Disarmament Diplomacy

How the Cluster Munition Ban Was Won: Oslo Treaty Negotiations conclude in Dublin

John Borrie

"The need for this historic conference and for a specific treaty on cluster munitions has been demonstrated far too often...Civilians have paid dearly for the unreliability and inaccuracy of cluster munitions delivered in massive numbers over vast areas. Their lives are the story of the "unacceptable suffering" these weapons inflict. Their loss and our humanity must motivate us to collectively put an end to the ghastly pattern of cluster munition use followed by years or decades of suffering for civilian populations. Unfortunately, for many, our efforts come too late."
Jakob Kellenberger, ICRC President, Dublin, 19 May 2008.[1]

On May 30 in Dublin, representatives of 107 governments adopted the text of a new humanitarian disarmament treaty, the Convention on Cluster Munitions (CCM). The treaty resulted from a humanitarian initiative by a group of small and medium-sized states working together with the United Nations, International Committee of the Red Cross (ICRC) and a consortium of civil society actors under the rubric of the Cluster Munition Coalition (CMC) — an initiative that became known as the Oslo Process. [2]

In a powerfully emotional moment following adoption of the CCM, the several hundred delegates at the Dublin Diplomatic Conference rose to their feet and cheered. Many also turned to applaud the cluster munition and landmine survivors present. The efforts of these Ban Advocates had been key in reminding delegates of their humanitarian responsibilities throughout the process, resulting in a treaty setting new and robust standards for clearance of unexploded submunitions, assistance to victims and their families and international assistance and cooperation, as well as banning cluster munitions. The joy on the faces of these injured survivors almost said it all.

The successful conclusion of the Dublin negotiation was by no means assured, however. The Oslo Process had encountered major differences among the countries involved in it as well as resistance from those others shunning it, especially the United States. In particular, the US pressured its many allies involved in the Oslo Process about its concerns on military base hosting and joint-operations. Ultimately, the vexed issue of 'interoperability' was virtually the last solved in the Dublin negotiations, in a controversial provision (Article 21) sharply criticized by the CMC and others.

Like the Ottawa Process resulting in the 1997 Anti-Personnel Mine Ban Convention, the Oslo Process was strikingly different from business as transacted in the traditional multilateral forum for these issues, the 1980 UN Convention on Certain Conventional Weapons (CCW). With the CCM's signing ceremony in Oslo in early December now being planned and efforts to universalize the new treaty already underway, it is important that the story of its negotiation be told.[3] This article explains how the cluster munition ban treaty came about and provides some preliminary analysis.

Cluster munitions are a class of weapon originating from the Second World War. A cluster munition is a container or dispenser designed to scatter hundreds of explosive submunitions or bomblets, and may be dropped from an aircraft or fired from artillery, mortars or rockets, for instance. Concerns about the hazards cluster munitions pose to civilians, both at time of use and post-conflict, have been raised since the 1960s.[4] However, attempts to address their use and humanitarian impacts through international legal means gained little traction until late 2006. Remarkably, not one — but two — multilateral processes emerged to develop international legally binding restrictions on cluster munitions during 2007.

After years of discussion, states party to the 1980 United Nations Convention on Certain Conventional Weapons (CCW),[5] also known as the Inhumane Weapons Convention, agreed on a work mandate to "negotiate a proposal" on cluster munitions in November 2007 "while striking a balance between military and humanitarian considerations".[6] Yet it is unlikely that the CCW would even have achieved this limited mandate without the galvanizing effect of an emergent 'Oslo Process' — a humanitarian initiative by a group of predominantly small and medium-sized states in partnership with civil society organizations, aimed at prohibiting cluster munitions that "cause unacceptable harm to civilians".[7]

Unacceptable harm

Recognition of the need to address cluster munitions was given momentum by the conflict in Southern Lebanon in July-August 2006 — in which these munitions were used on a large scale — and the CCW's Third Review Conference that November. Concerned by the CCW's inertia on cluster munitions and coinciding with calls in joint statements and negotiating mandate proposals by around 30 countries for this weapon's humanitarian impacts to be addressed, Norway's Foreign Minister Jonas Gahr Støre announced on 17 November his country's plans for a conference to be held in Oslo the following February.[8]

When the Oslo Conference concluded on 23 February 2007, 46 countries — including cluster munition users and/or producers such as France, Germany and the United Kingdom — associated themselves with the Oslo Declaration to complete an international treaty by the end of 2008 to "prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians" and to "establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation to survivors and their communities, clearance of contaminated areas, risk education and destruction of stockpiles of prohibited cluster munitions".[9]

The Oslo Process, as it soon became known, was driven by a core-group comprising Austria, the Holy See, Ireland, Mexico, New Zealand, Norway and Peru. Like the Ottawa Process leading to the 1997 Anti-Personnel Mine Ban Convention more than a decade earlier, the Oslo Process was characterized by a strong partnership between governments and civil society. With a predominantly humanitarian focus, it differed from the CCW, in which military concerns were much more to the forefront. Though shunned by some major users or producers of cluster munitions, such as China, India, Israel, Pakistan, Russia and the United States, the Oslo Process galvanized the CCW into action, and at the conclusion of its 2006 Review Conference the CCW's member states managed to agree by consensus to convene a group of government experts the following year to continue to consider explosive remnants of war, with a focus on cluster munitions.[10]

There were three significant further international meetings concerning cluster munitions in the first half of 2007: a meeting of experts in Montreux organized by the ICRC in April, the second international conference of the Oslo Process in Lima, Peru, in late May, and the CCW's expert meeting in June. What happened at these meetings is outlined in detail in my previous article[11], but several significant trends emerged around this time that help to explain what happened next.

The first trend was the emergence, over the course of 2007, of a loose and amorphous group of so-called 'like-minded' countries, mainly consisting of military allies of the United States, with France, Germany, Japan, the Netherlands and the UK 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, which neither stockpiled nor used cluster munitions.

These so-called 'like-mindeds' were motivated by overlapping concerns. 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. And they shared a worry that a new cluster munition norm which, for political reasons, would probably be difficult for them to resist joining, would create legal and operational headaches in terms of interoperability with major allies not party to the treaty — a concern encouraged by the United States.[12]

The second trend, underlined by the Lima Conference, was that the evolving composition of the Oslo Process differed from that of the CCW. In Oslo in February 2007 the majority of the 49 participating states were developed countries with a Western bias, and were CCW state parties. In Lima, 68 states were represented, many of them developing countries from Latin America, Asia and Africa, including many of the states affected by cluster munitions. A feature of the Oslo Process would be increasingly widespread participation from among developing and affected countries, including some that were not members of the CCW. Generally, these countries were more concerned with the effects of cluster munitions — both actual and potential — than with their military utility.

Not so in the CCW, in which the military aspects of cluster munitions received the bulk of attention in formal talks among its 104 state parties. In June 2007, in line with the CCW Review Conference mandate agreed the preceding November, a group of governmental experts (GGE) met in Geneva. This one-week meeting covered much of the same ground as the ICRC Montreux Experts Meeting, but in less depth. While representing a shift in focus for discussions in the CCW, the views expressed in these talks by major users and producers of cluster munitions further highlighted the difficulty of developing enough momentum there to address the humanitarian impact of this weapon through a comprehensive legal instrument.

