Ken Rutherford
THE HAGUE AND OTTAWA CONVENTIONS: A MODEL FOR FUTURE WEAPON BAN REGIMES?
1 by Ken Rutherford
Ken Rutherford is a University Fellow and Ph.D. candidate in the Department of Government, Georgetown University.
“In the history of the world, it will be the first time, “I welcome you to this historic conference. For I think, that representatives of almost every civi- the first time, the majority of the nations of the lized country are seen to meet peacefully, without world will agree to ban a weapon which has been a dispute to settle, without complaints to be re- in military use by almost every country in the dressed, without any thought of personal advan- world.” tage, and this in the two-fold and liberal purpose Canadian Prime Minister Jean Chretien, on the of perpetuating harmony and softening the evils occasion of the Treaty-Signing Conference for of war, or of regulating it for the day when it can- the Global Ban on Anti-Personnel Landmines, not be avoided.” December 3, 1997. President of the First Commission Plenary Meeting of the First Hague Peace Conference, May 26, 1899.2
ust as the 19th century closed similar processes: each lacked the ian effects of high levels of war. The with the 1899 First International support of many major state pow- Hague conventions augmented and JPeace Conference, held in The ers, each was negotiated by major- further codified and strengthened Hague, the Netherlands, calling for ity voting, and each was achieved in previous existing international hu- a ban on certain weapons, such as a very short time frame. manitarian law, while the declara- tions continued the disarmament dum dum bullets and chemical In a series of convention meetings process begun with the 1869 Decla- gases, so is the 20th century coming between May 18 and July 29, 1899, ration of St. Petersburg, which pro- to an end with the entering into force state delegates to the Hague Confer- hibited the use of certain projectiles of the Ottawa Treaty banning anti- ence negotiated three conventions 3 in wartime and was “the first formal personnel landmines. What is re- and three declarations that attempted agreement prohibiting the use of markable about the two agreements to alleviate the negative humanitar- is that they were created through certain weapons in war.”4 The three
36 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford
Hague declarations banned the prac- signed by 122 states in December Ottawa characteristics to those of tice of dropping explosives from hot 1997. Currently more than 130 states other weapon prohibition regimes, air balloons, the use of chemical gas, have signed and more than 60 have such as the Biological Weapons and the use of dum dum bullets. ratified the treaty.8 It entered into Convention (BWC), the Chemical Today, the Hague declarations are force March 1, 1999, faster than any Weapons Convention (CWC), the considered customary international other major treaty in the world’s his- CCW, and the Treaty on the Non- law and as “such they are also bind- tory.9 Proliferation of Nuclear Weapons ing on states which are not formally Academics, diplomats, and non- (NPT). The eight similarities be- 5 parties to them.” governmental organization (NGO) tween the Hague and Ottawa regime The Ottawa Treaty development representatives call the Ottawa creation processes that this article process began during a meeting of Treaty’s genesis and negotiations an identifies are the following: the Review Conference of the 1980 innovative model for future multi- (1) The negotiations that created Convention on Certain Conven- lateral discussions.10 Even the Nobel both regimes were convened at tional Weapons (CCW, also known Committee recognized this unique the invitation of an international as the Inhumane Weapons Conven- coalition by awarding the Interna- political leader; tion), held in Geneva in early 1996. tional Campaign to Ban Landmines (2) Both regimes were negotiated At that time, Protocol II to the CCW (ICBL)11 and its coordinator Jody by majority voting procedures; was the only existing international Williams the 1997 Nobel Peace (3) Both regimes were established law regarding anti-personnel Prize, in part for helping to create a without verification measures; landmines.6 The review was origi- fresh form of diplomacy. (4) Both regimes were initiated for the broader purpose of a more nally called by the UN General As- Following a standard terminology sembly to explore other international peaceful international society; in International Relations, I refer to (5) Both regimes were negotiated legal mechanisms for controlling the the products of the Hague and Ot- use of landmines in order to reduce on a fast-track process; tawa processes as “regimes.” I use (6) Both regimes were opposed by harm to innocents during war and in the term regime to refer to the cre- major powers; post-conflict societies. The CCW ation of normative behavioral stan- Review Conference negotiations (7) Both regimes were encour- dards regarding certain issues for aged and supported by public only considered restrictions on, not states to consider and hopefully fol- a prohibition of, the use of opinion and NGOs; and low.12 The norms established by the (8) Both regimes had clear, landmines. The delegates believed regimes imply prescriptive state- that by addressing issues of scope, simple, and consistent prohibi- ments of obligation and rules,13 tions. duration of unmarked mines, anti- which, in turn, provide universal detector mines, and transfer restric- norms of behavior for states to fol- My second, and more important, tions, they could reduce the gravity low.14 argument is that the Hague and Ot- of the landmine problem. tawa processes provide lessons for In this article I examine the dip- Since the issue of banning future negotiations. These processes lomatic processes that created the are in contrast to standard methods landmines could not get on the Hague and Ottawa regimes, making CCW agenda, Canada and other for negotiating multilateral regimes, two general arguments. First, I ar- which usually incorporate the fol- like-minded states, including Aus- gue that the Ottawa diplomacy pro- tria, Belgium, Denmark, Ireland, lowing features: cess is not as new as some have (1) Negotiations to create regimes Mexico, Norway, and Switzerland, thought. I suggest that eight of the called for the creation of a new re- convene at the initiation of inter- major Ottawa Treaty negotiating national organizations; gime to be negotiated outside the strategies are similar to those used CCW.7 The landmine ban negotia- (2) Regimes are negotiated by in developing the Hague Conference consensus methods; tions, more commonly known as declarations. To further highlight “the Ottawa process,” eventually (3) Regimes, especially those con- these similarities, I present several cerning arms control, have veri- culminated in the Ottawa Treaty out- tables that compare the Hague and lawing anti-personnel landmines fication measures;
The Nonproliferation Review/Spring-Summer 1999 37 Ken Rutherford
