Legal and Political Analysis of Antipersonnel Landmines and Cluster Munitions Regimes
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This chapter tackles two humanitarian disarmament regimes and their related prohibition politics: the global prohibition regime banning antipersonnel landmines and the global prohibition regime that bans cluster munitions. It opens with a legally oriented analysis charting evolution from what could be considered a relationship between general regulatory qualities of international humanitarian law and lex specialis regulating “special aspects” of this general corpus, namely the areas of APLs and CMs (in CCW Protocol V as a part of ERW) towards more robust prohibition regimes established through the APL and CM Conventions. Subsequently, the universality and robustness of those regimes is put under microscope, including norm observance by those outside of the regimes. A set of similarities in typifications of security and legal reasoning is displayed, especially the emergence of human rights as an ethical force and its convergence with humanitarian law as displayed through a still widening scope of victim assistance.
KeywordsProhibition regimes Humanitarianism Disarmament Landmines Cluster munitions NGOs Legal analysis
Box 9.1 Humanitarian Disarmament Regimes: Key Features
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (known as The Ottawa Treaty, APLs Convention, or Mine Ban Treaty) is the backbone of the global prohibition regime concerning APLs. It was drafted in September 1997, signed on 3 December 1997, and entered into force on 1 March 1999, with 40 states ratifying it (currently, there are 164 parties to the Treaty).
The Convention on Cluster Munitions (CCM) is the legal edifice for a global prohibition regime banning the use, transfer and stockpiling of cluster munitions. After being drafted in May 2008 in Dublin, it was signed on 3 December 2008 in Oslo and entered into force 6 months after the 30th ratification. Currently, there are 103 parties to the Convention.
Other Agreements and Initiatives.
The International Campaign to Ban Landmines (ICBL), an umbrella of humanitarian NGOs, was established in 1992 and has addressed humanitarian alleviation related to APLs ever since.
The Cluster Munition Coalition (CMC) has been active in the area of CMs, performing similar tasks as the above ICBL.
The two networks have jointly formed an initiative, Landmine and Cluster Munition Monitor, which operates as a de facto monitoring regime for both respective categories of weapons.
This chapter tackles two humanitarian disarmament regimes and their related prohibition politics: the global prohibition regime banning antipersonnel landmines and the global prohibition regime that bans cluster munitions. 1 They rested on the 1997 Anti-Personnel Landmines Convention and the 2008 Convention on Cluster Munitions (CCM), respectively. The ban of anti-personnel landmines (APLs) in 1997 marked a significant shift in humanitarian disarmament. Consequently, a humanitarian disarmament model emerged, consisting in bypassing permanent arms control fora (the so-called “Ottawa Process”). The ascent of the model to the arena traditionally dominated by power interests of major powers and diluted consensus was confirmed in 2008 when cluster munitions (CMs) were prohibited in a very similar fashion (“The Oslo Process”).
The 1997 Anti-Personnel Landmines Convention and the 2008 CCM have been the two most-notable modern examples of multilateral, humanitarian disarmament treaties through which entire categories of widely used conventional weapons were banned (Convention 1997, 2008). Docherty (2010: 9–17) distinguished among three types of disarmament conventions: security-related conventions banning eliminating weapons of mass destruction (e.g. the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention); hybrid arms-control/disarmament conventions trying to strike a balance between security and humanitarian concerns and following principles of international humanitarian law (e.g. the 1980 Convention on Certain Conventional Weapons (CCW) and its protocols, see below); and humanitarian disarmament conventions. Modern humanitarian disarmament conventions have been characterised as “contain[ing] preventive measures, including absolute prohibitions on not only the use but also the production, transfer, and stockpiling of certain weapons, … [but also the] establish[ment of] remedial obligations, including to clear unexploded weapons and provide assistance to victims, that are generally stronger than the humanitarian obligations in hybrid disarmament instruments. Finally, they adopt a cooperative approach to implementation” (Docherty 2010: 16). Thus, the APL and CM Conventions ought to be understood as comprehensive, disarmament programmes of action made on humanitarian grounds, creating an inextricable connection between a successfully concluded negotiations concerning global prohibition regimes and key principles of international humanitarian law (Rutherford 2011: 5; ICRC 2007), and the CM Convention also international human rights law.
