The effectiveness of global landmine regimes

7     The effectiveness of global landmine regimes


Examining the relationship between design, implementation and effectiveness helps to shed light on the impact of the landmine treaties in supporting mine action objectives. In particular, the transition from regime formation to the qualitatively different process of implementation creates a number of challenges. Findings can be counter-intuitive. An apparent strength in regime design may actually represent an obstacle when transferred to the implementation phase. The resulting insights provide the basis for a re-evaluation of the accepted narrative that juxtaposes APII and the mine ban treaty, demonstrating hidden effects and deep linkages. This enables us to better understand the effectiveness of global landmine regimes.

Analysing APII and the mine ban treaty as nested regimes properly situates these cases within the long history of efforts under international law to alleviate the suffering caused by inhumane weapons. Considering Hague Declaration 3 and the 1925 Gas Protocol as regimes, has enabled us to pose nuanced questions for the landmine treaties on the basis of more drawn out processes of regime development. In particular, this enhances our understanding of effectiveness through clarifying the impact over time of factors such as mismatches between obligations and objectives, normative considerations and stakeholder clustering in earlier IHL regimes.

This concluding chapter considers the relationship between landmine regime design and implementation. It then addresses issues of interplay and nesting. The penultimate section focuses specifically on landmine regime effectiveness, with a particular emphasis on the costs of disjunctions between regime and mine action priorities. Finally, wider research priorities in this field are considered.

The interplay between design and implementation

Rules are shown to be particularly influential in shaping implementation. Including safety valves within regime frameworks allows them to function in the face of implementation challenges. APII, with its permissive language, long entry into force periods and opportunities for deadline extensions, offers a number of safety valves for states. In contrast, the mine ban treaty presents a rigid set of obligations. Yet this absence of compromise contributes to the effectiveness of the regime exactly because commitments are clear and unequivocal. Members are under no illusion as to the extent of their obligations. In practice, therefore, the regime design for APII that allows for flexibility in meeting obligations, has not been more effective when set against the mine ban treaty imperative to preserve key norms and principles through avoiding reservations or permissive language. The integrity of the mine ban treaty on a normative level, and the absence of a safety valve giving greater space to civil society concerns in APII, clearly play a significant role in these contrasting regime dynamics.

For APII, long implementation and optional deferral periods means that there are no surprises for members. Clearly defined rules of engagement for participation, including consensus decision-making and very limited accountability beyond the level of states, also builds confidence. Although within the APII implementation process there are regular experts meetings, these remain largely at a governmental level. This profile contributes to the stability of the regime. At the same time, it undermines the ability to problem-solve that more broadly-based regime participation would offer.

The limitations of regime design only become fully apparent during implementation. How regimes learn is important for their ability to overcome technical and political hurdles to fulfilling regime obligations. Yet even where learning mechanisms exist, without clustering the appropriate expertise, fostering political buy-in and supporting national capacities to address hard issues, the right lessons cannot be drawn. Measures adopted within the mine ban treaty to provide for greater clarity on national implementation processes have had limited impact because greater transparency has not led to increased accountability. Concrete measures have not been developed to address underlying challenges of political will and capacity.

The relationship between technical and political factors

The interplay of technical and political considerations is an important consideration for landmine regime effectiveness. If treaties are negotiated at a political level, implementation is strongly influenced by a combination of both political and technical factors. The mine ban treaty regime formation process was highly effective in altering the political calculus for membership. However, if states assume obligations in the international arena, they subsequently have to be implemented at home. The costs associated with these obligations in certain cases pose problems that effective regimes should be able to recognize and address. Implementation of the mine ban treaty’s stockpile destruction provisions demonstrates a contradiction. The relative lack of donor support for this activity stems from its apparently technical (rather than humanitarian) profile. At the same time, an implementation cluster lacking practitioner expertise cannot identify or address technical challenges. The technical–political split means that the regime is blind to potential humanitarian pay-offs that could be achieved through relatively small investments in stockpile destruction.

A common feature to both regimes is the absence of formal verification. This contributes to non-compliance being a sub rosa issue rather than featuring prominently within either regime. The absence of compliance monitoring and verification, compounds an unwillingness to openly address hard issues – such as corruption – that may pose problems for certain members. For the mine ban treaty, there is an evident unwillingness to undermine its positive image. This points to a key finding. The absence of verification does not mean that the regimes lack empirical data on implementation challenges. As the single, comprehensive information source on states parties’ compliance, Landmine Monitor is a powerful mechanism to facilitate learning. But the regimes neither harness the technical know-how necessary to recognize challenges, nor bring to bear the requisite political will to address them. The application of technical expertise as well as the leveraging of political will, are critical to the effectiveness of the mine ban treaty moving forward. The unanticipated examples of defection from core mine clearance obligations that prompted the ICBL proposal for a ‘special Article 5 deadline procedure’, constitute a key test. The credibility and effectiveness of the treaty can only be maintained through embracing flexibility and accepting the need for adaptation to address qualitatively very different cases of non-compliant behaviour.

On a political level, meeting stockpile destruction targets is closely linked to regime credibility. However, implementation is considered narrowly in terms of whether mine ban treaty regime members complete destruction within the stipulated timeframe. In practice, this endeavour is highly political. For mine-affected states, in particular where national authorities do not have full control of their territory, meeting these commitments can be impossible (or at least impossible to confirm with certainty). Practical challenges may be compounded by an unwillingness to address the politically sensitive issue of how to engage with ANSAs that use or stockpile APMs. Capacity gaps are thus exacerbated by a double deficit of political will at both the national level and within the regime.

