Towards Peace Through Legal Innovation: The Process and Promise of the 2008 Cluster Munitions Convention

One of the most hopeful new developments in international humanitarian law is embodied in the Convention on Cluster Munitions, the first treaty to ban cluster munitions. The text of the treaty was completed on May 30, 2008, and as of December 4, 2008, it has already been signed by 94 countries.1 Cluster munitions are weapons that, when dropped from a plane or launched into the air, release dozens to hundreds of smaller submunitions that spread over a very wide area of land and leave many unexploded munitions behind. The recent conflict in Georgia demonstrated the continued use of cluster munitions and thus the ongoing need for regulating them.2 By codifying progressive trends in international humanitarian law and international human rights law as well as providing legal innovations, the Convention on Cluster Munitions offers new solutions for changing warfare and the welfare of civilians caught in it. The process through which the treaty was negotiated and completed is also in itself useful and progressive, as it offers a model for achieving civil society, governmental, and intergovernmental legal partnerships outside of and parallel to the prevailing model of consensus-based negotiation. This article outlines the history, content, and significance of the Convention on Cluster Munitions. The article begins with a brief description of cluster munitions and a sketch of the humanitarian harm inflicted by them over the last four decades of their use. It then addresses the history of the Convention on Cluster Munitions and how it successfully built on existing international law and utilized parallel multilateral treaty negotiation processes to yield desired results. It next turns to the content of the Convention, which is rich in linkages to international human rights law and provides for robust protections and groundbreaking legal commitments. Finally, this article examines the significance of the cluster munitions treaty, including its strengthening of key international humanitarian law (IHL) principles of discrimination and proportionality, the new obligations it places on user states, the potential to learn from and adapt the process that formed it, and the promising signs that—despite the recent use of cluster munitions and continued opposition to the ban by powerful user states—the norms embodied in the treaty have already begun to take hold