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19 – 21 October 1998, Kongresshaus Zurich, Switzerland
Workshop 5D:
Arms Control and Disarmament
(A paper prepared for the Arms Control and Disarmament "Cluster" as part of its Study on Contemporary Issues in Arms Control and Disarmament to be presented to the Zurich Security Forum, October 1998)
The old adage "a week is a long time in politics" could aptly be applied to the meteoric rise of the anti-personnel landmine (APM) issue to the top of the international diplomatic agenda in 1997. Only someone with truly superior powers of analysis and prediction could have foreseen in September of 1995, at the start of the first Review Conference of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (the CCW or Inhumane Weapons Convention), that the APM issue would gain such importance that in only two years time a completely new international agreement actually banning this whole class of weapon would be completed.
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction (hereafter, the Ottawa Convention), completed in Oslo in September of 1997 and signed by more than 120 countries in December in Ottawa, is likely to enter into force as binding international law perhaps by early 1999, despite the relatively large number of ratifications (40) required by the Convention. In addition to this rapid entry into force, major efforts are being made in 1998 to put into place mine action programmes to significantly increase global capacity in mine clearance, mine awareness and assistance to persons and regions affected by mines, with the intention of making early progress on ameliorating the conditions caused by the wide diffusion of APMs in the world.
How can we explain this degree of focused attention by the international community to an issue little appreciated publicly as recently as five years ago? What factors made it possible to take the step to ban a whole class of weapon which has been part of the defensive arsenals of militaries for decades and which continues to be seen by some as essential? What are the prospects in the short to medium term for real progress on the global APM problem? What factors will affect this progress? This brief paper will attempt to provide some insights into these important questions.
Despite its fairly recent emergence as a focus of international political attention, it would not be accurate to argue that the terrible legacy of the widespread use of landmines was unappreciated before. The problem of the indiscriminate use of landmines had long been recognised. This can be seen in the fact that certain proscriptions and limits on their use had already been defined under the 1980 CCW in its Protocol II on "Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices". This Protocol specifically prohibited the use of mines against civilians in international armed conflicts as part of the overall contribution to international humanitarian law intended by the CCW. However, the existence of Protocol II, in fact, had had very little impact on the actual behaviour of state actors, the majority of whom remained (and remain) outside the CCW in any case, to say nothing of the behaviour of non-state actors.
What changed in the early 1990s which enabled the terrible reality of the global landmines problem to become visible, the inadequacy of the 1980 CCW Protocol II to become understood, the landmines issue to move from one defined nearly exclusively by humanitarian response to victims to one demanding binding limits on the employment of such weapons, even to the point of an international ban on production, stockpiling, transfer and, most importantly, use of anti-personnel landmines?
Like the larger class of light weapons to which anti-personnel landmines belong, in the period of the Cold War such weapons were not seen as threats to security requiring concerted efforts at multilateral control. APMs were understood to be purely defensive weapons. International efforts at arms control and disarmament were focused elsewhere. It was only with the easing of the Cold War that the full dimensions of the use of landmines in conflicts in many parts of the world, many of them "proxy" wars of the Cold War itself, could begin to be fully appreciated. The effects of the millions of mines remaining in such conflict zones as Afghanistan, Mozambique and Cambodia on the lives of individuals and on the prospects for economic and social recovery from war of whole regions was better able to be seen as the world ceased to be defined in traditional Cold War terms The seemingly uncontrolled diffusion and use of APMs against civilians in the growing number of conflicts of the 1990s, most of them internal, further strengthened the view that this was a problem requiring greater international attention and action.
However, the impetus behind the growing attention to the landmines problem and the calls for action came largely from the perspective of this as a humanitarian issue and not as a traditional military security issue. It was only as it became increasingly obvious that real action to reduce the number of civilian casualties caused by landmines and to ameliorate their economic and social impact would require steps beyond the generally defined limits on their permitted use by militaries, as outlined under Protocol II, that the necessary disarmament dimensions of controls on the use of anti-personnel landmines began to be understood. Some governments began to more greatly appreciate the importance of the landmines problem as their own troops encountered them as members of the growing number of UN peacekeeping operations of the early 1990s. Humanitarian and development organisations in the early 1990s began to argue that there simply was no solution so long as APMs continued to be laid by the millions; banning their production, stockpiling, transfer and use was required if the human impact of this "weapon of mass destruction in slow motion" was to be reduced.
The calling of the First Review Conference of the CCW was itself a response to the growing demand for greater global action on the APM issue. It was clear, however, in the preparatory meetings in 1994 and 1995 for the Review Conference that, however strong some voices were for an outright ban on APMs and despite the unilateral steps that a number of states had taken by that time to limit or end their own production, transfer or use of APMs, there would be little possibility in the Review Conference itself for much more than a modest strengthening of the existing Protocol II. Not only was it clear that military arguments for the retention of APMs as an essential element of defence capacity would weigh heavily in the considerations of States Parties, whatever the humanitarian issues, but also the practice of the Review Conference itself in requiring decision by consensus virtually guaranteed that any changes which the Review Conference could accomplish would be reformist rather than revolutionary.
