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On different tracks: disarmament diplomacy from the Pacific

Timothea Horn1

Asia-Pacific College of Diplomacy, Coral Bell School of Asia Pacific Affairs, 130 Garran Road,

Australian National University | ACTON ACT 2601 Australia [email protected]

Abstract

Canada, New Zealand and Australia championed international treaties to respectively ban

landmines and cluster munitions and regulate the arms trade. Yet while leading on one

treaty cycle, these three countries were absent from others. These parallel yet different

negotiating tracks point to the question, when do states build international regimes? To

address this, this paper looks at the three phases of three multilateral negotiations to

compare and contrast how Canada, New Zealand and Australia have at times contributed to,

and at times impeded, regime building. This paper finds that these states championed treaty

making when political leadership, substantive expertise and diplomatic resources were all

present. In the absence of one or more of these factors, these states had the opposite

effect, slowing down progress and hollowing out the substance of treaties. By examining

these parallel yet different negotiating tracks, this paper adds to our understanding of the

drivers of regime building in order to identify the critical elements that led to successful

codification of arms control by in Canada, New Zealand and Australia.

Key words

Conventional weapons – international negotiation process – turning points analysis

1. Introduction

Arms control and disarmament of conventional weapons play a crucial role in maintaining

international peace and security. They have been permanent fixtures on the agenda at the

United Nations. Yet with the world’s top five arms producers permanently sitting on the UN

1 Timothea Horn is a third-year doctoral candidate and Endeavour scholar at the Asia Pacific College of Diplomacy at the Coral Bell School, the Australian National University. This paper summarises initial findings from her PhD research based on interviews with diplomats.


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Security Council, little progress had been achieved until 1993. Since then, however, an

increasing number of international legal instruments have been negotiated, creating new

norms designed to regulate the production and trade of conventional weapons and to

minimise their impact on civilians. Canada, New Zealand and Australia have been involved in

the successful negotiation of three treaties in particular during that period: the Mine Ban

Treaty (Canada), the Cluster Munitions Convention (New Zealand) and the Arms Trade

Treaty (Australia). However none of these three states have consistently contributed

towards strengthening all three treaties. Champions during one cycle, blockers or neutral

during others, Canada, New Zealand and Australia have engaged unevenly in strengthening

international regimes in conventional weapons across this period. This leads to the

question, “when do states build international regimes?”. This study critically examines the

diplomatic roles played by Canada, New Zealand and Australia during three phases of treaty-

making (commitment, substance, agreement). The patterns of behaviour that emerge

indicate that three elements were present when regime building occurred. Political

leadership, substantive expertise and diplomatic resources were present in all three cases,

across all three phases of negotiations. In the absence of one or more of these elements,

states either did not play an influential role in the creation of the regime (Australia on

landmines, New Zealand on the arms trade treaty) or impeded progress on the creation of

the regime (Canada on cluster munitions). Contrasting the parallel yet different negotiating

tracks taken by all three countries provides insights and lessons into the factors that can

influence successful treaty-making in the future on the use of conventional weapons.


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2. Conventional weapons regimes

International regimes

Since 1993, an increasing number of new norms have been codified in international law to

regulate the production and trade of conventional weapons and to minimise their impact on

civilians. These norms, in the form of international treaties, have strengthened existing legal

regimes in landmines, cluster munitions and the arms trade. Binding international treaties

are the strongest of only two sources of international law, along with customary law.

Strengthening of a regime through treaty making can take place through the creation of

new rules or the extension in scope or obligations of existing rules. Whereas political

commitments are voluntary, international treaties are binding on their signatories.

International treaties take on more customary power as their membership approaches

universality. Treaties set the benchmark of behaviour. The more signatories a treaty has, the

stronger its claim is to being the benchmark. They therefore influence the behaviour of non

signatories as the number of signatories rises. International treaties can be said to shape

international law directly, as legal instruments, and also indirectly, as they become accepted

as the benchmark for state behaviour as states sign on, thereby becoming incorporated into

customary law. In the case of the 1997 Mine Ban Treaty (MBT), the 2008 Convention on

Cluster Munitions (CCM) and the 2013 Arms Trade Treaty (ATT), new rules have been

developed into a legally-binding framework that regulates more areas in stronger ways than

previously. All three have entered into force and are near universal in geographic coverage

and in population, although all three have prominent states that are not as yet parties to

their obligations.

Humanitarian arms control treaties

The MBT, the CCM and the ATT are legally binding treaties that include humanitarian

elements into arms control frameworks. Whereas arms control treaties have historically

focused on preventing war between states, “humanitarian arms control” focuses on the

consequences of the indiscriminate use of weapons in intrastate conflicts and importantly


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their impact in post-conflict situations.2 Put simply, the objects of international regulations

are shifting from weapons to people.3

The 1997 Mine Ban Treaty aims to put an end to the suffering and casualties caused by anti-

personnel landmines (APMs). The MBT has a dual approach, both forward and backward

looking, that covers not only the full lifecycle of APMs from an arms control perspective but

also addresses the ongoing humanitarian impact of the weapon on civilians and on

combatants.

The 2008 Convention on Cluster Munitions is a global prohibition on an entire category of

weapon, namely cluster munitions. It contains disarmament provisions and humanitarian

provisions. On disarmament, it sets in place a ban on all aspects of the lifecycle of the

weapon, extending from preventive to remedial aspects covering use, trade, destruction

and stockpiling. From a humanitarian perspective, its provisions include clearance and

victim assistance.

The 2013 Arms Trade Treaty creates legally-binding measures both legal and illicit trade in

eight categories of weapons, an area which had remained the “blind spot of world politics”.4

The ATT reaches beyond arms control and into the humanitarian space by requiring states

to assess whether arms transfers will undermine peace and security or be used to commit

serious violations of international humanitarian law or international human rights law.5

In all three cases, the substantive move towards humanitarian arms control was initially led

by civil society and taken up by a lead state in coordination with a core group of states with

pooled diplomatic resources including substantive expertise and strategic experience.

2 Wisotzki, Simone “Humanitarian arms control” in Muller, Wunderlich (eds) Norm Dynamics in Multilateral Arms Control 2013 University of Georgia Press 3 Pro. Keith Krause explains this “normative change” by considering material and ideational factors. Heightened dangers to peacekeeping operations, the increase in intrastate conflict and the presence of military weapons in private hands due to military downsizing after the Cold War are all material factors that have led to this change. Ideational factors such as the mainstreaming of human security in national policy considerations and the conceptual linkage between conflict and development are also decisive in this shift. 4Garcia 5 SIPRI Yearbook 2015


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Treaty dynamics

Each treaty followed a similar pathway in three phases, from (1) commitment to (2)

substance and then (3) agreement, as illustrated in the following diagram. These pathways

are commonly known as the Ottawa Process (landmines), the Oslo Process (cluster

munitions) and the ATT Process (arms trade).

Figure 1 Negotiation cycle: phases and turning points

1. Commitment

The first and arguably longest phase involves gathering a sufficiently large group of states

committed to future formal negotiations of a treaty. This phase occurs over years and

decades as issues emerge and states reprioritise attention towards developing solutions.

The origins of humanitarian arms control often lie within civil society and people with first-

hand experience on the ground in post conflict areas. Organisations such as the

International Committee of the Red Cross and UN field agencies provide the platform for

smaller groups to focus attention on issues and relay these to the general public, to

politicians, and to policy makers. Commitment is built on the margins of existing standing

forums, where diplomats based in Geneva or New York, build up trust over time. Issues are

discussed and canvassed. When windows of opportunity emerge, for example following

elections at home, diplomats tap into their knowledge of where to build alliances based on

well-known positions of long standing or on the politics of incumbent governments. Core

groups of states united for action develop a common strategy. This leads to the drafting and

circulation of draft political declarations or draft UN resolutions where states signal their

political commitment to pursue treaty talks.


