Convention on Certain Conventional Weapons (CCW) Meetings and

C O N F I D E N T I A L GENEVA 000981


DEPT FOR L, PM, AND ISN

E.O. 12958: DECL: 11/18/2018
TAGS: MCAP MOPS PARM PGOV PREL UN
SUBJECT: Convention on Certain Conventional Weapons (CCW) Meetings and
Cluster Munitions Negotiations, November 3-14, 2008

Ref. State 116478

CLASSIFIED BY: LEGAL AFFAIRS MKHANNA FOR REASONS 1.4 (B) AND (D)


1. (U) Summary. A U.S. delegation participated in the fifth round of
negotiations on the issue of cluster munitions within the framework of
the Convention on Certain Conventional Weapons ("CCW"),held November
3-7 in Geneva. The delegation also participated in the meetings of
States Parties to Amended Protocol II (November 12),Protocol V
(November 10-11),and the entire Convention (November 13-14). This
round of negotiations on the issue of cluster munitions was the final
round of negotiations provided for in the Group of Governmental Experts
("GGE")'s mandate. A number of countries that participated in the Oslo
Process blocked progress on the negotiations and succeeded in ensuring
that no Protocol will be completed this year. The U.S. delegation
expressed its disappointment at this result, particularly in light of
the fact that a number of major producers and users of cluster
munitions (such as China and Russia) may have been willing to accept a
Protocol text that would have had substantial humanitarian benefits.
It should be noted, however, that these major producers and users also
raised some issues with the text under discussion here.


2. (U) The negotiations began on the basis of a new ChairmanQs draft
put out at the end of the week before the negotiations by Danish
Ambassador Wigotski. This draft, in turn, was based on P-5 and P-3
negotiations in advance of the final round of negotiations. On the
critical issue of Article 4 which sets forth requirements for technical
improvements to cluster munitions, the P-5 had agreed in the September
round of negotiations on a common text. However, in consultations in
New York just before the November session, both the UK and France said
that there was strong opposition on the part of some Oslo Process
states to this text, and suggested additional changes. The U.S.
delegation prepared a new text to address these additional demands, and
met again informally in both P-5 and P-3 formats to discuss. The
result was a P-3 agreement in the days before the start of the
negotiations on a new text of the Protocol that could form the basis
for work during the negotiations. The UK, and to a lesser extent
France, made clear, however, that they still had some concerns about
this revised text.


3. (U) After a few plenary sessions in which little progress was made
and after a number of more productive small group and bilateral
meetings, the negotiations were in effect killed by a statement read by
Costa Rica on behalf of a group of 25 countries, including Austria,
Belgium, Bosnia and Herzegovina, Chile, Guatemala, the Holy See,
Honduras, Indonesia, Ireland, Mexico, New Zealand, Norway, Peru,
Venezuela, and South Africa that indicated that they found the
Chairman's draft text unacceptable since it did not go far enough
toward banning cluster munitions. Subsequent proposed amendments by
some of these countries highlighted that they were not constructively
engaging in the process but simply trying to derail the negotiations.
Unspoken publicly but admitted privately was the fact that some of
these countries would have been unwilling to accept any agreement on a
Protocol in the CCW at this time, given that the effect of an agreement
here would have been to diminish the December 3rd signing ceremony in
Oslo for the Convention on Cluster Munitions.


4. (U) The Meeting of High Contracting Parties adopted a mandate to
continue the negotiations next year and scheduled negotiations for
February 16-20 and April 14-17. It was decided that Mr. Gustavo
Ainchil of the Disarmament Directory of the Ministry of Foreign Affairs
from Argentina will be the Chairman of the negotiations next year. End
summary.

Technical Improvements
--------------


5. (U) Much of the focus of the cluster munitions negotiations was on
Article 4 in the ChairmanQs draft text, which addresses the issue of
technical improvements. After the July round of negotiations, it had
become clear that it was essential to make progress on this article in
order to resolve impasses in a number of other areas in the draft text.
In September, the P-5 agreed on a prohibition on the use, development,
production or acquisition of cluster munitions that do not meet one of
three sets of criteria. The first set of criteria required that each
submunition incorporate at least one of five listed safeguards to
effectively ensure that unexploded submunitions no longer function as
explosive submunitions. A second set of criteria required States to
ensure that, after dispersal, cluster munitions result in no more than
1% unexploded ordnance across the range of intended operational
environments. (This second set of criteria essentially duplicates the
DoD cluster munitions policy adopted in June.) Finally, a third
available option required cluster munitions to incorporate the various
characteristics contained in the Oslo Process convention text. The
draft also incorporated a provision providing for a transition period
during which States may defer compliance with the prohibition
provisions.


