Addressing key challenges to meeting clearance deadlines under the anti-personnel mine ban convention and the convention on cluster munitions

Report
from Anti-Personnel Mine Ban Convention
Published on 22 Mar 2013 View Original

Kerry Brinkert, Director of the Anti-Personnel Mine Ban Convention Implementation support Unit, Addis Ababa, Ethiopia.

Ratifying or acceding to an international convention is a profound exercise in State sovereignty. It implies that a State agrees to be legally bound to act in accordance with certain norms that have been accepted by the international community.

When a State agrees to be bound by the Anti-Personnel Mine Ban Convention, it accepts that it shall never, under any circumstances, use, produce, stockpile or transfer anti-personnel mines.

Fulfilling these negative obligations, that is, complying with what one has accepted that one must not do, is arguably relatively easy: One complies by not acting, by not doing those things that one has agreed that it will never do.

However, in addition to accepting that there are certain things that one must not do, States that have ratified or acceded to the Convention also accept that there are certain things that States must do.

Compliance with positive obligations is something that Africa States Parties to the Anti-Personnel Mine Ban Convention know is much more complicated. Rather than not acting, compliance with positive obligations means carrying out a range of actions together which we could call implementation.

Another way to look at implementation is to see that it is the nexus between the words on paper that have nicely been assembled in a treaty negotiation process and practical realities of ensuring that these words have a meaningful effect.

There are a number of words on paper that were nicely assembled in September 1997 when the Anti-Personnel Mine Ban Convention was negotiated that concern emplaced anti-personnel mines under a State’s jurisdiction or control.

In accordance with Article 5 of the Convention, States have freely made a solemn and legally binding commitment to carry out the following actions:

Each State Party shall make every effort to identify all areas under its jurisdiction or control in which anti-personnel mines are known or suspected to be emplaced. Each States Party shall ensure the effective exclusion of civilians, until all anti-personnel mines contained in areas that one has made every effort to identify have been destroyed. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible but not later than ten years after the entry into force of this Convention for that State Party. This is what the Convention says. These are the words on paper that every State in sub-Saharan Africa has exercised its sovereignty to solemnly acquiesce to.

But what do these words mean when they bump up against practical reality?

While some actors outside the Convention in the early days propagated misconceptions about what Article 5 means and whether it is realistic to implement, the States Parties have found the obligations contained in Article 5 to be sufficiently clear, recording certain understandings about what Article 5 means when it bumps up against practical realities.

In 2005 at the Convention’s Sixth Meeting of the States Parties, the States Parties recorded in their annual progress report that “the Convention does not contain language that would require each State Party to search every square metre of its territory to find mines.”

This is an important understanding as it discredits the myth that the Convention implies the need for some search for a supposed “last landmine.”

It also underscores the point made in Article 5 of what truly is required of a State Party.

What is required is to “make every effort to identify all areas under (one’s) jurisdiction or control.” In legal terms, this is narrower than an obligation to identify all mined areas.

This provision of the Convention could be construed as an obligation upon a mine-affected State to carry out assessments and surveys defined and elaborated upon in the United Nations’ International Mine Action Standards (IMAS).

In 2005 and then again in 2009 at the Convention’s Second Review Conference, the States Parties recorded another important understanding related to the interaction between the legal text of the Convention and practical reality.

The States Parties recorded that “it should be noted that while terms like mine-free, impact-free, and mine-safe are sometimes used, such terms do not exist in the text of the Convention and are not synonymous with Convention obligations.”

“Impact-free,” for instance, is often heard but is ambiguous and not universally defined.

“Mine-safe” has sometimes been used to describe a milestone towards fulfilment of Article 5 of the Convention but should not be confused with an end-state.

“Mine-free” has been used as a short reference to communicate that there are no areas in a particular location or country are considered dangerous, due to the presence or suspected presence of mines, but like “impact-free” and “mine-safe,” the use of this term should be avoided when reporting on the strict fulfillment of the legal obligations in the Convention.

Also in 2005 and again in 2009, the States Parties recorded another important understanding that I wish to highlight.

They recorded that “Article 5 compliance is part of the Convention’s overall comprehensive approach to ending the suffering and casualties caused by anti-personnel mines, for all people, for all time. Anti-personnel mines, and the clearance of them, have and/or could have a humanitarian impact, an impact on development, an impact on the disarmament goal of the Convention and an impact on solidifying peace and building confidence.”

These statements are important for a variety of reasons:

First, they recall that all mined areas, which one has made every effort to identify, need to be addressed in order that the Convention can conclusively achieve its mission of an end to the suffering and casualties caused by anti-personnel mines. Second, they imply that all emplaced anti-personnel mines have potential impacts, that these impacts go beyond an immediate socio-economic impact, and that the complete range of impacts is important. And third, these statements then suggest that a conclusively “impact-free” state can only be achieved if the totality of impacts is addressed. A final set of understandings that I wish to highlight concerns the heart of the matter for this session. That is, when the text of the Convention bumps up against practical realities, what does “completion” mean?

