Ukraine Symposium – Ukraine and the Future of the Ottawa Convention

In 1935, the International Labor Organization (ILO) adopted its 45th convention, generally prohibiting the employment of women in underground mining work. The treaty achieved widespread adoption, with 98 member States at its peak. ILO Convention No. 45 emerged from a humanitarian desire to protect women from unhealthy working conditions. Over the years, however, its discriminatory content garnered hostility amidst emerging ideas of gender equality. In 1995, the ILO adopted the Safety and Health and Mines Convention (No. 176), which offered a more risk-based formula for mining work. States began to denounce Convention No. 45 as well, legally bringing an end to their obligations. By 2024, 30 of the 98 States parties had done so, with the ILO labeling No. 45 “outdated” and agreeing on the treaty’s wholesale abrogation.

The story of ILO Convention No. 45 is worth recalling amidst news last week that Ukraine has announced its intention to cease performing “irrelevant obligations” of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (the Ottawa Convention). President Zelensky has also reportedly taken steps to formally denounce the treaty.

Ukraine’s actions are the most prominent example of back-tracking on global efforts to ban the use of anti-personnel mines. Earlier this spring, Sean Watts explained the rising reluctance of several States to continue their consent to be bound by the Ottawa Convention. That reluctance has turned to action in the last several weeks. In addition to Ukraine, five other States have also approved or announced Ottawa Convention withdrawals: Estonia; Finland; Latvia; Lithuania; and Poland. All six States, moreover, share a common geographic feature; they border the Russian Federation. Russia never joined the Ottawa Convention, and human rights organizations report it has widely deployed anti-personnel mines since its further invasion of Ukraine in 2022. In contrast, Norway (which is the only other State sharing a land border with Russia) has signaled its continued commitment to the Ottawa Convention.

The Ottawa Convention

The Ottawa Convention was the product of norm entrepreneurship by a coalition of non-governmental organizations (NGOs) (most notably, the Nobel-prize winning International Campaign to Ban Land-Mines) and prominent State “champions” (e.g., Canada). Hence, it is not surprising to see human rights organizations express deep concerns with the political implications of States stepping away from their landmine commitments. At the same time, the international legal basis for their withdrawal is not terribly controversial. Unlike several prominent human rights treaties (e.g., the International Covenant for Civil and Political Rights), international humanitarian law (IHL) treaties regularly include provisions for denunciation/withdrawal, including the Geneva Conventions (GC) and their 1977 Additional Protocols (AP) (see, e.g., GC IV, art. 158; AP I, art. 99).

The Ottawa Convention is no exception. Article 20 provides in relevant part:

2. Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Convention. It shall give notice of such withdrawal to all other States Parties, to the Depositary and to the United Nations Security Council. Such instrument of withdrawal shall include a full explanation of the reasons motivating this withdrawal.

3. Such withdrawal shall only take effect six months after the receipt of the instrument of withdrawal by the Depositary. If, however, on the expiry of that six- month period, the withdrawing State Party is engaged in an armed conflict, the withdrawal shall not take effect before the end of the armed conflict.

4. The withdrawal of a State Party from this Convention shall not in any way affect the duty of States to continue fulfilling the obligations assumed under any relevant rules of international law.

Hence, so long as States like Estonia or Poland include a “full” explanation for why they are withdrawing in their instrument of denunciation (not a high bar), Article 20(3) permits their withdrawal from the Convention and an end to their obligations six months later. As Article 72(1) of the 1969 Vienna Convention on the Law of Treaties (VCLT) details, “[u]nless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions … (b) releases the parties from any obligation further to perform the treaty.” (Article 72(2) does, however, continue a treaty obligation “for any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”).

Of course, cessation of treaty obligations cannot, as Ottawa Convention Article 20(4) affirms, impact a State’s continuing customary international law obligations. If the production or use of anti-personnel mines violated customary international law, these States’ withdrawals would not allow them to change their behavior overall. But claims that the Ottawa Convention’s contents reflect a general and uniform practice of States accompanied by opinio juris are difficult to sustain. True, even with the six States’ denunciations, 160+ States remain party to the treaty, opening the door to suggestions that the States’ pacta sunt servanda commitments simultaneously signal the subjective and objective elements for identifying customary international law.

