2000. Revised December, 2000
& Porter Legal Opinion Clarifies Land-mine Treaty
mines that act like antipersonnel mines are also banned
The Washington law firm of Arnold & Porter has provided the Center
for International Policy with a legal opinion on the question of anti-vehicle
mines in the Ottawa mine-ban treaty. Dated September 2000, its key finding
. . . The most reasonable reading of the Ottawa Convention is that its
ban on antipersonnel mines extends to anti-vehicle mines which, due
to their fuse or anti-handling device designs, can be detonated by unintentional
human contact such as stepping on a pressure plate or walking into a
tripwire or tilt-rod. In effect, such anti-vehicle mines are antipersonnel
mines according to the definitions contained in the Convention.1
the objections of Western military establishments an exception for anti-vehicle
mines was included in the treaty. The military forces of the major European
signatories, while willing to part with their antipersonnel mines, insisted
on this exception in order to protect their troops. Under the treaty,
these anti-vehicle mines may also be equipped with anti-handling devices
designed to prevent enemy troops from disabling them. But also under
the treaty, these devices should not be able to be triggered by unintentional
human contact; only actual "tampering," a deliberate effort
to disturb or disarm the mine, should suffice to set it off. The technical
difficulty of building an automatic sensor with such a high degree of
discrimination has created a gray area of interpretation which some
believe threatens the integrity of the entire treaty.
The anti-handling devices on some anti-vehicle mines still used by major
European countries could be triggered by certain kinds of unintentional
human contact short of deliberate tampering, converting them into gigantic
antipersonnel mines. Since the treaty signing, two experts' meetings
have been held to thrash out the problem, with no solution having been
was noted at the time of the treaty's signing. The International Campaign
to Ban Land Mines (ICBL) expressed its concern that "a mine with
an anti-handling device is going to function as an antipersonnel mine;
it is going to pose extreme dangers to civilians and to humanitarian
de-miners. Remotely-delivered, scatterable mines with anti-handling
devices in particular will put civilians at risk."
the treaty signatories resolve this problem, the Center for International
Policy asked the renowned law firm of Arnold & Porter to render
a legal opinion of the exception. The question is important not just
for the international signatories, but for the United States as well.
Conscientious efforts by the signatories to perfect and comply with
the treaty create further incentive for the United States to join promptly
(it is administration policy to develop alternatives that would let
the United States join by 2006). On the other hand, slipshod compliance
creates an excuse for U.S. opponents of the treaty in Congress and the
Pentagon to argue for further delay.
& Porter extensively reviewed the commonly-accepted principles of
treaty interpretation. It concluded, in the same vein as cited above:
principle of treaty interpretation is that the ordinary meaning shall
be given to the treaty's terms in their context and in light of the
treaty's object and purpose. Application of this principle as a foundation
for all other principles of interpretation and all canons of construction
serves a crucial purpose; ensuring that treaties achieve the ends for
which they were enacted in the first place. In the case of the Ottawa
Convention, the end sought is clear -- to put a stop to the superfluous
injury and unnecessary suffering visited indiscriminately upon civilians
and combatants by antipersonnel mines. The means employed by the Convention
to achieve this end is to impose a complete ban on such devices.
A plain reading of the terms of the Ottawa Convention, in its context
and in light of its object and purpose, yields an unambiguous result:
anti-vehicle mines, including those equipped with anti-handling devices,
that may be detonated by unintentional human contact are banned under
On September 11, 2000, the treaty signatories met in Geneva for a major
review of compliance to date. Release of the Arnold & Porter report
at the meeting by the Center for International Policy, in its role as
a member organization of the International Campaign to Ban Land Mines,
helped spur renewed discussion of those anti-vehicle mines that can
be triggered by unintentional human contact. Countries such as France,
Great Britain and Italy had argued that banning anti-vehicle mines equipped
with anti-handling devices with antipersonnel effects "raised the
bar" of what had been agreed to at Ottawa. At interim compliance
meetings, some have argued for "universalization of the treaty
by ambiguity." The Arnold & Porter report will reinforce the
positions of countries such as Canada, the Netherlands, and Switzerland
which have argued for a plain reading of the treaty text.
Article 2, paragraphs 1 and 3, which define "anti-personnel mine"
and "anti-handling device" as follows:
2."Anti-personnel mine" means a mine designed to be exploded
by the presence, proximity or contact of a person and that will incapacitate,
injure or kill one or more persons. Mines designed to be detonated by
the presence, proximity or contact of a vehicle as opposed to a person,
that are equipped with anti-handling devices, are not considered anti-personnel
mines as a result of being so equipped.
