On different tracks: disarmament diplomacy from the Pacific

Transcription

1 On different tracks: disarmament diplomacy from the Pacific Timothea Horn 1 Asia-Pacific College of Diplomacy, Coral Bell School of Asia Pacific Affairs, 130 Garran Road, Australian National University ACTON ACT 2601 Australia Timothea.Horn@anu.edu.au Abstract Canada, New Zealand and Australia championed international treaties to respectively ban landmines and cluster munitions and regulate the arms trade. Yet while leading on one treaty cycle, these three countries were absent from others. These parallel yet different negotiating tracks point to the question, when do states build international regimes? To address this, this paper looks at the three phases of three multilateral negotiations to compare and contrast how Canada, New Zealand and Australia have at times contributed to, and at times impeded, regime building. This paper finds that these states championed treaty making when political leadership, substantive expertise and diplomatic resources were all present. In the absence of one or more of these factors, these states had the opposite effect, slowing down progress and hollowing out the substance of treaties. By examining these parallel yet different negotiating tracks, this paper adds to our understanding of the drivers of regime building in order to identify the critical elements that led to successful codification of arms control by in Canada, New Zealand and Australia. Key words Conventional weapons international negotiation process turning points analysis 1. Introduction Arms control and disarmament of conventional weapons play a crucial role in maintaining international peace and security. They have been permanent fixtures on the agenda at the United Nations. Yet with the world s top five arms producers permanently sitting on the UN 1 Timothea Horn is a third-year doctoral candidate and Endeavour scholar at the Asia Pacific College of Diplomacy at the Coral Bell School, the Australian National University. This paper summarises initial findings from her PhD research based on interviews with diplomats. 1 of 34

2 Security Council, little progress had been achieved until Since then, however, an increasing number of international legal instruments have been negotiated, creating new norms designed to regulate the production and trade of conventional weapons and to minimise their impact on civilians. Canada, New Zealand and Australia have been involved in the successful negotiation of three treaties in particular during that period: the Mine Ban Treaty (Canada), the Cluster Munitions Convention (New Zealand) and the Arms Trade Treaty (Australia). However none of these three states have consistently contributed towards strengthening all three treaties. Champions during one cycle, blockers or neutral during others, Canada, New Zealand and Australia have engaged unevenly in strengthening international regimes in conventional weapons across this period. This leads to the question, when do states build international regimes?. This study critically examines the diplomatic roles played by Canada, New Zealand and Australia during three phases of treatymaking (commitment, substance, agreement). The patterns of behaviour that emerge indicate that three elements were present when regime building occurred. Political leadership, substantive expertise and diplomatic resources were present in all three cases, across all three phases of negotiations. In the absence of one or more of these elements, states either did not play an influential role in the creation of the regime (Australia on landmines, New Zealand on the arms trade treaty) or impeded progress on the creation of the regime (Canada on cluster munitions). Contrasting the parallel yet different negotiating tracks taken by all three countries provides insights and lessons into the factors that can influence successful treaty-making in the future on the use of conventional weapons. 2 of 34

3 2. Conventional weapons regimes International regimes Since 1993, an increasing number of new norms have been codified in international law to regulate the production and trade of conventional weapons and to minimise their impact on civilians. These norms, in the form of international treaties, have strengthened existing legal regimes in landmines, cluster munitions and the arms trade. Binding international treaties are the strongest of only two sources of international law, along with customary law. Strengthening of a regime through treaty making can take place through the creation of new rules or the extension in scope or obligations of existing rules. Whereas political commitments are voluntary, international treaties are binding on their signatories. International treaties take on more customary power as their membership approaches universality. Treaties set the benchmark of behaviour. The more signatories a treaty has, the stronger its claim is to being the benchmark. They therefore influence the behaviour of non signatories as the number of signatories rises. International treaties can be said to shape international law directly, as legal instruments, and also indirectly, as they become accepted as the benchmark for state behaviour as states sign on, thereby becoming incorporated into customary law. In the case of the 1997 Mine Ban Treaty (MBT), the 2008 Convention on Cluster Munitions (CCM) and the 2013 Arms Trade Treaty (ATT), new rules have been developed into a legally-binding framework that regulates more areas in stronger ways than previously. All three have entered into force and are near universal in geographic coverage and in population, although all three have prominent states that are not as yet parties to their obligations. Humanitarian arms control treaties The MBT, the CCM and the ATT are legally binding treaties that include humanitarian elements into arms control frameworks. Whereas arms control treaties have historically focused on preventing war between states, humanitarian arms control focuses on the consequences of the indiscriminate use of weapons in intrastate conflicts and importantly 3 of 34

