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Email this citationCIAO DATE: 02/02
Promoting Compliance: Observations on the Anti-Personnel Mine Ban Convention
David Atwood
Quaker United Nations Office, Geneva
1999 - 2000
Introduction
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction (hereafter "AP Mine Ban Convention") is the most recent multilateral disarmament treaty to be negotiated and enter into force (1 March 1999). It is too early in the life of this Convention to be able to judge with accuracy its long-term effectiveness in fostering the achievement of its central goal, that of ending the threat to innocent civilians of this so-called "weapon of mass destruction in slow motion". A number of observations, nevertheless, can be made about factors likely to influence adherence to the obligations established under this Convention and the prospects for the eventual establishment of the mine ban norm as customary international law.
While much has been made of the unorthodox diplomacy of the so-called "Ottawa process" in achieving the AP Mine Ban Convention, less has been said to date about how it is likely to fare as a response to the anti-personnel landmine (APM) crisis. The ultimate test of the Convention's success will be how effectively it leads to the ending of the use of APMs in conventional and unconventional war situations and to the reduction towards zero of the numbers of APM victims. This paper comments broadly on compliance provisions and factors which can be seen to be germane to determining the ultimate effectiveness of the Convention. In particular, it examines the contribution of formal and informal mechanisms in the operation of the Convention which complement its specific provisions aimed at assuring compliance. It also looks at the contribution of non-governmental organizations (NGOs) to encouraging adherence by state and non-state actors alike to the Convention goals of ending the use of anti-personnel mines, promoting mine clearance, and supporting mine victim assistance. Finally, factors which are seen to be important to the prospects for the effectiveness of the Convention in the years ahead are briefly assessed.
Basic elements of the AP Mine Ban Convention
The evolution of the AP Mine Ban Convention has been extensively traced elsewhere. It is therefore perhaps sufficient, for the purposes of this paper, to recall that it was humanitarian concerns which motivated the pressure for an APM ban and drove the "Ottawa process". While many factors shaped the outcome of the final negotiations in Oslo in September 1997, this humanitarian motivation underpins the basic rationale of the Convention in recognizing the fact that it is a disarmament process which is required if the humanitarian goals are to be achieved. As Trevor Findlay has noted, "The Ottawa Convention is a hybrid treaty, having antecedents in both arms control and international humanitarian law (IHL). Its verification and compliance provisions sit indeterminably between the two traditions - more robust than some humanitarian law but weaker than the best arms control models." Thomas Hajnoczi, one of the central architects of the Convention text, and colleagues have commented in a similar way: "The Convention is firmly rooted in international humanitarian law (IHL), and at the same time also contains important elements of disarmament law. As the Preamble indicates, the Convention is based on the principle that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, the principle that the employment in armed conflicts of weapons, projectiles, materials, and methods of warfare of a nature to cause superfluous injury or unnecessary suffering is prohibited, and the principle that a distinction must be made between civilian and military objects. The Convention totally bans a specific type of weapon and provides for a compliance mechanism, in keeping with the disarmament tradition."
The AP Mine Ban Convention thus aims at nothing less than the elimination of the anti-personnel mine as a weapon of war and terror. Under the "general obligations" outlined in Article 1 of the Convention, each state party undertakes "never under any circumstances: a) to use anti-personnel mines; b) to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; c) to assist, encourage or induce, in any way, anyone to engage in any activity prohibited . . . under this Convention." (Art. 1, para. 1). As has been pointed out by the International Committee of the Red Cross, "In ratifying the Ottawa treaty, a country accepts that mines are no longer legitimate weapons to be used either in peacetime or in time of war. There are no exceptions to this rule."
The Convention also explicitly recognises that the landmine problem will not cease with the implementation of its prohibitions on the production, stockpiling, transfer and use of APMs. Article 6 outlines the commitment and the assistance which will be required for effective mine clearance, mine awareness, care and rehabilitation of mine victims and their social and economic reintegration.
Although there are the expected provisions for national withdrawal from the Convention, Article 20 places severe limits on this. Language has also been included which makes explicit that any withdrawal does not "in any way affect the duty of States to continue fulfilling the obligations assumed under any relevant rules of international law". Article 20 also makes the Convention of unlimited duration. States joining the Convention must also join unconditionally - Article 19 permits no reservations.
Each state party to the AP Mine Ban Convention is obliged to destroy its stocks of APMs within four years of entry into force of the Convention for the state party (Art.4), with the exception of the possibility to retain a number of APMs "not to exceed the minimum number absolutely necessary" for the purposes of the "development of and training in mine detection, mine clearance, or mine destruction techniques" (Art.3, para.1). The only other exception in the Convention permits the transfer of APMs for the purpose of their destruction (Art.3, para.2). The Convention also obliges each state party "to destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control" no later than 10 years after entry into force of the Convention for the state party (Art.5, para.1).
A variety of mechanisms aimed at promoting these definitive provisions are contained in Articles 7 - 13. Briefly, Article 7 seeks to promote transparency by requiring reporting on a range of factors such as the status of programs for the conversion of APM production facilities, types and quantities of destroyed APM stocks, types and quantities of stocks retained for training, the status of required national implementation measures, and location and mine details of mined or suspected mined areas. Article 8 is the heart of the limited "verification" provisions of the Convention, providing a number of methods for clarification of compliance, including the possible use of "fact finding missions". Article 9 obliges each state party "to take all appropriate legal, administrative and other measures, including penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.". Article 10 provides guidance for the settlement of disputes. Article 11 indicates the purposes and frequency of meetings of the states parties; Article 12, the purposes and frequency of conferences of states parties for reviewing the Convention; and Article 13, mechanisms for amending the AP Mine Ban Convention.
