Intervention by Norway on Article 2, Definitions

There are several ways of approaching the discussion on definitions. One can look at it from a purely technical point of view or from a purely humanitarian point of view. We believe that a definition must serve several purposes – it must be technically clear, but its main purpose is to address the humanitarian concerns that the weapon creates. If we look at this from an effects based point of view, there are two main problems with cluster weapons: indiscriminate effects during an attack because of the wide area effect, and the indiscriminate effects caused by unexploded sub munitions after an attack. Together, these two features of cluster weapons constitute the humanitarian problem that has been described by many survivors, mine clearers and others.

From the outset of this process, we have stated that our objective is a new international instrument that “…prohibits Cluster Munitions that cause unacceptable harm to civilians”. This formulation in the Oslo Declaration determines our position. We have never argued that every munition that contains more than one sub-munition should be prohibited regardless of their humanitarian consequences.  We think there is a difference between a total ban on every weapon containing more than one sub-munition, and a total ban on cluster munitions as defined in the new convention. 

We think that one point of departure could be to define what should be prohibited. Documents from earlier stages of this process contain language in line with this approach. We could envisage a definition that clearly indicates what exactly should fall within the prohibition, in stead of a sweeping definition that would at the outset cover a multitude of weapons systems, and then provide an extensive list of  specific exceptions. We are prepared to continue drafting proposals in cooperation with colleagues.

Whatever approach one chooses, failure rates as such are neither credible nor sufficient criteria. Many states, including Norway, have used a 1% failure rate as a benchmark for what should be acceptable. We have now seen substantial and credible documentation that failure rates in tests differ significantly from failure rates in the field. Failure rates themselves cannot serve as a factor distinguishing between acceptable and unacceptable munitions.

We think that, as a minimum, the convention must prohibit all weapons that contain munitions that disperse multiple sub-munitions, even if they are equipped with fail safe mechanisms. However, weapons capable of detecting and engaging point targets and capable of distinguishing between military objectives and civilians, provided that they are also equipped with adequate fail safe mechanisms, should not be defined as cluster munitions because they meet the humanitarian requirements we seek to achieve. We believe that this is in line with the Oslo declaration.

Finally, we want to make a comment on the draft definition on transfer. In the draft text transfer is defined differently than in other instruments, in particular the Mine Ban Convention, to avoid unnecessary difficulties in interpretation and implementation of the prohibition on transfer in national law.