More Than A $90m Promise: President Obama’s Pledge to Lao and the U.S.’s International Legal Obligations

Former Foreign Minister Bob Carr visits a UXO clearance site in Had Khua Village, Luang Prabang Province. Courtesy Burt Verweij/ AusAID/Wikimedia.

Former Foreign Minister Bob Carr visits a UXO clearance site in Had Khua Village, Luang Prabang Province. Courtesy Burt Verweij for AusAID/Wikimedia.

This past September, U.S. President Barack Obama pledged $90 million (USD) for a three-year program to clear explosive remnants of war (ERW) in the Lao People’s Democratic Republic. President Obama rooted this pledge in a “moral obligation” the U.S. owes for its Cold War policies that rendered Lao “the most heavily bombed country in history.” This brief post will consider whether President Obama’s pledge is rooted not only in a moral obligation but also in a legal obligation to Lao.

The United States is a party to the Convention on Certain Conventional Weapons (CCW) and its Protocol V on ERW. Pursuant to Article 7(2) of the Protocol, “[e]ach High Contracting Party in a position to do so shall provide assistance in dealing with the problems posed by existing explosive remnants of war, as necessary and feasible.” Article 7(2) has two caveats that make the precise obligation arising from its text unclear.[1] First, the obligation only accrues for states “in a position to . . . provide assistance.” Second, the obligation only applies to the extent that assistance is “necessary and feasible.” The vagueness introduced by these caveats is exacerbated by a collective responsibility problem that arises from the broad applicability of the Article to “[e]ach” party to the Protocol.[2]

It could be argued that Article 7(2) of the Protocol, on account of its vagueness, is merely aspirational and gives rise to no legally binding obligations. Certainly, this kind of argument has been made before. In the case concerning Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice (ICJ) determined that preambulatory text regarding “strengthening the bonds of peace and friendship” was too vague to give rise to its own legal obligations. Similarly, in the Oil Platforms case, the ICJ found that language ensuring “peace and sincere friendship” was “not capable of generating legal rights and obligations.” Regarding the Protocol, Botswana has suggested that the “in a position to do so” language lacks obligatory force, for want of specificity.

Despite its caveats, Article 7(2) can be cleanly distinguished from the treaty provisions previously determined legally nugatory. As an operative clause, Article 7(2) arguably “has a normative character” and “propounds a rule of conduct.” Beyond this, the contours of Article 7(2)’s “assistance” are provided in Article 8, which in seven paragraphs details relevant acts of assistance a state may undertake. Most persuasive, the Protocol language that Botswana objects to seems to give rise to legal obligations in the context of Article 6 of the Mine Ban Treaty.[3]

Assuming Article 7(2) does give rise to some legal obligation, President Obama’s pledge may assist in identifying the extent of that obligation for the United States. A pledge of assistance indicates that the pledging state believes itself to be in a position to provide assistance. It indicates that the provision of assistance, in the amount pledged, is feasible. Though a pledge of assistance, given the political dimensions of pledge-making, may not speak directly to necessity, a pledge in a non-token amount—like $30 million per year—indicates the recognition of a pressing problem. Taken together, the U.S. may have a $30 million minimum annual obligation to Lao, barring a meaningful change in circumstances.

It is worth noting that this argument does not rest on the idea that unilateral pledges form some sort of subsequent practice that refines or alters the U.S.’s substantive legal obligations. Rather, this argument suggests that language like “in a position” and “necessary and feasible” speaks to factual circumstances that are, at the very least, subjectively determinable.[4] President Obama’s pledge reveals how the U.S. interprets fact and what, in accordance with its legal obligations, it can and should provide. Relevantly, in interpreting the Mine Ban Treaty, the treaty’s Second Review Conference identified all parties who had provided contributions to mine action as “Parties in a position to do so” that were “fulfilling their obligation.”

That the U.S. has framed its pledge as ex gratia assistance should not detract from how the pledge engages with U.S. treaty obligations. Previous statements framing payments as ex gratia have not had the effect of removing those payments from the realm of customary international law.[5] After Bulgaria downed an Israeli commercial airliner in 1955, the Bulgarian government disclaimed any legal responsibility but promised compensation to the affected states for the persons injured.[6] Israel, the United Kingdom, and United States brought suit before the ICJ to assert Bulgaria’s legal obligations. Similarly, in the wake of a misguided Iraqi attack on a U.S. frigate, the U.S. accepted Iraq’s allegedly-ex gratia compensation but rejected the notion that its compensation was truly divorced from legal obligations.[7] As evidenced, an allegedly-ex gratia payment can have a basis in customary international law, and this should be no different in the treaty context.

Identifying a U.S. legal obligation to Lao under the Protocol would have ripple effects and could give way to the identification of analogous obligations to Vietnam and Cambodia, neighboring states to which the U.S. currently provides lesser amounts of ERW-related assistance. That said, the extension of obligations aligns with the object and purpose of the Protocol, which was drafted in light of the CCW’s inadequacy at addressing the widespread presence of ERW in states that suffered 20th century civil wars and proxy wars. In 2012, Lao reported 50,100 victims of landmines and ERW, left over from a civil war and U.S. involvement in the region; in 2008, Cambodia reported that it had suffered over 63,000 victims of the same; in 2011, Vietnam reported in excess of 100,000 victims and estimated that 21.2% of its entire land area was still “contaminated” with ERW.

Though the use of pledges to define the scope of parties’ treaty obligations could be far-reaching in impact, it is worth considering–lest we acknowledge Article 7(2) of the Protocol as a dead letter and allow, with no legal implication, human suffering to continue.

[1] William Boothby, Weapons and the Law of Armed Conflict 311 (2009).

[2] Mika Hayashi, Clearance of Remnants of War and Its Assistance as Collective Responsibility: The Case of the Ottawa Convention (Mine Ban Convention), in International Law in the New Age of Globalization 93, 107-110 (Andrew Byrnes et al. eds., 2013)(discussing collective responsibility problem that arises from the “in a position to do so” language in the Mine Ban Treaty).

[3] Hayashi, supra note 2, at 113-14.

[4] It could be argued that this language is objectively determinable–i.e. that “in a position to do so” is unitary in meaning and applies when a state, as an example, has a particular per capita GDP– but my intuition suggests that would require some sort of subsequent agreement or practice.

[5] See Andreas Lowenfeld, The Downing of Iran Air Flight 655: Looking Back and Looking Ahead, 83 A.J.I.L. 336, 336 (1989).

[6] Id. at 339.

[7] Abraham Sofaer, Compensation for Iranian Airbus Tragedy, 88 Dep’t of St. Bull. 58, 59 (1988).

Katherine Ebright is a second-year law student at Columbia Law School and a graduate of Harvard College.  She is a member of Columbia’s Jessup International Law Moot Court team and is particularly interested in public international law as it pertains to the U.S. and Southeast Asia.

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