(4) Regimes are initiated due to goal here is to maintain a narrow are initiated at the request of inter- state self-interest with respect to focus on the process of regime cre- national institutions rather than security; ation with respect to potential states (see Table 1). (5) Regimes are negotiated by a weapon bans. The Russian government had a long, slow process that may last history of calling international con- decades; HAGUE AND OTTAWA ferences dealing with weapons. In (6) Regimes are promoted and REGIME CREATION 1868 it called for a meeting in St. supported by major powers; STRATEGIES Petersburg to discuss the fundamen- (7) Participation in regime cre- In this section, I demonstrate tal rules of war, after it had heard ation is limited to states; and eight similarities between the Hague from its military leaders that explod- (8) Regimes usually have compli- and Ottawa negotiations, and discuss ing bullets were causing gratuitous cated and inconsistent rules that the degree to which they contrast and unnecessary suffering to sol- allow states wide interpretation with the negotiations on four other diers. The meeting produced the St. and flexibility. multilateral arms control regimes— Petersburg Declaration, which re- The Hague and Ottawa alterna- the NPT, BWC, CCW, and CWC. nounced “in case of war among tives to these strategies offer insights themselves, the employment by into the relative advantages and dis- (1) Call for Convention by an their military or naval troops of any advantages of different approaches Individual State Leader projectile of a weight below 400 to weapon restriction negotiations. grammes, which is either explosive The first similarity in the Hague or charged with fulminating or in- While this article examines the and Ottawa processes is that both flammable substances.”15 This dec- processes that led to the achievement began at the behest of a state leader. laration “formulated, both explicitly of the Hague and Ottawa regimes Tsar Nicholas II of Russia and For- and implicitly, the principles of dis- and the potential implications for eign Minister Lloyd Axworthy of tinction, military necessity and pre- future weapon prohibition regime Canada were the state leaders, each vention of unnecessary suffering.”16 construction, it does not seek to of whom had recently come to evaluate the contents or effective- power, who called for the Hague and Nearly 100 years later another in- ness of the Hague and Ottawa re- Ottawa negotiations, respectively. In dividual state leader, Canadian For- gimes. These are important issues contrast, most international negotia- eign Minister Axworthy, also called that merit further research, but the tions on weapon restrictions today for an international weapon prohi-
Table 1: Genesis and Site of Weapons Convention Negotiations
CONFERENCE/TREATY INVITATION EXTENDED B CONFERENCE HOST First Hague Conference Tsar Nicholas II Netherlands Second Hague Conference Tsar Nicholas II Netherlands Biological Weapons Convention United Nations (UN) General UN Conference on Assembly Disarmament17 Chemical Weapons Convention UN General Assembly UN Conference on Disarmament Convention on Conventional UN General Assembly18 UN General Assembly Weapons Preparatory Conferences Non-Proliferation Treaty UN General Assembly UN Conference on Disarmament Ottawa Treaty to Ban Landmines Foreign Minister Lloyd Axworthy Canada
38 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford bition regime. The Ottawa Conven- Axworthy or Tsar Nicholas II, needs they be ready to work on other is- tion creation process started after he to step forward and play an entre- sues including landmines.”21 called on states to sign a comprehen- preneurial role in creating a weapon Mexico also preferred discussing the sive landmine ban treaty in order to prohibition regime. These individu- landmine ban through the Ottawa reduce human suffering caused by als also need to have certain quali- Convention creation process rather mines and encourage world peace. ties that makes states want to follow than the CD because it feared that a Axworthy capitalized on the public their lead. Some International Rela- ban would take longer to achieve in support for a ban by bringing to- tions scholars argue that trans- the CD.22 Since several other non- gether a mix of state and non-state national entrepreneurs need to be aligned states in the CD also op- actors in order to push the Conven- important decisionmakers them- posed putting landmines on the CD tion. Axworthy credits this “genu- selves or have the ability to influ- agenda, it would not have been pos- ine partnership” in moving the issue ence such decisionmakers to move sible to negotiate a landmine ban at a speed “unheard of in traditional an issue in the international arena.20 within a consensus-based forum disarmament negotiations.”19 Axworthy and Nicholas seem to fit such as the CCW or CD. Axworthy also focused on a clear both requirements of a transnational Consensus-based voting at inter- and simple message and maintained entrepreneur. national conferences is a relatively the principled goal of encouraging recent phenomenon.23 There are human security. The Hague Confer- (2) Majority Voting various definitions of consensus- ence, similarly, was convened in or- In the major international disar- based voting but all require that all der to pursue humanitarian values mament forums, such as the CCW negotiating parties must approve of and reduce human suffering. In call- and the Conference on Disarma- the resolution in some form.24 Reso- ing for the Hague Conference, Tsar ment (CD), no decisions are ac- lutions are adopted only “when no Nicholas wanted to reduce human cepted without complete consensus. participant opposes it so strongly as suffering and ensure world peace. The CCW negotiations are charac- to insist on blocking it.”25 The Law He also encouraged other states, terized by a lowest-common-de- of the Sea Convention, for example, such as the Netherlands, to invest nominator approach, while the CD defines consensus as “the absence of diplomatic and financial capital in negotiations take decades due to any formal objection.”26 In consen- developing and promoting the re- their consensus format. In 1997, for sus-based fora, there is often no gime. In sum, both Axworthy and example, Mexico led the non- equivalent of a roll-call vote, since Tsar Nicholas placed the weapon aligned countries in blocking the at- a “consensus approach does not ban issue on the international diplo- tempt to put the landmine issue on seem reconcilable with the taking of matic agenda and pushed through the CD agenda, because it believed votes.”27 state support for its achievement. that “top priority should be given to The Ottawa and Hague regimes This suggests that a major indi- concrete steps toward total nuclear were negotiated utilizing majority- vidual state leader, such as disarmament, and only then would based rather than consensus-based
Table 2: Hague and Ottawa Voting Records
