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First Meeting of States Parties to the Convention on Cluster Munitions to take place in Laos November 9-12

Cluster Munitions

Cluster Munitions

The Convention on Cluster Munitions entered into force on August 1, 2010. Next week, the first Meeting of States Party to the Convention will take place in Vientiane, Laos. Under Article 1 of the Convention:

1. Each State Party undertakes never under any circumstances to:
(a) Use cluster munitions;
(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;
(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Article 2 provides the following definition:

“Cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. It does not mean the following:
(a) A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role;
(b) A munition or submunition designed to produce electrical or electronic effects;
(c) A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:
(i) Each munition contains fewer than ten explosive submunitions;
(ii) Each explosive submunition weighs more than four kilograms;
(iii) Each explosive submunition is designed to detect and engage a single target object;
(iv) Each explosive submunition is equipped with an electronic self-destruction mechanism;
(v) Each explosive submunition is equipped with an electronic self-deactivating feature;

By my calculations, 44 states have ratified the Convention thus far. They are:

Albania, Antigua and Barbuda, Austria, Belgium, Bosnia and Herzegovina, Burkina Faso, Burundi, Cape Verde, Comoros, Croatia, Denmark, Equador, Fiji, France, Germany, The Holy See, Ireland, Japan, The Lao People’s Democratic Republic, Lebanon, Lesotho, Luxembourg, The former Yugoslav Republic of Macedonia, Malawi, Mali, Malta, Mexico, Moldova, Monaco, Montenegro, New Zealand, Nicaragua, Niger, Norway, Samoa, San Marino, Seychelles, Sierra Leone, Slovenia, Spain, Tunisia, United Kingdom, Uruguay and Zambia.

The United Kingdom had been quite active in its support of the Convention and in efforts to destroy existing cluster munitions. The UPI reports:

A treaty banning the use of cluster bombs is one of the greatest contributions to eliminating indiscriminate weapons, the British government declared.British Foreign Office Minister Alistair Burt welcomed a measure that placed the convention on cluster munitions into force in the United Kingdom.

“The convention, prohibiting the use, development, production, transfer and stockpiling of cluster munitions, is one of the most important disarmament treaties of recent years, addressing the humanitarian impact these indiscriminate weapons have on communities long after conflicts are resolved,” he said in a statement.

A 304-page report released Monday by the Landmine and Cluster Munition Monitor found that of the more than 16,500 casualties linked to cluster munitions globally, most were caused by munitions that didn’t detonate properly during their initial deployment. [This report, the first Cluster Munition Monitor 2010 details the progress made regarding the implementation of the Convention and includes country reports on all states policies regarding the Convention.]

The organization credited London with taking the lead in destroying its stockpile of cluster munitions. Authorities with the group said the United States, Russia, China and Israel are the largest military users of cluster bombs.

But, as will be noted from the list above, the United States is not a party to the Convention.  The Cluster Munition Monitor explains the U.S. Policy:

The United States of America has not acceded to the Convention on Cluster Munitions.

In September 2008, Secretary of Defense Robert M. Gates said, “The US did not participate in the Cluster Munitions Convention negotiations because we believe that cluster munitions are an integral part of our and many of our coalition partners’ military operations. The elimination of cluster munitions from our stockpiles would put the lives of our soldiers and those of our coalition partners at risk. There are no substitute munitions, and some of the possible alternatives could actually increase the damage that results from an attack.”[1]

In November 2009, a US Department of State official said that “many States, including the United States, have determined that their national security interests cannot be fully ensured consistent with the terms of the [Convention on Cluster Munitions].”[2]

The US views the Convention on Conventional Weapons (CCW) as the most appropriate framework for negotiation on cluster munitions, because “it is most likely to achieve a result that balances humanitarian concerns with military utility and is, therefore, likely to have a more substantial impact than a result that fails to garner the support of many military powers.”[3]

