transition periods. Further discussion the following Monday (26 May), resulted in no change of position.59 In announcing and defending the President’s draft text on 28 May 2008, Ambassador O’Ceallaigh simply stated that: ‘There will be no transition period for use of cluster munitions.’60

‘Interoperability’ and assisting, encouraging, or inducing prohibited activities

1.18  The issue of ‘interoperability’, and specifically the participation by States Parties in joint military operations (including those mandated by (p. 106) the United Nations (UN) Security Council), with States not party to the Convention on Cluster Munitions, proved to be a major point of contention in the final negotiations of Article 1 from the beginning of the Diplomatic Conference until the final day of negotiations. Several States were concerned that military cooperation with States not party could generate criminal liability for their personnel as well as responsibility for the States Parties, or that through such military cooperation they might risk being accused of assisting, encouraging, or inducing the use of cluster munitions.61 In opposing specific language addressing interoperability, other States and civil society groups looked to the 1997 Anti-Personnel Mine Ban Convention as a model for how such issues had been addressed previously without the need for a separate article.

1.19  Until the negotiations at the Dublin Diplomatic Conference in May 2008, most of the debate centred on proposals to amend the text of Article 1. Resolution was, however, reached through the creation of additional provisions in Article 21 on Relations with States not party to this Convention.62 Following the formal adoption of the Convention on 30 May 2008, a number of States addressed interoperability directly in their statements. Norway declared that: ‘Regarding Article 21 in the Convention we note that delegations from all regions agree that this convention does not hinder future international military operations, even if some participating states may not be party to the convention’;63 Canada ‘regarded it as an essential element to legally protect joint military operations, which actually strengthened the Convention’; and Hungary ‘welcomed Article 21 of the Convention as an appropriate solution to safeguard peacekeeping and humanitarian operations’.64

1.20  Other States criticized Article 21 or sought to limit its reach following the formal adoption of the Convention on 30 May 2008. Argentina maintained the view that while ‘it was part of the necessary consensus’, it ‘should not appear in the Convention, on the basis that this Article generates uncertainty without contributing to the aims of the Convention’; Venezuela ‘was unhappy with the provision on interoperability, which it regarded as undermining the spirit and (p. 107) purpose of the Convention’; Costa Rica ‘would have preferred … more rigour in Article 21’; and Zambia ‘expressed its understanding that Article 21 would not create a loophole for States Parties to allow the indefinite stockpiling and transit of cluster munitions on their territories’.65 Iceland stated that ‘Article 21 of the Convention dealt with particular concerns regarding joint military operations with States not party, without allowing for departure from the specific obligations of the Convention.’66 The interaction between Article 1 and Article 21 is discussed further below.67

Paragraph 1

Each State Party undertakes never under any circumstances to:

  1. (a)  Use cluster munitions;

  2. (b)  Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

  3. (c)  Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Preparatory discussions and negotiations

1.21  Article 1, paragraph 1 of the Convention is very similar in content to Article 1 of the 1997 Anti-Personnel Mine Ban Convention,68 which in turn drew (p. 108) heavily upon the language of Article 1, paragraph 1 of the 1993 Chemical Weapons Convention.69 The earliest ‘discussion text’ of the treaty, the Lima Discussion Text,70 contained all four prohibitions referred to in the Oslo Declaration (production, stockpiling, transfer, and use),71 and was reported to be ‘largely modelled’ on what is laid down in Article 1 of the 1997 Anti-Personnel Mine Ban Convention.72 As in that Convention, the Lima Discussion Text also prohibited the related activities of acquisition and retention of cluster munitions and banned assisting, encouraging, or inducing anyone to engage in prohibited activities.

1.22  The Convention as adopted differed in three main ways from the Lima Discussion Text. First, the negotiating States removed the opening phrase of Article 1, paragraph 1—‘Because of their unacceptable harm to civilians and civilian objects during and after use,’—and referenced it instead in a preambular paragraph (the eighteenth). Second, they applied the prohibitions to all cluster munitions, as opposed to ‘cluster munitions as defined in article 2’, by arriving at a definition of cluster munitions that excluded weapons with specific, multiple safety features.73 Finally, they removed the phrase ‘in any way’ from paragraph 1(c).74

1.23  At the Diplomatic Conference in Dublin, the Philippines proposed adding the scope provisions found in 2003 Protocol V of the Convention on (p. 109) Certain Conventional Weapons (CCW),75 which specifically apply in situations of armed conflict.76 A desire to encompass acts by NSAGs may have motivated the proposal, as the Philippines included in it an additional paragraph on NSAGs.77 The proposal’s supporters claimed it supplemented the ‘under any circumstances’ language by stating that the treaty would ‘also apply’ to such conflict situations.78 Clearly, however, situations of armed conflict are covered by the wording ‘never under any circumstances’ but the language would have created confusion about the meaning of this latter term. The proposal was not adopted.

Commentary

The comprehensive nature of the obligations

1.24  While the text of Article 1 of the Convention draws heavily upon the 1997 Anti-Personnel Mine Ban Convention, its title differs by adding the phrase ‘and scope of application’ after ‘General obligations’. The term ‘Scope of Application’ is normally reserved for treaties addressing international humanitarian law, which apply particularly to situations of armed conflict, while other treaties are not so restricted. Nevertheless, the meaning of the entire title ‘General obligations and scope of application’ of Article 1 is made clear in the first line of the article, where each State Party ‘undertakes never under any circumstances’.

(p. 110) 1.25  With respect to the text of Article 1, paragraph 1 that served as the basis of negotiations at the Diplomatic Conference (and which was not thereafter altered), the explanatory notes of the Draft Convention on Cluster Munitions stated that:

The scope of application of the treaty is ‘never under any circumstances’, meaning that application of the treaty is not limited to any situation of armed conflict but applies at all times. The provision thus is largely similar to corresponding provisions in the Biological Weapons Convention, the Chemical Weapons Convention and the Anti-Personnel Mine Ban Treaty.79

1.26  These prohibitions on cluster munitions under the Convention are immediate and, prima facie, comprehensive. Consonant with the scope of application, cluster munitions may not be used at any time: in attack or defence, in times of peace, during internal disturbances or tensions, or during armed conflict, even in situations of supreme emergency threatening the survival of the nation. In addition, the wording ‘any circumstances’ covers all actions by a State Party wherever it exercises jurisdiction, whether geographically (within or outside its own territory) or over persons. A leading commentary on the 1993 Chemical Weapons Convention states that the wording ‘undertakes never under any circumstances’ ‘emphasizes the comprehensive and totally binding nature of the prohibitions’ set forth and that:

This relates to the geographical scope of these prohibitions: They have a universal dimension, which means they extend to all activities of States Parties everywhere.80

The prohibition on use

1.27  Under Article 1, each State Party undertakes never under any circumstances to use cluster munitions.81 This prohibition certainly encompasses any new employment of cluster munitions or explosive bomblets, other than (p. 111) in strict accord with the purposes permitted under Article 3, paragraph 6 of the Convention on Cluster Munitions, i.e. ‘the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition countermeasures’.82

1.28  The Convention does not, however, explicitly define the term ‘use’. One might suggest that any act of employing a weapon consistent with its general purpose constitutes usage. A common dictionary definition of the term is as follows: ‘To put into practice or operation; to carry into action or effect; to employ or make use of (an article, etc.), esp. for a profitable end or purpose; to utilize, turn to account; to work, employ, or manage (an implement, instrument, etc.); to manipulate, operate, or handle, esp. to some useful or desired end.’83 The verbs used in the official French (employer) and Spanish (emplear) versions of the treaty text translate directly to English as ‘employ’.

1.29  Further, other defined terms in the Convention help to illuminate the meaning of the term. According to a portion of Article 2(4),84 a ‘failed cluster munition’ means ‘a cluster munition that has been fired, dropped, launched, projected or otherwise delivered and which should have dispersed or released its explosive submunitions’, implying that use includes firing,85 dropping,86 (p. 112) launching,87 projecting,88 otherwise delivering cluster munitions,89 as well as dispersing or releasing90 explosive submunitions. Article 2, paragraphs 3, 5, 13, and 15 of the Convention also use the terms ‘dispersed’ and ‘released’ in referring to the employment of explosive submunitions and explosive bomblets.

(p. 113) 1.30  In certain circumstances, the wilful failure to clear and destroy all cluster munition remnants located in areas under a State Party’s jurisdiction or control ‘as soon as possible’ as required by Article 4 might constitute use.91 For example, a State Party might decide to retain a cluster munition contaminated area near a border with a neighbour it considered possibly hostile to use it as a de facto minefield. Prohibited use could also include the act of failing to mark a contaminated area under a State Party’s jurisdiction or control for the purpose of luring enemy forces into the area for the purpose of force attrition. Subsequent State practice, including any relevant statements attached to ratification and discussions and decisions at the Meeting of States Parties, may clarify these points.

1.31  In contrast, taking actions such as channelling one’s own forces around known areas containing unexploded submunitions in order to protect those forces does not constitute ‘use’. Likewise, a State Party taking action to identify and mark cluster munition contaminated areas under its jurisdiction or control, as required by Article 4, paragraph 2, is not to be considered ‘use’ notwithstanding the fact that such marking might be identified by current or potential enemy forces as a military obstacle.

1.32  More difficult is the potential situation where a State Party seeks to take military advantage of a cluster munition contaminated area outside its jurisdiction or control and where it did not create the hazard.92 During the negotiation process, the only recorded comment on this point was that of the CMC, which urged that:

States should make clear either through additional treaty text or through the diplomatic record that ‘use’ is not just new deployment of cluster munitions, but also (p. 114) encompasses the intentional gaining of military or strategic advantages from areas previously contaminated.93

Paragraph 1(b)

Each State Party undertakes never under any circumstances to: [ … ] Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

Direct or indirect commission of prohibited activities

1.33  Paragraph 1(b) of Article 1 prohibits the development, production, acquisition by other means, stockpiling, retention and transfer of cluster munitions to anyone, whether directly or indirectly. The phrase ‘directly or indirectly’ modifies each of the six verbs in the sub-paragraph (b). While one might argue that the phrase modifies only the verb closest to it (i.e. transfer), a comparison of similar language in related treaties supports the broader reading. In contrast, Article I, paragraph 1(a), of the 1993 Chemical Weapons Convention states that:

Each State Party to this Convention undertakes never under any circumstances to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone.

1.34  The prohibition under that Convention ‘is limited to direct or indirect transfer and not the proceeding activities in the clause’.94 The clear delineation between the first five undertakings (to not develop, produce, otherwise acquire, stockpile or retain) and the last undertaking (to not transfer) by placement of the words ‘chemical weapons’ makes clear that ‘directly or indirectly’ was meant to modify only ‘transfer’ in that usage. Under Article 1, Paragraph 1(2) of the 1997 Anti-Personnel Mine Ban Convention, ‘each State Party undertakes never under any circumstances to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines’. This language is identical to that found in the Convention on Cluster Munitions. The words ‘directly or indirectly’ have (p. 115) similarly been understood in the 1997 Anti-Personnel Mine Ban Convention to apply to all six verbs.95

1.35  The prohibition on indirect as well as direct actions means that the reach of the prohibitions is broad, and is intended to prevent flawed interpretations aiming at circumventions of the prohibitions. Indirectly means ‘secondhand, in a roundabout way … [,] by implication, obliquely, circumlocutorily, periphrastically’.96

The prohibition on development

1.36  States Parties undertake never under any circumstances to develop, directly or indirectly, cluster munitions.97 The term ‘develop’ is not defined in the Convention. To develop something is ‘to cause [it] to grow or come into active existence or operation’.98 In the context of the 1993 Chemical Weapons Convention, ‘“develop” is by virtue of its purpose, the preparation of the production of chemical weapons as distinct from permitted research’.99 This prohibited objective might also materialize and become obvious through specific equipment used and methods applied.100 The ambit of the Convention on Cluster Munitions is broader than the 1993 Chemical Weapons Convention, however, as it encompasses a prohibition on indirect as well as direct development. The Norwegian Government, in its explanatory note to national implementing legislation, stated that:

[i]t is presumed that the development of cluster munitions covers the process up to production.101

(p. 116) 1.37  Maslen commented on indirect development in the context of the 1997 Anti-Personnel Mine Ban Convention:

This would seemingly cover development of anti-personnel mines by off shore corporations or companies providing funding for research and development in non-Party States, seeking to avoid the reach of national legislation within the jurisdiction. A State Party may not commission, provide funding, or issue licenses for such activities, and, in accordance with Article 9 of the Convention, should ensure that it has taken all appropriate measures to prevent or suppress the development of anti-personnel mines by persons or territory under its jurisdiction or control.102

1.38  The development of components103 that might be used in cluster munitions as well as in weapons not prohibited under the Convention raises interpretive challenges. Developing multi-use components with the intent that the designs of such components be used in cluster munitions would violate the Convention, although such development raises difficult evidentiary challenges in proving the requisite intent.104

1.39  As the process of developing weapons often involves multiple stages of testing or production, at some stages a weapon might well be considered prohibited if the process were stopped at those points.105 Using the example of Article 2, paragraph 2(c), weapons which possess all five listed characteristics (e.g. each submunition must be equipped with an electronic self-destruction mechanism) are not considered cluster munitions. In development, an explosive submunition might not yet be equipped with an electronic self-destruction mechanism for the purpose of testing other features of the submunition, thus making it prohibited at that stage. If such development or testing is not intended to lead to the production of cluster munitions, it is not prohibited under the Convention.

