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Email this citationCIAO DATE: 3/99
A Review of the Ottawa Process to Ban Landmines
November 1997
Executive Summary
In September 1997, 107 countries met for three weeks in Oslo to agree the final draft of a treaty to ban anti-personnel mines (APMs). The negotiations represent the penultimate stage of the Ottawa Process, an effort of like-minded states and NGOs to establish a moral norm against the use of APMs. The final stage will take place in Ottawa in December 1997 when States Parties will be invited to sign the Treaty. This paper both summarises the process of these negotiations and the text of the agreed Treaty.
One innovation of the Ottawa Process was that it portrayed the issue in terms of unacceptable humanitarian consequences. This approach successfully reduced the political efficacy of traditional military utility arguments in favour of the continued use of APMs, although such arguments have also been increasingly challenged in their own right.
The Process also proved to be an expedient and widely acceptable alternative to the Geneva Conference on Disarmament, although initially certain states such as the US argued that the CD was a more appropriate forum on the grounds of its universal membership.
The Oslo meeting achieved its purpose in finalising the treaty text although the late participation of the United States challenged, to a degree, the criteria by which success would be measured. The final Treaty text did not accomodate certain US concerns: that there be exceptions (regarding the Korean peninsular); that the definition of banned mines be narrower; and that there be an option to defer entry into force by 9 years. Given the resultant US rejection of the text, some news sources announced that ‘consensus has not been reached’ while others hailed the meeting a success in its ability to withstand the pressure exerted by the intransigent position of the US.
Since the agreement of the treaty text in Oslo two of the US’s most vocal supporters—Australia and Japan—have announced their intentions to sign the treaty in December, as has Russia. These developments undermine both the practical and theoretical bases for the US position and reinforce the impression that military objections to a ban can be overridden by other political imperatives.
The final Treaty text is stronger than any previous prohibition on APMs. State parties undertake “never under any circumstances to: use,....develop, produce, otherwise acquire,retain or transfer...APMs” and to destroy and APMs in their possession.
Despite the conclusion of a widely acceptable treaty, however, challenges to a comprehensive ban still remain. There are shortcomings in the text and the treaty is far from achieving universal signature, ratification and implementation. Potential shortcomings of the Treaty include its definition of an APM which excludes those mines which could be detonated by a ‘vehicle’ such as a bicycle. The definition is also not based on the function of the mine, and therefore does not include certain modified mines, even where these modifications are easily reversible in the field. Finally, the Treaty allows for the retention and transfer of an unspecified “minimum” number of mines for the development and training of mine clearance techniques.
Non-governmental organisations have played an important role in the development of the treaty, highlighted by the announcement to confer the Nobel Peace Prize to the International Campaign to Ban Landmines (ICBL). One of the principal goals of the ongoing campaign will be to achieve ratification of the Treaty by 40 countries by 2000, after which the Treaty will enter into force. In addition, NGOs will continue to press for ethical guidelines for mine-clearance, emphasizing low-technology humanitarian de-mining programmes over the development of high-technology alternatives in the North.
I. History of the Issue
1.1 History of the Ottawa Process
There is a growing worldwide movement to ban anti-personnel landmines which has emerged from diplomatic initiative, the efforts of non-governmental organizations (NGOs) and increased public awareness. The most significant recent political development in this movement has been the initiation of the Ottawa Process—so-called because of the unexpected announcement by Canada’s Foreign Minister Lloyd Axworthy at the October 1996 Ottawa Conference that states present were invited to return in December of 1997 for a treaty signing.
The Ottawa Process emerged from the second review conference of the 1980 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), which includes a section devoted mines (Protocol II). States disillusioned with the progress of this review conference (held in Geneva, May 1996) and its predecessor (held in Vienna, October 1995) began independent conversations with NGOs, which evolved into a conference held by the Canadian government in Ottawa 3-5 October 1996. These counties formed the nucleus of the “core group” of the Ottawa Process, which aims to establish a moral norm on APMs through a comprehensive ban on use, production, transfer and the elimination of stockpiles. (The core group initially included Austria, Belgium, Canada, Germany, Ireland, Mexico, Norway, Philippines, South Africa, and Switzerland.)
