Implementing the landmine regimes

4     Implementing the landmine regimes

Introduction

APII entered into force on 3 December 1998 followed by the mine ban treaty on 1 March 1999. In both cases, sufficient time has passed since regime formation and entry into force to construct a meaningful analysis of implementation and effectiveness to date. Resource mobilization, donor coordination and concrete contributions to the various activities comprising mine action all, in qualitatively different ways, represent mine action related objectives of the two regimes. Linking implementation to the various functional sectors of mine action in this way enables a clearer understanding of the extent to which the regimes reflect mine action concerns and priorities.

As in the regime formation phase, implementation is characterised by a lack of source material for APII and a plethora of often uncritical narratives on the mine ban treaty. At the same time, a significant parallel literature has been developed by practitioners on approaches, good practice and lessons learned in mine action. Because work on treaty implementation and mine action have not been drawn together, meaningful findings on the effectiveness of the regimes have been slow to emerge. As Filippino and Paterson note:

The gap between social scientists and practitioners is unclear. For example, the human toll exacted by landmines and UXO was the principal impetus behind the international movement to ban landmines. But what do we know about the contributions made by clearance, marking and mine awareness to a reduction in the number of deaths and disabilities? We know very little, at least in quantitative terms.¹

This chapter addresses the ways in which landmine regime implementation is making a positive contribution to mine action. The relationship between policy, agenda setting and programming roles, as well as the influence of mine action practitioners and mine-affected states, are considered. Some actors, such as the ICBL in the context of the mine ban treaty, are wholly situated within the regime. Others such as the GICHD have been at least partially assimilated into the implementation processes. A much broader category of state and non-state actors contribute in different ways to implementation either across the two regimes or favouring one over the other. In order to take into account all actors that play a part in implementation, it is essential to acknowledge the roles played by actors outside the regimes senso stricto, including non-members as well as groups not directly addressed by the treaties. The nature and utility of formal and informal implementation mechanisms is assessed, and challenges of voluntary and involuntary defection are considered. Regime effectiveness is then analysed under the headings of resources, political will and humanitarian impact.

APII places a series of technical restrictions on APMs, AVMs and booby traps, prohibits undetectable mines, applies conditions on their use in combat, and obliges states parties to clear, remove, destroy or maintain them in accordance with the protocol. The mine ban treaty stipulates a complete ban on the use, stockpiling, production and transfer of APMs, as well as providing for their destruction. In order to implement these provisions the regimes must provide support to the five ‘pillars’ of mine action:2

1    Mine risk education

2    Humanitarian demining

3    Assistance to mine victims

4    Destruction of stockpiles

5    Advocacy

This introductory section relates key provisions within APII and the mine ban treaty to the component activities of mine action, providing a point of departure to situate the subsequent analysis of implementation and effectiveness.

Mine risk education

Through public information and education, mine risk education (MRE), also known as mine awareness, aims to make civilian populations better aware of the dangers posed by landmines. Landmine Monitor notes expanded mine risk education programmes in many countries and closer integration with other elements of mine action. Some mine action practitioners argue that MRE work has been de-linked from the realities of mine affected communities. The value of this activity therefore remains contested, and advances have been limited in terms of its professionalization.³ Activities to reduce the risk of death and injuries to civilian populations are emphasized in both regime frameworks. Mine ban treaty states parties are requested to provide assistance in this area and may themselves request help from the UN, regional organizations, states parties, and other relevant actors (Articles 6 (3) and 6 (7d)). Article 3 of APII requires the protection of civilians through ‘possible’ measures that include ‘fencing, signs, warning and monitoring’. Moreover, ‘unless circumstances do not permit’, effective advance warning should be given of the emplacement of landmines, or their air delivery.

Stockpile destruction is the most visible way to reduce the number of landmines around the world. Destruction of stockpiles within a set timeframe is stipulated under APII for prohibited weapons and for all APMs under the mine ban treaty. Tens of millions of stockpiled APMs, destroyed in accordance with the requirement to eradicate such stocks within four years of entry into force, represents a key achievement of the regime (although this must be set against the much higher numbers still held by non-states parties). The destruction of stockpiled mines that are not in conformity with the provisions of APII, also constitutes a significant obligation for regime members not party to the mine ban treaty.