(p. 117) The prohibition on production

1.40  Under Article 1, paragraph 1(b), States Parties undertake never under any circumstances to produce, directly or indirectly, cluster munitions.106 The prohibition on production is effective immediately upon entry into force and is not subject to any exception.

1.41  The term ‘produce’ is not defined in the Convention. There is a certain overlap between the concept of development and the concept of production. Using both terms decreases the scope for circumventing the prohibition, notwithstanding that the two concepts have separate meaning; development normally taking place before production. To produce something is ‘to bring (a thing) into existence from its raw materials or elements, or as the result of a process’.107 The official French text of the Convention translates ‘produce’ as produire. One State Party, Luxembourg, does not use the word produire in implementing legislation, but rather uses the word fabriquer.108 The word fabriquer may be translated in English as ‘to make, to produce, to manufacture’.109

1.42  As with the 1997 Anti-Personnel Mine Ban Convention, the prohibition is on indirect as well as direct production. According to a commentary of that Convention:

[T]he prohibition on the production of anti-personnel mines encompasses indirect as well as direct production, which would encompass the licensing of foreign companies to produce anti-personnel mines or components intended to be employed in antipersonnel mines.110

As discussed above with respect to the prohibition on development, care must be taken in the production of any submunitions to ensure that they are covered by the prohibitions in the Convention on Cluster Munitions.

1.43  Cluster munitions, if examined closely, can be broken down into a series of individual components. These are often produced by a variety of manufacturers. There is no list in the Convention of all ‘components’ of cluster (p. 118) munitions, although key parts, notably explosive submunitions, are listed in Article 2. The Convention, does, however, commit States Parties to ‘never under any circumstances [ … .] develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions’. Thus, both development and production of components designed for cluster munitions are covered by the prohibition. Such components might be:

  • •  The canister or dispenser,

  • •  The ejection system (the mechanism that expels the submunitions from the canister),

  • •  The explosive submunitions,

  • •  The detonation mechanism or fuse for both the main weapon and the submunitions,

  • •  The propulsion system (e.g. base bleed, rocket engine), and

  • •  The guidance system (the mechanism that guides the main weapon or the submunitions towards their target area).

Some of these are mentioned in Article 2, while others are not. This commentary does not attempt to provide an exhaustive list of what might constitute components of cluster munitions.

1.44  The production of components of cluster munitions which potentially have multiple uses in other products is more problematic. In Luxembourg’s national implementing legislation it is stated that:

Aux termes des articles 1 et 2 de la Convention, il est interdit … de fabriquer, [ou] d’assembler des pièces préfabriquées en arme complète … des armes à sousmunitions ou des sous-munitions explosives.111

In English, the provision may be translated as:

Pursuant to the terms of article 1 and 2 of the Convention, it is prohibited … to manufacture [or] to assemble prefabricated pieces into complete weapons … of cluster munitions or explosive submunitions.

The Luxembourg legislation therefore bans (1) the manufacture of cluster munitions; (2) their assembly from pre-fabricated parts; (3) the manufacture of explosive submunitions; and (4) the assembly of explosive submunitions from pre-fabricated parts.112

(p. 119) 1.45  The Norwegian Government, in its explanatory note to the national implementing legislation, also addressed the question of the production of components, including multiple use components:

In addition to production of the complete weapon, the prohibition on production applies to production of components of cluster munitions. Thus, depending on the circumstances, the production of components that can be used in the production of cluster munitions may be covered by the prohibition. The question is how far-removed the component is from the final product, i.e. the cluster munition. If it is clear that the component can only be used in the production of cluster munitions, the production of such components is covered by the prohibition. In such cases, it is clear what the product is to be used for, and it is difficult to envisage it as having alternative uses. Other components, such as explosives or chemicals that can be used for many purposes other than the production of cluster munitions, do not, however, fall within the scope of the prohibition as long as it is not clear that the final use for which they are intended is the production of cluster munitions. The same must apply to multipurpose materiel, for example a container that can also be used for cluster munitions or other munitions that do not fall within the scope of the prohibition, as long as the intended final use is unclear.113

The end use of multiple-use components might be addressed through export controls.

1.46  Licensing the production of cluster munitions by foreign companies constitutes indirect production. According to Banning Cluster Munitions, Government Policy and Practice, a 2009 report by two nongovernmental organizations (NGOs), ‘[m]any states have licensed the production of cluster munitions to companies in other states’.114 The report cites numerous examples. The South Korean firm Poongsan licensed the Pakistan Ordnance Factories in November 2004 to co-produce dual purpose improved conventional munition (DPICM) projectiles in Pakistan.115 Israel Military Industries has licensed companies in Argentina, Germany, India, Romania, Switzerland, Turkey, the UK, and the US to produce or assemble DPICM submunitions.116 US manufacturers licensed a Dutch firm, Eurometaal NV, in the late 1980s to produce 155mm artillery DPICM projectiles. Eurometaal shared production with a Turkish firm, MKEK beginning in 1994, but closed production (p. 120) capacity in 2002.117 The US ‘concluded a licensing agreement with South Korea in 2001 for production’ of DPICM submunitions.118 The US has also licensed production of DPICM artillery projectiles to Turkey.119

1.47  The investment in firms producing or assembling cluster munitions or producing or assembling key components may also be prohibited. The issue is addressed below in the section on assistance.120

Prohibition on acquisition

1.48  Under Article 1, paragraph 1(b), States Parties undertake never under any circumstances to otherwise acquire, directly or indirectly, cluster munitions.121 This covers the acquisition of cluster munitions other than through production of the weapons, such as, for example, by purchasing, borrowing, stealing, or embezzling cluster munitions. The aim is to ensure that all forms of acquisition are covered by the Convention. Furthermore, when acquiring weapons systems, a State Party is obliged to assess the munitions to ensure that the characteristics of the munitions do not violate the Convention.122 As the definition of what is and is not a cluster munition relies greatly on technical requirements,123 great care must be taken in the acquisition of (p. 121) new weapons.124 Whether States Parties should consider not only technical requirements but also the expected or foreseeable effects of munitions that might be acquired is a point of unresolved contention.125

1.49  The term ‘acquire’ is not defined in the Convention. To acquire ordinarily means ‘to receive, or get as one’s own (without reference to the manner), to come into possession of ’.126 While the prohibition on the acquisition of cluster munitions appears to be absolute in Article 1, there is a limited exception allowing acquisition and retention for ‘the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures’. However, the ‘amount of explosive submunitions retained or acquired shall not exceed the minimum number absolutely necessary for these purposes’.127

Prohibitions on stockpiling and retention

1.50  Under Article 1, paragraph 1(b), States Parties undertake never under any circumstances to stockpile or retain, directly or indirectly, cluster munitions.128 There is a certain overlap between the concepts of stockpiling and retention. The prohibition on stockpiling is subject to a certain deadline for destruction of stocks. The prohibition on retention is subject to an exception regarding cluster munitions used for certain purposes such as training mine clearance personnel.129

The prohibition on stockpiling

1.51  The Convention does not define the verb ‘to stockpile’. The term ordinarily means ‘to accumulate a stock of (something); spec. to build up a stock of … weapons … ,’130 while a stockpile is defined as ‘A reserve or store of goods or commodities, esp. one accumulated in anticipation of shortage or market (p. 122) fluctuation; An accumulation of … weapons.’131 The Convention applies to all cluster munitions held in stocks.132

1.52  Publicly available data on numbers of clusters munitions in stockpiles capture only some of the global total. In 2009, seven signatories were said to be holding about 672,000 cluster munitions containing more than 115 million submunitions, which were pending destruction.133 Six non-signatory States held cluster munitions containing at least 745 million submunitions.134 According to Human Rights Watch, as of December 2009, 87 countries had stockpiled cluster munitions and/or dispenser systems. The organization classified global stockpiles into weapon types and countries that have held or currently hold those weapons.135 According to research by two NGOs, as of May 2009:

Countries that are no longer thought to have stockpiles include [Convention] signatories Australia, Honduras, Mali, and Spain, and non-signatories Argentina and Iraq. Spain completed its stockpile destruction program in March 2009.136

The stockpiling of foreign cluster munitions

1.53  A number of signatory States have expressed the view that the storage of cluster munitions by a foreign power in national territory is prohibited under Article 1 of the Convention137 or that ‘storage of cluster munitions by a state not party within the territory of a state party would weaken the effects of (p. 123) the convention’.138 This position may be somewhat at odds with Article 3, paragraph 1, which states that ‘Each State Party shall, in accordance with national regulations, separate all cluster munitions under its jurisdiction and control from munitions retained for operational use and mark them for the purpose of destruction.’139 The language implies that stockpiles of cluster munitions in the jurisdiction but not under the control of a State Party are exempt from the destruction requirements of Article 3, paragraph 2. Additionally, Article 21, paragraph 4(b) states that ‘[n]othing in paragraph 3 of this Article shall authorise a State Party … (b) To itself stockpile or transfer cluster munitions’ (emphasis added). This issue is discussed below in the respective commentary on these provisions.

The prohibition on retention

1.54  To ‘retain’ is ordinarily defined as ‘to keep hold or possession of; to continue having or keeping’.140 It is potentially a broad concept.141 While stockpiling suggests accumulation and build-up, retention might be viewed as holding on to weapons already acquired. Holding on to weapons acquired through an amnesty or by coming into control of stockpiles formerly held by others might be included in retention. Japan’s proposal during the Wellington Conference and then again during the Diplomatic Conference to replace the term ‘retain’ with ‘own, possess’ did not attract support from the negotiating States.142 In its implementing legislation, Japan uses the terms ‘possess’ and (p. 124) ‘possession’.143 Likewise, a person who ‘possesses, retains, or stockpiles a cluster munition’ is considered under New Zealand’s implementing legislation to have committed an offence.144

1.55  As with respect to acquisition, Article 3, paragraph 6 lays down a limited exception to the general prohibition on retention for ‘the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures’. However, the ‘amount of explosive submunitions retained or acquired shall not exceed the minimum number absolutely necessary for these purposes’.145 States Parties have incorporated these exceptions into national implementing legislation.146 These exceptions apply explicitly to cluster munitions only and not to explosive bomblets or dispensers.

Prohibition on transfer

1.56  Under Article 1, paragraph 1(b), States Parties undertake never under any circumstances to transfer, directly or indirectly, cluster munitions to anyone.147 The prohibition is immediate and the only exceptions to the prohibition are set out in Article 3, paragraphs 6 and 7.148

(p. 125) 1.57  Information about the actual extent of international trade in cluster munitions is not publicly available. According to research by two NGOs published in 2009:

[w]hile the true scope of the global trade in cluster munitions is difficult to ascertain due to lack of official information, at least 15 countries have transferred more than 50 types of cluster munitions to at least 60 other countries.149

1.58  The term ‘transfer’ is defined in Article 2, paragraph 8 of the Convention as follows:150

Transfer involves, in addition to the physical movement of cluster munitions into or from national territory, the transfer of title to and control over cluster munitions, but does not involve the transfer of territory containing cluster munition remnants.151

The meaning of the term transfer is discussed under Article 2, paragraph 8 of this commentary.

1.59  ‘Anyone’ means ‘anybody, any person’.152 ‘Anyone’ includes States, whether or not party to the convention; organisations or companies;153 as well (p. 126) as a person or a group of persons (irrespective of citizenship), including non-State armed groups.154

1.60  The transfer of key components of cluster munitions is also prohibited. The same limitations that apply to production and development regarding components apply. The transfer of multiple use components, when the intent of that transfer is to result in the assembly of production of cluster munitions, is prohibited.155 For example, components which could be used in both cluster munitions as well as non-prohibited products would be electronic selfdestruction mechanisms specified in Article 2, paragraph 2(c)(iv). A possessor or producer of such multiple use components who transfers such components when they know or should know such components will be used to produce cluster munitions violates the prohibition on transfer.156

Permitting transit of cluster munitions across the territory of a State Party

1.61  More complex is the question of transit of cluster munitions across, above or through the territory of a State Party. Subsequent to the negotiations, a number of signatory States expressed the view that such transit was prohibited. At least one State has expressed the contrary view that there is a distinction between transfer and transit and that transit of cluster munitions that remain the property of a third party is not prohibited under the Convention.157

Paragraph 1(c)

Each State Party undertakes never under any circumstances to: [ … ] Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention

(p. 127) The prohibition on assisting, encouraging, or inducing prohibited activities

1.62  In accordance with Article 1, paragraph 1(c), each State Party undertakes never under any circumstance to assist, encourage, or induce anyone to engage in any activity prohibited to a State Party under this Convention. This language was drawn nearly verbatim from Article 1, paragraph 1(c) of the 1997 Anti-Personnel Mine Ban Convention. The only difference is that the phrase ‘in any way’ follows the word induce in that Convention, but is omitted from the Convention. This omission does not alter the scope of the prohibition. It is redundant language that could potentially create uncertainty about the scope of other provisions containing prohibitions not referring to the term ‘in any way’. The inclusion of Article 21—Relations with States not party to this Convention—and in particular its paragraphs 3 and 4, complicates the issue of what does and does not constitute assistance.158

1.63  A State Party is prohibited from providing assistance, encouragement and inducement ‘to anyone’.159 Stemming from the 1993 Convention on Chemical Weapons, this wording was chosen in order to emphasize the ban on assistance. The three concepts are not defined in the Convention. It is, however, clear from the wording of Article 1, paragraph 1(c) that assistance, encouragement, and inducement are prohibited with regard not only to use, but also development, production, acquisition, stockpiling, retention, and transfer.

