Antipersonnel Landmines and the Conference on Disarmament

It is expected that in 1999 some members of the Conference on Disarmament (CD) will propose an effort to negotiate a ban on the transfer of antipersonnel (AP) landmines. While appreciating the good intentions that some CD members have in making such a proposal, the International Campaign to Ban Landmines (ICBL) believes that the potential negative impact of this initiative far outweighs the potential benefits. Thus, the ICBL strongly opposes any effort to negotiate a transfer ban, or any other antipersonnel mine-related measure, in the Conference on Disarmament.

Background

The Conference on Disarmament is a forum for arms control and disarmament negotiations located in Geneva, Switzerland. It has 61 member states. In the past it has focused on weapons of mass destruction. The Comprehensive Test Ban Treaty and the Chemical Weapons Convention were negotiated in the CD. Each annual session is broken into three parts, with the first part in 1999 beginning on January 19. In 1997 the United States and other nations tried for the first time to put landmines on the CD agenda, and in 1998 there was a more focused effort to put an antipersonnel mine transfer ban on the agenda. These efforts failed despite the appointment of a special coordinator (Australian Ambassador John Campbell) to examine the possibility of CD action on mines.

Member States of the CD include: Algeria, Argentina, Australia, Austria, Bangladesh, Belarus, Belgium, Brazil, Bulgaria, Cameroon, Canada, Chile, China, Colombia, Cuba, DR Congo, Egypt, Ethiopia, Finland, France, Germany, Hungary, India, Indonesia, Iran, Iraq, Israel, Italy, Japan, Kenya, North Korea, South Korea, Mexico, Mongolia, Morocco, Myanmar, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Peru, Poland, Romania, Russia, Senegal, Slovakia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Syrian Arab Republic, Turkey, Ukraine, United Kingdom, United States, Venezuela, Vietnam, FR Yugoslavia, and Zimbabwe.

Supporters of a CD transfer ban have included the United States, Australia, Finland, France, Germany, Japan, and Poland. Those opposed have included some strong supporters of the 1997 Mine Ban Treaty, members of the Non-Aligned Movement who see this as an attempt to avoid discussions on nuclear disarmament, and states objecting to new controls on mines.

Arguments for a CD Transfer Ban

At first glance, the notion of a transfer ban in the CD is appealing. Proponents ask why anyone would object to the possibility of having major nations such as the U.S., Russia, China and India agree to a legally binding international instrument prohibiting the export of antipersonnel mines. It is widely agreed that in the past, AP mine exports have been a major contributor to the landmine crisis. Indeed, with very few exceptions (notably the former Yugoslavia), nearly all of the nations that are greatly affected by mines have not been producers. That is, virtually all of the mines in places like Angola, Cambodia, Afghanistan, and Mozambique have been supplied by foreign sources. Stopping export is clearly a key part of the solution to the global mine problem. Establishing an internationally-recognized legal commitment on the part of governments is the best way to ensure that exports are halted forever, and not just as long as governments find it convenient.

Proponents argue that the reality is that some nations are simply not yet ready to comprehensively ban antipersonnel mines; thus it is wise to pursue measures that would bind those states to take actions that will benefit civilian populations affected by mines and help alleviate the mine crisis -- actions such as a global transfer ban. Proponents maintain that, with those nations who still claim that AP mines are essential for national defense, this Astep-by-step@ approach will produce tangible results in the shortest amount of time.

Lastly, proponents point to the perceived advantages of the CD itself. It is often stated that the CD is an Ainclusive@ forum, and that its members comprise the largest current producers and past exporters of mines. The CD is also praised in some quarters as the long-standing, traditional arms control forum that has produced great results such as the Comprehensive Test Ban Treaty and the Chemical Weapons Convention, and as such is the most appropriate venue for serious negotiations on landmine control and other multilateral disarmament issues.

Arguments Against a CD Transfer Ban

The most powerful means of ridding the world of antipersonnel mines is the establishment of a well-respected international norm against the weapon. The global ban movement, the Ottawa Process and the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and On Their Destruction (1997 Mine Ban Treaty) are creating that international norm -- that AP mines are an unacceptable tool of warfare, an illegal weapon, that any possession should be considered beyond the pale of civilized behavior. The negotiation of a transfer ban on AP mines could undermine the establishment of that norm.

How could this be so? First, a proliferation of international legal instruments on AP mines -- the original 1980 Landmine Protocol of the Convention on Conventional Weapons (CCW), the revised 1996 CCW Landmine Protocol, the 1997 Mine Ban Treaty, and now the proposed CD transfer prohibition -- is counterproductive to the complete elimination of the weapon. And complete elimination has been the explicit objective of the international community, as stated in U.N. General Assembly resolutions, since 1994. There is absolutely no need for another, new international instrument dealing with AP mines.