Core compliance provisions: Observations on Articles 7, 8 and 9
The AP Mine Ban Convention relies for its success on the strengthening of the norm against the use of APMs. The emphasis of the Convention is on co-operation and trust-building, rather than on complex verification provisions characteristic of some other arms control treaties. The largely humanitarian character of the perceived need for control of this weapon system, as noted above, the perception of the APM as a defensive weapon, and the physical characteristics (ease of production, small size, concealability, pervasiveness) of APMs are all factors which contributed to this nature of the Convention. Successful compliance with the AP Mine Ban Convention and the strengthening of the ban norm will therefore depend on the success of a number of factors, both within and without the Convention.
The formal compliance provisions provided for in the Convention are, of course, central to this, even if they make up only a part of the modalities for compliance which can considered important. These formal compliance provisions are contained in Articles 7, 8 and 9.
Article 7, as noted above, requires reporting by states parties on a range of mines-related elements. A state party is obliged to provide its first reports 180 days after entry-into-force of the Convention for that state, and this information must be updated annually. As noted by Hajnoczi et al, "The purposes of these transparency measures are to: assess implementation of the provisions of the Convention by states parties; provide baseline data for use in assessing compliance; provide confidence-building measures to alleviate security concerns of other states parties; and assist in demining efforts." Trevor Findlay has pointed out that the AP Mine Ban Convention relies totally on self-reporting for its baseline data and subsequent data acquisition, and contains no mechanism for independent monitoring nor any provision for a permanent inspectorate, as is the case in more sophisticated verification systems. As there are no formal sanctions in the Convention for failure to comply with this obligation, the contribution which Article 7 makes to the overall success of the Convention will heavily depend on how well states parties actually fulfil this reporting obligation and on how much faith others put in the quality of the information provided.
The AP Mine Ban Convention contains no article specifically dedicated to verification of compliance. The closest the Convention comes to this is Article 8, entitled "Facilitation and Clarification of Compliance." This Article represents a compromise between those parties to the negotiation who felt that, as this was largely a humanitarian treaty and because of the nature of anti-personnel landmines, no traditional "verification" provisions of an intrusive kind were necessary or likely to prove feasible or affordable, and those who sought for substantial verification guarantees.
What Article 8 does do is outline the procedures whereby a state party or parties can seek clarification on suspected non-compliance. It provides for the possibility and processes for the sending of "fact-finding missions" in such circumstances. Article 8 also provides for general rules for meetings of the states parties to take further action to resolve the matter, "including the initiation of appropriate procedures in conformity with international law" (Art.8, para.19), if necessary. But the Convention provides for no standing bodies to deal with compliance matters, nor for any permanent organisation. Nor are any particular sanctions for non-compliance spelled out.
In commenting on this approach of the AP Mine Ban Convention, Findlay, in the most comprehensive analysis to date on the strengths and weaknesses of the Convention's verification provisions, has observed that, "Despite the treaty's subject matter, it takes a co-operative approach to clarifying compliance that is more reminiscent of human rights agreements and even environmental agreements like the Framework Convention on Climate Change and its Kyoto Protocol." Despite his concerns about the relative weakness of the AP Mine Ban Convention with regard to verification, Findlay also has observed that, "Overall, while not quite matching the on-site inspection Holy Grail of 'anytime, anywhere', the Ottawa Convention's fact-finding provisions are not too far from 'best practice' in current arms control." Hajnoczi et al understandably go further and argue that "[T]his clarification mechanism is a remarkable achievement since it goes well beyond what has been accepted in other IHL treaties, such as the 1949 Geneva Conventions or Additional Protocol I . . . It may be that the clarification mechanism will rarely, if ever, be used, but as with other fact-finding mechanisms, it will serve to encourage compliance."
In the end, the true measure of the contribution of Article 8 to compliance will be the willingness of states parties to make use of the provisions for clarification that it does offer. An early test for how seriously states parties intend to take Article 8 will be how quickly they move to operationalize this Article so that the requisite structures and methods be in place to facilitate the operation of Article 8 mechanisms, should the need arise (e.g. by assisting the Secretary-General of the UN in the definition, preparation and updating of a list of "qualified experts" - as the Secretary General is required to do under Art.8, para.9 - who could take part in "fact-finding" missions).
Aside from the possibility, as provided for under Article 8, that a Meeting of States Parties decide by two-thirds majority, and, following the report of a fact-finding mission to initiate "appropriate procedures in conformity with international law", it is up to states parties themselves, through national implementation measures required under Article 9, "to prevent or suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control." As with Articles 7 and 8, the contribution which Article 9 can make to compliance will depend on how quickly and effectively states parties enact the required implementing legislation (and report it under the requirements of Article 7) and enforce this legislation domestically.
Each of these core compliance-encouraging Articles of the AP Mine Ban Convention can thus be seen to have certain weaknesses. But they do not exist in isolation from each other. The overall contribution which Articles 7, 8, and 9 are likely to make can therefore probably best be judged not simply by what can be perceived from a traditional arms control perspective, but more accurately if they are looked at altogether as a re-enforcing set of measures. Thus, for example, the more fully and transparently states parties are encouraged to comply with Article 7 reporting requirements, and the more quickly and substantially states parties enact what is perceived to be strong national legislation, the less important the absence of highly intrusive verification provisions will be perceived to be.