1.64  Article 1, paragraph 1 of the Convention, together with its subparagraph (c) makes it clear that States Parties will have violated the Convention whether they have themselves used, developed etc., cluster munitions, or just assisted ‘anyone’ to do so. The prohibition against assisting, etc., thus applies only to States Parties, but both States not Party and other entities, as well as States Parties, are covered by the term ‘anyone’.

1.65  The concept of assistance in international law is not clearly defined. International rules on State responsibility might, however, provide some insight into the concept. Article 16 of the draft articles on Responsibility of States for Internationally Wrongful Acts states that:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

  1. (a)  that State does so with knowledge of the circumstances of the internationally wrongful act; and

  2. (p. 128) (b)  the act would be internationally wrongful if committed by that State.160

Only States that are party to the Convention are bound by the prohibitions laid down in the Convention. For a State not Party it would not be an ‘internationally wrongful act’ to, as a point of departure, use, produce, etc., cluster munitions. Therefore, the articles on Responsibility of States for Internationally Wrongful Acts would only be directly applicable to assistance to violations committed by States Parties. However, in determining the general content of ‘assistance’, the Articles may be helpful.161

1.66  The commentary by the International Law Commission suggests that Article 16 limits the scope of responsibility for assistance in three ways. ‘First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct’ of the assisted State or party internationally wrongful. ‘The second requirement is that the aid or assistance must be given with a view to facilitating the commission of the wrongful act, and must actually do so.’162 Finally, ‘it is a necessary requirement for the responsibility of an assisting State that the conduct in question, if attributable to the assisting State, would have constituted a breach of its own international obligations’.163

1.67  It seems to follow that the threshold for ‘assistance’ is relatively high. The first requirement is that the assisting State must have had knowledge about the act that constitutes (or, for States not Party, would have constituted) the violation of the Convention. The second requirement, however, according to the Commentary on Article 16, is that the assisting State must have had an intention of assisting someone in conducting such an unlawful act and must also have succeeded in contributing significantly to the commission of the act.

1.68  Assist is not defined in the Convention. To ‘assist’ in general parlance means ‘to help, aid: a. a person in doing something … b. a person in (p. 129) necessity; c. an action, process, or result. To second, support; to succour, relieve; to further, promote.’164 A commentary on the corresponding provision of the 1993 Chemical Weapons Convention states that assistance ‘can be given by material or intellectual support … but also financial resources, technological-scientific know-how or provision of specialised personnel, military instructions, etc. to anybody who is resolved to commit such prohibited activity or by support in the concealment of such activities’.165

1.69  The content of ‘encourage’ and ‘induce’ is even less clear than ‘assist’ from an international law point of view. To ‘encourage’ means generally to ‘embolden, make confident; to incite, induce, instigate; in weaker sense, to recommend, advise; to stimulate (persons or personal efforts) by assistance, reward, or expressions of favour or approval; also, in bad sense, to abet’.166 To ‘induce’ means generally to ‘To lead (a person), by persuasion or some influence or motive that acts upon the will, to … some action, condition, belief, etc.; to lead on, move, influence, prevail upon (any one) to do something. a. Of persons, personal action, influence, etc.’167

1.70  It would seem that the act of encouragement in Article 1, paragraph 1(c) would have to be undertaken by a State Party with a view to generating violations of the Convention. Otherwise, a variety of acts or omissions by a State Party may be perceived as encouragement to such violations without having been intended so. Likewise, inducement by a State Party would have to be undertaken with a view to generate violations of the Convention. Moreover, inducement would perhaps imply that the violation actually would have to happen, thus having a stricter scope than encouragement. A commentary on the corresponding provision in the 1993 Chemical Weapons Convention states that the prohibition on encouraging or inducing ‘means contributing to the emergence of resolve of anybody to commit a prohibited activity by instigating, promising assistance, etc’.168

(p. 130) 1.71  The criminal law concepts of ‘aiding and abetting’ also illuminate the meaning of assistance. To ‘abet’ means ‘to aid, encourage, or assist (someone), esp. in the commission of a crime.’169 Someone who is actually or constructively present at and aids and abets in the commission of a crime can be held liable as a principal. On the other hand, an accessory is ‘one who procures, counsels, commands, or abets the principal, and is absent when the latter commits the crime [accessory before the fact], or who, after the crime has been committed, receives, relieves, comforts, or assists the perpetrator [accessory after the fact]’.170 The Convention clearly prohibits States’ actions that fall either into (1) the category of a principle aider, encourager or inducer, or (2) an ‘accessory before the fact’ to prohibited activities. The Convention might also prohibit actions that could be characterized as ‘accessorial after the fact’ when such ‘assistance given by one State to another after the latter has committed an internationally wrongful act may amount to the adoption of that act by the former State’.171

Assistance, encouragement and inducement, and financial investment in firms producing cluster munitions

1.72  Does investment in firms producing cluster munitions constitute assistance, encouragement, or inducement? This issue was raised by the CMC during the Oslo Process but no proposals to this effect were submitted by any of the negotiating States in Dublin. Considering the very wide scope of Article 1, paragraph 1(c), covering not only assistance, but also encouragement and inducement, States Parties may interpret the Convention to this effect. At the Diplomatic Conference after negotiations had formally ended but prior to the closing ceremony, the CMC called for States to put on the diplomatic record that ‘the prohibition on assistance in Article 1, paragraph 1(c) includes a prohibition on investments (p. 131) in cluster munitions producers’.172 No State made such a statement, but several States subsequently responded to inquiries on this issue by Human Rights Watch:

[S]everal signatories to the Convention on Cluster Munitions have expressed their views on the issue of financial investment in acts prohibited by the convention. Mexico stated that ‘investment for the production of cluster munitions is also prohibited by the Convention.’ Lebanon stated that financing and investment in cluster munition production or transfer is prohibited. Bulgaria noted that while a ban on investment in cluster munition production is not explicit in the text of the convention, it would need to be ‘considered in light of the general prohibition on the development and production of cluster munitions.’ The Netherlands said that investment in production of cluster munitions runs counter to the spirit of, but is not banned by, the convention.173

Lebanon’s position is quite explicit, stating that investment in firms that produce cluster munitions, as well as investment in companies that provide financing to producers, is prohibited.174 Additionally, Laos has stated that it ‘is of the view that … the investment of [sic] cluster munitions should be banned’.175 Mexico has a similar understanding of the purview of the Convention.176

(p. 132) 1.73  Several States have addressed the issue of investment in national implementing legislation. New Zealand prohibits intentional or knowing investment in the development or production of cluster munitions.177 Luxembourg has explicitly prohibited such investments under national legislation.178 Ireland has prohibited the investment of public monies in companies producing prohibited munitions.179

1.74  In addition, State Party practice may be instructive. Following the signing of the Convention, the Norwegian Ministry of Finance followed the recommendation of its pension fund’s ethics council and withdrew its investments from Textron, a company manufacturing a cluster munition.180 This disinvestment decision followed on an earlier decision in 2005 to withdraw from investments in cluster munitions producers as well as the producers of key components of cluster munitions. In June 2005, the ethics council (now called the Council on Ethics for the Government Pension Fund—Global)181 recommended excluding producers of key components of cluster munitions from Norwegian government pension fund investment.182 (p. 133) Such decisions are made on the basis of established ethical guidelines that require the ‘[n]egative screening of companies from the investment universe that either themselves, or through entities they control produce weapons that through normal use may violate fundamental humanitarian principles’. These decisions on disinvestment from cluster munitions producers were thus not based on an interpretation of the scope of Article 1, paragraph 1(c) on assistance etc., as they were based on guidelines adopted four years prior to the adoption of the Convention on Cluster Munitions. The Textron exclusion, which came after the adoption of the Convention, was thus based on the scope of the definition of a cluster munition in Article 2, not on the scope of Article 1, paragraph 1(c).

1.75  The question of whether ‘assist, encourage or induce’ in Article 1, paragraph 1(c) of the 1997 Anti-Personnel Mine Ban Convention could be interpreted to include investments was, however, discussed in Norway by a Government appointed Advisory Council on International Law in 2001. Its mandate was to determine whether investments through the Petroleum Fund could constitute a breach of Norway’s international legal obligations. The Commission recommended to the Ministry of Finance that the Singaporean company (Singapore Technologies) be excluded from the Fund’s investment universe, ‘because any investment in such a company could constitute a violation of the complicity provision in the Mine (p. 134) Ban Convention (Article 1(1)(c))’.183 The following discussion of Article 1, paragraph 1(c) was contained in the recommendation:

The provision in article 1 (1) (c) says nothing about which forms of assistance etc. that are meant to be covered. The provision is widely formulated and must be presumed to be intended to cover all forms of assistance. [… .] The question is whether investments in Singapore Technologies Engineering (STE) can be perceived as assisting within the meaning of the convention. [… .] According to the rules of the Petroleum Fund, the fund cannot acquire more than 3% ownership of an individual company. [… .] It can, however, hardly be demanded that the investment shall be of a specific amount in order for it to be covered by the Convention. According to article 31 of the Vienna Convention on the Law of Treaties, a convention shall be interpreted in accordance with its wording and in compliance with the object and purpose of the convention. Neither the wording of the convention nor its purpose supports such a restrictive interpretation.

Furthermore, the prohibition against assistance is not limited to cover only new offers of shares, in order for the company to be supplied with ‘new’ capital. According to the Advisory Commission’s view, the point is that any investment of money in a company can be regarded as a form of support to the company even though the sums, relatively speaking, are low. The mere fact that the Petroleum Fund invests at all in a company, could, for example, contribute to other states and investors following suit. And even if an investment in a company was so modest that it probably would not reach the threshold of the prohibition on states to ‘assist’ in landmine production, this would probably nevertheless be covered by the alternatives ‘encourage or induce in any way’. To own shares in Singapore Technologies Engineering as long as the company (or its subsidiary) continues to produce anti-personnel mines, can, according to the view of the Advisory Commission, therefore be affected by the accessory provision in article 1 (1) (c).184

1.76  In 2007, before the Convention was negotiated, Belgium enacted a law prohibiting investment in submunitions.185 The law bans ‘the financing of companies under Belgian law or foreign law that produce, use, repair, distribute, import, export, store or transport anti-personnel mines and/or (p. 135) sub-munitions in the meaning of this law, and with regard to the spreading thereof ’. Financing is defined to include ‘all forms of financial support, namely credits, bank guarantees and the acquisition of financial instruments issued by that company’. The law also called upon the government to publish a list ‘i) of the companies that are shown to carry out an activity in contravention of the previous sentence; ii) of the companies that own a majority share in the companies covered by part i) and iii) the institutions for collective investment that hold financial instruments of companies covered by parts i) and ii)’.186 At the time of writing, the list of companies had not been published.187

1.77  The 1997 Anti-Personnel Mine Ban Convention contains similar language on assistance and its interpretation may provide insight in how States Parties to the Convention on Cluster Munitions may be expected to behave. Despite relevant practice, however, with respect to the corresponding provisions in the Convention on Cluster Munitions, there is not yet sufficient State practice to draw any firm conclusions on whether or not investment in production is covered by ‘assist, encourage or induce’. On the other hand, there seems to be sufficient State practice to assert that such an interpretation cannot be excluded.

1.78  While the Danish parliament determined that implementing legislation beyond simple ratification was not necessary,188 its defence committee has engaged Government ministries on implementing policies, including the question of investment.189 The Government assessed that ‘by acceding to the Convention it will be prohibited for the Danish government, including municipalities, under certain circumstances to invest in companies that are mainly producing or trading in cluster munitions’.190 The minority on the defence committee called upon the Government to clarify that position by (p. 136) providing investors with a list of cluster munitions manufacturers, as well as investigating the possibility of an ‘outright ban’ on investments.191

1.79  The Danish Ministry of Economy and Trade issued a report in January 2010 addressing three issues: (1) whether the Belgium Government had created a list of companies as a result of its ban on investments (the Belgium Government had not yet done so); (2) to what extent creating such a list would be acceptable under the WTO (concluding that creating such a list would be possible under existing WTO rules, because the WTO has never adopted a treaty on investment, and investment related provisions of existing WTO agreements—TRIMs, or Trade Related Investment Measures—do not apply to cluster munitions); and (3) any other problems associated with drawing up a list of companies as an investment ban (concluding that while European Union rules on free movement of capital should be considered, such a ban could be justified in terms of public policy). The report nonetheless goes on to suggest that active and socially responsible investment strategies by institutional investors such as pension funds may be more successful in curbing cluster munition production and that creating ban lists may be counterproductive. That is, by investing in companies in which cluster munition production is a small percentage of their overall business, investors may be able to persuade them to cease the munitions production.192

1.80  Equally at issue is the question of investment in firms that produce multi-use key components, i.e. components which are essential for the functioning of cluster munitions but which are also components in non-prohibited munitions. Investment in the production of such components may be acceptable if sufficient assurances are made by the manufacturer that the end use of their components will not be the production of cluster munitions. The (p. 137) commentary on the draft articles on State Responsibility provides helpful insight:

a State providing financial or other aid to another State should not be required to assume the risk that the latter will divert the aid for purposes which may be internationally unlawful. Thus, it is necessary to establish a close connection between the action of the assisting, directing or coercing State on the one hand and that of the State committing the internationally wrongful act on the other. Thus, … the former State should be aware of the circumstances of the internationally wrongful act in question, and establish a specific causal link between that act and the conduct of the assisting, directing or coercing State.193

Practice by States Parties prohibiting investment in cluster munition production will help to clarify the issue.