* * * *
3. "Anti-handling device" means a device intended to protect
a mine and which is part of, linked to, attached to or placed under
the mine and which activates when an attempt is made to tamper with
or otherwise intentionally disturb the mine.
States participated in the Geneva meeting as an observer. Release of
the Arnold & Porter report and its application by states-parties
helped the U.S. observer to report serious efforts toward perfection
of the treaty. At the same time, there will be an increased incentive
for the United States to join the treaty because the Pentagon has developed
the technical prerequisites for anti-vehicle mines with anti-handling
devices that successfully discriminate between intentional and unintentional
contact. Mere superficial modifications could make these mines and fuses
States is one of two NATO countries who have not yet joined the Ottawa
treaty.3 Along with Cuba, it is the only other nation in the Western
Hemisphere not to do so. In the mid-1990s the United States was a leader
in the anti-mine field, becoming the first major producer to refrain
from exports (which remains U.S. policy). But objections from the Pentagon
in 1995 caused the United States to relinquish its lead. The Pentagon
insisted mines were necessary to prevent North Korea from overrunning
the demilitarized zone. President Clinton reluctantly acceded to this
Pentagon position. In so doing he showed lack of will and lack of understanding
of the role of president as commander-in-chief of the armed forces (see
"Commander-in-Chief," International Policy Report, November
1999). Clinton's predecessors from President Harding to Franklin D.
Roosevelt had to face down the military in imposing a ban on poison
gas and leading the world to international prohibition of the weapon.
The emergence of antipersonnel mines as widespread indiscriminate killers
in the decades since World War II placed a similar responsibility on
President Clinton, which he ducked. Instead his decision was to state
as policy that the United States would join by 2006 if it can find viable
alternatives. The Pentagon and right-wing ideologues in Congress such
as Sen. Jesse Helms have gained an effective veto on U.S. mines policy.
United States holding back, Russia, China and Pakistan, to name only
three major mine producers and deployers, have stated that they will
not join until the United States does, too. Russia used antipersonnel
mines in the Chechnya war last year, skirting its obligations under
a previous arms-control treaty it did sign, the Convention on Certain
Conventional Weapons (CCW). So the retreat of the United States acts
as a major obstacle to universalization of the treaty, paralleling the
Senate's failure to ratify the Comprehensive Test Ban Treaty last year.
chapter of the International Campaign to Ban Land Mines has opened a
new campaign to get the United States to join the treaty. The major
military objection, Korea, was already technically questionable (see
presentation of Center for International Policy senior fellow Caleb
Rossiter before the National Academy of Sciences panel charged with
finding alternatives). It has been completely undermined by recent diplomatic
progress on the peninsula.
Backdrop of success
recitation of problems should not obscure the signal success of the
mine-ban treaty. The Ottawa convention became binding international
law more quickly than any other treaty in history. It came into force
on March 1, 1999. To date it has been signed by 138 countries and ratified
by 101. Significantly, the treaty officially acknowledges the indispensable
role of nongovernmental organizations such as the International Campaign
to Ban Land Mines in creating the climate of opinion that impelled the
major nations to sign.
over 120 million land mines currently deployed in over 60 countries
around the world. Each year, over 2 million new land mines are laid,
while only about 100,000 mines are cleared. Over 2,000 people (primarily
civilians) are maimed or killed each month due to these menaces.
were serious mine-laying problems last and this year in Angola, Chechnya,
Ethiopia, Eritrea, and Kosovo, in general the treaty is having its desired
effect of reducing the number of mines being laid. There are few flagrant
violations of any "core" prohibition (use, production, or
trade) by states-parties. Although mines were used in thirteen conflicts
last year, it was at a lower level. The deployers were the governments
of Angola (a signatory), Russia, and Yugoslavia and ten rebel groups.
Global use and production is on the wane; exports have halted completely.
treaty is generally being complied with, and a Canadian expert says
that the mine-ban movement has created momentum toward "customary
international law." Even those countries that use or retain the
right to use do so with statements that imply only supreme military
necessity would require use, and that they accept the general premise
that these are indiscriminate weapons.