6. (U) During the P-5 and P-3 consultations in New York, a number of
changes were made to this draft in order to satisfy additional UK and
French concerns, presumably echoing concerns that they were hearing
from other Oslo states. Most significantly, the French indicated that
they would not be able to agree to a text that did not replicate the
exception in the Oslo Convention's definition of "cluster munition" for
certain technically advanced cluster munitions produced by the French
and the Germans. The U.S. delegation indicated that we could accept
moving this exception from the text of Article 4 to the definition of
"cluster munition" so long as the Protocol text was clear that the same
rules apply to both the cluster munitions permitted by Oslo, and to the
cluster munitions permitted by the new CCW Protocol. The French
delegation indicated that this might be difficult for them to accept,
but that they understood our perspective and accepted the language
required to accomplish this result in the draft provided to the
Chairman. Several other changes to Article 4 were also agreed,
including adding a prohibition on transfers within Article 4.


7. (U) During the course of the negotiations, two problems in
particular emerged with respect to Article 4. First, the French and UK
delegations began to oppose the idea that the cluster munitions
excepted from the Oslo Convention should be subject to the same rules
as the other categories of cluster munitions that would be permitted by
a new Protocol. They were joined in this by a number of other
delegations, most vocally Germany. At no time were they able to
articulate a credible substantive objection to a single one of the
obligations that this would impose (application of international
humanitarian law, victims assistance, transfer restrictions, etc.).
Instead, their goal appeared to be solely to maintain the special
status that their exempted cluster munitions have under the Oslo
Convention. The U.S. delegation madQclear that the United States would
not accept this approach. Second, the standard described in paragraph
4 above that requires one of four safeguards that "effectively ensure"
that unexploded submunitions will not function as explosive
submunitions also attracted considerable attention. A number of
delegations and NGOs objected to the phrase "effectively ensures" on
the grounds that it was too vague. On the other side, the Indian
delegation expressed serious reservations about the same phrase on the
grounds that it could be interpreted by some to require a 0% UXO rate.
A number of alternative formulations were discussed, but none attracted
consensus.


8. (U) Another problematic issue in Article 4 concerns the transition
period. Many states that intend to sign the Oslo Convention indicated
their opposition to transition periods, and urged as short a transition
period as possible if the text needs to include one at all. In
consultations with Israel, Korea, India, and others, the U.S.
delegation learned that a number of countries will require a total
transition period of 20 years (though this could be packaged as a
series of shorter transition periods if helpful). The U.S. delegation
informed these delegations that it would support them in seeking a
transition period this long, even though from a U.S. national
perspective, a ten year transition period would suffice.

Storage and destruction
--------------


9. (U) A second article that attracted considerable attention was
Article 5 on storage and destruction. The U.S. delegation had
indicated repeatedly that we could not agree to an obligation to
destroy cluster munitions by any particular date, because of the size
of our stockpiles and resource and capacity limitations. Other
delegations, in particular the French delegation, stated that they
believe that the concept of destruction has to be included in the
protocol in some manner, even if there is no deadline for destruction.
While no final agreement was reached on Article 5, it appeared that a
compromise approach would be possible that would add "destruction" into
the title of the article and identify destruction as an objective, but
place no time limits on its accomplishment. In addition, the Korean
delegation correctly pointed out that it should be clear that the
obligations in this article do not apply to prohibited cluster
munitions during the transition period that will be found in Article 4.
There did not appear to be opposition to incorporating this point.

Transfers
--------------


10. (U) During the September session, the British and French
delegations had argued that an immediate ban on transfers of all
cluster munitions that do not meet the requirements in Article 4 is
critical because of the potential problem of countries "dumping" their
old stocks of cluster munitions onto the world market before coming
into compliance with the Protocol. The U.S. delegation noted that it
has defense cooperation relationships with other countries that would
make it impossible for the United States to agree to a complete ban on
such transfers prior to the end of the transition period. As a way to
bridge this gap, the U.S. delegation prepared a revised proposal on
transfers for discussion by the P-5 group which included several
provisions intended to address the concern identified by the UK and
France. The U.S. revised text included the proposal Israel had
initially made to ban transfers to non-state actors, a prohibition on
transfers of cluster munitions that have been significantly degraded
from their original specifications, and a prohibition on transferring
cluster munitions manufactured before a certain date (with the date
left unspecified at that stage) except pursuant to existing patterns of
cooperation. The use of the term "existing patterns of cooperation" has
a precedent in the Strategic Arms Reduction (START) Treaty and would
refer to defense agreements as well as other security cooperation.