The Review Conference failed to complete its business in the allocated three weeks, due both to the strength of pressure for more dramatic action on APMs and to the strong resistance to any substantial changes to the existing Protocol II by a number of States Parties. The Review Conference was forced to reconvene in January 1996 and again in April/May , the intervening time enabling an even greater mobilisation of public awareness and pressure over this issue. This further mobilisation, although it failed to substantially influence the results of the Review Conference, was very important in strengthening the commitment of some governments to pressing for further international action beyond the Review Conference.
The negotiations for the amending Protocol II did result in the strengthening of the existing Protocol in a number of important ways. Protocol II as amended extends the scope of the Protocol to the use of APMs in non-international conflicts; lays the responsibility for the clearing of mines at the end of hostilities on those who lay them; requires that all APMs be detectable and prohibits the use of any mines that are designed to detonate as a result of the use of electromagnetic mine detectors; prohibits any transfer of non-detectable APMs as well as the transfer of any type of mine to non-state entities; restricts the use of long-lived or "dumb" mines to marked, guarded and fenced minefields and requires that any other manually emplaced or remotely delivered APMs have effective self-destruct and self-deactivating mechanisms; and provides stronger rules for the protection of international humanitarian workers from the effects of APMs.
But the results of Protocol II amendment negotiations also can be interpreted as a step backward in at least two important ways: 1)by, in effect, endorsing the use of a new type of anti-personnel landmine, the self-destructing/self-deactivating, or "smart", mine, and 2)by introducing a new definition of anti-personnel landmine as mines which are "primarily designed to be exploded by the presence, proximity or contact of a person". The use of the word "primarily", said critics, could be used to argue that the Protocol does not apply to other types of mines which, nevertheless, function and are used as APMs. The long-transition time for implementation of some of the key provisions of the Protocol was also seen as greatly weakening the potentially positive impact of some of the provisions of Protocol II as amended. The fundamental weakness, however, was seen to be the complexity of the agreement, which would make compliance, particularly by non-state actors, less likely. As has been noted by the International Committee of the Red Cross (ICRC), a major player in the move for greater international action on this issue, "The provisions drafted were extremely complex and many doubted whether they would or even could be effectively implemented in most situations of armed conflict. Few believed that the amended protocol would be sufficient to reduce the number of civilian landmine casualties."1
Because of the consensus rule of the Review Conference, this was the best that could be achieved. But it was a very disappointing result for many, including many of the governments who had nevertheless agreed it. The final session of that Review Conference saw many governments openly condemn the results as too little. The then Secretary General of the United Nations, Boutros Boutros-Ghali, in a message to the closing session of the Review Conference, took the unprecedented step of expressing his "deep disappointment" that the limited progress achieved in the Review Conference had fallen so far short of what he had hoped for.2
Nevertheless, the amended Protocol II stands as a benchmark in two important senses. Its limited success can be seen to have spurred disappointed governments and NGOs to press on for further action, which resulted in the 1997 Ottawa Convention. In addition, its existence and the CCW as a whole are also necessary reference points for the future of global attempts to deal with the APM problem, a subject to which we shall return later.
In May 1996, despite the disappointment of some States Parties with the results of the Review Conference, it was not at all clear that a separate treaty process outside the CCW was the obvious or even desirable way to go for the international community to be able to get beyond the limited contribution of the amended Protocol II to effective global action on the landmine problem Although Canada had announced at the end of the Review Conference its intention to invite those "like-minded" States and concerned organisations and agencies who wished to see a total ban on anti-personnel landmines to Ottawa in the autumn for an International Strategy Conference, even many of those self-selected 50 States that chose to attend the "Towards a Global Ban on Anti-Personnel Mines" conference in October, were stunned by the challenge Canada's Foreign Minister Lloyd Axworthy put to the participants at the end of the Conference to return to Ottawa in late 1997 to sign an actual APM ban treaty.
What followed the charge issued by Canada is the stunning "fast track" process which has become known as the Ottawa Process. The Ottawa Process, that series of consultations, conferences, lobbying and public campaigning which took place between October 1996 and December 1997, enabled the Axworthy challenge to be successfully met before the end of 1997.
It is beyond the scope of this brief paper to trace the steps of this process. But before analysing further the actual accomplishments of the Ottawa Convention and post-Ottawa needs and directions, it seems important to take note of some of the factors which were important to the success of what was perceived, even well into 1997, as a fairly risky strategy.
