The Article 5 Extension Request Process
by Tamar Gabelnick [ International Campaign to Ban Landmines ]
The International Campaign to Ban Landmines was very specific in saying that there were to be no exceptions to the 10-year deadline placed in the Ottawa Convention.1 However, with the treaty’s first mine-clearance deadline quickly approaching in 2009 at least 15 countries have found they may have bitten off more than they can chew. Or have they?
Deminers preparing for a “handover ceremony” in Yemen.
All photos courtesy of the author
When the Ottawa Convention was being negotiated in 1997, the International Campaign to Ban Landmines called for a text with “no exceptions, no reservations, and no loopholes.” The result was a treaty that was remarkably simple and straightforward, including with regards to mine clearance. Under Article 5, mine-affected States Parties have a clear duty to destroy all anti-personnel mines in mined areas as soon as possible, but no later than 10 years after joining the treaty. The link with the treaty’s humanitarian and disarmament objectives is equally clear; the sooner the mines are taken out of the ground and destroyed, the sooner people can farm the land, use grazing pastures, gather wood, walk to markets and schools, and engage in countless other essential activities safely again. The longer it takes to clear mined areas along borders or around security installations, the longer a State Party may be continuing to make military or strategic use of the mines.
Despite the urgent need to remove emplaced mines for humanitarian and/or disarmament purposes, there is a possibility of requesting one or more extensions to the 10-year deadline. Mine-affected states that became party to the Convention in 1999 face their mine-clearance deadlines in 2009, and those that do not expect to finish on time were required to request an extension at the 9th Meeting of the States Parties in November 2008. Fifteen countries, or about two-thirds of the original group with 2009 deadlines, will seek such an extension.2 The extension-request process has therefore been one of the hot topics of 2008 as States Parties and other interested actors grappled with how to handle the requests in a way that would respect the intent of the treaty and set the best possible precedent for future requests.
The History of the Extension-request Process
The extension-request story does not begin with the 2008 meeting, however, but rather in 1997, when the Ottawa Convention was drafted. During the negotiations, states, the ICBL, the International Committee of the Red Cross and other participants discussed at length the question of how many years States Parties should be given to clear mined areas, or indeed whether there should be a deadline at all.3 It was eventually recognized that without the impetus of a legally-binding deadline, the clearance work could drag on indefinitely, which would not be in keeping with the convention’s intent.
At the same time, states understood that in some cases—because of the sheer quantity of mined areas or other extraordinary circumstances—certain mine-affected states would need more than 10 years to clear their land. The original proposed text, put forward by the ICRC, was that the extension should be “the minimum necessary, but in no case shall the extension exceed five years.”4 Ultimately, the text was changed to allow for up to 10 additional years, which would be renewable. States Parties requesting more time would have to provide a detailed rationale for the extension, and other States Parties must assess and vote on the request. The understanding remained, however, that such extensions should be the exception, not the rule.
The extension issue was then put aside for many years while States Parties focused on how to complete mine-clearance obligations as efficiently and safely as possible. It resurfaced in preparation for the 7th Meeting of State Parties, which took place from 18–22 September 2006 in Geneva, when States Parties developed mechanisms both to guide the requesting states in the preparation of the requests and to assist the other States Parties to analyze the requests. The ICBL and the ICRC, in particular, encouraged the development of such mechanisms in order to ensure that States Parties took seriously both the duty to diligently prepare requests and to thoroughly assess and make an informed decision on them.5 Without such safeguards in place, the concern was that granting an extension would be only a formality, which could seriously undermine respect for the initial deadline. Easy extension approvals could also encourage some states to postpone mine clearance indefinitely since a state could seemingly ask for more than one extension without repercussions.
At the 7MSP, States Parties developed a voluntary template to help the requesting states satisfy the treaty requirements while providing sufficient information for other States Parties to review the requests thoroughly while deciding the outcome.6 It was hoped that the template would serve another important goal, namely to encourage requesting states to take careful stock of what had they had achieved to date, what remained to be done, and how they planned to finish their obligations as quickly as possible.
States Parties also agreed at the 7MSP to assign responsibility to a small group of states to carry out an initial analysis of the requests. Not all states would have the time or capacity to conduct a thorough review of what would involve lengthy and technical requests. This idea turned out to be especially prescient in a year with 15 requests, several over 100-pages long. It was also noted that this group—comprised of the co-chairs and co-rapporteurs of the Convention’s Standing Committees plus the President of the MSP—should be able to call on outside expertise to help them with the technical, legal or diplomatic elements of the requests. This formulation was a compromise on the original idea put forward by the ICBL and others for a group of experts to assess the requests.