Abuse of anti-vehicle-mine exception
Initiative to Ban Land Mines released a study, "Why Anti-Vehicle
Mines Should Also Be Banned." The paper noted the many types of
anti-vehicle mines still in major signatories' inventories that function
like antipersonnel mines. Anti-vehicle mines posed a major threat to
the civilian population, especially since their explosive power made
them even more devastating. They are unable to reliably distinguish
between military and civilian vehicles. Even a fuse that cannot be triggered
by unintentional human contact can be triggered by a large civilian
vehicle such as a loaded bus or truck, and there are ghastly recent
examples from Afghanistan to Angola. During the last eight months of
1995 some 111 casualties from anti-vehicle mines were reported in Angola,
although this is suspected to be only a fraction of the true total.
paper pointed out, using German government expenditures as a primary
example, that the anti-vehicle exception has in a way stimulated land-mine
development by channeling it through this loophole. During 1990-94 Germany
alone spent $1 billion modernizing its mines, and another $375 million
is planned over the next few years. The German government said, "Abandoning
the use of anti-tank mines in defense operations would increase the
risk faced by forces on the ground to an unwarranted degree."
further noted that clearing anti-vehicle mines is significantly more
difficult and dangerous than clearing antipersonnel ones. It also warned
that Eastern European countries being admitted to NATO might surreptitiously
dispose of their old mines on the international black market. Of the
new or prospective NATO members, only Hungary and the Czech Republic
have ratified the Ottawa Convention and Poland and Lithuania have signed.
All produce and stockpile mines.
the paper noted the high rate of duds among scatterable mines (10 to
30 percent). There were examples in the Falklands, second Gulf, and
Kosovo wars. Self-destruct mechanisms fail and the mines remain live
for years. A German mine producer admitted that the dud rate for scatterable
mines would increase.
anti-mine campaigners have a point in questioning whether technical
modifications on anti-vehicle mines can themselves prevent civilian
casualties. Even if the Ottawa parties modify their mines to meet the
Ottawa definition affirmed by Arnold & Porter, "normal"
activation of the mine, e.g. by a school bus filled with passengers,
will cause civilian casualties. Unless marking of anti-vehicle mines
becomes accepted practice, perhaps through an amendment to the convention
on conventional weapons, a ban may prove to be the only feasible solution
to the humanitarian problem.
Arnold & Porter and the Principles of Treaty Interpretation
achievement of the firm's legal opinion is to confirm that a plain reading
of the treaty text is valid and required. A careful, if untutored, reading
of the two key definitional articles of the treaty reproduced above
leads inevitably to the conclusion that anti-vehicle mines that could
be unintentionally set off by a person are banned by the treaty. What
the lawyers have done is to apply commonly-accepted principles of treaty
interpretation to the case to see if there are any extenuating circumstances
that would argue against giving the words their ordinary meanings in
lays out these four principles drawn from the Vienna Convention, which
codifies customary international law of treaty interpretation:
1. Interpretation must be in accordance with the ordinary meaning of
terms in their context and in light of the treaty's stated purpose.
2. This context includes the text, preamble, and annexes and any additional
agreements made among the parties in connection with the treaty.
3. Subsequent agreements or practice are also to be taken into account,
4. A special meaning is given to a term only if the parties so intended.
Applying these four principles to the Ottawa treaty the law firm found
that allowing anti-vehicle mines that detonate due to unintentional
human contact "would significantly undermine the Convention's object
and purpose, and would render much of its language meaningless."
meaning must be given to terms unless such interpretation would lead
to something unreasonable or absurd, the law firm noted, citing a 1925
precedent. The firm also found that preparatory work -- working papers,
meeting minutes, and drafts -- are also admissible as indicators of
intent if the meaning of a provision or term is unclear or if the plain
reading would lead to an absurd result. The first draft of the Ottawa
convention, consulted by the lawyers, supports a plain reading of the
Center for International Policy is grateful to Arnold & Porter for
its superb pro bono publico work to elucidate the principles of interpretation
of the land-mine treaty. In particular we wish to acknowledge the work
of these distinguished associates of the firm: William Rogers, Stuart
Land, Mark Piibe, Amy McCrae, and Stephen Jones.
example, see the official report of the last such meeting: "The
Committee discussed matters pertaining to Article 2, particularly matters
related to anti-handling devices and the sensitivity of anti-vehicle
mines' fusing devices. Ideas, like examining these issues through informal
expert work and working towards the agreement by States Parties on an
understanding on the matter were put forward. There was no agreement
on proceeding with either idea at this time, although an ICRC initiative
to discuss these matters was welcomed. Several States Parties affirmed
their view (a) that mines equipped with anti-handling devices that activate
when no attempt has been made to tamper with or otherwise intentionally
disturb these mines are in fact anti-personnel mines as defined by the
Convention and (b) that fusing mechanisms that cause anti-vehicle mines
to function as anti-personnel mines are also anti-personnel mines as
defined by the Convention."
other is Turkey.