New Zealand
Cluster Munition Ban Policy
Policy
New Zealand signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 22 December 2009. It was among the first 30 ratifications that triggered the convention’s entry into force on 1 August 2010.
New Zealand’s implementing legislation for the convention is the Cluster Munitions Prohibition Act, enacted on 17 December 2009.[1] The New Zealand Defence Force (NZDF) has included instructions on compliance with the convention’s prohibitions in its law of armed conflict training.[2]
New Zealand submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 31 January 2011 and provided annual updated reports in 2012, 2013, and on 22 April 2014.[3]
New Zealand was an early supporter of diplomatic efforts to deal with cluster munitions and, as a member of the small Core Group of nations, took responsibility for leading the Oslo Process to its successful outcome. New Zealand hosted a key meeting of the Oslo Process in Wellington in February 2008. During the formal negotiations of the convention in Dublin in May 2008, New Zealand played a vital role in securing acceptance of the convention’s definitions.[4]
New Zealand has continued to play a central role in the work of the convention since 2008. New Zealand has participated in every Meeting of States Parties of the convention, including the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013. New Zealand has attended every intersessional meeting of the convention in Geneva, including in April 2014.
At the convention’s meetings in 2013 and 2014, New Zealand chaired discussions on national implementation measures as part of its leadership role as coordinator on national implementation. At the Fourth Meeting of State Parties, New Zealand convened a side event on national implementation measures and distributed a national implementation measures “checklist” and a simple model for implementing legislation for the Convention on Cluster Munitions.[5]
New Zealand participated in a regional meeting on unexploded ordnance in the Pacific that included a focus on the Convention on Cluster Munitions in Brisbane, Australia on 27–28 June 2013.
New Zealand has condemned Syria’s use of cluster munitions several times since 2012. At the Fourth Meeting of State Parties in September 2013, New Zealand said, “Any use of cluster munitions (as we have, indeed, faced again very recently) is now met with strong condemnation by our community of states and civil society. My Delegation has no doubt that history will not be on the side of future users of cluster munitions.”[6] In October 2013, New Zealand stated that “the international community’s growing support for the [Convention on Cluster Munitions] – and its loud and clear condemnation any use of cluster munitions – is clear evidence of a growing international norm against these weapons. New Zealand strongly condemns the use of cluster munitions in Syria over the past year.”[7]
New Zealand has voted in favor of UN General Assembly (UNGA) resolutions condemning the Syrian government’s cluster munition use, including Resolution 68/182 on 18 December 2013, which expressed “outrage” at Syria’s “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[8]
New Zealand is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.
Interpretive issues
New Zealand’s national implementation law prohibits assistance with acts banned by the convention without qualification or limitation, reflecting the nature of the Article 1 prohibition on assistance as a core and absolute obligation of the convention. In June 2011, New Zealand said that the act “makes clear that a member of the New Zealand Armed Forces commits an offence if he or she expressly requests the use of cluster munitions when engaged in military activities with the armed forces of a state that is not a party to the Convention and the choice of munitions used is within their exclusive control.”[9]
During the Dublin negotiations of the convention, New Zealand supported the inclusion of a new article on “interoperability” (joint military operations with states not party) and in the end said it viewed the resulting Article 21 as an acceptable compromise.[10] New Zealand has stated that Article 21’s positive obligations “will be implemented through mechanisms such as diplomatic representation.”[11] In August 2011, a senior NZDF official said that the “NZDF has made force commanders of combined, coalition or international forces to which members of the NZDF are contributed aware of our obligations” under the Convention on Cluster Munitions.[12]
The Cluster Munitions Prohibition Act 2009 specifically prohibits investment in cluster munition production. According to Clause 10(2), “A person commits an offense who provides or invests funds with the intention that the funds be used, or knowing that they are to be used, in the development or production of cluster munitions.” The government has not yet detailed how it will ensure compliance with the disinvestment provisions.[13]
The Cluster Munitions Prohibition Act 2009 does not explicitly include “transit” in its definition of “transfer,” but the Minister for Disarmament and Arms Control said in April 2011 that New Zealand accepts that the prohibitions on assistance and transfer that are contained in the law include the prohibition of the transit of cluster munitions across, above, or through national territory.[14] New Zealand has the same position on transit of antipersonnel mines under the Mine Ban Treaty.[15]
Use, production, transfer, and stockpiling
New Zealand has stated that it “does not possess, will not acquire and will not use cluster munitions.”[16]
Clause 15 of the Cluster Munitions Prohibition Act 2009 allows for the use, acquisition, possession, retention, and transfer of cluster munitions for training. This requires ministerial authorization and the number of cluster munitions should be the “minimum number that is absolutely necessary for the purposes” of training.