The treaty’s Implementation Support Unit was instructed to assist states to develop their requests with the overarching goal of eliciting “realistic, but not unambitious” requests.7 States were also instructed to provide a draft request nine months ahead of the MSP or Review Conference where it would be considered in order to give those states doing the initial analysis enough time to do so.
In summary, the extension request process was developed to complement simple treaty language with additional informal mechanisms with a view to promote effective treaty implementation. The importance of this particular mechanism cannot be understated—without the means to ensure the thorough preparation and evaluation of the requests any state seeking to avoid its Article 5 obligations by delaying them indefinitely could do so without hindrance. As Croatia stated at the 7MSP, the extension provision should serve as “a vehicle for the full implementation of the Convention and not a means for getting around it.”8
The Current State of Play
Again, the decisions of the 7MSP have proven significant given what has transpired over the past two years. It seems that several States Parties were indeed interested in using the Convention’s extension provision to prolong clearance for many years or even to postpone it indefinitely. As the ICBL said at the Intersessional Standing Committee meetings in June 2008, if the international community’s intention—as reflected in the Nairobi Action Plan—was for “few, if any states” to ask for an extension, then we have collectively and by a disappointing margin failed to meet our goal. As noted above, at the 9th Meeting of States Parties 15 states submitted requests for an extension, 10 of them for periods of five years or longer.
There are certainly some States Parties requesting extensions, such as Bosnia-Herzegovina, Croatia and Thailand, that had very large suspected hazardous areas and were generally expected to need more time to demine them. Others, like Denmark, Jordan, Mozambique and Nicaragua, should have been able to complete their obligations on time, but delays in commencing effective planning and clearance and/or management issues (among other reasons) forced them to ask for additional time. Technical difficulties—such as demining areas with deep, shifting sands in Yemen—have been a factor in many other requests, and funding shortfalls were cited by most states as an important reason for needing more time. Countries like Senegal and Chad have also been hampered by ongoing hostilities, though in the case of Senegal additional administrative delays have prevented earlier clearance of areas local experts already deem were safe to clear.
The most troubling aspect about the set of extension requests in 2008 is not just the number of states seeking a request, but also the number of those—including Ecuador, Peru, the United Kingdom and Venezuela—that should not have needed to make a request and certainly not for the length of time requested. Each offers its own set of special circumstances to support its request, but none justify the length of time requested. Ecuador and Peru, each with less than 500,000 square meters (123 acres) remaining to clear, cite difficult climatic, geographic and logistical issues in demining their mountainous border as reasons for requesting eight more years.9 But Ecuador plans to increase significantly the number of deminers and may be able to sharply reduce its estimate of suspected hazardous areas through Technical Survey. Its request does not reflect these developments and in any case, it simply lacks ambition.
Peru cleared 300,000 square meters (74 acres) in the border area in 1999–2000, making one wonder why they need an additional eight years to clear the 192,000 square meters (47 acres) remaining in that region (they plan to clear the remaining 335,000 square meters (83 acres) of contaminated land in the interior of the country by 2010). Once their police forces finish demining the other sites in 2010, they will have a large force of trained deminers capable of helping in the border region.
The United Kingdom, with responsibility for clearing the Falkland/Malvinas Islands,10 cites the sovereignty dispute with Argentina and the difficult geographical conditions as reasons that it has not yet cleared any mined areas. But the additional reasons for delays, which the U.K. openly expresses, are the supposed reluctance on the part of the islanders to remove the mines and the high cost involved in bringing in and supporting demining personnel in such an isolated spot. In other words, the United Kingdom has demonstrated why it is unmotivated to begin operations, which is also reflected in its failure to provide a starting date for operations, a detailed timeframe, or a budget allocated to its 10-year request, essential components of an extension request that all the other states have managed to provide.
Finally, Venezuela is seeking an additional five years to clear 13 small, mined areas around six of its naval bases. None of the reasons it cites for the delay—difficult terrain, annual flooding, problems with access and the need to provide security to deminers from Colombian guerrillas across the river—should have prevented Venezuela from completing the demining process long ago. The problem is small, contained and not technically challenging outside of the flooding season. What has prevented Venezuela from completing its Article 5 obligations, to its own admission in past years, is that Venezuela has been relying on the minefields to protect the naval bases from cross-border attacks and wanted to wait for an alternative defense system to be installed before taking the mines out of the ground. In other words, Venezuela has been gaining active military benefit from the mined areas, which is clearly a violation of Article 1’s ban on the use of landmines.
