In an era when Russia can annex Ukrainian territory, when the Refugee Convention is regularly flouted, and when nobody seems to be able to do anything to stop the carnage in Syria, it can be tempting to ask: what can international law actually achieve? Do we not live in a world where the common good will inevitably continue to be trampled by self-interested states?
Moreover, if countries like the US, Russia and China can break the rules when they choose, how on earth can a medium-sized country like Australia make the world a better place?
There are, however, a few examples where small- and medium-sized states have used diplomacy to strengthen international law, and in turn improve people’s lives around the world. One such example is the Convention on Cluster Munitions.
The aim of the Convention is to address the unacceptable harm caused to civilians by cluster munitions through a categorical prohibition of the weapon. Cluster munitions are a type of weapon that open mid-air to release a large number of smaller bombs, known as submunitions, which then spread out over an area.
There are two key reasons why cluster munitions are seen as particularly bad. Firstly, the submunitions released from each shell are usually spread over an area comparable to that of a football field, making cluster bombs particularly effective against groups of people. This includes advancing armies, but can also mean civilians.
Secondly, thanks to differing explosive rates among cluster shells, many submunitions do not explode on impact and effectively become landmines, killing and maiming people for decades after war ends. They are particularly effective at killing children and blowing limbs off adults. Today there are still thousands of unexploded cluster munitions scattered across several previously war-torn states.
Based on the Mine Ban Treaty – another example of successful middle-power diplomatic advocacy – the Convention prohibits all use, production, transfer and stockpiling of cluster munitions. Although cluster munitions first became a target of activism in the 1970s, when Sweden and the International Committee of the Red Cross registered their horror at their effect during the Vietnam war, calls to ban these weapons did not gather momentum until around 2006, when Israel fired more than a million cluster bomb submunitions into southern Lebanon.
Following a failure to act by the established multilateral disarmament forums, in 2007 Norway initiated a process with the aim of banning cluster munitions, only inviting countries predisposed to a ban to the negotiations. The US opposed the creation of the Convention, and has tried to undermine it in a number of ways. Nonetheless, today there are 84 full states parties to the treaty, and 29 more have signed on to eventually accept full membership of the Convention. Among these are Germany, France and the UK, all of which previously held sizable collections; the UK even used them in Iraq.
Admittedly, the three main possessors of cluster munitions – the US, Russia and Israel – have all refused to sign up to the agreement. But at least fifteen states that did once own a stockpile of cluster munitions have completed destruction of their entire arsenal. Many others that have never held cluster munitions have agreed never to consider doing so. At least half of the states which formerly manufactured the weapons have ceased production.
It is difficult to know what the practical impact of the Convention has been, as full-scale war is relatively uncommon. Nonetheless, cluster munitions do not appear to have been used in either the 2011 attack on Libya, nor in the 2012 Gaza war, which may be a sign that even those countries that refuse to get rid of them are loath to actually use cluster munitions because of the international backlash that may ensue.
Although the Convention is still a work in progress and is far from universal, it demonstrates that international law can have an impact on the behaviour of states – and this impact has been in no less than the realm of military decision-making, the area usually considered most impervious to international legal intervention.
If tiny Norway can play such a significant role in using the international system to improve the lives of people around the world – saving them from death, bereavement or disability – then there is no reason why Australia could not do the same.