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.
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?