Commitment to the Convention on Cluster Munitions

Policy

The Commonwealth of Australia signed the Convention on Cluster Munitions on 3 December 2008.

Australia has reaffirmed its commitment to ratifying the ban convention and becoming a State Party. In June 2012, Attorney-General Nicola Roxon said, “The Government is a strong supporter of the Convention on Cluster Munitions and … is working towards ratifying the Convention as quickly as possible.”[1] In a 10 May 2012 letter to the Monitor, Minister for Foreign Affairs Bob Carr said, “The Government is committed to meeting its obligations under the Convention and is working to bring the Convention into force in Australia as quickly as possible.”[2] In April 2012, a government representative told States Parties that Australia hopes to be in a position to complete ratification “later this year.”[3]

In Australia, national implementation legislation must be enacted before ratification. As of 15 July 2012, the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 was still awaiting its third and possibly final reading.[4]

On 23 November 2011, the minister of defence, the minister for foreign affairs, and the attorney-general issued a joint statement entitled “Australia committed to Cluster Munitions Convention,” which expressed the government’s view that the draft implementing legislation “faithfully implements” the Convention on Cluster Munitions and stated that “[p]rogressing the legislation through the Senate will be a priority for the 2012 Autumn Parliamentary sitting,” which concluded on 22 March 2012.[5]

Australia’s House of Representatives approved the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 on 18 November 2010 and it was then introduced in the Senate on 22 November 2010, where it had its first and second reading and was referred to the Senate Committee on Foreign Affairs, Defence and Trade for review.[6] The Senate Committee received more than two dozen submissions from NGOs, including the CMC, urging that key sections of the bill be revised and strengthened, particularly with respect to its provisions on joint military operations with states not party.[7] On 25 March 2011, the Senate Committee issued a report on its inquiry into the bill that recommended no changes to the draft legislation.[8]

After the Senate Committee report was issued, CMC Australia and the Australian Network to Ban Landmines and Cluster Munitions (ANBLC) embarked on a campaign to “Fix The Bill” that has involved intensive media outreach and parliamentary engagement to encourage activity to change the bill.[9] In February 2012 at a Department of Foreign Affairs and Trade disarmament roundtable in Canberra, a government representative stated that there would be no changes to the draft implementing legislation.[10] As of 15 July 2012, there had been no further legislative developments with respect to the draft legislation.

Australia participated extensively in the Oslo Process that created the Convention on Cluster Munitions and its policy toward the prohibition on cluster munitions evolved significantly during that time. Australia joined in the consensus adoption of the convention in Dublin on 30 May 2008 and signed in December 2008.

Australia continued to actively contribute to the work of the Convention on Cluster Munitions in 2011 and the first half of 2012. Australia provided significant financial support for the preparation, hosting and presidency of the convention’s Second Meeting of States Parties in Beirut, Lebanon in September 2011. At the meeting, Australia completed its work as Friend of the President of the First Meeting of States Parties on clearance and risk reduction. It presented a working paper on land release and co-sponsored a side event with NGOs on the topic. Australia made several statements during the meeting, including on universalization, victim assistance, cooperation and assistance. It also convened a side meeting with Pacific island delegates to discuss universalization of the Convention on Cluster Munitions in the Pacific region.

At the convention’s intersessional meetings in Geneva in April 2012, Australia made statements on universalization, victim assistance, clearance and risk reduction, and cooperation and assistance.

Australia has supported efforts to encourage universalization of the Convention on Cluster Munitions at the multilateral, regional and bilateral levels, including in the Asia-Pacific region where it supported workshops on the convention held in Bangkok in August 2011 and Phnom Penh in August 2011.[11] Australia also provides support to the CMC for its advocacy and universalization work.[12]

In June 2012, the attorney- general stated that “Australia will continue to dissuade countries not party to the Convention from using cluster munitions, and to promote the principles established by the Convention.”[13]

Interpretive Issues

In correspondence as well as through the course of the process to enact implementing legislation, Australia has publicly expressed its views on a range of important matters relating to interpretation of the Convention on Cluster Munitions.