Once it was clear that any approach to the landmines issue short of an actual ban was unlikely to make a substantial impact on the problem of civilian landmine casualties, there were really only three choices. The first--press for the early entry into force of the amended Protocol II while working towards a stronger further revision at the next Review Conference in 2001--was never really championed, although increasing the number of States party to the CCW and to the amended Protocol II remains an important element in the strategy for strengthening controls short of a ban by those States yet unwilling to end their own use of APMs. But the post-CCW Review Conference disappointment and the growing public pressure for greater action on the issue, really eliminated this approach as a viable option. The strongly supported UN General Assembly Resolution 51/45S of December 1996, which urged States "to pursue vigorously an effective, legally-binding international agreement to ban the use, stockpiling, production and transfer of anti-personnel landmines with a view to completing the negotiation as soon as possible," further pointed the way to earlier, more dramatic steps.
The other two choices were, therefore, to take the issue to the Conference on Disarmament or to take the "fast track" approach via a separate treaty process, as called for by Canada. The choice was stark. Each had its strengths and weaknesses. Because what was being proposed was an actual ban on production, stockpiles, transfers, and use, what had been largely a humanitarian law approach to control took on elements more traditional to arms control and disarmament processes. Hence, what more logical place to go than the "single, multi-lateral disarmament negotiating body", the Conference on Disarmament (CD)? A number of key States that had in fact been in Ottawa and were on record as favouring stronger international action on APMs-such as the United States, France, the UK, Australia and Finland-argued strongly for this course, and, as will be noted below, continue to see the CD as having an important role to play in the post-Ottawa phase of international action on APMs. How else to bring on board the major producers and users of landmines? Where better than the CD, with its expertise in negotiating complex arms control and disarmament agreements, including important verification provisions, to do this job?
But how could the CD be expected to do this job, critics argued, when many of the very States that had played such an obstructionist role in the CCW were themselves present in the CD and when the CD itself did not include many of the States most affected by landmines? Wouldn't the CD inevitably suffer the same problems of the CCW Review Conference negotiations, due to its practice of deciding by consensus? Better to get an early international ban agreement with whatever States could be convinced to join it initially than to see this critical humanitarian issue get bogged down in years of negotiations, even assuming a negotiating mandate could be achieved in the CD in the short run. By self-selecting participation in the process and by deciding not to seek a "lowest common denominator" consensus-based approach, it was argued, a strong international norm could be achieved, which currently reluctant States could join later.
But what value would such an agreement have if key States remained outside the agreement, CD advocates retorted? And so the debate went on right into nearly mid-1997 (and continues in some form even to the present moment, as will be shown below). Eventually it was the degree of public support which activists behind the Ottawa Process were able to achieve in the early months of 1997 and the inability of the Conference on Disarmament to move on this issue which swung the momentum strongly in the direction of the separate treaty process by mid-year, to the extent that 91 States were prepared to take part in the negotiations in Oslo and by December 122 were prepared to sign the Ottawa Convention.
It was not necessary for those States which were strongly supporting the Ottawa Process to actively oppose action in the Conference on Disarmament. This would have been politically difficult for them to do, as they could be accused (and nevertheless were) of undermining the functioning of a critical international disarmament institution. But politics in the CD did the job for them. The introduction of the APM issue into the CD programme of work debate in early 1997 caused consternation and mistrust. It further complicated a debate in the CD, in the aftermath of the successful completion of the Comprehensive Test Ban Treaty negotiations the year before, over what the programme of work of the CD should be. In addition, some asked why, when this issue had never previously been considered an important issue to be taken up by the CD, should some be so strongly now advocating that this was central to its work? Was this not just a further way of diverting attention away from what some considered the central issue for the work of the CD, nuclear disarmament? Was the suggestion that the CD take up this issue not simply a disguised way of de-railing the move for an APM ban, something which many States clearly did not yet favour whatever their rhetoric in the General Assembly? These debates are mentioned in this abbreviated form here only to indicate some of the factors which hampered any role for the CD on landmines in 1997 and to flag features which continue to be elements in the ongoing debate about whether the CD should even now have a role to play on landmines.
But the failure of the more conventional process, the Conference on Disarmament, to move swiftly and effectively in the post-CCW environment to take up this issue would not in and of itself explain why the only other realistic choice, a separate treaty process, succeeded. A number of other factors appear to have been of major importance in this success. Most important among these was the way the Ottawa Process was fostered and led by a unique combination of "core group" States, the ICRC, and non-governmental organisations, principally in the form of the International Campaign to Ban Landmines, often closely co-ordinating their work and certainly sharing a common goal of a total ban treaty. The ICRC and ICBL member organisations, with long experience in working in mine affected regions and with mine victims, had been central in getting the APM issue onto the international agenda. Their activities, combined with the determination of a handful of States prepared to take the risks associated with this unconventional path towards a new convention, proved to be a critical alliance. The very short year between Ottawa and Oslo was characterised by a strategic series of international meetings and regional conferences designed to build commitment and confidence in what could be achieved by a landmines ban convention.3
The importance of the role the "core group" could play was enhanced by the fact that it was cross-regional in make-up, hence overcoming one of the factors currently slowing business in the Conference on Disarmament, its group structure. The "core group" remained ad hoc and functional in its approach. Made up of a range of States-including Canada, Philippines, South Africa, Mexico, Switzerland, Norway, Austria and Belgium-different one undertook different responsibilities in their own region and beyond. For example, Austria provided the lead in the drafting of what eventually emerged as the text of the new Convention; South Africa strongly supported regional activities designed to bring governments in Africa on board, Africa being the most heavily mine-affected region in the world.