DECLARATION/TREATY NUMBER OF PERCENTAGE OF STATES PARTICIPATING SIGNING28 STATES SIGNING Declaration One 25 96%
Declaration Two 24 92%
Declaration Three 23 89%
Ottawa Treaty29 122 78%
The Nonproliferation Review/Spring-Summer 1999 39 Ken Rutherford
procedures. Majority voting was sufficient efficacy against into-force date; changes in the defi- 33 used to pass the Hague Declarations. savage races. nition of an anti-personnel landmine; Moreover, most votes taken during Germany, too, initially refused to more intensive verification mea- the Hague negotiations did not have support the disarmament declara- sures; and a withdrawal clause from unanimous approval (see Table 2). tions, for two reasons. First, “[t]he the treaty in cases of national emer- Since there were only two opposing German arms manufacturer Krupp gency. was Europe’s largest single busi- votes, the United States and the The demands were not accepted ness,” and Germany was reluctant United Kingdom (on two of the three primarily because the Convention to circumscribe Krupp’s economic declarations), the Hague voting supporters wanted to achieve a ban interests. Second, “Germany’s mili- outcome is characterized as “una- with no exceptions. The United tant Kaiser Wilhelm II was seeking nimity less two votes” or “quasi- States said it would sign if its ex- 30 to rival Britain’s naval su- unanimity.” ceptions were granted, and later premacy,”34 creating reluctance to For example, the US delegation President Clinton said that “[w] e agree to any form of arms limita- did not sign Declaration Three, implored the people there [at the tion. Yet Germany eventually signed which calls for the banning of ex- Oslo Final Drafting Treaty Confer- all three Hague Declarations, while panding bullets, because it believed ence] to give us the exceptions we at the same time strongly maintain- that the declaration’s wording was needed.”36 ing its independence to act “in the so detailed as to potentially limit the international sphere.”35 On the other hand, Senator Patrick declaration’s effectiveness in cov- Leahy (D-VT), a leader of those in A century later, during the Ottawa ering bullets not yet developed. The the US Congress who wanted to ban regime’s development, majority majority defeated the American pro- landmines, argued against the 31 voting was also utilized. During posal for less specific language. United States position on the Ottawa these negotiations, however, votes During the declaration’s negotia- Treaty by noting that allowing some were never taken. The knowledge tions, a European delegate observed states to meet different standards that a vote could be taken appeared it was his “duty to declare that he would weaken the stigmatization to be a very strong deterrent to those regrets that the United States can- that a comprehensive treaty could who were seeking changes to the not agree with the majority” and deliver. As he said during the final core concept of the ban—states “that it is best to deal here with ex- treaty negotiations, “an effective in- needed to know that they could carry isting projectiles and not with future ternational agreement that is based a large number of delegates before inventions that are at present un- on stigmatizing a weapon cannot 32 introducing a proposal. Majority known.” have different standards for differ- voting, therefore, provided a strong The United Kingdom joined the ent nations.”37 deterrent to those wishing to weaken United States in opposing Declara- the regime’s focus on a comprehen- The significance of non-consen- tion Three, but for an entirely dif- sive ban. sual negotiations is that it offers an ferent reason: it wanted to reserve alternative to consensus voting pro- The majority voting format may right to use such bullets against cedures, which became a staple of have prevented the United States “savages.” The British delegate, Sir international negotiations during the from derailing the landmine ban. John Adragh, argued: Cold War so as not to leave out large There is a difference in war The United States participated in the ideological or regional blocs. Since between civilized nations Ottawa Treaty final drafting confer- and that against savages. If, World War II, the United States and ence in Oslo, but its delegation came in the former, a soldier is the Soviets/Russians have claimed wounded by a small projec- with a series of requests that they that consensus rules should be ap- tile, he is taken away in the wanted to incorporate into the treaty. ambulance, but the savage, plied to all international conference The demands were presented in a although run through two or negotiations.38 The Soviet delegate three times, does not cease take-it-or-leave-it package consist- to the 1946 Paris Peace Conference to advance. For this reason ing of five interlocking components: the English delegate de- said that the USSR “will always be exception for landmine use in Ko- mands the liberty of em- proud to defend the necessity of ploying projectiles of rea; deferral of the treaty’s entry- achieving unanimity in the settle-
40 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford ment of international problems and For two reasons, a conscious de- vented by cheating. This might dis- considers it inadmissible to abandon cision was made during the Ottawa courage states from signing the trea- this principle.”39 Moreover, the negotiations to achieve a regime ties if they fear others will not United States is currently seeking to with minimal or no verification pro- comply; or states might sign but not block a Netherlands proposal that visions. Verification provisions worry much about coming into com- calls for substituting majority vot- were left out, first, in order to attract pliance. During the Cold War, veri- ing rules for consensus voting rules more states to sign the treaty, as a fication provisions were an in the 1954 Hague Cultural Conven- potential counterweight to major important attribute of arms control tion. power opposition.40 Eliminating because of concerns about cheating verification provisions was intended (as well as ideological and techni- (3) Lack of Verification to reduce states’ fear of meddlesome cal reasons) (see Table 3).41 Some Measures inspections. This is an especially scholars believe that the lack of veri- important factor in the regime’s fication provisions is the principal The Hague and Ottawa regimes achievement because the major problem in many regimes to ban were negotiated without attempting powers had already expressed their weapons.42 Without verification to create extensive verification pro- opposition to signing. In response, provisions, “[l]egal prohibitions of visions. There is no mention of veri- the core group of states and NGOs weapons are mere ploughings of the fication measures in any of the working for the ban developed a sand.”43 Hague Declarations, although the strategy that called for bringing as Ottawa Convention does allow for Despite this argument, however, many states as possible into the re- some minimal compliant proce- the Hague and Ottawa regimes hold gime