Examination of the Two Conventions and Related Regimes
As for the antipersonnel landmines (APL) prohibition regime, the legally binding APL Convention (also known as “The Ottawa Convention” or “Mine Ban Treaty”) contains an absolute prohibition norm banning the use of these landmines, as well as their development, manufacturing, stockpiling, retention and transfer. Concerning transfers, these do not involve just physical transfers but also potential transfers of title to/control over them, all of this directly or indirectly (Goldblat 2002: 237). Stockpiles need to be destroyed within four years (Article 4 exception are small numbers of APLs kept for training purposes) after a given state’s ratifications under the Convention term, and mine-affected countries need to be free of APLs within a decade (Article 5). The Convention establishes periodical review conferences to assess the progress, as well as to share the best practices, and allows for an invitation of non-signatory states, IOs and/or NGOs to be invited for participation (Convention 1997). Parties to the Convention are obliged to submit annual reports on the implementation of the Convention (Article 7 of the Convention 1997) and are expected to provide assistance to mine victims and contribute to mine risk-related education (Article 6, ibid.).
When it comes to the universality of APL global prohibition regime, the Convention was signed by 123 States in Ottawa, Canada, on 3–4 December 1997. On 18 September 1998, by virtue of the 40th ratification, the Convention came into effect and led to the launch of the de facto monitoring regime run by the International Coalition to Ban Landmines (ICBL), a transnational advocacy network and recipient of the Nobel Peace Prize (Landmine and Cluster Munition Monitor 2015). The Convention became binding international law in significantly short time, on 1 March 1999 (ICRC 2007). The APL Convention counts among most widely accepted multilateral treaties globally: 164 states are States Parties (i.e. over 80% of states), and 35 states find themselves outside of this global prohibition regime (ICBL 2016a). Among those non-signatories, which stood out the most, can be counted USA, Russia, China, India, Pakistan, Israel and Saudi Arabia. The rest are almost exclusively secondary, developing countries with the history of territorial inter-state conflicts and/or foreign invasions. Importantly, majority of states outside of the regime have tacitly observed the prohibition norm, testifying to its “universalization” and robustness of the underpinning regime (on the US position observing the regime from the outside, cf. Human Rights Watch 2014; on recent uses of APLs by Russia directly in Crimea and Eastern Ukraine and indirectly in Syria, cf. Kochin and Jenzen-Jones 2015; ICBL 2014). Overall, the APL Convention has marked great progress compared to the Protocol II adopted by the CCW in 1980, which restricted the use of APLs and similar devices but failed to induce widespread support (Mathews 2001: 994–998). Available statistics demonstrate the multifaceted success of the APL Convention, namely sharp drop in the number of recorded cases of casualties (20,000/year in the early 1990s vs. less than 4000/year now), complete clearance of 30 previously APLs-riddled countries, and 50 million stockpiled APLs having been destroyed (ICBL 2016b).