Formal and informal Convention compliance promoting measures
In addition to these core compliance-encouraging provisions, it is important to look at other measures inherent in the Convention itself, and to informal processes which have emerged since "entry-into-force" in 1999 that also can be seen as contributing to promoting compliance with the Convention.
Meetings of States Parties, Review and Amendment Conferences
The previous major global attempt to deal with anti-personnel landmines, Protocol II of the 1980 Convention on Certain Conventional Weapons (CCW), had originally only one provision, which established that a review conference could be requested by a state party. It was such a request, presented by France in 1993, which finally precipitated the first review of the CCW in 1995. This was only one of the elements of the CCW which fed the perception of it as a relatively weak mechanism for dealing with so-called "inhumane" weapons. Drafters of the AP Mine Ban Convention were convinced that regular and frequent processes were necessary in order to review the status and operation of the Convention if it was to play a forceful role in the elimination of the AP mine threat to civilian populations. Hence, Article 12 provides for the first Review Conference to be held five years after the entry-into-force of the Convention, which means in the year 2004. Decisions at that Review Conference will be made as to the desired frequency of such Conferences thereafter. This provision for a Review Conference early in the life of the Convention will be an opportunity for an early examination of the degree of compliance to the Convention by its states parties. This should act as a subtle mechanism encouraging compliance, particularly when coupled with the annual meetings of the states parties and the intersessional programme of work described below, and as an early opportunity to take steps to strengthen the Convention if this is perceived as necessary.
Additionally, Article 13 allows for Amendment Conferences. As was the case with the negotiation of the AP Mine Ban Convention itself, decision-making on any amendments which are perceived as necessary does not depend on the consensus rule. Rather, the Convention can be amended by a majority vote of two-thirds of the states parties present and voting. This majority vote provision makes it conceivable that the AP Mine Ban Convention could be amended to strengthen its compliance provisions, should it be felt that the present provisions were proving insufficient. As noted, Review Conferences also offer such opportunities.
Perhaps most importantly in this early stage of the life of the AP Mine Ban Convention, the Convention provides for regular meetings of the states parties (Art. 11), beyond the five-year Review Conferences or Amendment Conferences, "in order to consider any matter with regard to the application or implementation of this Convention" (Art.11, para.1). Such matters include: the operation and status of the Convention; matters arising from the reports submitted under the provisions of the Convention; international co-operation and assistance in accordance with Art.6; the development of technologies to clear anti-personnel mines; submissions of states parties under Art.8, and decisions related to submissions of states parties under Art.5 ("destruction of anti-personnel mines in mined areas"). These meetings will take place annually in the period up to the first Review Conference, with the frequency thereafter to be decided at that Review Conference. The First Meeting of States Parties to the AP Mine Ban Convention took place in Maputo in May 1999, two months after its entry into force. The second will take place in Geneva in September 2000. In addition to these annual Meetings, "Special Meetings" can be called under the provisions of Article 8.
Such annual meetings will, in effect, provide mini-reviews of the performance of the Convention. As distinct from some other disarmament treaty review processes, where between review conferences work tends to be confined to procedural matters related to the next review conference, and where attempts to discuss matters of substance are often hotly resisted by some states, the AP Mine Ban Convention annual meetings are specifically designed as a means to monitor and measure the progress in the implementation of the Convention. Because of this annual process, it should be expected that the coming of such meetings will provide further pressures towards compliance by states parties as well as spurs towards the universalization of the Convention. There is already evidence of this in the first year's experience of the intersessional work programme.
Intersessional Work Programme
The compliance-enhancing function of mechanisms built into the AP Mine Ban Convention was further strengthened at the time of the First Meeting of States Parties in May 1999. That meeting resulted in a reiteration of, and recommitment to, the principles and purposes of the AP Mine Ban Convention, voiced in the "Maputo Declaration" in prose unusual for an international conference of this sort, as illustrated by the following quote: "We, the States Parties to the Convention . . ., together with signatory States, are gathered in Maputo, Mozambique, joined by international organizations and institutions and non-governmental organizations, to reaffirm our unwavering commitment to the total eradication of an insidious instrument of war and terror: anti-personnel mines."
In concrete terms, however, the most significant result of the Maputo Meeting was the creation of an "intersessional work programme" for states parties. 'Intersessional' in this context means between the annual Meetings of States Parties. This innovative step is a creative attempt to provide for additional means of holding states to their commitments under the AP Mine Ban Convention and for advancing progress on its underpinning goals. As a working mechanism, it is entirely without precedent in arms control and disarmament treaties. Norwegian diplomat Steffen Kongstad, a central actor in the "Ottawa process" and in the origins of the intersessional idea, has said the following about the intentions for this mechanism: "The intersessional work programme provides a forum for solving questions that may arise in the future. It is an instrument for addressing not only practical and technical implementation issues, but also a continuous political process for promoting universalization of, and adherence to, the Mine Ban Convention. The Convention provides the framework, and the intersessional work programme is the means to make it a reality."
The Maputo Declaration states the following intentions for the intersessional work programme: "This intersessional work will, inter alia, assist us in developing, with the United Nations, a global picture of priorities consistent with the obligations and time-frames contained within the Convention, including with regard to international co-operation and assistance." Further, it ". . . will enable us to focus and advance our mine action efforts and to measure progress made in achieving our objectives. This work will be based on our tradition of inclusivity, partnership, dialogue, openness and practical co-operation. In this regard, we invite all interested governments, international organizations and institutions and non-governmental organizations to join us in this task."