to counter major power oppo- dures in case of state violation. It several important advantages for sition. Second, verification should be noted, however, that states that do sign. Most states that provisions were also left out because verification for accords on weapons sign give up nothing they need to de- some individuals thought that a such as dum dum bullets and fend themselves. State security does state-centered verification system landmines may not be as important not depend on expanding bullets, on for remote parts of the world, where as verification for treaties on weap- dropping explosives from balloons, many landmine accidents occur, ons of mass destruction. Violations on gases, or on landmines. The ex- would be difficult to make work. of a bullet or landmine ban would istence of weapon prohibition re- not fundamentally threaten national The lack of verification provi- gimes, however, gives signatory security, while an undetected viola- sions in the regimes could have dis- states a solid moral and political ba- tion of a nuclear or biological advantages. In a verification-free sis for criticizing other states’ own- weapon regime could pose a serious regime, states may believe that pro- ership or use of these weapons. threat. hibitions could be easily circum- While these regimes cannot ensure Table 3: Convention Verification Requirements
CONVENTION VERIFICATION
First Hague Declarations None
Second Hague Declarations None
Biological Weapons Convention Minimal44 – UN Security Council45 Chemical Weapons Convention Yes – Organization for the Prohibition of Chemical Weapons Non-Proliferation Treaty Yes – International Atomic Energy Agency
Convention on Conventional Weapons Minimal
Ottawa Treaty None46
The Nonproliferation Review/Spring-Summer 1999 41 Ken Rutherford
that states will abide by prohibitions landmines, as they are with respect gressive development of existing ar- on these weapons, they increase the to weapons of mass destruction. maments.”55 In agreeing to host the economic and political costs of us- Moreover, absence of a formal conference, the Netherlands sent out ing them. States that do not wish to verification system does not pre- its own invitation calling for states be internationally isolated may thus clude, and may encourage, other to convene in The Hague “to seek be dissuaded from maintaining forms of monitoring. Unique to the the most effective means of ensur- stockpiles of these weapons. Ottawa Treaty is an external effort ing to the world a lasting peace, and Certainly, much arms control by NGOs, through the auspices of of limiting the progressive devel- 56 scholarship argues that in order for the ICBL, to evaluate the interna- opment of military armaments.” regimes to succeed they have to deal tional response to the landmine situ- The Hague delegates also wanted with the “principal problem: verifi- ation. Specifically, five NGO to incorporate into the convention an cation.”47 However, other scholars members of the ICBL are conduct- international call for a more peace- have made a convincing case that ing the Landmine Monitor Program ful society. At the urging of Fyodor concerns for state reputation and to help implement and enforce the Martens, a legal advisor to the Tsar, identity in the face of increasing treaty’s provisions.50 This program who wanted to lay down the prin- numbers of states supporting a ban is the first systematic effort by ciple that humanitarian values can foster emulation, which be- NGOs to monitor and report state should be given greater weight than comes “an increasingly powerful compliance with an arms control and military necessity in those situations mechanism through which the new international humanitarian law con- where the codified or customary norm [is] adopted.”48 The implica- vention.51 One of its goals is to make rules do not cover a case, the con- tion that regimes with minimal veri- available a continuous flow of high- ference adopted the now famous fication can be effective in quality research and analysis on “Martens Clause.” It stated: encouraging non-use of particular state landmine activities and poli- Until a more complete code of the laws of war has been weapons is significant because it cies in order to monitor the imple- issued, the High Contract- means that near-universal regimes, mentation of the treaty. ing Parties think it right to such as Hague and Ottawa, can lead declare that in cases not in- cluded in the Regulations a majority of states to follow certain (4) Call for a More Peaceful adopted by them, popula- ethical standards of behavior.49 The International Society tions and belligerents re- point is that even though both the main under the protection The Hague and Ottawa regimes Hague and Ottawa regimes lack and empire of the principles call for humanitarian action beyond of international law, as they verification provisions, they have the scope of their weapon prohibi- result from the usage estab- the potential to be honored by states lished between civilized na- tions. The Hague regime was con- in a good faith manner. tions, from the laws of cerned with reducing the increasing humanity, and the require- Both the Hague and Ottawa re- horrors of war for both civilians and ments of the public con- science.57 gimes also reveal that verification combatants and its deleterious ef- provisions in a weapon prohibition fects on society, while at the same The clause was later incorporated regime are not necessary for nego- time slowing down the rapidly in- into customary international hu- tiations to succeed. Their achieve- creasing military armaments indus- manitarian law during the ment suggests a level of universal try of the late 19th century. Nuremberg Trials in 1946.58 A cen- agreement regarding banning cer- Accordingly, the Russian confer- tury later, the Martens clause was tain weapons. It may also suggest ence invitations to states said that also incorporated into the Ottawa that regime success is contingent on the major purposes of the Hague Convention’s preamble, which the destructiveness of the weapon Conference were “the preservation stressed the importance of “the role system. For example, states may not of peace”52 and to begin of public conscience in furthering be as vulnerable to the negative ef- “ensuring...the benefits of a real and the principles of humanity.”59 The fects of defection from regimes on lasting peace.”53 Furthermore, the Ottawa Convention delegates also lower-level conventional weapons, best way to accomplish “universal based their support for the ban such as dum dum bullets and 54 ...on the principle of inter- peace” was by “limiting the pro- national humanitarian law
42 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford
that the right of the parties too many unique aspects for it to be tawa process” refers to the 425-day to an armed conflict to 62 choose methods or means of replicated.” This divergence be- period between October 1996, when warfare is not unlimited, on tween NGO representatives and state Axworthy called for the landmine the principle that prohibits delegates in viewing how to better ban convention, and December the employment in armed conflicts of weapons, pro- ensure a more peaceful international 1997, when the regime was to be fi- jectiles and materials and society is not unusual in humanitar- nalized. Drafting and negotiating the methods of warfare of a na- ian initiatives. According to one In- regime rules during that time period ture to cause superfluous injury or unnecessary suf- ternational Relations scholar, states was intensive because of the tight fering and on the principle are more “responders” to individu- time frame. that a distinction must be als and groups than “initiators” on Many states reacted to made between civilians and humanitarian issues.63 combatants.60 Axworthy’s announcement with sur- In signing the Ottawa Treaty, prise, and some even thought it (5) Fast-Track Negotiating “foolhardy.”64 He forced many states felt that they were making a Process positive difference in the world, states to set a firm date for either rather than just signing a symbolic The Hague and Ottawa agree- signing on to an immediate ban or treaty. More than 92 percent of the ments were each negotiated in a rela- backing off from their previous ban convention participants believed tively short time period, especially announcements. The United States, confidently or very confidently that when compared to other weapon re- for example, had in 1994 called for the regime would reduce landmine gimes (see Table 4). The first Hague “the eventual elimination” of activities among signatories. Only Conference lasted from May 18 to landmines in a speech at the UN 65 four percent of the participants be- July 29, 1899, while the follow-on General Assembly, but had not yet lieved that signatory countries would Hague Conference assembled on set a deadline for establishing such not abide by the rules of the ban June 15, 1907, and adjourned on a regime. The early deadline set by convention.61 NGO and government October 18, 1907. Axworthy established momentum and pressure. This was a crucial fac- representatives differ, however, as The Ottawa Convention negotia- tor in helping Italian NGOs to get to the generalizability of the Ottawa tions were initiated with Canadian Italy to join the regime rather than process to other disarmament issues. Foreign Minister Axworthy’s an- deliberating further.66 Italy’s support Most NGO representatives believe nouncement at the Ottawa Confer- was critical to the regime because it that the process is applicable to ence in October 1996, when he was one of the world’s leading disarmament issues, such as child called for states interested in sign- landmine producers. soldiers, while government repre- ing an immediate ban on landmines sentatives “were more likely to say to return to Ottawa in December The short negotiating time-frame that the landmines issue may have 1997 to join such a regime. The “Ot- was also important because it com-
Table 4: Convention Negotiating Time Periods (in months)
CONVENTION NEGOTIATIONS TREATY SIGNED TOTAL MONTHS STARTED
1899 Hague Conference May 1899 July 1899 3
1907 Hague ConferenceJune 1907 October 19075 Biological Weapons ConventionJuly 10, 196967April 1970 21 Chemical Weapons Convention December 196968 January 1993 38 Non-Proliferation Treaty 195669 1968 >100 Convention on Conventional September 197470 October 1980 73 Weapons Ottawa Treaty October 1996 December 1997 15
The Nonproliferation Review/Spring-Summer 1999 43 Ken Rutherford pounded public pressure and pushed Great Britain, and a major rising major states to maneuver diplomati- government representatives into power, the United States, did not cally in the international system. The moving quickly beyond procedural sign two of the three declarations. strategy of the middle powers was issues to achieve an agreement. For Both opposed these declarations for to work with the NGOs to build pub- example, the Ottawa regime agenda different reasons, as discussed in the lic pressure on states to sign. The was clear—a comprehensive ban majority voting section above. regime process started in 1996, when with no exceptions. States could ei- Similarly, the Ottawa regime 14 pro-ban states initiated discus- ther sign on or not. The short time- lacked major power support. During sions during the Geneva CCW Re- fame forced many governments to the Ottawa process the attempts of view Conference to explore the declare earlier than they otherwise major powers, especially the United commonalties in their positions and would have their support for the re- States, to stop or weaken the treaty discuss how best to approach reach- gime. This in turn quickened the were limited. The United States did ing a ban. achievement of the Ottawa Conven- not take the Ottawa negotiations se- The significance of major powers tion by creating a bandwagon effect riously until late in the process, when failing to prevent the Hague and as states signed on so as not to be the treaty was already nearly com- Ottawa regimes is that it shows that left out or politically vulnerable pleted. There was a belief among they do not have to lead or even sup- back home. some in the US delegation that only port an international lawmaking While the quickness of the Ottawa arms control negotiations led by the process in order for the international regime shattered the time-frame for United States could be successful. community to create a weapon pro- modern-day weapon negotiations, One senior congressional aide, who hibition regime. Indeed, these re- the Hague regime was negotiated worked on the landmine issue, said gimes show that non-major states even faster, taking only three that the American position on can achieve weapon ban regimes months. The significance of the fast- landmines “was arrogant and kind even in the face of active major track negotiating process may be of naive. They have been pooh- power opposition. that diplomatic culture and public poohing this effort for months, only Although great power non-com- impatience will no longer tolerate to find that they have been left be- pliance obviously limits a regime’s 71 long, drawn-out negotiations on an hind.” The slow US reaction to the benefits, it is still important for the important issue. It may also imply Ottawa process provided mid-size majority of states to act when they that current international conference states with the opportunity to push see a need to establish norms in a negotiations, which can take decades the comprehensive ban without ma- given issue area. Incorporating to negotiate an agreement, are not jor power opposition. By the time the weapon ban norms into customary appropriate to address immediate United States expressed its interest law may provide the best path to le- crises that affect international secu- in making the treaty less comprehen- gally bind major powers and other rity. sive and switching the negotiations non-signatory states. Despite objec- to the CD, it was too late. tions from major powers, both the (6) Opposition from Major The