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Disarmament Diplomacy

Issue No. 24, March 1998

A New Model for Arms Control? The Strengths and Weaknesses of the Ottawa Process and Convention
By Nicola Short

Introduction

On 3-4 December 1997, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction was signed by 122 countries (as of 23 March, there were 124 signatories), although some major mine-possessing and mine-producing countries have yet to come aboard. The Convention will enter into force following the 40th ratification. Although only six States had ratified by the end of March, it appears quite possible that this threshold will be passed sometime in 1998.

The Convention came about through what is called the Ottawa Process; a Canadian-led multilateral initiative launched in September 1996 with the stated aim of concluding negotiations on a complete ban by the end of 1997 - a target widely regarded at the time as overambitious. At the signing conference, 'Ottawa Process II' was launched to maintain the momentum, work for universal adherence to the Convention and help coordinate international demining efforts.

The Ottawa Process's strong emphasis on cooperation between governments and non-governmental organisations (NGOs) - in particular, the collaboration of the International Campaign to Ban Landmines (ICBL) and the Canadian government - has been championed as a model for global decision-making. This article questions how justified that claim is, and how effective such a model would be.

Though much stronger than previous attempts to address the scourge of anti-personnel mines, close examination of the Convention suggests that the treaty is weak in areas of traditional NGO concern. The Ottawa Process model may not, after all, represent the best approach for addressing issues articulated by civil society, nor be such a radical departure from other examples of NGO involvement in decision-making. Its value may lie more in the principles it champions than in the blueprint it provides.

Description of the Convention

The Convention represents a major step forward in the efforts to ban anti-personnel landmines. The most signification contribution is the treaty's first article, which is stronger than any previous prohibition on anti-personnel mines: State Parties undertake never to use, develop, produce, acquire, stockpile, retain or transfer anti-personnel mines (APMs). The Convention calls for the destruction of all stockpiled APMs owned or possessed by a State Party within four years of its entry into force and the destruction of all emplaced mines within ten years of entry into force.

In its preamble, the Convention refers to previous efforts to ban APMs and calls on all States to ratify the revised Protocol II of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW). States must identify mined areas and ensure the protection (i.e. exclusion) of civilians from those areas until they have been demined.

The Convention calls for an exchange of resources, financial and technical, to assist in its implementation, particularly regarding victim assistance, mine awareness programs, mine clearance, mine destruction and in the planning of national implementation strategies. States are required to report on these strategies, including the types and quantities of stockpiled APMs, types and quantities reserved for training purposes, the conversion of APM production facilities, the status of mine destruction and the status of mine awareness programs. They are required to adopt national implementation measures, including penal sanctions, "to prevent and suppress any activity prohibited...under this Convention undertaken by persons or on territory under its jurisdiction or control". The Convention allows States Parties to clarify the compliance of other signatories, after the approval of a majority of States Parties, through a fact-finding mission of pre-designated experts. Regular meetings of the States Parties and review conferences are to be held after the entry into force of the treaty.

Other efforts to address the mine crisis - the CCW and the Conference on Disarmament (CD) - are governed by consensus, forcing negotiations to cater to the most reluctant positions. The Ottawa Process avoided the lowest common denominator problem by having States self-select to participate in the negotiations based on their ability to commit to certain principles in favour of a ban. These principles were first articulated in the Ottawa Declaration, which States needed to sign to attend the October 1996 Ottawa conference, and then the Brussels Declaration, a prerequisite for participation in the September 1997 Oslo negotiations that agreed the final text of the Convention. Unlike the CCW and the CD, the Ottawa Process and the resulting Convention aim to ban, not regulate, the use of APMs.

Drawbacks of the Convention Text

The Convention's definition of APM is problematic in three ways. First, it fails to define "vehicle" in the second part of the definition, which reads: "Mines designed to be detonated by the presence, proximity, or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped". Is a bicycle a vehicle? Vehicle would be intuitively interpreted to mean a tank. Yet in its proposals to change the article on definition during the Oslo negotiations, the US explicitly distinguished anti-vehicle mine from anti-tank mine, illustrating the ambiguity of the term.

A second flaw is the exemption of anti-handling devices (AHDs), which turn anti-vehicle mines effectively into anti-personnel mines in that, with AHDs, they are detonated by a much lighter disturbance. This caveat emerged to demonstrate to critics, who had argued that the previous definition was too ambiguous and alienated potential supporters who would ban APMs but not anti-tank mines, that the treaty did not aim to restrict anti-tank mines. It compensates for the removal of the controversial word "primarily" from the CCW definition, which served the same function perhaps in a more ambiguous way: "'Anti-personnel mine' means a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons". NGOs had fought hard to have "primarily" removed, but did not favour the exemption for anti-handling devices.

The controversy around the word "primarily" reflects the third concern with the definition - that it is based on weapon design, not function. The practical implications of this issue remain to be seen, but the fear is that anti-personnel mines, or weapons which function the same way, will remain available on the market under different names. An illustration of the potential ambiguity can already be seen in the Austrian courts. A company is being tried for selling Claymore mines with tripwire, which are considered APMs; Claymores without tripwire are not considered APMs and are exempt from the treaty and the Austrian national law from which it draws. Modifications such as adding tripwire can easily be performed in the field, suggesting the importance of a function-based definition.

Article 3, Exceptions, represents another area where the treaty may fail in practice to achieve a comprehensive ban on APMs. It allows for the retention or transfer of an "absolute minimum number [of mines] necessary for" development and training in mine detection, clearance or destruction. Unsuccessful efforts to define a maximum permissible number of retainable mines have been made. Article 3 was widely interpreted on the floor of the Oslo negotiations, with Italy suggesting that it might reserve as many as 200,000 mines for training. The ICBL successfully sought to have 1500-2000 mines read into the record to establish the meeting's interpretation of an "absolute minimum number".

Political Challenges for the Convention

Early in the Ottawa Process it was argued that like-minded States could address the demand for APMs, if not the supply, by stigmatizing use. The support that the treaty has since garnered will certainly reinforce this stigmatization. However, it must be noted that the widespread availability of emplaced mines, which are often reused in mine-affected countries, hinders monitoring new use.

The mechanism for requesting clarification is weaker in the Convention than in analogous international humanitarian law, in that only States Parties can request clarification of compliance. As it would be perceived as a highly political act, no country has ever invoked a request for clarification of compliance in any human rights agreement. There are precedents for non-State actors having the right to trigger verification of international human rights agreements, for example in the optional protocol of the International Covenant on Civil and Political Rights (although how realistic and effective such mechanisms are is open to question).

Another potential political liability involves the enormous cost of mine clearance. Article 6, International cooperation and assistance, gives States Parties "the right to seek and receive assistance, where feasible, from other States Parties to the extent possible". It lists spheres for assistance "Each State Party in a position to do so" shall provide: victim assistance, mine awareness, mine clearance, the destruction of stockpiled mines. The tentative quality of this language is cause for concern given the amount of resources needed to address the APM crisis.

The initial commitment of Canada, arguably the State most invested in the success of the Convention, provides an example of necessity of a more rigorous funding mechanism. Canada has pledged $20 million a year over the next five years for implementation of the treaty. (It must be noted that a few other countries announced significant financial contributions at the Ottawa treaty-signing: Norway pledged $100 million USD, and the US $82 million USD, for demining.) Conventional figures put the price of mine clearance at $300 - $1000 USD, suggesting the Canadian contribution could clear 20,000-60,000 mines, optimistically .05% of the estimated 110 million emplaced mines world wide, with no contribution to victim assistance, mine awareness or the destruction of stockpiled mines. These figures are not uncontested, and they aggregate low- and high-priority clearance areas giving a false sense of the magnitude of the problem. What is clear, however, is that a stronger funding regime than is included in the Convention will be necessary for its effective implementation.

The Future of the Convention

The Convention will enter into force after 40 ratifications. The ICBL is campaigning for entry into force before the year 2000. The International Committee of the Red Cross (ICRC) has prepared information packets for governments to provide assistance in prompt ratification. Here, as in the origins of the Process itself, the CCW figures prominently in the historical memory. Despite the limited scope of Protocol II, only a small number of countries have ratified it (a mere six by the Brussels Conference, midway through the Ottawa Process). Nonetheless, in Oslo a consensus among NGOs and some core group governments emerged that a campaign of ratification by the year 2000 is feasible.

Universalisation is also considered an important goal, if slightly less well articulated due to the tradition of self-selection within the Process. Conspicuous absences from the Convention include the US, China, Russia, and many Asian States (Russia has signalled its intention to join at an unspecified future date). The Canadian government is planning to continue its bilateral "information" meetings, designed to provide diplomats with examples of how countries have adapted their policies to join the Ottawa Process. As of February 1998, the ICBL has a working group on political and diplomatic issues that is tasked with both ratification and universalisation.

A major theme for NGOs during the Oslo negotiations was how to implement ethical guidelines for mine clearance funding. There is concern that the funds for clearance and demining implied in the treaty text will be siphoned off from legitimate development programs in the South to fund high-tech research and development in the North, even though very little of this R&D has proven feasible in the field. Humanitarian demining programs point to their emphasis on sustainability and sensitivity to the communities they work in, and reliance on technology that can be used and maintained by local employees. The ICBL has also established working groups on humanitarian mine clearance and issues of legal and moral responsibility.

