“The Convention on Cluster Munitions sets a gold standard for international weapons treaties”240. After years of stagnation and delay, after rounds of negotiation and intense lobbying, and decades of development setbacks from unexploded ordnance, the final text of the Convention rises above the fractured history of cluster munitions to provide an example of a strong and humanitarian international instrument. As expressed by Steve Goose, co-chairman of the Cluster Munition Coalition, “[t]his can only be characterized as an extraordinary convention, one that is certain to save thousands and thousands of civilian lives for decades to come, and to provide both immediate and long-term relief and assistance to those already affected by the weapon.”241
The final text of the Convention on Cluster Munitions (hereinafter simply ‘the Convention’) largely survived attempts to water down its language during the intense negotiations242, creating a strong treaty that bans all types of cluster munitions without providing exceptions for individual states and particular technology. There are no exceptions for any specific states’ own particular types of munitions, or munitions that might create less damage, or have a different sort of technology. As Goose also stated, “In the Mine Ban Treaty, which is hailed for its comprehensive prohibition on antipersonnel mines, the mantra has been, ‘If it functions like an antipersonnel mine, it is an antipersonnel mine, and is banned.’ The same is true of the Cluster Munition Convention. If it functions like a cluster munition, it is a cluster munition, and is therefore banned. If it has indiscriminate, wide-area effect and leaves behind large amounts of unexploded ordnance, it is banned.”243
The Convention not only prevents future use of the banned weapon, it also addresses the consequences of its past uses. Several articles of the treaty focus on post-conflict measures to reduce the aftereffects of use of the weapon. The text provides for clearance of cluster munition remnants within ten years of the treaty coming into force244. Article 4(2) requires State Parties to assess the damage caused by cluster munitions within their jurisdictions and take steps to clear the areas. Article 4(4) explicitly encourages user states to provide assistance to other State Parties in whose jurisdiction remnants are still present. The Convention explicitly applies to cluster munition use before the entry into force of the Convention, and the text overall is designed to minimize the impact of the use of these weapons on civilians.
The preamble to the Convention sets out the determination of the States Parties “to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned”245. The Convention’s twenty-three articles can be differentiated as containing negative obligations, which prohibit certain types of conduct, and positive obligations, which require a State Party to perform certain actions246. This chapter provides an overview to the substantive articles of the Convention, as well as its primary achievements and criticisms.
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