Ottawa process was driven by Hague and Ottawa regimes have Powers middle powers, such as Canada, become either customary law or The main multilateral nuclear, Norway, and South Africa, and non- nearly universal codified norms. biological, and chemical weapons state actors, such as the International Moreover, even though the major regimes of the Cold War era—NPT, Committee for the Red Cross powers did not sign the Ottawa BWC, CWC—had the support of (ICRC) and the ICBL. This unique Treaty, its achievement has influ- both superpowers and were eventu- coalition was brought about in part enced their landmine policies. The ally signed by all of the permanent because of the end of the Cold War, United States, for example, has re- members of the UN Security Coun- in which most states had been tied cently stated that it will cease using cil. The Hague and Ottawa regimes, up in security alliances beholden landmines by 2006 if military alter- in contrast, were opposed by key ma- diplomatically to one of the ideologi- natives to its current systems are jor powers. During the Hague pro- cal antagonists. The Cold War’s end developed.72 Furthermore, China73 cess, the greatest power of the time, allowed greater freedom for non- and Russia74 both claim that they
44 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford now adhere to unilateral export of the Conference, Mr. Staal, said to support the ban. In particular, the moratoria. that the conference “cannot fail in ICBL planned and conducted con- Robert Keohane has argued that the mission incumbent upon it; its ferences and meetings to help draft major power support is important for deliberations must lead to a tangible recommendations for the leading creating international regimes, but result which the whole human race pro-ban states. It also participated as 79 that regime effectiveness is not con- confidently expects.” an active member of several draft tingent upon continued major power After the Hague Conference, the treaty working conferences. participation.75 The formation of the European and North American Another ICBL achievement was Hague and Ottawa regimes, how- NGOs united into the International to help mobilize governmental and ever, highlights that major powers Peace Bureau (IPB), which sought public support for the Ottawa Con- are not essential even for the forma- to bring under one umbrella “na- vention. Axworthy recognized the tion of regimes. tional peace societies that had gradu- importance of the NGOs in helping ally developed, mainly in Europe to create the regime, when he stated (7) Importance of Non- and North America, from the end of at the October 1996 Conference call- Governmental Organizations the Napoleonic War onwards.”80 ing for a ban that the NGOs “are Working from its main headquarters largely responsible for our being The spread of democracy during in Berne, Switzerland, it lobbied here today. The same effective ar- the 19th century gave state govern- governments on disarmament is- guments you used to get us here ments an incentive to pay more at- sues. The IPB’s diplomatic approach must now be put to work to get for- tention to public opinion. By the late to governments—“bourgeois paci- eign ministers here to sign the 1800s, Western governments were fism, i.e. heavy emphasis on the de- treaty.”82 being encouraged and pressured by velopment of international law, private individuals, peace groups, One government delegate to the disarmament and the peaceful and professional associations of Ottawa negotiating process ob- settlement of conflicts”—eventually lawyers, teachers, and legislators to served that when consensus rules are led them to enter “into dialogue with discuss peace in a multinational fo- applied, the NGOs are isolated from Tsar Nicholas II, urging him to es- rum.76 Some peace groups believed the negotiating process.83 This may tablish an International Peace Con- that they had directly influenced the be a possible reason for the intense ference, an idea that eventually came Tsar to call the Hague Conference. NGO participation in the Ottawa to fruition with the reconvening of Dr. W. Evans Darby, secretary of the process. It allowed the NGOs to the Hague Conference in 1907.” 81 London Peace Society, “had sent his carry their ban message into the book on international arbitration to A century later, the foundation for treaty negotiations without the threat the Tsar” before the calling of the the Ottawa Convention was created that states would compromise the conference, and peace groups had by NGOs concerned about the hu- ban position in order to reach con- petitioned the Tsar to “summon a manitarian effects of landmine use. sensus. 77 conference to limit armaments.” In 1991, the issue started gaining in- The NGO influence in the Ottawa ternational attention, when Bobby The Hague Conference originally regime’s creation and development Mueller of the Vietnam Veterans of convened without a name, but state demonstrates that states need infor- American Foundation and Thomas delegates soon adopted, without a mation and services that NGOs can Gebauer of the German medical-re- vote, the “Hague Peace Conference” provide. It should be noted here lief organization MEDICO co- title since the general public had al- that the CWC also had the support founded the ICBL in order to ready designated the conference’s of many non-state actors, including galvanize the international commu- laws-of-war agenda as one of both NGOs and members of the nity toward banning landmines. Sev- peace.78 The delegates knew that chemical industry. The implication eral years later, the ICBL began public opinion was monitoring the is that states should learn to become assisting Canada and other pro-ban negotiations and expected them to team players with NGOs rather than states in the international negotiat- produce a peace plan. On May 20, continuing to remain isolated in a ing process by providing valuable 1899, at the second meeting of the state-centric process. The exclusion information and by pressuring states Plenary Conference, the president of NGOs from international weapon
