Commitment to the Convention on Cluster Munitions

Policy

The Kingdom of Spain signed the Convention on Cluster Munitions on 3 December 2008 and ratified on 17 June 2009. It was among the first 30 ratifications that triggered entry into force of the convention on 1 August 2010.

Spain’s penal code was amended on 22 June 2010 to provide sanctions for violations relating to the use, development, manufacturing, sale, stockpiling, and trafficking of cluster munitions of a penal term of five to 10 years or three to five years for violations of the prohibition on assistance.[1] In addition, on 21 November 2013, Spain’s Congress of Deputies adopted an amendment to the country’s 1998 implementing legislation for the Mine Ban Treaty (Law 33/1998) to add the provisions of the Convention on Cluster Munitions. As of June 2014, the amendment was awaiting Senate approval. (See National implementation legislation section.)

Prior to entry into force, Spain declared a unilateral moratorium on use, production, and transfer of cluster munitions on 11 July 2008.[2] Directive No. 71/2008, issued by the Secretary of Defense on 30 July 2008, has regulated implementation of the convention by Spanish Armed Forces.[3]

Spain submitted its initial Article 7 report for the Convention on Cluster Munitions on 27 January 2011 and provided annual updated reports in 2012, 2013, and on 5 June 2014.[4]

Spain participated throughout the Oslo Process that created the Convention on Cluster Munitions and its position evolved significantly to support a comprehensive ban on all cluster munitions. Following the adoption of the convention in Dublin in May 2008, Spain rapidly began to implement its provisions.[5]

Spain has continued to actively engage in the work of the Convention on Cluster Munitions. It has participated in every Meeting of States Parties of the convention, including the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013, where it made statements, including on stockpile destruction and international cooperation and assistance. Spain has attended all of the convention’s intersessional meetings in Geneva, including in April 2014.

In 2013–2014, Spain is serving as co-coordinator on stockpile destruction and retention together with Albania, after serving in the position in 2012–2013 together with Croatia. At the April 2014 intersessional meetings Spain gave a presentation on its progress in stockpile destruction.[6]

At the Fourth Meeting of States Parties, Spain emphasized the need for stronger universalization efforts.[7] At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2013, Spain affirmed its commitment to the Convention on Cluster Munitions, which it called a significant advance in the field of humanitarian disarmament.[8]

Spain condemned the use of cluster munitions by government forces of then-leader Muammar Gaddafi in 2011, but it has not made a national statement to express concern at the Syrian government’s use of cluster munitions, which started in 2012 and has continued through 2014.[9] Spain has voted in favor of UNGA resolutions condemning the Syrian government’s use of cluster munitions, 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.”[10]

Spain is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.

National implementation legislation

In April 2013, Spain first reported that a process was underway to amend its implementation legislation for the Mine Ban Treaty—Law 33/1998—to include “a total ban on cluster munitions and similar arms.”[11] On 21 November 2013, the Congress of Deputies adopted an amendment to Law 33/1998 to incorporate provisions on cluster munitions after a rapid parliamentary process of review.[12]

When Law 33/1998 was enacted in October 1998, it included an annex stating that the penal sanctions required by Article 9 of the Mine Ban Treaty would be developed in new implementing legislation.[13] In 2001, however, Spain took the view that penal sanctions were already present in existing legislation.[14]

The draft amendment to Law 33/1998 prohibits the use, development, production, acquisition in any way, stockpile, conservation, transfer, or exportation, directly or indirectly of antipersonnel mines, cluster munitions, explosive bombs, and weapons of similar effect. It also prohibits helping, assisting, or inciting anyone to participate in any activity prohibited by the convention.[15]

The transfer of antipersonnel mines and cluster munitions is only permitted when required for destruction purposes.[16]

The amendment also establishes that military cooperation and participation in military operations by the State, its military personnel, or its nationals with other states that are not a party to the Convention on Cluster Munitions and use these type weapons is not prohibited by this law.[17]

The State guarantees the destruction as soon as possible of all antipersonnel mines and cluster munitions in accordance with norms to protect public health and the environmental conditions of the zone in which their destruction will proceed.[18] Consistent with the two relevant treaties, destruction must be completed in no more than four years or eight years, respectively.