The Ottawa Process represents an initiative for independent-track diplomacy among states committed to a more immediate, stronger ban on export, production, deployment, and stockpiling. It was designed to attract states’ participation on the basis of a “highest common factor, not the lowest common denominator.” States self-selected to participate in the Ottawa conference based on their ability to agree to a draft declaration, which called on states to work together to ensure “the earliest possible conclusion of a legally-binding international agreement to ban anti-personnel mines.” This model for participation continued through the successive meetings of the Process.
Four diplomatic meetings were held subsequent to the October 1996 Ottawa conference: a February meeting in Vienna on the treaty text, an April ‘experts’ meeting in Bonn on verification issues, a general meeting to review the text in June in Brussels, and a three week negotiating session to finalise the treaty text held in Oslo in September.
Austria proposed a draft treaty in Ottawa, which was considered during the two day meeting in Vienna. The International Camapaign to Ban Landmines had also proposed a draft treaty in January, from which a number of changes to the treaty seem to have been drawn. A significant feature of the Vienna Conference was the level of participation. Whereas 50 countries were signatories to the original Ottawa declaration, 111 were present in Vienna either as observers or participants. The primary issue to emerge from Vienna was the difficulty in constructing a verification regime for APMs, although definition and exemptions emerged as areas for attention.
The Bonn experts meeting on verification led to the third draft of the Austrian text, which was ultimately forwarded to the Oslo negotiations. The third draft considerably increases the reporting obligations of States Parties to include stockpiled and retained mines, in addition to progress on demining programs. The verification article changed from “Verification of compliance”, expressed in the language of arms control challenge inspections, to “Facilitation and clarification of compliance”, which had a decidedly more cooperative tone though it too allowed for fact finding missions.
The Brussels conference had been decided in Ottawa in October 1996, but by the time it took place clear goals for the meeting had not been established. The initial chair of the Belgian meeting, Ambassador Guillaume, resigned two weeks before its commencement after several months of criticism of his reluctance to involve NGOs and to communicate with other core group governments. His intention seemed to be to establish general agreement on the text without opening it up for discussion. Ultimately, the Brussels Conference reviewed the third draft of proposed treaty and identified areas for further discussion; the latter may have informed the chair of the Oslo conference regarding which working groups to establish.
1.2 The military utility of APMs
Jane’s Defence 1997 claims that “Landmines are probably one of the major battlefield ‘force multipliers’ and will almost certainly continue to be a significant battlefield asset — at least for the next century”. In its review of the future of mine warfare, Jane’s points to new technologies which integrate mines into an ‘Intelligent Battlefield’ with realtime digitised information gathering. Though it laments “to lose [landmine] capability, or have it reduced because of the political unacceptability of certain categories of mines, would be a disaster for many countries”, a number of types of mines not covered by the treaty, particularly anti-helicopter mines, would play a more significant role in these scenarios anyway.
An oft-cited figure among those working for a ban is that every 22 minutes around the world someone is killed or maimed by and anti-personnel mine. Anti-personnel mines have become the humanitarian problem that they are today because primarily because they are inexpensive and, in many regions, widely available. Traditional military doctrine argues that anti-personnel mines are used to channel opposition forces in battle, to protect borders and perimeters, e.g. of camps, airstrips, and to protect anti-tank mines from removal. It has been shown, in the Gulf War for example, that mines are not terribly effective at channelling opposition forces due to sophisticated battlefield mine clearance techniques [see also Chris Smith]. Borders can be protected by other means—it was rumored in Oslo, for example, that the Finnish army would renounce the use of mines in return for 18 new fighter helicopters. Finally, anti-tank mines can be protected by a number of different anti-handling devices, in addition to anti-personnel mines—anti-tank mines with anti-handling devices are permitted under the treaty. (Of course, an anti-tank mine with an anti-handling device can represent the same risk to civilians as an anti-personnel mine.)
A number of organizations working towards a ban have published work challenging the military utility of APMs. Perhaps the most well know of these is the International Committee of the Red Cross’ Anti-personnel Landmines: Friend or Foe? a review of 26 conflicts by eight military leaders, which concludes that it is virtually impossible to use APMs in accordance with international law. This study, which was published March 1996, had garnered the endorsement of 57 military leaders from 19 countries as of 12 May 1997. The UK Working Group on Landmines produced the discussion paper, “Anti-personnel Landmines: Utility and Proportionality”, arguing that APMs violate the unwritten but commonly accepted rules for the conduct of war. An August 1997 report by Demilitarization for Democracy, a US-based NGO, entitled “Exploding the Landmine Myth in Korea” challenged the use of mines in Pentagon war simulations. Using unnamed Pentagon sources, it argues that the assumptions behind the Pentagon’s model for an invasion of South Korea were unrealistic, including, for example, the assertion that bad weather conditions would affect one side but not the other.