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2. Substance

Once an explicit signalling of commitment has been approved and made public, the core

group of states have the first movers’ advantage in shaping the next steps in the process,

namely putting forward the elements of a future treaty along with proposing the processes

involved in getting to a negotiating conference. Outlining the contours of a future treaty as

well as mapping out the options for substantive inclusions is labour intensive and conducted

during inter-sessional meetings of existing forums or through ad hoc sessions organised in

capitals. Outlying countries, those who sit on the outer reaches, must be canvassed to make

visible the positions that maximalists and oppositionalists will be putting forward. The

positions of producing states vs contaminated states, of exporters vs importers, must be

flushed out and shared. Tracing the contours of groups of states, form military alliances to

regional blocs, also emerges in this phase. Moving from signalling of positions to agreement

on what is up for negotiation occurs during this phase, as does the secondary yet just as vital

step of agreeing on rules of procedure and decision-making for the future formal

negotiation of the legal instrument. During this phase, diplomatic efforts are also focused on

increasing the membership of states in processes, to ensure that all regions are represented

and to bolster the ranks of future signatories. Once the parameters for negotiation have

been agreed to (substance, rules of procedure, timeline), a formal statement is issued and

signed by participating states or a draft resolution is put to the UN. For processes sitting

outside the UN, the price of entry to participate in formal negotiations is often a signature

on the formal statement indicating that states accept the boundaries that have been drawn

and agree to negotiate within them.

3. Agreement

This last and final phase of the negotiating process is the shortest of the three phases. This is

when the negotiation of the final text of the future treaty occurs, culminating in a

diplomatic conference that lasts between 1-2 weeks. Should an outcome not be reached, a

further conference can be convened. In this phase, the mediation skills of the conference

team are required to set a delicate balance between the spectrum of positions presented on

each element to be included as well as the overall cohesion of all of the elements combined.

Conference presidents are selected on the basis of their personal long standing experience

in similar forums as well as the position of the country that they represent, although for the


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duration of the conference they set to one side their diplomatic hats and step in as servants

to the treaty. Dramatic changes in the positions of important players often occur at this

point, sometimes in reaction to events or developments outside of the treaty cycle.

Although the politicisation of multilateral talks can be manufactured by states for domestic

reasons, in general given the momentum required for talks to reach this final phase, a result

will tend to be arrived at although the relative strength of the final treaty may be tempered

under duress from large players. The way in which treaties are finalised, and the decision

making that ensues, plays a significant role in building the legitimacy and pushing for the

universalisation of the final instrument.

3. Regime building and blocking

Approach

Canada, New Zealand and Australia have been involved in the successful negotiation of

three treaties in humanitarian arms control, the Mine Ban Treaty (Canada), the Cluster

Munitions Convention (New Zealand) and the Arms Trade Treaty (Australia). The decisive

role these countries has emerges when each treaty cycle is unpacked, with specific attention

on the three negotiation phases (commitment, substance, agreement) and the turning

points that marked the passage between them. As illustrated in the diagram below, 10

turning points have been examined to build a detailed picture of diplomatic activity. This

analysis reveals that Canada, New Zealand and Australia contributed towards strengthening

regimes at various points over time, while at times either blocking progress or having

minimal impact on strengthening regimes at others.

Figure 2 Ten turning points


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Landmines: Canada and regime building

The MBT was negotiated in three phases. Political commitment (1) from a growing number

of States to ban APLMs led to the fast-track negotiation of the substantive elements of a

treaty (2) that was agreed to and adopted initially by 121 states (3). These three phases,

commitment, substance and agreement, constituted the Ottawa Process.

1. Commitment

From the 1970s, calls from the international community had been accumulating to ban

APLMs. In 1995, a review conference of the Convention on Certain Weapons (CCW) included

talks to amend an existing Protocol to address stricter regulations of production and use of

APLMs. A ban was not on the agenda. Anticipating that strong action was unlikely to emerge

from the consensus-based CCW forum, Geneva disarmament diplomats had been discussing

informally how to push for a ban in the lead-up to talks.

This was led in part by Canada, whose newly-minted Foreign Minister Lloyd Axworthy was

looking to push for an ambitious ‘human security’ agenda on the international scene that

would turn the focus of security policy onto people and their communities rather than

states and sovereign borders. This push was both a reflection of Liberal party

internationalist principles (echoing across the political divide with Progressive

Conservatives) but also of the importance of a unifying programme of action that would

resonate in the separatist province of Quebec with a referendum on the near horizon and

voters particularly attuned to Canada’s role as a multilateralist actor.

Ottawa-based officials had identified that landmines were a hot-button issue and that a

window of opportunity for action was approaching given the conversations that were taking

place in UN missions in Geneva. As talks at the CCW were wrapping up, Canada took the

floor on the last day of the review conference to issue an invitation to States interested in

pursuing a ban to attend a strategy conference in Ottawa in 1996. In the lead-up to the

strategy conference, Canada circulated a draft Declaration to be adopted at the end of the

Conference that included a call to conclude as early as possible a legally binding

international agreement. States wishing to participate in the Conference were asked to


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commit to a ban beforehand. This ‘self-selection’ approach signaled early on the

determination to achieve a total ban, where consensus by all States would not be sought at

any cost.6 This move away from a consensus-based approach to negotiations was a true

departure from how disarmament was typically conducted internationally, where

negotiation and adoption by consensus were considered to be prerequisite for an

agreement to be effective. In this sense, some States were held to more important than

others, notably weapons producers.

Universal adherence was held to be a core ingredient for the success of an arms agreement

and therefore consensus was required from the start of talks. The Ottawa Process approach

instead defined before formal talks had even begun what the end point would be.

Opting out of a consensus-based approach meant stepping out of the existing disarmament

forums within the UN where consensus was a long-held practice although than a mandated

procedure.

From the outset, Canadian officials were unsure how many would accept the invitation to

attend in Ottawa. 67 States participated, with 50 signing the Ottawa Declaration.

This initial high number of participants allowed Canada to raise the stakes even further, by

issuing a surprise call during the concluding session of the Conference to reconvene one

year later to sign a ban. In a sign of the future dynamics of the Process, Canada’s pre-

emptive announcement was orchestrated with the ICRC and the NGO coalition the

International Campaign to Ban Landmines (ICBL) with the prior blessing of UN Secretary

General Kofi Annan. No other State was aware beforehand that this announcement would

take place.

6 The Declaration of the Ottawa Conference was annexed to a letter dated 16 October 1996 from the Representative and Ambassador of Canada to the United Nations for Disarmament to the Secretary-General, which was circulated as an official United Nations document (A/C.1/51/10) for the fifty-first session of the General Assembly.


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2. Substance

With 50 States publicly declaring their political commitment to work towards a ban, the

following 16 months were dedicated to a series a meetings hosted by various capitals7 to

work on the substance of the Treaty. In parallel, regional conferences, workshops and

bilateral meetings were convened around the world to build up support among as many

States as possible. These were mainly coordinated by Canada, through the Ottawa-based

Non Proliferation, Arms Control and Disarmament Division (IDA) team at the Department of

Foreign Affairs and International Trade (DFAIT) and their counterparts in Canadian missions

around the world, working in lock-step with the ICBL NGO coalition and the ICRC. The senior

official overseeing global and security policy at DFAIT, Paul Heinbecker, had secured

$2million CAD budget to fund the overarching campaign, giving the IDA team the financing

required to run a sustained global campaign. The IDA team were in daily contact in person,

by phone and by fax with the ICBL steering committee, as with other Core states who had

formed around Canada. These included notably Norway and Austria,8 who would go on to

host significant meetings and conferences, as well as South Africa (whose disarmament

ambassador Jacob Selesi would preside over the diplomatic conference) and the Philippines

(whose President Ferdinand Ramos was a General fighting an insurgent group which used

mines at the time9).