Both regimes hold annual meetings and require reporting from members to demonstrate progress on implementation issues. The mine ban treaty has established a programme of regular intersessional meetings. Within the CCW an experts group has a comparable mandate, although on a much smaller scale. Outside of the formal regime frameworks, various state and non-state actors have found ways to assist implementation. One significant example is the Implementation Support Unit (ISU) created by the GICHD to support the mine ban treaty, but which later provided certain support services within the framework of the CCW as well. Another is the Landmine Monitor, an annual publication coordinated by the ICBL, which represents the de facto compliance monitoring mechanism under the mine ban treaty. Landmine regime implementation mechanisms are summarized in Table 4.1.

Table 4.1  Landmine regime implementation mechanisms

There is no designated compliance monitoring body within either landmine regime. This responsibility rests firmly with individual states parties. In both APII and the mine ban treaty, members are accountable through the provision of annual reports. Reporting is intended to provide a basis for action when implementation challenges become apparent. As part of this obligation, regime members must submit detailed information on progress in meeting mine action-related implementation goals. Article 13 of APII requires reporting on mine clearance, national implementing legislation, technical information exchange and other cooperation as well as details of landmine production, stockpiling and use. In the case of the mine ban treaty, self-reporting by states in line with the requirements of Article 7 represents the main monitoring mechanism. Providing information on the location of mined areas as a means to support humanitarian demining activities is one element of this commitment.

Annual meetings of mine ban treaty states parties provide a forum for discussion on implementation issues. These meetings are complemented by an intersessional work programme involving states (regime members and non-members) the UN, ICRC, ICBL and others. The programme was established in 1999 with individual standing committees created on victim assistance and socio-economic reintegration, mine clearance, MRE and mine action technologies, stockpile destruction, and the general status and operation of the treaty. Standing committees were subsequently rationalized with meetings reduced in frequency, in 2005, on the basis of a decision taken at the first treaty review conference.4 Despite the clear linkage between treaty implementation and the various pillars of mine action, some mine action practitioners regard meetings as more significant for awareness-raising among the diplomatic community than for bringing tangible benefits to mine action.

The intersessional meetings, in combination with the scrutiny coming from Landmine Monitor, have certainly put additional pressure on regime members. The level of Article 7 reporting has risen consistently in the years since the treaty entered into force: statistics show a year on year increase in reporting between 2001–2007.⁵ However, this trajectory reflects the rising numbers of states signing the treaty. A more meaningfulful indication of states parties’ commitment may be found in the proportion of regime members providing annual updates to these reports. The rate for the calendar year 2009 is 56 per cent, representing a consistent trend of decline that has continued every year since 2003. Equatorial Guinea is eleven years late with its initial Article 7 report!⁶

APII compliance reporting is not linked to any monitoring mechanism. In contrast, the mine ban treaty provides for fact-finding missions to investigate allegations of non-compliance. The modalities found in the treaty for these missions are lifted almost verbatim from the text of the CWC, reflecting the model used during the treaty drafting process. Verification provisions do not therefore focus on the specific characteristics of APMs. In particular, the regime fails to take into account that while large-scale use of landmines may be easily identifiable, not least as a result of the nature of the injuries provoked by these weapons, landmine stockpiles can be relatively easily hidden. A significant challenge to compliance verification therefore goes unaddressed. A lack of practitioner input in this aspect of regime design thus has direct consequences on its ability to verify compliance.

The mine ban treaty has not put measures in place to give teeth to its verification mechanism. No standing secretariat has been established, nor has provision been made for the conduct of such missions within the UN system. Moreover, the regime does not have established procedures in place should an FFM be requested. Despite the extensive intersessional work programme, the Article 8 mechanism has been characterized as modest from a disarmament perspective.7 This lack of emphasis on verification may be explained to an extent by the evident reluctance among states to ‘break from the pack’ in political terms. An FFM would need to be initiated on the basis of an accusation of non-compliance by one state party against another. Regime members have shown no willingness since entry into force of the regime to do this. The ICBL maintains that ‘a mechanism or body is needed to facilitate attempts to address compliance concerns short of formally invoking Article 8’.⁸ Many states, including core group members, are less keen. A legalistic response given to this inherently political question was that regime members should ‘be prepared to respond to all serious allegations of non-compliance within the core provisions of Article 1’.⁹

The implementation process presents distinct challenges of political will to those evident in the regime formation phase. FFMs provide a specific example of a broader tension within the mine ban treaty regime, between member states seeking to maintain authority over the implementation process and the efforts of civil society to proactively enforce compliance. Despite implementation problems being highlighted as a result of compliance monitoring, the verification mechanism has not been engaged. In fact, the regime has raised, rather than lowered, the political transaction costs of addressing overtly the sensitive issue of defection.