A number of factors seem to affect the parameters of the debate around the military utility of APMs. From the outset, the ICBL argued that APMs were a humanitarian, not an arms control issue. Nonetheless, the US Campaign, which was closely allied to the ICBL coordinator, often invoked a letter from 13 retired US Generals that argued against the military utility of mines.
1. 3 The Ottawa Process and the Conference on Disarmament
Critics, including the US, have argued that the Ottawa Process is inadequate because it does not include the major exporters of APMs—Russia and China. (Russia’s policy has since changed to support the treaty. Critics’ rhetoric has changed as well, to elevate Pakistan and India to ‘major problem states’.) They argue that an international agreement among like-minded states with similar national legislation does not genuinely advance the issue and have proposed the Geneva Conference on Disarmament (CD) as an alternative. Most states in favour of the Ottawa Process, including Canada itself, officially state that the Ottawa Process and the CD are not mutually exclusive means to the same end. In light of the broad participation in Oslo negotiations, proponents of a ban discussed the CD in terms of ‘universalising’ the Ottawa Process—securing the signatures of China and other ‘major problem states’. Less ambitious sources suggested codifying the de facto export ban, observed over the past three years even by China, through the CD.
Non-governmental organisations were the most visible, strongest critics of the CD, which was seen as an excessively cumbersome venue to discuss an issue which had garnered considerable momentum. Because countries such as China are present in the CD and capable of vetoing the consensus-governed body, it was argued that promoting the CD is a thinly veiled attempt to avoid dealing with a ban. (It has been further argued that states which are genuinely interested in a broadly adhered to agreement would be putting their efforts into signatories and ratifications of the 1996 revised Protocol II of the CCW.)
II. The political context of the Oslo Negotiations
2.1 Meeting structure
Two features of the Oslo Conference’s structure allowed it to function in a way that limited changes to the text: the rules of procedure and the chair. Draft rules of procedures were proposed in Brussels and adopted without much controversy at the outset of the Oslo conference. Most significantly, they allowed for two-thirds majority voting on all matters of substance. This put those in favour of the Austrian text in a relatively advantageous position: detractors would need to garner the support of two-thirds present for changes while the preservation of the proposed language required only one-third of the participants plus one.
The chair likewise was carefully chosen to maximize the position of the core group states. Ambassador Selebi of South Africa had not only established himself as a competent diplomat in Geneva, but represented a country whose position would not be particularly vulnerable to pressure from the US, France and the UK (whose positions were not in favour of the Ottawa Process at the time of his proposal). Selebi proved to be a valuable asset to the ICBL and ICRC in the course of the negotiations, informing them of diplomatic developments, which occurred behind closed doors during periods of official recess. Without access to such information, NGOs would not have been able to lobby diplomats so successfully. In at least one instance, NGOs were able to inform many African diplomats representing staunchly pro-ban states of the US bilateral efforts to weaken the treaty; hearing such information from campaigners discredited the US position and tactics.
2.2. The US presence
The major factor distinguishing Oslo from previous Ottawa Process meetings was the involvement of the United States as a full participant, not as an observer. As with previous meetings, a nation’s status in Oslo was self-selected based on its ability to endorse the goals of the cause. The Oslo Conference specifically required countries to sign the Brussels Declaration to participate. (By August 106 countries had signed the Declaration, only 89 participated in Oslo—a number of those absent are small island nations with no APMs which can be expected to sign in Ottawa.) The momentum of the Process had begun to attract the participation of a broader number of states, not all of which were concerned with goals of the core group—establishing a moral norm against the use of the APMs—but which were concerned about the public relations liabilities of not participating. Australia provides the conspicuous example of a state that chose full participant status in Brussels though in most respects its national policy appeared against a ban. Australia may have legitimized the strategy of participating in the Ottawa Process to water-down the treaty, despite the call for participation based on adherence to the goal for a ban. Several countries subsequently joined the Oslo meeting, including the US and Japan (which announced its decision to sign 20 October 1997), appearing to participate in bad faith.