Assistance and Article 21194

1.81  There is a close link between Article 1, paragraph 1(c) on assistance and Article 21 on interoperability. Article 21 was negotiated and adopted due to concern that military cooperation with States not party to the Convention might constitute assistance in contravention of Article 1. Article 21 must be read in concert with Article 1, as it says ‘notwithstanding the provisions of Article 1 … and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party’.195 The impact of Article 21 on interpreting Article 1, paragraph 1(c) is discussed in detail in the commentary on Article 21.

Paragraph 2

Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft.

(p. 138) Preparatory discussions and negotiations

1.82  The proposal to prohibit explosive bomblets—munitions contained in dispensers fixed to aircraft—was first made by Ireland at the Wellington Conference. Ireland argued that as the area effects of these bomblets and the humanitarian consequences of their use are essentially the same as those of explosive submunitions they should also be prohibited, and stated that failure to do so could open a loophole in the Convention.196 Ireland feared that even though these weapons resemble submunitions, because explosive bomblets are not part of a larger (‘parent’) munition they would not fall within the definition of a cluster munition. It asserted that without an express prohibition of explosive bomblets a clear incentive would exist for weapons manufacturers to develop more advanced systems for dispersal from fixed dispensers of munitions that would escape the treaty’s purview. There was even concern that submunitions removed from cluster munitions prohibited by the Convention might in the future be diverted for use in specially adapted dispensers.

1.83  No provision addressing explosive bomblets was made in the Draft Cluster Munitions Convention that formed the basis of the negotiation of the Convention. At the Dublin Diplomatic Conference, Ireland formally proposed the amendment of the draft Convention text to provide that ‘dispensers, affixed to an aerial platform and designed to disperse or release explosive bomblets, are subject to the same provisions as cluster munitions’.197 An accompanying proposal for the amendment of Article 2 provided draft definitions of ‘explosive bomblet’ and ‘unexploded explosive bomblet’.198 While there was broad support at the Conference for the objective of the proposed prohibition, Canada, Spain, and the UK noted that they would have to consider the proposed definitions carefully.199 Informal consultations were then conducted (p. 139) between Ireland, as proposer, and these delegations. Following these consultations changes were made to the proposed definitions of ‘explosive bomblet’ and ‘unexploded bomblet’ and a new draft definition of a dispenser elaborated.200 For the purpose of clarity the focus of the proposal became the explosive bomblets themselves rather than the dispenser.

1.84  On 28 May 2008, the President of the Conference introduced his consolidated draft Convention Text201 which provided that paragraph 1 of Article 1 ‘applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft’.202 This text was included in the Convention as Article 1, paragraph 2.

Commentary

1.85  Explosive bomblets are weapons similar in effect to submunitions but do not fall within the definition of a cluster munition as they are dispersed or released from dispensers affixed to an aircraft, and not from a larger (‘parent’) munition. The legal effect of paragraph 2 of Article 1 is that each State Party undertakes never under any circumstances to:

  1. (a)  use explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft;

  2. (b)  develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, such explosive bomblets; or

  3. (c)  assist, encourage, or induce anyone to engage in any activity involving explosive bomblets and which is prohibited to a State Party under the Convention.

1.86  Paragraph 2 does not expressly provide that other provisions of the Convention applicable to cluster munitions also apply, mutatis mutandis (i.e. with the necessary changes having been made), to explosive bomblets. A number of other provisions of the Convention apply nevertheless. Article 4 requires that clearance and destruction operations be carried out in respect of ‘cluster munition contaminated areas’, which are areas containing ‘cluster munition remnants’.203 The latter are defined as including ‘unexploded (p. 140) bomblets’.204 Likewise, Article 6, paragraph 4, obliges States Parties in a position to do so to provide assistance in the clearance and destruction of cluster munition remnants generally. Article 9 requires States Parties to take all appropriate measures to implement the Convention, including the imposition of penal sanctions to prevent and suppress any prohibited activity, and this applies to activities involving explosive bomblets just as it does to cluster munitions.205 With respect to Article 5, national overseas development aid programmes for the assistance of victims of munitions do not generally distinguish between types of munitions and the provision of assistance is not generally dependent on the nature of the munition involved. Victims of explosive bomblets are therefore just as likely to benefit from such programmes as cluster munition victims, notwithstanding the absence of an express obligation under Article 5 to assist the former.

1.87  The Convention does not expressly require the destruction of explosive bomblet stocks under Article 3, nor does it expressly require annual reports under Article 7 in respect of stocks of explosive bomblets and of progress towards their destruction. Similarly, the limited exceptions for retention found in Article 3, paragraph 6 and for transfer found in Article 3, paragraph 7 do not expressly apply to explosive bomblets. These omissions are to a large extent an oversight, explained by the fact that the Diplomatic Conference was able to agree only at the very end of its work that explosive bomblets should be addressed by the Convention at all.

1.88  As noted above,206 the provisions of the Convention concerning explosive bomblets are intended to pre-empt a potentially very large loophole that might have been exploited in the future had these weapons not also been prohibited. However, insofar as any existing stocks of explosive bomblets are concerned, as the Convention prohibits their retention, stockpile and transfer, a State Party would appear to be required to destroy whatever stocks it possesses immediately prior to entry into force of the Convention in order to avoid finding itself in violation of these obligations. This could be the effect of a literal reading of Article 3, which does not expressly apply to explosive bomblets.207 However, the circumstances of the conclusion of the (p. 141) Convention suggest that this is an oversight. The better interpretation of the Convention would be that as stockpiling of explosive bomblets explicitly is banned, an obligation to destroy them implicitly follows. It seems likely that this will become a topic under discussions on stockpile destruction at Meetings of States Parties and other Convention-related meetings and conferences.208

Paragraph 3

This Convention does not apply to mines.

Preparatory discussions and negotiations

1.89  Based on discussions at the Lima and Vienna conferences, the Draft Cluster Munitions Convention introduced language that specifically excluded landmines.209 According to the commentary accompanying the draft, the paragraph:

specifies that the present Convention does not regulate mines as defined in Article 2 (1) of Amended Protocol II to the CCW, reflecting the discussion at the Lima and (p. 142) Vienna Conferences. This means that neither anti-vehicle mines210 nor anti-personnel mines fall under the scope of application of this Convention.211

1.90  During the Diplomatic Conference, the drafters simplified the language to state that ‘this Convention does apply to mines’,212 adding a definition of ‘mine’ that includes all landmines, whether anti-personnel or anti-vehicle.213 The definition of the term ‘mine’ was taken verbatim from the 1997 Anti-Personnel Mine Ban Convention.214 The simplification of language stemmed from discussions led by Ambassador Christine Schraner Burgener of Switzerland, who served as a Friend of the President at the Diplomatic Conference.215 Although the focus of her consultations was the issue of interoperability and issues related to the scope of application of the Convention, she introduced a significant redrafting of the part of Article 1 related to the exclusion of mines when reporting to the Committee of the Whole. No State formally proposed such a re-writing, but it improved the clarity of the text.216 In introducing the modified language, Ambassador O’Ceallaigh, the President of the Conference, said that ‘Paragraph 3 had been amended in response to an objection to the reference to mines being framed by the Convention on Certain Conventional Weapons.’217 He further noted that the paragraph ‘now refers to mines’ and that the definition of a mine ‘is identical to that of the Anti-Personnel Mine Ban Convention’.218

(p. 143) Commentary

1.91  By virtue of paragraph 3 of Article 1, all landmines, whether antipersonnel or anti-vehicle, are excluded from the purview of the Convention. Thus, a munition that contains landmines as submunitions is regulated by customary international law as well as other instruments of international law, notably, where applicable, the 1997 Anti-Personnel Mine Ban Convention, 1980 Protocol II on mines, booby-traps and other devices, and 1996 Amended Protocol II.

Footnotes:

1  The author wishes to thank Arianna Halper for invaluable research assistance.

2  Virgil Wiebe wrote the commentary on the negotiation of Article 1 and paragraph 1; Declan Smyth wrote the commentary on Article 1, paragraph 2, and Stuart Casey-Maslen wrote the commentary on Article 1, paragraph 3, based on a draft by Christophe Lanord.

3  See, infra, the commentary on Article 1, paragraph 3, and on Article 2.

4  ‘Declaration, Oslo Conference on Cluster Munitions, 22–23 February 2007’, contained in Annex 2 to this Commentary.

5  Norwegian Ministry of Foreign Affairs, ‘46 Countries endorsed Oslo-declaration’, <http://www.regjeringen.no/en/dep/ud/selected-topics/Humanitarian-efforts/46-countries-endorsed-Oslo-declaration.html?id=455360>; and Norwegian Ministry of Foreign Affairs, ‘Cluster munitions to be banned by 2008’, Press release No. 21/07, 23 February 2007, <http://www.regjeringen.no/en/dep/ud/press/News/2007/Cluster-munitions-to-be-banned-by-2008.html?id=454942> (both visited 20 May 2009).

6  Cf., e.g., Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention (The Netherlands: Martinus Nijhoff Publishers, 1994), pp. 12–13; and Maslen, S., Commentaries on Arms Control Treaties, Volume I: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, Second Edition, Oxford Commentaries on International Law (Oxford: Oxford University Press, 2005), §§1.4–1.8. Hereinafter, this work is referred to as the Commentary on the 1997 Anti-Personnel Mine Ban Convention.

7  See, supra, §0.83 on the opening of the preamble: ‘The States Parties to this Convention’.

8  Paragraph 1(b) and (c). Cf., infra, §1.59.

9  Article 9; see, infra, the commentary in §§9.46 et seq.

10  See, supra, the commentary on the twelfth preambular paragraph.

11  An ‘explosive bomblet’ is defined in Article 2, paragraph 13, as ‘a conventional munition, weighing less than 20 kilograms, which is not self-propelled and which, in order to perform its task, is dispersed or released by a dispenser, and is designed to function by detonating an explosive charge prior to, on or after impact’. A ‘dispenser’ is defined by Article 2, paragraph 15, as ‘a container that is designed to disperse or release explosive bomblets and which is affixed to an aircraft at the time of dispersal or release’.

12  It should be noted that prior to the adoption of the Convention colloquially the terms ‘submunition’ and ‘bomblet’ were used interchangeably, particularly in military circles. The Convention introduces a clear legal distinction between ‘explosive submunitions’ and ‘explosive bomblets’.

13  See further, infra, §§1.82–1.88.

15  Article 2 defines a ‘mine’ as ‘a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle’. Article 2, paragraph 12.

16  See, infra, the commentary on Article 1, paragraph 3 (§§1.89–1.91); see also, supra, the commentary on the thirteenth preambular paragraph.

17  The background discussions and negotiating history of each paragraph of Article 1 are then presented and immediately followed by commentary on each paragraph.

18  The definition of a cluster munition is addressed by Article 2.

19  As indicated infra in §§1.14–1.17, proponents of transition periods were unsuccessful.

20  Interoperability can be explained in general terms as ‘the ability of forces or agents of various States or international organisations to operate jointly in the performance of a task, mission, or operation’. See, infra, the commentary on Article 21, esp. in §21.2.

21  Interoperability is covered by Article 21, a provision dedicated to relations with States not party to this Convention.

22  These issues are addressed infra in §1.82 and in the commentary on Article 3.

23  For a detailed history of the formulation of the Oslo Declaration, see Borrie, J., Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won (New York and Geneva: UN and UN Institute for Disarmament Research, 2009), pp. 121–157. See esp. p. 154 for the breadth of early interpretations of the phrase by different States.

24  The Oslo Declaration might be read to imply that certain cluster munitions might cause acceptable harm to civilians, presumably those which either through their use or design accord with the general principles of international humanitarian law. To those arguing that all cluster munitions caused unacceptable harm (particularly those that had been used in combat up to that date), the phrase could be interpreted as calling for a complete ban. The ambiguity created space for negotiations amongst a broader range of players, from smaller States without any such munitions in their arsenals to large producers and users.

25  Borrie, J., Unacceptable Harm, op. cit., p. 146.

26  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.

27  Article 1, Lima Discussion Text, contained in Annex 3 to this Commentary.

28  Article 2, Lima Discussion Text. The draft article reads as follows:

The following weapons systems shall be considered prohibited cluster munitions under this treaty:

Air carried dispersal systems or air delivered, surface or sub-surface launched containers, that are designed to disperse explosive sub-munitions intended to detonate following separation from the container or dispenser, unless they are designed to, manually or automatically, aim, detect and engage point targets, or are meant for smoke or flaring, or unless their use is regulated or prohibited under other treaties.