The mandate of the intersessional work programme agreed in Maputo includes "Facilitating and supporting the effective functioning of the Convention as an instrument of Mine Action by maintaining practical work at a high level and with particular emphasis on international co-operation amongst governments, International Organizations and NGOs." To do this, five intersessional Standing Committees of Experts (SCEs) were set up. These cover the key themes of mine action - mine clearance; victim assistance, socio-economic re-integration and mine awareness; stockpile destruction; and technologies for mine action - as well as one dedicated to the "General Status and Operation of the Convention".
It is much too early in the life of this process, and the Convention itself, to be able to make any definitive judgements about the contribution which the intersessional work programme will make to the implementation of the AP Land Mine Convention and to the achievement of the goals for the Convention as a whole. It is a subject deserving closer monitoring and much deeper analysis than is possible here. Nevertheless, it is possible to provide some illustrations of how this process is working, which give some indicators of its actual or potential contribution.
At this writing, two full rounds of each of these SCEs have taken place, beginning in September 1999. Because there is no standing organization or Secretariat for the AP Mine Ban Convention, each Standing Committee is co-chaired by two states parties, with two further states parties serving as co-rapporteurs. These sets of co-chairs and co-rapporteurs have been chosen in each case one from donor or Northern states and one from mine-affected or Southern states. Co-chairs have the responsibility for the development of the meetings, with the Geneva International Centre for Humanitarian Demining providing some facilitating services. Following the Second Meeting of States Parties, the current co-rapporteurs will assume the role of co-chairs and new co-rapporteurs will be chosen to work until the Third Meeting of States Parties. While there were economic arguments which were central in not establishing an organization for administering the Convention at the time of the Oslo negotiations (including the argument that resources could better be spent on mine action itself than on administrative structures), one of the essential points being made through this particular format for the SCEs is that leadership and responsibility for the successful implementation of the AP Mine Ban Convention rests firmly with the states parties themselves and is shared among them.
Starting from zero in Maputo, the work of the Standing Committees - which has consisted not only of the meetings in Geneva but also of a great deal of activity by states parties, UN agencies, and non-governmental organizations between meetings - has helped to advance thinking and action on all the areas of relevance to the Convention. Important features of the work of these Committees has been their informality, their openness, and their inclusivity. Thus, representatives of countries not yet party to the AP Mine Ban Convention are encouraged to participate as a means of engaging these countries in the life of the Convention. And NGOs have been fully included in the work of all of the Committees and have been instrumental in a number of cases in shaping the agenda and in focusing the deliberations.
The purpose of these Committees has not been to duplicate work undertaken elsewhere, but to survey what is being done in each of the areas, to identify gaps, and to suggest steps that need to be taken. For example, the SCE on Mine Clearance has reviewed approaches and action on such mine clearance topics as: international standards for mine clearance; guidelines for establishing conducive operating environments for mine clearers; the establishment of a database of mine action investments; the coordination of mine action among mine clearance actors; and reviewing progress on the implementation of recommendations on the development of indigenous mine action capabilities. The Standing Committee on Victim Assistance, Socio-economic Reintegration and Mine Awareness set up six "network groups" to work on issues such as the collection and dissemination of guidelines, data collection, mine awareness, and a portfolio of victim assistance projects for donor consideration. The work of this SCE has helped keep the focus on the human dimension of the APM issue. The Standing Committee on Stockpile Destruction has looked at factors important to early progress on this critical obligation under the Convention. In the spirit of transparency and confidence-building which the Convention has sought to promote, the meetings of this Standing Committee have served as a setting for states parties to come forward and announce particular steps which have been taken in destroying their APM stockpiles. The SCE on Technologies for Mine Action has sought to look at issues such as the needs of the end-users of mine action technologies, constraints as perceived by deminers and researchers, and promising developments from research. All of these SCEs have invited experts and practitioners in the different fields - whether governmental or non-governmental - to make presentations to and meet with the representatives of states parties and others attending the meetings. A common theme of all these SCEs has been the need for financial commitment by governments for the work in each area.
This intersessional work programme serves as a method for regular review of how well the Convention is being implemented and for the setting of tasks for improving performance. An emerging key to this more or less permanent review process is the SCE on the General Status and Operation of the Convention. This SCE deals with the more political dimensions of Convention implementation. At its meetings in January and May 2000, the co-chairs, Canada and South Africa, guided a process whereby the performance to date and issues arising from different Articles of the AP Mine Ban Convention were reviewed, in addition to fulfilling its function as a kind of "prepcom" for the Second Meeting of States Parties.
A few examples will illustrate the growing role of the SCE on Status and Operation of the Convention in providing timely and focused monitoring of Convention compliance and a forum for the clarification of emerging issues in the implementation of the Convention. During the first meeting in January 2000, in summing up its examination of progress on Article 7 ("Transparency Measures") submissions, for example, the Report of the meeting noted the following: "It was reported that 31 states have already submitted their report on their implementation of the Convention (Article 7) and that 34 states are late. The co-chairs reported that they carried out together with interested states demarches to numerous states parties to encourage them to take whatever steps are necessary to submit reports in a timely manner. . . . It was recommended that co-chairs of the SCE on the General Status and Operation of the Convention continue to co-ordinate joint actions to encourage compliance with Article 7." At the May meeting, among other Article 7 considerations, progress on reporting since January was updated and a recommendation was made on a reporting format for states to use for including "other relevant matters" in the reports, such as on assistance provided for the care and rehabilitation, and social and economic reintegration of, of mine victims.