Yet, as international law scholarship has long recognized, widespread treaty membership alone is a tricky way to affirm custom, particularly for non-party States. And in this case, it is difficult to ignore those States that have chosen not to join the Ottawa Convention, including three of five UN Security Council permanent members (China, Russia, and the United States) along with States whose recent histories entail significant armed conflicts (e.g., Israel, India, Pakistan, South Korea). As such, it may be difficult to insist on States like Finland or Lithuania having a continuing customary legal obligation to continue to perform their Ottawa Convention commitments once their withdrawals from that treaty become legally effective.

Ukraine’s Position

Ukraine’s notification, however, warrants further attention. It has not publicly qualified its withdrawal as a denunciation equivalent to that being made by other States bordering Russia in terms of giving six months’ notice. On the contrary, its “political” decision to cease performance of “irrelevant” Ottawa Convention commitments implies a more immediate effect. Here, however, it is worth recalling that VCLT Article 72 permits a treaty (or its parties) to not release a withdrawing party from its obligations if they so provide. And Ottawa Convention Article 20(3) clearly provides that even if Ukraine attempts to withdraw from the treaty, the existence of its armed conflict with Russia means that it must continue to perform the treaty until that conflict ends. Until then, Ukraine remains legally bound.

Nor can Ukraine invoke grounds for non-performance under the laws of treaties or State responsibility. The International Court of Justice’s reasoning in the Gabcíkovo-Nagymaros Project case made clear that interests in treaty stability mean that international law limits a State’s doctrinal exit options to those in the VCLT (e.g., material breach, fundamental change of circumstances). Russia is, of course, not a party to the Ottawa Convention, so Ukraine cannot invoke its (frequent) use of anti-personnel mines as a basis for Ottawa Convention withdrawal or suspension. But even if Russia was a party, VCLT Article 59(5) precludes using breach as an excuse for treaty termination or suspension for “provisions relating to the protection of the human person contained in treaties of a humanitarian character.” The Ottawa Convention’s core provisions are clearly of a humanitarian character, aiming to protect otherwise innocent civilians from a particular weapon of armed conflict. Treaty breach is thus a dead end for assessing the legality of Ukraine’s withdrawal.

Ukraine’s explication that current circumstances could not be “foreseen,” might be read as an invocation of the doctrine of fundamental change of circumstances (rebus sic stantibus). VCLT Article 62 provides that States cannot withdraw from a treaty by invoking rebus sic stantibus unless circumstances that “constituted an essential basis of the consent of the parties to be bound by the treaty” have so changed as to “radically” transform the extent of obligations still to be performed under the treaty. Such arguments are difficult to sustain here, however, where the Ottawa Convention negotiators: (a) clearly foresaw how armed conflict might incentivize States to bring their treaty commitment to an end; and (b) drafted explicit text to foreclose such a move. Nor does anything in Article 20 condition its terms to the other State party to the conflict being a Member State; the obligations were clearly not designed with reciprocity in mind.

Perhaps Ukraine will argue it has a right to suspend, rather than terminate, Ottawa Convention compliance instead? Doctrine on treaty suspension is much sparser than for treaty terminations and withdrawals. As such, the arguments that foreclose termination may similarly restrain treaty suspension. Moreover, the ILC’s work on treaties in armed conflict suggests that IHL treaties in particular face an uphill struggle for any general international legal claim to suspension. This line of reasoning also counsels against using Ukraine’s (absolutely legitimate) jus ad bellum claims to self-defense under UN Charter Article 51 as grounds for changing its jus in bello commitments.

Nor do I think Ukraine can rely on the law of State responsibility as an alternate ground to sustain its arguments. Russia’s operations in Ukraine do appear to regularly flout many (many!) IHL rules. Yet, Ukraine’s withdrawal is not being cast as a countermeasure in the way the procedural elements of the doctrine laid out by the International Law Commission’s Articles on State Responsibility (ASR) require (e.g., summation and notification). But even if it was, countermeasures do not entitle States to violate “the protection of fundamental human rights” or “obligations of a humanitarian character prohibiting reprisals” (ASR, art. 50). Others might disagree, but I am hard pressed to see how the Ottawa Convention’s contents avoid implicating both categories, where its very object and purpose was to afford precisely these protections to civilians otherwise suffering from the lasting impacts of these weapons. Of course, the whole point of countermeasures is to generate a return to compliance by the State targeted, a tricky proposition where Russia is not bound by the Ottawa Convention provisions (putting aside for now the other IHL rules its behavior violates). Nor does the doctrine of necessity offer Ukraine a lifeline. ASR Article 25 recognizes “necessity” as a ground for precluding wrongfulness, but circumscribes it tightly. Necessity cannot apply when the obligation excludes such a defense. Ottawa Convention Article 1 appears to do exactly this when it provides that States may “never under any circumstances” engage in the conduct the treaty proscribes.

