Wellington, New Zealand
February 20, 2008
Thank you, Mr. Chairman.
In order to address the humanitarian concerns that underlie this treaty, states must not only prohibit future cluster munition attacks but also prevent additional civilian casualties from those that have already occurred. Conflicts that pre-date the Oslo Process have left behind duds that continue to kill and maim civilians every year. Article 4(4) is a crucial provision for minimizing this ongoing harm to lives and livelihoods. The Cluster Munition Coalition (CMC) urges states to preserve it in the final treaty text.
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The principle of holding user states responsible for existing duds is a logical extension of CCW Protocol V on Explosive Remnants of War. Protocol V includes one article requiring user states to assist with clearance of new ERW and another requiring all states parties, in a position to do so, to assist with clearance of existing ERW. The Wellington treaty text goes a step further, explicitly combining these two obligations—special responsibility for user states and clearance of ERW that pre-dates the treaty.
In contrast to the claims of some states, there is ample precedent for such a provision in international law. States parties can be and have been assigned responsibility for actions initiated before a law takes effect. First, several international and regional legal bodies, including the UN Human Rights Committee, European Court of Justice, and European Court of Human Rights, have held states responsible for harm initiated by them before a treaty entered into force if the harm continues in the present. Unexploded submunitions launched in the past pose present harm, killing and injuring scores of civilians each year. Second, under a legal principle, notably applied in environmental cases, parties have a duty to clear harmful materials they left behind, even before there was a codified legal obligation, if the harm was foreseeable. States have been able to foresee the humanitarian dangers of cluster munitions since their earliest use. Third, under international law, states can choose to bind themselves to take responsibility for actions that occurred before a treaty enters into force. The International Law Commission, for example, clearly states this principle in its Draft Articles on State Responsibility.
Finally, the principle requiring user states to assist with clearance of existing submunitions is a critical element of any treaty banning cluster munitions because it contributes to efficient and effective clearance. Only such clearance can prevent unnecessary casualties and socioeconomic impact from past cluster munition use. Article 4(4) of the Wellington text adds specific and important language requiring sharing of the kind of information that facilitates clearance, including the types, quantities, and precise locations of cluster munitions used.
In addition to calling for support for Article 4(4), the Cluster Munition Coalition urges states, in an similar vein, to add the phrase “and particularly user states” after “each State Party” in Article 6(2). Its addition will help ensure provision of user states’ support for risk education and victim assistance.
In conclusion, both legal precedent and moral duty call for the inclusion of an article on a user state’s responsibility for clearance of its submunitions, regardless of when they were delivered. States should keep a version of Article 4(4) in the final treaty text. The law allows it, and morality demands it.
Thank you.
