U.S. Position on the Convention on Conventional Weapons Negotiations on Cluster Munitions Protocol

Special Briefing
Harold Hongju Koh
Legal Advisor U.S. Department of State 
Deputy Assistant Secretary of Defense Bill Lietzau
Via Teleconference
November 16, 2011

MR. VENTRELL: Good morning, everyone. This is Patrick from the Press Office. Today, we have Department of State Legal Advisor Harold Koh and Deputy Assistant Secretary of Defense Bill Lietzau to discuss the U.S. position on the Convention on Conventional Weapons negotiated on a protocol on cluster munitions.

Ground rules for this call is that there are – the comments are on the record. And without further ado, I’m going to turn it over to our speakers, and then after they’re done with opening remarks, we’ll take some questions.

Harold and Bill.

MR. KOH: Yeah. It’s Harold Koh here, the legal advisor. The United States has been a high-contracting party to the Convention on Conventional Weapons, the CCW, for a number of years. This is the first time in a review conference in which we’re a party both to the convention and all five of the existing protocols. The question here is whether we should support a sixth protocol, which is under discussion, about cluster munitions. And our position is that we should, based on the chair’s text that’s currently before the conference.

We wanted to dispel at the outset the notion that in some way we are trying to detract from the Oslo Convention, which is a separate treaty outside the framework of the CCW, which also addresses clusters. We see the two as complementary, not as competitive. Nothing that we are saying or supporting would diminish or detract from the Oslo Convention, and we think that the protocol that’s under consideration here takes a significant step toward a goal that everybody shares, which is to address comprehensively the humanitarian impact of cluster munitions.

Just to make this concrete, many countries in the world are not parties to Oslo and are unlikely to become so, and that they represent 85 to 90 percent of the world’s cluster munition stockpiles. So a question then becomes: How do you regulate that 85 to 90 percent holders if they’re never going to join the Oslo Convention? And the obvious answer is to try to bring regulation into the CCW, where they do participate.

Under discussion right now is a ban on cluster munitions that are produced before 1980. If that were adopted as part of this protocol upon ratification and entry into force, it would immediately prohibit over 2 million cluster munitions or more than 100 million submunitions, which is about one-third of the entire U.S. stockpile of cluster munitions. To put it directly, if this rule is adopted, it would prohibit more cluster munitions for the United States alone, than the Oslo Convention has prohibited for all of its member states combined. And we think that this is a very significant humanitarian impact and should be supported. It’s true for other countries as well. For example, Ukraine announced that if this rule were adopted, it would prohibit more than a third of their existing stocks, almost 700,000 tons. Millions of the Russians’ munitions would be banned as well. So, we think that this protocol would have an immediate and tangible humanitarian effect.

The two other advantages of adopting this protocol are that it would create a detailed set of rules about clusters, including obligations with regard to transparency, cooperation, clearance, assistance to victims, and technological assistance. And a third advantage is that the draft protocol is designed to evolve and grow stronger. There are a very detailed set of technical annexes that would adapt to technical developments that might occur with regard to these kinds of munitions, and as well as commitments to review the annexes and to get more comprehensive provisions over time.

So, we think that it is clearly complementary to the norms that are out there. The United States is deeply committed to conventional weapons destruction. We’ve provided more than $1.9 billion toward that goal since 1993 in some 81 countries, and we think that this is a step in the same direction. We obviously want to address humanitarian considerations while also addressing military concerns, which Bill Lietzau here is from the Department of Defense and can address. But that is the posture in which we are approaching this conference which is going on now in Geneva.

MR. LIETZAU: I have nothing to add. I think Harold said it all. The Department of Defense completely supports the protocol negotiation going on right now in the CCW, and we completely support the CCW as an appropriate and prudent way to limit and to appropriately balance the humanitarian interests and military necessity that come into play when we deal with weapons systems like this.

MR. VENTRELL: Okay. Thank you. Operator, can we go to our first question, please?