The extent to which political and technical considerations bifurcate or reinforce each other is under-estimated in relation to APII effectiveness. If the scope of the regime and the flexibility of its deferral periods reflect the political limitations of a process defined by the consensus requirement, its focus on new technologies and future use of these weapons is a reflection of the knowledge base of the designers. While there may be political attractions for developing countries to participate in the company of major powers, the regime offers few substantive rewards; restrictions offer an expensive, technically challenging solution that does not address the basic problem of mines already in the ground. Initiatives that seek to widen participation are significant as a means to foster learning. Yet if such measures do not make sense from the perspective of regime goals or members’ interests, they will have limited utility. Without such reflection it is difficult to identify the incentives for developing states to contribute meaningfully to APII.

Key actors and the significance of stakeholder clustering

Implementers often play a central role in designing effective treaties. Given that many challenges only become apparent after rules are agreed, the involvement of expert communities should be at least as important for regime implementation. The absence of mine action expertise or voices from mine-affected countries within APII, has produced a regime that does not address the concerns of these constituencies. Consequently, mines already in the ground, or the costs for developing countries stemming from technological re-engineering of weapon stocks, were not factored into the design process. Similarly, the focus of APII provisions on traditional military operations does not reflect experience in contemporary conflicts, in which landmines are often utilized as a weapon of fear against civilian populations.

For the mine ban treaty, there is an absence of communication and coordination between politico-diplomatic and advocacy communities active within the implementation process and the wider mine action practitioner community. This clarifies an important distinction between a true epistemic community, and an implementation process still strongly influenced by norm entrepreneurs. Emphasis on brand loyalty over cooperation in the implementation phase has adverse implications for regime effectiveness. Learning within the framework of the mine ban treaty has been stymied by a lack of mine action expertise and a consequent inability to problem-solve. These capacity gaps do not impair effectiveness in terms of fulfilling obligations, but they do reduce opportunities for the regime to evolve and adapt.

How actors combine and interact is a critical determinant for regime effectiveness. The composition of these clusters at different points represents an important regime dynamic that strongly influences the ways in which cooperation and problem-solving occur. The accepted back story to the Ottawa Process focuses on the civil society coalition and its relationship to a core group of committed states. A broad cluster of actors including states, civil society experts and mine-affected states, bring different experiences to bear on the process of regime formation. This combination of policy makers, practitioners, advocates and ‘victims’, proved decisive in winning support for the regime and undermining countervailing (predominantly technical) arguments. However, the successful self-selection dynamic was more effective in garnering support from the undecided than in providing input to treaty development. In reality, the global coalition has been driven by a tightly constructed leadership structure. Although running counter to the accepted narrative, wide participation was less crucial for the design of the treaty than for increasing political will in favour of membership. This points to entrepreneurship over structural or intellectual leadership as being the dominant force.

The distinction between representation and influence becomes particularly significant in the implementation phase. The effectiveness of APII is constrained by the unchanged nature of the implementation cluster. In particular, there is a persistent lack of entreprenneurial leadership able to champion change. The closed nature of the CCW, reflected by a limited public record of negotiations and few post facto analyses, offers scant opportunities for learning. Indeed, innovations within the APII regime – such as the introduction of a sponsorship programme to encourage participation from mine-affected states – reflect an emulation effect in response to measures adopted by the mine ban treaty, albeit within a very different regime framework. In contrast, the influential constellation of actors has shifted within the mine ban treaty. While regime formation revolved around a diverse group of advocacy-focused actors, supportive states and expert communities, implementation has seen the regime governed by a narrower cluster of advocates in tandem with the politico–diplomatic community. There is a continued involvement of mine-affected states but, counter-intuitively, implementation places less, rather than more, emphasis on mine action expertise.

A consensus position has emerged, that there is no need to rely on practitioners now that the mine ban treaty regime has achieved a broad and growing membership. One argument is displayed on the opening page of the HALO Trust website: ‘HALO is not distracted by involvement in campaigns and conferences. We have a simple mission statement – “getting mines out of the ground, now.”’1 Thus, while leadership of the implementation process is tightly controlled by non-practitioners, elements of the mine action community are – quite deliberately – detaching themselves from implementation because their interests lie in mine action and not the regime per se.

The intersessional work programme provides the major mine ban treaty mechanism to support regime learning. Attendees include officials as well as representatives of international organizations and NGOs. The agenda is shaped by the ISU in collaboration with core group states and the ICBL. Representation from mine-affected countries is encouraged through the sponsorship programme. However, the nature of the implementation cluster means that meetings are geared towards information sharing and awareness raising, rather than problem-solving. The relative absence of mine action input conditions regime effectiveness through constraining the ability of the programme to identify and address challenges.

Important shifts take place across mine ban treaty design and implementation phases. If ignored, the advocacy-driven approach, so critical to the process of regime formation, can be counter-productive. The ICBL provided targeted advocacy that was central to the creation of a strong coalition in favour of a ban. Landmine Monitor represents a transition mechanism for the organisation from advocacy to monitoring and verification service provider. However, there is a gap between the crucial knowledge generated by this research and demonstrable regime responses. If Landmine Monitor helpfully identifies whether states are meeting their obligations, the problem lies in the extent to which these findings are operationalized. In effect, entrepreneurial and intellectual leadership can be thwarted by the passivity of structural leaders within the regime. For many member states, hard implementation issues remain off limits.

IHL and mine action

Norms and regime interplay

The norm bandwagon phenomenon of the Ottawa Process is a decisive factor in accounting for the broader membership of the mine ban treaty in comparison to APII. Being seen to be a concerned international actor was a key dynamic, underlined from the outset of the Ottawa Process by international support that grew rapidly subsequent to the first Ottawa conference. In contrast, while APII has not exerted a pull factor beyond a core constituency drawn predominantly from the developed world, on a political level membership has proved useful in order to demonstrate solidarity with the anti-APM norm without signing up to a ban on APMs.