By Stuart Casey-Maslen
Derided by a number of major military powers when it was adopted, almost 16 years later the 1997 Anti-Personnel Mine Ban Convention is in pretty rude health. No fewer than 161 States have adhered to its provisions — the most recent being Poland in December 2012 — and few outside dare to use anti-personnel mines these days such is the stigmatisation of the weapon, even though a ban has not yet crystallised in customary law. There is little or no transfer of anti-personnel mines, and what little there is consists mainly of small-scale, illicit sales. As a result, large stockpiles in China and the USA lie dormant, and even Russia is no longer laying mines in Chechnya, so far as we know.
Of course, challenges remain in implementing the treaty. Assistance to mine victims has made relatively little headway in recent years, frustrated by trials and tribulations in overcoming institutional weaknesses in health systems in many post-conflict nations. Progress in mine clearance has been especially disappointing, with two dozen States being forced to request extensions to their 10-year treaty deadlines, and this despite the fact that many had to confront only limited contamination. The United Kingdom has even implied that the clearance requirements only apply to developing nations with significant numbers of casualties, a perverted reading of its international legal obligations (which most certainly extend to mined areas on the Falkland Islands). At the same time, non-party States China, Nepal, and the USA have cleared most, if not all of the mines on territory under their jurisdiction, so the treaty has had a broader normative impact.
Furthermore, if donors are as generous over the next decade or so as they have been over the last 20 years, the world should still be all but cleared of landmines by 2022 — only 25 years since the adoption of the Anti-Personnel Mine Ban Convention. That’s no mean achievement, even though it should have been possible sooner and at a much cheaper cost than the estimated $10 billion or so it will likely have cost. Regrettably many countries and operators still commit precious clearance assets to areas without any contamination as their survey capacity and risk management abilities are lacking. National capacity building has been more a tool of rhetoric than an on-the-ground reality.
So what are the treaty’s broader lessons for disarmament? The Convention, which entered into force on 1 March 1999, was the result of the ‘Ottawa Process’, a freestanding treaty negotiation outside a United Nations (UN)-facilitated forum with the aim of outlawing anti-personnel mines. The process was so called because it was launched in Ottawa in October 1996 by Lloyd Axworthy, the Canadian Minister of Foreign Affairs. Axworthy and his staff had seen that progress towards a ban was doomed to be thwarted by the tradition of consensus within UN disarmament fora, notably the Convention on Certain Conventional Weapons (CCW). After three years of negotiations, the CCW was only able to agree on a complex set of additional restrictions that did not even require all mines to be self-destructing and/or self-deactivating. In contrast, the Anti-Personnel Mine Ban Convention was negotiated from start to finish in less than a year.
Sadly, two decades later, little has changed in the disarmament world. The only weapon that has been banned since 1997, cluster munitions, was similarly the result of a freestanding process, this time led by Norway, after the CCW had again failed to act forcefully. Ironically, once the Convention on Cluster Munitions (CCM) had been adopted in Dublin in 2008, a number of States, led by the USA, sought to adopt a protocol to the CCW restricting the weapon for those planning not to adhere to the CCM in the near to medium term. But by then it was too little, too late, and some ham-fisted diplomacy resulted in no agreement.
It seems likely that future weapons law treaties will also have to go outside the United Nations if they are to be adopted (unless inroads can be made into the tyrannical consensus ‘rule’). For getting 193 Member States to agree to ban or restrict anything remotely useful in military terms is a challenge that will rarely be met in practice. Anti-vehicle mines, explosive weapons with wide area effects, tasers and other ‘less-lethal’ weapons, and even nuclear weapons are all on the agenda for greater regulation in years to come. But there’s little prospect of any agreement being made in consensus fora, such as the Conference on Disarmament or UN disarmament mechanisms.
Perhaps some normative progress can be achieved under the auspices of the Human Rights Council, notably with regard to the use of certain weapons outside situations of armed conflict. Otherwise, it remains to a State or core group of States to take the initiative, and then it’s every State for itself and the Devil take the hindmost (to paraphrase). In this, the 1997 Anti-Personnel Mine Ban Convention just reflects the traditional method of adopting weapons law treaties in the late nineteenth century and early twentieth. So maybe it’s just a return to the rule, proving that disarmament within the UN is a mere exception.
Stuart Casey-Maslen is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights. He is author of 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 and co-editor of The Convention on Cluster Munitions: A Commentary.
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