In addition, the Ottawa Process was an "opt-in" process from the time of the original Ottawa strategy conference in1996 right through to the final negotiations in Oslo. For example, the "ticket" to the Oslo Diplomatic Conference was basically for governments to be on record as being in agreement with the terms of the Final Declaration of the Brussels Conference, held in June of 1997, in which the States present affirmed that an effective, legally binding international agreement banning APMs should include: a comprehensive ban on the use, stockpiling, production, and transfer of anti-personnel landmines; the destruction of stockpiled and removed anti-personnel landmines; and international co-operation and assistance in the field of mine clearance in affected countries, and affirmed their objective of "concluding the negotiation and signing of such agreement banning anti-personnel landmines before the end of 1997 in Ottawa."4 As an essential part of this, the consensus rule was dispensed with. At the Oslo conference, while no votes were in fact taken, the agreed procedural rule that a vote could be taken and, if taken, a two-thirds vote would carry, effectively eliminated the possibility that a small minority could hold back progress.
It may well be that the Ottawa Process will herald a useful path for future arms control negotiations. The cross-regional "core group" process, the leadership of key "middle" powers, the strategic collaboration between governments and NGOs, the global organising capacity of the International Campaign to Ban Landmines, the movement away from the consensus rule, the emphasis on regional steps--all these are ways in which Ottawa Process succeeded in moving an international concern within a very short period of time from near stalemate to a new international agreement enjoying broad support. Certainly some "lessons" from this experience will be useful to the future.
But it is important to remind ourselves of one factor which also probably facilitated this way of working, a factor which may be less present in other weapons control initiatives in the future. APMs are, even from the perspective of those who most ardently defend their continued possession, weapons of relatively minor importance from a military security perspective. Their actual military utility has also been seriously challenged, even by military personnel.5 This made it easier for the primacy of the humanitarian costs over military importance to be accepted by many governments. This meant also that it was possible, in the actual negotiation of the Ottawa Convention, to accept less stringent verification provisions than are usually insisted upon in disarmament agreements. The lesser importance of this weapon system from a military point of view also probably made it easier for some of the key "core group" States to take independent action on this issue. For example, quite differing positions among key NATO allies and EU partners have been possible over APMs without threatening those relationships fundamentally, as would possibly be the case with weapons of perceived greater importance.
It is impossible in a brief piece such as this to go into detail on the provisions of the Ottawa Convention6. However, a few comments on what has been added by this Convention seem appropriate. Similarly, it is important to point out some of its limitations.
The opening paragraph of the Preamble to the Ottawa Convention clearly states the intended purpose of the Convention: "[The States Parties,] Determined to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement."
The final paragraph of this Preamble further emphasises this purpose by justifying the provisions of the Convention in existing international humanitarian law: "Basing themselves on the principle of international humanitarian law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, on the principle that prohibits the employment in armed conflicts of weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering and on the principle that a distinction must be made between civilians and combatants."
The Convention sets out to eliminate the anti-personnel mines as a weapon of war and terror by prohibiting their development, production, stockpiling, transfer and use, including so-called "smart" mines so recently legitimised under the amended Protocol II. Under the "general obligations" outlined in Article 1 of the Convention, each state party undertakes "never under any circumstances: a)to use anti-personnel mines; b)to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; c)to assist, encourage or induce, in any way, anyone to engage in any activity prohibited . . . under this Convention." (Art. 1, para. 1). As has been pointed out by the ICRC, "In ratifying the Ottawa treaty, a country accepts that mines are no longer a legitimate weapons to be used either in peacetime or in time of war. There are no exceptions to this rule."7
The Convention obliges each state party to destroy its stocks of APMs within four years of entry into force of the Convention for the state party (Art.4), with the exception of the possibility to retain a number of APMs "not to exceed the minimum number absolutely necessary" for the purposes of the "development of and training in mine detection, mine clearance, or mine detection techniques" (Art.3, para. 1). The only other exception in the Convention permits the transfer of APMs for the purpose of their destruction (Art.3, para.2). The Convention also obliges each state party "to destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control" no later than 10 years after entry into force of the Convention (Art. 5, para.1).