Nevertheless, there was a subtle shift underway. In CCW informal consultations in Geneva during the months leading up to the June meeting, major cluster munition users such as Russia and the United States began to soften their statements and even made approving (though non-specific) noises about the prospect of a CCW mandate for work of some kind on cluster munitions. In early June, after lengthy negotiations, European Union members submitted for consideration by the GGE a new mandate proposal for achieving a CCW instrument by the end of 2008 to prohibit cluster munitions "that cause unacceptable harm to civilians and includes provisions on cooperation and assistance", which echoed aspects of the Oslo Declaration.[13] Significantly, the day before the commencement of the June GGE, the US delegation told journalists that it now supported launching negotiations in the CCW on a "global treaty to reduce civilian casualties from cluster bombs, but does not back a ban on the weapons".[14]

During the ensuing CCW meeting, Richard Kidd, Director of the US State Department's Office of Weapons Removal and Abatement, outlined some "practical steps" that "merit examination". However, he limited these to post-conflict effects and argued that the threat cluster munitions pose to civilians "is episodic, manageable within current response mechanisms and, on a global scale, less harmful than threat[s] posed by other types of unexploded munitions".[15] He omitted any reference to hazards to civilians which cluster munitions pose at time of use, or the likely humanitarian consequences of their further proliferation. Moreover, he failed to note that where they have been used, unexploded submunitions often have caused a particular humanitarian hazard as compared with other types of unexploded ordnance.[16] Notably, while stating support for the initiation of a negotiation, the United States was careful to clarify that it had "taken no position as to the outcome of the negotiations".[17]

To some, the apparent change in the US position looked like the time-honoured 'ping-pong' diplomatic tactic, perhaps intended to prevent mass defections to an Oslo Treaty in the awareness that it would be politically difficult for supporters of the Oslo Process to appear to reject a CCW negotiating mandate on cluster munitions.[18] Was not the CCW's prior failure to negotiate, after all, the rationale for their efforts? Yet, despite movement by the US delegation and others, the June expert meeting's recommendation to its Meeting of States Parties to be held in November could not wholly paper over the differences still apparent in the CCW.

The expert meeting recommended that the November meeting make some sort of decision about whether and how the CCW would address the humanitarian impacts of cluster munitions. But its heavily qualified language did not offer a clear pointer about what that decision should be — in a process in which states remained divided over whether there should even be a negotiation, let alone what its scope and provisions should be.[19]

From Belgrade to Vienna

As a humanitarian initiative trying to distinguish itself from the technocratically-inclined CCW, there was a strong desire among core-group countries and their non-governmental partners in the Oslo Process to bring more attention to the humanitarian and developmental dimensions of cluster munition use. Indeed, the framing of the policy debate in these terms was seen as critical to a successful outcome. An attendant concern was to build upon the strong political momentum shown in Oslo and Lima before the next Oslo Process meeting in Vienna in December 2007, which would be hosted by the Austrian Government. At that time, there was a growing realization based on the Lima talks and ongoing internal Oslo core-group meetings about just how much work needed to be done to achieve a robust treaty within the timeframe called for by the Oslo Declaration.

A Conference of States Affected by Cluster Munitions held in Belgrade from 3 to 4 October (and a CMC-hosted civil society forum immediately preceding it) helped to refocus the Oslo Process during this period. Organized by the Serbian Government and the United Nations Development Programme (UNDP) and associating itself with the Oslo Process, the objective of the Belgrade Conference was to ensure that a range of perspectives from states and individuals affected by cluster munitions was heard and included. Participants discussed victim assistance, cluster munition clearance, international cooperation and assistance, stockpile destruction and proliferation issues. Attention was given to the voices of those suffering the effects of cluster munitions such as survivors and their families, and the media also picked up on this.[20] In total, 37 governments attended, including 22 countries affected by cluster munitions, as well as various entities of the United Nations, the ICRC and a strong civil society presence, including the CMC, which played a major role.[21] The Belgrade Conference also cemented the humanitarian credentials of the Oslo Process: it was, in effect, an endorsement by affected countries (many of them were not members of the CCW) of the Oslo initiative's legitimacy in tackling such concerns. This legitimacy was strengthened by regional meetings in Costa Rica on 22 September and Brussels on 30 October.

Alongside the growing profile of humanitarian concerns about the consequences of cluster munition use, efforts to achieve a work mandate in the CCW intensified — driven by the United States and its allies among the 'like-minded'. In November 2007, the CCW's annual Meeting of States Parties achieved consensus on a mandate to "negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations", with seven weeks of meetings scheduled in Geneva throughout 2008.[22] This was especially important to the 'like-minded' states because they believed it would ensure the continued engagement of major users and producers outside the Oslo Process on cluster munition-specific measures, especially their American ally — at least as long as the Oslo Process lasted. It would also help to turn aside accusations that the Oslo Process undermined the CCW, to which the 'like-mindeds' were sensitive. And, it would keep the CCW in play as an alternative should the Oslo Process's core ambitions on the scope of a cluster munition prohibition prove too rich for individual 'like-minded' countries to stomach.

The United States, for its part, claimed that the CCW's achievement of its cluster munition work mandate "means an issue considered important by most states and their publics will be addressed in the appropriate framework".[23] On the face of it, it seemed a change of heart for the CCW, which had resisted the idea of negotiating on cluster munitions for more than a quarter of a century. However, when set alongside the Oslo Declaration, the CCW mandate was weaker in almost every way. For example, it agreed to "negotiate a proposal" rather than a binding international legal instrument.

It was also clear that states like Russia and China went along with the commencement of work only reluctantly. Russia, for example, told the November 2007 CCW meeting: "Frankly speaking, we are not sure that a practical basis for negotiation on cluster munitions has ripen[ed]. We fail so far to agree upon [an] eventual subject for future negotiations, that is on a definition of cluster munitions. Other aspects remain as well, on which there is no agreement amongst us, including also on objectives of possible negotiations".[24] Russia said that while it was prepared to consider proposals to "clarify" existing principles and rules of international humanitarian law with respect to cluster munitions, it did not accept the need for new rules or restrictions on use, technical improvements or, for that matter, any prohibitions on cluster munition types.[25]

Over the following months in CCW expert work, it would become clear that others, such as China, India, Israel, Pakistan and even the Republic of Korea, shared similar views. The CCW's agreement on a mandate to negotiate a proposal, therefore, did not mark a substantial shift in the views of the CCW's membership as a whole on the need to negotiate a treaty to ban cluster munitions, as the Oslo Process sought to do. But a continued CCW process did make sense from a wide range of tactical and political perspectives — even for countries opposed to any new measures to protect civilians from cluster munitions.

Vienna

Any concerns that the CCW's 2008 mandate on cluster munitions might undermine international momentum behind the Oslo Process were dispelled at the Vienna Conference from 5 to 7 December. Significantly, 138 countries — almost double the number attending the Lima Conference six months earlier — registered for this meeting. Austria's parliament passed domestic legislation outlawing cluster munitions (as it defined them nationally) that same month.[26] A discussion text tabled by Austria and the other core-group countries resulted in clear signals of collective support for strong treaty provisions on victim assistance and assistance and cooperation, among other issues.[27] But it also underlined that there was much further work to be done on the two most contentious issues in a prospective treaty: how to define cluster munitions that cause unacceptable harm to civilians; and the issue of military interoperability with states not party to a future treaty.

Of these potentially 'treaty-breaking' issues, centre stage in Vienna was taken by efforts to define cluster munitions for the purposes of prohibition. February's Oslo Declaration had contained a commitment for states to "prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians", but Article 2 of the Vienna discussion paper prepared by the Oslo core-group omitted the phrase "that cause unacceptable harm to civilians". Countries such as France, Switzerland, the Netherlands and the UK reiterated their view that not all cluster munitions have unacceptable consequences for civilians. Citing ICRC formulations concerning inaccurate and unreliable submunitions, they argued that concepts of accuracy and reliability should be benchmarks for what is deemed acceptable or not. This drew a sharp response from the ICRC, which saw its position as being misconstrued. Telling the Conference that these were the characteristics of unacceptable cluster munitions, not criteria for creating exclusions, the ICRC said that such characteristics applied to the vast majority of existing cluster munitions, and virtually all that had been used to date. In the ICRC's view all such munitions should be banned on humanitarian grounds.[28]

Despite these disagreements, the Vienna Conference did make useful progress in clarifying aspects of the definition. A common view emerged on less problematic exceptions, such as mines (already covered by other treaties), flare, smoke and chaff munitions and submunitions that are inert post-impact. Proposals for other exemptions for explosive submunitions based on factors such as reliability, low number per container or sensor-fusing technologies, however, did not command wide agreement.