Yet, while the APL Convention, which relied for its own success on leaving UN diplomatic channels, absolutely banned APLs, other forms of unexploded ordnance (UXO, also known as “Explosive Remnants of War”, or ERW) were—both in a literal and legal sense—left out. It was for this reason that the International Committee of the Red Cross (ICRC) initiated a process through which State Parties to CCW drafted and eventually signed a new Protocol (fifth to the CCW) on ERW—including cluster munitions—on 28 November 2003 (CCW Protocol 2003; ICRC 2016a). The UN CCW framework, which generally regulates indiscriminate weapons and/or weapons causing unnecessary suffering, has often been the target of criticism pilled by representatives of civil society and like-minded countries. Usually perceived as a lowest-common-denominator mechanism producing inefficiency and yielding anything but “nonresults” (Williams 2013: 189), the CCW has managed to attract 91 State parties thus far, including all major powers (out of those mentioned above in the context of APL Convention, only Israel has not adopted it, ICRC 2016b). Notwithstanding its conclusion, the Protocol has suffered from being too broad and too restrictive at the same time. As for the former, unlike the previous Protocols to CCW which regulated specific categories of weapons (a weapons-design approach), ERW has not been a category on its own right but a jumble of leftovers from conflicts “that applies to any explosive conventional munition that may result in ERW” (Breitegger 2012: 135). ICRC and humanitarian NGOs’ efforts to draw on a Swedish proposal to ban CMs from 1974 by zooming in on CMs within the CCW framework were killed off (Maresca 2004: 819–821). With regard to latter, governmental negotiations on what subsequently became the Protocol V to CCW showed impossibility to restructure effects-based understanding of ERW with its focus on post-conflict situations (a user-cleans principle) in order to embrace wider time frame which would have included legally binding instrument regulating the use of CMs during the conflict in addition to general parameters of international humanitarian law (Breitegger 2012: 135).
Out of the CCW negotiations on Protocol V, more progressive states and NGOs which formed the Cluster Munition Coalition (CMC) took the process (known as the “Oslo Process”) outside of the UN system. While many aspects of the process itself will be analysed later in this article, its result has been the legally binding CCM which successfully concluded the Dublin Diplomatic Conference on 30 May 2008. CMs are specified as a conventional munition that disperses or releases explosive submunition (bomblets), each having weight under 20 kg and containing explosives. Cluster (sub)munitions dispersing flares, smoke, chaff as well as those designed to produce electrical or electronic effects are excluded from the ban (Article 2, Convention 2008). However, CCM did not manage to avoid the exclusion of technologically superior types of CMs as there was no consensus among like-minded states on breadth of the future regulation (Kimball 2012). This stood out in direct contrast to the APL Convention which established the entire category-sweeping ban. The CCM, on the other hand, left the door open for future technological development of CMs as it excluded those CMs that simultaneously contained less than 10 bomblets of weight greater than 4 kilograms, was exclusively engaging a single target object, and had electronic self-destruction and self-deactivating mechanisms (Article 2.1, Convention 2008).
As the CCM was modelled on the APL Convention, a number of features—as well as the Convention structure—have been similar. Thus, CCM proposed that State Parties had to destroy all CMs within eight-year period (with a possible four-year extension) after the Convention would have entered into force. Several provisions known from the APL Conventions were reintroduced here too: those concerning retention of small quantities of CMs intended for training purposes and development of detection techniques (Article 3, Convention 2008); the nature and principles of clearance, destruction of CMs, and the provision of risk-reduction education (with explicit references to Mine Action Standards, cf. Article 4, ibid.); victim assistance schemes (Article 5, ibid.) and a particular set of transparency measures and consultations related to implementation and compliance, sharing best practices and periodic review conferences (Articles 6–12, ibid.). The CCM remains the only legal instrument on CMs. Although the conclusion of the CCM did not stop the UN-based CCW process through which a possibility of specific regulation of CM was being explored and that involved major producers and users, this process failed, however, on 25 November 2011. The reason was that many of the signatories of the CCM refused a draft text with very narrow specification of CMs proposed for regulation (Kimball 2012).
After its adoption in Dublin, Ireland, the CCM was signed on December 3–4, 2008 in Oslo, Norway, and entered into force on 1 August 2010, six months after it was ratified by 30 states. After this date, states cannot sign the CCM but need to accede to it. When it comes to attempts to make the CM prohibition regime universal, 108 states have signed the CCM at the time of writing, out of which 103 have ratified it (including the half of former exporters), thereby becoming Parties to the CCM (UN 2016; Landmine and Cluster Munition Monitor 2015: 3). After the CCM came into effect, the previously existing de facto monitoring regime run by the ICBL has been extended to cover CMs, and in 2011, the ICBL and CMC merged their monitoring arms to form a single structure, the Landmine and Cluster Munition Monitor, on grounds of operational efficiencies and similar expertise required to work on APLs, CMs and other ERW. The last available statistics show that between 2010 and 2015, 27 State Parties destroyed 88% of CMs and 90% of submunitions previously declared as stockpiles. Additionally, no state within the prohibition regime has used CMs and eight signatories and two non-signatories completed clearances of contaminated areas (Landmine and Cluster Munition Monitor 2015: 1, 3).