Articles 7 - 13 of the Convention provide a variety of mechanisms aimed at promoting compliance with the Convention, including transparency measures, facilitation and clarification of compliance procedures, dispute settlement processes, and mechanisms for meetings of the States Parties and for review and amendment of the Convention. Because of the nature of landmines, highly intrusive verification procedures were considered to be impracticable and too costly. Instead the Convention relies heavily on the stigmatisation of APMs and on mechanisms which encourage co-operation. Article 9 obliges States to take national legal, administrative and other measures "to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control", rather than attempting to provide any such measures internationally.
The Convention explicitly recognises that the APM problem will not cease with the implementation of its prohibitions on the production, stockpiling, transfer and use of APMs. Article 6 takes note, in the form of a general obligation on States in a position to do so, of the commitment which will be necessary and the assistance which will be required for effective mine clearance, mine awareness, care and rehabilitation of mine victims and their social and economic reintegration. Although there are the expected provisions for national withdrawal from the Convention, Article 20 places severe limits on this; language has also been included which makes explicit that any withdrawal does not "in any way affect the duty of States to continue fulfilling the obligations assumed under any relevant rules of international law". Article 20 also makes the Convention of unlimited duration. States joining the Convention must also join unconditionally; Article 19 permits no reservations.
Considering where the situation stood on APMs at the end of the CCW Review Conference in May 1996, the signature in late 1997 by more than 120 countries (far more than have ever joined the CCW itself) to a Convention whose provisions go far beyond the limited measures of the CCW, is of historic moment. The Ottawa Convention establishes a powerful new international norm which will help to make possible meaningful inroads into ameliorating the human suffering APMs have caused.
But no international treaty ever satisfies everyone and the achievement of the Ottawa Convention, like all other international agreements, required, as expected, some compromises. There are several areas of concern which should be noted which could adversely affect the impact the Convention is clearly intended to have on the mine problem.
In the Ottawa Convention negotiations it proved possible to remove the word "primarily", which had crept into the amended Protocol II, from the definition of anti-personnel landmine, hence eliminating the possible ambiguity which that word introduced. However, ambiguity was then re-introduced into the definition by the addition of the sentence "Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped." (Art. 2, para. 1). This raises two possible problems. First, the Convention does not define "vehicle", opening up the possibility that mines designed for use against light-weight vehicles could behave very much like anti-personnel mines and yet not be specifically prohibited under the Convention and that mines currently classified as anti-personnel mines which have anti-vehicle capabilities could be reclassified as anti-vehicle mines and therefore be considered to fall outside the prohibitions of the Convention. Second, although "anti-handling device" is defined in the Convention as a device "intended to protect a mine and which is part of, linked to, attached to or placed under the mine and which activates when an attempt is made to tamper with or otherwise intentionally (emphasis mine) disturb the mine" (Art. 2, para.3), it is argued by some that there is insufficient specificity in this definition to reduce fears that innocent civilians will continue to be affected adversely by the presence of such devices. Although ICBL observers in the Oslo negotiations felt that they had extracted a concession in the negotiations, to be included in the diplomatic record of the Oslo conference, implying a general agreement that any explosive device that acts like an anti-personnel mine is an anti-personnel mine and is therefore prohibited by the Convention, the decision to include definitions based on "design" rather than on their "function" in the Convention is seen by some critics as opening a worrying legal loophole.8
The modest compliance mechanisms of the Convention, emphasising as they do transparency and confidence-building ways of working rather than intrusive verification mechanisms, also represent a potential limitation of the Convention. How will new use of landmines, given the large numbers of mines currently emplaced in mine-affected regions, be detectable? How likely is it that States, the only actors under the terms of Article 8 of the Convention entitled to submit a "request for clarification" of compliance, will actually do so in the case of suspected Convention violations by another state?
It is too early to weigh the impact of these and other potential weaknesses in the Convention. Better judgements will be able to be made once the Convention has entered into force. And it must be remembered that the Convention has built into it a regular review process and amendment provisions for strengthening it.
For the immediate future, however, the real tests of the success of the Ottawa Convention will be how rapidly the number of States agreeing to be bound by its provisions grows, how quickly States bring their own behaviour into conformity with the Convention, and the extent to which sufficient international commitment to mine action in terms of mine clearance and victim assistance can be mobilised. In the end, the proof of the worth of the Convention will be whether or not the number of civilian casualties due to APMs falls, land is returned to productive use, individuals and communities victimised by landmines are successfully rehabilitated.