4 their impact in post-conflict situations. 2 Put simply, the objects of international regulations are shifting from weapons to people. 3 The 1997 Mine Ban Treaty aims to put an end to the suffering and casualties caused by antipersonnel landmines (APMs). The MBT has a dual approach, both forward and backward looking, that covers not only the full lifecycle of APMs from an arms control perspective but also addresses the ongoing humanitarian impact of the weapon on civilians and on combatants. The 2008 Convention on Cluster Munitions is a global prohibition on an entire category of weapon, namely cluster munitions. It contains disarmament provisions and humanitarian provisions. On disarmament, it sets in place a ban on all aspects of the lifecycle of the weapon, extending from preventive to remedial aspects covering use, trade, destruction and stockpiling. From a humanitarian perspective, its provisions include clearance and victim assistance. The 2013 Arms Trade Treaty creates legally-binding measures both legal and illicit trade in eight categories of weapons, an area which had remained the blind spot of world politics. 4 The ATT reaches beyond arms control and into the humanitarian space by requiring states to assess whether arms transfers will undermine peace and security or be used to commit serious violations of international humanitarian law or international human rights law. 5 In all three cases, the substantive move towards humanitarian arms control was initially led by civil society and taken up by a lead state in coordination with a core group of states with pooled diplomatic resources including substantive expertise and strategic experience. 2 Wisotzki, Simone Humanitarian arms control in Muller, Wunderlich (eds) Norm Dynamics in Multilateral Arms Control 2013 University of Georgia Press 3 Pro. Keith Krause explains this normative change by considering material and ideational factors. Heightened dangers to peacekeeping operations, the increase in intrastate conflict and the presence of military weapons in private hands due to military downsizing after the Cold War are all material factors that have led to this change. Ideational factors such as the mainstreaming of human security in national policy considerations and the conceptual linkage between conflict and development are also decisive in this shift. 4Garcia 5 SIPRI Yearbook of 34

5 Treaty dynamics Each treaty followed a similar pathway in three phases, from (1) commitment to (2) substance and then (3) agreement, as illustrated in the following diagram. These pathways are commonly known as the Ottawa Process (landmines), the Oslo Process (cluster munitions) and the ATT Process (arms trade). Figure 1 Negotiation cycle: phases and turning points 1. Commitment The first and arguably longest phase involves gathering a sufficiently large group of states committed to future formal negotiations of a treaty. This phase occurs over years and decades as issues emerge and states reprioritise attention towards developing solutions. The origins of humanitarian arms control often lie within civil society and people with firsthand experience on the ground in post conflict areas. Organisations such as the International Committee of the Red Cross and UN field agencies provide the platform for smaller groups to focus attention on issues and relay these to the general public, to politicians, and to policy makers. Commitment is built on the margins of existing standing forums, where diplomats based in Geneva or New York, build up trust over time. Issues are discussed and canvassed. When windows of opportunity emerge, for example following elections at home, diplomats tap into their knowledge of where to build alliances based on well-known positions of long standing or on the politics of incumbent governments. Core groups of states united for action develop a common strategy. This leads to the drafting and circulation of draft political declarations or draft UN resolutions where states signal their political commitment to pursue treaty talks. 5 of 34

6 2. Substance Once an explicit signalling of commitment has been approved and made public, the core group of states have the first movers advantage in shaping the next steps in the process, namely putting forward the elements of a future treaty along with proposing the processes involved in getting to a negotiating conference. Outlining the contours of a future treaty as well as mapping out the options for substantive inclusions is labour intensive and conducted during inter-sessional meetings of existing forums or through ad hoc sessions organised in capitals. Outlying countries, those who sit on the outer reaches, must be canvassed to make visible the positions that maximalists and oppositionalists will be putting forward. The positions of producing states vs contaminated states, of exporters vs importers, must be flushed out and shared. Tracing the contours of groups of states, form military alliances to regional blocs, also emerges in this phase. Moving from signalling of positions to agreement on what is up for negotiation occurs during this phase, as does the secondary yet just as vital step of agreeing on rules of procedure and decision-making for the future formal negotiation of the legal instrument. During this phase, diplomatic efforts are also focused on increasing the membership of states in processes, to ensure that all regions are represented and to bolster the ranks of future signatories. Once the parameters for negotiation have been agreed to (substance, rules of procedure, timeline), a formal statement is issued and signed by participating states or a draft resolution is put to the UN. For processes sitting outside the UN, the price of entry to participate in formal negotiations is often a signature on the formal statement indicating that states accept the boundaries that have been drawn and agree to negotiate within them. 3. Agreement This last and final phase of the negotiating process is the shortest of the three phases. This is when the negotiation of the final text of the future treaty occurs, culminating in a diplomatic conference that lasts between 1-2 weeks. Should an outcome not be reached, a further conference can be convened. In this phase, the mediation skills of the conference team are required to set a delicate balance between the spectrum of positions presented on each element to be included as well as the overall cohesion of all of the elements combined. Conference presidents are selected on the basis of their personal long standing experience in similar forums as well as the position of the country that they represent, although for the 6 of 34