OPERATOR: Okay. At this time, if you would like to ask a question, please press *1. You will be prompted to record your name. To withdraw your question, you may press *2. Once again, at this time, if you would like to ask a question, please press *1. One moment, please, for our first question.

Our first question is from Steven Myers. Your line is open.

QUESTION: Hi, gentlemen. Thanks for doing this. Could you explain in detail what the difference between the Oslo process and this would be in terms of what would and wouldn’t be allowed? You said that they’re not in conflict, but rather, complementing each other. But what is the distinction between the two that leads you to prefer the process in Geneva rather than Oslo?

MR. KOH: Well, first, we don’t prefer it. We think it’s complementary. So we think that if you are a supporter of one, it doesn’t mean you should be opposed to the other. The major difference is that the Oslo convention was adopted outside as a sort of standalone framework. And a significant number of countries entered and there was a set of norms adopted. The norms – we don’t challenge that those are the operative norms in this area.

The question is the Convention on Certain Conventional Weapons has existed for many years and has addressed a huge range of issues. Its major focus is on adopting protocols that lead to humanitarian impact by immediate effects on stocks. And the – as I said in the opening, I think the key is that Oslo has a high standard, but many countries have not joined, including many countries that are in the CCW, and that therefore, while the norms of Oslo have been important and, we think, continue to announce a standard which is the one that many look to in this area, its impact in terms of actual destruction of clusters has been less than those in Oslo might have hoped. The adoption of this protocol would immediately eliminate over 2 million clusters for the United States, which is more than Oslo has already prohibited for all the member states combined.

So I think the question is: How can these two things be made to work together rather than competitively? Another way to look at it, Steven, is that there are three groups within the CCW process. There are the Oslo members, there are those who are working toward this humanitarian goal, and then there are others who are unlikely to participate in Oslo ever. And the question is: How can those who are interested in promoting the humanitarian impacts achieve an outcome that affects everybody who’s part of the CCW process?

MR. LIETZAU: Steven, I’ll just add I completely agree. I think that Harold Koh captured the primary difference, being that it’s being negotiated in the CCW, which we think is exactly the right place for this kind of negotiation. Substantively, just to help you identify the technical – the most relevant – the most interesting technical differences is – and that’s that if you go to Article 2, paragraph 2 of the Oslo Convention, you’ll see that certain munitions are excluded from the definition of cluster munition, and then the treaty then proceeds to bar all cluster munitions, but with the exclusion of those – these particular – these munitions that have these particular parameters that are based on weight, numbers of submunitions and things like that.

What this complementary agreement would do is it would also permit those items to be excluded, but then it would provide another mechanism for excluding from use restrictions a munition, and that would be with the – a – having no more than a 1 percent unexploded ordinance rate across the range of intended operational environments. And I – we believe that that criteria is a specific, objective, measurable criteria that actually is, in many ways, more targeted to the humanitarian concerns that we have than even some of the other criteria. So that’s how it’s complementary. It would not permit any weapons other than those that fit either the Oslo criteria or this even more rigorous criteria.

MR. VENTRELL: Operator, if we can go to the next question, please.

OPERATOR: Our next question is from Farrah Zughni. Your line is now open.

QUESTION: Hello. I understand that the alternative draft protocol that’s been proposed by Mexico, Austria, and Norway is actually more ambiguous in its language, and I understand that they’re doing this as a strategy because they would like countries that have a more stringent understanding to be able to abide by that more stringent understanding, while cluster producers like the U.S. and Russia can take a more general understanding. And I was wondering, is that the case? And if so, why might the U.S. find that objectionable?

MR. KOH: Well, these countries are our friends. We think we share broad goals. The question is how can the two texts, the one that’s the chair’s text, which has an immediate impact on destruction, be in some way merged or joined with language from the alternative draft protocol. We – at a conference like this, it’s easier to get a result that includes the goals of the different groups if you can actually have a single text, and that’s all that’s going on right now. I mean, the reason to have the conference is to have these kinds of diplomatic discussions.