The Nonproliferation Review/Spring-Summer 1999 45 Ken Rutherford regime development may no longer exploding bullets was not supported different interpretations and mean- be a feasible policy. In addition, was because it would complicate the ings in different cultures and lan- closed-door negotiating forums such ban message. As a delegate oppos- guages,89 thereby further confusing as the CD may no longer be appro- ing the British position responded: an already confusing document. A priate for the international commu- To have two kinds of pro- simple, clear ban is easier both to nity to solve its problems and reach jectiles, one for savages and negotiate and to implement, as there the other for civilized cooperative agreements. peoples would be compli- can be no doubt about what activi- cating the armament. It is ties constitute a violation. There can be downsides, however, possible to contemplate the to open diplomacy. First, expected case of soldiers stationed criticism from hawks and national- outside of Europe and CONCLUSION: HAGUE AND ists at home potentially reduces armed with bullets for use OTTAWA AS A MODEL FOR against savages, who would THE FUTURE compromise. Secondly, secret side- be called upon to fight deals on non-regime issues, which against the regular troops of In this article, I have examined can help to overcome differences a civilized nation. They would have to wear two car- the diplomatic processes that led to and push agreements forward, may tridge belts.86 the Hague and Ottawa regimes. The no longer be politically viable. lessons learned from these processes The Ottawa regime, similarly, may be applicable to other issues of Regardless of the downsides of never swerved from its original in- grave concern to the international open diplomacy, there was also a tention to ban landmines. The issue community, such as child soldiers clear benefit: the Hague and Ottawa was simple—“Ban Landmines.” and small arms. delegates felt international public The message did not concern the pressure to conclude a weapon pro- difficulties of managing the use of I have not sought to assess the hibition agreement. In a small sur- the weapon. If management of contents or effectiveness of the re- vey of government negotiators landmines, rather than a ban, was the gimes or what they contribute to in- conducted the day after the Ottawa regime’s goal, it most likely would ternational security. These are Treaty was signed: not have been signed within 14 important questions for further re- [a]ll the participants por- months. search, but I have focused here on trayed the role of NGOs the processes that were useful in throughout the process as An outright, comprehensive ban achieving the Hague and Ottawa re- invaluable and atypical clearly signified the exact objectives with respect to the high de- gimes, and how they contrast to gree of NGO/government the Ottawa regime was trying to typical multilateral processes. cooperation [and] [t]he fact achieve. The concept of a ban can of having NGOs at the table during the treaty negotia- be easily translated and understood This alternative process to nego- tions was cited as a ‘power- in any language or culture, while tiating regimes starts when an inter- ful force’ in influencing complex and ambiguous restrictions national political leader initiates 84 policy decisions. not only make weak law, but also international diplomatic discussion Similarly, during the Hague process, invite cynicism and fatalism.87 For on a specific issue in order to achieve public opinion encouraged delegates example, the CCW Landmine Pro- a more peaceful international soci- to accept the public’s title for the tocol is confusing to interpret: Ar- ety. To ensure achieving the regime, conference—Hague Peace Confer- ticle 3(3) specifically forbids the the negotiations should adhere to a ence.85 “indiscriminate use” of landmines, strict timeline for reaching agree- but article 3(4) conditions this in- ment, which, in turn, should be based (8) Simple, Clear Message junction by insisting only on “fea- on non-consensus voting. More- sible precautions...which are over, the process may work best The Hague and Ottawa regimes practical or practically possible tak- when states form a sincere partner- have very clear and simple-to-under- ing into account all the circum- ship with non-state actors, such as stand prohibitions. One of the rea- stances ruling at the time, including NGOs, and the prohibition message sons that the British request for an humanitarian considerations.”88 is simple and clear. Lastly, if it is exception (when dealing with “sav- Applied to the international legal necessary to overcome major state ages”) to the Hague prohibition on arena, these concepts may have very opposition, verification provisions
46 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford should be minimized in order to gen- process is generalizable to other in- Because instituting weapon pro- erate regime support from a larger ternational issues, while governmen- hibition regimes requires such great number of states and to counterbal- tal representatives say that the effort, the international community ance major power opposition. uniqueness of the landmine issue will have difficulty banning weap- 93 The “new” process provides a lent itself to such a process. ons already in use. Instead, states model that could be useful in cur- In addition, the influence of should consider banning and re- rent and future efforts at promoting NGOs on international politics is stricting weapons currently in de- security prohibitions and restric- still open to debate. NGO influence velopment, in order to reduce tions. The Coalition to Stop the Use levels may be contingent upon the political opposition and lower imple- of Child Soldiers is currently at- region in which the state is located. mentation costs. Perhaps there tempting to attach an optional pro- For example, 88 percent of the West- should be a clearer legal obligation tocol banning the recruitment and ern government representatives sur- for states to review their weapons participation of child soldiers to the veyed in a focus group during the currently on-line. Such a case oc- Convention on the Rights of the Ottawa treaty signing credited curred when the ICRC and Sweden Child.90 Because the issue is being NGOs with having a positive influ- proposed an amendment to the CCW negotiated in a consensus negotiat- ence on their country’s support of to ban blinding laser weapons, and ing forum, the United States and the ban. In contrast, only 21 percent it was adopted by states parties as other states are able to block its of African government representa- Protocol IV. One of the reasons for adoption. Most likely, the coalition tives stated that NGOs were a posi- the protocol’s quick adoption was will be forced to mirror the Hague tive influence in their country’s that many laser weapons were still and Ottawa processes by taking the decision to sign the Convention.94 under development and not yet in issue out of a consensus forum and widespread use. While these discus- The creation of the Hague and sions were taking place, the United creating a negotiating forum where Ottawa regimes shows the value of the voting rules are non-consensus States implemented a ban on weap- moving upstream to earlier stages of ons designed to blind enemy forces based in order to circumvent the the weapons development process opposition of a minority of states. and canceled production of laser in addressing arms control under weapons that were “to be mounted Another effort that is based on international law. Because of the atop M-16 rifles.”96 One of the rea- this “new” process is the Global enormous financial and human re- sons given for the change in laser Campaign on Small Arms and Light sources needed to produce a weapon weapon policy was that the Army Weapons.91 The campaign is com- prohibition regime, the international could no longer justify the weapon posed of NGOs and seeks to address