The May SCE followed up on the discussion in January on Article 8 ("Facilitation and Clarification of Compliance") by recommending that "for the purposes of the effective implementation of the Convention and to ensure clarity on the composition and operation of the fact-finding mission, expert work should be conducted prior to the next meeting . . . to come up with a comprehensive report on procedural issues relevant to the implementation of Article 8." On Article 9 ("National Implementation Measures"), in January it was recommended that "in order to promote greater understanding of the different approaches taken with respect to national implementation measures that states parties be encouraged to provide, to the May 2000 meeting . . ., more information on the nature of their particular approaches to meeting obligations under Article 9." In May, a number of countries did so, but it was also noted that there were still many states parties that had not yet completed the required national legislation.
In January, the International Campaign to Ban Landmines (ICBL), as a full participant in the General Status and Operation of the Convention SCE meeting, raised a range of questions on a number of Convention articles, including Article 2 ("Definitions") asking ". . . States Parties to reconfirm that according to the definitions in the treaty, antivehicle mines (AVMs) equipped with antihandling devices (AHDs) that function like antipersonnel mines - that explode from an unintentional act - are banned by the treaty." Further discussions of clarification on this contentious issue, and on others raised by the ICBL and the International Committee of the Red Cross, took place in the May meeting. This SCE has also occupied itself with monitoring the pace of ratifications of the Convention by signatory states and has suggested strategies for bringing other states into the Convention. It has served as the arena for receiving reports on the work of the other SCEs and discussing the implications of this work for particular obligations under the Convention. It has also been a place for evaluating the SCE process so far, and for making suggestions for adaptations to be considered by the Second Meeting of States Parties. The agenda for the Second Meeting has also been discussed and plans were set in motion for that Meeting.
After this first year's experience with the intersessional process, some conclusions have already been drawn as to adjustments which seem desirable. It is likely, for example, that the number of SCEs will be reduced to four, with technology being folded into the three other mine action Standing Committees, and that the meetings will be reduced in the number of days of duration, with the four remaining Standing Committees meeting all within one week on two separate occasions during the period between the Second and the Third Meetings of States Parties. Recommendations to this effect will be made to the Second Meeting of States Parties in September 2000 for decision. It is hoped that these changes will increase the number of states parties involved in this intersessional work, particularly mine-affected countries. The first year's experience also indicates that, although there were strong arguments against having a Secretariat or organization for the Convention, the efficiency of the implementation of the Convention may be enhanced by finding additional ways to provide the sort of executive functions normally provided by a Secretariat. The ongoing reflection on necessary adjustments based on the first year's experience further demonstrates the degree to which states parties are determined that the work of the Convention remain flexible and to maintain the AP Mine Ban Convention as an instrument for positive mine action rather than as an end in itself.
The Standing Committees are informal processes. But the work they accomplish in this early period of the life of the AP Mine Ban Convention will provide the data and set the agenda for the official occasions for assessing the implementation of the Convention, that is, the annual meetings of states parties and the first review conference in 2004. In addition, there seems to be little doubt that participation so far in this intersessional process has already had an impact in the application of the Convention on mine action within some participating countries. Whether informal or not, the intersessional work programme is already an important element in facilitating the pull to compliance.
The compliance-influencing function of NGOs
A number of ways in which the AP Mine Ban Convention differs from more traditional arms control and disarmament processes have been noted in this paper. One significant area where this is certainly the case is in the involvement of non-governmental organizations. Although the debate continues over the degree of importance of NGOs in the achievement of the AP Mine Ban Convention, it seems beyond question that they were central actors in the process - from awareness-building about the APM crisis to the successful negotiation of the Convention. The "Ottawa Process" leading up to the negotiation of the AP Mine Ban Convention broke new ground in the involvement of NGOs in an international arms-related negotiation process. This engagement resulted in Convention language which, unlike any other arms control and disarmament agreement, explicitly recognizes the importance of NGOs in the achievement of the goals of the Convention and therefore outlines ways in which they should be included in its ongoing mechanisms.
With the entry-into-force of the Convention, NGOs are playing important roles towards its successful implementation. This can be seen in a number of ways. One is in working towards the universalization of the Convention. Clearly, the larger the number of countries joining the AP Mine Ban Convention and adhering to its provisions, the more quickly the principles enshrined in it will move towards being considered customary international law and effective action can be taken to clear mines and meet the needs of those victimized by mines. NGOs in the months and years ahead can be expected to continue to work towards the universalization of the Convention, as they did for its achievement and for its early entry-into-force. They will do this, as they have done in the past, through activities such as: meetings aimed at addressing the special concerns and needs of particular regions or countries; supporting the development of new campaigns or the strengthening of existing ones in countries so far outside the Convention; regional seminars such as those sponsored by the International Committee of the Red Cross designed to address issues of the military utility of APMs; activities aimed at supporting the early ratification of the AP Mine Ban Convention by signatory states; and by coordinating their universalization strategies with governments, as can be seen in and around the work of the SCE on General Status and Operation of the Convention.
NGOs also have a role to play in supporting de facto universal adherence to the principles of the AP Mine Ban Convention. They do this in part by publicly condemning and stigmatising any evidence of breach of the AP Mine Ban Convention by any actor - state or non-state - inside or outside the Convention, as has been the case over APM use in Angola, Kosovo, and Chechnya. They will also do it by seeking clarification of the interpretation and application by states parties of particular elements of the Convention, as has already been the case in their work inside the SCE on General Status and Organization of the Convention.