7 duration of the conference they set to one side their diplomatic hats and step in as servants to the treaty. Dramatic changes in the positions of important players often occur at this point, sometimes in reaction to events or developments outside of the treaty cycle. Although the politicisation of multilateral talks can be manufactured by states for domestic reasons, in general given the momentum required for talks to reach this final phase, a result will tend to be arrived at although the relative strength of the final treaty may be tempered under duress from large players. The way in which treaties are finalised, and the decision making that ensues, plays a significant role in building the legitimacy and pushing for the universalisation of the final instrument. 3. Regime building and blocking Approach Canada, New Zealand and Australia have been involved in the successful negotiation of three treaties in humanitarian arms control, the Mine Ban Treaty (Canada), the Cluster Munitions Convention (New Zealand) and the Arms Trade Treaty (Australia). The decisive role these countries has emerges when each treaty cycle is unpacked, with specific attention on the three negotiation phases (commitment, substance, agreement) and the turning points that marked the passage between them. As illustrated in the diagram below, 10 turning points have been examined to build a detailed picture of diplomatic activity. This analysis reveals that Canada, New Zealand and Australia contributed towards strengthening regimes at various points over time, while at times either blocking progress or having minimal impact on strengthening regimes at others. Figure 2 Ten turning points 7 of 34

8 Landmines: Canada and regime building The MBT was negotiated in three phases. Political commitment (1) from a growing number of States to ban APLMs led to the fast-track negotiation of the substantive elements of a treaty (2) that was agreed to and adopted initially by 121 states (3). These three phases, commitment, substance and agreement, constituted the Ottawa Process. 1. Commitment From the 1970s, calls from the international community had been accumulating to ban APLMs. In 1995, a review conference of the Convention on Certain Weapons (CCW) included talks to amend an existing Protocol to address stricter regulations of production and use of APLMs. A ban was not on the agenda. Anticipating that strong action was unlikely to emerge from the consensus-based CCW forum, Geneva disarmament diplomats had been discussing informally how to push for a ban in the lead-up to talks. This was led in part by Canada, whose newly-minted Foreign Minister Lloyd Axworthy was looking to push for an ambitious human security agenda on the international scene that would turn the focus of security policy onto people and their communities rather than states and sovereign borders. This push was both a reflection of Liberal party internationalist principles (echoing across the political divide with Progressive Conservatives) but also of the importance of a unifying programme of action that would resonate in the separatist province of Quebec with a referendum on the near horizon and voters particularly attuned to Canada s role as a multilateralist actor. Ottawa-based officials had identified that landmines were a hot-button issue and that a window of opportunity for action was approaching given the conversations that were taking place in UN missions in Geneva. As talks at the CCW were wrapping up, Canada took the floor on the last day of the review conference to issue an invitation to States interested in pursuing a ban to attend a strategy conference in Ottawa in In the lead-up to the strategy conference, Canada circulated a draft Declaration to be adopted at the end of the Conference that included a call to conclude as early as possible a legally binding international agreement. States wishing to participate in the Conference were asked to 8 of 34

9 commit to a ban beforehand. This self-selection approach signaled early on the determination to achieve a total ban, where consensus by all States would not be sought at any cost. 6 This move away from a consensus-based approach to negotiations was a true departure from how disarmament was typically conducted internationally, where negotiation and adoption by consensus were considered to be prerequisite for an agreement to be effective. In this sense, some States were held to more important than others, notably weapons producers. Universal adherence was held to be a core ingredient for the success of an arms agreement and therefore consensus was required from the start of talks. The Ottawa Process approach instead defined before formal talks had even begun what the end point would be. Opting out of a consensus-based approach meant stepping out of the existing disarmament forums within the UN where consensus was a long-held practice although than a mandated procedure. From the outset, Canadian officials were unsure how many would accept the invitation to attend in Ottawa. 67 States participated, with 50 signing the Ottawa Declaration. This initial high number of participants allowed Canada to raise the stakes even further, by issuing a surprise call during the concluding session of the Conference to reconvene one year later to sign a ban. In a sign of the future dynamics of the Process, Canada s preemptive announcement was orchestrated with the ICRC and the NGO coalition the International Campaign to Ban Landmines (ICBL) with the prior blessing of UN Secretary General Kofi Annan. No other State was aware beforehand that this announcement would take place. 6 The Declaration of the Ottawa Conference was annexed to a letter dated 16 October 1996 from the Representative and Ambassador of Canada to the United Nations for Disarmament to the Secretary-General, which was circulated as an official United Nations document (A/C.1/51/10) for the fifty-first session of the General Assembly. 9 of 34