community will have to selectively on conceptual or policy grounds.97 the problems caused by the prolif- target which weapons to prohibit if eration and misuse of small arms it is to be successful. For example, International weapon prohibition and light weapons. The “new” pro- the Global Campaign on Small Arms regimes are helpful to states because cess evidenced by the Ottawa Con- and Light Weapons must overcome they help codify international law. vention “provided the foundation” two challenges that the Hague and When international regimes are ac- for this effort to alleviate the effects Ottawa supporters did not face: first, cepted by a large number of states of “the widespread availability of civilian ownership of light weapons they establish an increasingly ac- light weapons.”92 is legal in many states, and second, cepted norm of behavior. As the chairman of the CCW Review Con- The claim that NGOs are neces- light weapons have legitimate uses in certain circumstances.95 Such ferences stated in his opening sary to moving weapon issues for- speech, “law brings a degree of au- ward on the international agenda obstacles will inevitably attract state opposition and increase the costs of thority and observance to commonly may be debatable, since NGO and held values.”98 The achievement of government delegates to the Ottawa educating the public and govern- ments, because the issue is more the Hague and Ottawa regimes does treaty signing have different views. not provide military advantages to NGO representatives believe that nuanced than those addressed by the Hague and Ottawa regimes. states or help them win wars. Each the Ottawa regime development regime was signed by states, not as
The Nonproliferation Review/Spring-Summer 1999 47 Ken Rutherford
a rational strategic decision, but First Commission Plenary Meetings, May 26, “Regime Architecture: Elements and Principles,” 1899, in James Brown Scott, The Reports to the in Janne Nolan, ed., Global Engagement: Coop- rather as an affirmation that too Hague Conferences of 1899 and 1907 (Oxford: eration and Security in the 21st Century (Wash- many innocents were suffering from Clarendon Press, 1917), p. 274. ington, DC: The Brookings Institution, 1994), p. weapons of marginal military util- 3 Unless otherwise noted, all references to the 68. Hague Convention, regime, or its declarations re- 14 Dorothy W. Jones, Code of Peace: Ethics and ity and incompatible with a more fer to the First International Peace Conference Security in the World of the Warlord States (Chi- peaceful international society. held in The Hague in 1899. Furthermore, the cago: University of Chicago Press, 1991), p. 115. use of the term “landmines” refers to anti-per- 15 Declaration Renouncing the Use, in Time of Very often, both regimes are criti- sonnel landmines. War, of certain Explosive Projectiles. Saint Pe- cized as not being 100 percent ef- 4 Dietrich Schindler and Jiri Toman, eds., The tersburg, 29 November/11 December 1868, Laws of Armed Conflicts: A Collection of Con-
48 The Nonproliferation Review/Spring-Summer 1999 Ken Rutherford poses, the Union counts as one vote as the origi- dresses “Facilitation and clarification of compli- organizations (9%). nal conference voting records indicate. ance,” but its verification provisions are very 62 Ekos Research Associates, Inc., “Interactive 29 In the case of the Ottawa Treaty, the figure minimal. Setting aside the argument that Article Survey Group Highlights and Results,” in A Glo- used for “number of states participating” is 157 Eight may actually entail verification provisions, bal Ban on Landmines, p. 5. states, since that is the number of states that at- this paper takes the ICBL point of view regard- 63 Jones, Code of Peace, p. 157. tended the second Ottawa Conference. Lawson ing the lack of verification in the treaty. 64 Brian W. Tomlin, “On A Fast Track To A Ban: et al., “The Ottawa Process,” p. 160. 47 Best, War & Law Since 1945, p. 308. The Canadian Policy Process,” in Cameron et al., 30 Louis B. Shon, “Voting Procedures in Interna- 48 Richard Price, “Reversing the Gun Sights: To Walk Without Fear, p. 206. tional Conferences for the Codification of Inter- Transnational Civil Society Targets Land Mines,” 65 White House, Press Release, September 26, national Law, 1864-1930,” in Gabriel Wilner, ed., International Organization 52 (Summer 1998), 1994, “Fact Sheet: U.S. Policy on a Landmine Jus et Societas: Essays in Tribute to Wolfgang p. 640. Control Regime.” Friedmann (1979), pp. 280-281, quoted in Sabel, 49 Jones, Code of Peace, p. xi. 66 Statement by Nicolleta Dentica, Chairwoman, Procedure at International Conferences, p. 281. 50 While the Landmine Monitor program is coor- Italian Campaign to Ban Landmines, at the Ot- 31 Sixth Meeting Conference Notes, July 21, 1899, dinated by Human Rights Watch, Handicap In- tawa Process Forum, Ottawa, Canada, Decem- in Scott, Reports to the Hague Conferences, p. ternational, Kenya Coalition Against Mines, ber 5, 1997. 82. Mines Action Canada, and Norwegian People’s 67 In 1962, the Eighteen-Nation Disarmament 32 Ibid., p. 86. Aid, the research was conducted by “in-country Committee (ENDC) presented a biological and 33 Statement by Sir John Ardagh, First Commis- researchers, utilizing the ICBL’s network of 1,300 chemical weapons prohibition plan. It was not sion, Fourth Meeting Notes, June 23, 1899, in non-governmental organizations working in over until the British drafted a convention to the ENDC Scott, Reports to the Hague Conferences, p. 286. 80 countries.” International Campaign to Ban in July 1969 that biological weapons were sepa- 34 “The First and Second Hague Conferences on Landmines, Press Release, May 3, 1999, rated from chemical weapon prohibition discus- Disarmament, 1899 and 1907,”
The Nonproliferation Review/Spring-Summer 1999 49 Ken Rutherford
Struggle, 1636-1936 (New York: W.W. Norton President of the CCW Review Conference, and Company, 1961), p. 187. Vienna, Austria, at the opening meeting of the 78 James Brown Scott, in the introduction to The First CCW Review Conference, September 26, Proceedings of the Hague Peace Conferences: 1995. 99 Translation of the Official Texts: The Conferences The governments of Angola, Guinea-Bissau, of 1899 and 1907: Index Volume, prepared by and Senegal continue to use landmines even the Division of International Law of the Carnegie though they are signatories to the Ottawa Treaty. 100 Endowment for International Peace, under the These patterns seem to give evidence for Ethan supervision of James Brown Scott (New York: Nadelmann’s outline of a common evolutionary Oxford University Press), p. xviii. pattern among global prohibition regimes. See 79 Mr. Staal, President of the Plenary Conference, Nadelmann, “Global Prohibition Regimes.” 101 Address of the President, Second Meeting Notes, Krasner, “Structural Causes and Regime Con- May 20, 1899, in Scott, Reports to the Hague sequences,” p. 99. Conferences, p. 17. 80 International Peace Bureau history,
50 The Nonproliferation Review/Spring-Summer 1999