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New Zealand

Last Updated: 07 September 2011

Cluster Munition Ban Policy

Commitment to the Convention on Cluster Munitions

Convention on Cluster Munitions status

State Party

National implementation measures

Cluster Munitions Prohibition Act 2009

Participation in Convention on Cluster Munitions meetings

Attended First Meeting of State Parties in Lao PDR in November 2010 and intersessional meetings in Geneva in June 2011

Key developments

Submitted initial Article 7 Report in January 2011, Provided view prohibition of transit

Policy

New Zealand signed the Convention on Cluster Munitions on 3 December 2008, ratified on 22 December 2009, and was thus among the first 30 ratifications that triggered entry into force on 1 August 2010.

New Zealand’s national implementation legislation 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 and the convention has been included in a draft update of the defense manual on armed forces law, which is expected be issued by the Chief of Defence Force in late 2011.[2]

New Zealand submitted its initial Convention on Cluster Munitions Article 7 report on 31 January 2011. The report covers the six-month period from 1 August 2010 to 31 January 2011 and includes reporting on universalization measures under voluntary Form J.

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. 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. New Zealand hosted a key meeting of the Oslo Process in Wellington in February 2008.[3]

New Zealand continued to play a central role in the work of the convention in 2010 and the first half of 2011. New Zealand participated in the First Meeting of State Parties to the Convention on Cluster Munitions in Vientiane, Lao PDR in November 2010 with a high-level delegation led by the Minister of Disarmament and Arms Control, Hon. Georgina te Heuheu. New Zealand made several statements at the meeting and announced a contribution of NZ$1.1 million (US$793,760) to cluster munition clearance in Lao PDR.[4] Minister te Heuheu also participated in a field visit to Xieng Khouang province to see areas affected by cluster munition remnants and other explosive remnants of war. New Zealand also attended the convention’s first intersessional meetings of the convention in Geneva in June 2011.

At both meetings, New Zealand chaired sessions on national implementation measures in its capacity as Friend of the President of the First Meeting of State Parties. New Zealand has prepared two implementation guidance documents (a checklist of national implementation measures and a simple piece of model implementing legislation) for dissemination at the Second Meeting of States Parties in September 2011.[5]

New Zealand continued to promote universalization of the Convention on Cluster Munitions in 2010 and the first half of 2011. According to its Article 7 report, government ministers continue to urge states to join the convention in relevant public appearances and meetings.[6] On 3 August 2010, the Minister of Disarmament and Arms Control hosted an event at parliament to celebrate entry info force of the Convention on Cluster Munitions, which was attended by diplomatic representatives from a number of countries, including non-signatories Brazil, the United States (US), and Vietnam.[7] During meetings of the Inter-Parliamentary Union in Geneva on 4–6 October 2010 and Panama City on 15–20 April 2011, the New Zealand parliamentary delegation sponsored briefings to encourage universalization and implementation of the convention.[8] New Zealand’s Minister of Foreign Affairs, Murray McCully, welcomed the convention’s entry into force during the opening of the UN General Assembly (UNGA) in September 2010.[9]

In response to cluster munition use by Libya, in June 2011 New Zealand said that any use of cluster munitions is “extremely concerning” and “contrary to the spirit” of UN Security Council Resolution 1973 (2010) on Libya, which expressly calls on states to take all measures to protect civilians.[10] On 23 May 2011, the Minister of Disarmament and Arms Control said that it participated in a joint demarche on the Thai Ministry of Foreign Affairs together with Norway, Switzerland, and Austria to “register our concern about the reported use of cluster munitions by Thailand” and urge Thailand to join the Convention on Cluster Munitions.[11]

The Aotearoa New Zealand Cluster Munition Coalition (ANZCMC) continued its activities in 2010 and 2011. It participated in the First Meeting of States Parties and delivered a donation of NZ$4,000 (US$2,886) raised by students at Rangitoto College in Auckland to the Cooperative Orthotic and Prosthetic Enterprise Lao PDR (COPE Laos) in Vientiane.[12] In January 2011, the ANZCMC made a submission on Australia’s proposed implementing legislation for the Convention on Cluster Munitions.[13] In August 2010, ANZCMC Coordinator Mary Wareham launched a 21-minute documentary film entitled, Cluster Bombs: Banned New Zealand.[14]

Interpretative 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.”[15]

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.[16] New Zealand has stated that Article 21’s positive obligations “will be implemented through mechanisms such as diplomatic representation.”[17] 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 Cluster Munitions Convention.”[18]

The Cluster Munitions Prohibition Act 2009 specifically prohibits on 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.[19]

Clause 15 of the Act allows 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 not reported holding any cluster munitions for training and in December 2009 the government stated, “There is no present intention to bring any cluster munitions into New Zealand.”[20]

The Cluster Munitions Prohibition Act 2009 does not explicitly include “transit” in its definition of “transfer,” but, in April 2011, the Minister of Disarmament and Arms Control said 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.[21] New Zealand has the same position on transit of antipersonnel mines under the Mine Ban Treaty.[22]

Convention on Conventional Weapons

New Zealand is party to the Convention on Conventional Weapons (CCW) and its Protocol V on explosive remnants of war. It continued to participate in CCW deliberations on cluster munitions in 2010 and 2011. In November 2010, New Zealand said that it “remains willing to work in the CCW in expectation of a meaningful outcome on cluster munitions, but said the CCW’s Fourth Review Conference in November 2011 would be an appropriate point to consider “the appropriateness of continuing.”[23]