10 2. Substance With 50 States publicly declaring their political commitment to work towards a ban, the following 16 months were dedicated to a series a meetings hosted by various capitals 7 to work on the substance of the Treaty. In parallel, regional conferences, workshops and bilateral meetings were convened around the world to build up support among as many States as possible. These were mainly coordinated by Canada, through the Ottawa-based Non Proliferation, Arms Control and Disarmament Division (IDA) team at the Department of Foreign Affairs and International Trade (DFAIT) and their counterparts in Canadian missions around the world, working in lock-step with the ICBL NGO coalition and the ICRC. The senior official overseeing global and security policy at DFAIT, Paul Heinbecker, had secured $2million CAD budget to fund the overarching campaign, giving the IDA team the financing required to run a sustained global campaign. The IDA team were in daily contact in person, by phone and by fax with the ICBL steering committee, as with other Core states who had formed around Canada. These included notably Norway and Austria, 8 who would go on to host significant meetings and conferences, as well as South Africa (whose disarmament ambassador Jacob Selesi would preside over the diplomatic conference) and the Philippines (whose President Ferdinand Ramos was a General fighting an insurgent group which used mines at the time 9 ). Austria held the pen on treaty drafting. Extensive talks over 14 months were held on three successive drafts produced by Austria on the basis of talks with States and civil society participating in the Ottawa Process. The initial structure and wording was taken from previous weapons bans on chemical weapons and on biological weapons. Additional articles were added relating to victim assistance and demining, a departure from classic disarmament treaties. In Brussels in April 1997, the third Austrian draft was officially adopted as the basis for diplomatic negotiations in the Declaration for the Brussels Conference on Anti-Personnel Mines, which was signed by 97 States out of 156 participating. 7 Brussels in June 1997, Vienna in February 1997, Bonn in April 1997, 8 Sinclair had a strong working relationship with the Geneva-based Austrian disarmament ambassador at the time, Tomas Hajnocki, having worked closely with him during her time as NATO liaison officer. (Interview, April 2015). 9 John English 10 of 34

11 During the Process leading up to talks on the final text, the ICBL was involved in four particular aspects of work that underpinned the efforts of the coalition of pro-ban States to achieve a ban on APMs. Firstly, at the street level, the ICBL, through its 1,000+ member network, was able to reach out to local voters and mobilise citizens around the world. Secondly, in the corridors of parliaments and legislatures globally, the ICBL members were also raising awareness and building support among policy makers. Thirdly, at the back of the room during negotiations, ICBL publications were providing expert research and eye witness accounts to reinforce the importance of a ban on APMs. Finally, and very importantly, the ICBL was at the table during talks with their status and rights of full observer. The role of the ICBL and its coordinator Jody Williams was recognized by the joint awarding of the Nobel Peace Prize in November 1997, a month before the MBT was signed by 122 States in Ottawa. 3. Agreement On 1 September 1997, the Diplomatic Conference on an International Total Ban on Anti- Personnel Land Mines was convened in Oslo, Norway. The Conference lasted three weeks. Given the progress that had been made during the substantive phase on drafting a final treaty, the Conference was expected to proceed relatively smoothly, albeit with uncertainty around which states would indeed adopt the treaty. In the end, the highest risk of destabilisation came from the late entry of the US and the attempt by the American delegation to introduce a Korean exemption as well as a long transitional period. This attempt was not successful, although Washington placed strong pressure on their counterparts in capitals around the world. 89 States adopted the final text of the MBT on 18 September It opened for signature in Ottawa on 3 and 4 December It entered into force on 1 March 1999, six months after the fortieth instrument of ratification had been deposited, with a total of 71 Signatories. 10 The MBT was the fastest multilateral global arms control treaty to enter into force in the 20 th century. 10 United Nations, Treaty Series, vol. 2056, p of 34

12 Landmines: Australia and regime blocking During the Ottawa Process, Australia was a participant in all three phases and a signatory to each formal document that signalled the transition to the following phase, from the Ottawa Declaration to the Brussels Declaration to the Mine Ban Treaty. Closer analysis shows that Australian diplomatic efforts were geared towards promoting an alternative outcome to the MBT, namely the pursuit of talks within the Conference on Disarmament at the UN, without envisaging a full ban on APLMs. Canberra s reluctance to embrace the Ottawa Process was grounded in procedural concerns, about leaving the UN frameworks, and in pushing a strong substantive outcome that would go against its main ally, the US, and other military powers. 1. Commitment In the 1990s, Australia s Labor Foreign Minister Gareth Evans was focused on the nuclear file. Australia s presence in Geneva had been ramped from the late 1980s in order to continue to pursue multilateral efforts on ongoing talks on a Conventional Test Ban Treaty (CTBT), including the creation of the post of Disarmament Ambassador. Conventional weapons were not on Evans radar. Evans saw measures on transparency on export controls and conventional weapons as the only, modest option for the long and arduous path forward with the P5 to set the tempo. 1 He maintained a traditional arms control approach to the Ottawa process, arguing that talks should be conducted within the traditional disarmament forums set up under the UN, the Conference on Disarmament and the CCW, whose members included the major users and producers of landmines. He was personally sceptical of engaging in talks outside of the UN as he felt that key states would not participate, thereby discrediting any possible outcome. Furthermore, he also felt that a complete ban was not realistic and was in favour of stronger regulations rather than a prohibition. He stated that the moral position 1 on landmines was to take action within these forums rather than waste diplomatic efforts on a hopeless utopia. 1 His government lost federal elections towards the end of the commitment phase. Under his conservative successor, Alexander Downer, Australia changed positions, publicly supporting both approaches, the Ottawa Process and a UN-based process. Participation in the Ottawa track was now included as one avenue 1 while continuing efforts for broader take-up of Amended Protocol 2 of the CCW and for more stringent rules in the CD. The multi-avenue approach followed by Downer from 1996 onwards reflected Australia s position that universalisation 12 of 34

