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U.S. Delegation: Statement on proposed changes by Group of 25
November 7, 2008

Statement on proposed changes by the Group of 25
to the Group of Governmental Experts (GGE)

Delivered by Stephen Mathias,
Head of the U.S. Delegation

Thank you Mr. Chairman.

We have studied the proposals put forward by some of the group of 25. We understand that the ideas expressed in these statements stem from a number of countries’ strongly held view that cluster munitions should be banned completely. My delegation would like to reiterate why a complete ban or a copy of the Oslo Convention is simply not an acceptable approach to my country, and to many other countries in this room.

A number of countries, including the United States, have critical national security interests at stake in these negotiations. Cluster munitions are lawful weapons under existing international humanitarian law, they have significant military utility, and they are a critical capability in many countries’ defense planning. It is unrealistic to expect that countries with such critical security interests at stake will immediately agree to a sweeping ban. Accordingly, before particular types of cluster munitions can be banned, countries in this position will require transition periods to allow for the replacement of these weapons with other weapons that can satisfy their national security interests. The need for such transition periods should not be viewed as a sign that the text is too weak. Instead, the fact that countries need an extensive transition period highlights the fact that they are willing to undertake significant obligations that will require massive overhauls to their stockpiles. Such changes are both expensive and time-consuming.

Furthermore, during the transition period, it is unrealistic to expect that countries will agree to restrictions that will put their national security at risk. To illustrate, a country that relies on cluster munitions in its defense strategy and is attacked during the transition period may be forced to use these munitions to defend itself, and may well have the need to acquire new cluster munitions after repelling the attack, to ensure that it is not vulnerable to new attacks. Accordingly, the ability to produce or to transfer such weapons will still be necessary during the transition period.

Keeping in mind these realities, and the fact that the CCW is a consensus-based organization, it is simply not realistic to expect that a CCW protocol produced by both states that possess and do not possess cluster munitions will include a comprehensive ban on the possession, use, or transfers of cluster munitions or that this process will mirror the Oslo process. Instead, we must ask ourselves what humanitarian gains can be achieved while balancing humanitarian objectives against the legitimate national security interests of states parties—which is the objective of the CCW framework.

The Chairman has painstakingly listened to all of the recommendations from the States represented in the CCW and correctly evaluated that there is large gap between the States that have significant security concerns and those that are willing to completely ban cluster munitions. He has weighed these concerns, evaluated where there is room for compromise, and provided us a text from which to negotiate. In this regard, we remain convinced that the text put forward by the Chairman at the end of last week is a balanced document, which truly reflects our mandate to balance humanitarian and military considerations. It is not exactly the text that any one country wanted. It is certainly not perfect from our perspective, as it asks us to agree to an exception to the definition of cluster munitions that we believe is conceptually without merit. However, in order to make the text more acceptable to countries planning to sign the Oslo Convention, we were willing to go along with this approach in order to facilitate progress on an agreement, because we thought the text fairly balances a number of competing interests.

There is one more point that I think it is important to make at this stage. One of the claims we have heard a number of times is that the draft text offered by the Chairman would somehow undermine new standards of international law set by the Oslo Convention. However, it is hard to see how the draft text could do anything but advance standards, even though it does not contain as sweeping a ban on cluster munitions as the Oslo Convention. Even after Oslo enters into force, its provisions will only apply to those countries that have become parties to it. Again, let me be perfectly clear here, on the 4th of December, after the signing ceremony of Oslo, cluster munitions will still remain as lawful and legitimate weapons. There is no serious argument that Oslo will become customary international law imposing obligations on non-state parties. Therefore, the relevant standard for evaluating the draft text before us is not whether its obligations are as extensive as those in the Oslo Convention, but whether they impose obligations beyond those that exist currently for those that are not going to become parties to Oslo. As we described in some detail yesterday, by this standard, the Chairman’s draft represents a very significant leap forward in that it would require countries holding 90% of the world’s stockpiles of cluster munitions to take dramatic steps to change their arsenals for the better.

In conclusion, we do not believe that the proposed changes offered by some of the members of the group of 25 are helpful in moving us forward. If we are to truly achieve our mandate of urgently addressing the humanitarian impact of cluster munitions while balancing their military utility, we would once again urge that any further work be on the basis of the Chairman’s draft. In this regard, we agree with the statements already made by Pakistan, Brazil, China, and others. We remain fully prepared to roll up our sleeves and work with other delegations on this basis.

Thank you.