Another Victory for NGOs in the International Legal System: The Cluster Bomb Ban

Good news this weekend: the Convention on Cluster Munitions, signed by 107 States and ratified by 38 as of today, has entered into force today. It is now binding international law. But it is also a great victory for non-governmental organizations (NGOs), and the confirmation of a recent trend: the influential role civil society is starting to play in the elaboration of international law.

First of all, a few words on the Convention on Cluster Munitions. It was negotiated in Dublin in May 2008 following a diplomatic conference on Cluster Munitions, attended then by 127 States, and signed in December of the same year in Oslo. The purpose of the Convention is to ban the use of cluster bombs, a specific type of anti-personnel weapon that disperse large numbers of either explosive submunitions or bomblets over an entire area (see the ICRC Cluster Munition FAQ or the New York Times Cluster Munition Page for more information on cluster bombs), the military purpose being to “contaminate” the area and make it unusable by the enemy forces.

As you probably can imagine, it can raise depending on its use some major issues with regard to international humanitarian law, as it seems almost fundamentally incompatible with the principle of distinction between combatant (essentially military) and non-combatant  (civilian) targets. It is hard to imagine it being used in an exclusively military zone that will never be used again by civilians, especially considering that these cluster bombs can still go off 30-40 years after being dropped, killing or mutilating civilians by accident. According to the Cluster Munition Coalition, one third of all recorded cluster munitions casualties are children, and 60% of the casualties are injured while undertaking their normal activities. These bombs are still in use by a certain number of conflicts in the world today, including the United States in Iraq in 2003, Israel in Lebanon in 2006, as well as by both sides in the Russian-Georgian conflict of 2008.

Cluster Bombs in Georgia - Watch Out for These Killers - Photo by John Rodsted, for the Cluster Munitions Coalition

Even though 38 States have ratified the treaty – including interestingly enough Afghanistan – some major powers have still failed to do so, including the United States,  Israel,  India, Pakistan, Russia, and China. However, NGO representatives have mentioned that they hope that the entry into force of the treaty will create a sufficient stigma on the use of cluster bombs to force these States to abandon the use of such weapons and eventually sign and ratify the treaty themselves. For Steve Goose, Arms Division director at Human Rights Watch,

“August 1 is the start of the formal life of the treaty and the end of the legitimacy of this indiscriminate weapon that has caused so much civilian suffering. The stigma against cluster munitions is now so strong that no nation should ever use them again.”

In any case, this is still an important moment for the fight against the use of cluster bomb munitions, and a symbolic victory for its victims.

But it is – I dare not say “more importantly,” but perhaps more interestingly in the big picture of the international legal system – a major victory for civil society, represented by NGOs, and confirms the strengthening  of their role, legitimacy and influence in orientating international law, a trend that has emerged in the 1990s. Before this trend, the only international NGO that had some degree of legitimacy and influence over states was the International Committee for the Red Cross. But after the 1990s, things changed. We had the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (informally called the Mine Ban Treaty) in 1997, the fruit of hard work by a coalition of NGOs part of the “International Campaign to Ban Landmines” who managed to convince and obtain the support of a growing number of States in negotiating, signing and ratifying the Treaty. There was also the fight to establish a permanent international criminal court, led by a coalition of NGOs under the Coalition for the International Criminal Court, which led to an alliance with a group of friendly States aptly named the “Like-Minded Group” to the signing of the Rome Statute in 1998 which in turn led to the creation of the International Criminal Court, now in The Hague.

Today, we have the entry into force of the Oslo Convention on Cluster Munitions following nearly 10 years of lobbying by NGOs, federated under the Cluster Munition Coalition. In many ways, it is only the continuance of the efforts put into the Ottawa Convention, as the same groups and same states are behind it (Norway, Canada, etc.), but it still confirms the fundamental role NGOs plays today in the elaboration of new international law. NGOs are also today playing a fundamental role in the climate change negotiations, both on a domestic and international scale.

Traditionally, international law only recognized States as its subjects, and later on international organizations – but those are considered emanations of States and of their power. Individuals, multinational corporations, NGOs are not considered subject of international law. But each of these, in the era of globalization, plays a fundamental role in the international system, and civil society in particular has proven this weekend once more that its influence is a force to reckon with. NGOs, with their expertise, their input, and their political influence, have truly become essential actors of international law, whether they are considered subjects or not.