Civil society, under the CMC's leadership, was active and well-organized at the Vienna Conference. A significant development in Vienna underlining the importance of the NGOs' substantive input was the presentation of a report on the M85 explosive submunition and its variants possessed by several of the 'like-mindeds', some of which incorporate a self-destruct feature that allegedly reduces their humanitarian impact. Some of the 'like-minded' states felt that self-destruct, self-neutralization or self-deactivation features in submunitions would make them acceptable. However, the detailed report, titled M85: An Analysis of Reliability, prepared by the Norwegian Defence Research Establishment, Norwegian People's Aid and an independent British expert in explosive ordnance disposal, showed comprehensively that they should not be treated as acceptable.[29]

The report drew on Norwegian Government testing data and post-conflict surveying in Southern Lebanon, where Israeli Defence Forces had used the M85 extensively in 2006. The clear and concise presentation of the M85 report, together with its authors' explanation of how such cluster munitions work and how submunitions can fail, complemented the ICRC's points and made a strong impression on many of those represented in the Vienna Conference hall.

In the end, after astute work by New Zealand's Ambassador Don MacKay, who was responsible for chairing the definition discussions, the Oslo Process text left Vienna with two of the three open spaces for exclusions from the definition filled (by non-explosive submunitions) and only one further slot available in paragraph 2(c). This significantly reduced the scope for broad exemptions for the 'like-minded' countries' cluster munitions.

Wellington

Work had proceeded on the basis of an evolving Chairs' discussion paper at the Lima and Vienna Conferences, in which Oslo core-group states factored in proposals made in the meetings by various delegations according to their assessment of how these views balanced out. This process differed from the traditional approach of negotiating on a rolling text with square brackets around contentious issues. The next and penultimate Conference of the Oslo Process would be key to managing the transition — textual and psychological — from a discussion paper to a draft treaty.

Held in Wellington, New Zealand from 18 to 22 February 2008, this meeting marked a major tactical juncture because the Wellington Conference's Declaration was intended to constitute the formal mechanism by which states would move closer to a formal process of treaty negotiations in Dublin in May. This echoed the Ottawa Process on landmines, in which each state's adherence to the June 1997 Brussels Declaration had been required for it to participate formally in the final stage of negotiations in Oslo.[30]

To pave the way, the draft Cluster Munitions Convention text and draft Wellington Declaration were both made available in late January.[31] Achieving a successful transition to enable negotiations to go forward in Dublin would not prove easy, however. Although the Wellington Conference got almost straight down to business after a one-hour Maori powhiri and high-level speeches, there was little time to spare. Since Vienna, views in the Oslo Process had been polarizing, making it even harder to tackle the key issues that needed to be brought to the point where solutions could be identified and settled.

The Wellington Conference was made even more difficult because the 'like-mindeds' had come determined to shape the text straight away and to that end had tightened their coordination on the Conference floor and in informal consultations on issues such as definitions, transition periods and interoperability. Australia, Canada, Finland, France, Germany, Japan and the UK, in particular, pushed very hard for their own proposals to be taken up into the draft Convention text. This was something the Chair of the Conference, Ambassador Don MacKay of New Zealand, firmly resisted: textual negotiation was for Dublin, he said. The CMC, meanwhile, made "no changes to the text" its core lobbying message for the Wellington Conference.

Partly because of the 'like-minded' group's tactics, opposition to their desire for textual negotiations on their proposals emerged among a spectrum of mainly developing countries, prominent among them Costa Rica, Indonesia and Lebanon. This large and diverse cross-section of states from various regions became known among the core-group as the 'teetotallers' because of their common desire for a treaty with no exclusion from the definition of a cluster munition under Article 2(c) of the draft Convention[32] and their shared opposition to a transition period for cluster munition use. The 'teetotallers' were prepared to engage with proposals from the 'like-minded' countries (and others), but many bridled at the tone of some of this active minority and disliked the 'like-minded' attacks on process, which at times appeared very antagonistic towards the Chair.

As it became clear that MacKay would not permit textual negotiation, the 'like-minded' countries turned to the status of a compendium paper. The compendium was a document prepared by the Chair comprising all of the various non-papers presented in Wellington containing proposals on the draft Convention text.[33] The issue revolved around whether the proposals in the compendium text would have equal status with the draft Convention text in Dublin, even though many were plainly minority views among the 124 countries represented in Wellington.[34]

Draft rules of procedure for Dublin circulated on the penultimate day of work in Wellington said that the draft Convention text "shall constitute the basic proposal for consideration by the [Dublin] Conference"; the compendium proposals would count as 'other proposals', a distinction that could conceivably make a difference if the Dublin Conference resorted to voting, which the 'like-mindeds' feared might occur.[35] Some of them argued that the draft Convention text was not an agreed document, and so there should be no difference in status between it and their proposals. The Chair's view, with a lot of support from others, was that the draft Convention text possessed legitimacy as it was the product of several rounds of talks in open format since early in the Oslo Process.

In the end, the Wellington Declaration stated that governments: "also welcome the important work done by participants engaged in the cluster munitions process on the text of a draft Cluster Munitions Convention, dated 21 January 2008, which contains the essential elements identified above and decide to forward it as the basic proposal for consideration at the Dublin Diplomatic Conference, together with other relevant proposals including those contained in the compendium attached to this Declaration and those which may be put forward there".[36] Though several of the 'like-mindeds' grumbled in their closing statements about lack of transparency in the process and linked their adherence to the Wellington Declaration with the understanding that the draft Convention text and compendium would — or should — have equal standing in Dublin, by the end of the first week of the Dublin Conference on 23 May, 119 countries supported the Wellington Declaration.[37]

While the Wellington Conference had been bruising, it ultimately succeeded in its objectives. As it turned out, the status of the compendium never became an issue in Dublin, but the debates had served a purpose. MacKay, too, had been willing to be a lightning rod for criticism of the Oslo Process in order to move matters forward. Wellington had also exposed differences in approach among the Oslo core-group, with Norway becoming more active in promoting a national position that differed from 'teetotallers' such as Austria and Mexico.[38]

Taking sides

Meanwhile, the CCW had begun meeting on the basis of its new mandate to "negotiate a proposal" on cluster munitions, as agreed in November 2007. An expert meeting chaired by Denmark was held in Geneva from 14 to 18 January 2008 and had made initial progress, including consultations by Russia on a "draft working definition" of the weapons it would be talking about. But the CCW's one-page draft working definition contained 40 square brackets and more than 50 different possible permutations.

During the next CCW government expert meeting in mid-April, consultations focused instead on potentially less contentious topics such as clarification of existing international humanitarian law provisions on cluster munition use. However, the United States told CCW parties that it needed time to complete an ongoing multi-year internal review of its policies on cluster munitions.[39] And it was clear from the April CCW meeting that the national positions of China, Russia and others had not become any more amenable toward a new legal instrument.

It was now obvious even to the 'like-mindeds' that the CCW's prospects for addressing cluster munitions were at best uncertain. The margins of the CCW meeting, however, provided plenty of opportunities for those involved in the Oslo Process to plan, coordinate and reach out to each other and heal some of the wounds from Wellington. In other words, the April CCW expert meeting proved to be additional useful preparation for the Dublin Conference.[40]

There was plenty of other activity in support of the Oslo Process in the final months leading up to the Dublin Conference. Bilateral consultations between core-group states and others were reaching a crescendo. Forty African states signed up to the Livingstone Declaration agreed in Zambia on 1 April in support of the Oslo Process and a humanitarian treaty on cluster munitions.[41] Mexico hosted a conference of 22 Latin American and Caribbean states in Mexico City from 16 to 17 April. From 23 to 24 April, the ICRC convened a workshop of around ten ASEAN states in Bangkok to engage them on cluster munition issues, which served to drum up Asian attendance for the Dublin negotiations. And a Global Day of Action on 19 April coordinated by the CMC in more than 50 countries underlined civil society's advocacy efforts.