Similarly to APL ban, several important past users and producers have gradually come to observe the prohibition regime from the outside. Out of these, the USA has imposed an export moratorium on CMs, the position upheld on 27 May 2016, by the USA’s latest refusal to transfer CMs to Saudi Arabia which has been using them in Yemen (Hudson 2016). Additionally, the USA has been unilaterally restricting its own use of CMs on the basis of the 2008 US Department of Defence directive attempting to minimise civilian harm and maintaining that after 2018, used CMs cannot result in more than 1% of ERW (Kimball 2012). In February 2015, the USA reported the actual removal and destruction of half of the target specified in the directive: 500,000 tons of CMs being demilitarised by the end of 2018 (Landmine and Cluster Munition Monitor 2015: 2). Out of 15 non-signatory states known to be producing CMs or reserving the right to do so, only 3 have been known to use them: the USA, Russia and Israel. Existing reports recorded the use of CMs in seven non-signatory states since the CCM’s entry into force (ibid.: 1).
Stigma Politics, Deep Continuities and Institutional Dynamics
Stigmatisation success and prohibitionary character of APL and CM Conventions have usually been linked by experts and campaigners to the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention (Cluster Munition Coalition 2016; Breitegger 2012: 11–12; Nystuen and Casey-Maslen 2010: 110; Goldblat 2002: 239). Although there have been recent attempts to “inject” theorisation of regimes with a dose of humanitarianism, one of the remaining problems of such accounts is their relative ahistoricity. While Garcia (2011, 2015) examined APLs and CMs in her otherwise interesting study, she did so as a part of research focused on “established, recent and developing regimes” (Garcia 2015: 56, emphasis in original), where all of these regimes have either been established or in making after the end of the Cold War.
Despite the fact that there were attempts to tightly regulate/ban the use of those categories of weapons during the Cold War, they could only record limited success. For APLs, it was especially ICRC’s legal contribution, which resulted, inter alia, in the adoption of CCW in 1980 and its Protocol II regulating the use of APLs (CCW 1980; CCW Protocol 1980; for its detailed analysis, cf. Maresca and Maslen 2009). In respect of CMs, it was Sweden-led efforts to ban “cluster warheads” in 1974, which did not make it to the CCW at all (Gillespie 2011: 67). With sovereignty having assumed the role of ethical force during the Cold War, it was near impossible to reverse the military utility of those weapons. Macro-juridical argument coupled with states’ emphasis on APLs/CMs’ key role in the geopolitical conflict and thus national security stalled any transformative efforts. On the other hand, the subsequent macro-shift and replacement of sovereignty by human rights and human security in the position of the systemic ethical forces after the end of the Cold War was certainly a structural enabler.
Arguably, elements of the nineteenth-century humanitarian disarmament have resurfaced in the late twentieth century/early twenty-first century “new”—but not unprecedented—humanitarian disarmament. As Docherty (2009: 936–937) made clear, the CCM “is the latest in a series of modern weapons treaties that date back to the 1868 St. Petersburg Declaration … Early treaties strived to reduce superfluous injury to soldiers while later ones focused on minimizing the suffering of civilians. Whether safeguarding soldiers or civilians, humanitarian weapons treaties are concerned with the effects of weapons’ use and the protection of individuals … After the end of the Cold War, states began to negotiate weapons treaties that contained humanitarian and disarmament provisions in the same instrument. The CCM follows the lead of the Chemical Weapons Convention and Mine Ban Treaty by combining elements of both”. Thus, the nineteenth-century transformation in typification of security i.e. the emergence of the individual as an object of security on grounds of needs (unnecessary suffering and/or weapons indiscriminacy) was extended and reinforced after the end of the Cold War by emphasis on political (human) rights of this suffering individual.