Running concurrently with the Convention signature conference in Ottawa in December 1997 was a three-day "Mine Action Forum". This Forum, also sponsored by the Canadian government and attended by hundreds of governmental, international organisation, and non-governmental organisation representatives, signalled the understanding that the achievement of a ban Convention was only the beginning of real work towards eliminating the APM problem. Effective mine action will need to take a number of shapes in the months and years ahead, if the promise of the Ottawa Convention is to be realised. Like the work towards the ban Convention itself, this will need to be a joint effort of governments, international agencies, and NGOs alike
Expanding Participation. Efforts since Ottawa have in part been focused on achieving rapid entry into force of the Convention. Although the numbers of those which have submitted their instruments of ratification grows steadily towards the required 40 and the first meeting of States Parties to the Convention can be expected in 1999, there remain a large number of States which have not yet signed the Convention and are unlikely to do so in the near future. These include, among others, the Russian Federation, China, the United States of America, India, Pakistan, Turkey, Finland, the two Koreas, Egypt and Israel and most of the States in the Middle East, a large number of the former republics of the Soviet Union, Burma and Vietnam. Many reasons-real, imagined, disguised-lie behind the reluctance to join the Convention at this time. In many of these cases, the reluctance is due to regional instability and insecurity or to actual internal or regional conflict. As with the Russian Federation, some governments cite the cost of mine clearance and the destruction of stockpiles, long exposed borders and the lack of a viable, affordable alternative to what is still considered to be a vital element in national defence as reasons behind being unwilling to join the Convention at this time. A key actor and important proponent of strong international action on the landmines problem, the United States has nevertheless itself stayed out for the time being, citing, among other reasons, its special responsibilities on the Korean, where it perceives landmines to have a continuing role to play in the current climate. Egypt, still affected by the millions of mines left on its territory during the Second World War, cites the failure of the Convention to have sufficiently strong provisions obliging those who lay mines to clear them, as well as its regional conflict with Israel, also not a signatory State. And so on.
Clearly, the larger the number of countries joining up to the Convention and adhering to its provisions the better and the more quickly the principles enshrined in the Convention will move into being considered customary international law, the more quickly effective action can be taken to clear mines and meet the needs of mine victims. Approaching universalization of membership in the Convention is therefore an important goal. But the already large number of countries which have joined, the good prospects for early entry into force of the Convention, the continued campaign to stigmatise anti-personnel landmines all work to establish the Convention as the norm of acceptable behaviour by States, even though many may stay out for some time to come.
Nevertheless, a number of steps can and are being taken to seek to move currently reluctant countries towards adherence to the ban elements of the Convention and eventual membership. These include:
To CD or not to CD? The absence from the Ottawa Convention of several of the world's major powers and the largest producers and users of APMs has led some to continue to champion a role for the Conference on Disarmament on the APM issue. Work in the CD could directly address the military security concerns of some States, something the "opt-in" process of the Ottawa Process failed to do, advocates argue. By taking a step-by-step approach to a total ban, beginning with a ban on transfers, States currently reluctant to join the Ottawa Convention could be progressively brought on board and global APM control regime strengthened, it is argued. Others less publicly express their fear that a piecemeal approach in the CD could undermine the ban norm established by the Ottawa Convention, with some even suggesting that this is precisely the goal of some advocates for CD action. Cynics argue the only real reason some press so hard for action by the CD is that the CD needs to be seen to be doing something. At this writing, it is clear that some States will make full use of the practice of consensus in the CD, so successfully avoided in the Ottawa Process, to stop any action in the CD which it appears might undermine the norm established by the Ottawa Convention or any of its particular provisions. Others, wishing either to see no further action internationally on APMs or wishing to use the APM issue as a bargaining chip for work on other issues they feel more appropriate to the role of the CD, may also resist any further steps in the CD. During the 1998 session, the CD has succeeded in re-appointing a Special Co-ordinator on Anti-Personnel Landmines. His report, due out at the end of June 1998, will indicate just how much consensus is present for any action by the CD on APMs.
The issue of establishing a legally-binding ban on transfers of APMs does raise a number of issues, however, quite apart from linkages with other issues which proposed action in the CD always includes. On the one hand, if carefully enough worded so as to include the universalization of the Ottawa Convention as the goal towards which such a transfer ban was intended and so as not to be able to be interpreted as in any way undermining the Ottawa Convention, it would seem logical that an effort to progressively bind in States to the ban elements of the Conventional could provide a useful service. On the other hand, it can also be argued that:
What Continuing Role for the CCW? While a role for the Conference on Disarmament which is clear and unambiguously complementary to and supportive of the Ottawa Convention may yet emerge, the Ottawa Convention has clearer links with the amended Protocol II of the CCW and may prove a more productive route to pursue in approaching the universalization of an APM ban regime than the Conference on Disarmament can ever be. While the Ottawa Convention goes far beyond the amended Protocol II, efforts were made in the drafting of the Ottawa Convention to make the Convention consistent in language and form with the amended Protocol II. This will make the eventual harmonisation of the two mechanisms easier.