29  The ICRC, e.g., had proposed to ban ‘inaccurate and unreliable’ cluster munitions. The definition in the Lima text sought to encompass this notion without using it as an actual definition of cluster munitions. See, e.g., Borrie, J., Unacceptable Harm, op. cit., pp. 168–169.

30  Harrison, K., ‘Report from the Lima Conference on Cluster Munitions, 23–25 May 2007’, Women’s International League for Peace and Freedom. See also Handicap International, ‘In Brief: Update From Lima Conference, May 24 2007’, available at <http://www.handicap-international.us/our-fight-against-landmines-and-cluster-bombs/in-brief>; and Tice, S., ‘Cluster Munitions: The Ban Process’, Journal of Mine Action, Summer 2008, <http://maic.jmu.edu/JOURNAL/12.1/sp/tice/tice.htm> (both accessed 1 February 2010). e.g., France took the position that some cluster munitions would be prohibited and others authorized. Permanent Mission of France to the Conference on Disarmament, ‘Intervention de la délégation française concernant la définition des armes à sous munitions, Conférence de Lima, Lima, 24 mai 2007’, <http://www.delegfrancecd-geneve.org/declarations/ssdos_decl_sous_munitions/definition_lima240507.htm>. See also Permanent Mission of France to the Conference on Disarmament, ‘French non-paper on Cluster munitions’, 19 April 2007, <http://www.delegfrance-cd-geneve.org/declarations/ssdos_decl_sous_munitions/non-pap-ENG.htm> (both visited 1 February 2010), proposing characteristics of ‘prohibited cluster munitions’ and ‘authorised cluster munitions’. It is further reported that: ‘States in favor of … exemptions [for large categories of submunitions] included Australia, Denmark, Finland, France, Germany, Japan, Poland, and the United Kingdom.’ Goose, S. D., ‘Cluster Munitions: Ban Them’, Arms Control Today, January/February 2008, <http://www.armscontrol.org/act/2008_01-02/goose> (accessed 21 March 2010).

31  Vienna Discussion Text of 14 November 2007, included in Annex 4 to this Commentary.

32  See, supra, §§0.43–0.46 for a summary of the Vienna Conference.

33  The text was as follows:

Article 1 —  General obligations and scope of application

Each State Party undertakes never under any circumstances to:

  1. a)  Use cluster munitions.

  2. b)  Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions.

  3. c)  Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Vienna Discussion Text.

34  Article 1, paragraph 1, Draft Cluster Munitions Convention, contained in Annex 5 to this Commentary.

35  Article 1, paragraph 1. It has since been argued that this shift to a ‘precautionary approach’ potentially represented a significant shift in the negotiation of international arms control agreements, i.e. that the burden of proof shifted from States having to argue what types of munitions should be ruled out of bounds, to having to argue what weapons should be allowed. Rappert, B., and Moyes, R., ‘The Prohibition of Cluster Munitions: Setting International Precedents for Defining Inhumanity,’ Nonproliferation Review, Vol. 16, No. 2, July 2009, pp. 237, 238, and 245–246. At p. 247, Rappert and Moyes argue that:

[F]or small states with minimal diplomatic resources and technical expertise, requiring exclusions to be ‘argued in’ enabled them to actively participate in a critical area of the process. They did not need to substantiate what should be prohibited. Throughout the Oslo Process, a variety of states—including Indonesia, Botswana, Cambodia, Fiji, Guatemala, Zambia, Ghana, Jamaica, Lebanon, and the Cook Islands—drew on considerations such as the history of humanitarian problems with cluster munitions to argue that specific proposed exemptions or exclusions based on factors such as failure rates, ‘direct fire’ capacity, and limits on the number of submunitions had not been sufficiently demonstrated.

36  Borrie, J., ‘How the Cluster Munition Ban was Won: Oslo Treaty Negotiations Conclude in Dublin’, Disarmament Diplomacy, Summer 2008. According to Borrie:

France, Germany, Japan, the Netherlands and the UK [were] especially active. This group included countries like Finland, Japan and Slovakia, which appeared deeply attached to retaining many, if not all, of their cluster munition arsenals including the types of cluster munition demonstrated to be particularly problematic. It also included countries such as Australia and Canada … The first major concern was that an eventual ban on cluster munitions causing unacceptable harm would encapsulate weapons they possessed (or would like to possess) which have submunitions that use sensor-fusing technologies to detect and engage individual targets.

See also Borrie, J., Unacceptable Harm, op. cit., pp. 206–208, and 266–275.

37  Rappert, B., and Moyes, R., ‘The Prohibition of Cluster Munitions: Setting International Precedents for Defining Inhumanity’, op. cit., p. 245.

38  Article 2, paragraph 2, Vienna Discussion Text. The commentary attached to the Vienna Discussion Text described the process as follows:

There were other proposals to exclude sub-munitions that aim, detect and engage point targets, and some States proposed to exclude cluster munitions which contain fewer than a specified number of explosive sub-munitions, sub-munitions with self destruct or self deactivation or other failsafe mechanisms, explosive sub-munitions with a tested failure rate of less than a specified percentage, and that the age of the sub-munition should be relevant. Some other States opposed some or all of these elements, with some proposing a comprehensive prohibition on all cluster munitions.

Article 2: Definitions, Vienna Discussion Text Explanatory Annex, 14 November 2007.

39  See Borrie, J., Unacceptable Harm, op. cit., pp. 187–188.

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

41  Draft Cluster Munitions Convention, 21 January 2008.

42  It became a conference document at the Diplomatic Conference. ‘Draft Convention on Cluster Munitions’, Diplomatic Conference doc. CCM/3, 19 May 2008.

43  Compendium of Proposals Submitted by Delegations during the Wellington Conference (hereinafter, the ‘Wellington Compendium’), contained in Annex 6 to this Commentary.

44  See, e.g., French and Swiss proposals calling for prohibitions on ‘cluster munitions as defined in article 2’, Wellington Compendium, Addendum 1, p. 6; and UK proposal calling for prohibitions on ‘submunitions as defined in Article 2b’. Ibid., pp. 6–7. The Wellington Compendium is included in Annex 6 to this Commentary.

45  In the Wellington Compendium (at p. 8), Australia, Canada, Denmark, Finland, France, Germany, Italy, Japan, Netherlands, and the UK included a draft definition, prefaced by the following statement:

The following text was developed in response to discussions on cluster munition definitions and captures significant issues requiring further consideration in order to develop an agreed definition of ‘cluster munitions that cause unacceptable harm to civilians’. This text is proposed for inclusion in the Compendium to be attached to, and which is understood to have equal status with, the Draft Convention.

46  ‘Proposal by France for the amendment of Article 1’, Diplomatic Conference doc. CCM 11, 19 May 2008, calling for prohibitions on ‘cluster munitions as defined in Article 2’ (original emphasis); ‘Proposal by Switzerland for the amendment of Article 1’, Diplomatic Conference doc. CCM 12, 19 May 2008; and ‘Proposal by the United Kingdom for the amendment of Article 1’, Diplomatic Conference doc. CCM 13, 19 May 2009, calling for prohibitions on ‘sub-munitions as defined in Article 2b’ (original emphasis).

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

48  See, infra, the commentary on Article 2, paragraph 2.

49  See e.g. UK statement made at Oslo in February 2007:

[W]e agree with others that the conclusion of a legally binding instrument is our aspiration and that in common with other such agreements a transition period will be required in the final instrument itself.

Final Statement by Ambassador John Duncan, UK Ambassador for Multilateral Arms Control and Disarmament, Oslo Conference on Cluster Munitions, 22–23 February 2007, <http://ukunarmscontrol.fco.gov.uk/resources/en/pdf/pdf1/postgv_statementatosloconference> (accessed 8 March 2010).

50  In a draft protocol first advocated at a meeting of experts convened by the ICRC in April 2007 at Montreux (and later submitted as a working paper at the CCW in May 2007), Germany proposed a transition period allowing for use:

It is prohibited in all circumstances to use any cluster munitions as defined in Article 2 [ … ] years after this Protocol enters into force for the respective High Contracting Party. … Pending the entry into force of the prohibition under the first sentence of this paragraph, the respective High Contracting Party undertakes to use cluster munitions only as a last resort if no other type of munition is available to reach the desired military advantage.

UN doc. CCW/GGE/2007/WP.1 1 May 2007, p. 7. At the Montreux meeting, transition periods of up 10 years were discussed. ICRC, Humanitarian, Military, Technical And Legal Challenges Of Cluster Munitions, Expert Meeting, Montreux, Switzerland, 18 to 20 April 2007, ICRC, Geneva, 2007, pp. 77–78.

51  Statement by Ambassador John Duncan, UK Ambassador for Multilateral Arms Control and Disarmament, Wellington Conference, 18 February 2008, paragraph 14. The UK delegation included such a proposal in the Wellington Compendium:

For the purposes of this Convention, Article 1 does not come in to force until [x] years after entry in to [sic] force of the Convention.

Wellington Compendium, p. 7. The UK renewed this proposal at the Diplomatic Conference; see fn. 58 infra.

52  For details of the Conference, see e.g. the report by the CMC, available at: <http://www.stopclustermunitions.org/wp/wp-content/uploads/2008/05/report-on-livingston-conference-31-march-1-april.pdf> (accessed 8 March 2010).

53  Livingstone Declaration on Cluster Munitions, 1 April 2008, para. 14, available at: <http://www.issafrica.org/uploads/LIVINGSTONEDECL.PDF> (accessed 8 March 2010).

54  CMC, ‘(Revised) Observations by the Cluster Munition Coalition on the Draft Cluster Munitions Convention, dated 21 January 2008’, p. 13 (Annex A).

55  See ‘Summary Record of Opening Ceremony and First Session of the Plenary’, Diplomatic Conference doc. CCM/SR/1, 18 June 2008, pp. 4–5.

56  Argentina, Guatemala, Indonesia, Malta, and Venezuela.

57  ‘Summary Record of First Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/1, 18 June 2008, pp. 1–3.

58  Japan suggested two alternatives:

Any State Party may declare at the time of the deposit of its instruments of ratification, acceptance, approval or accession that, while implementing paragraph 1 of this Article, it will continue to use, only when strictly necessary, cluster munitions for a limited period of time not exceeding [x] years from the entry into force of this Convention for that State Party …

or

In the event that a State Party determines that it cannot immediately comply with paragraph 1 (a) of this Article, it may declare at the time of the deposit of its instruments of ratification, acceptance, approval or accession that it will defer compliance with paragraph 1 (a) of this Article for a period not to exceed [X] years from the entry into force of this Convention for that State Party. During this period, a State Party may use cluster munitions only when strictly necessary.

Proposal by Japan for the amendment of Article 1, Diplomatic Conference doc. CCM/10, 19 May 2008. The UK proposed more direct and sweeping language, the same it had put forward at the Wellington Conference:

For the purposes of this Convention, Article 1 does not come in to force until [x] years after entry in to force of the Convention.

‘Proposal by the United Kingdom for the amendment of Article 1’, Diplomatic Conference doc. CCM/14, 19 May 2008.

59  ‘Summary Record of Eighth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/8, 18 June 2008, pp. 5–7; Summary Record of Eleventh Session of the Committee of the Whole’; Diplomatic Conference doc. CCM/CW/SR/11, 18 June 2008, p. 11.

60  ‘Summary Record of Fifteenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/15, 18 June 2008, p. 2.

61  The US, a major possessor, producer, user, and exporter of cluster munitions, had made it clear that it would not be participating in the Oslo Process. US allies had been especially alerted to the potential difficulties with military cooperation with States not party and the effect this may have on military operations in the future.

62  See the commentary on the negotiating history of Article 21 for details of these discussions in §§21.14 et seq.

64  ‘Summary Record of Fourth Session of the Plenary and Closing Ceremony of the Conference’, Diplomatic Conference doc. CCM/SR/4, 18 June 2008, pp. 2–3.

65  Ibid., pp. 3–7.

66  Statement by the Government of Iceland upon the adoption of the Convention on Cluster Munitions, Dublin, 30 May 2008, available at: <http://www.clustermunitionsdublin.ie/pdf/IcelandStatementGE.pdf> (accessed 8 March 2010). Iceland further stated that:

While the article sets out an appeal to States which are not parties to join the regime of the Convention, it recognizes the need for continuing cooperation in what is hoped will be a short transition period. This intention is captured clearly in paragraph 3 of the Article which should not be read as entitling States Parties to avoid their specific obligations under the Convention for this limited purpose. The decision to reinforce this position by listing some examples in paragraph 4 cannot therefore be interpreted to allow departures in other respects.