The US announced its decision to join in late summer. The announcement occurred after an official policy review within the Pentagon, which concluded that US armed forces could not relinquish the use of APMs. The Brussels Conference may have contributed to the US decision to participate in the absence of a policy shift. There the US head of delegation, Ted McNamara, did not attend the plenary sessions but held concurrent bilateral meetings with a number of states, including members of the core group, and France and the UK (whose policies at that stage had just changed, and whom at the Brussels meeting became members of the core group). These meetings were no doubt to determine the level of flexibility in the treaty text for the types of exceptions the US would seek as a participant: South Korea, smart mines, transition periods, etc.
US participation particularly was sought by a number of diplomats in the core group, for whom the goal of a moral norm had diminished in importance with the prospect of a widely signed treaty. Many argued that the US would bring valuable economic resources and foreign policy influence to the future treaty, and that the US was certain to lobby hard for universal adherence to any treaty it would sign. NGOs did not share the diplomatic enthusiasm for wooing the US. They feared that US participation would result in a treaty so weak it would not advance a ban but would merely add another document to the collection governing the use of APMs, potentially even compromising the ability eliminate the weapons by creating a complex system of competing regulations.
The US arrived with, and maintained essentially, proposals for five areas in which the treaty would need to change to accommodate the US position: definition, deferral of entry into force, verification, reservations (South Korea), and withdrawal in time of armed conflict.
Definition
On the first day of the conference the US proposed three additions to the article on definition. The first stipulated that self-destructing APMs packed in with or connected to anti-tank mines or runway denial munitions would not be subject to the treaty. Interestingly, the text of this addition makes the distinction between anti-tank mine and anti-vehicle mine. The third Austrian draft had added the caveat that anti-vehicle mines with anti-handling devices would not be covered by the treaty—language which many saw as a potential loophole as anti-vehicle was not defined (is a bicycle a vehicle?). By explicitly including both anti-tank and anti-vehicle in its proposal, the US may have also been trying to broaden the understanding anti-vehicle mine. This first addition would exempt US Gator systems—anti-tank mines packed with anti-personnel mines in canisters.
The US also proposed adding a point to the article on definition clarifying that “‘use’ means the act of emplacement”. Thus, deployed mines would not be technically in use. This amendment was not considered seriously by the conference.
Entry into force
Another first-day US proposal involved Article 16, Entry into force. The proposal was to allow treaty signatories to take an optional nine-year deferral of entry into force for the retention, stockpiling, transfer, and use of APMs at the time of ratification.
Transparency measures
The US proposed on 3 September to make a number of modifications to the article dealing with transparency measures. For the most part these proposals can be seen to disaggregate the reporting of types and quantities of APMs.
Reservations
On the first day of negotiations, the US proposed removing (then) Article 17, Reservations, which read: “The Articles of the Convention shall not be subject to reservations”. This proposal particularly would deal with the special status the US sought for the Korean peninsula.
Duration and withdrawal
The US also sought to change the one year notification of withdrawal in Article 18 to 90 days, have the withdrawal then take effect 90 days after such notification (rather than one year) and to eliminate the sentence which stipulated no withdrawal during armed conflict. Ultimately the article did change notification to six months rather than one year.
2.3 The endgame
By the third and final week of the Oslo negotiations the US had failed to win approval for any of its amendments to the text. It had begun a strategy of bilateral pressure including calls from US Secretary of State Madeline Albright to her counter-parts in certain capitals, and, in some cases, from US President Bill Clinton himself to other capitals. Furthermore, a bank holiday on Monday and the fact that the US was granted a 24 hour recess on Tuesday morning conspired to move the bargaining behind closed doors. These developments had advantages and disadvantages for the NGOs. Access to information became somewhat more difficult, although, for example, Chairman Selebi did advise the ICBL that the US was lobbying for a recess over the weekend. The US strategy of dealing bilaterally alienated it from the states it had not chosen to influence, particularly African states which were united by an OAU resolution in favour of the treaty.