It should not be thought that the states opposed to the Oslo Process were sitting on their hands either. It was generally known in the CCW and Oslo circles that the United States was talking privately to its military allies about its concern that a new Oslo humanitarian treaty to which it would not be a party would make joint military operations between them more difficult. In addition to what officials said off-the-record, evidence of these talks was provided by the loosely-coordinated manner in which several European NATO countries, as well as Australia, Canada and Japan, campaigned in Oslo Process Conferences for treaty provisions on interoperability. In late April, US State Department official Richard Kidd publicly warned that "cooperation within NATO is in the crosshairs of the Oslo treaty". In a further attempt to discredit the Oslo Process he claimed, "NGOs were allowed to heckle state delegations in plenary and surrounding venues, using funds provided by one state participant [Norway, presumably] to attack the positions of other state participants. Is this the kind of international system that any administration wants to work in?"[42]

On 21 May, two days after the Dublin Conference commenced, Stephen Mull, Acting Assistant Secretary for Political-Military Affairs at the US State Department, held an "On-the-Record Briefing" for journalists to explain why the United States had refused to attend the Conference. Mull said the United States had a "tactical disagreement" with the Oslo Process that "unless you get all the major producers and users of these weapons to agree on how they're going to regulate them... you're not going to meet your goal of addressing the humanitarian impact of them". He did not address the fact that the Oslo Process was underway because of the failure of major users and producers to reach such agreement in the CCW, in part because of its consensus practice.

In these and subsequent remarks, which one American commentator described as a "cluster of fallacies"[43], Mull also homed in on military interoperability: "for example, if the [cluster munition] convention passes in its current form, any US military ship would be technically not able to get involved in a peacekeeping operation, in providing disaster relief or humanitarian assistance as we're doing right now in the aftermath of the earthquake in China and the typhoon in Burma, and not to mention everything that we did in Southeast Asia after the tsunami in December of 2004. And that's because most US military units have in their inventory these kinds of weapons. So with one stroke, any country that signed the convention as it exists now and ratified it, in effect, would make it impossible for the United States or any of our other allies who rely on these weapons to participate in these humanitarian exercises".[44]

Mull's remarks, to the extent they were noticed by participants in the Dublin Conference, were regarded with puzzlement, including by officials of other NATO countries. If their tactical purpose was to influence or undermine the Dublin negotiations, their hyperbole made it hard for anyone to take him seriously. Besides, most of those present in Dublin were already well aware that a solution to interoperability concerns would have to be found. It was now a question of identifying where such agreement might lie and what trade-offs would be able to be made in terms of the content of other key provisions, such as defining cluster munitions, and whether there would be a transition period allowing for continued use of cluster munitions for a time.

Dublin

From the first day in Dublin it was strikingly apparent that virtually all of the participating states at the Croke Park conference genuinely sought to achieve a treaty. Indeed, strong statements of resolve from Ireland's Foreign Minister, the UN Secretary-General (in a video message), the ICRC's President and a senior UNDP representative were widely welcomed, including by the 'like-minded'.

The President of the Conference, Ambassador Dáithí O'Ceallaigh of Ireland, a veteran of the Northern Ireland peace process and a man with a keen sense of what diplomats sometimes refer to as the "smell of the room", clearly spelled out his intentions: "we will adopt a Convention at the conclusion of this Conference. It's my hope that that Convention will be adopted by consensus, and as I've emphasized throughout my consultations, it's my intention to make every feasible effort to reach general agreement. But I want to underline once again: we will adopt a Convention by the end of next week".

There is not space here to give much more than a general sense of how the Dublin negotiations progressed.[45] At the outset, though, it is important to mention that though there were controversies over definitions, associated concepts and military interoperability throughout the Oslo Process, excellent progress was being quietly made in developing agreement on many of the substantive areas of a Convention text. These provisions included groundbreaking new standards on victim assistance, as well as for cluster munition clearance, stockpile storage and destruction, international assistance and cooperation and transparency measures.

Differences still existed, to be sure, on issues such as whether cluster submunitions could be permitted for training and development purposes and the nature of provisions relating to the particular obligations of past cluster munition user states. But most substantive issues were settled in the first week of the Dublin Conference under the auspices of Friends of the President. Many of these provisions show lessons had been learned from the negotiation and implementation of previous multilateral agreements such as the Mine Ban Treaty, CCW Protocol V and the Convention on the Rights of Persons With Disabilities. The CCM, for example, contains better language on victim assistance than those earlier agreements and has more robust transparency provisions than the Mine Ban Treaty.

Such advances were significant not least because they gave affected countries and others in the developing world stakes in a successful outcome to the negotiations, and helped to ameliorate any perceived 'North-South' divide, which some had feared might occur. As for the 'like-minded', there appeared to be recognition among at least some that pursuit of their interests could be nuanced. As a consequence, delegations from various states, including Australia, Canada, France, Germany and the UK, made a habit of prefacing their statements by reaffirming their commitment to the humanitarian aims of the Oslo Declaration.

There were signs too that these countries were feeling domestic political pressure to promote a successful outcome. The CMC, in particular, had intensified its lobbying efforts in the lead-up to the Dublin Conference. It had well-developed media and parliamentary contacts in many countries, especially in the UK, and CMC campaigners were well-organized for Dublin. In the Conference chamber itself, the CMC was limited to a few representatives, but they made good use of their delegation with a highly effective 'front-bench' of experts, each specializing in particular issues. In addition, the CMC had developed a wide constituency among many of the 'teetotal' states, who listened to its views carefully, along with the views of the ICRC and UN field and research agencies.

An important target for civil society lobbying was the United Kingdom, a prominent past user and current possessor of cluster munitions, NATO state and close ally of the United States. Because of these factors, Britain was generally recognized as a valuable, although not necessarily crucial, state to bring on board. Throughout the Dublin Conference, the UK's cluster munition policies and negotiating posture attracted major coverage in the British media.

A letter in The Times from several senior former British military generals on 19 May was especially significant and helped to further undermine military arguments for retaining weapons of humanitarian concern in the Oslo Process like the M85. In particular, the letter called for "the Government of the United Kingdom to give up its remaining stocks of cluster munitions and agree the strongest possible ban on the weapon in the treaty negotiations in Dublin, starting today. Such a treaty will establish a new benchmark for the responsible projection of force in the modern world".[46] Two days later, Gordon Brown's spokesperson announced "the Prime Minister had asked the Ministry of Defence to assess the remaining munitions to ensure there was no risk to civilians".[47]

Defining cluster munitions

Ambassador O'Ceallaigh began leading the Conference through the draft treaty text in its Committee of the Whole, starting from Article 1 on the first Monday afternoon. At the same time, O'Ceallaigh spun off some of the trickier treaty issues to various Friends. Meanwhile, most unusually (and most welcome) for a diplomatic conference of this size, the plenary wound up its speakers' list before the end of its first day. Don MacKay was appointed Friend on Article 2 (definitions) to continue the task New Zealand had undertaken since the first Oslo Conference of finding agreement on the definition of a cluster munition. MacKay, in turn, asked Irish Army Lieutenant-Colonel Jim Burke to take responsibility for negotiations on all of Article 2's other definitions with the exception of 'cluster munition victim', which was dealt with by Austria, as Friend for the victim assistance provisions.

MacKay's decision to concentrate his own efforts on the crucial definition of a cluster munition, and those of his colleague and main helper Charlotte Darlow, was prudent. Their approach, as it had been in Vienna and Wellington, was attritional: they patiently heard out all of the arguments for and against various proposals for exclusion from the definition (since anything defined as a cluster munition would be banned) and cross-examined them about the humanitarian effects, with the input of others in the room. The key exclusion language to be settled was contained in paragraph 2(c). There remained several proposals in play as a basis for the cluster munition exclusion in 2(c) that included the number of submunitions per weapon, direct fire, self-destruct and self-neutralization capability and sensor-fusing.[48] Many in the room knew that most of these criteria failed to stand up to scrutiny and were fronts for individual delegations' attempts to justify retaining the weapons they had in stockpiles. Inconveniently for some of the 'like-minded', MacKay insisted on open informal consultations, in which observers such as the ICRC, UN and NGOs were present and active in the discussions.