OPERATOR: Our next question is from Josh Rogin. Your line is now open.

QUESTION: Thanks, guys. And I joined the call late, so I apologize if you covered this, but could you tell us about – your thinking about when you would submit either one of these things to – for Senate ratification? Is it fair to say that the question initially was one you would never submit for Senate ratification? And can you talk more about the criticism of your – of the chair’s draft proposal, namely that it doesn’t kick in fully until 2018? Thank you.

MR. KOH: We didn’t hear the second part, Josh.

QUESTION: One of the criticisms of the draft proposal has been that it permits the use of certain classes of cluster munitions until 2018, matching Secretary Gates’s policy established in 2008. Could I have your comment on that? And also, what are the plans for engagement with the Senate?

MR. LIETZAU: I’ll defer to Harold on the – engaging with the Senate. I can say that DOD supports the chair’s text and the draft protocol that we would hope could result from that. And we, in fact, think that we would be able to find favorable reception in the Senate as well.

With respect to the second question, remind me. That was the --

QUESTION: One of the criticisms from the NGO community is that the current draft, the chair’s draft protocol, would allow large classes of cluster munitions to still be used until 2018.

MR. LIETZAU: Yeah. So, you’re asking about the deferral period, and is that – is it or is it not problematic. I would say – I would argue, having been in a number of negotiations like this one, not in this one, but when you see that countries have pushed for a deferral period, then you know you’ve got a serious convention on your hands. Because what you’re talking about is someone who is absolutely committed to implementing the provisions of the protocol, but as a practical matter, they have to change their operations; they have to make changes in the way they do business in order to get to compliance.

So as a general – so – and that’s the case – that would be the case for the United States, and I know it would be the case for many other countries as well. These are very high standards that the protocol would require, and getting our munitions to comply with those standards and our operations to comply is something that you can’t just do with a switch. It’s something that you have to do with careful planning. It costs money and it takes some time. So I think that what you have there is an indicator that this would be a serious convention with practical effect, as Harold mentioned in his beginning remarks. Here, we’re targeting the 85 to 90 percent of the cluster munitions out there, the producers and users of those cluster munitions, and we’re doing it in a way that would – bringing them aboard is not that easy. It’s something that would take some time for them to be able to achieve.

QUESTION: And Harold, are you satisfied?

MR. KOH: Well, obviously, the step one, Josh, is to get the protocol. Step two is to submit it, and there are steps along the way for advice and consent. You know that it’s a challenge under our constitutional system to get 67 votes. There would have to be a hearing process, et cetera. But I think that we would be delighted to be in that position.

I think the main point is at the moment, there are cluster users and producers who are unregulated. They are not part of the Oslo process and they will never be part of the Oslo process. This protocol would have impact on everybody who is part of the CCW process. And for that reason, it would have an immediate impact in terms of how people would have to prepare their stocks and what they might have to do to start moving toward the process of destruction and regulation. Nobody thinks that this is the last step, but it’s a very important step to bringing this into a regime of regulation.

QUESTION: Thank you.

OPERATOR: Our next question is from Viola Gienger. Your line is now open.

QUESTION: Hello. This is Viola Gienger from Bloomberg News. The opponents of this protocol, the human rights groups and the arms control advocates, know this issue pretty well. Why do you think it requires this extra time, this deferral, for such a long period? In fact, it’s even beyond 2018, as I understand it, another 12 or 18 years – 12 years after the treaty enters into force. Why do you think that it requires that much time, when they apparently do not?

MR. KOH: Well, I think the more important question is that there’s nothing that inhibits people who want to join Oslo to move forward in Oslo. The question is are you going to get anything in the CCW, right, and that many countries are not party to Oslo and will never be party to Oslo. So those who support Oslo are free to move forward with the regulatory scheme in Oslo, and to encourage more to join. The question is what kind of protocol on clusters can be adopted within the CCW framework.