Canada was a major target for US pressure. Rumors circulated that Clinton had called Canadian Prime Minister Jean Chretien a number of times and that Canada had expressed flexibility regarding granting a transition period to the US. Canada represented the greatest potential ally for the US. Having initiated the process, Ottawa’s calculation that the treaty would be more valuable with US participation, even with the required exception, would carry significant weight. NGOs did everything they could to stigmatize Ottawa’s potential compromise, portraying it as caving into the US. Members of the Canadian delegation responsible to liaison with NGOs changed their rhetoric from “We’re in the endgame” (read: there’s nothing to worry about—in any case, this stage is beyond influence) to thinly-veiled concern about the compromises their government appeared willing to make. Ultimately, the US did withdraw its proposals citing lack of support and left with the position that it could not sign the treaty so written.
Canada, however, was not the only country to take up the challenge of bringing the US into the treaty. Germany, another core group member, seemed to vie for the role of the great compromise broker. Particularly closed to discussing its approach with NGOs, the German delegation became active in the final hours drafting a compromise proposal to bring the US on board through a “good-faith” proposal from a “neutral” third party. In its efforts, Germany raised the issue of compatibility within NATO in European Union caucus meeting—the type of argument the US had also been brandishing to its allies. This reasoning did not seem to sway EU states, all but two of which (Finalnd and Greece) supported the treaty.
2.4 Subsequent developments
One of the most remarkable developments since the US departure from Oslo is the commitment of Russia and US’s two strongest supporters to sign the treaty. President Yeltsin announced that “We support and we fully strive to once and for all find a solution, and sign the convention,” on 10 October at a Council of Europe summit. (This is interpreted to mean that Russia will sign the treaty at some future date, not necessarily in December in Ottawa.) Japanese Prime Minister Hshimoto made the announcement that Japan would “sign the treaty soon” on 20 October. Australian Prime Minister Howard indicated his country’s support, pending cabinet approval, on 23 October 1997. These developments compromise the US position in two ways. Most directly, Japan and Australia were the most vocal supporters of the US concerns during the negotiations: their direct change in position leaves the US isolated. Coupled with the Russian transition, the US argument that the treaty will not be universal is somewhat eroded. Less directly, the abrupt change in position of three such conspicuous states discredits military utility arguments. No studies were conducted in the interim between the three announcements of position and Oslo to loosen the military constraints on the Russian, Japanese, and Australian heads of government. The US, of course, has always maintained that it has unique security concerns. Nonetheless, the announcements reinforce the impression that supporting the treaty is above all a political calculation.
On 10 October, it was announced that the ICBL would receive the Nobel Peace Prize (to be conferred 8 December). The prize undoubtedly underscored the perception that APMs are a morally unambiguous topic, perhaps a factor contributing to the cost/benefit analyses behind the Russian, Japanese, and Australian changes in position. A Nobel spokesman acknowledged in an official statement that the Committee considers the potential political impacts of the prize in its deliberations. By giving the prize jointly to the American ICBL coordinator, Jody Williams, and the organization, the Nobel Committee may have been aware that the nationality of the recipient could mean greater media coverage for the prize in the US, with sufficient time to affect potentially a policy change.
III. The treaty text
3.1 Summary of the text
The treaty agreed in Oslo 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:
- 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 activitiy prohibited to a State Party under this Convention.
- Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this 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 widespread support that the treaty has since garnered will certainly reinforce this stigmatization. However, it must be noted that the widespread availaibility of emplaced mines, which are often reused in mine-affected countries, hinders monitoring new use.
The Preamble refers to previous efforts to ban APMs and calls on all states to ratify the revised Protocol II of the CCW. The treaty 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. States must identify mined areas and ensure the protection (i.e. exclusion) of civilians from those areas in the interim. The treaty calls for an exchange of resources, financial and technical, to assist in its implementation, particularly regarding mine victim assistance, mine awareness programs, mine clearance, mine destruction, and the planning of national implementation strategies. States are required to report on these strategies, including the types and quantities of stockpiled APMs, types and quntities reserved for training purposes, the conversion of APM production facilities, the status of mine destruction, and the status of mine awareness programs. States 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 treaty allows States Parties to clarify the compliance of other signatories, after the approval of marjority 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.
3.2 Shortcomings of the text
The treaty that emerged from Oslo to be forwarded to Ottawa preserved the integrity of the draft it began with and even added language in the area of victim assistance. However, there are several elements of the treaty, which will be of concern to those in favour of a total ban for the elimination of all anti-personnel mines.