I do not believe they will be recognized as subjects of international law any time soon: it is a bit too difficult, especially with regards to the notion of sovereignty, which States tend to be very protective of, but it will happen someday, I have no doubt about it.

Here is the CMC’s YouTube video on the Signing Conference in Oslo:

Honestly, who could have imagined NGOs doing such a thing 20 years ago?

UPDATE: I came across an interesting post/article (in PDF format) on Middle Power – NGOs Coalitions within international law at the blog Political Minefields.

Advertisements

, , , ,

  1. #1 by Dov Jacobs on 2 August 2010 - 09:09

    I agree that NGOs are increasingly active in the field of international lawmaking. And there is probably some benefits in having some public debate about issues previously kept within diplomatic circles and putting pressure on States to respect their human rights obligations.

    But this new power is today unchecked by any accountability mechanisms (political or legal). The world of NGOs is a diverse one, and I’m a bit weary of how they get an automatic stamp of approval.
    1) They are self-appointed representatives of the civil society. Their representativity can be challenged.
    2) There is not always transparency about the backing and financing of the NGOs (see the phenomena of GONGOs).
    3) Even among the respectable NGOs, one must not forget that there are humanitarian “markets”, as shown by sociologists and critical theorists (see the dark side of virtue, D. Kennedy) where HRW and AI, for example, compete for media attention and chose their issues (child soldiers, blood diamonds…) depending on a PR assessment.
    4) NGOs don’t always get it right. They are activists by nature and can’t necessarily be trusted on everything (see the debate around ENOUGH, on the issue of genocide in Darfur or conflict minerals).
    5) linked to the previous point, in the specific field of international law (which is after all the topic of your blog!), I’m weary at the influence they have in the lawmaking process through the organic conflation whereby activists are also academics and practitioners.

    As usual in this kind of situation, the pendulum always swings too wide, and the lack of civil society involvement in international lawmaking is sometimes now replaced by an over-involvement of NGOs. They are there to balance the exercise of legislative power, not take control of it.

    • #2 by Mark Kersten on 16 August 2010 - 11:23

      Very interesting thoughts.

      Essentially all of Dov’s points are important when assessing the role of NGOs in intervention – military, legal, humanitarian etc. But why did we see such an explosion of NGO intervention and activity post-Cold War? There are a lot of reasons given, but one I believe should be more deeply explored is that without the Cold War-driven “hard power” interests in the developing world, Western states have turned to funding NGOs to show that they are “doing something”. The result is that many NGOs seek continued government support by attempting to put pressure on governments through media and the creation of what Dov calls humanitarian ‘markets’. Indeed, an interesting and perhaps disturbing reality is that often, when a conflict’s nature suggests that humanitarian NGOs should pull out, they choose not to, not because they believe they should remain, but because they are wary of another NGO filling in their share of the humanitarian ‘market’.

      These are just some thoughts. They are meant to suggest that any analysis of the role of NGOs in the world and improving their transparency, performance, etc. cannot be myopically focused on the NGOs alone. It is vital to consider the wider context in which NGOs function, to whom they are accountable, their relationships to states, where they seek influence and funding, and the division of responsibility in humanitarian affairs.

  2. #3 by Xavier Rauscher on 2 August 2010 - 09:33

    Dov, you’re absolutely right.

    My purpose with this post was to show that today, international lawmaking is no longer the exclusive sphere of States, and that the input and influence of NGOs is a recent phenomena that the Westphalian system is going to have to learn to live with.

    That being said, as you point out in your comment, that phenomena is not above criticism. I did not cover these criticism – and with hindsight I probably should have – but I agree and that is why I deliberately avoided the term “democratization” of international law so commonly used when discussing NGOs’ role. As you point out, NGOs are essentially interest groups with their own agenda, and do not represent an entire society nor general interest. They are an emanation of civil society, but they cannot pretend to incarnate on their own civil society. I should have made that clearer when I wrote my post.

    The question of financing is I think essential, and work on the transparency of NGO financing needs a lot more work, both on an international and domestic plane.