Joint military operations

During the Oslo Process, Australia supported the inclusion in the convention text of provisions on “interoperability” or military relations with states that have not joined the convention (Article 21).[14] The Senate Committee on Foreign Affairs, Defence and Trade reported that without the convention’s interoperability provisions, Australia’s ability to engage with its allies in bilateral and multilateral military operations would be “severely undermined if not impossible.”[15] The CMC’s view is that the Department of Defence has openly enumerated several activities banned by the convention that, under Australia’s proposed implementing legislation, would be allowed in joint military operations. For example, during joint military operations, Australian Defence Force (ADF) personnel could help plan, provide intelligence for, and/or contribute logistical support to an operation that may involve a cluster munition attack.[16] These activities run counter to the convention’s object and purpose as well as its prohibition on assistance. The CMC believes a State Party can allow participation in joint military operations without permitting these forms of assistance.

The November 2011 statement by the minister of defence, the minister for foreign affairs and the attorney-general states that “[t]he ability to maintain interoperability is central to the maintenance of Australia’s national security” and said “Australian Defence Force personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions, or to make the decision to do so. This includes while serving on combined operations with Defence forces of other countries, in combined headquarters, or on exchange with a foreign force.”[17]

In May 2012, the Department of Foreign Affairs and Trade (DFAT) informed the Monitor that “ADF personnel involved in joint operations may call in fire support from forces of a State not party to the Convention, where they are aware that cluster munitions may be used. However, ADF personnel must not specifically request the use of cluster munitions where the choice of munitions is within their exclusive control.”[18]

In June 2012, the attorney-general stated that the “limitations” contained in the draft implementing legislation “ensure that Australia and Australians will continue to act consistently with the object and purpose of the Convention. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements, which are applied through ADF doctrine, procedures, rules, and directives.”[19] The attorney-general noted that the United Kingdom and Canada “have taken a similar approach to interoperability in their domestic legislation.”

In a December 2008 United States (US) diplomatic cable made public by Wikileaks in August 2011, a senior Australian foreign affairs official reportedly informed US officials that “[f]rom a policy perspective, Australia would strongly wish to avoid any limitations on ADF involvement in tactical planning with US forces.” The cable notes that official’s understanding of Article 21 is that “Australian military personnel will be prohibited under the CCM [Convention on Cluster Munitions] from physically deploying cluster munitions” and “Australian military personnel embedded with U.S. forces will be able to generally engage in tactical planning, except where such participation amounts to an express request to physically deploy cluster munitions as defined in the CCM, and the choice of munitions used was within the exclusive control of the Australian military personnel.”[20]

Transit and foreign stockpiling

On the prohibition of transit and foreign stockpiling, in a March 2011 letter to the Monitor the DFAT said that Article 21(3) permits States Parties to undertake military cooperation and operations with States not party to the Convention which “may extend to hosting foreign bases, aircraft, or ships and, in this context, to the stockpiling, retention and/or transfer of cluster munitions by military personnel of States not party to the Convention.”[21]

Australia does not have, and has never had, an operational stockpile of prohibited cluster munitions.[22] It has also informed the Monitor that “no other State has a stockpile of cluster munitions on Australian territory,” but “the Bill provides a defence for military personnel of countries that are not party to the Convention who stockpile, retain or transfer cluster munitions while on a base, ship or aircraft in Australian territory. Notwithstanding this defence, visiting forces would not be allowed to use, develop, produce or acquire cluster munitions in Australia.”[23] Section 72.42 of Australia’s proposed implementing legislation also allows for transit and foreign stockpiling, activities that, in the CMC’s view, should be banned under the prohibition on assistance.

The joint statement issued by the minister of defence, the minister for foreign affairs, and the attorney-general in November 2011 affirms that the Australian government “will not approve the stockpiling of cluster munitions in Australia by foreign governments” and says the “commitment not to authorize stockpiling by foreign governments will be confirmed in a public statement at the time of Australia’s ratification of the Convention on Cluster Munitions” and in Australia’s annual transparency measures report for the convention.[24]

In June 2012, the attorney-general stated that “Military cooperation may entail the use by foreign military personnel of bases on Australian territory, or the entry of vessels into Australian territory” but stated “it would still be an offence for visiting forces to use, develop, produce or acquire cluster munitions in Australia.” In addition, “the Government has not and will not authorise foreign stockpiles of cluster munitions in Australia.”[25]

Disinvestment

Australia’s draft implementing legislation does not include specific measures to prohibit investment in cluster munition production. In the March 2011 letter to the Monitor, the DFAT said, “While the Convention does not expressly prohibit investment in companies that produce or manufacture cluster munitions, some acts of investment will fall within the scope of the conduct prohibited by Article 1” of the convention.[26] During the second Senate debate on the bill in October 2010, the attorney-general stated that activities covered by the conduct prohibited by the draft implementing legislation includes where a person “invests in a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company.”[27] In a March 2011 list of examples of what will fall within the scope of an offense under Australia’s draft implementation legislation, the attorney-general’s department stated “The intentional provision of financial assistance to an entity so that the entity can develop or produce cluster munitions will amount to an offence.”[28]