In the absence of highly intrusive verification procedures, the compliance monitoring function of NGOs in the implementation of the Convention takes on special importance. As noted earlier, the modest compliance mechanisms of the Convention emphasize the role of transparency and confidence-building measures, thus representing a potential limitation of the AP Mine Ban Convention. "Civil society", therefore, has an important role to play in assisting in the monitoring and public reporting of the actual compliance of states parties, despite the fact that NGOs have not been given any formal role in triggering the "request for clarification"-related provisions of the Convention.
"Whistle blowing" and the stigmatizing of non-compliant behaviour by state and non-state actors alike, as well as the issuing of Convention compliance performance measures, will therefore continue to be important contributions of NGOs in ensuring state compliance with the intentions of the AP Mine Ban Convention. It is to this end that the Landmine Monitor Project of the International Campaign to Ban Landmines takes on special importance. Landmine Monitor's annual reports provide information on every country in the world on such elements as: levels of compliance with the ban norm on landmine use, development, production, transfer and stockpiling; the degree of stockpile destruction; whether a state party has passed the national implementing legislation required by the Convention and an assessment of that legislation; the levels of funding for humanitarian mine action; measures of humanitarian mine action and survivor assistance needs, and assessments of programmes undertaken. To accomplish this, the Landmine Monitor research team currently consists of some 115 researchers based in 85 countries.
Steve Goose and Mary Wareham of Human Rights Watch, a founder organization of the International Campaign to Ban Landmines and of the Landmine Monitor Project, have noted that "Landmine Monitor is not a technical verification system or a formal inspection regime. It is an effort by civil society to hold governments accountable to the obligations that they have taken on with regard to APMs; this is done through extensive collection, analysis and distribution of information that is publicly available. Landmine Monitor intends to complement the states parties reporting required under Article 7 of the AP Mine Ban Convention. It was created in the spirit of Article 7 and reflects the shared view that transparency and co-operation are essential elements to the successful elimination of APMs. But it is also recognition that there is a need for independent reporting and evaluation." Vines and Thompson have observed that "The establishment of a civil society-based monitoring network for an international agreement is unprecedented. While NGOs and research institutes have for years monitored compliance with treaties, individually and informally, this is the first attempt to create a systematic, global, NGO monitoring network." The first Landmine Monitor Report was presented to delegates to the First Meeting of States Parties to the Convention in Maputo in May 1999 as an "early warning" of what can be expected from NGOs in this monitoring role in the years ahead. Despite some understandable flaws in so ambitious a project achieved in a remarkably short period of time, it has been very widely praised for the picture of the state of the APM landscape of issues which it presents. Landmine Monitor's interim updates also provide an important source of ongoing information on the status of the Convention. For example, one such update usefully reported at the end of 1999 that, while some 19 million APMs had been destroyed from the arsenals of at least 50 nations, the actual total number of stockpiled mines was far greater than previously thought, with an estimated total of at least 250 million in the arsenals of at least 104 nations. This data was helpful to the deliberations of the first meeting of the SCE on Stockpile Destruction in December 1999. The second Landmine Monitor Report will appear at the time of the Second Meeting of States Parties in September 2000, and the information which it contains, will be the best composite assessment available at that date as to the status of the Convention eighteen months into its life.
Landmine Monitor and other NGO reporting on Convention compliance issues will not replace an intrusive verification system, the lack of which some have used to criticize the AP Mine Ban Convention as bad arms control. However, taken in combination with the kinds of assessment opportunities which the intersessional SCE and annual meeting processes afford, the work being done by the SCEs to develop databases and reporting mechanisms which increase accuracy and build confidence, and the reporting work of individual governments, international agencies this important monitoring activity taken by NGOs, does help to fill this gap. Evidence that the application of technologies currently available can help to monitor mine clearance, possible re-mining and stockpile destruction should further help to compensate for the absence of an institutional verification system.
Of equal importance to the successful implementation of the Convention's ban provisions will be the effectiveness of programmes set in place to clear the millions of mines already laid, to protect civilian populations from existing mines and to deal with the needs of individuals and regions affected by the use of mines in war. The AP Mine Ban Convention (see obligations under Article 6) is unique in the holistic and explicit way in which it takes into account the importance of such action linked to an arms ban itself.
It was primarily organizations with long experience in the humanitarian and mine clearance dimensions of mine work which launched the international effort to ban landmines. It is in the areas of mine clearance, mine awareness and victim assistance that NGOs are likely to find their greatest role in this Convention implementation phase. As major implementers of such programmes themselves, NGOs will continue to be affected by the allocation of resources by governments and international organizations. But it is exactly in these areas where NGOs are in a position to play important standard-setting and policy shaping roles in their relationships with governments and the mine-related bodies inside the UN system. They are also in a position to influence the nature and levels of financing, particularly at a time when guaranteeing the effective allocation of these resources and sustaining international commitment to providing them for as long as it takes to get the job done present especially important challenges. As full participants in the relevant areas of the intersessional work programme, through analysis in the Landmine Monitor Report, and in a variety of other ways, NGOs are making an important contribution in this respect.