The exercise of the leading agency in the APL case saw the assumption of Canadian leadership when the government, after consultations with MAC/ICBL, suggested to a group of like-minded countries to leave the UN CCW process in order to continue diplomatic discussions of the absolute ban (DFAIT 1996). The Human Rights Watch and the Pax Cristi Netherlands assisted with selection of the countries invited for the first meeting in Vienna, producing the list of 20 “good” countries to be invited for separate discussion (Short 1999: 482). Subsequently, the 1996 Ottawa meeting was attended by 75 states (ICBL 2012: 5–6). There were two outcomes of the Ottawa meeting, the diplomatic-structural backbone of the Ottawa Process: First, the Canadian Government and the ICBL drafted the Chairman’s Agenda for Action. Second, the then Canadian Minister of Foreign Affairs and International Trade, Lloyd Axworthy, held a speech in which he pledged all participants to come to Ottawa in a year’s time to sign a convention that would completely ban APLs. Axworthy’s pledge was embraced in the subsequent meeting in Brussels, Belgium, by 110 governments (out of 153 attending). It too, pressurised great powers outside of the process to take a stand. Russia and Singapore announced export moratoria on APLs (Wurst 1997). Thus, in a hint of reactive resistance and an attempt to remain relevant, the then US President Clinton announced that his country would pursue a ban on APL transfers through the CCW format, linking it to several conditions (ICBL 2012: 7). It failed among the placards and stickers “No Exceptions”. The process resulted in the Ottawa Conference in December 1997 where the Ottawa Convention was signed by 122 governments.
The Ottawa Process model was also used in the dynamics leading to the eventual ban of CMs: a single-issue, ad hoc, self-selecting (i.e. excluding the main players in CCW, mostly USA, Russia, China, India, Pakistan and Israel) coalition of willing comprised of like-minded states led by a patron (typically a middle power), NGOs organised under an umbrella of a centrally run transnational advocacy network, the ICRC, elements of IOs, and the mass media favouring the case. Out of the 2006 Third Review CCW Conference which failed to single out CMs as a category and proceed towards their ban, 30 like-minded states decided to step outside of the UN system. The Israeli (ab)use of CMs played a catalytic role for NGOs, which had previously formed the CMC) in The Hague, the Netherlands, in 2003. In the fall of 2006, like-minded states, the CMC, the ICRC and the UN Secretary General made an early collective call for mandate to further discuss CMs (Docherty 2010: 940). Although falling short of support for a complete ban, the role of UN SG, Kofi Anan, was particularly noteworthy as his stance represented a powerful challenge to the key CCW players (UN Statement 2006). Norway took the lead among like-minded states and pledged its utmost to initiate a treaty process outside of the UN to ban all CMs with unacceptable humanitarian consequences (Docherty 2010: 940). This was more than the CMC considered (Breitegger 2012: 136), although the role of “humanitarian disarmers” during the Oslo Process proved crucial (Borrie 2009, 2014). It should be pointed out that Norway had played—apart from Canada—the key role in the successful adoption of the Ottawa Treaty. This synergy had originally been extended and resulted in the establishment of the bilateral Lysoen Declaration, which was subsequently multilateralised in the form of the Human Security Network with notable, if unfulfilled, ambitions (Carpenter et al. 2014).
The fifteen-month diplomatic process was therefore launched by an ad hoc coalition of 46 states in Oslo adopting the Oslo Declaration. The most vocal opponent of the Declaration was the USA (Breitegger 2012: 138). The Declaration’s inspiration by the legal wording of the APL Convention was more than obvious, although it legally extended several principles. Operations of institutional/compulsory power could be observed from tensions among attending states to the Oslo Conference. The USA kept emphasising ongoing military utility of CMs and importance of CCW framework; Germany, an eventual signatory of the Declaration and major producer, proposed a plan for the upcoming CCW, attempting to steer parts of the discussion back to the UN CCW. This would have further supported the idea of two parallel processes, i.e. something that the like-minded countries attempted to completely avoid and made this clear to Germany and others; crucially, other two key states and CMs producers—France and Great Britain—backed the Declaration (Breitegger 2012: 141).
