VZCZCXRO7725
PP RUEHKN RUEHKR RUEHMJ
DE RUEHC #7398/01 3381844
ZNR UUUUU ZZH
P R 031837Z DEC 08
FM SECSTATE WASHDC
TO RUEHKN/AMEMBASSY KOLONIA PRIORITY 1850
INFO RUEHKR/AMEMBASSY KOROR 1475
RUEHMJ/AMEMBASSY MAJURO 6502

UNCLAS SECTION 01 OF 02 STATE 127398 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PARM NATO MOPS PREL
SUBJECT: RETRANSMITTAL: DEMARCHE TO NATO AND COALTION 
PARTNERS ON CONVENTION ON CLUSTER MUNITIONS 
 
¶1.  (U) This is a retransmittal of STATE 125512 to include 
KOLONIA, KOROR, and MAJURO for INFO.  Classified portions 
have been removed for transmittal to KOROR. 
 
¶2.  (SBU) Summary:  On December 3, the Convention on Cluster 
Munitions (CCM) will be opened for signature in Oslo, Norway. 
 The United States will neither sign this Convention nor 
participate as an observer, although many of our allies and 
partners will sign this Convention.  The Department requests 
that Posts clarify respective host government positions on 
this issue, emphasizing the importance of preserving 
interoperability and consultations with the U.S. before host 
governments take steps that would impact military cooperation 
with U.S. military forces.  End Summary. 
 
¶3.  (SBU) FOR BERLIN, CANBERRA, MADRID, OSLO, OTTAWA, ROME: 
Please take this cable for information; you will receive 
demarches septel tailored to specific circumstances regarding 
your respective host governments. 
 
¶4.  (U) FOR LONDON and TOKYO:  Please take this cable for 
information.  This issue is already being addressed in 
bilateral consultations with the UK and Japan.   Posts may 
inform host governments that the U.S. is consulting with 
other key governments in advance of the December signing. 
 
OBJECTIVES: 
 
¶5.  (SBU) FOR ALL REMAINING ADDRESSEES:  If NATO Allies and 
other coalition partners embrace a narrow interpretation of 
Article 21, there could be consequences upon future NATO 
operations and coalition contingency plans.  Please pursue 
the following objectives with host nation governments to 
confirm that interpretation of Article 21 will ensure 
continued interoperability for combined operations.  Post may 
draw on press guidance in reftel and background below for 
these discussions. 
 
-- Confirm whether host government intends to sign the 
Convention on Cluster Munitions. 
 
-- Communicate that while the United States shares concerns 
about the potential for unintended harm to civilians, the 
U.S. is not in a position to sign the CCM at this time 
because of our defense requirements and far ranging security 
commitments.  However, we are taking technical steps to 
reduce the potential for unintended harm to civilians from 
cluster munitions and still hope it will be possible to 
finalize a protocol in the framework of the Convention on 
Certain Conventional Weapons (CCW) that would require states 
to phase in technical improvements to CM over time, 
minimizing the potential humanitarian impact of their use. 
 
-- Note our appreciation for the inclusion of Article 21 in 
the CCM text and expectation that this provision will allow 
our military forces to continue to conduct combined 
operations.  (For NATO Allies:  Note that the NATO Military 
Advice of September 30 confirms that interoperability is 
protected.) 
-- Request that host government bilaterally convey any 
concerns about interoperability of our military forces. 
Encourage them to consult with us before taking any action 
that would jeopardize military cooperation. 
 
¶6.  (SBU) Background:  The Oslo Process:  On December 3, the 
CCM will be open for signature in Oslo, Norway.  All UN 
member states are invited to attend the ceremony.  Embassy 
Oslo reports that the Government of Norway has chartered a 
plane to bring Foreign Ministers and delegations directly 
from the NATO Ministerial in Brussels on December 3.  It is 
anticipated at least 20 of our 25 NATO Allies and several 
other key partners will sign the CCM.  The United States will 
not attend or sign.  The CCM is widely touted by many of its 
supporters as a significant advance for international 
humanitarian law (IHL), although the Convention is more 
properly treated as a disarmament treaty rather than an IHL 
instrument.  Others have claimed that the CCM will somehow 
create customary international law which will bind 
non-parties.  This is legally inaccurate-it creates no legal 
norm or restriction for states that do not agree to be bound 
by it.  The text of the Convention on Cluster Munitions can 
be found at: 
www.stopclustermunitions.org/the-solution/the -treaty/ 
 