13 of strong regulations on landmines was necessary and that the Ottawa Treaty was unlikely to be ratified by producer countries represented in the CCW/CD. Australia s consistent position from Evans to Downer was that the regulation of landmines was a case for disarmament rather than a humanitarian issue, which is why the CD and the CCW were the preferred forums for talks to proceed. Under Downer, and in line with the preference of Washington, the CD avenue that was Evans preferred option was notably pushed as the preferred forum for landmines action Substance At the first turning point of the Ottawa Process, the 1996 Strategy Conference hosted by Lloyd Axworthy, Australia again reinforced its preference for talks to proceed within the CD while commending the Conference as an important backdrop for raising public awareness. 1 Australia successfully campaigned for the appointment of a Special Coordinator on landmines to the CD in The role was taken up by Australia s disarmament ambassador John Campbell, who was tasked with developing a mandate for discussions to commence within that forum. Campbell proposed four possible options, ranging from the creation of an ad hoc committee to an incremental path towards a partial or complete ban or the negotiation of a comprehensive ban. No mandate, however, was agreed to. As progress in the Ottawa Process ramped up, the CD path under Ambassador Campbell was postponed in August 1997 (pending the outcome in Oslo). An extension to Campbell s mandate was blocked that year, but was reinstated the following year, and again in Australia s participation in the Ottawa Process continued, with the notable inclusion in the official delegation of Sister Patricia Pak Poy as the representative of the Australian Network for the Campaign to Ban Landmines. Sister Pak Poy, a Catholic nun from Downer s home town of Adelaide, had been included during CCW Review Conference talks and continued during the major steps of the Ottawa Process. Launched in 1993, the Australian Network brought in key partners such as Oxfam, the Australian Red Cross and Australian-based UN affiliates to focus the Australian government s attention on the humanitarian impacts of landmines and the urgency of a global ban through a grassroots campaign including film screenings, photos exhibitions and public rallies. Sister Pak Poy certainly drew public attention to the push for a ban in the Ottawa Process, as acknowledged for example in 1998 by the prominent Returned and Services League (RSL) the peak body representing 13 of 34

14 returned servicemen and servicewoman- who named her person of the year at their annual conference. In 2007, Alexander Downer would also recognize her role in the foreword to a collected edition of articles. 3. Agreement At the Oslo Diplomatic Conference, Australia was one of a small number of States continuing to support specific US amendments limiting the draft treaty s provisions. It was only subsequent to the Oslo conference, that Australia announced its intention to be among the initial signatories the Mine Ban Treaty. Australia could be said to have finally shifted to its unqualified support for a total ban when the hard yards had been won and the United States position became untenable. Two years later, and contrary to Evans predictions, the Ottawa ban treaty was adopted. Alexander Downer would go on to sign it in December that year and it was ratified in January 1999 in the Australian Parliament. FM Downer s speech on announcing Australia s ratification of the Ottawa Treaty referred again to the CD, reinforcing the Australian preference for multilateral diplomacy with a broad membership and a fixed forum. This demonstrated that despite official support for the Ottawa Treaty, Canberra remained cautious about the impact it would have. Nonetheless, Australia was among the first signatories in 1997 and went on to destroy stockpiles in Funding for victim assistance and demining has been ongoing since then, and Australia has continued to contribute in the implementation of the Treaty in various capacities. Cluster munitions: New Zealand and regime building The CCM was negotiated in three phases. Political commitment (1) from a growing number of States to address the unacceptable harm to civilians that was caused by cluster munitions led to the fast-track negotiation of the substantive elements of a treaty (2) that was agreed to and adopted initially by 107 states (3). These three phases, commitment, substance and agreement, constituted the Oslo Process. The starting point for the Oslo Process was the path-breaking Ottawa Process that had preceded it, in terms of coalitions of actors (states and NGOs), and the format and content of negotiations, namely a humanitarian arms control treaty negotiated outside of the UN. 14 of 34

15 1. Commitment In the 1970s, states had already started talks on banning cluster munitions and other explosive weapons. These talks did not lead to negotiations on instruments of international law. Evidence of high civilian casualties from cluster munitions began to emerge from the 1990s (Iraq in 1991, Chechnya in , former Yugoslavia in 1999) and into the 2000s (Afghanistan, Iraq, Lebanon). The international community began to take notice, with the creation of the NGO network the Cluster Munitions Coalition (CMC) and regular attention from the ICRC. The intent was to develop prescribing regulations rather than prohibiting a category of weapon. From 2003, informal meetings were held at permanent missions on the margins of existing disarmament meetings in Geneva among disarmament diplomats from a small but committed group of states along with partners in the ICRC, the UN and the CMC. Conflict in Southern Lebanon in 2006 led to millions of cluster bombs being dropped by Hezbollah and Israel, a significant amount of which were failing to detonate on impact and constituting a high risk of death for civilians returning home after the end of hostilities. This spurred the most progressive actors states and civil society to consider pursuing a much stronger set of binding rules. A group coalesced around Norway which included representatives from Austria, Belgium, the Holy See, Ireland, Lebanon, Mexico, New Zealand, Peru, Sweden and Switzerland. An opportunity to begin talks on a stronger set of rules emerged at the 2006 Third Review Conference of the Convention on Certain Weapons (CCW) in Geneva. When the Review Conference failed to agree to begin negotiations of a legally binding instrument that would address the humanitarian concerns posed by cluster munitions, Norway invited interested state to attend an international conference in Oslo in February 2007 to start an independent process outside the CCW to negotiate a cluster munition treaty On 17 Nov, Norway s new MFA and former head of Norwegian Red Cross Jonas Gahr Støre stated that We must take advantage of the political will now evident in many countries to prohibit cluster munitions that 15 of 34