In May 2011, Australia’s sovereign wealth fund confirmed that it had divested itself of holdings in mine and cluster munition manufacturers by excluding 10 companies from its investment portfolio.[29] According to a June 2012 NGO report, at least one Australian financial institution invests in companies involved the production of cluster munitions.[30]

Convention on Conventional Weapons

Australia is a party to the Convention on Conventional Weapons (CCW) and in 2011 played an active role in seeking consensus on a proposed CCW protocol on cluster munitions.[31] Two weeks before the CCW’s Fourth Review Conference opened, on 1 November 2011, a Senate motion by Senator Scott Ludlam calling on the Australian government not to support the proposed CCW protocol or any other instrument that weakens the Convention on Cluster Munitions failed by a vote of 37 to 10.[32]

At the outset of the Review Conference, Australia expressed its long-held view that a CCW protocol on cluster munitions was necessary because “international law rules on states remaining outside the Convention on Cluster Munitions do not provide sufficient restrictions and prohibitions” and because without such a protocol “[a] virtually unfettered ability to use cluster munitions would remain an unfortunate reality.” Australia, however, warned that a CCW protocol on cluster munitions “must provide for a strong humanitarian outcome.”[33]

Australia was not one of 50 countries that endorsed a joint statement on the final day of the Review Conference declaring that there was no consensus for adopting a proposed CCW protocol that would permit continued use of cluster munitions. The Review Conference ended without reaching agreement on the draft protocol, thus concluding the CCW’s work on cluster munitions. Australia expressed disappointment that the proposed protocol was not adopted, stating that it would have provided “significant humanitarian benefits.”[34]

Use, production, transfer, and stockpiling

Australia’s DFAT has previously stated that “Australia has not developed, produced or used cluster munitions, and does not currently develop, produce or use them.”[35] In 2010, the DFAT clarified that “To the best of our knowledge, the ADF has not used cluster munitions as a weapon of war, and has never had operational stocks of cluster munitions to use.”[36] The November 2011 statement by the minister of defence, the minister for foreign affairs, and the attorney general affirmed, “Australia has never had an operational stockpile.”[37]

In 2007, Australia procured SMArt 155 weapons with submunitions, a 155mm anti-tank artillery round that contains two submunitions.[38] The weapon is not covered by the definition of a cluster munition in the Convention on Cluster Munitions.[39]

Retention

Australia has retained “a limited number” of cluster munitions for training and counter measures purposes by the ADF.[40] In June 2011, Australia said that the retained munitions are “representative samples,” a combination of submunitions and dispensers of which only two bombs are “live,” that are not part of operational stocks and not suitable for use.[41] In May 2012, Australia informed the Monitor that “[i]n specific circumstances specified members of the ADF (or other specified Commonwealth public officials) may acquire or retain specified cluster munitions with the written authorization of the Minister for Defence (or delegate) who is the Minister responsible for the administration of the Explosives Act 1961.”[42]

Support for Mine Action

In 2011, Australia contributed A$44,238,832 (US$45,707,561) in mine action funding, almost double their contribution in 2010.[1] The contribution went to 19 states, the ICRC, and the Geneva International Center for Humanitarian Demining (GICHD). The largest contributions went to Afghanistan as well as to Sri Lanka, where they were the largest donor in 2011. Australia also contributed A$3.5 million ($3.6 million) to Libya through the UN Voluntary Trust Fund for Assistance in Mine Action (VTF).

In December 2009, at the Second Review Conference of the Mine Ban Treaty, Australia announced a new mine action strategy for 2010–2014 with a total commitment of A$100 million ($103 million). Australia takes a comprehensive approach to mine action funding and does not differentiate between action on types of explosive remnants of war, including mines and cluster munitions, where one or more of these weapons are a problem.[2] At the end of its first two years of the five-year strategy Australia had already committed A$70 million ($72 million). At the Convention on Cluster Munitions Intersessional Standing Committee meetings in April 2012 in Geneva, Australia said it would exceed its A$100 million five-year commitment.[3]

Contributions by recipient: 2011[4]

Contributions by thematic sector: 2011

Summary of contributions: 2007–2011[5]