MacKay's biggest problem, as foreseen in Wellington, would be having enough time to examine the various proposals in play, but he managed. To help him cut through the rhetoric, MacKay often called on Colin King, an independent consultant on explosive ordnance and former British soldier, to give his technical assessment. By Thursday of the first week, MacKay was in a position to offer the Chair text on a definition of a cluster munition — including specific exclusions — which he believed stood a chance of agreement:

"'Cluster munition' means a munition that is designed to disperse or release explosive sub-munitions, and includes those explosive sub-munitions. It does not mean the following:

a) a munition or sub-munition designed to dispense flares, smoke, pyrotechnics or chaff; or air defence systems;

b) a munition or sub-munition designed to produce electrical or electronic effects;

c) a munition that has all of the following characteristics which minimise its area effect and the risk of unexploded ordnance contamination from its use;

a. each munition contains fewer than 10 sub-munitions;

b. each sub-munition is designed to locate and engage a point target within a pre-defined area;

c. each sub-munition is equipped with an electronic self-destruction mechanism;

d. each sub-munition is equipped with an electronic self-deactivating fuse."[49]

The key element that did not make it into this formulation was a Norwegian proposal for a minimum and maximum weight criterion as a basis for exclusion, which had support from the CMC and France, among others.[50] This concept would be reintroduced in the second week, although with a slightly different weight range.

Between Wellington and Dublin, the positions of the 'teetotallers' had, in some respects, hardened against a 2(c) exemption. Many felt uncomfortable in MacKay's informal consultations to be negotiating on a provision they were in principle opposed to. Their discomfort was compounded as interpretation into French and Spanish was not generally available, although UNDP organized interpreted lunchtime briefings, which helped. Paragraph 2(c) also exposed tensions among civil society actors. As in Wellington, the CMC fielded a highly competent and experienced team of representatives in the negotiations, but their efforts to chip 2(c) away to a bare minimum through detailed and substantive argument were not necessarily well understood by all of the CMC's campaigners. Many NGO representatives were attending an international diplomatic conference for the first time and relied on daily briefings and gossip to gain a picture of what was happening behind the Conference doors. Surprised at how quickly the parameters of a definition of cluster munitions had come together in Dublin, some were initially critical that their CMC front-benchers had 'given away' too much. Such charges proved to be without merit and this storm soon passed.

Interoperability

O'Ceallaigh had appointed Swiss Ambassador Christine Schraner Burgener as his Friend on interoperability, and she took a different approach to MacKay's open informals on definitions. Definitions were of relevance to all countries in the negotiations; interoperability was of core importance for a limited number. In line with this kind of reasoning, Schraner tried to keep discussions relatively closed by restricting the number of delegations involved to less than 20. As the lawyers worked to hammer out a textual compromise, some progress was made during the first week. For example: proposals that interoperability provisions be inserted into the general scope and obligations provision (Article 1) of the draft Convention eventually gave way to general support for a new provision (Article 21) on "Relations between States Parties and States not parties to this Convention".

A major concern of the 'like-minded' was to safeguard their military personnel from liability in joint-operations with forces of states not party to the Convention, in which cluster munitions might be used. By the time the Friend of the Chair held her last consultation on Tuesday morning of the second week, the 'like-minded' were reasonably comfortable with the text as it pertained to this concern. But there was another problem — one that was not within the power of the lawyers to settle in Article 21, and which required a political solution.

This final difficulty came down, in effect, to American military bases. Among the larger of the states in the 'like-minded' group, France had no US bases on its soil, and the terms of Germany's agreements with Washington over bases in its territory were such that Berlin did not exercise legal jurisdiction over them. Despite the complexities, by the end of the first week in Dublin, the major substantive hurdles had been surmounted toward France and Germany being able to buy into a Convention.[51] The British concerns, in contrast, proved more intractable. While American military bases on British territory, which included places like Diego Garcia in the Indian Ocean, as well as mainland Britain, were in practice controlled by the United States, Britain was legally responsible for them. This controversial arrangement had been recently highlighted over the use of British facilities in the rendition of people deemed by the US authorities to be terrorist suspects without due legal process. The concern was that the United States would likely have cluster munitions stockpiled in many of these bases, which could put the UK in violation of the Convention if it became a state party. Similar concerns regarding the hosting of foreign bases also affected Italy and Central and East European members of NATO.

To resolve the bases problem the UK wanted a provision stipulating that a State Party to the Convention would be able to "host States not party to this Convention which engage in activities described in Article 1". And this formulation was included in the Friend of the Chair's proposal for the Committee of the Whole at the end of the first week.[52] But in the face of deep opposition from a large number of states in the negotiations, it became clear by early in the second week that this and similar formulations would not fly. Rightly or wrongly and perhaps because many of the states in the Dublin Conference were not directly involved in the Swiss consultations, 'hosting' was perceived by many as tantamount to a get-out clause from the Convention's prohibitions. Yet it was a crucial provision for the UK if it was to sign up to the Convention.

The endgame

Although most of the rest of the draft Convention had taken shape by Tuesday of the second week, at the end of that afternoon no solution had been found on interoperability, despite the intensive Swiss-led informal work. President O'Ceallaigh told his Friends that he would resume direct responsibility for the draft Convention text, and announced to the Conference he would use the next 24 hours for bilateral consultations. The Irish carefully kept their concerns about interoperability to themselves: they knew by now that a Convention would be achieved with or without the British. But they also had reason to believe that if the UK were not on board it would make it harder for other 'like-minded' states with stockpiles of cluster munitions and US alliance commitments to join — and those states were anxious.

To lose the British would be a blow. But having asked the UK for greater flexibility there was little more the President could do. On Tuesday night, as O'Ceallaigh and his team were in the midst of their consultations with individual delegations, a news story appeared on the website of The Guardian newspaper, which would be printed the next morning. It reported that the British government "is preparing to scrap Britain's entire arsenal of cluster bombs".[53] This was confirmed the next day when Prime Minister Brown announced that "In order to secure as strong a Convention as possible in the last hours of negotiation we have issued instructions that we should support a ban on all cluster bombs, including those currently in service by the UK".[54]

This change of approach was important for at least two reasons. First, while the writing had been on the wall for the M85 submunition for some time, Britain's delegation in Dublin had fought very hard for the multipurpose M73 submunition rocket, a so-called 'direct fire' cluster munition fired from Apache gunship helicopters. While the latest draft Convention text would, if agreed, prohibit the M73, it was unclear until Tuesday night whether the UK could accept that. Second, while The Guardian story and the subsequent official Downing Street announcement made no mention of any change of policy on interoperability, it signalled that Britain wanted to buy into the Dublin outcome, which was helpful information for others.

At the same time, it became apparent that the other aspects of Article 21 as they related to joint-operations met the bottom lines of the 'like-minded'. In an important breakthrough on Tuesday evening, a President's formulation of paragraph 3 of Article 21 that dropped reference to hosting was accepted by the UK. But it was by no means clear whether the Chair would be able to achieve agreement on a treaty text in the Conference plenary.

