December 8, 2011
Reflections on a Major Weapons Victory: Overcoming Powerful Opposition, Ban on Cluster Munitions Strengthened
Posted by Anna Crowe, LLM '12, Nicolette Boehland, JD '13, and Robert Yoskowitz, JD '13
“We are the voices of victims, not just diplomats. . . . If we have to pay a political price, if we can just save one single life, it is worth it. And I think we are not alone.”
– Representative of Costa Rica, the Fourth Review Conference of the Convention on Conventional Weapons
At precisely 7:05pm on Friday, November 25, the chair of the Fourth Review Conference for the Convention on Conventional Weapons concluded that there was no consensus in the room on the adoption of a proposed protocol regulating cluster munitions. This seemingly banal statement marked the end of a decade of deliberations and political machinations, and hundreds of days of diplomatic meetings. More important, it marked a victory for the supporters of the Convention on Cluster Munitions and its goal of eliminating these weapons and the harm they cause.
As the Clinic had argued in a joint paper with Human Rights Watch—and in other documents distributed at the Conference—adding a new treaty to the 1980 Convention on Conventional Weapons would have constituted an unprecedented step backwards for the laws of war. The proposed weak treaty would have legitimized rather than stigmatized future use of cluster munitions, and we are thrilled that it was rejected. The outcome was in no way certain.
The Clinic has been working for years first to help create and then to promote the 2008 Convention on Cluster Munitions, which prohibits not just the use of these weapons, but also their production, stockpiling, and transfer. Currently, 108 states have signed on to the ban, which took legal effect last year, and 66 are full states parties.
The United States, however, wanted to produce a separate treaty that would have allowed cluster munition use under the Convention on Conventional Weapons framework. The idea had received support from Russia, China, Israel, India, South Korea, and a range of other states.
A delegate warned us that “meetings of the Convention on Conventional Weapons are like watching paint dry–except you know that paint eventually dries.” While this description might have been apt in previous years, the atmosphere this time was charged.
On Thursday, the conference was abuzz with the news that the United States was circulating amended treaty language, presenting it as a concession to win further support. But the United States waited until an hour-and-a-half before the two-week Conference was scheduled to conclude before formally making the proposal. After a short, suspenseful recess, a group of 50 states responded with a joint statement outlining its opposition on humanitarian grounds. It was a dramatic and moving scene when the delegate from Costa Rica, speaking for the group, answered the Chair’s question of “Does anyone oppose the adoption of this protocol?” with: “We are opposed.” As the representative from Nigeria put it, the Chair was effectively asking, “Is there any country willing to stand up to oppose the U.S.?”
The rejection of the weak, alternative treaty represented a major victory for both civilian protection and the forward progression and coherence of international law. The stage had been set for a dangerous precedent, under which states could adopt numerous treaties governing the same field, with weaker protections following stronger. With the proposal’s defeat, the enormous amount of time and resources spent debating a possible new treaty can be redirected to expanding and strengthening existing international law, including the Convention on Cluster Munitions.
For three students accustomed to long, quiet hours studying theory, the Conference was a rare chance to participate in the making and defending of law. Working up to 18-hour days, we saw firsthand the important role legal analysis played in helping delegates to understand the significance of the daily changes to the draft text. We realized how critical knowledge of the law can be in dispelling rumors and misunderstandings about procedural and substantive matters.
We also witnessed how an energized group of activists, diplomats, and politicians can overcome the influence of a small number of powerful players. It took years of work by hundreds of dedicated people to reach that inspiring moment in Geneva when 50 countries said “no.” The work itself might not have seemed especially attention-grabbing or sexy, but the long slog toward real social change rarely is. It humbled us to share this moment with those who worked so hard for its realization.
Anna Crowe, Nicolette Boehland, and Robert Yoskowitz are members of The Clinic’s Cluster Munitions team, led by Senior Clinical Instructor Bonnie Docherty.