The role of the CMC was to stress humanitarian concerns and be involved in the dialogue with diplomats to greatest possible degree. As Docherty (2009: 941) noted, the CMC was “directly involved in the deliberations, sending hundreds of campaigners to meetings and participating actively in the negotiating room”. The institutional pressure by the like-minded countries was further reinforced by the ICRC which kept pushing major producers and users within the CCW in October 2007 and after on presentation of evidence that CMs had still military utility and that technological fixes were enough to address humanitarian concerns. It concluded that no such evidence was presented, thus effectively dissociating the two processes. As a result, another important diplomatic actor, the European Union, began to play the key role with its establishment of a Group of Governmental Experts and seeking the ban (Breitegger 2012: 151). One of the mechanisms through which the core group of states prevailed over other signatories concerned several disputed technical issues where consensus was either fragile or non-existent (for details of these conflicts over definition and interoperability, cf. Wisotzki 2013: 99–101). The wavering signatories eventually overcame differences, although they expressed disappointment with lack of transparency and democracy in ignorance of their respective proposals (ibid.: 165). They flocked to the official text, however, and the main reason was the definite failure of the concurrent CCW format to progress with the issue. The CCM could therefore be adopted in Dublin, Ireland, and signed on 3–4 December 2008 in Oslo, Norway.
Humanitarian Considerations in and Around the Two Regimes
The following considers the period after the two prohibition regimes have been established. The dynamics inside the regime and outside of it (signatories versus non-signatories) will be highlighted in turn. The first potent clue of humanitarianism inside the regimes has been remedial provisions on victim assistance. In its preamble, the APL Convention sets the tone by noting that “States Parties [are d]etermined to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians” (Convention 1997, Preamble). The 2004 Nairobi Action Plan and 2014 Maputo Action Plan subsequently broadened the interpretation of “victim” also to those suffering indirectly, thereby reinforcing previously made legal obligations for state parties and showing visibly lags and feedback between regime and power base, and especially autonomous and unanticipated institutional power exercised by the regime. Still in the preamble, the signatories pledge “to do their utmost in providing assistance for the care and rehabilitation, including the social and economic reintegration of mine victims”. This, however, gets moderated in Article 6 of the APL Convention which stipulates that “[e]ach State Party in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs” (Convention 1997, emphases added). Thus, the victim assistance measures chiefly depend on relative capacities and infrastructure of states, especially of those mine-affected ones, and can be read as an attempt to increase—both collectively and individually—pressure on richer states within the regime, especially considering that the entire Article 6 deals with issues of international cooperation and assistance and explicitly allows for mine-affected states to “request assistance to mine victims” (Convention 1997, Article 6). While challenges to collective responsibility have existed, such as evasion or negligence of the obligation, there have been formal and informal supervisory mechanisms through which the Landmine and Cluster Munition Monitor was able to selectively exercise pressure over those states, at least by naming and shaming their stance (Hayashi 2012).
The CCM (Convention 2007, emphases added) takes this further still (the word “victim” is mentioned 18 times vs. the APL Convention where it gets referred to 3 times) when it links the issue of CM victims to their human rights already (first ever weapons treaty to do so) in the preamble (“full realisation of the rights of all cluster munition victims and recognising their inherent dignity”). Still in the preamble, it furthers the determination to cover “the special needs of vulnerable groups” and links this to the Convention on the Rights of Persons with Disabilities. In Article 2, it provides very broad definition of “victims” as “all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights … as well as their affected families and communities” (Convention 2007, emphases added). It contains a dedicated Article 5 solely on “victim assistance” which operationalises in a detailed way what state parties need to do. Much greater pressure is exerted on mine-affected countries themselves, which is in line with the general tradition of international human rights law (a de facto subsidiarity principle), especially when it comes to their obligations to “collect data on victims”, “development of national plans and budgets”, incorporation of (Western neo-liberal) “guidelines and good practices”, and embracement of “International Mine Action Standards” and “transparency measures” (Convention 2007, Articles 4, 5 and 7). The analogue to Article 6 of the APL Convention remains, however (Convention 2007, Article 6).