On Wednesday morning O'Ceallaigh issued a complete draft Convention text (CCM/PT/14), prepared during the night, and asked all delegations to seek instructions from their capitals on whether they could accept it.[55] The 'Presidency Paper' was based on the work in the Friends' consultations and the Committee of the Whole, rounded out with the President's take on solutions to the remaining issues following his bilateral meetings and drawing heavily on his team's judgement. However, the 'teetotallers' still opposed any 2(c) exemption in the cluster munition definition on principle. Moreover, some 'teetotal' delegations still struggled to understand the weight criterion concept reinserted into the definition as part of cumulative criteria for exclusion. At the same time, some delegations would have to come to terms with the fact that 2(c) would exclude certain munitions using sensor-fused technologies such as the German SMart 155 and the French-Swedish BONUS systems from a ban.[56] On the other hand, cluster munitions as a category were to be clearly banned, and there were no transition periods on use, something many of the 'like-minded' had wanted. Following tough discussions in the Committee of the Whole the preceding Friday, O'Ceallaigh and his team had judged that proposals for a transition period of use were dead in the water since opposition had been so firm and widespread.

The conclusion the President and his team had drawn from their many bilaterals was that CCM/PT/14 should not be changed further, lest the Dublin negotiation unravel. During the lunchtime on Wednesday, O'Ceallaigh and his military colleague Jim Burke met with the African group and then the Latin Americans to try to sell this course of action. However, emerging from these meetings, the President still felt less than certain that all of these 'teetotallers' would support the adoption of the Convention on the plenary floor.

O'Ceallaigh then met with delegates from the CMC, Canada and the UK at the CMC's request. The CMC representatives were unhappy with the interoperability formulation, and wanted drafting changes in order to further specify the prohibition on assistance to prohibited activities by a non-State Party in Article 1 of the draft Convention. The CMC hoped to secure agreement from Canada and the UK, two countries that had been among the toughest on interoperability, and so persuade the President to amend the draft Convention text one last time on an issue that had not been discussed in the Committee of the Whole. However, the attempt failed, since Canada reiterated that it would not go along with further changes. O'Ceallaigh therefore told the disappointed CMC representatives that he would not make the changes they were proposing. As they left his office, the President was concerned that the CMC might not support the draft Convention. Although the CMC was an official observer rather a state participant in the negotiations, civil society support was important to the legitimacy of the Dublin outcome, and the CMC had been a crucial partner throughout the Oslo Process.

By now it was around five o'clock on Wednesday afternoon. The clock had been stopped and more than a hundred delegations had been waiting for several hours for the last of the three language versions of the Presidency Paper (Spanish) to become available.[57] O'Ceallaigh now had another outstanding problem to solve: Lebanon, a state affected by cluster munitions and an active and influential country among the 'teetotallers', reiterated that it would not agree to the draft Convention unless the word "strongly" was added to the provisions in Article 4 to give more weight to calls for assistance from past user states for clearance of cluster munition remnants and risk reduction education. The UK and others had earlier opposed this proposal.[58] Conferring on the spot with the Lebanese and British delegations, O'Ceallaigh asked the UK to flex just a tiny bit more. In two minutes, the answer came back from London: yes, we can go along with the change. But how would the President sell this change to the draft Convention text that he had adamantly refused to change moments before?

Visibly nervous as he seated himself at the podium, O'Ceallaigh called the meeting to order. Without further ado, he asked the Deputy Foreign Minister of Zambia, Fashion Phiri, to speak, following protocol about seniority in speaking order. O'Ceallaigh hoped that this influential member of the Africa group would speak in support of the draft Convention text, but while using generally supportive terms, Zambia did not endorse the draft Convention as a final product. So O'Ceallaigh took the floor and reviewed his modus operandi and the main points of the draft text. Noting that agreement was now needed, he informed the Conference: "The Presidency paper before us now represents my assessment at this point of where the best balance of interests and compromise consistent with the Oslo Declaration now lies. It is a package of elements that entails concession for all sides but remains nevertheless an extremely ambitious Convention text that meets the objectives we set ourselves in Oslo in February last year".

Zambia took the floor again, this time on behalf of the Africa Group, and made clear that the Africans could endorse the package, although they remained unhappy with certain elements of the text. After commending Gordon Brown's Wednesday announcement about destroying the UK cluster munitions stockpiles, however, Zambia sternly warned that if others opened up the text the Africans would reconsider. A cascade of endorsements ensued with New Zealand, Canada, Mexico, South Africa, Switzerland, France, the Philippines and Indonesia echoing support for the "ambitious, detailed and balanced text".[59]

Spotting his moment, O'Ceallaigh intervened again to alter Article 4 paragraph 4 to make a "correction" and insert the world "strongly". With the British on board the change, no one objected, and in this discreet manner the Chair was able to take advantage of the momentum to meet Lebanon's concerns. More than two hours of statements endorsing the Convention on Cluster Munitions followed. Unlike in the traditional cold war fora, not only states, but also intergovernmental and nongovernmental organizations like the United Nations, ICRC and CMC were part of the process and could express their views in the meetings.

Finally, early that Wednesday evening, negotiators at the Dublin conference agreed to return to Croke Park on Friday 30th May to formally adopt the Convention on Cluster Munitions — for many Thursday would be a day of recuperation, while for the conference's secretariat it would be one of frantic work to ready final documents. Nevertheless, the world now had a new humanitarian treaty banning cluster munitions.[60]

Conclusion

The Convention on Cluster Munitions is a stunning achievement. It is important because it sets a new international legal norm and enshrines a comprehensive package of weapon-specific measures to ban cluster munitions that endanger civilians, clear contaminated land and help victims, with provisions on international cooperation and assistance.[61] The CMC norm is likely to be quickly embedded and widely-adhered to as the treaty should enter into force quite rapidly. As government officials and campaigners in many countries have already turned their attention to getting their countries to accede to the CCM, a signing ceremony in Oslo in early December provides an immediate goal.[62]

The importance of the Oslo Process as a precedent for other international negotiations is less straightforward. What is tangible is that, like the Ottawa Process of the 1990s, a free-standing international process — a coalition of the willing including a wide range of states, international organizations and diverse civil society actors — developed a robust international legal norm to ban a weapon system of humanitarian concern. In both cases, this was something the traditional forum of the CCW had proved unable to do.

Many participants and observers, from those supportive and opposed to the Oslo Process, realized the many similarities between the campaigns against anti-personnel mines and cluster munitions. But there are also some important differences to be borne in mind. These include the nature of the weapons under consideration and the international circumstances that gave rise to collective action. It was not simply that the Ottawa Process was a model for the Oslo Process; what could be observed was that the Cluster Munitions Convention succeeded because, on the basis of the previous experience, many actors involved in the Oslo Process adapted the lessons learned in the Ottawa Process to the new context in significant ways.

Norway, the instigator of the Oslo Process, observed in its closing statement to the Dublin Conference that, "In essence, this process and the new Convention on Cluster Munitions, is disarmament as humanitarian action" utilizing a shared humanitarian approach, partnership between cluster munition-affected and non-affected states and "instrumental partnership with civil society".[63] However, Norway also underlined the importance of "shared understanding and appreciation of our individual circumstances, competence and roles", and each of these differed from the Ottawa Process.

Certain naysayers argue that because certain users and producers of cluster munitions did not participate in the Oslo Process, the treaty's effectiveness will be limited.[64] A related criticism of the CCM is that it was only possible because those states were not in the negotiating room. However, this serves to underline how dominant the views of that cluster munition using/producing minority have become in other forums such as the CCW. The real issue in the CCW is not one of sufficient political will, but how easily the CCW's decision-making practices have thwarted substantive progress toward addressing the humanitarian impacts of certain kinds of inhumane weapons, notably in this case, cluster munitions. Like the Mine Ban Convention a decade before, the Oslo Process has exposed the CCW process as favouring the lowest common denominator — in seeking to strike a balance between military and humanitarian considerations on cluster munitions the scales in the CCW unerringly seem to tip toward the former.

This problem must be addressed because the CCW needs to be strengthened as it is an important humanitarian law treaty and a workshop for new norms. A major challenge now in the CCW concerns how its mandate on cluster munitions can credibly be fulfilled before the end of 2008. Besides the minimalists, which resist restrictions on cluster munitions or new legal rules on use, the Chair, Ambassador Wigotski of Denmark, will now also need to contend with a large number of countries that will be concerned to ensure that any CCW outcome does not undercut the higher standard already achieved in Dublin through the CCM.