In the meantime, the two mechanisms will exist in parallel. Approached creatively, they can serve to complement and strengthen each another rather than seeming to offer two choices to States, one less costly than the other. States joining Ottawa should be encouraged also to join the CCW if they have not already done so and to quickly sign up to and ratify the amended Protocol II. As the CCW itself then approaches universal membership (as at 30 January 1998, 71 States had adhered to the 1980 Convention)9, joined to the Ottawa-based regime will then be the important elements in the amended Protocol II which are not repeated in the Ottawa Convention, namely the provisions on the application to internal conflict, the responsibility on the users of mines for their removal, the provisions covering the use and transfer of anti-vehicle mines, the protection provisions for international humanitarian workers. States still reluctant to join Ottawa, by signing up to and observing the provisions of the amended Protocol II, will also, in addition, be moved in the direction and intention of the Ottawa Convention. Increasing membership in the CCW will also have the additional effect of strengthening that mechanism overall, the CCW still being the only international humanitarian law-based instrument for the specific regulation of existing conventional weapons and for responding to the emergence of future weapons.
Amended Protocol II will enter into force before the end of 1998, the required 20th instrument of ratification having been deposited with the UN Secretary General in June. The next CCW Review Conference, which must take place no later than 2001, and the meetings of States Parties which will take place in advance of that event, will provide opportunities for re-enforcing the elements of complementarity between the amended Protocol II and the Ottawa Convention, for emphasising the primacy of the stronger provisions of the Ottawa Convention, and for stimulating the adherence of additional States to both. Just how the two texts might be more systematically brought together in the future remains unclear at this moment and is rather less important while numbers of States remain outside one or both of these instruments. It is nevertheless an issue that will have to be tackled at some point in the future.
Compliance and Monitoring. Of vital significance to the impact of the Ottawa Convention will be how quickly States move to actually implement the steps required of them by the Convention, such as the destruction of stockpiles and the clearance of mined areas, and the submission of the required reporting. Also, assessment of the amounts and effectiveness of assistance provided to needy States to meet their own compliance obligations as well as more generally to the mine clearance and victim assistance commitments undertaken in the Ottawa Convention will be required. The Ottawa Convention itself provides no formal structures for this except for the receipt by the UN Secretary General of reports by State Parties required under Article 7 ("Transparency Measures") of the convention. Hence, "civil society" will have an important role to play in monitoring and publicly reporting the actual compliance of States Parties, despite the fact that they have not been given any formal role in triggering the "request for clarification"-related provisions of the Convention. To this end, the International Campaign to Ban Landmines has already taken steps to establish an international reporting network and data base, "Landmine Monitor", and to produce an annual "State of Landmines" report, developments which promise to be of critical importance in guaranteeing that States Parties live up to the commitments under the Convention and that there is confidence in this new landmines regime.
Mine Clearance, Mine Awareness, and Victim Assistance. The ending of the production, stockpiling, transfer and use of anti-personnel landmines has been understood to be fundamental to successful action to reduce the suffering and clear up the global pollution caused by the widespread and irresponsible use of APMs. Making the Ottawa Convention succeed at the ban it establishes as a norm will therefore be an extremely important task in itself over the coming years.
Of equal importance, however, will be the effectiveness of programmes set in place to clear the millions of mines already laid, to protect civilian populations from existing mines and to deal with the needs of individuals and regions affected by the use of mines in war. The Ottawa Convention is perhaps unique in the holistic and explicit way in which it takes into account the importance of such action linked to an arms ban itself. To use the short-hand terminology of the International Campaign to Ban Landmines, the Convention rests on three equally important "pillars" of de-mining, victim assistance, and a total ban on the use of APMs.
It is impossible to do justice here to the complex of issues, approaches, and actors of relevance to the "de-mining" and "victim assistance" pillars which will be key to the actual implementation of the full intentions of the Ottawa Convention, but several elements must be mentioned.