16 At the conference, 49 states formally adopted the Oslo Declaration and committed to conclude by 2008 a legally-binding instrument on cluster munitions that cause unacceptable harm to civilians to prohibit their use, production, stockpiling and transfer. The ambiguous formulation of unacceptable harm left states open to interpret the scope as suited them for political expediency. 12 Norway was leading the charge with the financial and political support, and legal and weapons law expertise, of a small group of core states who would host and help steer key milestones in the process. From the beginning of the Oslo process, the New Zealand Disarmament and Defense Minister Phil Goff had been particularly engaged and supportive of his Geneva-based disarmament team. New Zealand s expert deminers had participated in activities in Lebanon and the Minister had heard first-hand of the devastating consequences of unexploded remnants of war. Between , the New Zealand Ambassador Disarmament, Don Mackay, had played an important role in negotiations for the Convention on the Rights of People with Disabilities (CRPD), notably as president of the Ad Hoc Committee leading talks form August 2005 in New York. He was experienced at negotiating treaties within the UN system and was particularly attuned to the human rights aspects of victims of cluster munitions through his work on the CRPD. Don Mackay s work throughout the Oslo Process would prove key, not simply from the perspective of his legal prowess, but also thanks to his sheer doggedness, endurance during long meetings and unrelenting attention to detail. Both Goff and Mackay were highly aware and in synch throughout the Oslo Process. Wellington was supportive from the beginning of New Zealand s active role in talks. Financing was forthcoming to host an international meeting, the largest multilateral cause unacceptable humanitarian harm. The time is ripe to establish broad cooperation on a concerted effort to achieve a ban. 12 For cluster munitions users and producers, this formula was seen to only partially close the door on future use (with the potential to exclude from the scope of a future instrument any weapons that caused acceptable harm, for which no specific definition existed at that point). For states whose starting point was that all cluster munitions caused unacceptable harm by their very nature, this formula was also adequate as it indicated the possibility of a complete ban on the horizon with a strong humanitarian link. 16 of 34

17 conference that Wellington had ever hosted, which was included in the timeline announced in Oslo. Crucial questions on scope, nature and definitions had been left very much open at this early stage and would require further meetings and technical talks, to be held in Lima, Austria, and Wellington, to formulate the substantive elements that would form the baseline for negotiations. Majority decision-making was the modus operandi of the Oslo Process, in contrast with the consensus-based approach of the CCW. 2. Substance Complex technical and legal argumentation to define a cluster munition would occupy much time during the months between Oslo and the Dublin Diplomatic Conference. The thorniest issue to resolve during this phase was the question of military utility. Progress was made when new research emerged to provide a solid evidentiary base that disproved accepted thought on dud rates. 13 Tabled at a meeting in Vienna, this research pushed discussions in the direction of a strong precautionary approach in view of the findings that cluster munitions equipped with self-neutralisation or self-destruction mechanisms can fail, thereby increasing the risk of harm to civilians. 14 The stream of work on definitions was coordinated by Don Mackay. The formula that would be used involved a reversal of burden of proof that placed the onus on producers to justify why their weapons did not cause unacceptable harm. 15 Thanks to this formula, talks would not be hamstrung by debate about which weapons to include and why, but would instead progress to the modalities of the prohibition. This was a critical achievement in the Oslo 13 This would include research conducted by the Norwegian Department of Defense which showed that the actual dud rate, or failure rate, of their national arsenal of cluster munitions was much higher than the official figures. Whereas previously the Norwegians had estimated dud rates to be less than 1%, studies conducted returned results upwards of 10%. 14 Rosy Park 15 They would have to argue why their weapons should not be excluded from the prohibition on use that the treaty would bring about. Rather than negotiate which weapons should be banned, requiring extensive technical expertise and placing the burden on progressive countries to demonstrate unacceptable civilian harm, negotiations would instead focus on a narrow and cumulative list of characteristics which weapons would need to comply with to be considered acceptable and outside of the scope of the treaty. 17 of 34