Austria held the pen on treaty drafting. Extensive talks over 14 months were held on three

successive drafts produced by Austria on the basis of talks with States and civil society

participating in the Ottawa Process. The initial structure and wording was taken from

previous weapons bans on chemical weapons and on biological weapons. Additional articles

were added relating to victim assistance and demining, a departure from classic

disarmament treaties. In Brussels in April 1997, the third Austrian draft was officially

adopted as the basis for diplomatic negotiations in the Declaration for the Brussels

Conference on Anti-Personnel Mines, which was signed by 97 States out of 156

participating.

7 Brussels in June 1997, Vienna in February 1997 , Bonn in April 1997, 8 Sinclair had a strong working relationship with the Geneva-based Austrian disarmament ambassador at the time, Tomas Hajnocki, having worked closely with him during her time as NATO liaison officer. (Interview, April 2015). 9 John English


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During the Process leading up to talks on the final text, the ICBL was involved in four

particular aspects of work that underpinned the efforts of the coalition of pro-ban States to

achieve a ban on APMs. Firstly, at the street level, the ICBL, through its 1,000+ member

network, was able to reach out to local voters and mobilise citizens around the world.

Secondly, in the corridors of parliaments and legislatures globally, the ICBL members were

also raising awareness and building support among policy makers. Thirdly, at the back of the

room during negotiations, ICBL publications were providing expert research and eye witness

accounts to reinforce the importance of a ban on APMs. Finally, and very importantly, the

ICBL was at the table during talks with their status and rights of full observer. The role of the

ICBL and its coordinator Jody Williams was recognized by the joint awarding of the Nobel

Peace Prize in November 1997, a month before the MBT was signed by 122 States in

Ottawa.

3. Agreement

On 1 September 1997, the Diplomatic Conference on an International Total Ban on Anti-

Personnel Land Mines was convened in Oslo, Norway. The Conference lasted three weeks.

Given the progress that had been made during the substantive phase on drafting a final

treaty, the Conference was expected to proceed relatively smoothly, albeit with uncertainty

around which states would indeed adopt the treaty. In the end, the highest risk of

destabilisation came from the late entry of the US and the attempt by the American

delegation to introduce a Korean exemption as well as a long transitional period. This

attempt was not successful, although Washington placed strong pressure on their

counterparts in capitals around the world. 89 States adopted the final text of the MBT on 18

September 1997. It opened for signature in Ottawa on 3 and 4 December 1997. It entered

into force on 1 March 1999, six months after the fortieth instrument of ratification had been

deposited, with a total of 71 Signatories.10 The MBT was the fastest multilateral global arms

control treaty to enter into force in the 20th century.

10 United Nations, Treaty Series, vol. 2056, p. 211


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Landmines: Australia and regime blocking

During the Ottawa Process, Australia was a participant in all three phases and a signatory to

each formal document that signalled the transition to the following phase, from the Ottawa

Declaration to the Brussels Declaration to the Mine Ban Treaty. Closer analysis shows that

Australian diplomatic efforts were geared towards promoting an alternative outcome to the

MBT, namely the pursuit of talks within the Conference on Disarmament at the UN, without

envisaging a full ban on APLMs. Canberra’s reluctance to embrace the Ottawa Process was

grounded in procedural concerns, about leaving the UN frameworks, and in pushing a strong

substantive outcome that would go against its main ally, the US, and other military powers.

1. Commitment

In the 1990s, Australia’s Labor Foreign Minister Gareth Evans was focused on the nuclear

file. Australia’s presence in Geneva had been ramped from the late 1980s in order to

continue to pursue multilateral efforts on ongoing talks on a Conventional Test Ban Treaty

(CTBT), including the creation of the post of Disarmament Ambassador. Conventional

weapons were not on Evans’ radar. Evans saw measures on transparency on export controls

and conventional weapons as the only, modest option for the “long and arduous” path

forward with the P5 to set the tempo. 1 He maintained a traditional arms control approach

to the Ottawa process, arguing that talks should be conducted within the traditional

disarmament forums set up under the UN, the Conference on Disarmament and the CCW,

whose members included the major users and producers of landmines. He was personally

sceptical of engaging in talks outside of the UN as he felt that key states would not

participate, thereby discrediting any possible outcome. Furthermore, he also felt that a

complete ban was not realistic and was in favour of stronger regulations rather than a

prohibition. He stated that the “moral position” 1 on landmines was to take action within

these forums rather than waste diplomatic efforts on a “hopeless utopia”.1 His government

lost federal elections towards the end of the commitment phase. Under his conservative

successor, Alexander Downer, Australia changed positions, publicly supporting both

approaches, the Ottawa Process and a UN-based process. Participation in the Ottawa track

was now included as one avenue1 while continuing efforts for broader take-up of Amended

Protocol 2 of the CCW and for more stringent rules in the CD. The multi-avenue approach

followed by Downer from 1996 onwards reflected Australia’s position that universalisation


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of strong regulations on landmines was necessary and that the Ottawa Treaty was unlikely

to be ratified by producer countries represented in the CCW/CD. Australia’s consistent

position from Evans to Downer was that the regulation of landmines was a case for

disarmament rather than a humanitarian issue, which is why the CD and the CCW were the

preferred forums for talks to proceed. Under Downer, and in line with the preference of

Washington, the CD avenue that was Evans’ preferred option was notably pushed as the

preferred forum for landmines action. 1

2. Substance

At the first turning point of the Ottawa Process, the 1996 Strategy Conference hosted by

Lloyd Axworthy, Australia again reinforced its preference for talks to proceed within the CD

while commending the Conference as “an important backdrop” for “raising public

awareness”.1Australia successfully campaigned for the appointment of a Special Coordinator

on landmines to the CD in 1997. The role was taken up by Australia’s disarmament

ambassador John Campbell, who was tasked with developing a mandate for discussions to

commence within that forum. Campbell proposed four possible options, ranging from the

creation of an ad hoc committee to an incremental path towards a partial or complete ban

or the negotiation of a comprehensive ban. No mandate, however, was agreed to. As

progress in the Ottawa Process ramped up, the CD path under Ambassador Campbell was

postponed in August 1997 (pending the outcome in Oslo). An extension to Campbell’s

mandate was blocked that year, but was reinstated the following year, and again in 1999.

Australia’s participation in the Ottawa Process continued, with the notable inclusion in the

official delegation of Sister Patricia Pak Poy as the representative of the Australian Network

for the Campaign to Ban Landmines. Sister Pak Poy, a Catholic nun from Downer’s home

town of Adelaide, had been included during CCW Review Conference talks and continued

during the major steps of the Ottawa Process. Launched in 1993, the Australian Network

brought in key partners such as Oxfam, the Australian Red Cross and Australian-based UN

affiliates to focus the Australian government’s attention on the humanitarian impacts of

landmines and the urgency of a global ban through a grassroots campaign including film

screenings, photos exhibitions and public rallies. Sister Pak Poy certainly drew public

attention to the push for a ban in the Ottawa Process, as acknowledged for example in 1998

by the prominent Returned and Services League (RSL) – the peak body representing


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returned servicemen and servicewoman- who named her person of the year at their annual

conference. In 2007, Alexander Downer would also recognize her role in the foreword to a

collected edition of articles.