Under the current policy issued by the US Department of Defense in July 2008, by the end of 2018 the US will no longer use cluster munitions that result in more than 1% UXO.[4] Until 2018, use of cluster munitions that exceed the 1% UXO rate must be approved by the Combatant Commander.[5] Also, military departments will initiate removal of all cluster munition stocks “that exceed operational planning requirements or for which there are no operational planning requirements” from active inventories as soon as possible, but not later than 19 June 2009. These excess cluster munitions will be demilitarized as soon as practicable.[6]

The only existing US cluster munitions that might meet the 99% reliability standard are CBU-97, CBU-105, and M898 SADARM Sensor Fuzed Weapons with self-destruct and self-deactivation mechanisms. According to Department of Defense statistics from 2004, Sensor Fuzed Weapons make up 3,099 of the 5,543,149 US cluster munitions.[7]

The government stated in 2008 that the 10-year transition period “is necessary to develop the new technology, get it into production, and to substitute, improve, or replace existing stocks.”[8] It said in 2009 that the “2018 deadline…allows us time to design and produce cluster munitions to replace existing stocks.”[9]

The Department of Defense had not reported on the removal of excess cluster munitions from stocks by June 2009, as called for in the July 2008 policy. But it appears that action has been taken. For example, the United Kingdom government told parliamentarians that the US had identified the cluster munitions on UK territory as “exceeding operational planning requirements” and that they would be “gone from the UK itself by the end of [2010]” and “gone from other UK territories, including Diego Garcia, by the end of 2013.”[10]

The administration of President Barack Obama has not yet conducted a review of US policy on cluster munitions. On 29 September 2009, Senator Patrick Leahy (D-VT), Senator Dianne Feinstein (D-CA), and 14 other US Senators wrote to President Obama urging him to “conduct a thorough review of U.S. policy on cluster munitions,” noting that “the United States has already begun to move away from a reliance on cluster munitions.”[11]

At the beginning of the term, Secretary of State-designate Hillary Rodham Clinton told the US Senate Committee on Foreign Relations, “The incoming Administration has not taken a position on the new cluster bomb treaty. I look forward to working with the President-Elect and the rest of the national security team on this issue in order to develop a policy that upholds our moral obligations while protecting our troops. The new Administration will carefully review the treaty in consultation with military commanders and work closely with our friends and allies to ensure that the United States is doing everything feasible to promote protection of civilians—especially children.”[12]

In February 2009, Senators Feinstein and Leahy, and Representative Jim McGovern, re-introduced the “Cluster Munitions Civilian Protection Act.” The Act would limit the use and transfer of cluster munitions to those munitions that have a 99% or higher reliability rate, and would prohibit use of cluster munitions in areas where civilians are known to be present. It would also require the President to submit a plan to Congress for clean-up of cluster munition remnants if the US used cluster munitions or if another country used cluster munitions that it had received from the US.[13] The Act has continued to gather support in the Senate and House of Representatives, but has not yet been brought to a vote.

The US did not directly participate, even as an observer, in the diplomatic Oslo Process in 2007 and 2008 that resulted in the Convention on Cluster Munitions. The US worked hard, however, to influence the outcome of the negotiations and address its concerns, primarily on the issue of “interoperability” (joint military operations among the US and States Parties to the convention).[14]

The US did not engage in the work of the convention in 2009 and 2010. It did not attend the Berlin Conference on the Destruction of Cluster Munitions in June 2009, the Regional Conference for Latin America and the Caribbean on Cluster Munitions held in Santiago, Chile in September 2009, or the International Conference on the Convention on Cluster Munitions, also held in Santiago, in June 2010. As of August 2010, the US had not indicated if it would attend as an observer the First Meeting of States Parties to the Convention on Cluster Munitions in Lao PDR in November 2010.

Most unfortunate. One would hope that the United States could follow the lead of Great Britain. At the very lest, it would be useful for the United States to attend the meeting in Laos.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.