Here Comes the Convention on Cluster Munitions

by Julian Ku

The Convention on Cluster Munitions, which bans “cluster bombs,” received its 30th ratification yesterday when Burkina Faso and Moldava deposited their ratifications.  The treaty, which was signed back in 2008, set 30 as the number of nations needed for it to go into effect.  It will now become active on August 1, 2010.  Apparently, this treaty was spearheaded by New Zealand and has been signed by 104 nations.

One problem with this treaty, like the Land Mine Treaty, is the non-participation of states, few in number, but by far the most important users of a particular weapon. The U.S. is not a party, and will likely not become a party, to this treaty. Nor will China, Russia, India, Israel, Pakistan, and Brazil.  In other words, it seems highly unlikely that New Zealand, Norway, or Spain would need cluster munitions (not to mention Burkina Faso), so their signatures are not exactly crucial or reflective of an international consensus.  But the next time a cluster bomb is used, expect the claims that it violates international law to rely on this treaty.

http://opiniojuris.org/2010/02/17/here-comes-the-convention-on-cluster-munitions/

10 Responses

  1. How can one claim that a state not a party to the convention violates international law by using cluster munitions?

    By hypothesis, the state expressly does not recognize it as a rule established by an international convention. The rule can’t be a general practice accepted as law, if every state with the capacity and opportunity practices the opposite and rejects it as law. For the same reasons, it can’t be a general principle accepted by civilized nations.

  2. Why does the capacity/desire of a State to make cluster munitions effect whether or not there is international consensus for/against them?

    Imagine a world where only 8 States can/do use cluster munitions, but every other State signed a Convention prohibiting their use. Would this be evidence of an international consensus? If so, then is the issue raised really about the number of States who have signed on, rather then whether or not they are users of cluster munitions?

  3. There is a school of thought that considers international law to be solely that which nation states adopt.  In this context a nation state excuses itself from collective international justice simply by opting out.  The other school says that an international law becomes effective and should be of universal application when agreed by a sufficient preponderance of nations.  The analogy with other systems of law is precise; a citizen cannot opt out of his or her national law.  The propositon is that a nation should not be able to opt out of a supra-national law.
    Of course it matters that these are inhumane weapons.

  4. The standards are those of the Statute of the International Court of Justice. “International consensus” isn’t a basis for decision under the Statute, or under any other recognized standard.

    “Imagine a world where only 8 States can/do use cluster munitions, but every other State signed a Convention prohibiting their use. Would this be evidence of an international consensus?”

    Yes — consensus that their use is permitted. There is general agreement among all 8 countries whose views have any meaning.

  5. Sorry Skeptical, but why do only those 8 countries views have meaning? What you are suggesting is that for any other country’s view to be valid they would first have to, what, buy cluster munitions, use them, and then declare that they no longer were going to use them?

    Perhaps the “can” part of my argument is problematic (and actual doesn’t make sense as any state could buy and use cluster munitions if they wanted to).

    Under the ICJ Statute, surely the treaty could result in, or be evidence of, “international custom, as evidence of general practice accepted as law” even without the participation of the 8 States that currently use the munitions?

  6. Those 8 are the only states capable of the practice. They are therefore the only ones whose practice has any meaning in deciding whether the the practice is general. The views of everyone else are just pious, meaningless blather.

    How can it be general practice if every party capable of the practice disagrees? Indeed, the general practice is the opposite. How can it be accepted as law if no party that would be affected by it accepts it as law?

    And the treaty — or, more precisely, the failure of the treaty to include any affected party — certainly indicates that there is no “international custom, as evidence of general practice accepted as law”.

  7. Sorry I think the capabilities issue is obscuring things somewhat unnecessarily. Surely all states are capable of using cluster munitions (in so much as they can buy them and threaten to  or actually use them), or at worst can develop the capability to do so if they thought it was lawful?

    My argument is that a treaty such as this could be seen as accepted as law because every other State has essentially agreed that (a) they will not develop the capability to use cluster munitions and (b) not to assist any other State in the use of cluster munitions – with implications for joint operations perhaps?

    Doesn’t your argument essentially mean that if States want something to be prohibited by international law, the best way for them to go about it would be to first use the thing they want prohibited and then band together to have it prohibited? Doesn’t that seem a bit strange if it is the case?

    While I agree that the cluster munition treaty isn’t international law applying to all States – it’s not custom yet – it certainly demonstrates a trend in international law towards the prohibition of cluster munitions, an international consensus against them (as in the majority of States are against their use) and could lead to this prohibition becoming custom.

  8. Also, just to go back to the CMC, even if you accept the idea that what New Zealand thinks about cluster munitions doesn’t matter for international law, note that 36 of the 104 signatories of the treaty produced, used or stockpiled cluster munitions (source: http://www.stopclustermunitions.org/the-problem/countries/).

  9. What if each and every non-nuclear weapons holding state decided that nuclear weapons should be illegal? Is an unenforceable law an actual law, or merely a wish written on paper? Just curious.

  10. It is clear that non-parties to the treaty are not bound as a matter of treaty law to the prohibition on use and production of CM.  However, the Vienna Convention on Law of Treaties (Art. 37) recognizes that a rule in a treaty could if the rule has become a customary international law norm bind a non-party to the rule as a matter of customary international law.  Yet, even if the prohibition on CMs was a generalized and consistent practice among states done out of sense of legal obligation (opinio juris) and thus became a rule of customary international law, the rule would not bind states that were persistent objectors to the rule while it was in formation.  In the case of those states producing, maintaining CMs, they are rejecting the rule while in formation.  Additionally, states can persistently object through other actions as well, such as explicit rejection of the treaty containing the rule and other statements.  For more on the persistent objector doctrine, see Brownlie, Principles of Public International Law, Restatement Third of Foreign Relations Law, and a chapter on it in a new book on customary international law by my colleague Brian Lepard.

    Hope this helps clarify matters.

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