3. Agreement

At the Oslo Diplomatic Conference, Australia was one of a small number of States continuing

to support specific US amendments limiting the draft treaty’s provisions. It was only

subsequent to the Oslo conference, that Australia announced its intention to be among the

initial signatories the Mine Ban Treaty. Australia could be said to have finally shifted to its

unqualified support for a total ban when the hard yards had been won and the United

States’ position became untenable. Two years later, and contrary to Evans’ predictions, the

Ottawa ban treaty was adopted. Alexander Downer would go on to sign it in December that

year and it was ratified in January 1999 in the Australian Parliament. FM Downer’s speech

on announcing Australia’s ratification of the Ottawa Treaty referred again to the CD,

reinforcing the Australian preference for multilateral diplomacy with a broad membership

and a fixed forum. This demonstrated that despite official support for the Ottawa Treaty,

Canberra remained cautious about the impact it would have. Nonetheless, Australia was

among the first signatories in 1997 and went on to destroy stockpiles in 1999. Funding for

victim assistance and demining has been ongoing since then, and Australia has continued to

contribute in the implementation of the Treaty in various capacities.

Cluster munitions: New Zealand and regime building

The CCM was negotiated in three phases. Political commitment (1) from a growing number

of States to address the “unacceptable harm to civilians” that was caused by cluster

munitions led to the fast-track negotiation of the substantive elements of a treaty (2) that

was agreed to and adopted initially by 107 states (3). These three phases, commitment,

substance and agreement, constituted the Oslo Process. The starting point for the Oslo

Process was the path-breaking Ottawa Process that had preceded it, in terms of coalitions of

actors (states and NGOs), and the format and content of negotiations, namely a

humanitarian arms control treaty negotiated outside of the UN.


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1. Commitment

In the 1970s, states had already started talks on banning cluster munitions and other

explosive weapons. These talks did not lead to negotiations on instruments of international

law. Evidence of high civilian casualties from cluster munitions began to emerge from the

1990s (Iraq in 1991, Chechnya in 1994-96, former Yugoslavia in 1999) and into the 2000s

(Afghanistan, Iraq, Lebanon). The international community began to take notice, with the

creation of the NGO network the Cluster Munitions Coalition (CMC) and regular attention

from the ICRC. The intent was to develop prescribing regulations rather than prohibiting a

category of weapon.

From 2003, informal meetings were held at permanent missions on the margins of existing

disarmament meetings in Geneva among disarmament diplomats from a small but

committed group of states along with partners in the ICRC, the UN and the CMC. Conflict in

Southern Lebanon in 2006 led to millions of cluster bombs being dropped by Hezbollah and

Israel, a significant amount of which were failing to detonate on impact and constituting a

high risk of death for civilians returning home after the end of hostilities.

This spurred the most progressive actors – states and civil society – to consider pursuing a

much stronger set of binding rules. A group coalesced around Norway which included

representatives from Austria, Belgium, the Holy See, Ireland, Lebanon, Mexico, New

Zealand, Peru, Sweden and Switzerland. An opportunity to begin talks on a stronger set of

rules emerged at the 2006 Third Review Conference of the Convention on Certain Weapons

(CCW) in Geneva.

When the Review Conference failed to agree to begin negotiations of a legally binding

instrument that would address the humanitarian concerns posed by cluster munitions,

Norway invited interested state to attend an international conference in Oslo in February

2007 to start an independent process outside the CCW to negotiate a cluster munition

treaty.11

11 On 17 Nov, Norway’s new MFA and former head of Norwegian Red Cross Jonas Gahr Støre stated that “We must take advantage of the political will now evident in many countries to prohibit cluster munitions that


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At the conference, 49 states formally adopted the Oslo Declaration and committed to

conclude by 2008 a legally-binding instrument on “cluster munitions that cause

unacceptable harm to civilians” to prohibit their use, production, stockpiling and transfer.

The ambiguous formulation of “unacceptable harm” left states open to interpret the scope

as suited them for political expediency.12

Norway was leading the charge with the financial and political support, and legal and

weapons law expertise, of a small group of core states who would host and help steer key

milestones in the process.

From the beginning of the Oslo process, the New Zealand Disarmament and Defense

Minister Phil Goff had been particularly engaged and supportive of his Geneva-based

disarmament team. New Zealand’s expert deminers had participated in activities in Lebanon

and the Minister had heard first-hand of the devastating consequences of unexploded

remnants of war. Between 2002-2206, the New Zealand Ambassador Disarmament, Don

Mackay, had played an important role in negotiations for the Convention on the Rights of

People with Disabilities (CRPD), notably as president of the Ad Hoc Committee leading talks

form August 2005 in New York. He was experienced at negotiating treaties within the UN

system and was particularly attuned to the human rights aspects of victims of cluster

munitions through his work on the CRPD. Don Mackay’s work throughout the Oslo Process

would prove key, not simply from the perspective of his legal prowess, but also thanks to his

“sheer doggedness”, endurance during long meetings and unrelenting attention to detail.

Both Goff and Mackay were highly aware and in synch throughout the Oslo Process.

Wellington was supportive from the beginning of New Zealand’s active role in talks.

Financing was forthcoming to host an international meeting, the largest multilateral

cause unacceptable humanitarian harm. The time is ripe to establish broad cooperation on a concerted effort to achieve a ban.” 12 For cluster munitions users and producers, this formula was seen to only partially close the door on future use (with the potential to exclude from the scope of a future instrument any weapons that caused ‘acceptable harm’, for which no specific definition existed at that point). For states whose starting point was that all cluster munitions caused unacceptable harm by their very nature, this formula was also adequate as it indicated the possibility of a complete ban on the horizon with a strong humanitarian link.


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conference that Wellington had ever hosted, which was included in the timeline announced

in Oslo.

Crucial questions on scope, nature and definitions had been left very much open at this

early stage and would require further meetings and technical talks, to be held in Lima,

Austria, and Wellington, to formulate the substantive elements that would form the

baseline for negotiations. Majority decision-making was the modus operandi of the Oslo

Process, in contrast with the consensus-based approach of the CCW.

2. Substance

Complex technical and legal argumentation to define a cluster munition would occupy much

time during the months between Oslo and the Dublin Diplomatic Conference.

The thorniest issue to resolve during this phase was the question of military utility. Progress

was made when new research emerged to provide a solid evidentiary base that disproved

accepted thought on dud rates.13 Tabled at a meeting in Vienna, this research pushed

discussions in the direction of a strong precautionary approach in view of the findings that

cluster munitions equipped with self-neutralisation or self-destruction mechanisms can fail,

thereby increasing the risk of harm to civilians.14

The stream of work on definitions was coordinated by Don Mackay. The formula that would

be used involved a reversal of burden of proof that placed the onus on producers to justify

why their weapons did not cause unacceptable harm.15 Thanks to this formula, talks would

not be hamstrung by debate about which weapons to include and why, but would instead

progress to the modalities of the prohibition. This was a critical achievement in the Oslo

13 This would include research conducted by the Norwegian Department of Defense which showed that the actual dud rate, or failure rate, of their national arsenal of cluster munitions was much higher than the official figures. Whereas previously the Norwegians had estimated dud rates to be less than 1%, studies conducted returned results upwards of 10%. 14 Rosy Park 15 They would have to argue why their weapons should not be excluded from the prohibition on use that the treaty would bring about. Rather than negotiate which weapons should be banned, requiring extensive technical expertise and placing the burden on progressive countries to demonstrate unacceptable civilian harm, negotiations would instead focus on a narrow and cumulative list of characteristics which weapons would need to comply with to be considered acceptable and outside of the scope of the treaty.


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process as it opened the pathway to negotiating a comprehensive ban and equally

importantly focused attention and energy on victim assistance and the ongoing

humanitarian aspects of weapons use in particular in post conflict contaminated areas.