11. (U) During the informal consultations in New York, the U.S.
delegation was able to offer 1990 as the date prior to which cluster
munitions that do not meet the criteria in Article 4(2) would not be
permitted, absent an existing pattern of cooperation. Neither the P-5
nor the P-3 had extensive changes to the draft transfer provision
during these consultations. However, in discussions once the
negotiations started in Geneva, the UK delegation in particular focused
extensively on Article 6 on transfers. While they generally expressed a
view that its prohibitions should be more broadly defined, and argued
that the article should be much simpler, they did not articulate
clearly exactly what content they believed the article should have.

Victims' Assistance
--------------


12. (U) At the September round of negotiations, the Friend of the
Chair for victim's assistance convened several informal meetings and
made good progress on Article 10 during the course of the week. The
U.S. delegation sought and obtained a number of changes to the draft
text in order to clarify its meaning and make it more consistent with
the way that assistance is provided to victims in the U.S. system. The
remaining issue on Article 10 that was not resolved in September was
whether to include a reference to "in accordance with applicable
international humanitarian and human rights law." The U.S. delegation,
along with the Israeli delegation, opposed including this phrase on the
grounds that it is unnecessary, does not add any clarity to the
obligations in the article, and risks opening debate over the
applicability of human rights law during periods of armed conflict.
During the discussions on Article 10 in November, the U.S. delegation
proposed as a compromise that a more general reference to "applicable
international law" be used instead. While this initially appeared to
attract support, after it became clear that agreement would not be
reached on the core issues in the draft text, a number of delegations
began reopening issues that had been previously agreed and seeking to
reintroduce language that the U.S. delegation could not accept.
Therefore, there was no final resolution to the "applicable
international law" language.

Definitions
--------------


13. (U) The Friend of the Chair for Article 2 on definitions convened
an open-ended informal session on the issue of definitions. Most of
the discussion focused on the issue of the exclusion from the
definition of "cluster munitions" for the types of cluster munitions
excluded from the Oslo Convention. The Russian delegation in
particular voiced conceptual objections to this approach, noting that
these weapons are in fact cluster munitions. The U.S. delegation noted
that, while we agree that these are in fact cluster munitions, we could
reluctantly accept this approach, but only if all of the weapons
permitted by the new protocol are subject to the same substantive
obligations. After much discussion, both in the informal on
definitions and, more importantly, in small group meetings, it appears
that the best compromise on this issue is to include the exclusion for
these "Oslo cluster munitions" either in Article 1 on "scope" or in a
new article on "exclusions" that would follow article 2 on definitions.
The other main definition that was discussed was the definition of
"cluster munition victim." The U.S. delegation proposed compromise
language that would not include the vague and over-broad formulations
in the current draft. A number of countries supportive of the Oslo
Convention objected to this approach.

International Humanitarian Law
--------------


14. (U) The P-3 discussions in New York prior to the beginning of the
negotiations led to agreement to use a slightly modified version of a
draft prepared by the U.S. delegation as the basis for discussions in
Geneva. This draft shortened the version of Article 3 in the previous
Chairman's draft by eliminating the controversial elements in that text
and focusing only on the core principles of IHL particularly relevant
to the use of cluster munitions. This version was adopted by the
Chairman in the draft he circulated shortly before the start of the
negotiations. Article 3 was not discussed extensively during this
session of negotiations. The U.S. delegation reiterated our position
that an article on IHL would be useful. The French delegation stated
explicitly in informal consultations that they did not like Article 3,
but could live with it. The ICRC, however, made an intervention
opposing any substantive inclusion of IHL principles in the Protocol,
arguing that "selective inclusion" of IHL could undermine existing IHL
Q notwithstanding the clear savings clauses for all IHL obligations
that are part of the draft article. A number of delegations appear
willing simply to follow the ICRC on this issue.

