The Convention on Cluster Munitions: Towards a Balance between Humanitarian and Military Considerations?
SUMMARY: International Organizations (including the United Nations and the European Union), the International Committee of the Red Cross (ICRC) and a coalition of non-governmental organizations (the ‘Cluster Munition Coalition’) played an active role in the Process. The CCM introduced a partial ban on cluster munitions: it prohibits the use of cluster munitions that have indiscriminate effects and allows the use of more advanced munitions that meet the standard set by art. 2.2. The new instrument improved the standard of protection provided by both humanitarian law and human rights law and, to some extent, introduced a ‘point of contact’ between these branches of international law. As to humanitarian law, it consolidates the customary principles and rules prohibiting the use of means and methods of warfare that have indiscriminate effects and seems to introduce new elements for their interpretation and implementation in the light of the principle of humanity. As to human rights law, the new instrument is even more pervasive. It introduced victim assistance obligations and requires States to adopt appropriate policies, legal and administrative measures with a view to incorporating them within the national disability, development and human rights frameworks and mechanisms.
On 30 May 2008, in Dublin, a group of 107 States adopted the Convention on Cluster Munitions (CCM) that introduces the prohibition to use, develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions that cause "unacceptable harm" to civilians. The instrument is the outcome of negotiations, the so-called ‘Oslo Process’, conducted outside the Conference on Disarmament and the Convention on Certain Conventional Weapons (CCW),and was opened for signature in Oslo on 3 December 2008.
Some aspects of the Convention could be improved, like the provisions on stockpile destruction and on the relations with States not party, which are sensitive issues for the Members of Strategic Alliances. At the same time, the CCM finally introduced ad hoc provisions limiting the use of cluster munitions and their humanitarian and socio-economic impact, and this can be regarded as a significant contribution to international law.