    I’ve written about ENOUGH! previously on this blog, but I guess I’ve missed the debate around their trustworthiness. I’ll look around, but if you have a specific link in line, do not hesitate to post!

    And as always, thanks for your input!

  3. #4 by Mark Kersten on 16 August 2010 - 11:26

    Xavier,

    Now that you are working at the CICC, you should check out, if you haven’t already, Marlies Glasius – The International Criminal Court – A Global Civil Society Achievement. It explores the role, successes (independent prosecutor above all), failures (particularly the lack of universal jurisdiction) of the NGO community in shaping and creating the ICC.

    Cheers,

    Mark

  4. #5 by Xavier Rauscher on 16 August 2010 - 19:00

    I will definitely look into it, but perhaps in September. I’m so very late on my work on my summer dissertation, I’m starting to wonder whether I’ll make the deadline. And second of all, at the moment, the Peace Palace Library only lends books overnight, which is a major inconvenience.

    On NGOs, the points you raise are very interesting, and again, NGOs should not be above criticism. That being said, I think it’s not necessarily productive to be excessively harsh on NGOs either. In my opinion, there is no doubt that they do more good than harm.

    Speaking of my current employer, the Coalition for the ICC, I’m really surprised – in a very good way – at the things it does. It offers information to the public, other NGOs and academics, it monitors the Court’s activities, and offers expertise and constructive criticisms. The Court would not be what it is today without the support and feedback of NGOs. The Court is currently preparing its budget for 2011, and the feedback/criticism and support they get from the NGOs such as the CICC on it is, from what I have seen and read this past week, invaluable.

    And what I really like about the CICC is that my colleagues are dedicated but not politicized: the CICC is careful not to become too partisan, if only because it is itself a Coalition of different NGOs who might have different points of views. That’s very important for me because, as someone who is boringly moderate and pragmatic at heart (although I do stand on principle from time to time), I wouldn’t feel comfortable in an organization that is more “militant” (in a bad and/or political way) in its approach, no matter whether the cause is just or not.

    After 8 days of working for the CICC, I’m a very happy NGO-employed legal intern.

  5. #6 by Mark Kersten on 16 August 2010 - 20:30

    “there is no doubt that they do more good than harm.” – I couldn’t agree more. I should have noted that the points above were more focused towards humanitarian aid organizations.

    One of the fascinating aspects about Glasius’ work is her exploration of the stunning diversity of NGOs that were involved in shaping and creating the ICC, essentially the same group which now forms the CICC.

    I was very impressed by the intellect, balance and demeanor of people at the CICC (plus the homeliness of the office as well!).

  6. #7 by dov jacobs on 16 August 2010 - 21:58

    Mark,
    The question of financing is indeed a crucial one. Friends of mine working in this field have identified a web of institutional donors which you find everywhere (like the Soros foundation) and which certainly have specific political agendas (and I don’t use “political” in a bad sense, as some like to do), even if the NGOs they support undoubtedly have “good intentions”.

    Xavier,
    I have to agree with you on the CICC. From what I gathered from conversations with some of their members some years back, they have no choice but to be neutral given the variety of opinions of the NGOs of the coalition.
    Not necessarily a blog conversation, but what are you doing there? As we’re both in The Hague, we could meet up for a drink sometime.

    • #8 by Xavier Rauscher on 16 August 2010 - 22:06

      Well, I’m doing an internship at the Coalition for the ICC at their The Hague Secretariat. Right now, I’m working on small projects, but my main function will be to monitor the Lubanga Trial when that starts up again (hopefully September), and the Bemba Trial (when that starts, if it starts before January 2011).

      After finishing my LLM at Leicester, I wanted hands-on experience before considering doing a PhD, so I took a break from studying and am taking a year to do a few internships (likely to be 2).

      I’ll be delighted to go out for a drink sometime, but September would be better for me, right now I’m desperately late writing my LLM dissertation… I’ll send you an email then to meet up, if you’re still around!
      And not really a blog conversation either, but are you going to the ILA 2010 Conference by any chance?

  1. Tweets that mention Another Victory for NGOs in the International Legal System: The Cluster Bomb Ban « The International Jurist -- Topsy.com

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: