Explosive Road from Dublin: The Legal Flaws in the Convention to Ban Cluster Munitions and Recommendations for Their Cure

Abstract

In a popular Irish folk song, the hero leaves his boyhood home in the Irish country side and takes the rocky road to Dublin in order to sail to a new life in a new country. However hopeful the hero is throughout his journey, when he arrives at his destination he finds that it is not as hospitable as he had expected. Despite its light-hearted beat, this song is oddly prophetic for an analysis of the Convention to Ban Cluster Munitions.

In May, 2008, the Convention to Ban Cluster Munitions (Cluster Munitions Convention) was adopted by a group of one-hundred and eleven states meeting in Dublin, Ireland. The goal of this article is to highlight the flaws of the Cluster Munitions Convention and offer recommendations for the cure of these flaws in alternate fora to the Cluster Munitions Convention.

Part II of this article provides a history of the Cluster Munitions Convention, as well as the statements of various state parties throughout the convention negotiating process. In this Part, emphasis will be placed on the motivating factors behind the Cluster Munitions Convention's creation, amendment and adoption, as well as the way in which particular concerns of state parties were addressed during the negotiation process.

Part III of this article discusses the uniquely military aspects of the Cluster Munitions Convention. It then discusses the way in which individual states have addressed cluster munitions production, sale and use in recent years, as well as other applicable and similar weapons conventions. This Part compares these conventions to the Cluster Munitions Convention and uses these comparisons to demonstrate the weaknesses of the Cluster Munitions Convention. In this Part, it is argued that the best method to provide legal protections against the use of dumb cluster munitions and to accomplish many of the goals of the Cluster Munitions Convention is to amend Protocol V of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed Excessively Injurious or Have Indiscriminate Effects. This Part further extrapolates that the most effective method of preventing the sale of dumb cluster munitions is the creation of an industry and state collaborative agreement such as that used in the Kimberley Process to combat the flow of conflict diamonds. It goes on to provide a proposed framework for such a process.

Part IV discusses the humanitarian and victim's assistance provisions of the Cluster Munitions Convention in relation to existing international law. It then profiles the current national, regional and international assistance systems available for demining and assistance to civilian victims of cluster munitions in affected areas. This Part demonstrates the weaknesses of the Cluster Munitions Convention generally in light of the already existing protections and aid schemes. It suggests that the most effective way to ensure that civilian victims of cluster munitions receive adequate assistance and safeguard the rights given them under international law is to strengthen the already existing international conventions which give rise to these rights and allow for a remedy. Ultimately, it is the author's conclusion that the human rights protections offered in the Cluster Munitions Convention are unnecessary if the international community enforces the extant protections afforded by international law. Part V summarizes the flaws in the Cluster Munitions Convention.

JEL Classification: K33