18 process as it opened the pathway to negotiating a comprehensive ban and equally importantly focused attention and energy on victim assistance and the ongoing humanitarian aspects of weapons use in particular in post conflict contaminated areas. The running point that marked the passage between the substantive phase and the agreement phase was the Wellington Conference, the largest disarmament meeting ever convened in New Zealand. A key ally of the government here was campaigner Mary Wareham, the founder of New Zealand Aoteroa Cluster Munitions Campaign, who had been part of the Ottawa Process working in close collaboration with the ICBL. She lent her considerable expertise in conference management to Don Mackay and his offsider Charlotte Dawson as they geared up for the conference. Wareham also coordinated a highly visible campaign of public activity during the Wellington Conference, from public demonstrations to placards on the streets. This notched up the intensity of proceedings and was a source of irritation to some of the less progressive states diplomats. Don Mackay s personal qualities proved crucial during the Wellington Conference, the final step in the substantive phase of the Oslo Process, which resulted in the adoption of a draft baseline text for negotiations and rules of procedure for the Dublin Diplomatic Conference. Aside from the exclusions formula to define cluster munitions, another sizeable issue began to emerge in Wellington that had the potential to destabilise the Oslo process, namely the question of interoperability which was a key are of concern for states with obligations under military alliances. Tensions between US allies in particular and other states would lead to rising tensions in the negotiating room and in capitals, with political pressure being put on allied capitals from Washington. 16 As it became clear over the course of talks in Wellington that the final baseline text that would be negotiated in Dublin would indeed be far-reaching in scope, the so-called likeminded group of states with military connections to NATO and under the political influence of the United States began to voice considerable concern and threatened to derail talks. 16 WikiLeaks documents 18 of 34

19 Diplomatic demarches from the US State Department s Arms Control unit and in particular its director Richard Kidd III had multiplied and intensified in the lead-up to Wellington and would continue to do so until the treaty was gaveled in in Dublin. 17 The pressure being applied by Washington-based desk officers was felt keenly by a group of smaller states from Asia, Latin America and Africa, who in private presented a signed letter to Don Mackay and the Conference team in Wellington to exhort them to remain faithful to the strong stance on definitions. 18 To assuage the concerns of the Like-minded group, and to ensure that the conclusion of the Wellington Conference would indeed lead to a greenlight for final talks in Dublin, the New Zealand delegation proposed a procedural compromise with alternate text included from the like-minded group in a compendium as an appendix to the Wellington Declaration. In a hostile diplomatic environment where larges states were using their influence around the negotiating table, and behind the scenes (between officials in various capitals), compounded by the active presence of civil society protests against like-minded states on the periphery of the conference venue, the outcome in Wellington was surprisingly progressive. Mackay s ability to remain calm in the face of intense pressure from likeminded states, and openness to creating space for smaller delegations to share their concerns with him, ensured that an outcome was not only achieved but that it represented the majority of states views rather than the views of the major states. Agreement The Wellington Declaration had set a strong path for the two-week diplomatic conference in Dublin to proceed. Over the course of three weeks, from May 2008, 107 States worked their way through the draft treaty text that had been appended to the Wellington Declaration. Strong voices assisted the President of the conference by guiding proceedings 17 Zambian diplomat interview in Geneva Research interview 19 of 34

20 in thematic subgroups as Friends of the Chair. Don Mackay would once again shepherd work on definitions in this function. Key breakthroughs occurred when the definitions formula was accepted. Strong victim assistance measures and a path-breaking legal definition of victim would create a precedent in international law. 19 Controversially, a sub-clause within article 21, referred to as interoperability, would also be included in the final treaty text. 20 Although the text itself is subject to legal interpretation, its purpose was to ensure that states parties to the ban would not jeopardise future military operations with allies who were not signatories. The tactical alliance of progressive states and non state actors, bringing to bear the voices of victims from 350 organisations working across 90 different countries, sustained the momentum and pressure required to bring about a strong prohibitions regime in 14 months and in the crucial weeks during negotiations in Dublin. Cluster munitions: Canada and regime blocking After the Mine Ban Treaty, Axworthy and the Chretien liberal government were replaced by Steven Harper s Conservative government. The international context had also changed since the Ottawa Treaty had been signed in 1997, notably with the pre-eminence of security concerns. On cluster munitions, Canada saw the way forward to be within the CCW as an extension of existing provisions, rather than a new instrument with new provisions. Canada s cautious approach reflected balancing public concerns in the wake of wide-spread use of cluster munitions against civilians in Lebanon with keeping the door open for future Canadian use of cluster munitions and participation in joint operations with the US as manufacturer of 70% of cluster munitions. 21 This was held up as a stark contrast to the MBT. Given the close connection between both the process and the substance of the Ottawa 19 Strong connection with the Convention on Rights of People with Disabilities which had just been negotiated at the UN in New York, with Don Mackay a notable participant. 20 Steve Goose, head of Arms Control for Human Rights Watch and a member of the steering committee of the Cluster Munitions Convention, would refer to this as the stain on the cloth of the prohibition on cluster munitions. 21 See John Borrie pp Unacceptable harm: a history of how the treaty to ban cluster munitions was won, UNIDIR of 34

