Commitment to the Convention on Cluster Munitions

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 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 as well as in a draft update of the defense manual on armed forces law.[2]

New Zealand submitted its initial Convention on Cluster Munitions Article 7 transparency measures report on 31 January 2011.[3] On 30 April 2012, it provided an updated Article 7 report for calendar year 2011, which included funding data and a description of universalization efforts.

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, including in 2011 and the first half of 2012. New Zealand participated in the Second Meeting of State Parties to the Convention on Cluster Munitions in Beirut, Lebanon in September 2011. New Zealand also attended the convention’s intersessional meetings in Geneva in April 2012.

At both meetings, New Zealand chaired sessions on national implementation measures as part of its leadership role as coordinator on national implementation. New Zealand distributed a checklist of national implementation measures and a simple model for implementing legislation at the Second Meeting of States Parties in September 2011.[5]

New Zealand reports that it promotes universalization of the Convention on Cluster Munitions through three principal measures:

·         Ministers continue to urge states to join the Convention in relevant public appearances and meetings;

·         Ongoing encouragement of non-signatory and non-ratifying States on the margins of other official-level meetings to join the Convention;

·         Regular funding to the Cluster Munitions Coalition/ICBL/Monitor to support their efforts aimed at promoting international action on cluster munitions.[6]

On 11 August 2011, the Aotearoa New Zealand Cluster Munition Coalition (ANZCMC) held an event in Wellington to mark one year since the 1 August 2010 entry into force of the Convention on Cluster Munitions, which was attended by diplomatic representatives from a number of non-signatory countries, including Egypt, Iran, Malaysia, Pakistan, and the United States (US).[7]

In December 2011, the ANZCMC expressed disappointment at a decision to disband the position of New Zealand’s Minister for Disarmament and Arms Control, and urged the continuing of active and constructive engagement by the government in support of the Convention on Cluster Munitions.[8]

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.”[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 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.[13]

In August 2011, the New Zealand Green Party issued a statement reporting that the New Zealand Superannuation Fund (NZS), which provides a governmental retirement benefit to all eligible New Zealanders, was invested in five companies “that have involvement in the production of cluster bombs.”[14] Prime Minister John Key told media the NZS has “agreed morally … not to invest in companies which undertake what they believe to be immoral activity like cluster bombs.”[15] The ANZCMC urged the government to take measures to ensure compliance with the 2009 implementing legislation.[16] In October 2011, the Minister of Finance responded that the government is satisfied with the responsible investment strategies and policies of Crown Financial Institutions, including NZS, and noted that, “in a pluralistic society it is also inevitable that opinions on ethical issues will differ.”[17]

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.

The Cluster Munitions Prohibition Act 2009 does not explicitly include “transit” in its definition of “transfer,” but, in April 2011, the Minister for 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.[18] New Zealand has the same position on transit of antipersonnel mines under the Mine Ban Treaty.[19]

Convention on Conventional Weapons

New Zealand is party to the Convention on Conventional Weapons (CCW) and it has participated in CCW deliberations on cluster munitions.

At the beginning of CCW’s Fourth Review Conference in November 2011, New Zealand argued that any protocol agreed on cluster munitions “would have to be compatible with, and complementary to, the Convention on Cluster Munitions, have an immediate benefit on the ground, and serve to bolster not diminish international humanitarian law.”[20]

New Zealand 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.[21] After the joint statement was delivered, New Zealand intervened to express its deep concern that humanitarian elements had not been reflected in the draft text and to emphasize that there was not consensus on the adoption of a protocol.[22]

The Review Conference ended without reaching agreement on the draft protocol, thus concluding the CCW’s work on cluster munitions.

Use, production, transfer, and stockpiling

New Zealand has stated that it “does not possess, will not acquire and will not use cluster munitions.”[23] New Zealand has confirmed that it has no stockpiled cluster munitions, including for training.[24] In 2009 the government stated, “There is no present intention to bring any cluster munitions into New Zealand.”[25]