Legal Linkages: International Cooperation in the CCM and the CRPD

Posted on May 22, 2013


The linkage between the Convention on the Rights of Persons with Disabilities and the Convention on Cluster Munitions and its implications for international cooperation in providing assistance for cluster munition victims: a legal view

Dr. Vida Amirmokri, Victim Assistance Monitor thematic team

During the third intersessional meeting of the Convention on Cluster Munitions (CCM), the question of donors moving away from a targeted victim assistance vision towards the assistance to victims of various weapons within the cooperation aspects of the Convention on the Rights of Persons with Disabilities (CRPD) was highlighted, as part of an ongoing debate on international cooperation to assist victims.  From a legal standpoint, the question is one of articulation and interaction between various distinct treaty obligations. We can look at the interaction between international cooperation obligation under the CRPD and the more specific provision of the CCM on international cooperation in matters of victim assistance to understand more.

Article 32 of the CRPD on international cooperation specifies:

States Parties recognize the importance of international cooperation and its promotion, in support of national efforts …

Such measures could include:

Ensuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities …

And Article 6.7 of the CCM (similarly to Article 6.3 of the MBT) which provides for international cooperation and assistance in matters of victim assistance stipulates:

Each State Party in a position to do so shall provide assistance for the implementation of the obligations referred to in Article 5 of this Convention to adequately provide age- and gender-sensitive assistance…

In a technical workshop at the April 2013 intersessional meeting of the CCM, a donor state predicted “that in the coming years we will see a downward trend in funds identified as dedicated to assisting victims of landmines, cluster munitions and other explosive remnants of war” but that more and more states, including donors “will strive to ensure that their development cooperation is inclusive of all persons with disabilities”. This prediction might indicate a clear predilection for the international cooperation framework set in Article 32 of CRPD.

International law is equipped with a set of rules and principles that provide for the coherent interpretation of simultaneously applicable legal norms or help resolving conflicts [1] between them. Several such interpretation/conflict resolution rules seem relevant to the relationship examined here [2]:

  • The principle of harmonization : “It is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations.”
  •  The maxim lex specialis derogat legi generali: “It suggests that whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific. The principle may be applicable in several contexts: between provisions within a single treaty, between provisions within two or more treaties…”  
  •  Lex posterior derogat legi priori: According to Article 30 VCLT, between the parties to a treaty that are also parties to an earlier treaty on the same subject, and the earlier treaty is not suspended or terminated, then it applies only to the extent its provisions are compatible with those of the later treaty. This is an expression of the principle according to which “later law supersedes earlier law”.

The relevant provisions in the CRPD and the CCM, both require international cooperation and assistance in partially overlapping activities. At first glance, it appears that they do not point to incompatible decisions and a choice does not need to be made between them. So their relationship is not one of conflict [3]  and, in principle, states bound by both must interpret them harmoniously and apply them concurrently. To the extent they apply to the same subject matter [4], the application of lex specialis and lex posterior principles should guide their harmonious interpretation and application.

To the extent that the subject matters of the two treaties overlap, the CCM specifies and emphasizes the application of the general principles stipulated in the CRPD since it envisages their application to a particular group of disabled people with particular needs. From this standpoint, the CCM provision on international cooperation in victim assistance constitutes lex specialis in relation to the CRPD provision on international cooperation.

The CRPD was adopted on 13 December 2006, and the CCM on 30 May 2008. Hence, CCM constitutes also lex posterior in relation to CRPD.

Consequently, both lex specialis and lex posterior rules indicate that, to the extent that the subject matters of the two treaties coincide, the applicability of CRPD cannot legally exclude the concomitant applicability of the CCM provision on international cooperation in victim assistance.

By adopting the CCM, states have clearly expressed their will to provide assistance to the victims of cluster munitions, despite the fact that there already existed a general treaty on the rights of all persons with disabilities.

A final and equally important legal remark would be that since the subject matters of the two provisions mutually extend beyond each other’s reach, neither of them can exclude the applicability of the other. This becomes obvious once one considers that preferential application of Article 32 CRPD to the detriment of Article 6.7 CCM would exclude all cluster munition victims without disabilities from the benefits of international cooperation and assistance. According to the CCM “victims” are not only those who have been disabled by cluster munitions, but also those who have suffered “economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions”. The exclusion of the latter group from international cooperation and assistance will certainly not reflect the legislative intent of the states that negotiated and adopted the CCM.

1. In relationships of conflict, a choice needs to be done between applicable rules (one must prevail over the other), since equally valid norms point to incompatible decisions.

3. In a time when financial resources are limited, they might actually be perceived to point to incompatible decisions, in the sense that limited resources can be allocated only to one or the other type of cooperation and assistance activities. However, this apparent conflict is circumstantial. It flows from extralegal circumstances and does not imply a real conflict between legal norms.

4. The subject matters of the provisions under examination are not identical, neither can the activities covered by the CCM provision be subsumed under the ones covered by the CRPD provision. Only activities and measures of assistance to people disabled as a result of the use of cluster munitions and their families are covered by both provisions.

Read a longer full-text version here: The linkage between CRPD and CCM and its implications for international cooperation.

States, including those "in a position" to provide cooperation assistance, attending the CCM Oslo Signing Conference Opening Ceremony in 2008. Images (c) Federico Visi

States, including those “in a position” to provide cooperation for victim  assistance, attending the CCM Oslo Signing Conference Opening Ceremony in 2008. Images (c) Federico Visi