New Zealand has confirmed that it has no stockpiled cluster munitions, including for training.[17] In 2009 the government stated, “There is no present intention to bring any cluster munitions into New Zealand.”[18]
[1] The Cluster Munitions Prohibition Act 2009 provides penal sanctions of up to seven years and fines of up to NZ$500,000 for violations of the law. See Cluster Munitions Prohibition Act 2009, Public Act 2009 No. 68, 17 December 2009. For analysis of the law see ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), pp. 93–96.
[2] The prohibitions relating to cluster munitions, as well as the detailed provisions on interoperability as set out in Article 21, form part of the law of armed conflict training of the NZDF at both the basic and advanced command level. The convention has been included in the draft “Defence Manual 69: The Manual of Armed Forces Law,” to be issued by the Chief of Defence Force in accordance with Section 27 of the Defence Act 1990. Meeting with Brig. Kevin Riordan, Director General of Defence Legal Service, NZDF, 4 April 2012.
[3] Various periods are covered by the reports submitted on 31 January 2011 (for the period from 1 August 2010 to 31 January 2011), 30 April 2012 (for calendar year 2011), May 2013 (for calendar year 2012), and 22 April 2014 (for calendar year 2013).
[4] For details on New Zealand’s cluster munition policy and practice up to early 2009, see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 129–132.
[5] New Zealand Ministry of Foreign Affairs and Trade, “Convention on Cluster Munitions: Model Legislation: Cluster Munitions Act 2011.”
[6] Statement of New Zealand, Convention on Cluster Munitions Fourth Meeting of States Parties, Lusaka, 10 September 2013.
[7] Statement of New Zealand, UNGA First Committee on Disarmament and International Security, 30 October 2013.
[8] “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution A/RES/68/182, 18 December 2013. New Zealand voted in favor of a similar resolution on 15 May 2013.
[9] Statement of New Zealand, Convention on Cluster Munitions Intersessional Meetings, Session on National Implementation Measures, Geneva, 29 June 2011. See also Cluster Munitions Prohibition Act 2009, No. 68, Sec. 10(1) and (3).
[10] CMC, “CMC Dublin Conference Update–Day 7: Waiting,” 27 May 2008. On 11 January 2011, Wikileaks released a US Department of State cable dated 8 May 2008 that reported on a meeting held with a Ministry of Foreign Affairs and Trade (MFAT) disarmament official. In the cable, the US embassy reported that New Zealand considers interoperability to be a key issue and stated, “MFAT indicates that New Zealand’s approach will be to develop more specific language regarding interoperability as opposed to deleting clauses 1 (b) and (c) of the draft convention.” “NZ, cluster munitions, and interoperability,” US Department of State cable dated 8 May 2008, released by Wikileaks on 10 January 2011.
[11] Hansard, “Cluster Munitions (Prohibition) Bill – Procedure, Second Reading, Third Reading,” Vol. 659, p. 8,482, 10 December 2009.
[12] Email from Brig. Kevin Riordan, NZDF, 14 August 2011.
[13] During the final debate on the bill, Select Committee Chair John Hayes said “there would…be a reasonable expectation that fund managers and investors would investigate the full portfolio of a company before investing, in case prohibited activities were involved. That provision may also be interpreted by the courts to include retaining an investment after the discovery of its involvement in cluster munitions development or production.” See Hansard, “Cluster Munitions (Prohibition) Bill – Procedure, Second Reading, Third Reading,” Vol. 659, p. 8,482, 10 December 2009; and Aotearoa New Zealand Cluster Munition Coalition (ANZCMC), “Cluster bomb ban law passes,” 10 December 2009,
[14] Letter from Georgina te Heuheu to Mary Wareham, ANZCMC, 29 April 2011. According to the letter, “Under New Zealand’s Cluster Munitions Prohibition Act 2009 the transit of cluster munitions through New Zealand is an offence but…not all states share that position.” According to the Act (Part 1. Preliminary Provisions, 5. Interpretation), New Zealand’s definition of transfer includes (i) importation into, and exportation from, New Zealand; and (ii) the transfer of title to, and control over, cluster munitions.
[15] In October 2002, the Campaign Against Landmines (CALM) received a letter from the New Zealand Ministry of Foreign Affairs and Trade that stated the government’s position that the transit of antipersonnel mines through New Zealand’s territorial waters is prohibited by domestic laws. It also noted that efforts to enforce these laws against a vessel exercising the right of innocent passage were limited. Letter from Geoff Randal, Director of the Disarmament Division, Ministry of Foreign Affairs and Trade to John Head, Convener, CALM, 15 October 2002.
[16] Statement by Phil Goff, Minister for Disarmament and Arms Control, Parliamentary Reception, Wellington Conference on Cluster Munitions, 20 February 2008.
[17] Form B (Stockpiles and destruction) and Form D (Cluster munitions retained and transferred) were not included in the Article 7 report, but on the report’s cover page these forms were marked as “not applicable.” Convention on Cluster Munitions Article 7 Report, January 2011.
[18] Hansard, “Cluster Munitions (Prohibition) Bill – Procedure, Second Reading, Third Reading,” Vol. 659, p. 8,482, 10 December 2009.