The second issue where complex intra-regime dynamics can be observed is the issue of user-state responsibility. This unprecedented and legally binding principle appears only in the CCM. The reason is that unlike APLs which function as designed in post-conflict environments, the presence of CMs on ground is due to their failure to explode (Docherty 2009: 953). Thus, the CCM stipulates that a state party which abandoned CMs within the territory of another signatory “prior to entry into force of this Convention for that State Party” is “strongly encouraged … to facilitate the marking, clearance and destruction of such cluster munition remnants”, including the provision of “information on types and quantities of the cluster munitions used, precise locations of cluster munition strikes and areas in which cluster munition remnants are known to be located” (Convention 2007, Article 4.4, emphasis added). Essentially, this principle creates retroactive user state responsibility and gives hope to many CMs-affected countries, and, at the same time, increases legal institutional pressure on those responsible. As Corsi (2009: 308) held in this regard, “linking past use and present danger to contemporary user state obligations, this provision also strengthens the concept that states must consider the foreseeable and long-term effects of a weapon when evaluating its legality under IHL”. Indeed, the CMC has been the key actor to remind the legally responsible actors (state signatories) of their legal duties.
The complex political interplay can also be extracted from the ways in which the regimes worked against non-signatories. In respect of the CCM, it contains another precedent-setting, legal obligation which consists in the duty of state parties to promote the acceptance of the ban among non-signatories, and gives them a legal duty to discourage those non-parties from the use of CMs: “Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention … Each State Party shall notify the governments of all States not party to this Convention … of its obligations under this Convention, shall promote the norms it establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions” (Convention 2007, Article 21, emphases added). The APL Convention does not have this provision and limits itself to a declaratory emphasis on “the desirability of attracting the adherence of all States to this Convention” in its preamble (Convention 1997, Preamble).
The presented chapter shed light on political, legal and security workings in and about APL and CM global prohibition regimes. The chapter opened with a legally oriented analysis charting evolution from what could be considered a relationship between general regulatory qualities of international humanitarian law and lex specialis regulating “special aspects” of this general corpus, namely the areas of APLs and CMs (in CCW Protocol V as a part of ERW) towards more robust prohibition regimes established through the APL and CM Conventions. They may be regarded as laying down the general law of these categories. This could also be seen in an unprecedented interconnection, in a weapons treaty, between the international humanitarian law and international human rights law as in the CM Convention. Subsequently, the universality and robustness of those regimes was put under microscope, including norm observance by those outside of the regimes. A set of similarities in typifications of security and legal reasoning were displayed, especially the emergence of human rights as an ethical force and its convergence with humanitarian law as displayed through a still widening scope of victim assistance.
Box 9.2 Selected Essential Further Reading
Borrie, J. (2009). Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won. New York and Geneva: United Nations Publications.
Cameron, M. A., Lawson R. J., & Tomlin, B. W. (Eds.). (1998). To Walk Without Fear: The Global Movement to Ban Landmines. Oxford: Oxford University Press.
Corsi, J. (2009). Towards Peace Through Legal Innovation: The Process and Promise of the 2008 Convention on Cluster Munitions. Harvard Human Rights Journal, 22(1), 145–157.
Docherty, B. (2009). Breaking New Ground: The Convention on Cluster Munitions and the Evolution of International Humanitarian Law. Human Rights Quarterly, 31(4), 943–963.
Hynek, N. (2008). Conditions of Emergence and Their (Bio)Political Effects: Political Rationalities, Governmental Programmes and Technologies of Power in the Landmine Case. Journal of International Relations and Development, 11(2), 93–120.
This chapter draws from Hynek, Nik (2018): “Re-Visioning Morality and Progress in the Security Domain: Insights from Humanitarian Prohibition Politics”, International Politics, Vol. 55, No. 3–4, pp. 421–440.
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