With perhaps the exception of those states experiencing ongoing conflict or having an extremely large initial estimate of contaminated areas, the reasons mentioned above are not the extraordinary circumstances originally envisaged when the extension provision was created. But one could consider that the first set of states with obligations under the Ottawa Convention had more of a learning curve than those that joined later, as demining methods, structures and technologies have developed significantly over the past many years. At the very least, several of these states have used the process to undertake careful reflection of past and anticipated activities and have developed plans that are well-thought-through and reasonably ambitious.
Analyzing the Requests
Since February 2008, the group of states named in the 7MSP decision—sometimes referred to as the “Analyzing Group” has been spending many hours studying and discussing the long, detailed requests. They have sought expert input from the ICBL, ICRC, the Geneva International Centre for Humanitarian Demining, the United Nations Development Programme and other organizations, albeit on a surprisingly limited basis given the lack of technical and country-specific expertise of the diplomats assessing the requests. Members met with most requesting states at the Intersessional Standing Committee meetings in June 2008 to discuss the requests in detail. They asked many countries for additional information or clarification and sent a few back to the drawing board for more work. Finally, they have even strongly encouraged a small number of states to revisit the period of time requested.
Also at the June 2008 ISC meetings, a few Latin America states stressed the importance of examining each country’s extension request on its own merits and in relation only to the specific conditions in that country. While a comparative approach might bring to light the relative effort made by one state next to another, even taken in isolation, it is hard to understand how some states plan to take so much time to achieve so little.
Nor is it fair to those states that have done the most work to put so little pressure on other states to be equally efficient. A distinction must be made between those countries that have diligently tried to implement their Article 5 obligations and those that have put in a fraction of the resources or achieved a fraction of the results over the same time period. There is clearly a continuum between the best and worst cases, and the Analyzing Group has engaged with most of the countries in order to encourage better planning and perhaps greater efficiency. But if States Parties treat all cases with kid gloves, what would be the political “carrot” for those that have led the way in mine action? And more importantly, what would be the “stick” for those that have flagrantly disregarded the Convention’s obligation to act as quickly as possible?
Communities have lived too long with the menace of mines. Photo taken in Bosnia.
What was decided at the 9MSP this year will therefore be crucial for the integrity of Article 5. Not only do these decisions impact how to treat those cases of virtual non-compliance with Article 5.1, but they send a signal to states with deadlines in the coming years on how their own cases will be handled. The precedent set at the 9MSP will either discourage states from presenting unjustified extension requests or it will let them know that “anything goes.”
The views put forward by the Analyzing Group were critically important because they provided the basis on which other states took their decisions at the 9MSP. Despite the importance of their role, a small number of states in the Analyzing Group encouraged a passive and uncritical role for the group, reportedly politicizing and personalizing the workings of the group. They also fought hard to keep the group’s work closed and secretive, which is highly unusual for the work of the Ottawa Convention, born out of a close collaboration between states and nongovernmental partners. Despite these constraints, the group managed to produce several final analyses with useful constructive criticism. But the analyses clearly applied different standards to different states, showing the regional bias of some Analyzing Group members. Perhaps the most positive outcome of the group’s work was the proactive engagement with the requesting states that in some cases led to new requests reflecting improved planning.
The 9th Meeting of State Parties and the End Game
After the analyses were given to the other States Parties, it was their turn to reflect on and guide the outcome at the 9MSP. The treaty says that the MSP, or Review Conference, shall “assess the request and decide by a majority of votes of States Parties present and voting whether to grant the request for an extension period.”1 The question was therefore how states would react to those requests that did not merit approval as presented. As noted above, the first action was for the Analyzing Group to try to get certain countries to amend the requests, including the amount of time requested. This approach was the most logical and diplomatic way of dealing with the problem, and it worked in a few cases. States did, of course, have the option to turn down the request, but that would mean that the country would be in violation of the treaty when its deadline passes, and therefore, States Parties were reluctant to consider this possibility.
The solution proposed by the President of the 9MSP, Ambassador Jurg Streuli of Switzerland, was for states to grant all requests as drafted, but with comments from States Parties that in certain cases encouraged the country to complete the demining work faster than planned and/or to clarify other outstanding issues of concern in the requests.