The Ottawa Process Model for NGO/Government Cooperation

The achievement of the Convention through a coalition of non-governmental organisations and pro-ban governments has been celebrated as a triumph for civil society in global affairs. Jody Williams, in accepting the 1997 Nobel Peace Prize (awarded jointly to her and the ICBL), heralded civil society as the "world's new superpower". She has claimed that the government-NGO cooperation of the Ottawa Process set a new precedent in arms control negotiations. Is there a new role for non-State actors in global affairs?

The Convention is a much stronger treaty than that which emerged from the CCW review conferences. However, that does not automatically imply that the Ottawa Process as it occurred was the only, or best, means to achieve such a treaty. Initial meetings of the core group of States involved in organising the Process - although held at the behest of certain NGOs - did not include the ICBL, suggesting that the political will for such a treaty may have existed independently of the direct participation of NGOs at the diplomatic level. Indeed, the core group reflects a traditional liberal ideal of multilateral diplomacy and leadership that has been articulated at least since the 1970s. The role NGOs played in raising awareness was also being performed by others, particularly the late Diana, Princess of Wales. It is not clear that the particular approach of the Ottawa Process, involving NGOs as it did, was necessary to achieve such a treaty.

Furthermore, it is important to question whether the Ottawa Process did, in fact, produce a better treaty than would have been possible through an alternative approach. We saw within the Ottawa Process that one of the concerns historically most important to NGOs - definition - moved beyond the scope of debate. The definition of APM, arguably the greatest drawback of the treaty, was changed with no intra-NGO discussion. A process that did not purport to involve NGOs so much may have produced a treaty with a stronger definition. In their traditional role as "watch-dogs" to diplomatic processes (e.g., as they behaved in the CCW), NGOs would have been poised to anticipate and be vocal in their reaction to changes weakening the treaty, especially regarding definition.

Nor is it clear that the compliance article could not have been stronger with greater intra-NGO discussion. ICBL leadership asserted that an arms-control verification regime would not be necessary if the treaty were re-worked to appeal to humanitarian law principles, which did happen. Yet within humanitarian law there are strong precedents for the right of civil society to trigger verification, which is not included in the Convention. The Ottawa Process moved some key issues beyond the scope of broad NGO participation, suggesting it may not have been the best approach for establishing the strongest norm against APM use.

One might also note that the existence of the Campaign does not necessarily imply the existence of civil society. For example, in her assessment of the Ottawa Process, a representative of the Japanese campaign argued that there is no tradition of civil society in Japan. That government's position was driven by traditional international relations concerns (distancing itself from the US to improve its position for inclusion in the UN Security Council), immune to the influence of NGO efforts.

Regardless of flaws in the Ottawa Process, there could be an argument that an important precedent has been set in principle. However, there is one important, chastening example suggesting that the matter is not so simple or encouraging. This is the case of NGO involvement in the UN Conference on Environment and Development (UNCED) process.

The role of NGOs in the UNCED process has been cast in terms that mirror the role they played in the Ottawa Process: governments "use[d] NGOs as providers of data and expertise, as information disseminators, and as legitimizing agents" (1). The framework for participation delineated by UNCED applied essentially to larger US NGOs, which brokered their legitimacy for participation at the expense of smaller NGOs. NGO leadership split into two factions: the North-dominated political players, and the South-, grassroots-oriented organisations.

The UNCED framework did not accommodate competing voices effectively, but the emergence of these voices did highlight important philosophical and logistical issues for the involvement of NGOs in international decision-making. The Ottawa Process may not represent an improvement on the UNCED model to the extent that considerations of political expediency, generated not least by the process's remarkable momentum, may have acted to silence certain, otherwise more critical, constituencies. Although such silence is a price some may have paid voluntarily to achieve the treaty, such a strategy may have incurred costs in terms of the integrity of the text.

Conclusion: Building on the Model

Unlike UNCED, the Ottawa Process produced a significant, legal Convention. The Process advanced the level of international discussion regarding APMs and in many ways represents an important success. NGOs undeniably were a key force in this move forward. Implementation of the Convention will give us a better sense of the practical extent of the weaknesses in the text in the coming years. The challenge for those who would build on the Ottawa Process model is to use its enthusiasm for cooperation to incorporate those NGO concerns that have been marginalised.

Notes and references

1. Matthias Finger, 'Environmental NGOs in the UNCED Process,' in Thomas Princen & Matthias Finger, eds., Environmental NGOs in World Politics: Linking the Local and the Global, London: Routledge, 1994, p.186.

Nicola Short is an MA student at the Department of Peace Studies, University of Bradford.

© 1998 The Acronym Institute.

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