New opportunities for direct engagement and partnership by NGOs with official institutions are emerging, in part because of the persistence of NGOs themselves in encouraging this. Some examples of current work illustrate this. For example, the insistence by experienced demining NGOs on the basic requirement for accurate data about the realities of the landmine pollution problem has resulted in an important partnership between NGOs, the UN Mine Action Service, and donors. As noted in a 1999 UN publication, "The Global Landmine Survey Initiative provides the latest illustration of how far the United Nations and NGOs have moved towards working closely together in a spirit of trust and mutual respect. In a unique co-operative effort, NGOs, UNMAS and key donors have established an institutional mechanism specifically designed to facilitate the co-ordination of resources and expertise required to implement Level One Surveys world-wide." The ICBL is now included in the UN's Steering Committee on Mine Action, which promotes co-ordination and integration of mine-related activities in the UN system. The Geneva International Centre for Humanitarian Demining, a new body established at Swiss initiative, will offer a broad range of services relevant to the mine action challenges ahead, including to the AP Mine Ban Convention's intersessional work programme. It has an Advisory Board made up of international humanitarian mine-action experts from the NGO world. NGOs have also been key players in establishing the agendas of the SCEs on Mine Clearance and Victim Assistance and in carrying out important elements of work undertaken by these SCEs, as noted earlier.
The perceived key role for NGOs in the successful implementation of the AP Mine Ban Convention was built into the very structure of the First Meeting of States Parties in Maputo. This is a pioneering enterprise for a disarmament treaty. The intersessional process is offering an important mechanism for strengthening the positive trilateral relationship between NGOs, governments, and the UN system in mine action. Handled creatively by all parties, this positive feedback potential could provide considerable momentum to the strengthening of the global mine ban norm and to the development of principled mine action programmes. Because it is a new process, there is open space at the moment for NGOs to get involved at the ground level. Its emphasis on inclusivity offers NGOs a tremendous opportunity to help shape the agenda for international mine action and stimulate its pace. Its emphasis on openness gives national and local NGOs another means by which to hold their own governments accountable and for the independent monitoring role of NGOs to be brought to bear.
While the degree of partnership as exemplified in government-financed but NGO-implemented mine action programmes (including, to a considerable degree at present, the Landmine Monitor project) may present some challenges to the true independence of NGOs and the long-term sustainability of their engagement at present levels, there is no doubt that NGOs must be taken into account as significant actors in the pull towards compliance with the provisions and intentions of the AP Mine Ban Convention.
Looking ahead: arguments for cautious optimism
The real job of achieving a mine free world has only just begun. The adequacy of the contribution of the AP Mine Ban Convention to this end will only be able to be judged over time. This paper has sought to show that there are a number of factors - in the provisions contained in the Convention itself, in the mechanisms which have been put in place since its entry into force, in the acknowledged contributing roles of a range of actors - which, in combination, can contribute positively to the pull towards compliance with the obligations of the Convention and to enhancing the prospects for its long-term goals. At this writing the news is positive on a number of scores. Currently 95 countries have deposited their instruments of ratification with the Secretary General of the United Nations. For a treaty that was signed only two and a half years ago, this is an extremely good record. Similarly, there has been no convincing evidence, since the First Meeting of States Parties in May 1999, of violations by states parties themselves of core Convention prohibitions on use, production, and transfer. Fifty-five nations have now destroyed more than 20 million APMs and 20 states parties have already completed their obligation to eliminate their APM stockpiles. Globally, production and use of APMs appears to be on the wane. Exports of APMs have halted nearly completely and, hence, a de facto global ban on the transfer of APMs seems to be in place. Resources for mine clearance and victim assistance are on the rise, while the number of mine victims appears to be declining.
Of crucial importance, however, to the long-term success of the Convention will be continuing evidence in the coming few years of the de facto, if not de jure, universalization of the mine ban by states. There is evidence of the strengthening of the taboo against mine usage embodied in the AP Mine Ban Convention, as many states still outside it acknowledge the importance of a ban and bring their own behaviour into line with it. The progressive delegitimizing of this weapons system as symbolized by the AP Mine Ban Convention makes its perceived utility, by state and non-state actors alike, increasingly less attractive. But it is important that the early momentum of the Convention towards universalization in practice be sustained. There is still a long way to go. For example, since the start of 1999, APM use has been detected in some 13 of the violent conflicts in different parts of the world. There is evidence of use by both sides in the conflict in Angola (although the government of Angola is a signatory to the AP Mine Ban Convention), in Kosovo by non-signatory Yugoslavia and by Kosovar Albanian forces, and in Chechnya, including the use of air-dropped APMs by Russia, to give a few examples. There are allegations of use by a number of other countries, including some signatory states. Forty-two signatory states have yet to ratify the Convention and 56 remain outside it, including major countries like the US, China, Russia, India and Pakistan.
Continued good progress towards de facto, if not de jure, state adherence to the Convention will not only speed the achievement of a real difference for civilians on the ground; but it will also be essential to the prevention of a creeping dualism in standards vis-à-vis APMs, a development which would slowly, over time, undermine this forceful ban norm, just as the justifications given for the continued possession of nuclear weapons by the few nuclear powers can be seen to threaten the nuclear non-proliferation norm provided by the Nuclear Non-proliferation Treaty. Critical to this will also be the degree of state party adherence to Article 7 and Article 9 obligations, and the degree to which there is actual willingness to use the clarification provisions of Article 8 in cases of suspected violations of the Convention.
The growth of APM use (and mis-use), the human consequences of which prompted the pressure for an AP mine ban, occurred in part as a feature of the changing character of armed conflict from inter-state to primarily intra-state in the post-Cold War period. Inherent in such conflicts are armed groups or so-called armed "non-state" actors who use APMs. A recent paper by the Working Group on Non-state Actors of the International Campaign to Ban Landmines, for example, has indicated reported use of APMs by non-state actors in some 45 countries around the world in the last decade. The use of AP mines by such groups is, therefore, an important part of the global mine problem and represents a second significant dimension of the universalization challenge in the years ahead.