The running point that marked the passage between the substantive phase and the

agreement phase was the Wellington Conference, the largest disarmament meeting ever

convened in New Zealand. A key ally of the government here was campaigner Mary

Wareham, the founder of New Zealand Aoteroa Cluster Munitions Campaign, who had been

part of the Ottawa Process working in close collaboration with the ICBL. She lent her

considerable expertise in conference management to Don Mackay and his offsider Charlotte

Dawson as they geared up for the conference. Wareham also coordinated a highly visible

campaign of public activity during the Wellington Conference, from public demonstrations

to placards on the streets. This notched up the intensity of proceedings and was a source of

irritation to some of the less progressive states diplomats.

Don Mackay’s personal qualities proved crucial during the Wellington Conference, the final

step in the substantive phase of the Oslo Process, which resulted in the adoption of a draft

baseline text for negotiations and rules of procedure for the Dublin Diplomatic Conference.

Aside from the exclusions formula to define cluster munitions, another sizeable issue began

to emerge in Wellington that had the potential to destabilise the Oslo process, namely the

question of interoperability which was a key are of concern for states with obligations under

military alliances. Tensions between US allies in particular and other states would lead to

rising tensions in the negotiating room and in capitals, with political pressure being put on

allied capitals from Washington.16

As it became clear over the course of talks in Wellington that the final baseline text that

would be negotiated in Dublin would indeed be far-reaching in scope, the so-called “like-

minded” group of states with military connections to NATO and under the political influence

of the United States began to voice considerable concern and threatened to derail talks.

16 WikiLeaks documents


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Diplomatic demarches from the US State Department’s Arms Control unit and in particular

its director Richard Kidd III had multiplied and intensified in the lead-up to Wellington and

would continue to do so until the treaty was gaveled in in Dublin.17

The pressure being applied by Washington-based desk officers was felt keenly by a group of

smaller states from Asia, Latin America and Africa, who in private presented a signed letter

to Don Mackay and the Conference team in Wellington to exhort them to remain faithful to

the strong stance on definitions. 18

To assuage the concerns of the Like-minded group, and to ensure that the conclusion of the

Wellington Conference would indeed lead to a greenlight for final talks in Dublin, the New

Zealand delegation proposed a procedural compromise with alternate text included from

the “like-minded” group in a compendium as an appendix to the Wellington Declaration.

In a hostile diplomatic environment where larges states were using their influence around

the negotiating table, and behind the scenes (between officials in various capitals),

compounded by the active presence of civil society protests against like-minded states on

the periphery of the conference venue, the outcome in Wellington was surprisingly

progressive. Mackay’s ability to remain calm in the face of intense pressure from like-

minded states, and openness to creating space for smaller delegations to share their

concerns with him, ensured that an outcome was not only achieved but that it represented

the majority of states views rather than the views of the major states.

Agreement

The Wellington Declaration had set a strong path for the two-week diplomatic conference in

Dublin to proceed. Over the course of three weeks, from 19-30 May 2008, 107 States

worked their way through the draft treaty text that had been appended to the Wellington

Declaration. Strong voices assisted the President of the conference by guiding proceedings

17 Zambian diplomat interview in Geneva 2015 18 Research interview


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in thematic subgroups as Friends of the Chair. Don Mackay would once again shepherd work

on definitions in this function. Key breakthroughs occurred when the definitions formula

was accepted. Strong victim assistance measures and a path-breaking legal definition of

victim would create a precedent in international law.19 Controversially, a sub-clause within

article 21, referred to as interoperability, would also be included in the final treaty text.20

Although the text itself is subject to legal interpretation, its purpose was to ensure that

states parties to the ban would not jeopardise future military operations with allies who

were not signatories.

The tactical alliance of progressive states and non state actors, bringing to bear the voices of

victims from 350 organisations working across 90 different countries, sustained the

momentum and pressure required to bring about a strong prohibitions regime in 14 months

and in the crucial weeks during negotiations in Dublin.

Cluster munitions: Canada and regime blocking

After the Mine Ban Treaty, Axworthy and the Chretien liberal government were replaced by

Steven Harper’s Conservative government. The international context had also changed since

the Ottawa Treaty had been signed in 1997, notably with the pre-eminence of security

concerns. On cluster munitions, Canada saw the way forward to be within the CCW as an

extension of existing provisions, rather than a new instrument with new provisions.

Canada’s cautious approach reflected balancing public concerns in the wake of wide-spread

use of cluster munitions against civilians in Lebanon with “keeping the door open” for future

Canadian use of cluster munitions and participation in joint operations with the US as

manufacturer of 70% of cluster munitions.21 This was held up as a stark contrast to the MBT.

Given the close connection between both the process and the substance of the Ottawa

19 Strong connection with the Convention on Rights of People with Disabilities which had just been negotiated at the UN in New York, with Don Mackay a notable participant. 20 Steve Goose, head of Arms Control for Human Rights Watch and a member of the steering committee of the Cluster Munitions Convention, would refer to this as the “stain on the cloth” of the prohibition on cluster munitions. 21 See John Borrie pp 172-3 “Unacceptable harm: a history of how the treaty to ban cluster munitions was won”, UNIDIR 2009


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treaty, this could be seen to be a manifestation of Harper’s “light switch”22 approach on

foreign policy where the Conservatives were looking to position themselves as the polar

opposite to their Liberal predecessors – the “ABL” approach (anything but liberal).

During the Oslo Process, Canada was a participant in all three phases and a signatory to

each formal document that signalled the transition to the following phase, from the Oslo

Declaration to the Wellington Declaration to the Cluster Munitions Convention. Canadian

efforts were designed to steer talks away from the progressive track of the Oslo Process

towards the gradual approach within the CCW.23

1. Commitment

In 2006-07, as momentum built up within the CCW and then later in the Oslo Process ,

international measures on cluster munitions were not high on Canada’s international

agenda in Geneva. Ottawa was nonetheless present at every step in the cluster munitions

talks in both the CCW in Geneva and the Oslo Process forum. When options were being put

forward in the final week of the CCW Review Conference in Geneva, Canada intervened in

plenary to propose amendments to a mandate proposal put forward by the UK for a GGE to

explore further how existing IHL provisions should be applied to cluster munitions. When

the conference ended without consensus, Norway’s invitation to Oslo was taken up by

states committed to action outside of the CCW but also by states such as Canada for whom

“it looked better to the outside world to be involved, and offered the prospect of influence,

if not outright control, of the process.”24

From a disarmament perspective, Canada’s official policy was an incremental path to a

partial ban rather than a complete ban, with a preference for negotiations to be conducted

within the CCW rather than outside of the UN’s disarmament machinery. From a

humanitarian perspective, Canada was in favour of strong provisions on victim assistance for

any future instrument.

22 Paul Heinbecker coined this expression. He was speechwriter to the Progressive Conservative PM Brian Mulroney and went on to hold one of the most senior civil

service positions in DFAIT under Liberal PM Chretien. Although he has been an outspoken critic of Stephen Harper, his political perspective is relatively agnostic. He has

been approached by all three mainstream parties – Liberal, Conservative and New Democratic Party (NDP) – to stand as a federal political candidate.

23 Borrie pg 125 24 Borrie


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As the Oslo Process picked up in speed, Ottawa continued its efforts to move the centre of

gravity on cluster munitions back to the CCW, while still participating in the Oslo Process,

both of which were running in parallel.

Canada would be the first NATO state to address plenary to officially endorse the Oslo

Declaration. Canada was among a cohort of states which progressive states had not

anticipated would join the Declaration, including Italy, the UK, Finland and Egypt. Some of

these states would also join Canada as proponents of a CCW protocol in parallel, along with

Australia and Switzerland. Strategically, the Oslo process would be used as a lever to apply

pressure to the cluster munitions producers and users within the CCW to ensure that rapid

progress would ensure there rather than in an ad hoc track where the numeric advantage

would lie with non producing and non using states. This strategy, of backing two horses,

would ultimately back-fire in Wellington as the Oslo process entered into the final phase of

the substantive negotiating phase and the groundwork was laid for the Dublin Diplomatic

Conference.