In April 2011, New Zealand said the chair’s text was still “some way” from meeting the objectives of creating an instrument with immediate effect that would be complimentary with the Convention on Cluster Munitions and “capable of producing real humanitarian impact.”[24]

Use, production, transfer, and stockpiling

New Zealand has stated that it “does not possess, will not acquire and will not use cluster munitions.”[25] New Zealand has confirmed that it has no stockpiled cluster munitions, including for training.[26]

 



[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, www.legislation.govt.nz. For analysis of the law, see ICBL, Cluster Munition Monitor 2010 (Mines Action Canada: Ottawa, October 2010), p. 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,” which is expected be issued in late 2011 by the Chief of Defence Force in accordance with Section 27 of the Defence Act 1990.  Email from Brigadier Kevin Riordan, Director General of Defence Legal Service, NZDF, 14 August 2011.

[3] 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.

[4] Statement by Hon. Georgina te Heuheu, Minister of Disarmament and Arms Control, First Meeting of States Parties, Convention on Cluster Munitions, Vientiane, 9 November 2010, www.beehive.govt.nz. Average exchange rate for 2010: NZ$1=US$0.7216. US Federal Reserve, “List of Exchange Rates (Annual),” 6 January 2011.

[5] ANZCMC with New Zealand delegation, Convention on Cluster Munitions Intersessional Meeting, Geneva, 28 June 2011. Notes by the CMC.

[6] The Article 7 report details universalization measures undertaken in 2010 and 2009. New Zealand, Convention on Cluster Munitions Article 7 Report, Form J, 31 January 2011.

[7] Statement by Hon. Georgina te Heuheu, “Entry into Force of the Convention on Cluster Munition,” 4 August 2010; and ANZCMC web update, “Parliamentary event for entry into force,” 4 August 2010, www.stopclusterbombs.org.nz.

[8] See: ANZCMC web update, “Parliamentarians push cluster bomb ban,” 8 October 2010, www.stopclusterbombs.org.nz; and ANZCMC web update, “Parliamentarians promote cluster bomb ban,” 10 May 2011, www.stopclusterbombs.org.nz.

[9] Statement by HE Murray McCully, Minister of Foreign Affairs of New Zealand, UNGA, New York, 24 September 2010, www.un.org.

[10] Statement of New Zealand, Convention on Cluster Munitions Intersessional Meetings, Session on General Status and Operation of the Convention, Geneva, 27 June 2011, www.clusterconvention.org.

[11] Letter from Hon. Georgina te Heuheu to Mary Wareham, ANZCMC Coordinator, 23 May 2011.

[12] See ANZCMC, Report on Activities: First Meeting of States Parties to the 2008 Convention on Cluster Munitions, 8 February 2011, www.stopclusterbombs.org.nz.

[13] ANZCMC web update, “Australia: Fix The Bill!” 29 May 2011, www.stopclusterbombs.org.nz.

[14] Next Step Productions web update, Cluster Bombs: Banned New Zealand, 1 August 2010, www.nextstepproductions.org. Average exchange rate for 2010: NZ$1=US$0.7216. US Federal Reserve, “List of Exchange Rates (Annual),” 6 January 2011.

[15] 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).

[16] CMC, “CMC Dublin Conference Update–Day 7: Waiting,” 27 May 2008, www.stopclusterbombs.ie. 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 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.” US Department of State cable, “NZ, cluster munitions, and interoperability,” dated 8 May 2008, released by Wikileaks on 10 January 2011. See www.scoop.co.nz.

[17] Hansard, “Cluster Munitions (Prohibition) Bill — Procedure, Second Reading, Third Reading.” Vol. 659, p. 8,482, 10 December 2009, www.parliament.nz.

[18] Email from Brigadier Kevin Riordan, NZDF, 14 August 2011.

[19] 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—Second Reading, Third Reading,” Vol. 659, p. 8,482, 10 December 2009, www.parliament.nz; and ANZCMC, “Cluster bomb ban law passes,” 10 December 2009, www.stopclusterbombs.org.nz.

[20] Hansard, “Cluster Munitions (Prohibition) Bill—Procedure, Second Reading, Third Reading” Vol. 659, p. 8,482, 10 December 2009, www.parliament.nz.

[21] Letter from Hon. 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.

[22] In October 2002, the Campaign Against Landmines (CALM) received a letter from the New Zealand Ministry of Foreign Affairs 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, to John Head, Convenor, CALM, 15 October 2002.

[23] Statement of New Zealand, CCW Meeting of States Parties, Geneva, 25 November 2010. Notes by Action on Armed Violence (AOAV).

[24] Statement of New Zealand, CCW Group of Governmental Experts (GGE) on Cluster Munitions, Geneva, 1 April 2011. Notes by AOAV.

[25] Statement by Hon. Phil Goff, Minister for Disarmament and Arms Control, Parliamentary Reception, Wellington Conference on Cluster Munitions, 20 February 2008.

[26] 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. Ministry of Foreign Affairs officials subsequently acknowledged that the cover page should not have been used for the initial Article 7 report and confirmed that New Zealand does not stockpile cluster munitions including for training. ANZCMC meeting with George Hampton and David Lynch, International Security and Disarmament Division, Ministry of Foreign Affairs and Trade, Wellington, 8 February 2011.