International Law

On Human Rights Watch there is a note on the upcoming Oslo Conference on Cluster Munitions.  These efforts are commendable. 

But I have a feeling that in the international legal discourse this might ultimately show one of the ongoing problems with international law discourse, at least at the general/public level.  The conference will cover some non-parties to the UN Convention on Conventional Weapons (CCW) and “a significant number of countries that produce or stockpile cluster munitions.”  (alas ”significant” is an incredibly vague term in the article).

But the big players, including Australia, China, India, Israel, Pakistan, Russia, and the United States, are “not expected to come.”  And while again it is a good thing to limit the use of certain horrific arms when possible, I would keep an eye out to see at what point any Oslo treaty, or even the fact of the conference, becomes referred to in more unsophisticated circles as international law somehow binding on non-parties or perhaps in other circles as evidence of “customary international law”, despite the fact that the primary makers and users of the weapons are not on board and even fought the debate at the CCW level.  We shall see.  I doubt Human Rights Watch will do this, but I am sure plenty of other people will.  All too often arguments claim that a treaty amongst a few parties (or even amongst many, but sometimes filled-in with parties with not much stake in the matter) or a few random cases are evidence of “custom”.  That leap is simply too big to make most of the time, especially without at least addressing the issue of the big detractors/non-signatories and also the biggie of international practice.

Perhaps the key is to make sure what any particular treaty means and not over-play the hand, thereby often undermining the real progress treaties can make.  And the key on the “other side” is not to take the inevitable “international law puffers” as the standard in the field and to not simply cite them to show why international law is invalid or weak or whatever.  This, unfortunately, also happens far too often and is just a sign of only taking on the worst arguments of your opponent. 

And of course, even if a treaty does not apply directly to parties it can sometimes ultimately pressure them, especially on a moral basis.  And it might be key for some countries, especially those where these types of weapons tend to get used, to make a statement about how they will not tolerate it.  And in the war of precedents/custom/who constitutes “authority”/etc. it at least makes an argument. 

In any event, this may be an interesting case study to follow and is perhaps part of a trend to get lots of treaties signed up even if some of the classic “world powers” are not on board.  Perhaps this means setting an “agenda” that the treaty countries hope big players will ultimately come around to?  Does that mean the big players should get involved, or do they only hamper the process?  In the meantime hopefully whatever treaty ultimately comes out, if any, can make an impact for those who sign up to it, and be the basis for wider action and perhaps ultimately more signatories.