Definition
Though US proposals to weaken the definition of APMs were not adopted, the existing definition was itself problematic in two ways. The first involves the failure 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”. 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 caveat for anti-vehicle mines.
The controversy around the word “primarily” reflects the second, more theoretical 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, however, 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.
Exceptions for mines for training
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 “absolute minimum number [of mines] necessary for” development and training in mine detection, clearance or destruction. Some unsuccessful efforts to define a maximum permissible number of retainable mines were made. Article 3 was widely interpreted on the floor of the conference, with Italy suggesting that it might reserve as many as 200,000 mines for training. The ICBL campaigned throughout the Oslo conference on a “no exceptions, no loopholes, no reservations” platform, which ultimately proved untenable in the first instance.
An opportunity to limit the number of mines in the exceptions article was probably missed in the February 1997 Vienna Conference on the treaty text. Some Canadian diplomats reported then that the number 2000 appeared widely acceptable, but the ICBL continued on a “no exceptions” platform. By the end of the Oslo negotiations the ICBL sought to have 1500-2000 mines read into the record to establish the meeting’s reading of that article in the absence of an actual change in the text.
3.3 Changes to the text from the Oslo negotiations
Preamble
The preamble of the treaty text was among the last elements of the treaty to be included. It contains eleven paragraphs summarising the magnitude of the problem and previous political efforts and declarations. It is interesting to note that paragraph four descibes the total ban on APMs as “an important confidence building measure”. Several NGOs lobbied unsuccessfully to have a paragraph on the importance of victim assistance included in the preamble.
Definitions (Article 2)
As discussed, Article 2 had been revised a previous stages of the Ottawa Process. Point five was the only element of Article 2 to change during the Oslo negotiations—it changed from defining “minefield” as an area in which mines have been emplaced to read “‘Mined area’ means an area which is dangerous due to the presence or suspected presence of mines.”
Destruction of stockpiled anti-personnel mines (Article 4)
An early compromise struck in Ottawa was the ammendment of Article 4 to to allow signatories four years—rather than the original three or proposed five—to destroy stockpiled APMs.
Destruction of anti-personnel mines in mined areas (Artice 5)
Point two of Article 5 evolved slightly to specify that mined areas must be marked at least to the standards established by the amended Protocol II of the CCW. Article 5 was enlarged to provide an extension of up to ten years for the destruction of APMs in mined areas and the regulations governing such a request. Such requests would be granted by majority voting among States Parties at meetings or review conferences. Article 5 synthesised the pre-Oslo text’s Articles 5 and 6, which dealt with the destruction of deployed mines within minefields and outside of minefields respectively.
International Cooperation and Assistance (Article 6)
The caveat “where feasible” was added to the the rights of signatories to seek and receive assistance in fulfilling their obligations towards the treaty. That there should not be “undue restrictions” imposed on the provision of mine clearance equipment for humanitarian purposes was also added. Likewise, a paragraph instructing all states in a position to do so to provide assistance for the “care and rehabilitation, and social and economic reintegration” of mine victims and for mine awareness programs. The inclusion of “social and economic reintegration” was somewhat contentious, but few countries would publicly speak against the inclusion of victim assistance language. There is also a new point detailing cooperation in elaborating mine clearance programs as required by the treaty. Such programs are to include: the extent of the APM problem, resources required for its implementation, a time frame for destruction, mine awareness activities and assistance to victims, and the relationship between government and non-state entities in implementation.
Transparency measures (Article 7)
Article 7 reduced the reporting time to the Secretary-General of the United Nations on compliance elements of the treaty from one year to 180 days. In addition to the requirement to report type and quantity of mines under the State’s jurisdiction or control, lot numbers are to be inclused whenever possible. A new point for the reporting of technical characteristics of mines produced, owned and possessed by States Parties, including at a minimum, dimensions, fusing, explosive content, colour photographs, and other information to facilitate mine clearance, was also included. Finally, a point instructing states to report on their measures taken to warn populations of mined areas as identified under Article 5 was added to Article 7.