2. Substance

In Wellington, Canada aligned itself with the so-called group of Like-minded states that

included a broad church of NATO members, producers and users with significant cross-over

with CCW membership, with the UK, France and Germany the most vocal among them as

well as Japan (one of 4 states not to endorse the Oslo Declaration) and Australia. Two issues

brought the homogenous group together.

For producers and stockpilers, the focus was on ringbarking existing stockpiles or weapons

produced domestically and protecting them from the scope of the future treaty.

For US allies, the focus was on the future viability of joint American military operations and

fulfilling treaty obligations given that the US was not expected to sign the future treaty and

had been a historical user and producer of cluster munitions.

Canada fell within the latter category and was especially keen to maintain relations with the

US at this point for a variety of reasons (including the ongoing talks on trade agreements).


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The views of the like-minded were included in a compendium to the Wellington Declaration,

which contrary to their intent maintained a preventive approach on definitions and did not

include transition periods.

On interoperability, Canada had begun to take a lead role in order to steer a path that would

assuage public concerns about responding adequately and in good faith to the humanitarian

crisis in Southern Lebanon while not jeopardizing US military relations. At the closing,

Canada associated itself with a statement on behalf of the like-minded group declaring

dissatisfaction with the conference as it felt different opinions and views had not been

taken into account in a balanced way.25 Canada made its own statement severely criticising

the conduct of NGOs.26

Opting for the CCW track was no longer possible as it had been suspended in June after

consensus was not reached. It was no longer possible to starve the Oslo process of oxygen

which led to the reluctant presence of the Like-minded in Dublin who had publicly

committed to taking multilateral action on cluster munitions and could not back away from

this public stance without incurring domestic backlash.

After Wellington, the Like-minded group of states largely went their own ways, as states

either (a) established criteria that would protect their specific national interests without

undermining the overall strength of the future instrument, or (b) for domestic political

reasons (the UK notably would have a complete about-change in position when PM Gordon

Brown announced the complete destruction of UK stockpiles on the eve of the last day of

talks in Dublin). In the case of Canada, interoperability had been a clear red-line.

25 Statement of France on behalf the like-minded countries, closing plenary, Wellington Conference, 22 Feb 2008 www.mfat.govt.nz (From Landmines Monitor?) 26 Landmine Monitor: “Canada especially objected to NGO criticism that Canada’s concern over interoperability was directly related to pressure from the US. A Canadian delegate stated that NGOs “currency in this process is diminished by some of the tactics employed to influence th process. Countries such as my own and several close allies have been vilified in press interviews and in press releases produced by the CMC…. We have been accused of quote trying to undermine an international treaty on cluster munitions enquire. Nothing could be further from the truth. Such accusations are unfounded and unfair. In my view such tactics are demanding and counterproductive. They tarnish the credibility of you organsiations and do a disservice to the noble cause youths to advance.” Statement of Canada Closing Statement Wellington Conference.”

http://www.mfat.govt.nz/


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3. Agreement

The marriage of convenience within the like-minded group was beginning to break down as

states began to shift their positions with the likelihood of Dublin producing an outcome

became more and more likely. The focus shifted towards back-channel bilateral talks to find

ways to ring bark national weapons arsenals, for example in the case of France and

Germany. For domestic political reasons, the UK’s position would also change dramatically

over the course of the final phase of talks. The dwindling bond between the Like-minded

group would eventually fall apart by the time the diplomatic conference convened in Dublin.

In Oslo, as a member of the 20-country strong group under a Swiss diplomat as Friend of the

Chair leading talks on interoperability, Canadian military lawyers had been actively shaping

the final inclusion of what would become article 21. The result was satisfactory to the US

allies for whom it had created real dilemmas, while provoking the ire of progressive states

and civil society, Steve Goose of HRW labelling the article “the only stain on the fabric of the

CCM”.

What is notable about the final text is what is not contained within the Convention.27 No

broad exclusions form the ban were introduced. Cluster munitions with specific elements

that military powers had been arguing made them safe, for example with self-destruct

mechanism, were not excluded from the ban. No transition period during which cluster

munitions could still be used was included, again another sticking point for major powers of

the “like-minded” group.

Canada signed the CCM in Dublin in 2008,28 although the subsequent national legislation

that was passed after three readings and amidst much debate was controversial

domestically as it was seen by some to have contradicted the spirit of the treaty in particular

on the interpretation of the obligations under article 21 on interoperability and also on

aspects such as investments. This would lead notably to the high profile resignation of one

27 Rosy Park 28 Implementation within national legislation


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of the Canadian negotiators, Earl Turcotte, who had led the drafting of that particular article

during the Oslo process and who ended his 20 year long career in protest at the 2012 Bill S-

10 adopted by the Canadian Senate.29

Arms trade: Australia and regime building

The ATT was negotiated in three phases. Political commitment from a UK-led core group of

states shepherded the civil society initiative for an arms trade treaty through the UN

framework in New York (1) to reach an acceptable base-line for the negotiation by

consensus of the substantive elements of a treaty (2) that was adopted after two diplomatic

conferences by majority vote in the United Nations General Assembly (3). These three

phases, commitment, substance and agreement, constituted the ATT Process.

The ATT Process applied aspects of the Ottawa/Oslo blueprint, with coalitions of actors

focused on long-term humanitarian objectives, to a substantively different field – arms

transfers rather than disarmament- and in a different procedural framework, the UN in New

York. The ATT is a binding reporting mechanism that aims to bring transparency to a

complex area of trade in order to combat illicit trade, prevent diversion and apply human

rights and IHL principles to legal trade. The ATT places responsibility on states as producers,

exporters, importers and users of weapons, to keep weapons from falling into the wrong

hands. It is path-breaking by its very existence – the first global binding set of trade

guidelines agreed to by all but 3 states in the UN system in the complex area of weapons

and arms transfers.

Commitment

Efforts to establish binding, international standards to prevent irresponsible arms transfers

had been championed by civil society from the 1990s onwards. The 2001 UN Programme of

29 Senator Romeo Dallaire, the NATO Force commander in Rwanda in 1994 who was later elected to the Canadian Senate was another vocal critic of the legislation, saying at the time “We nearly wrote the whole damned convention and now (…) we are literally coming out as an outfit that talks out both sides of its mouth. We are saying “No we will not use them but by the by if we do have people involved we will let them use them”. Is that supposed to give us the warm, fuzzy feeling that we are applying the spirit not just the letter but the spirits of the convention?” Quoted in Robin Collins “Can we fix Canada’s flawed cluster bomb treaty legislation?


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Action (PoA), was the first multilateral step in this direction, paving the way for an

instrument that would go beyond the politically-binding agreement and towards an arms

trade treaty. After Tony Blair’s Labor party came to power, an arms trade treaty began to

gain traction after campaigning from the NGO Control Arms Coalition led to the inclusion of

an ATT in Labor’s electoral platform. In July 2005, on the margins of the first review

conference of the UN PoA, a newly-formed group led by the UK and including Australia and

five other states from every region lobbied other states to take next steps on an arms trade

treaty. The co-authors group circulated a draft text to take to the UN First Committee later

that year. This kick-started the move to international political commitment for an ATT,

firmly situating the ATT Process within the UN’s New York disarmament machinery. The

Resolution was carefully chosen to open up avenues for a future instrument without scaring

off sceptical states. The crucial yet modest first step consisted of inviting states to

contribute their views while also setting in a train a technical work-stream under the

chairmanship of veteran disarmament diplomat, the Argentinean Roberto Garcia Moritan.