Supporters of the CCM hope that, even without China, India, Pakistan, Russia and the US coming on board in the short term, the treaty's ban on cluster munitions will nevertheless have a stigmatizing effect on the use and transfer of these inhumane weapons.[65] They note that, despite some significant countries not joining major disarmament-related treaties in the past, they have often had an eventual change of heart.[66] And they cite the effectiveness of the Mine Ban Treaty in stigmatizing anti-personnel mine production, transfer and use, not only among states but non-state armed groups.[67]

Nevertheless, there are many practical challenges ahead for the new Convention, which will need to develop international critical mass and show it can make a real difference to people on the ground. If the Mine Ban Treaty implementation process is any guide, there is cause for optimism — something that has been in short supply in the multilateral disarmament field over the last decade, and which is very welcome now.

Notes

[1] Statement by the President of International Committee of the Red Cross Jakob Kellenberger to the Diplomatic Conference on Cluster Munitions, 19-30 May 2008, 19 May 2008.

[2] The Convention on Cluster Munitions, adopted at the Dublin Diplomatic Conference on 30 May 2008 as document CCM/77, can be downloaded from www.clustermunitionsdublin.ie/documents.asp. Although an initial count of participating delegations in Dublin was 111, the final count was later confirmed to be 107.

[3] See Cluster Munition Coalition, Action Plan to Achieve Rapid Entry into Force of the Convention on Cluster Munitions, Dublin, 30 May 2008, www.stopclustermunitions.org/wp/wp-content/uploads/2008/07/
cmc-action-and-implementation-plan.pdf.

[4] See E. Prokosch, The Technology of Killing: A Military and Political History of Antipersonnel Weapons, (Zed Books: London, 1995).

[5] 1980 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 (CCW).

[6] Report of the Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW/MSP/2007/5), 3 December 2007, p 9.

[7] Oslo Conference on Cluster Munitions, 22-23 February 2007, Declaration, online at www.regjeringen.no/upload/UD/Vedlegg/Oslo%20Declaration%20
(final)%2023%20February%202007.pdf.

[8] For example, Declaration on Cluster Munitions by Austria, Belgium, Bosnia-Herzegovina, Croatia, Costa Rica, Czech Republic, Denmark, Germany, Holy See, Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, Sweden and Switzerland, 17 November 2006.

[9] Oslo Conference on Cluster Munitions, 22-23 February 2007, Declaration, online at: www.regjeringen.no/upload/UD/Vedlegg/Oslo%20Declaration%20(final)
%2023%20February%202007.pdf.

[10] Final Document of the Third Review Conference of the High Contracting Parties to the CCW (CCW/CONF.III/11(Part II), Decision 1), Geneva, 7-17 November 2006.

[11] John Borrie, 'The Road from Oslo: Emerging International Efforts on Cluster Munitions', Disarmament Diplomacy 85, (Summer 2007).

[12] S. Goose, 'A Shift in U.S. Policy on Cluster Munitions?', Arms Control Today, Vol. 38 No. 1 (January/February 2008), pp 8-9, p 9.

[13] See Draft CCW Negotiating Mandate on Cluster Munitions submitted by Germany on Behalf of the European Union, UN doc. CCW/GGE/2007/WP.3, 1 June 2007.

[14] Reuters, 'U.S. open to negotiations on cluster bombs but no ban', 18 June 2007, www.reuters.com/article/newsOne/idUSL1874660120070618.

[15] R.G. Kidd IV, Director, US Department of State, Office of Weapons Removal and Abatement, U.S. Intervention on Humanitarian Impacts of Cluster Munitions, 20 June 2007, www.ccwtreaty.com/press/0620CCWGGE.html.

[16] T. Nash, Foreseeable Harm: the use and impact of cluster munitions in Lebanon in 2006, (Landmine Action: London, October 2006).

[17] R.J. Bettauer, Deputy Legal Adviser, US Department of State and Head of the U.S. Delegation, Statement on the Outcome of the CCW Group of Governmental Experts Meeting, Geneva, Switzerland 22 June 2007: www.ccwtreaty.com/press/2207CCW-GGE.html.

[18] See 'Cluster munitions: A change of heart, or of tactic', The Economist, 21 June 2007. For discussion of 'ping-pong' and other negotiating tactics, see Rebecca E. Johnson, 'Changing Perceptions and Practice in Multilateral Arms-Control Negotiations', John Borrie and Vanessa Martin Randin (eds.), Thinking Outside the Box in Multilateral Disarmament and Arms Control Negotiations, (UNIDIR: Geneva, 2006), pp 55-87.

[19] See Procedural Report of the Group of Governmental Experts 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 (CCW/GGE/2007/3) Annex III, 9 August 2007.

[20] See www.banadvocates.org.

[21] See www.affectedstatesbelgrade2007.org.

[22] Report of the Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW/MSP/2007/5), 3 December 2007, p 9.

[23] Closing Statement by Ronald J. Bettauer, United States of America to the Meeting of States Parties to the Convention on Certain Conventional Weapons, 13 November 2007.

[24] Statement by the Delegation of the Russian Federation at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, Geneva, 7 November 2007.

[25] See Position Paper on Cluster Munitions submitted by the Russian Federation on application and implementation of existing humanitarian law to specific munitions that may cause explosive remnants of war, with particular focus on cluster munitions, including the factors affecting their reliability and their technical and design characteristics, with a view to minimising the humanitarian impact of the use of these weapons (Agenda item 7) (CCW/GGE/2007/WP.6), 19 June 2007.

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

[27] Vienna Discussion Text, 14 November 2007, http://www.bmeia.gv.at/fileadmin/user_upload/bmeia/media/2-
Aussenpolitik_Zentrale/4706_vienna_discussion_text.pdf.

[28] The ICRC subsequently reinforced these points in its President's statement at the outset of the Dublin Conference.

[29] C. King, O. Dullum & G. Østern, M85-An Analysis of Reliability, (Norwegian People's Aid: Oslo, November 2007). This report is online at: www.npaid.org/?module=Articles;action=Article.publicShow;ID=5662.

[30] See S. Maslen, Commentaries on Arms Control Treaties Volume 1: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, (Oxford Commentaries on International Law, Oxford University Press: Oxford, 2004), pp 36-37.

[31] See www.mfat.govt.nz/clustermunitionswellington/conference-documents/index.php.

[32] Recall that the structure of the draft prohibition in Article 2(c) meant that anything defined as a cluster munition would be banned.

[33] See Compendium of Proposals submitted by Delegations during the Wellington Conference Addendum 1: www.mfat.govt.nz/clustermunitionswellington/
conference-documents/WCCM-Compendium-v2.pdf.

[34] This number presumably does not count international organizations and NGOs. See New Zealand Disarmament and Arms Control Minister Phil Goff, Press release, 'Wellington to host NZ's largest ever disarmament conference', 17 February 2008, www.beehive.govt.nz/release/
wellington+host+nzs+largest+ever+disarmament+conference.

[35] See Rules 30 and 31 of Diplomatic Conference for the Adoption of a Cluster Munitions Convention, Dublin, May 2008: Draft Rules of Procedure, 21 February 2008.

[36] Declaration of the Wellington Conference on Cluster Munitions, 22 February 2008, www.clusterconvention.org/uploads/wellington-declaration-final.pdf.

[37] List of countries subscribing to the Declaration of the Wellington Conference on Cluster Munitions (prepared by the New Zealand Ministry of Foreign Affairs and Trade), 23 May 2008, www.mfat.govt.nz/clustermunitionswellington/conference-documents/
Well-Dec-list-of-subscribers-dijibouti&swazi-2305.pdf.