In short, it seems Ukraine has few legal grounds for defending its “political” decision to cease its Ottawa Convention membership and/or obligations. As such, Ukraine remains bound “never under any circumstances … to use … develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines.”

Legal Fallout

In this case, however, there are questions of who will seek to hold Ukraine responsible if it violates its obligations under the Ottawa Convention? Of course, many NGOs would decry any future Ukrainian deployment of anti-personnel landmines, but they are unlikely to be able to generate legal consequences in doing so. Russia’s penchant for hypocrisy might lead it to protest, but its own non-party status and apparent prior use of landmines will likely counterbalance such claims.

That said, other Ottawa States parties could have legal standing to file protests or take steps to employ countermeasures for any internationally wrongful acts Ukraine commits under the treaty (noting that there may be two future wrongs here: the wrongful attempt to terminate the treaty; and the wrongful performance of prohibited acts). But even assuming the Ottawa Convention establishes obligations erga omnes partes (entitling any treaty party to complain of another’s non-compliance), I suspect States are going to be reluctant to move past condemnation of Ukraine to concrete legal responses like bringing the issue before an international court or tribunal (assuming one would have jurisdiction; the Ottawa Convention merely refers dispute settlement responsibilities to the Meeting of the Parties). Nor do I see States parties outcasting Ukraine if its landmine uses are not persistent but temporary in their operation (such as time-limited or self-deactivating mines, technologies that were not widely available at the time of the 1997 adoption of the Ottawa Convention).

Concluding Thoughts

In short, Ukraine’s future landmine conduct—though unlawful—might be tolerated given the extremity of its predicament. Rather than seeking to hold Ukraine to account for such violations—as legally sustainable as such claims might be—I suspect it’s more likely that States will (as African and Latin American States did this past summer) seek to bring Ukraine back to the table to discuss the Convention’s implementation in a more managerial way.

Taken together, Ukraine’s position provides a stark reminder that efforts to restrict the use of weapons can falter once they are perceived (rightly or wrongly) to provide benefits in excess of their (very real and dire) humanitarian consequences. As much as international lawyers envision IHL as a one-way march towards a more humane world, security and realpolitik can outweigh the pull for compliance with international law in ways that reverberate for international law itself.

Indeed, there is a larger history still to be unveiled by Ukraine’s recent decision. It is hard to ignore that Ukraine’s decision—coupled with those of other States bordering Russia—comes at a time of drastic change in the international legal order. Major powers like China, Russia, and the United States, all stand accused of breaching fundamental norms of the international legal order, whether it’s the UN Charter, the law of the sea, World Trade Organization Agreements, IHL, or human rights. It is not hard to imagine a trickle-down effect for such moves, opening the door to reducing the reach of international commitments for States who see little reason to continue to constrain themselves while others appear so willing to dispense with their international legal obligations.

To be clear, the Ottawa Convention is still far from meeting the fate of ILO Convention No. 45.  Many States and stakeholders (like the International Committee of the Red Cross) remain convinced that the use of anti-personnel mines offers little military advantage and much humanitarian suffering. Moreover, the backtracking to date obviously ties to a single, regional conflict rather than a more global phenomenon. Ukraine’s position will also bear watching. Saying it will cease compliance is not the same as doing so. It is even possible that the Ottawa Convention States parties might consider modifications or interpretations of their commitments to bring the withdrawing States back into the fold (or at least stop the current flow of denunciations). As such, whether and how the international community responds with protest, accommodation, or silence to the recent spate of Ottawa Convention withdrawals bears watching, not just for the future of the Ottawa Convention but for the future of international law itself.

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Duncan Hollis is Laura H. Carnell Professor of Law at Temple Law School.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: 24th Mechanized Brigade of the Ukrainian military