67  See, infra, §§1.62 et seq. and §§21.13 et seq.

68  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. Article 1, paragraph 1 reads as follows:

Each State Party undertakes never under any circumstances:

  1. a.  To use anti-personnel mines;

  2. b.  To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines;

  3. c.  To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

69  The formal title of this treaty is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. Article 1, paragraph 1 reads as follows:

Each State Party to this Convention undertakes never under any circumstances:

  1. (a)  To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

  2. (b)  To use chemical weapons;

  3. (c)  To engage in any military preparations to use chemical weapons;

  4. (d)  To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

70  See Annex 3 to this Commentary.

71  Article 1 of the Lima Discussion Text read as follows:

Article 1—  General obligations and scope of application

Because of their unacceptable harm to civilians and civilian objects during and after use, each State Party undertakes never under any circumstances:

  1. a)  To use cluster munitions as defined in Article 2.

  2. b)  To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions as defined in Article 2.

  3. c)  To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this convention.

72  Cluster Munition Coalition (CMC), ‘Report on the Lima Conference on Cluster Munitions and Next Steps’, undated, p. 1.

73  See, supra, §§1.10–1.12, for a review of these changes.

74  See, infra, §1.62 for a brief discussion of the reasons for the deletion of the phrase.

75  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.

76  ‘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’, referencing Article 1, paragraph 3, of 2003 Protocol V. ‘Proposal by Philippines for additional text to Article 1’, Diplomatic Conference doc. CCM/56, 19 May 2008.

77  Drawing on text in Article 4, paragraph 1 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the Philippines proposed addressing NSAGs in the Convention on Cluster Munitions in the following way:

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.

‘Proposal by Philippines for additional text to Article 1’, Diplomatic Conference doc. CCM/56, 19 May 2008.

As noted supra in §1.3, the issue of NSAGs was ultimately addressed in the twelfth preambular paragraph of the Convention.

78  Philippine Campaign to Ban Landmines Task Force on Cluster Munitions, ‘Proposal for Coverage of Non-State Armed Groups under Art. 1 on General Obligations and Scope of Application’, 12 May 2008.

79  Draft Cluster Munitions Convention Explanatory Notes, Wellington, 21 January 2008.

80  Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 12. It goes on to state that:

The wording excludes any justification for such activity, whether for self-defence in the case of attack with those weapons or in other exceptional circumstances. The wording covers all intents and purposes for such activities, independent of the character of the armed conflict, whether an international or non-international one, whether the parties involved had recognized themselves or whether or not it is a civil strive [sic]. Ibid., p. 13, footnotes omitted.

81  Additionally, nothing in Article 21(3) on Relations with States not party to this Convention ‘shall authorise a State Party: (c) To itself use cluster munitions, or (d) To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.’ Article 21, paragraph 4.

82  Article 3, paragraph 8 requires States Parties retaining, acquiring, or transferring cluster munitions or explosive submunitions in accordance with paragraphs 6 and 7 of the article to submit a detailed report ‘on the planned and actual use of these cluster munitions’ (emphasis added).

83  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

As Maslen recognized with respect to landmines:

This suggests that the ordinary meaning of the term is not necessarily a single act, as is the emplacement of an anti-personnel mine, but can be something that takes place over a period of time.

Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, §1.19.

84  See, infra, the commentary on Article 2, paragraph 4 in §§2.167 et seq.

85  Among definitions of ‘fire’ is ‘[t]o detonate the main explosive charge by means of a firing system’. A firing system is a ‘[s]ystem designed to actuate an explosive, electric or other train, in order to cause the explosion of a charge.’ United Kingdom Glossary of Joint and Multinational Terms and Definitions, Joint Doctrine Publication 0-01.1, Seventh Edition, June 2006, pp. F-3, F-5, <http://www.mod.uk/NR/rdonlyres/E8750509-B7D1-4BC6-8AEE-8A4868E2DA21/0/JDP0011Ed7.pdf> (accessed 8 March 2010). ‘Firing’ often refers to the use of ground-to-ground missiles. See, e.g., Scheffran, J., ‘Missiles in conflict: the issue of missiles in all its complexity’, Disarmament Forum, Vol. 1, 2007, p. 11 (‘Hezbollah militia fired almost 4,000 missiles from Lebanese territory, causing serious damage and 43 deaths in the densely populated Galilee region in northern Israel.’)

86  ‘Dropping’ refers to the use of air-to-ground cluster munitions delivered by aircraft. ‘Regardless of its type or purpose, dropped ordnance is dispensed from an aircraft.’ US Army, Marine Corps, Navy, Air Force, UXO: Multi-Service Tactics, Techniques, and Procedures for Unexploded Explosive Ordnance Operations, FM 3-100.38, MCRP 3-17.2B, NTTP 3-02.4.1, AFTTP(I) 3-2.12, August 2005, p. A-1. See also UK Glossary of Joint and Multinational Terms, op. cit., p. A-15 (‘airdrop: Delivery of personnel or cargo from aircraft in flight.’).

87  The ‘launching’ of cluster munitions can take place from air to ground or from ground to ground. For instance a launcher is defined as a ‘structural device designed to support and hold a missile in position for firing.’ UK Glossary of Joint and Multinational Terms, op. cit., p. L-4. The Hague Declaration of 1899 referred to ‘the launching of projectiles and explosives from balloons.’ Declaration (IV, 1), to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature, The Hague, 29 July 1899. In describing a test of a Joint Standoff Weapon loaded with submunitions from the CBU-97/CBU-105 Sensor Fuzed Weapon aboard an F-16 aircraft, a US defence industry trade publication reported that the ‘weapon was launched 10 miles from its target and managed to hit seven of eight ground targets in its initial test.’ ‘US — Third JSOW Variant Tested Oct 18,’ Aviation Week & Space Technology, 18 October 1999. Further, the term ‘Multiple Launch Rocket System’ covers a multitude of ground-based weapons systems that can fire rockets with loaded with submunitions. See, e.g., MLRS Multiple Launch Rocket System, US, <http://www.army-technology.com/projects/mlrs/> (visited 14 August 2009); Andrei Chang, ‘Sudan obtains advanced Chinese MLRS,’ UPI Asia, 10 July 2009, <http://www.upiasia.com/Security/2009/07/09/sudan_obtains_advanced_chinese_mlrs/1455/>; and Weishi (WS-1/-2) Multiple Launch Rocket Systems, <http://www.sinodefence.com/army/mrl/weishi.asp> (site updated 31 December 2008).

88  ‘Projection’ ordinarily refers to ordnance dispersed by ground-based munitions systems like rockets or missiles. ‘Projected ordnance can be projectiles, mortars, rockets, rifle grenades, or guided missiles.’ US Army, Marine Corps, Navy, Air Force, UXO: Multi-Service Tactics, op. cit., p. A-2. It can also cover firing from artillery cannons. See, e.g., MSTA-S 2S19 152mm Self Propelled Howitzer, Russia, <http://www.army-technology.com/projects/mstas/> (visited 14 August 2009).

89  ‘Deliver’ has been used to describe the use of cluster munitions from aircraft:

JSOW [Joint Standoff Weapon] is an accurate, adverse-weather, glide munition, which was successfully employed in Kosovo and Iraq in 1999. The [US] Air Force will use it to deliver cluster munitions that seek and destroy armored and soft targets at ranges up to 40 nautical miles.

Prepared Statement of General Michael E. Ryan Chief of Staff Department of the Air Force before the [US] Senate Armed Services Committee, March 1, 2000. Deliver can also mean ‘employ.’

90  The verbs ‘released’ and ‘expended’ have been used to describe air launched cluster munition use. The US military has used the term ‘air-dispensed submunitions’ to refer to submunitions released from larger canisters. See, e.g., US Army, Marine Corps, Navy, Combat Air Forces, UXO: Multiservice Procedures for Operations in an Unexploded Ordnance Environment, FM 100-38, MCRP 4-5.1, NWP TP 3-02.4.1, ACCPAM 10-752, PACAFPAM 10-752, USAFEPAM 10-752, July 1996, pp. C-2, E-1, <http://www.dtic.mil/doctrine/jel/service_pubs/uxo.pdf>. One definition of release is: ‘In air armament, the intentional separation of a free-fall aircraft store, from its suspension equipment, for purposes of employment of the store.’ UK Glossary of Joint and Multinational Terms, op. cit., p. R-10.

91  Cf., e.g., Venezuela’s statement in the context of the 1997 Anti-Personnel Mine Ban Convention that it needed to maintain minefields to protect its bases against intrusion by non-State armed groups from neighbouring Colombia. See e.g. ICBL, Landmine Monitor Report 2009, Toward a Mine-Free World (Ottawa: Mines Action Canada, 2009), Venezuela country report, section on use, <http://lm.icbl.org/index.php/publications/display?act=submit&pqs_year=2009&pqs_type=lm&pqs_report=venezuela> (accessed 8 March 2010).

92  An obstacle is defined in US military doctrine as ‘[a]ny obstruction designed or employed to disrupt, fix, turn, or block the movement of an opposing force, and to impose additional losses in personnel, time, and equipment on the opposing force. Obstacles can be natural, manmade, or a combination of both.’ UXO: Multi-Service Tactics, op. cit., pp. 6–7. ‘Once emplaced, minefields and unexploded ordnance hazards are lethal and unable to distinguish between friend and foe. … UXO hazard areas are treated as obstacles.’ US Joint Chiefs of Staff, Joint Doctrine for Barriers, Obstacles, and Mine Warfare, Joint Pub, 3-15, 24 February 1999, pp. III-6 to III-7. For a discussion of the differences between minefields and areas contaminated with submunitions, see, e.g., Borrie, J., Unacceptable Harm, op. cit., p. 113.

93  CMC, ‘(Revised) Observations by the Cluster Munition Coalition on the Draft Cluster Munitions Convention, dated 21 January 2008’, p. 2.

94  Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §1.32, fn. 65.

95  Maslen, S. Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., esp. §§1.32 and 1.42. The Danish parliamentary resolution calling for ratification of the Convention on Cluster Munitions contains a contrary interpretation, commenting on Article 1 as follows:

The ban on cluster munitions involves banning the use, development, manufacture, acquisition, stockpiling, retention, and indirect and direct transfer of cluster munitions to others.

B 60 Forslag til folketingsbeslutning om Danmarks godkendelse af konventionen om klyngeammunition undertegnet den 4. december 2008 i Oslo, §3.3, 19 November 2009, <http://pp.ft.dk/samling/20091/beslutningsforslag/B60/som_fremsat.htm> (accessed 15 March 2010).

96  ‘[I]ndirectly adverb’, in Lindberg, C. A. (ed.), The Oxford American Thesaurus of Current English, OUP, 1999; and Oxford Reference Online, OUP, 4 July 2009, <http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t22.e7178>.

97  Additionally, nothing in Article 21, paragraph 3 on Relations with States not party to this Convention ‘shall authorise a State Party: (a) To develop … cluster munitions.’ Article 21, paragraph 4, Convention on Cluster Munitions.

98  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

99  Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 13.

100  Ibid.

101  Excerpts from Proposition No. 7 (2008–2009) to the Odelsting on a Bill relating to the implementation of the Convention on Cluster Munitions in Norwegian law, para. 4.2.2 (17 October 2008), <http://www.stopclustermunitions.org/wp/wp-content/uploads/2009/02/norwegian-national-legislation-on-cluster-munitions.pdf>. For the original Norwegian, see Ot.prp. nr. 7 (2008–2009), available at <http://www.regjeringen.no/pages/2118118/PDFS/OTP200820090007000DDDPDFS.pdf> (both accessed 8 March 2010).

102  Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §1.32.

103  A non-exhaustive list of components of cluster munitions is provided in the commentary, infra, on the prohibition on production (§1.43).

104  See also, infra, §§1.72 et seq. on investment as assistance.

105  Excerpts from Proposition No. 7 (2008–2009) to the Odelsting on a Bill relating to the implementation of the Convention on Cluster Munitions in Norwegian law, op. cit, para. 4.2.2.

106  Additionally, nothing in Article 21(3) on Relations with States not party to this Convention ‘shall authorise a State Party: (a) To … produce … cluster munitions.’ Article 21, paragraph 4, Convention on Cluster Munitions.

107  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

108  Loi du 4 juin 2009 portant approbation de la Convention sur les armes à sous-munitions, ouverte à la signature à Oslo le 3 décembre 2008, Doc. parl. 5981; sess. ord. 2008–2009, Article 2, p. 2038.

109  Larousse online dictionary, <http://www.larousse.fr/dictionnaires/francais-anglais/fabriquer> (visited 8 March 2010).

110  Maslen, S., Commentary on the 1997 Anti-Personnel Mine Ban Convention, op. cit., §1.34.

111  Loi du 4 juin 2009 portant approbation de la Convention sur les armes à sous-munitions, ouverte à la signature à Oslo le 3 décembre 2008, Doc. parl. 5981; sess. ord. 2008–2009, Article 2, p. 2038.

112  Article 2 of the law apparently bans the production of explosive bomblets implicitly, by referencing Articles 1 and 2 of the Convention.

113  Excerpts from Proposition No. 7 (2008–2009) to the Odelsting on a Bill relating to the implementation of the Convention on Cluster Munitions in Norwegian law, op. cit.

114  Human Rights Watch and Landmine Action, Banning Cluster Munitions, Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), p. 18.

115  Ibid., pp. 18, 225 (footnotes omitted).

116  Ibid., pp. 18, 179, 215 (footnotes omitted).

117  Ibid., pp. 128, 248 (footnotes omitted).

118  Ibid., p. 218 (footnotes omitted).

119  Ibid., p. 260.

120  See, infra, §§1.72 et seq., for further discussion on investment as assistance to prohibited acts.

121  Additionally, nothing in Article 21(3) on Relations with States not party to this Convention ‘shall authorise a State Party: (a) To … otherwise acquire … cluster munitions.’ Article 21, paragraph 4.