In the absence of compliance monitoring provisions, tensions between states parties and other regime stakeholders are less in evidence within APII. The idea of adopting procedures along the lines of Article 8 of the mine ban treaty has been raised as both practically useful and a means to facilitate national implementation.¹⁰ It could also build synergies and provide for potential economies of scale across the two regimes. Unfortunately, the political barriers in the way of developing robust compliance monitoring provisions are even higher in APII than in the mine ban treaty. Within a framework governed by consensus, whose membership includes states displaying high concern for their own national security, agreement on measures for more intrusive verification seems unrealistic.

Filling the gaps: informal compliance monitoring

Formal implementation mechanisms – review conferences, annual meetings of states parties and intersessional work programmes – are intended to facilitate knowledge transfer and highlight where assistance to members should be focused or redirected. The provision of accurate and timely information is a common regime requirement that can support mine action through providing a clearer picture of the challenges posed by landmines in different national contexts. While not envisaged in the design of either regime, informal civil society-monitoring and verification has become an integral part of the mine ban treaty implementation process, at the same time generating important effects for APII implementation. In particular, civil society-driven efforts have shed light on instances of defection from obligations that the regimes themselves have chosen to ignore.

Landmine Monitor describes its role as ‘an attempt by civil society to hold governments accountable to the obligations they have taken on with respect to anti-personnel mines’.11 Since 1999, its annual reports have provided the major source of information on mine ban treaty compliance issues. The initiative comprises a global reporting network, a central database and the annual publication. Beyond national reports, the publication includes updates on new signatories, areas of special concern and recent developments. Analysis is drawn from in-country researchers and augmented by external experts. By its own admission, the quality of the data in Landmine Monitor has been variable with discrepancies from country to country depending on individual researchers, although there has been a marked improvement over time. Bilateral and multilateral donors provide funding that allows for the research, publication and dissemination of the report. This support permits wide penetration of the report’s findings: the publication is distributed at no cost to government officials and policy makers and is fully accessible online.

This civil society-driven initiative fills an evident gap. Governments recognize the need for such a mechanism and have been prepared to support it year on year. The funding base for Landmine Monitor has been constant, despite the fact that entries have been critical of aspects of national compliance by the donors themselves.¹² This points to an important advantage; it is easier to highlight sensitive implementation issues through informal verification than by invoking the formal apparatus of the regime.

Landmine Monitor offers a norms-based approach to compliance monitoring. Naming and shaming has led to important clarifications and provided advance warning where regime members appear unlikely to meet obligations. If this informal mechanism has generated political pressure within the regime that has not been realized through formal mechanisms, an important conduit does exist between formal and informal processes. The ICBL provides oral and written input to standing committee and annual states parties meetings. Whereas states are reluctant to criticize other states, the ICBL draws on the analysis generated by Landmine Monitor as an empirical basis for targeted advocacy. The task of focusing attention on states parties that risk missing compliance deadlines is facilitated because this is not a sensitive state-to-state transaction.

Informal implementation support mechanisms have not been replicated in the APII regime. Civil society has been permitted little space to contribute to implementation so shortcomings in regime design, such as the absence of verification measures, are not rounded out by informal means. Landmine Monitor does exert an influence on APII regime implementation. By highlighting compliance issues to a wider international audience, it has created a positive knock-on effect encouraging greater transparency within APII. There would also be significant scope for civil society to promote APII membership as a viable alternative for mine ban treaty rejectionists. These actual and potential entry points for civil society engagement demonstrate that, as in regime formation, formal rules are insufficient to prevent civil society from playing a proactive role.

The mine ban treaty has proved flexible in incorporating new mechanisms to support implementation. Based on the argument that resources ‘should be committed to the field where they were most needed, a secretariat was not initially deemed necessary’.13 However, the flawed logic behind this assumption became evident as requests multiplied for support from regime members. At the 2001 Managua meeting of states parties, an offer from the GICHD to host a secretariat – the ISU – was accepted. The ISU became operational in June 2002. It works directly with the chairs and rapporteurs of the intersessional committees, facilitates meetings of states parties, contributes to strategic thinking and, along with the ‘sponsorship group’, promotes (at least in principle) full participation of mine-affected states.