Now obviously, there are issues to be worked out. The draft of the protocol is still being discussed. There are multiple texts on the floor. But I think that the question is: Are you better coming away with a regime of regulation created in the CCW that’s complementary to that one in Oslo? Or are you better having Oslo, which covers relatively few countries and has very little impact – or has had less impact than we would have hoped – with regard to the actual elimination of weapons?

QUESTION: But do you have some indication that you – or some pledges already that if this protocol goes through, you’ll get X number of countries signing on that are not part of the Oslo process? Do you have some commitment to that already – have received commitment?

MR. KOH: The commitment comes in the adoption of the protocol, which is – then becomes binding on those states within the CCW who ratify that protocol. So it’s an important step toward their becoming bound by legal rules, when right now they’re not bound. And they do not intend to enter Oslo, and they wouldn’t be bound there either.

QUESTION: Thank you.

OPERATOR: At this time, I would like to remind all participants, if you would like to ask a question, please press *1. And our next question is from Gabriella Sotomayor. Your line is now open.

QUESTION: Thank you very much. (Inaudible) is particularly concerned that the adoption of the draft protocol in its current form, which set an important precedent in international humanitarian law. And they say that it would be the first time that states will have adopted a treaty of humanitarian law that provides less protection for civilians than a treaty already enforced. So the same position is a lot of delegations and United Nations, so what is your opinion on this?

MR. KOH: Well, I’m an international lawyer. There are all kinds of treaties that are followed by other treaties in the same or connected areas, and the question is: Can those treaties be made to work together? What you’re looking at is a regime of control. And I think the statement, “We have an Oslo convention that has led to the destruction of less than a million clusters,” should [not]* be a reason to block a protocol that would immediately lead to the destruction of 2 million clusters. It places those who value the humanitarian impact as opposing the adoption of a protocol.

In many areas of law, you have multiple legal rules which have different impacts, and the question is how to make them work together. And I think the critical point is we – obviously, the human rights and arms control groups – we have enormous respect for their work and we share their goals. The question is whether it’s really true that the adoption of this protocol automatically waters down Oslo when, in fact, it brings under regulation a large number of countries who everybody knows will never be part of Oslo. I think that’s the real question: Why doesn’t it create a stronger framework that covers more countries and requires more destruction than the present state of the law?

MR. LIETZAU: If I could just add, I think that the answer to your question is very similar to the last question as to why the NGOs and human rights organizations would sometimes want to oppose this. And the answer would be for the same reasons that the other major users and producers would need the additional time to get ready. The – Human Rights Watch is not a major user and producer, so of course they’re not going to be as familiar with the needs of meeting the military necessity concerns that a military force has.

And in this case, what we’re really talking about is the humanitarian effect, not just having a treaty which would appear on its face to have more stringent restrictions than another. Here, we’re looking at actually having an effect. So the real answer comes down to that 85 to 90 percent of the cluster munitions out there, and getting a regime that would cover those when another regime is not covering it.

MR. KOH: This is Harold Koh again. Just accept the basic notion that many of the countries who are party to the C – who participate in the CCW will never becomes party to Oslo. If this protocol comes into force and binding for them, three things happen immediately. They have to destroy pre-1980 clusters; they enter a framework of regulation where they have to report on their stocks – the level of international cooperation and victim assistance – and third, the protocol develops over time to adapt to technological developments which could otherwise be used to avoid rules.

So for that group of nations who are in the CCW who are otherwise subject to no rules, this brings them within a regime of regulation. It does nothing to hurt Oslo, in our view, and the two therefore are complementary. It expands the impact of the regime that we’re all trying to create here.

QUESTION: Thank you.

OPERATOR: I’m showing no further questions at this time.

MR. KOH: Great. Thank you very much.

*Corrected to add not

PRN: 2011/1946