On the positive side, as the mine ban prohibitions on production, transfer, use and stockpiling are progressively applied globally, the availability of APMs to such groups can be expected to be reduced. In addition, the growing recognition of the mine ban norm as shaping what is perceived as acceptable actor behaviour can also be expected to influence non-state actors. On this phenomenon, Richard Price has argued that, "[W]hile compliance with the mines taboo may be undermined by the fact that many who use mines are not states (and thus, not parties to the treaty), most of those actors are not immune from incentives to comply based on recognition. The international community has withheld diplomatic recognition and all of its benefits from perpetrators of war crimes such as genocide and rape; so, too, could compliance with the landmines taboo be deemed part of the portfolio of necessary practices to be recognized as a legitimate member of the international community and to avoid isolation as a pariah.
The problems of violation of international humanitarian and human rights standards in situations of armed conflict by non-state actors, and therefore how to promote respect for international law and principles by such groups, are not unique to the use of APMs. The non-state actor dilemma facing international attempts to control the proliferation and use of AP mines is part of a more general issue, which is becoming increasingly recognized as one requiring global attention. The arms control dimension of this problem will become increasingly apparent as the international debate on small arms and light weapons management grows. The AP Mine Ban Convention is an agreement among states. With the possible exception of Article 9, which requires strong domestic legislation to "prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control," the Convention does not directly address the issue of non-state actor use. But supporters and critics of the Convention alike have correctly pointed out that any truly universal mine ban norm will have to have successfully addressed the issue of non-state actors in some way. So far, much of the pressure for this has come from NGOs. For example, the Working-Group on Non-state Actors of the ICBL has elaborated a variety of approaches by which non-state actors "may be enabled or persuaded to participate in a more inclusive, complementary landmine ban process", such as:
- dialogue with non-state actors to facilitate understanding of the destructive impact of landmines;
- education on legal instruments relevant to non-state actor use of landmines, including customary international humanitarian law;
- facilitation of unilateral declarations of renunciation of anti-personnel mines by non-state actors; and
- encouragement of agreements between states and non-state actors on the non-use of landmines.
In some cases, actual agreements with and by non-state groups on the non-use of APMs are reported to have been brokered and further efforts are being made in this direction.
While so far this issue has been something of an orphan in the mine ban process, as the Convention takes hold and its real benefits begin to be felt, attention by governments, international organisations, and NGOs on this problem area can be expected to increase. True universalization of the AP mine ban norm will depend on it.
As the implementation phase of the Convention continues, other issues requiring attention will be raised. Note was been taken earlier in this paper of the important question of how states parties are interpreting the application of the Convention to their own arsenals of anti-vehicle mines with sensitive anti-handling devices, for example. Other issues which have been raised already by the ICBL include the need for a common interpretation of the term "assist" in the Article 1 prohibitions in relation to the use of APMs by non-signatories in joint operations with states parties and the stockpiling or transit of APMs by non-signatories on the territory of state parties. Also raised has been the possible problem of differing interpretations of states parties on the Article 3 exception allowing for retention of APMs in the "minimum number absolutely necessary" for the development of and training in mine detection, mine clearance, or mine detection destruction techniques. The fact that these kinds of issues have been raised so early in the life of the Convention is a sign of its health, rather than a threat. The long-term affect of such issues will depend on how vigorously they are pursued and, like every other aspect, how strong the political will is to prevent them from undermining the perceived legitimacy of the Convention over time.
The AP Mine Ban Convention developed as a reaction to the perceived inadequacy of Protocol II of the Convention on Certain Conventional Weapons, even in its amended form. To the extent that states not currently party to the Convention continue to see the weaker Amended Protocol II as an acceptable alternative to the Convention, this could over time undermine the universalization of the mine ban norm. However, Amended Protocol II and the CCW as a whole need not necessarily have this effect. Rather, approached creatively, the CCW and the AP Mine Ban Convention can serve to complement and strengthen each other. States joining the Convention could, as has been the fact in a number of cases, join the CCW at the same time, if they have not already done so. As the CCW itself approaches universal membership, then joined to the AP Mine Ban Convention will be the important elements in amended Protocol II which are not repeated in the Convention, namely the application of its provisions to internal conflict, the responsibility on the users of mines for their removal, the provisions covering the use and transfer of anti-vehicle mines, and the protection provisions for international humanitarian workers. Increasing membership in the CCW will also have the additional effect of strengthening the CCW mechanism overall, the CCW still being the only international humanitarian law-based instrument for the specific regulation of existing conventional weapons and for responding to the emergence of future weapons. The CCW offers, for example, an important avenue for developing strengthened provisions aimed at protecting civilian populations on weapons systems seen, in some cases, to have similar effects to anti-personnel mines and which are certainly a part of the general unexploded ordnance (UXO) problem in post-war situations, i.e. anti-vehicle mines and cluster munitions.
This paper has argued for a holistic perspective on the AP Mine Ban Convention. By the first Review Conference in 2004, it should be possible to give a reasonably good judgement on whether it is doing its job or not. In this Convention, the negotiators had to come to terms with the disarmament requirements for dealing with an issue clearly representing a humanitarian crisis. In this, they produced a creative and innovative response. Similar challenges are with us on other issues. To judge this Convention now only by whether or not it measures up in traditional arms control and disarmament terms is to misunderstand both its purposes and its potential. What it should be judged by - after it has been given a fair chance to work - is how well its provisions, including the disarmament ones, actually lead to the achievement of its humanitarian goals. The commitment, determination, and willingness to innovate of all actors involved will, of course, be the truly critical variable in this.