122  See Article 36, 1977 Additional Protocol I. ‘This obligation applies to purchasing [weapons]. There are far more countries purchasing weapons than countries manufacturing weapons, and the former may be Parties to the Protocol, while the latter, who conceive, develop, manufacture and sell the weapon may not yet be. Whatever the case may be, the purchaser should not blindly depend on the attitude of the seller or the manufacturer, but should proceed itself to evaluate the use of the weapon in question with regard to the provisions of the Protocol or any other rule of international law which applies to it.’ Commentary on Additional Protocols I and II of 8 June 1977, op. cit., p. 426.

123  According to Article 2, paragraph 2(c), a cluster munition is not a ‘munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

  1. (i)  Each munition contains fewer than ten explosive submunitions;

  2. (ii)  Each explosive submunition weighs more than four kilograms;

  3. (iii)  Each explosive submunition is designed to detect and engage a single target object;

  4. (iv)  Each explosive submunition is equipped with an electronic self-destruction mechanism;

  5. (v)  Each explosive submunition is equipped with an electronic self-deactivating feature.’

See also, infra, the commentary on Article 2, paragraph 2.

124  See Sandoz, Y. et al., Commentary on the Additional Protocols I and II of 8 June 1977, op. cit., p. 426:

[T]he purchaser should not blindly depend on the attitude of the seller or the manufacturer, but should proceed itself to evaluate the use of the weapon in question with regard to the provisions of the Protocol or any other rule of international law which applies to it.

125  See, infra, the commentary on Article 2, paragraph 2(c).

126  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

127  See, infra, the commentary on Article 3, paragraph 6.

128  The ambit of the obligation on States Parties to destroy stockpiles of cluster munitions is addressed in the commentary on Article 3. In addition, nothing in Article 21(3) on Relations with States not party to this Convention ‘shall authorise a State Party: (b) To itself stockpile … cluster munitions’. Article 21, paragraph 4.

129  See, infra, the commentary on Article 3, paragraph 6.

130  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

131  Ibid.

132  See, infra, the commentary on Article 3 for further details of the obligation to destroy stockpiles of cluster munitions.

133  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 20. The UK: 38.7 million; Germany: 33 million; Netherlands: 26 million; France: 14.9 million; Norway: 3.1 million; Austria: 798,336; and Slovenia: 52,920.

134  Banning Cluster Munitions, op. cit., p. 20. The US: 730 million; Bahrain: 6.1 million; Jordan: 3.1 million; Morocco: 2.5 million; Egypt: 2.2 million; and Saudi Arabia: 1.2 million. At the August 2009 Group of Governmental Experts meeting of the Convention on Certain Conventional Weapons, the Russian representatives stated that ‘the Russian Federation had acquired a huge stockpile of cluster munitions’, apparently referring to legacy weapons acquired after the fall of the Soviet Union. Katie Harrison, ‘Update from the CCW, Tuesday 18 August 2009: More of the Same,’ Landmine Action, undated.

135  Human Rights Watch, Cluster Munition Information Chart, December 2009.

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

137  Letter from Juan Manuel Gomez Robledo, Undersecretary for Multilateral Affairs and Human Rights, Mexico to Stephen Goose, Executive Director, Arms Division, Human Rights Watch, 10 March 2009, available at: <http://lm.icbl.org/cm/2009/countries/pdf/Mexico%20MFA%20Cluster%20Response%203.2009.pdf>. Letter from Amb. Saviour F. Borg, Permanent Mission of the Republic of Malta to the UN in New York to Stephen Goose, Human Rights Watch, 2 March 2009. Letter from the Permanent Mission of Lebanon to the UN in Geneva to Human Rights Watch, 10 February 2009. Letter from Dr. Petio Petev, Bulgarian Ministry of Foreign Affairs to Stephen Goose, Human Rights Watch, 25 February 2009.

138  See ‘Intervention de son Excellence Monsieur Marcel Ranjeva, Ministre des Affaires Etrangeres, Republique de Madagascar, Ceremonie de Signature de la Convention Internationale Sur Les Armes a Sous Munitions’, Oslo, 3 December 2008, <http://www.clusterconvention.org/pages/pages_i/documents/Madagascar312.pdf> (accessed 8 March 2010). The Minister of Foreign Affairs of Madagascar further stated that:

[N]ous tenons à exprimer, que l’acceptation du transit d’armes à sous-munitions sur le territoire d’un Etat Partie, et du stockage d’armes à sous-munitions par un Etat non Partie sur le territoire d’un Etat Partie, sont de manière à affaiblir les effets escomptés de la Convention.

139  Article 3, paragraph 1 (emphasis added).

140  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

141  To the extent that ‘stockpile’ might be narrowly read to address keeping reserves held in the event of a shortage or emergency, the inclusion of ‘retain’ clearly addresses those objects being held or possessed more generally.

142  ‘[W]e suggest an idea to replace the word “retain” with “own, possess” in order to strengthen the provision. In our understanding, the word “retain” implies “keeping cluster munitions for a certain period of time.” On the other hand, the wording of “own, possess” does not have such a “time factor” and means a fact that those cluster munitions actually “belong to” the countries which own or possess them; therefore this wording is stronger.’ Statement of Japan, Wellington Conference, undated but February 2008, <http://www.mfat.govt.nz/clustermunitionswellington/conferencedocuments/Japan.pdf> (accessed 8 March 2010). See also ‘Proposal by Japan for the amendment of Article 1’, Diplomatic Conference doc. CCM/10, 19 May 2008.

143  Act on the Prohibition of the Production of Cluster Munitions and the Regulation of the Possession of Cluster Munitions, Chap. 3 (Japan, August 2009).

144  Cluster Munitions Prohibition Act 2009, Act 2009 No. 68, Part 2, Clause 10(1)(c) and (4), <http://www.legislation.govt.nz/act/public/2009/0068/latest/DLM2171615.html> (accessed 25 March 2010). The offences laid down are a prison term not exceeding seven years or a fine not exceeding $500,000, or both, for possessing, retaining, or stockpiling cluster munitions.

145  See, infra, the commentary on Article 3, paragraph 6.

146  See, e.g., New Zealand’s implementing legislation:

  1. (1)  Despite section 10(1), an officer does not commit an offence by using, acquiring, possessing, retaining, or transferring an authorised cluster munition if he or she is doing so—(a) in the course of his or her employment or duties; and (b) for the purposes of developing, or training persons in, techniques of cluster munition detection, clearance, or destruction; and (c) in compliance with any notice given under section 15 [ministerial notice requirements for cluster munition acquisition].

Cluster Munitions Prohibition Act 2009, op. cit., Clause 11.

147  Additionally, nothing in Article 21(3) on Relations with States not party to this Convention ‘shall authorise a State Party: (b) To itself stockpile or transfer cluster munitions’ Article 21, paragraph 4.

148  Under Article 3, paragraph 6, it is permitted to transfer a limited number of cluster munitions (not exceeding the ‘minimum number absolutely necessary’) for the purposes of ‘development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures’. Under Article 3, paragraph 7, it is permitted to transfer cluster munitions for the purpose of destruction. See, infra, the commentary on these provisions.

149  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., p. 23. For additional details, see pp. 23–24 and specific information in the country sections of that report.

150  The definition is taken almost verbatim from Article 2, paragraph 4 of the 1997 Anti-Personnel Mine Ban Convention, with ‘cluster munitions’ being substituted for ‘anti-personnel mines’ and ‘cluster munition remnants’ being substitute for ‘emplaced anti-personnel mines’. That definition in turn was taken nearly verbatim from Article 2, paragraph 15 of 1996 CCW Amended Protocol II, with ‘anti-personnel mines’ being substituted for ‘mines’.

151  According to Article 31, paragraph 4 of the 1969 Vienna Convention on the Law of Treaties:

A special meaning shall be given to a term if it is established that the parties so intended.

Among negotiating States, only Ireland formally proposed a slightly different definition of transfer for consideration:

‘Transfer’ means the physical movement of cluster munitions into or from national territory or the transfer of title to or control over cluster munitions, but does not include the transfer of territory containing cluster munition remnants.

‘Proposal by Ireland for the amendment of Article 2,’ Diplomatic Conference doc. CCM 25, 19 May 2008, p. 2.

152  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

153  Thus, Luxembourg’s implementing legislation has interpreted ‘anyone’ to include juridical as well as natural persons:

Art. 2.  Aux termes des articles 1 et 2 de la Convention, il est interdit à toute personne physique ou morale de mettre au point, de fabriquer, d’assembler des pièces préfabriquées en arme complète, de transformer, de réparer, d’acquérir, de vendre, d’utiliser, de détenir, de transporter, de transférer, de stocker ou de conserver des armes à sous-munitions ou des sous-munitions explosives.’

(‘Art 2.  It is prohibited to any person or legal entity, within the terms of Articles 1 and 2 of the Convention, to develop, produce, assemble prefabricated pieces of cluster munitions into complete weapons, to alter, repair, acquire, sell, use, possess, transport, transfer, stockpile, or retain cluster munitions or explosive submunitions.’).

154  Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 18. According to Human Rights Watch, ‘“anyone” includes states parties, States not party, and non-state actors such as armed rebel groups, private companies, and individuals.’ Docherty, B., ‘Staying True to the Ban on Cluster Munitions: Understanding the Prohibition on Assistance in the Convention on Cluster Munitions’, Human Rights Watch, June 2009, p. 5.

155  Such a prohibition on the transfer of key components of cluster munitions might also be considered a prohibition on assistance in the production of cluster munitions.

156  States Parties may consider end-user requirements for such situations.

157  Bulgaria, Lebanon, Malta, Mexico, South Africa, and Zambia expressed the view that transit is prohibited in response to an inquiry from Human Rights Watch in early 2009. The Netherlands took the contrary view in response to the same inquiry. For a more detailed discussion of this issue, see, infra, §2.198.

158  See the commentary on Article 21 for the relevant negotiating history on this provision and a review of its impact on the obligations of States Parties.

159  See, supra, §1.59.

160  Article 16, International Law Commission (ILC), Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, UN, 2008, p. 65.

161  The draft articles also only address aiding or assisting other States, whereas the Convention addresses assisting, encouraging, or inducing anyone.

162  ILC, Draft articles on Responsibility of States, op. cit., p. 66 (Commentary on Article 16, paragraphs 3 and 5). ‘There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act.’ Ibid.

163  ILC, Draft articles on Responsibility of States, op. cit., p. 66 (Commentary on Article 16, paragraph 6). The commentary on Part IV (of which Article 16 is a part) recognizes ‘the possibility that the same conduct may be internationally wrongful so far as one State is concerned but not for another State having regard to its own international obligations.’ Ibid., p. 65 (Commentary on Part IV, paragraph 8). See below for further discussion of interoperability.

164  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

165  See Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 17. According to Human Rights Watch, ‘[a]ssistance should be understood as any act or omission that proximately contributes to anyone’s engagement in an activity prohibited to a state party under the convention.’ Bonnie Docherty, ‘Staying True to the Ban on Cluster Munitions: Understanding the Prohibition on Assistance in the Convention on Cluster Munitions,’ Human Rights Watch, June 2009, pp. 5–6.

166  Oxford English Dictionary, Oxford University Press, CD-ROM Version 3.1, 2004.

167  Ibid. See Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 17.

168  See Krutzsch, W., and Trapp, R., A Commentary on the Chemical Weapons Convention, op. cit., p. 17.

169  Black’s Law Dictionary (Eighth Edition, 2004).

In connection with the principal in the second degree or accessory before the fact, the terms ‘aid’ and ‘abet’ are frequently used interchangeably, although they are not synonymous. To ‘aid’ is to assist or help another. To ‘abet’ means, literally, to bait or excite, as in the case of an animal. In its legal sense, it means to encourage, advise, or instigate the commission of a crime.

Charles E. Torcia, Wharton’s Criminal Law §29, at 181 (Fifteenth Edition, 1993) cited in Black’s Law Dictionary (Eighth Edition, 2004).

170  F. C. Amendola, et al., 22 Corpus Juris Secundum, Criminal Law §165. ‘Under some authority, accessory conduct is no longer recognized as conduct making one a party.’ Ibid.

171  ILC, Draft articles on Responsibility of States, op. cit., p. 65 (Commentary on Part IV, paragraph 9), citing Article 11, Conduct acknowledged and adopted by a State as its own.

172  Understandings for the Diplomatic Record, 28 May 2008, 8:00. In a position paper distributed at the Dublin Diplomatic Conference, the CMC stated that it believes that:

the prohibition on assistance includes a prohibition on investments in cluster munitions … . Financing and investment are active choices, based on clear assessment of the company and its plans. Investing in a cluster munitions producer is a choice to support the production of these weapons that cause unacceptable harm … . A ban on investments in cluster munitions will stem capital flows from signatory countries towards cluster munitions producing or trading companies.

CMC, ‘Investment in Civilian Suffering to be Halted by Future Cluster Munitions Convention’, CMC Policy Paper, undated.

