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Draft Protocol on Cluster Munitions 2010

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  Advance copy Draft: 31 August 2010 DRAFT PROTOCOL ON CLUSTER MUNITIONS The High Contracting Parties, …  Determined to address urgently the humanitarian impact caused by cluster munitions,… …………………………………………………………..,   Recognising  that victims of cluster munitions are all persons who have been killed or suffered  physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions, as well as their affected families and communities;  ……………………………………………………………………………..,  Resolved to do their utmost in    providing assistance to the victims of cluster munitions, ……………………………………………………………………………… Have agreed as follows:  Article 1. General provision and scope of application 1. In conformity with the Charter of the United Nations, the rules of International Humanitarian Law and other rules of international law applicable to them, the High Contracting Parties agree to comply with the obligations specified in this Protocol, both individually and in co-operation with other High Contracting Parties, to address the humanitarian impact caused by cluster munitions. 2. This Protocol shall apply to situations of conflict, and situations resulting from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001. 3. This Protocol shall not affect any rights or obligations that States Parties to the Convention on Cluster Munitions, done at Dublin, Ireland, on 30 May 2008, have under that Convention. 4. This Protocol shall not apply to mines, booby-traps and other devices as defined in Article 2 of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996, annexed to this Convention. Article 2. Definitions For the purposes of this protocol: 1. ‘Cluster munition’ means  (a) a conventional munition that is designed to disperse or release explosive submunitions, and includes those explosive submunitions; or (b) a munition consisting of a container, affixed to an aircraft, which is designed to disperse or release multiple explosive submunitions, other than self-propelled explosive submunitions, and includes those explosive submunitions. 2. For purposes of this Protocol, the weapons described in paragraph 1 of the Technical Annex shall not be considered to be cluster munitions. 3. ‘Explosive submunition’ means a conventional munition, weighing less than 20 kilograms, that in order to perform its task is dispersed or released by a cluster munition and is designed to function by detonating an explosive charge prior to, on or after impact. 4. ‘Failed cluster munition’ means a cluster munition that has been fired, dropped, launched,  projected or otherwise delivered during an armed conflict, and which should have dispersed or released its explosive submunitions but did not do so as intended. 5. ‘Unexploded submunition’ means an explosive submunition which has been dispersed or released by, or otherwise separated from, a cluster munition during an armed conflict and has failed to explode as intended. 6. ‘Abandoned cluster munitions’ means cluster munitions or explosive submunitions that have not been used during an armed conflict, that have been left behind or dumped by a party to an armed conflict or in a situation arising directly from an armed conflict, and that are no longer under the control of the party that left them behind or dumped them. They may or may not have  been prepared for use. 7. ‘Cluster munition remnants’ means failed cluster munitions, abandoned cluster munitions and unexploded submunitions. 8. ‘Transfer’ involves, in addition to the physical movement of cluster munitions into or from national territory, the transfer of title to and control over the cluster munitions, but does not involve the transfer of territory containing cluster munition remnants. 9. ‘Self-destruction mechanism’ means an incorporated or attached automatically-functioning mechanism, which secures the destruction of the munition into which it is incorporated or to which it is attached. 10. ‘Self-neutralization mechanism’ means an incorporated automatically-functioning mechanism which renders inoperable the munition into which it is incorporated. 11. ‘Self-deactivating’ means automatically rendering a munition inoperable by means of the irreversible exhaustion of a component, for example, a battery, that is essential to the operation of the munition.  12. ‘Cluster munition contaminated area’ means an area known or suspected to contain cluster munition remnants. Article 3. International Humanitarian Law 1. In implementing this Protocol, each High Contracting Party and party to an armed conflict shall ensure full compliance with all applicable principles and rules of International Humanitarian Law. 2. Nothing in this Protocol shall be interpreted as detracting from, or otherwise prejudicing, other applicable principles and rules of international humanitarian law. Article 4. General prohibitions and restrictions 1. It is prohibited for a High Contracting Party to use, develop, produce, otherwise acquire, stockpile or retain cluster munitions other than those described in paragraph 2 of the Technical Annex. 2. In the event that a High Contracting Party determines that it cannot immediately comply with paragraph 1 it may declare at the time of its notification of consent to be bound by this Protocol that it will defer compliance with the prohibition of use, stockpiling and retention for a  period not exceeding 8 years from the entry into force of this Protocol.   In case a High Contracting Party is unable to comply with paragraph 1 of this Article within the period it announced by declaration, it may notify the Depository that it will extend this period of deferred compliance for up to 4 additional years. The Depositary shall circulate declarations and notifications referred to in this paragraph to all Parties. 3. Notwithstanding a High Contracting Party’s deferral of compliance pursuant to paragraph 2 of this Article, each High Contracting Party shall: (a)   only use cluster munitions that do not meet the standards described in paragraph 2 of the Technical Annex after approval by its highest-ranking operational commander in the area of operations or by the appropriate politically mandated operational authority; and (b) use only cluster munitions with the lowest possible unexploded ordnance rate, consistent with military requirements. 4. Each High Contracting Party shall: (a)   take steps in any design, procurement, or production of cluster munitions, to incorporate additional safeguard mechanisms or designs, or otherwise minimize the unexploded ordnance rate; (b)   improve to the extent possible the accuracy of their cluster munitions and submunitions which meet the standards described in paragraph 2 of the Technical  Annex; and (c)   review the military necessity to retain cluster munitions and as soon as possible remove excess cluster munitions from operational stockpiles and designate these stocks for destruction. 5. The obligations in this Article do not apply to cluster munitions acquired or retained in a limited number for the exclusive purpose of training in detection, clearance, and destruction techniques, or for the development of cluster munitions countermeasures. Article 5. Storage and destruction 1.   Each High Contracting Party shall: (a) on entry into force of this Protocol for it or immediately after any period of deferred compliance under paragraph 2 of Article 4, remove all cluster munitions other than those described in paragraph 2 of the Technical Annex under its jurisdiction and control from its operational stocks, separate them from munitions retained for operational use, and    in accordance with national procedures mark and safely secure them; (b) destroy or ensure the destruction of all cluster munitions under its jurisdiction and control other than those described in paragraph 2 of the Technical Annex as soon as feasible, starting no later than: (i) five (5) years after the entry into force of the Protocol for the High Contracting Party; or (ii) the end of the period of deferred compliance referred to in paragraph 2 of Article 4 if applicable to the High Contracting Party, where that period is greater than 5 years in duration; and (c)   create and maintain a stockpile surveillance and management programme in accordance with national procedures to ensure the safety and reliability of cluster munitions not prohibited by this Protocol. In implementing this provision, the High Contracting Parties shall make use of, where appropriate, existing mechanisms, tools, and databases within the Convention’s framework and other relevant instruments and mechanisms. 2.   A High Contracting Party that has cluster munitions other than those described in  paragraph 2 of the Technical Annex under its jurisdiction and control shall, after the expiration of the periods specified in sub-paragraph 1 (b) of this Article, develop a comprehensive plan for the destruction of all such cluster munitions including a schedule and the time required for completion of destruction. The High Contracting Party shall revise the comprehensive plan as necessary.
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