[38] Specifically, on defining cluster munitions, Norway stated that, "We have never argued that every munition that contains more than one submunition should be prohibited regardless of their humanitarian consequences. We think there is a difference between a total ban on every weapon containing more than one sub-munition, and a total ban on cluster munitions as defined in the new convention". See Intervention by Norway on Article 2, Definitions, 19 February 2008, www.mfat.govt.nz/clustermunitionswellington/
conference-documents/Norwary-Statement%20_Definitions.pdf.

[39] The US Secretary of Defense, Robert Gates, would eventually sign-off on a new policy on "cluster munitions and unintended harm to civilians" on 19 June 2008, online at: www.defenselink.mil/news/d20080709cmpolicy.pdf.

[40] See disarmamentinsight.blogspot.com/2008_04_01_archive.html.

[41] Livingstone Declaration on Cluster Munitions, 1 April 2008, www.undp.org.zm//clustermunitionslivingstone/material/documents/
livingstone-declaration-on-cluster-munitions.pdf.

[42] Richard Kidd remarks at the 'Connect Us Fund' Roundtable Dialogue at the Aspen Institute, Washington, D.C.: 'Is There A Strategy for Responsible U.S. Engagement on Cluster Munitions?', 28 April 2008, www.state.gov/t/pm/rls/rm/104697.htm.

[43] Daniel Allen, 'A Cluster of Fallacies', Foreign Policy in Focus, 3 June 2008, www.fpif.org/fpiftxt/5270.

[44] Stephen D. Mull, Acting Assistant Secretary for Political-Military Affairs, On-the-Record Briefing on U.S. Cluster Munitions Policy, Washington DC, 21 May 2008, www.america.gov/st/texttransenglish/2008/May/
20080522163101eaifas0.8921015.html.

[45] Summary records of all of the formal sessions of the Dublin diplomatic conference, prepared by the Irish Department of Foreign Affairs, are available online at: www.clustermunitionsdublin.ie/draft-summary-records.asp.

[46] Letter from General Sir Hugh Beach, Field Marshal Lord Bramall, Major-General Patrick Cordingley, Lieutenant-General Sir Roderick Cordy-Simpson, Lieutenant-General Sir Jack Deverell, Major-General the Rev Morgan Llewellyn, General Lord Ramsbotham, General Sir Michael Rose and General Sir Rupert Smith, 'Cluster bombs don't work and must be banned', The Times, 19 May 2008, www.timesonline.co.uk/tol/comment/letters/article3957464.ece.

[47] 10 Downing Street press briefing, 21 May 2008, 'cluster bombs', www.number-10.gov.uk/output/Page15599.asp.

[48] For instance, see Compendium of Proposals submitted by Delegations during the Wellington Conference Addendum 1: www.mfat.govt.nz/clustermunitionswellington/
conference-documents/WCCM-Compendium-v2.pdf.

[49] Taken from Friend of the Chair's Paper on Definition of a "Cluster Munition", 22 May 2008. Note that this proposal differs from that finally agreed in the CCM.

[50] See How to address the humanitarian effects of unacceptable cluster munitions: Explanatory note on the Norwegian informal proposal based on weight criterion to Art 2 on definitions, 21 May 2008.

[51] For instance, French Ministers Bernard Kouchner (Foreign Affairs) and Hervé Morin (Defence) announced on 23 May in Paris that: "To contribute to the momentum engaged and even before knowing the treaty's definitive text, France has decided immediately to withdraw the M26 rocket from operational service. This is a major gesture demonstrating our armed forces' responsible attitude. Indeed this weapon accounts for over 90% of our cluster munitions stocks". See M. Bernard Kouchner, Minister of Foreign and European Affairs, and M. Hervé Morin, Minister of Defence, 'Cluster bombs - Joint statement', www.ambafrance-uk.org/
Cluster-bombs-Bernard-Kouchner-on.html.

[52] Proposal by the Friend of the President on Interoperability for the Committee of the Whole on Article xx (tbc): Relations between States Parties and States not parties to this Convention, 23 May 2008.

[53] Richard Norton-Taylor, 'UK ready to scrap killer cluster bombs: Ministers overrule opposition from military over controversial weapons', The Guardian, 28 May 2008, www.guardian.co.uk/uk/2008/may/28/military.defence.

[54] 10 Downing Street, 'Breakthrough on cluster bombs draws closer', 28 May 2008, www.number10.gov.uk/output/page15608.asp.

[55] Presidency Paper: Draft Convention on Cluster Munitions (CCM/PT/14), 28 May 2008. This paper became available that morning.

[56] For explanation, see CMC Briefing Paper on the Convention on Cluster Munitions, July 2008. www.stopclustermunitions.org.

[57] Official documents at the Dublin Conference were produced in English, French and Spanish.

[58] Lebanese authorities in Beirut apparently insisted that the word "strongly" be prefixed to "encourage" in paragraph 4(a) of Article 4-a formulation of important symbolic value. The UK had apparently opposed it initially because they saw little difference between "encouraged" and "strongly encouraged" in practical terms.

[59] Quotation from Switzerland's verbatim remarks.

[60] The Final Document of the Dublin Diplomatic Conference on Cluster Munitions (CCM/78) is available at: www.clustermunitionsdublin.ie/pdf/CCM78.pdf. At the time of writing, only the English language text was available, with French and Spanish to follow. Paragraph 16 of CCM/78 records that the Conference agreed on Wednesday to adopt the Convention text on Friday. This was the substantive decision; that is, the adoption on Friday 30 May was formal confirmation of the decision already taken on Wednesday evening.

[61] See Statement by Ireland to the Conference on Disarmament: Dublin Diplomatic Conference on Cluster Munitions, 19-30 May 2008, 3 June 2008: www.unog.ch/80256EDD006B8954/(httpAssets)/
23C9209C6944E6CFC125745D00319DC8/$file/1106_Ireland_E.pdf. Note that 30 accessions are required for the Convention to enter into force internationally.

[62] See Cluster Munition Coalition, 'Action Plan to Achieve Rapid Entry into Force of the Convention on Cluster Munitions', Dublin, 30 May 2008, www.stopclustermunitions.org/wp/wp-content/uploads/2008/07/
cmc-action-and-implementation-plan.pdf.

[63] Statement by Ambassador Steffen. Kongstad of Norway to the Dublin Diplomatic Conference, 30 May 2008, www.clustermunitionsdublin.ie/pdf/Norway.pdf.

[64] "We decided not to go to Oslo," Stephen D. Mull, acting assistant secretary of state for political-military affairs, told reporters last week, "because we don't want to give weight to a process that we think is ultimately flawed, because we don't think that any international effort is going to succeed unless you get the major producers and the users of these weapons at the table". See K. Sullivan & J. White, '111 Nations, Minus the U.S., Agree to Cluster-Bomb Ban', Washington Post, 29 May 2008, p A01.

[65] Sam Cassanos, 'Cluster Bomb Treaty's Moral Force May Deter US', Inter Press Service, 20 July 2008, www.ipsnews.net/news.asp?idnews=43177.

[66] For example, Brazil-a producer and exporter of cluster munitions, and which did not participate in the Dublin negotiations — has announced that it is reviewing its national position with a view to joining the CCM, in view of support for the treaty among its neighbours. See: www.agenciabrasil.gov.br/noticias/2008/06/17/materia.2008-06-17.4882961072/view.

[67] B. Rappert, A convention beyond the Convention: Stigma, humanitarian standards and the Oslo Process, (Landmine Action: London, 2008).

John Borrie, formerly a diplomat with the New Zealand Government, is a Senior Researcher and Project Manager at the United Nations Institute for Disarmament Research (UNIDIR) in Geneva. He is co-founder of the Disarmament Insight initiative, providing commentary and analysis on developments relating to disarmament agreements and processes, including the Inhumane Weapons Convention and the Oslo Process, which are available at www.disarmamentinsight.blogspot.com. The analysis in this paper is the sole responsibility of the author and does not necessarily reflect the views of the United Nations, UNIDIR, its staff members or sponsors. John is currently writing an analytical history of the Oslo Process.

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