Bilateral meetings
--------------


15. (U) The U.S delegation held bilateral meetings with France, the
UK, Canada, Australia, Russia, Japan, China, India, Pakistan, Korea,
and Israel. The U.S. delegation also hosted two informal meetings with
the P-5, India, Pakistan, Australia, Germany, Israel and Korea to try
to work out solutions to the key issues remaining in the Chairman's
text. The U.S. delegation also held bilateral meetings with the UK,
Germany, and Japan to discuss these countries' implementation of the
Oslo Convention, the potential impact on U.S. forces in their
countries, and joint operations.

Way forward
--------------


16. (U) After the group of 25 blocked further progress on the text,
the French delegation produced a new draft that they hoped might be
able to attract more support from countries intending to sign the Oslo
Convention. The U.S. delegation provided comments to the French on
several different versions of the text, as it would be a significant
step backwards from the Chairman's draft from a U.S. perspective. Most
fundamentally, the French approach would treat cluster munitions
excluded from Oslo very differently than the other permitted cluster
munitions under the protocol. The U.S. delegation, in the meantime,
prepared a new draft text as well as new drafts of several key articles
in an effort to bridge some of the remaining differences. However, the
delegation did not share these proposals widely as it was clear that a
number of countries were not willing to agree to anything during this
round of negotiations. Accordingly, it seemed better to hold on to
these ideas for a time when there might be more willingness to consider
compromise solutions.

Meeting of High Contracting Parties to Protocol V
--------------


17. (U) The two-day meeting of High Contracting Parties (HCP) to
Protocol V (Explosive Remnants of War) concluded on November 11. The
Protocol V States accepted the generic templates suggested by the
coordinator on Article 4 for storing, retaining and transmitting
information, as a guideline for HCP and the formats for making a
request for assistance under the Protocol. The HCP also adopted a
non-binding Plan of Action on Victims' Assistance to show the will of
HCP to address this issue and provide a guideline for implementing
Article 8 paragraph (2) of the Protocol. Although not yet a HCP, all
U.S. concerns with this Plan were addressed before it was adopted.
Lastly, the HCP agreed to hold an informal experts meeting to continue
this year's work on implementing this new Protocol April 24-26.

Meeting of High Contracting Parties to Protocol II
--------------


18. (U) The one-day meeting of High Contracting Parties to Amended
Protocol II (Mines, Booby Traps, and Other Devices) took place on
November 12. These States Parties also agreed to hold an informal
experts meeting April 22-23 in order to revitalize implementation of
this Protocol, which has been in force for 10 years. This meeting will
include looking at how to address IED's within the context of the
protocol.

Meeting of High Contracting Parties to the CCW
--------------


19. (U) The Meeting of High Contracting Parties to the CCW met for two
days. There were two principle decisions coming out of this meeting.
First, the High Contracting Parties agreed to extend the mandate for
negotiations on the issue of cluster munitions into 2009. The GGE will
meet for up to two weeks in 2009, from February 16 to 20 and, if
required, from April 14 to 17. The new Chairman of the negotiations
will be Gustavo Ainchil of the Disarmament Directory of the Ministry of
Foreign Affairs from Argentina. Second, the High Contracting Parties
considered a proposal to establish an Implementation Support Unit
("ISU") to facilitate implementation of the Convention and its
Protocols. Most delegations spoke favorably about the concept, but a
few, including the U.S. delegation, raised questions about the details
of the proposal, in particular its cost implications. Although other
delegations were ultimately willing to approve the ISU, the U.S.
delegation arranged for the decision to be deferred until the next
Meeting of High Contracting Parties in order to determine whether funds
will be available for this purpose.

Delegation comment
--------------


20. (C) Prospects for agreement on a text based on the phasing out of
the cluster munitions raising the most significant humanitarian
concerns and their replacement by technically more advance weapons
appear better in 2009, following the Oslo signing ceremony. While some
issues still remain to be resolved concerning such an approach, in
principle both the major producers and users and the countries desiring
a more complete ban see the value in such a concept. Once it became
clear that negotiations on a Protocol could not be completed this year,
US del engaged intensively with interested countries to seek to set the
stage for possible agreement in a small number of meetings next year.


21. (C) The head of the Canadian delegation, Earl Turcotte, played an
unhelpful role in the negotiations, repeatedly insisting that the text
include provisions that he knew other delegations could not accept. It
is unclear to what extent he was representing the Canadian government's
position or whether he was allowing his personal opinions to shape his
positions. The U.S. delegation recommends that a demarche to Canada be
prepared to raise the issue with the Government of Canada. End comment


Tichenor