With respect to this, first of all, the States Parties have underscored that “primary responsibility for ensuring compliance rests with each State Party.”

That is, it is up to each individual State Party:

to declare that it has an obligation to fulfil, to take the practical steps necessary to implement, and to ultimately determine that it is complete, albeit in a manner consistent with its legal obligations, in a manner that gives confidence to the international community that the State has complied with these obligations, and in a manner that gives confidence to one’s population that areas at one time deemed dangerous are now again fit for human activity and use.

What exactly does “completion” mean?

A practical answer rests in the definition of a “mined area” in Article 2 of the Convention as “an area which is dangerous due to the presence or suspected presence of mines.”

The implementation of Article 5 requires that States Parties render all such areas (which one has made every effort to identify) no longer dangerous due to the presence or suspected presence of anti-personnel mines.

In simple terms, a State Party that has reported one or more areas that fit the definition of “an area which is dangerous due to the presence or suspected presence of mines” will know that it has completed Article 5 implementation when it no longer has any such identified area under its jurisdiction or control that “is dangerous due to the presence or suspected presence of mines.”

It is essentially a balance being struck between (a) the logical understanding that “the Convention does not contain language that would require each State Party to search every square meter of its territory to find mines” – to go on some endless fruitless search for some supposed last landmine and (b) the imperative to render to a useable state all those areas which a “best effort” has identified as areas at one time considered dangerous due to the presence or suspected presence of anti-personnel mines.

At the Convention’s Second Review Conference in 2009, the States Parties observed that completion is indeed possible, that “this has been demonstrated by State practice” and that achieving this end state has been greatly aided by implementation carried out in accordance with the UN’s International Mine Action Standards.

The States Parties have also adopted a model “declaration of completion”, which is important for two reasons:

First, the declaration of completion sees that a State Party declares that it has done exactly what the State Party has committed itself to doing, in accordance with Article 5, paragraph 1.

Ambiguous language and terminology, such as “mine-free” or “impact free” is absent from this declaration.

And second, the declaration of completion is realistic in seeing States Parties express that it is always possible, or indeed always likely, that previously unknown mines and / or mined areas may be discovered, once completion has been declared.

Furthermore, the declaration of completion indicates the practical steps that a State Party would take, in accordance with the Convention, should it, in fact, discover previously unknown mines or mined areas.

This part of the declaration of completion reads as follows:

In the event that previously unknown mined areas are discovered after the date of completion, the State Party will:

(i) report such mined areas in accordance with its obligations under Article 7 and share such information through any other informal means such as the Intersessional Work Programme, including the Standing Committee meetings;

(ii) ensure the effective exclusion of civilians in accordance with Article 5; and

(iii) destroy or ensure the destruction of all anti-personnel mines in these mined areas as a matter of urgent priority, making its needs for assistance known to other States Parties, as appropriate.

Given how the States Parties have come to understand completion, it is positive that this workshop places emphasis both on completing implementation of solemn obligations and anticipating how States will deal with a residual hazard that is simply a reality of any State that has experienced armed conflict in its territory.

Given that 23 States Parties have already reported completion of their mine clearance obligations, there is some experience to draw from in terms of what comes after completion.

The key lessons are as follows:

First: Rather than envisaging transitioning national authorities to something else once large-scale demining programmes have been complete, there is a need to shift from a pro-active State response to a large-scale demining challenge to a regularised reactive State response to UXO.

That is, it is important to avoid a preoccupation, in considering what to do with a national authority, from shifting a responsibility from “thing A” to “thing B” rather than regularising a wide range of responsibilities associated with a long-term UXO response within a wide range of existing State entities.

Second: There is a need to move beyond the assumption that the response to a residual challenge will largely be supported through external funding rather than being internalised as a regularised State function.

Again, UXO present a long-term challenge to States and hence this becomes a long-term responsibility. In addition to internalising this as a long-term State responsibility, the financing of the reactive response to a UXO challenge needs to be internalised as a long-term State responsibility.

And third, we need to overcome a fixation simply on the destruction of items and think more about the need for a system approach to dealing with a long-term UXO challenge. The destruction of explosive hazards is but one of many actions required as part of regularised State response to explosive hazards.

In conclusion, Article 5 completion is indeed possible and has been achieved when a State Party renders all such areas which one has made every effort to identify no longer dangerous due to the presence or suspected presence of anti-personnel mines.

Completion does not mean an endless search for some supposed last landmine but it does mean treating all areas identified through best efforts. Rather, completion can be declared with confidence when implementation is carried out, with respect to every area a State Party has made every effort to identify, in accordance with the UN’s International Mine Action Standards.

Finally, while completion of Article 5 implementation is a significant milestone, it must be understood that a residual hazard associated with UXO is simply a reality of any State that has experienced armed conflict in its territory and thinking regarding a reactive, system-approach to this reality should be undertaken well before completion.