Governments, or non-state actors, cannot be expected to adopt the mind set that AP mines are unacceptable if there is a menu of options to choose from: one convention that completely bans the weapon; another convention that bans export, but permits production, stockpiling and use; and another convention that permits production, stockpiling, trade and use of certain mines under certain conditions.

The establishment of the norm is perhaps even more important when it comes to efforts to halt use by non-state actors, since they cannot sign these international instruments. The incorporation of this norm into customary international humanitarian law is the avenue to legally bind non-state actors. But how can effective pressure be brought to bear on non-state actors if even pro-ban governments are content to permit those governments who insist on the need for AP mines to cease export only?

The inescapable fact is that acceptance of a ban on transfers of antipersonnel mines also implies acceptance of continued use, production and stockpiling. Governments (even those who have already banned the weapon themselves) who sign a convention prohibiting only transfer are in a very real sense consenting to, perhaps even endorsing, continued use by other governments.

The ICBL is not aware of any precedent in international law where a more comprehensive legal instrument has subsequently been Arenegotiated@ to a lower standard, or where a portion of a comprehensive treaty has subsequently been the subject of new negotiations in a different forum.. This would be a very dangerous precedent to set, and could be used by some to call into question the validity of the process leading to the signing of the Mine Ban Treaty.

It could also well be that many of the governments that have already signed and ratified the Mine Ban Treaty would not sign and ratify a CD transfer ban agreement. Parliaments of Mine Ban Treaty State Parties could justifiably question the necessity or wisdom of repeating a legal obligation already entered into through a different convention. This could severely limit the number of state parties to a CD agreement, again undercutting what should be a universal norm.

There is also a danger that some governments might use the CD negotiations as an alternative to moving toward signing the comprehensive Mine Ban Treaty, or more bluntly, as an excuse not to sign. Some governments -- perhaps not the most staunch defenders of AP mines, but rather those who at least pay lip service to a ban and who want to be perceived as being on the right side of this issue -- will maintain that they ARE in fact taking significant and meaningful steps to deal with the mines crisis, through the CD. These governments, in the absence of a CD option, might move much more quickly toward signing the ban convention.

Indeed, some governments might be drawn to the CD option because it is the Ago slow@ approach. While some praise the CD for its noteworthy successes, there are many others who detail the serious faults of the CD as a forum, such as its slow pace, consensus rules, and exclusivity. The CD is a forum that is often criticized for its inability to move quickly, as is required for a humanitarian crisis. The failure of the CD to make any progress toward meaningful action on antipersonnel mines during the past two years, despite extensive efforts on the part of the U.S., France, Australia and others, is a clear example of the slow pace characteristic of the CD. This is directly at odds with the urgent nature of the landmine crisis.

In 1999, it appears that--even more than before--other issues such as the Fissile Material Cut-off Treaty will be the focus of the CD, making it unlikely that significant or rapid progress, if any at all, will be made on antipersonnel mines. The possibility of negotiating a transfer ban in the CD in a relatively short period of time seems quite remote.

Indeed, the likelihood of failure again this year is another reason not to waste the time, effort, and money. It makes little sense to tax diplomatic capacity with an effort to achieve an AP transfer ban in the CD, when it is unlikely to succeed, when other instruments already exist, and when the CD has other important business to conduct. The CD operates on consensus, where any one state can block progress, and there are many governments that have made it clear they are against dealing with mines in the CD. Some oppose it because they believe that the Mine Ban Treaty is the best means of addressing the mines crisis, and the CD effort is counter to that; some oppose it because they believe certain governments are trying to use the mine issue to avoid discussions on nuclear disarmament; some oppose it because they do not want any controls on antipersonnel mines. It is possible, however, that states in opposition may not be prepared to go so far as to block consensus.

The CD effort would not be a good use of already scarce resources available for coping with the landmine crisis. Governments must already fund participation in annual meetings required by the CCW and Mine Ban Treaty. Instead of a new CD effort, money would be better spent on mine clearance and victim assistance.

One can also object to the CD effort because the forum is, in fact, not very inclusive. Some would argue that it is extraordinarily exclusive, rarely accepting new members. There are 61 members of the CD, compared to (as of this writing) 133 signatories and 59 ratifiers of the Mine Ban Treaty. Thirty-six CD members have signed the Mine Ban Treaty and 18 have ratified it to date. Very importantly, the CD contains almost none of the states most affected by landmines. Thus, many key states -- those that have imported the most mines and used them extensively in the past -- will not be part of the negotiations. It is often said that the CD would capture the major producers and exporters of mines, but that takes on little meaning when one recognizes that (1) the CD ban won=t address production, and (2) there are no major exporters today -- mine trade has been little more than a trickle for several years.

Moreover, the CD tends to operate behind closed doors, with no formal involvement of non-governmental organizations, and very little opportunity for input from NGOs. This is in stark contrast to the Ottawa Process, where NGO experience and expertise on the landmine issue have played a major role, working in cooperation with leading pro-ban governments.

The ICBL has been acknowledged by friend and foe as the engine driving the global ban movement, and has been praised in many quarters for pioneering a new form of diplomacy, with extensive involvement from civil society. The ICBL was awarded the 1997 Nobel Peace Prize in part for establishing this a potential new model. Putting the mine issue into the CD would in many ways be a rejection of this, and a return to the old way of doing business.

There are also some practical issues of concern -- that the language adopted in the CD could be inconsistent with or somehow undermine the terms and conditions of the Mine Ban Treaty. For example, what definitions would be used -- those from the Mine Ban Treaty, or those from the CCW Landmines Protocol? The ICBL and the ICRC both expressed grave concern about the new definition of AP mine adopted in the revised Landmines Protocol, perceiving the phrase Aprimarily designed@ to be a major loophole. Use of this CCW definition would be a big step backward for the ban movement. Even though Australian Ambassador John Campbell, the CD=s Special Coordinator on landmines last year, stated that successful negotiations would require that the CD take the Mine Ban Treaty as the standard for issues such as definitions and verification, concerns remain about what might actually emerge from prolonged, consensus-based negotiations.

The Convention on Conventional Weapons and a Transfer Ban

The 1980 Convention on Conventional Weapons (CCW) attempts to regulate antipersonnel landmine use through its Landmines Protocol (Protocol II). A two-and-a-half-year review of the CCW at United Nations meetings in Geneva and Vienna ended on 3 May 1996 having failed to adequately address the humanitarian crisis caused by landmines through a number of amendments to Protocol II. To date, over 70 countries have ratified or acceded to the original 1980 CCW, and 27 countries have ratified the amended Landmines Protocol (Argentina, Australia, Austria, Cambodia, Canada, Cape Verde, China, Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Japan, Liechtenstein, Lithuania, Monaco, New Zealand, Norway, Peru, Philippines, South Africa, Spain, Sweden, Switzerland and Uruguay). The Protocol entered into force on 3 December 1998.

The revised Landmines Protocol requires an annual conference of State Parties after entry into force to consider the operation and status of the protocol. This conference is expected to occur in late 1999, with a preparatory meeting beforehand. In addition, in 2001 there will be a formal diplomatic conference to review and amend the entire CCW, with preparatory meetings expected to begin in 2000. These meetings and the 2001 review conference provide the opportunity to strengthen the existing convention and its protocols, including those on landmines and blinding lasers. It will also be possible to consider new protocols on other conventional weapons of humanitarian concern. The CCW is the best, indeed the only, existing international treaty that can address new conventional weapons of concern, and therefore it is important that it remain a viable instrument.

While the ICBL opposes the negotiation of a transfer ban outside of the Mine Ban Treaty, if states feel absolutely compelled to do so, the ICBL believes that they should pursue it through the CCW, not the CD. States parties could turn the CCW ban on trade in non-detectable mines into a comprehensive transfer ban. An effort should be made to align CCW language with that contained in the Mine Ban Treaty, and revisions to the Landmine Protocol should be made in the context of transition toward the full prohibition on AP mines in the Mine Ban Treaty.

Conclusion

In the final analysis, there is the question of what is truly to be gained by a transfer ban. Given the risks and negative implications detailed above, what clear and compelling benefit would accrue? The answer is, very little, if anything at all. The fact is that there is already a de facto global ban on transfers of antipersonnel mines in existence. According to the U.S. government, there have not been any significant transfers of AP mines in about four years. This Auncodified norm@ has apparently already taken root. Certainly, some shipments of mines are still taking place, and will in the future, but that is likely true with or without a new transfer ban. Potential exporters are already constrained by global opinion and their public policies; nearly all known past exporters of AP mines have in place unilateral moratoria or bans on export. An international agreement could add weight to the Ano trade@ commitment already made by these states, but that potential additional benefit is far outweighed by the potential negative effects.

For these many reasons, the ICBL strongly opposes the creation of an Ad Hoc Committee to negotiate a mine transfer ban, or any other antipersonnel landmine-related measure, in the Conference on Disarmament. The Mine Ban Treaty provides the best framework for reaching a mine-free world, and no steps should be taken that might undercut that convention or the new international norm that it represents. The ICBL will continue to focus on the universalization and ratification of the Mine Ban Treaty by all nations.

[This paper was written by Stephen Goose, program director of the Arms Division of Human Rights Watch, and chair of the ICBL Treaty Working Group. February 1999. ]

E-mail: icbl@icbl.org