¶7.  (SBU) Military Utility and the Importance of Maintaining 
 
STATE 00127398  002 OF 002 
 
 
Interoperability:  The United States understands that some 
states, because of their security situation, may decide that 
they no longer require the use of most types of cluster 
munitions.  However, cluster munitions remain integral to the 
military operations of the United States and many of our 
coalition partners.  We believe that the elimination of 
cluster munitions from our stockpiles would put the lives of 
our soldiers and those of our coalition partners at risk. 
Without cluster munitions it becomes more difficult to 
fulfill our security guarantees to others.  We are not aware 
of any munition that offers the same combination of range, 
destructive power and responsiveness as cluster munitions. 
Moreover, there are no easy substitutes, and possible 
alternatives (carpet bombing, massed artillery barrages, 
etc.) have pronounced and potentially more adverse 
humanitarian impacts.  We are working to improve our cluster 
munitions in order to reduce the unintended effects on 
civilians (see para 9).  We were concerned during the Oslo 
Process meetings, which led to the December 3 signing of the 
CCM, that this Convention would severely constrain our 
ability to conduct military operations with future States 
Parties.  Article 21 of the CCM addresses these concerns by 
allowing States Parties to participate in combined operations 
in which a non-state party may use cluster munitions, 
notwithstanding obligations under Article 1 of the 
Convention.  It is our understanding that this would permit a 
broad range of activities and that personnel from States 
Parties would only be prohibited from directly requesting the 
use of or employing cluster munitions.  On September 30, the 
NATO Military Committee issued advice stating that Article 21 
provides the necessary flexibility to allow military 
cooperation among Allies, regardless of whether they are not 
Parties to the Convention.  A number of CCM supporters, 
however, may embrace a more narrow interpretation of Article 
21, largely for political reasons. 
 
¶8.  (SBU) United States Policy on Cluster Munitions and 
Unintended Harm to Civilian:  The United States remains 
concerned about the potential unintended harm to civilians 
that cluster munitions can cause.  On June 19, Secretary 
Gates signed the new Department of Defense Policy on Cluster 
Munitions and Unintended Harm to Civilians.  The primary 
feature of this policy is the commitment that by 2018, United 
States armed forces will employ only those cluster munitions 
that, after arming, result in no more than 1% unexploded 
ordnance across the range of intended operational 
environments.  Post-2018, the U.S. will not transfer cluster 
munitions that do not meet these criteria and, for any 
cluster munitions transferred prior to 2018 not meeting this 
standard, the recipient state must agree not to use them 
after 2018.  In addition, the Department of State and the 
Agency for International Development will continue efforts to 
protect civilians from unexploded cluster munitions and 
explosive remnants of war through  extensive survey, 
clearance, risk education assistance, and victims, 
assistance programs.  The U.S. is the largest single donor to 
these types of activities, providing over $1.4 billion since 
¶1993.  (This figure includes assistance for clearance of 
landmines and all varieties of unexploded ordnance).  The 
Department of State programs include both immediate 
post-conflict response and long-term assistance for severely 
affected states. 
 
¶9.  (SBU) The Convention on Conventional Weapons:  The fifth 
round of negotiations on the issue of cluster munitions 
within the framework of the Convention on Certain 
Conventional Weapons (CCW) was held November 3-7 in Geneva. 
This was the final round of negotiations provided for in the 
Group of Governmental Experts (GGE),s 2008 mandate and was 
followed by a meeting of CCW High Contracting Parties (HCP) 
November 13-14.  A number of countries that participated in 
the Oslo Process blocked progress on the negotiations and 
succeeded in ensuring that no Protocol will be completed this 
year.  The HCP decided to continue the GGE in 2009 with two 
weeks of discussion (vice the seven weeks in 2008).  The U.S. 
delegation expressed its disappointment at not concluding a 
protocol this year, particularly as a number of major 
producers and users of cluster munitions (such as China and 
Russia) may have been willing to accept a Protocol text that 
would have had substantial humanitarian benefits.  It should 
be noted, however, that these major producers and users also 
raised some issues with the text under discussion.  The 
United States continues to support the CCW negotiations and 
will participate fully in the 2009 GGE sessions (February 
16-20 and April 14-17). 
 
¶10.  (U) For more information please contact Katherine Baker 
(202-663-0104) or Sho Morimoto (202-663-0290) in PM/WRA. 
RICE