21 treaty, this could be seen to be a manifestation of Harper s light switch 22 approach on foreign policy where the Conservatives were looking to position themselves as the polar opposite to their Liberal predecessors the ABL approach (anything but liberal). During the Oslo Process, Canada was a participant in all three phases and a signatory to each formal document that signalled the transition to the following phase, from the Oslo Declaration to the Wellington Declaration to the Cluster Munitions Convention. Canadian efforts were designed to steer talks away from the progressive track of the Oslo Process towards the gradual approach within the CCW Commitment In , as momentum built up within the CCW and then later in the Oslo Process, international measures on cluster munitions were not high on Canada s international agenda in Geneva. Ottawa was nonetheless present at every step in the cluster munitions talks in both the CCW in Geneva and the Oslo Process forum. When options were being put forward in the final week of the CCW Review Conference in Geneva, Canada intervened in plenary to propose amendments to a mandate proposal put forward by the UK for a GGE to explore further how existing IHL provisions should be applied to cluster munitions. When the conference ended without consensus, Norway s invitation to Oslo was taken up by states committed to action outside of the CCW but also by states such as Canada for whom it looked better to the outside world to be involved, and offered the prospect of influence, if not outright control, of the process. 24 From a disarmament perspective, Canada s official policy was an incremental path to a partial ban rather than a complete ban, with a preference for negotiations to be conducted within the CCW rather than outside of the UN s disarmament machinery. From a humanitarian perspective, Canada was in favour of strong provisions on victim assistance for any future instrument. 22 Paul Heinbecker coined this expression. He was speechwriter to the Progressive Conservative PM Brian Mulroney and went on to hold one of the most senior civil service positions in DFAIT under Liberal PM Chretien. Although he has been an outspoken critic of Stephen Harper, his political perspective is relatively agnostic. He has been approached by all three mainstream parties Liberal, Conservative and New Democratic Party (NDP) to stand as a federal political candidate. 23 Borrie pg Borrie 21 of 34

22 As the Oslo Process picked up in speed, Ottawa continued its efforts to move the centre of gravity on cluster munitions back to the CCW, while still participating in the Oslo Process, both of which were running in parallel. Canada would be the first NATO state to address plenary to officially endorse the Oslo Declaration. Canada was among a cohort of states which progressive states had not anticipated would join the Declaration, including Italy, the UK, Finland and Egypt. Some of these states would also join Canada as proponents of a CCW protocol in parallel, along with Australia and Switzerland. Strategically, the Oslo process would be used as a lever to apply pressure to the cluster munitions producers and users within the CCW to ensure that rapid progress would ensure there rather than in an ad hoc track where the numeric advantage would lie with non producing and non using states. This strategy, of backing two horses, would ultimately back-fire in Wellington as the Oslo process entered into the final phase of the substantive negotiating phase and the groundwork was laid for the Dublin Diplomatic Conference. 2. Substance In Wellington, Canada aligned itself with the so-called group of Like-minded states that included a broad church of NATO members, producers and users with significant cross-over with CCW membership, with the UK, France and Germany the most vocal among them as well as Japan (one of 4 states not to endorse the Oslo Declaration) and Australia. Two issues brought the homogenous group together. For producers and stockpilers, the focus was on ringbarking existing stockpiles or weapons produced domestically and protecting them from the scope of the future treaty. For US allies, the focus was on the future viability of joint American military operations and fulfilling treaty obligations given that the US was not expected to sign the future treaty and had been a historical user and producer of cluster munitions. Canada fell within the latter category and was especially keen to maintain relations with the US at this point for a variety of reasons (including the ongoing talks on trade agreements). 22 of 34

23 The views of the like-minded were included in a compendium to the Wellington Declaration, which contrary to their intent maintained a preventive approach on definitions and did not include transition periods. On interoperability, Canada had begun to take a lead role in order to steer a path that would assuage public concerns about responding adequately and in good faith to the humanitarian crisis in Southern Lebanon while not jeopardizing US military relations. At the closing, Canada associated itself with a statement on behalf of the like-minded group declaring dissatisfaction with the conference as it felt different opinions and views had not been taken into account in a balanced way. 25 Canada made its own statement severely criticising the conduct of NGOs. 26 Opting for the CCW track was no longer possible as it had been suspended in June after consensus was not reached. It was no longer possible to starve the Oslo process of oxygen which led to the reluctant presence of the Like-minded in Dublin who had publicly committed to taking multilateral action on cluster munitions and could not back away from this public stance without incurring domestic backlash. After Wellington, the Like-minded group of states largely went their own ways, as states either (a) established criteria that would protect their specific national interests without undermining the overall strength of the future instrument, or (b) for domestic political reasons (the UK notably would have a complete about-change in position when PM Gordon Brown announced the complete destruction of UK stockpiles on the eve of the last day of talks in Dublin). In the case of Canada, interoperability had been a clear red-line. 25 Statement of France on behalf the like-minded countries, closing plenary, Wellington Conference, 22 Feb (From Landmines Monitor?) 26 Landmine Monitor: Canada especially objected to NGO criticism that Canada s concern over interoperability was directly related to pressure from the US. A Canadian delegate stated that NGOs currency in this process is diminished by some of the tactics employed to influence th process. Countries such as my own and several close allies have been vilified in press interviews and in press releases produced by the CMC. We have been accused of quote trying to undermine an international treaty on cluster munitions enquire. Nothing could be further from the truth. Such accusations are unfounded and unfair. In my view such tactics are demanding and counterproductive. They tarnish the credibility of you organsiations and do a disservice to the noble cause youths to advance. Statement of Canada Closing Statement Wellington Conference. 23 of 34