Australia’s position in this first phase was one of supportive input, providing a wealth of

technical expertise that not only contributed at every step through submissions and

statements but also a wealth of diplomatic and procedural expertise as vice-president of the

technical and then preparatory processes between 2006 and 2012. As a close military ally of

the US and significant importer of American conventional weapons, Australia had easy

channels of communication to Washington and was a trusted ally of a state that was at the

heart of the ATT Process and whose presence was a condition sine qua none of progress. At

the same time, Australia was also contributing substantively and through ongoing presence

of staff in New York and Canberra-based senior officials on rotation to the ATT Process and

had the ear of the co-authors and progressive states such as New Zealand and CARICOM.

Substance

Over the following four years, the ATT Process proceeded in line with UN procedures at a

fast pace by New York standards. The parameters for each phase of work were spelled out

in UNGA resolutions. UNGA majorities were thus required to approve the type of working

body carrying forward the mandate, the scope of their activities, the end output, timing and

method of work. This paved the way for further work on achieving a substantive negotiating


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baseline for talks that would operate under the rule of consensus – the condition imposed

by President Obama in exchange for US support. Between 2007-2012, technical experts and

state diplomats met in various bodies and forums. The Group of Governmental Experts

(GGE) met three times in 2008; followed by an Open-Ended Working Group (OEWG) which

met twice in 2009; and four preparatory committee meetings (PrepComs) between 2010

and 2012.

Australia’s delegations to these meetings were consistently amongst the largest in numbers

and the broadest in terms of expertise. Australia also delivered the most number of

statements during the four PrepComs, contributing substantive elements to the debates on

scope, criteria and implementation.1 This depth and breadth underpinned Australia’s

selection as one of eight vice-chairs in the preparatory process under the leadership of the

Argentinean Roberto Garcia Moritan.

This stream of working groups bubbled to the surface the many areas of difference between

state positions. The broad spectrum of views ranged from ‘maximalist’ states on the

progressive side to skeptical states on the other side. The most sceptical of the scepticals

was the ‘Friends of the ATT’ group (Iran, North Korea and Syria as well as at times Cuba,

Pakistan, Venezuela and Zimbabwe), who were concerned by sanctions on arms imports

curbing their arsenals. Most established and emerging arms exporters were supportive of a

limited treaty that would not affect their access to technology or to export markets.

Progressive states wanted a comprehensive treaty that would prohibit exports that would

lead to human rights and international humanitarian law violations, including states such as

Iceland who were pushing for wording on gender-based violence. The centrist progressive

view saw the future treaty as adding more rigor to arms export standards, while the most

progressive states and civil society more generally saw the treaty with a long-term view of

reducing arms on circulation.

As talks continued over a period of years, the position of the UK gravitated away from the

more progressive states and more to the centre in line with the remaining P5 states (the US

and France) who were pushing for inclusion of certain IHL and HRL conditions on exports


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while maintaining state security issues. This change in position was made explicit in 2011

when the P5 issued a statement calling for a ‘simple, short and easy to implement’ treaty.

During this time, the Australian position consistently bridged the divide on either side of the

spectrum. While supportive of IHL and HRL provisions, Australia was willing to compromise

on issues such as the scope of the treaty if this was necessary to maintain consensus and

achieve a final outcome. This was most apparent on ammunition, a sensitive issue for the US

who wanted to keep it out of the final treaty contrary to progressive states.

One of the only countries to include in its delegation a balanced mix of diplomats and

technical experts on issues such as export control systems, Australia’s position was

consistent and based on arguments that reflected deep knowledge of the complex areas

overlapping in the context of a hybrid instrument merging arms control and arms flows.

Australia’s reputation grew as a state with both substantive expertise and diplomatic

pragmatism linking both sides of the progressive/sceptical divide. This was enhanced by

Australian financial support to extend participation in the ATT Process across the Pacific, via

the Pacific Small Arms Action Group (PSAAG), as well as in the Caribbean (and CARICOM in

particular) and Africa. This sustained 7-year allocation of expertise, funding and diplomatic

capital by Australia was a central plank to the national campaign for a temporary seat on the

UNSC.

Agreement

Four preparatory committee meetings were scheduled over 2011-12 to map out the

definition, scope and parameters of the future treaty, as well as procedures of the

diplomatic conference to be held in July 2012. The series of meetings was designed to

progressively narrow the gap between progressive and sceptic states, to achieve a

commonly acceptable and broad-based legal instrument that would include arms exporters

and importers while seeking to address the serious humanitarian consequences of

irresponsible arms transfers.

Under the chairmanship of Argentinean Roberto Garcia Moritan, who had been at the helm

of the ATT Process since 2006, member states convened in New York in July 2012.The first


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conference ended without achieving consensus on the final text, with the US calling for

more time on the final day, and states such as China and Russia also indicating that the draft

text did not have their full support.

However, the momentum even among sceptical states was such that a second and final

conference was agreed on in December 2012 with the adoption of UNGA Resolution 67/234

and the convening of a diplomatic conference in March 2013. Res. 67/234 was an exercise in

procedural expertise and astute diplomacy, introducing a “Plan B” or “off-ramp” provision

which allowed for the treaty to remain on the agenda of the UNGA and therefore open to a

majority vote if the conference did not arrive at a consensus outcome.

This time, talks would be held under the chairmanship of Ambassador Peter Woolcott of

Australia after the resignation of Ambassador Moritan who was under domestic political

pressure in Argentina for matters unrelated to the ATT process.

Australia was strategically well placed to step in after consensus proved elusive.

The dynamic and at times abrasive approach adopted by Moritan over six years was crucial

in clearing the path towards the ATT and staying on target. Reaching the end goal required a

different approach, a more conciliatory stance to bring different views together, which the

experienced Woolcott brought to proceedings as a seasoned disarmament diplomat from

Geneva. He served as Australia’s Representative to the Conference of Disarmament, where

Australia had followed a successful pathway to avoid failure through consensus during talks

two decades earlier on the Comprehensive Nuclear Test Ban Treaty.

The final draft text from 2012 was used as the baseline for talks in 2013, with more

elements strengthened than weakened. The core drafting team supported both Presidents

of the Diplomatic Conference unchanged. Woolcott honed in on the divide between

progressive states and sceptical states in July 2012, particularly on scope and prohibitions

on transfers, in order to craft compromises to address the differences brought to light under

Moritan’s stewardship. Woolcott and his team spent three months in between the adoption

of the Dec 2012 UN Resolution and the 2013 March diplomatic conference travelling to all


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major regions, with for example Woolcott addressing the African Union in Addis Ababa

during a visit to conduct bilaterals in West Africa.

The “Plan B” would come into play in 2013 when consensus was blocked by three sceptical

states (Iran, DPRK and Syria) and the treaty was eventually adopted by majority vote in the

UNGA.

4. Conclusion

This paper has critically examined the diplomatic roles played by Canada, New Zealand and

Australia in the negotiation and development of three international treaties on

disarmament. By comparing and contrasting state behaviour during different negotiating

phases, this paper has examined the parallel yet different negotiating tracks taken by all

three countries in order to outline the conditions under which Canada, New Zealand and

Australia engaged in the creation of new international legal norms on the use of

conventional weapons. The patterns that emerge indicate that three elements are critical in

state regime building behaviour: political leadership, diplomatic resources and substantive

expertise. In the absence of one or more of these elements, state diplomatic activity does

not have significant impact or can impede progress towards regime building.