173  Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., pp. 20–21 (footnotes omitted).

174  ‘It is the understanding of the Government of Lebanon that Article /1/ paragraph (c) of the Convention prohibits the investment in entities engaged in the production or transfer of cluster munitions or investment in any company that provides financing to such entities. In the view of Lebanon “assistance” as stipulated in Article /1/ paragraph (c) includes investment in entities engaged in the production or transfer of cluster munitions and is thus prohibited under the Convention.’ Letter to Human Rights Watch from the Permanent Mission of Lebanon to the UN Office in Geneva, 10 February 2009.

175  Letter from Saleumxay Kommasith, Director General, Department of International Affairs, Ministry of Foreign Affairs, Lao PDR, to Human Rights Watch, 25 February 2009.

176  ‘[I]t is Mexico’s opinion that investment for the production of cluster munitions is also prohibited by the Convention.’ Letter from Juan Manuel Gomez Robledo, Undersecretary of Multilateral Affairs and Human Rights to Stephen Goose, Human Rights Watch, 4 March 2009.

177  ‘A person commits an offence who provides or invests funds with the intention that the funds be used, or knowing that they are to be used, in the development or production of cluster munitions.’ Cluster Munitions Prohibition Act 2009, op. cit., Part 2, Clause 10(2).

178  The Luxembourg law reads as follows: ‘Art. 3. Il est interdit à toute personne physique ou morale de financer, en connaissance de cause, des armes à sous-munitions ou des sous-munitions explosives.’ (‘It is prohibited to any person or legal entity to knowingly finance cluster munitions or explosive submunitions.’) Loi du 4 juin 2009 portant approbation de la Convention sur les armes à sous-munitions, ouverte à la signature à Oslo le 3 décembre 2008, <http://www.chd.lu/wps/PA_1_084AIVIMRA06I4325L10000000/FTSShowAttachment?mime=application%2fpdf&id=998826&fn=998826.pdf> (accessed 8 March 2010).

179  Cluster Munitions and Anti-Personnel Mines Act 2008, Sections 11–15.

180  ‘Textron has become the latest defence firm to be blacklisted by Norway’s $380 billion Government Pension Fund-Global (GPFG), the largest of Norway’s sovereign wealth funds … . “Textron produces cluster weapons, which are banned pursuant to the Convention on Cluster Munitions,” [Norway’s finance minister, Kristin] Halvorsen, said: “We cannot participate in the funding of this type of production.” … “The Ethics Council said it finds it appropriate to base future recommendations of exclusion on the definitions provided in the cluster munitions convention,” the council statement said.’ O’Dwyer, G., ‘Defence Stocks and Ethics’, Defence News, 2 March 2009, p. 26. See also Norway Ministry of Finance, ‘Cluster weapons manufacturer excluded from the Government Pension Fund—Global’, Press release no. 14/209, 30 January 2009, <http://www.regjeringen.no/en/dep/fin/press-center/Press-releases/2009/cluster-weapons-manufacturer-excluded-fr.html?id=543105> (accessed 8 March 2010). For additional history on disinvestment from companies producing cluster munitions, see Human Rights Watch and Landmine Action, Banning Cluster Munitions, op. cit., pp. 18–19.

182  The Advisory Council ‘has recommended excluding companies which are involved in production of key components for such cluster weapons. Such components may typically be the bomb canister as well as the bomblets which constitute the ammunition, in addition to other parts which are essential for the functioning of the weapon.’ The Advisory Council on Ethics for the Norwegian Government Petroleum Fund, Recommendation of 16 June 2005 on the exclusion of companies involved in production of cluster munitions, p. 2, <http://www.regjeringen.no/pages/1661742/Tilrådning%20klasevåpen%20eng%2015%20juni%202005.pdf> (accessed 8 March 2010):

Even the small explosive devices or bomblets are of course key components in a cluster munition. They consist, inter alia, of the explosives themselves, the surrounding canister and a detonation mechanism or fuse that makes the explosive charge detonate. These are also key components. The canister that contains bomblets is, as a rule, specially designed for this purpose and must therefore be regarded as a key component of a cluster munition. It also consists of several sub-components.

All canisters have a mechanism or a fuse that makes the canister open and drop the smaller explosive devices. In many cases, both the canister and the bomblets have guidance mechanisms that make it possible to steer them towards the target and ensure that they strike at the correct angle. Such guidance mechanisms make it possible to drop cluster bombs from great heights and therefore avoid anti-aircraft fire. They may therefore also be considered as key components. Ibid., p. 3

The Norwegian Ministry of Finance subsequently excluded cluster munition producers who either confirmed they did produce the weapons or did not respond to inquiries. Norway Ministry of Finance, A Further Eight Companies Excluded from the Petroleum Fund, Press Release No. 57/205, 2 September 2005, <http://www.regjeringen.no/en/archive/Bondeviks-2nd-Government/ministry-of-finance/Nyheter-og-pressemeldinger/2005/a_further_eight_companies_excluded.html?id=256695> (accessed 8 March 2010).

183  Nystuen, G., ‘Investment policies and arms production — experiences from the Norwegian Pension Fund-Global’, in Borrie, J. and Martin Randin, V. (eds.), Thinking Outside the Box in Multilateral Disarmament and Arms Control Negotiations (Geneva: UNIDIR, 2006).

185  Loi interdisant le financement de la fabrication, de l’utilisation ou de la détention de mines antipersonnel et de sous-munitions, F. 2007 — 1661 [C - 2007/03169], 20 March 2007, published in Belge Moniteur, 26 April 2007, available at <http://www.moniteur.be>.

186  Loi interdisant le financement de la fabrication, de l’utilisation ou de la détention de mines antipersonnel et de sous-munitions, op. cit.. English translation taken from Netwerk Vlaanderen vzw & IKV Pax Christi, Belgium no longer an international frontrunner, 12 February 2010, p. 2.

187  Civil society groups in early 2010 called upon the Government to publish the list and to use the Convention definition of cluster munitions in doing so. Ibid.

188  B 60 Forslag til folketingsbeslutning om Danmarks godkendelse af konventionen om klyngeammunition undertegnet den 4. december 2008 i Oslo, § 2, 19 November 2009, <http://pp.ft.dk/samling/20091/beslutningsforslag/B60/som_fremsat.htm>. The parliament voted in favour of ratification on 17 December 2009, <http://www.ft.dk/dokumenter/tingdok.aspx?/samling/20091/beslutningsforslag/b60/som_vedtaget.htm>, and deposited ratification at the UN on 12 February 2010. CMC, ‘Denmark ratifies landmark convention banning cluster munitions’, Press release, 12 February 2010, <http://www.stopclustermunitions.org/media/press-releases/?id=2038> (accessed 1 March 2010).

189  Betænkning afgivet af Forsvarsudvalget den 10 december 2009, Betænkning over Forslag til folketingsbeslutning om Danmarks godkendelse af convention (Report submitted by the Defence Committee of 10 December 2009), <http://www.ft.dk/dokumenter/tingdok.aspx?/samling/20091/beslutningsforslag/b60/bilag/6/790705/index.htm>.

190  Ibid., §4.

191  Ibid.

192  Afklaring af spørgsmål fra Forsvarsudvalget vedr. forslag til folketingsbeslutning om forbud mod investeringer i, produktion af og handel med klyngevåben (B 173), Okonomi og Erhvervministeriet, Forsvarsudvalget 2009–10, FOU alm. del Bilag 45, Offentligt, 11 January 2010, <http://www.ft.dk/dokumenter/tingdok.aspx?/samling/20091/almdel/fou/bilag/45/783692/index.htm> (accessed 20 March 2010). An exclusion list could limit the freedom of investors but the report notes that most Danish pension funds already adopt an ethical investment policy and private investors seek to profile themselves by investing responsibly. The report warns that legislation may curb this type of investments and unintentionally limit efforts to invest responsibly. The UN Principles for Responsible Investment (UNPRI) promote active ownership as the main strategy for responsible investment. The report cautions that Danish investors might not be able to follow the UN’s recommendations of an active ownership strategy with regard to companies listed on the exclusion list. It should be left to the investors to choose between active ownership and disinvestment only in cases where active ownership is unsuccessful. The report notes that it can be extremely difficult to draft an objective list of companies, because cluster munition production often makes up only a small part of a large company’s production. Ibid.

193  Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, op. cit., p. 65.

A State providing material or financial assistance or aid to another State does not normally assume the risk that its assistance or aid may be used to carry out an internationally wrongful act. If the assisting or aiding State is unaware of the circumstances in which its aid or assistance is intended to be used by the other State, it bears no international responsibility.

Commentary on Article 16, paragraph 4, p. 66.

194  For a fuller discussion of the issue, see, infra, the commentary on Article 21.

196  These systems are already in existence and some have been used in armed conflict in the past, such as the SUU-13/A, used by the US during the Vietnam War. The SUU-13/A was a dispenser in the form of a rectangular box attached to an aircraft’s undercarriage that ejected its submunitions straight down from 40 ports in the bottom of the box. The SUU-14/A resembled a bundle of six pipes strapped together, fixed with a cap at the front. Submunitions were ejected from the rear by pistons located in the front of each tube. The British-made JP-233 bomblet dispenser was used extensively by Royal Air Force Tornado bombers during the first Gulf War against Iraqi airfields but has since been withdrawn from service by the UK. See also, supra, §0.2.

197  ‘Proposal by Ireland for the amendment of Article 1’, Diplomatic Conference doc. CCM/15, 19 May 2008.

198  ‘Proposal by Ireland for the amendment of Article 2’, Diplomatic Conference doc. CCM 25, 19 May 2008.

199  The UK in particular was concerned to assess what implications the proposal had for its CRV-7/M-73 system. This is a so-called ‘direct fire’ munition fired from rocket pods mounted on helicopters. Each rocket pod can carry 19 CRV-7/M261 rockets, each of which contains nine M-73 submunitions. At the time the UK was arguing for the exclusion of ‘direct fire’ systems from the definition of a cluster munition under Article 2 (cf., infra, §2.75).

200  See, infra, the commentary on Article 2. The relevant definitions exclude ‘self-propelled’ munitions weighing less than 20 kilograms.

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

203  See, infra, the commentary on Article 4, paragraph 1.

204  See, infra, the commentary on Article 2.

205  See, e.g., Section 6(1) of Ireland’s Cluster Munitions and Anti-Personnel Mines Act 2008, which provides that ‘a person who (a) uses, (b) develops or produces, (c) acquires, (d) possesses or retains, or (e) transfers to any person, a cluster munition or explosive bomblet is guilty of an offence.’

206  See, supra, §1.4.

207  Arguably a literal reading of the text leads to a result that is ‘manifestly absurd or unreasonable’ within the meaning of Article 32 of the Vienna Convention on the Law of Treaties, which would then permit recourse to supplementary means of interpretation ‘including the preparatory work of the treaty and the circumstances of its conclusion’ in order to interpret the Convention. The President of the Dublin Conference, Ambassador O’Ceallaigh, stated that the inclusion of paragraph 2 of Article 1 in the final President’s draft text:

addressed the anomaly relating to bomblets released from dispensers attached to aircraft. These look and behave like submunitions but they are not, since they do not come from a larger munition. Both informal and bilateral consultations had shown that it was considered important to address this issue at this stage, in order to avoid the Convention’s obligations being circumvented by the use of such systems.

Cf. ‘Summary Record of Fifteenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/15, 18 June 2008, p. 2.

208  During the Diplomatic Conference, at the Meeting of the Committee of the Whole immediately preceding the Plenary Meeting at which participating States agreed to adopt the Convention, the ICRC ‘encouraged States to make clear in their statements upon adoption that destruction obligations also apply to bomblets from dispensers’. Summary Record of Sixteenth Session of the Committee of the Whole, Diplomatic Conference doc. CCM/CW/SR/16, 18 June 2008, p. 9.

209  ‘This Convention does not apply to “mines” as defined by the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996, 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.’

Article 1, paragraph 2, Draft Cluster Munitions Convention.

210  At the Wellington Conference, the CMC called for the inclusion of remotely delivered antivehicle mines in the negotiation of the Convention on Cluster Munitions as ‘they are inadequately regulated elsewhere’. CMC, ‘(Revised) Observations by the Cluster Munition Coalition on the Draft Cluster Munitions Convention, dated 21 January 2008’, p. 2. This argument did not attract the support of negotiating States.

211  Draft Cluster Munitions Convention Explanatory Notes, 21 January 2008.

214  Under Article 2, paragraph 2 of the 1997 Anti-Personnel Mine Ban Convention:

‘Mine’ means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle.

This definition varies slightly from that found in the 1996 CCW Amended Protocol II, Article 2, paragraph 1:

‘Mine’ means a munition placed under, on or near the ground or other surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle.

215  See Diplomatic Conference docs. CCM/CW/SR/1 and CCM/CW/SR/9.

216  Presidential text delivered on 28 May 2008 at 10am; see ‘Summary Record of Fourteenth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/14, 18 June 2008; and ‘Summary Record of Fifteenth Session of the Committee of the Whole’, op. cit.

217  ‘Summary Record of Twelfth Session of the Committee of the Whole’, Diplomatic Conference doc. CCM/CW/SR/12, 18 June 2008.

218  Ibid.