HRW legal analysis: “prohibition on assistance” in the Convention on Cluster Munitions
Human Rights Watch (HRW) publicou hoxe unha análise legal da “prohibición de asistencia” en relación coas “operacións militares conxuntas”, un aspecto que aínda é controvertido para algúns asinantes da Convención sobre as Bombas de Fragmentación (en especial para os aliados dos Estados Unidos). O texto de HRW leva por título “Staying True to the Ban on Cluster Munitions: Understanding the Prohibition on Assistance in the Convention on Cluster Munitions”. Copio un extracto da súa introducción:
The Convention on Cluster Munitions, which opened for signature in December 2008, contains two provisions that at first glance seem to pose a conflict. On the one hand, Article 1(1)(c) prohibits states parties from assisting non-states parties with acts banned by the convention. On the other hand, Article 21(3) allows states parties to engage in joint military operations with non-states parties that might use cluster munitions. Some states have argued that Article 21(3) suspends the ban on assistance in Article 1(1)(c) of the convention. The normal rules of treaty interpretation, however, require that provisions must be interpreted in light of their context and the object and purpose of the convention. States designed the Convention on Cluster Munitions to eliminate cluster munitions and to bring an end to the civilian harm they cause. Read in accordance with this purpose, Article 21(3) does not conflict with Article 1(1)(c). Instead, it should be understood as authorizing joint military operations only to the extent that the ban on assistance with prohibited acts is maintained.
The Convention on Cluster Munitions establishes an absolute ban on cluster munitions. These large weapons carry dozens or hundreds of smaller submunitions that endanger civilians both during attacks and afterwards. The convention also requires states to destroy stockpiles of cluster munitions within eight years, clear their territory of unexploded submunitions within 10 years, and provide assistance to victims. As of June 2009, there were 98 signatories to the convention, ten of which had ratified: Albania, Austria, the Holy See, Ireland, Laos, Mexico, Niger, Norway, Sierra Leone, and Spain. It will enter into force six months after the thirtieth ratification is deposited.
The convention bans not only the use, production, transfer, and stockpiling of cluster munitions, but also, in the same article, assistance with such activities. Article 1(1)(c) prohibits states parties from assisting anyone in any circumstances with any banned activity. It creates an absolute prohibition and contains no qualifiers that limit the scope of the term “assist.” To realize the convention’s goal of ending the scourge of cluster munitions, the prohibition should be understood to cover a broad range of assistance. A decade of experience from the Mine Ban Treaty context provides precedent supporting such an interpretation.
Unlike the six other weapons treaties that contain a prohibition on assistance, the Convention on Cluster Munitions also includes a provision-Article 21-that was inserted at the final stage of negotiations and governs relations with non-states parties. The first two paragraphs of Article 21 require states parties to advocate proactively for the convention, and the second two address its application during joint military operations. Some states, notably US allies, view Article 21(3) and (4) as creating an exception; they argue the paragraphs mean that the prohibition on assistance does not fully apply during joint operations. The international law of treaty interpretation, however, leads to a different understanding. While paragraph 3 clearly states that participation in joint operations is permitted, it would contradict the object and purpose of the convention to understand it to waive the prohibition on assistance during these operations. Paragraph 4 reiterates that activities specifically banned in Article 1 of the convention are prohibited during joint operations, but it should be read as merely an illustrative list that reinforces Article 1’s overall obligations. Reading it as exhaustive would permit a wide rage of otherwise prohibited activities that amount to assistance-as if loading the gun for another to fire-that would facilitate use of cluster munitions contrary to the convention’s object and purpose. It would undermine other obligations of advocacy against cluster munitions included in Article 21 and render these provisions incoherent. […]
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