It is increasingly being understood that dealing with the legacy of landmines proliferation is not just a technical or technological problem. New de-mining methodologies will of course be necessary and useful to mine removal as will new medical technologies for helping mine victims. But these need to be fitted appropriately into broader understandings of mine action based on humanitarian and developmental principles. This evolving understanding can been seen in recent reflections from two sets of actors central to the future of mine action efforts, non-governmental organisations and United Nations agencies. As part of what have become known as the Bad Honnef Guidelines, a wide range of non-governmental organisations (but including also UNICEF) engaged in working in mine affected regions made the following statement in June 1997: "[T]he continuing threat posed by millions of mines well after officially announced cease-fires metaphorically captures the overall societal destruction wrought by war. Attempts at rehabilitation therefore require a comprehensive concept of reconstruction and development. Pragmatically providing some technical `input', like clearing a mine or fitting a prosthesis, is not enough. Reconstruction and development must instead be achieved socially, in a sustained struggle for that which the catastrophic reality of war destroyed, i.e. the social fabric, traditional social agreements, the specific communication between human beings and their social environment, which is to say, their regionally unique culture."10
Similarly, in the "Guiding Principles" section of a recent discussion document produced by the UN Mine Action Service, the UN body now designated as responsible for co-ordinating all UN agency activity having to do with mine action, the following intention has been stated: "The nature and scope of the landmine problem must be defined in terms of its humanitarian, public health and socio-economic implications, including in particular, its impact on lives, livelihoods, the provision of humanitarian assistance, and, more generally, an environment which should be safe and conducive to peace-building, reconstruction and development."11
It is early days yet. With the exception of the ICRC and some experienced non-governmental organisations which have been dealing these issues for years and whose energies prompted the ban movement in the first place-and to some extent even for them-most actors, "official" and "unofficial," are still asking the questions "what is to be done?" and "how should it be done?" For example, it is now clear that one of the first tasks will be to gather far better data than is presently available on exactly what is the nature and scope of the landmine clearance need.
There is much opportunity as well as some danger in the present moment. At the Ottawa Conference in December 1998 some $500 million was pledged by governments for mine-related work. There are many new programmes underway or in development, such as the Geneva International Centre for Humanitarian Demining", which will offer a broad range of services relevant to the mine clearance challenges ahead. Conferences and meetings on different dimensions and challenges of this work are taking place around the globe.12 Key to success in the efforts to eliminate landmines and their effects will be such things as:
An important issue at the present moment, requiring extreme watchfulness, is the extent to which the nature of available resources and the competition for those resources, in a policy area which has currently a certain fashionable nature, may distort the nature of the work undertaken and in effect ignore or undermine the evolution and application of the broader principled objectives and approaches for mine action which are still in their infancy.
The historic process of how the international community has had its conscience pricked and has moved with speed and comprehensiveness to act has only been able to be briefly sketched here. It is an evolving story, some of the directions of which have been but briefly highlighted. By way of conclusion this analysis, several more general thoughts seem appropriate:
DCA
10 June 1998
1 "Banning Anti-personnel Mines: The Ottawa Treaty Explained." International Committee of the Red Cross, 1997, 4.
2 UN Document CCW/CONF.I/SR.14, 3 May 1996, 6 - 7.
3 For a fuller analysis of factors in the success of the Ottawa Process, based on responses to survey instruments with government, international organisation and non-governmental organisations at the time of the Ottawa Mine Action Forum in December 1997, see "Lessons Learned from the Ottawa Process," DFAIT/IDA, Ottawa, 1998.
4 Final Declaration: Brussels Conference on Anti-Personnel Landmines, June 24 - 27, 1997.
5 See, for example, the findings reported in Anti-Personnel Landmines: Friend or Foe?, ICRC, 1996.
6 For a fairly detailed explanation, see "Banning Anti-Personnel Mines: The Ottawa Treaty Explained," ICRC, 1997.
8 For a particularly strong expression of concern about these issues of definition, see the Discussion Paper "Definitions and Anti-Handling Devices" prepared by one of the world's leading de-mining organisations, the Mines Advisory Group, 31 August 1997. See also, Nicola Short, "A New Model for Arms Control? The Strengths and Weaknesses of the Ottawa Process and Convention," Disarmament Diplomacy 24 (March 1998), 7 - 11.
9 ICRC Overview 1998 "Landmines Must be Stopped", International Committee of the Red Cross, May 1998.
10 "Guidelines for Mine Action Programmes from a Development-oriented Point of View," revised version of integrating proposals made at the International NGO Symposium, Bad Honnef, Germany, 23-24 June 1997. Available from medico-international@t-online.de.
11 "Mine Action and Effective Coordination: The United Nations Policy," United Nations Mine Action Service, New York, 1998.
12 See, for example, the issues, programmes, and events outlined in "An Agenda for Mine Action", summary report of the Mine Action Forum, December 2 - 4, 1997, Ottawa, and "Years, not Decades: Agenda for Mine Action II", summary report of the follow-up Mine Action Coordination Workshop", March 23 - 24, 1998. DFAIT/IDA, Ottawa.
13 As quoted by Solomon M. Santos, Jr., of the Philippine Campaing to Ban Landmines, in his paper "Mine Action, Peace-building and Conflict Resolution," a discussion paper prepared for the February 1998 meeting of the International Campaign to Ban Landmines in Frankfurt, Germany. See also, Alejandro Bendaña, "Politics or Paternalism? The Need for a Social Transformation Framework inGlobal Campaigns: A View from the South", unpublished paper, Center for International Studies, Managua, Nicaragua, 1997.
14 See Robin M. Coupland, ed., "The SIrUS Project: Towards a determination of which weapons cause `superfluous injury or unnecessary suffering," ICRC, Geneva, 1997.
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