Facilitation and clarification of compliance (Article 8)
Comliance has been the most difficult area for consensus—those in favour of a appealing to humanitarian law principles argue that extensive verification is not necessary while those who see the treaty as an arms control document argue that verification is essential and difficult. Between the third Austrian draft and the final text, Article 8 grew from seven points to twenty. The final text added the caveat: “Each State Party shall refrain from unfounded Requests for Clarification, care being taken to avoid abuse,” to point two. Overall the process for requesting clarification is made more explicit. The convening of special meetings for clarification became slightly harder through the Oslo meeting, requiring a majority of states to decide within 14 days as opposed to the previous one-third in 30 days.
The article articulates the process for further clarification. A Meeting of States Parties may authorize, or a signaory may invite, fact-finding missions, to include 9 experts from an official list of experts maintained by the UN Secretary-General, by the to their territory. (States may challenge the authority of an expert for its territory in writing prior to his/her appointment.) After a minimum of 72 hours notice the mission, which will receive official UN immunity, the mission may begin its research with the full cooperation of the government of the State being investigated. The article outlines the access and technical provisions to be made for such research, though the mission is limited to a 14 day visit unless otherwise agreed. The report made through the UN Secretary-General will be considered by a meeting of States Parties, which can request measures for compliance with two-thirds majority voting. States not in compliance “due to circumstances beyond the control of the requested State Party” may receive instruction under the auspices of Article 6, Cooperation.
Settlement of disputes (Article 10)
Article 10 was expanded slightly to contribute the good offices of the Meeting of State Parties to the settlement of disputes (which was implied in the original article), and to mention explicitly that this article is “without prejudice” to Article 9 regarding compliance.
Review Conferences (Article 12)
Article 12 was expanded slightly to allow the Secretaty-General to convene additional review conferences if requested by one or more States Parties, at not less than 5 year intervals. The point allowing for the consideration of amendments to the Convention was removed, though a point providing for the adoption of conclusions relating to the implentation of the treaty was added.
Amendments (Article 13)
The Oslo negotiations produced Article 13, which was dealt with previously by a subpoint in the article on Review Conferences. Amendments may be proposed by any signatory and a conference will be held to consider the proposal contingent on the favorable response of a majority of States Parties within 30 days. The conference will be governed by two-thirds majority voting.
Costs (Article 14)
This article is new, though it is comprised of elements formerly found in Articles 11 and 12. All meetings of States Parties and costs incurred to the Secretary-General under Articles 7 and 8 shall be financed by States Parties in accordance with the UN scale of assessment adjusted appropriately.
Provisional application (Article 18)
This article, new in Oslo, allows signatories to declare that they will abide by the spirit of the treaty (Article 1) pending its entry into force.
Duration and withdrawal (Article 20)
This article was weakened slightly in Oslo. Whereas previous drafts stipulated a one-year delay for withdrawal after noticiation, the final draft allows for a six-month delay.
IV. Conclusions: the treaty after Ottawa
Two points regarding the treaty after Ottawa were raised consistently by government and non-government speakers throughout the Oslo Conference: ratification and universalisation. Ratification will be the greatest test of the issue’s momentum of the campaign. The Canadian government acknowledged this publicly often and has committed resources to the continuation of the Ottawa Process through entry into force, which occurs after 40 ratifications. 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). There is consensus among NGOs and some core group governments 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. The Canadian government is planning to continue its bilateral “information” meetings, designed to provide diplomats examples of how countries have adapted their policies to join the Ottawa Process. NGOs may have a slightly harder time, as there are many countries without traditions of civil society, much less national campaigns organized. (This is not to say that all countries with national campaigns have committed to signing in Ottawa.) Nonetheless, universalisation is on the ICBL’s agenda.
For several days during the Oslo negotiations, NGOs held a concurrent meeting. The issues discussed generally fall into two categories: those dealing with NGOs’ goals for the future of the campaign and case histories of field experiences with different elements of the anti-personnel mines problem. A major theme of the NGO meeting 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 legitimate development programs in the South to fund high-tech research and development in laboratories in the North. Very little of this technology has proven feasible in the field. Humanitarian demining programs point to their emphasis on sustainability and sensitivity to the communities they work in. Humanitarian demining provides technology that can be used and maintained by local employees, in some cases mine victims who may otherwise be marginalised socially and economically due to low tollerances of disability. Though the remaining political agenda is naturally emphasized at the Ottawa Process meetings, the economic agenda may be more significant in the implementation—and therefore success—of the treaty.