This approach was satisfactory for most cases, but the ICBL was still calling for States Parties to turn down requests from any state that had no plans to begin demining operations before its original 10-year deadline, namely the United Kingdom and Venezuela. States Parties chose to focus their criticism on the United Kingdom, which, unlike Venezuela, presented a request for the maximum 10 years with no timeline or budget for beginning, let alone finishing, its demining duties. In essence, they were asking for carte blanche to implement Article 5 if and when it liked. States Parties understood that such a request would be highly detrimental to the treaty and therefore spoke out publicly and privately against it. The United Kingdom tried to calm its critics by announcing that it would launch a tender in 2009 to begin demining three of its 117 mined areas and by arguing that a feasibility study with a range of vague demining options actually constituted a concrete plan.
In the end, States Parties’ dissatisfaction with these small steps coupled with their continued concern about the implications of a “no” vote for the treaty led to a compromise outcome. The United Kingdom’s request, along with the other 14 requesting parties, was approved without a vote, and each was accompanied by comments in the form of an MSP decision. In the United Kingdom’s language, it agreed to return to States Parties within 1.5 years with more details about its work plan, to provide regular progress reports, and to consider on an annual basis if it would be possible to reduce the time necessary to finish its demining duties. States Parties also encouraged the United Kingdom—along with Ecuador, Peru and Senegal—to finish demining more quickly than initially planned. The decision for Venezuela was the weakest, commenting simply that it “may find itself in a situation wherein it could complete implementation before October 2014 and that this could benefit the Convention.” Other useful comments in the analyses did not make it into the final decisions because the concerned states were given the chance to approve the decision language.
Despite some shortcomings, the first extension request decision process produced a solid foundation on which the future implementation of Article 5 can rest. States Parties that asked for more time to demine were challenged to show that they were truly seeking the minimum time necessary to complete the work. The process could still use improvement—to prevent regional discrepancies in the treatment of requests for example—but overall States Parties confirmed that there will be no rubber-stamping of requests and made it clear that the duty to demine “as soon as possible” also applies to the extension period.
Tamar Gabelnick is Treaty Implementation Director at the International Campaign to Ban Landmines. She works with States Parties of the Ottawa Convention, U.N. agencies, NGOs, and other partners to pursue full and timely implementation of the treaty. She has previously worked on conventional arms export policy in Washington, as a Human Rights Officer with the U.N. in Croatia, and at NATO in Brussels from 1992–95. She has a Masters in Public Affairs from the Woodrow Wilson School at Princeton University.
- Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, Oslo, Norway: 18 September 1997. The document was opened for signature in Ottawa, Canada, 3 December 1997, commonly known as the Ottawa Convention. http://www.icbl.org/treaty/text/english. Accessed 6 November 2008.
- The countries that joined the convention in 1999 that originally reported mined areas are: Bulgaria, Bosnia-Herzegovina, Chad, Croatia, Denmark, Djibouti, Ecuador, France, FYR Macedonia, Guatemala, Honduras, Jordan, Malawi, Mozambique, Nicaragua, Niger, Peru, Senegal, Swaziland, Thailand, Uganda, United Kingdom, Venezuela, Yemen, and Zimbabwe. The countries that requested an extension in 2008 are: Bosnia-Herzegovina, Chad, Croatia, Denmark, Ecuador, Jordan, Mozambique, Nicaragua, Peru, Senegal, Thailand, United Kingdom, Venezuela, Yemen, and Zimbabwe. It is not yet clear whether Niger will also request an extension.
- Maslen, Stuart. Oxford Commentaries on International Law, Commentaries on Arms Control Treaties, Vol. I. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. Oxford University Press. 2004.
- Maresca, Lou, and Stuart Maslen, Editors. The Banning of Anti-Personnel Landmines: The Legal Contribution of the International Committee of the Red Cross 1955–1999. Cambridge University Press. 2000.
- See, for example, the ICBL statement on extension requests at the Intersessional Standing Committee meetings. 10 May 2006. http://www.icbl.org/content/download/22189/413344/file/ICBL%20Statement%20on%20Mine%20
Clearance.doc. Accessed 11 September 2008.
- The voluntary template was officially adopted at the 8MSP.
- Kerry Brinkert, “Preparing an Article 5 Extension Request,” Presentation to States Parties, 8th Meeting of the States Parties, Dead Sea, Jordan. 18 November 2007.
- “The Status of the Implementation of Article 5,” Co-chairs of the Standing Committee on Mine Clearance, 4 June 2008.
- Peru’s initial request from April 2008 was for an additional 10 years, but as of September, it had revised it down to eight years.
- Argentina, which contests the UK’s sovereignty over these islands, has also accepted responsibility under Article 5 for their clearance, though its deadline is in 2010.
- States Parties negotiating the new Cluster Munitions Convention learned from this narrow construction and included an explicit right for states to accord a different amount of time for an extension than requested.
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