Regime building: Canada and landmines

Canada’s role in all three phases of the Ottawa process has been detailed above. Three

patterns emerge. Firstly, political leadership from Foreign Minister Axworthy was

instrumental in maintaining the pressure on states to join and conclude the Ottawa Process,

most notably in the first phase, the commitment phase, when Axworthy announced a target

end-date for treaty talks on an APLM ban during the Ottawa strategy conference This

announcement was made without forewarning to the 50 states that had already pledged

their support of the process. At the end of the agreement phase 12 months later, 89 states

signed the Ottawa Treaty. Secondly, diplomatic resources were a critical aspect in sustaining

the Ottawa Process across all three phases. The IDA team in Ottawa had the necessary

levels of staffing and financing to coordinate a 14 month global campaign that reached

every region in the world. DFAIT had also instructed Canadian mission around the world to


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lend assistance and resources as required. And thirdly, DFAIT’s substantive expertise was a

key component to the fast-tracking process of bringing states on board and developing a

fully-fledged international treaty through its arms control experts (within IDA) and seasoned

multi-lateralists. The networks of Ottawa-based officials were also deployed to full effect.

IDA’s Jill Sinclair had worked alongside Austrian official Thomas Hajnocki at NATO

headquarters, which opened the door for Austria to take up the pen on drafting the treaty.

IDA’s Bob Lawson had excellent ties with NGO partner ICBL, who he had been authorised

and encouraged to draw into the campaign, as equal partners in pushing for high state

participation and far-reaching substantive inclusions in the treaty. The ICBL would become a

lynchpin of the core group, a full and equal partner over the course of the Process and

primarily financed by DFAIT.

Regime building: New Zealand and cluster munitions

New Zealand’s political leadership, diplomatic resources and substantive expertise were all

present over the three phases of the Oslo Process. Buoyed by progress in New York on the

Convention of Rights of People with a Disability, and with a sympathetic minister in capital

whose joint portfolio of Defense and Disarmament provided a single policy direction,

Ambassador Don Mackay and his small team in Geneva played a significant role in firstly

underpinning political commitment to a ban in the initial phase of talks as a key ally of

Norway as they were shoring up support for progress regardless of the pace at which CCW

proceedings would advance. New Zealand’s pivotal role continued during the substantive

phase, with the all important work stream on definitions shepherded through to a strong

finish in the final phase of agreement, and the creative procedural solution of developing a

compendium of divergent proposals to ensure a green light through to the diplomatic

conference in Dublin. The solid partnership between the ministerial level and the

ambassadorial level was a key element in cementing Wellington’s role, notably through the

hosting of the largest multilateral conference ever convened in New Zealand. Ambassador

Mackay’s persistence in ensuring that the voices of the loud minority – the like-minded

group of American allies and major military powers – did not overpower the voices of the

majority in Wellington, leading to a strong and progressive draft treaty text that was

successfully negotiated in Dublin and eventually to a comprehensive prohibition on cluster

munitions.


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Regime building: Australia and the arms trade

Australia played a crucial role in the ATT Process through steady if low-key political

leadership, sustained diplomatic commitment and coalition-building and procedural

expertise. Australia adapted to the different dynamics played out across the three phases of

the seven year ATT Process. The technical aspects of the future instrument required

extensive input spanning years in various UN forums and bodies. Spanning two

governments of different political stripes, Australia’s consistent allocation of both technical

and diplomatic practitioners throughout the process contributed towards substantive

progress and maintaining the delicate balance required in a consensus-driven environment.

Financial support from Australia ensured broad participation by states in the Pacific, the

Caribbean and Africa. When talks stymied during the agreement phase, Australia’s

reputation that had built up since the beginning of the ATT Process saw Geneva-based

Disarmament Ambassador taken up the reins as President of the 2013 Diplomatic

Conference. Australian Disarmament Ambassador Peter Woolcott was an able diplomat

with a well-resourced team of technical and legal expertise at his disposal, due to resource

allocation linked to the Australian bid for temporary membership to the UNSC. Ambassador

Woolcott worked through a meticulously planned strategy to strengthen and consolidate

the existing draft treaty text while remaining resolutely focused on consensus as a modus

operandi for talks and for decision-making. When the final draft text was opposed by three

outlier states on the final day of the conference, Ambassador Woolcott was in a position to

activate the “eclipsing” of consensus that had been included in the UN resolution

establishing the conference. This opened the way to a majority adoption of the treaty. The

legitimacy of this tactic was grounded in the concerted efforts to negotiate through

consensus over the preceding months. Australia’s deft diplomatic understanding of UN

procedures coupled with a sustained commitment over a period of years were pivotal in

maintaining the momentum required to keep the UN machinery in play.

Regime blocking: Australia and landmines

Australia’s role during the Ottawa Process has shown how state involvement within one

process can at times slow progress and divert attention towards competing processes.


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Three patterns emerge. Firstly, two successive foreign ministers of different political stripes

were backing alternative UN approaches, while also participating in the meetings of the

Ottawa Process. Australia was strongly campaigning among Ottawa Process states to pursue

talks within the CCW and/or the CD. When these alternatives were delayed, Australia’s

public position in support of stronger regulations on landmines made it politically unviable

to back away from the Ottawa Process. This prominent public position was in part fueled by

the efforts of the Australian Network, an offshoot of the global ICBL campaign. Australia

continued to attend talks during the substance and agreement phase, limiting its activity to

supporting US efforts to include American exceptions on Korea and transition phases in Oslo

that were politically unacceptable to the majority of participants and which were

abandoned by Washington on the last day of talks. Although political leadership in favor of

the Ottawa Process was absent, the Australian delegation that was supporting landmines

efforts across all forums was well resourced and present at all major meetings, including

through the Disarmament Ambassador in Geneva. The inclusion of NGO representative

Sister Patricia Pak Poy was a significant addition in terms of substantive expertise on

landmines. Through the activities of her organization, the Australian Network, which

targeted elected members of Parliament and policy makers, the substantive elements and

knowledge required to understand and promote the options being canvassed in the Ottawa

Process were well known and in circulation in Canberra. While political leadership in support

of the Ottawa Process was initially lacking, diplomatic resources and substantive expertise

were present.

Regime blocking: Canada and cluster munitions

During the Oslo Process, Canada’s diplomatic efforts were focussed on steering talks away

from a wide-reaching treaty negotiated through the fast-track Oslo Process towards a

limited-scope protocol negotiated incrementally within the UN framework. Canadian

political leadership was intent on maintaining a strong bilateral relationship with the US

who favoured a gradual approach with narrow reach on cluster munitions. Canadian

diplomatic resources in Geneva and Ottawa were concentrated, firstly, on the CCW track

while secondly also aiming to prevent the final treaty in the Oslo Process from being too far

reaching, in particular on aspects that could jeopardise future military operations with

military allies and the US in particular. Canadian officials – diplomats and military lawyers,


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had both substantive expertise and procedural experience which were again deployed to

steer talks in the direction of Geneva rather than Dublin in concert with the coalition of

‘Like-minded’ states. In Wellington, when the final parameters for the diplomatic

conference in Dublin were being drawn up and the draft treaty for negotiation in Ireland

was being finalised, Canada and the Like-minded group were confronted with a stark choice.

As the CCW option began to run out of steam, they were caught with only one possible

avenue to pursue the public position that they had taken on taking action on cluster

munitions, namely the Oslo Process. As alternate options put forward by the Like-minded

group were rejected by a majority of states in Wellington, they were forced to accept the

procedural manoeuvre of Don Mackay and append their proposed wording as a

compendium in annexe to the Wellington Declaration as a complement to the progressive

draft treaty introducing a ban on all cluster munitions. The forceful tactics in Wellington of

Canada and the like-minded group, which included intense lobbying between Washington

and capitals around the world, would have led to a watered down treaty text and a much

weaker addition to the cluster munitions regime had it not been for the strong position

taken by the Conference’s President, Don Mackay of New Zealand. In this way, Canada’s

diplomatic activity can be said to have been regime blocking, through the combination of

pro CCW political direction, and the mobilisation of diplomatic and substantive resources.

on different tracks: disarmament diplomacy from the pacificweb.isanet.org/web/conferences/ap hong...

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