The costs generated for the destruction of antipersonnel mines will be covered by the Ministry of Defence. The costs derived from the destruction of cluster munitions will be covered by who owns them.[19]

In addition, companies that have produced or possess antipersonnel mines and/or cluster munitions must inform the Minister of Defence of the total amount of these weapons and also must include a note on the type, quantity, and if possible, the lot numbers of each type of weapon. Companies should destroy these weapons as soon as possible. If appropriate, companies should inform the Ministry of Defence of their conversion or decommissioning of production facilities for the weapons prohibited by the convention.[20]

The proposed amendment also includes a provision on international cooperation and assistance. The government will pursue financial support and collaboration in programs and humanitarian aid projects that aim at detecting, deactivating or dismantling mines and other explosive remnants of war, especially cluster munitions in other states. Spain will pursue its financial support and collaboration in programs of cooperation and assistance to victims of antipersonnel mines and of explosive remnants of war, including cluster munitions, which extends to their families and the communities to which they belong, encompassing medical support, rehabilitation, psychological support, social and economic inclusion, awareness, prevention of accidents, education, and rehabilitation of the affected populations.[21]

During parliamentary debate, a number of concerns were raised regarding the cluster munitions amendment to Law 33/1998. Joan Baldoví Roda from the Mixed Group stated that allowing Spain to cooperate in military operations in which cluster munitions may be used would compromise “the spirit of the Oslo Treaty.”[22] Agirretxea Urresti from the Partido Nacionalista Vasco called for a stronger approach to international cooperation and assistance as developed in Article 6 of the amendment.[23] The opposition groups PSOE, Izquierda Plural, and UPyD y Compromís called for the law to prohibit Spanish involvement at all times in military operations with other states that would involve cluster munitions. The groups urged that an additional paragraph on prohibition be included in the law to “prohibit the direct or indirect financing of projects that hold as end activities involving cluster munitions, including when companies or benefitting entities carry out these activities in a third country which is not a party to the Cluster Munitions Convention.”[24]

Spain has yet to make its views known on certain important issues related to interpretation and implementation of the convention, but the ongoing legislative process for Law 33/1998 clarifies its position on the prohibition on transit, the prohibition on assistance during joint military operations with states not party that may use cluster munitions, and the prohibition on investment in production of cluster munitions.

On the issue of foreign stockpiling, in its initial Article 7 report provided in 2011, Spain declared that it was “is in the process of informing” states not party with which it cooperates in joint military operations of its obligations and adherence to international agreements on both cluster munitions and landmines, including its commitments with respect to the prohibition of storage of prohibited weapons on territory under its jurisdiction and control.[25]

Use, production, and transfer

Spain has stated that it has never used cluster munitions. However, Spain produced and transferred cluster munitions in the past, prior to the 30 May 2008 adoption of the Convention on Cluster Munitions.

In its initial Article 7 report provided in 2011, Spain declared that the company Instalaza SA from Zaragoza produced two types of 120mm mortar bombs containing submunitions: the ESPIN-21 and MAT-120. In April 2011, The New York Times and Human Rights Watch (HRW) reported that MAT-120 mortar bombs manufactured in 2007 by Instalaza had been used in Libya by government forces of Muammar Gaddafi.[26] In June 2011, Spain condemned the use of cluster munitions in Libya and confirmed that the weapons used were transferred from Spain to Libya in 2006 and 2008, prior to the adoption of the convention and Spain’s moratorium.[27]

In the Article 7 report, Spain declared that Instalaza and another company, Fabricaciones Extremeñas (FAEX), have closed down their manufacturing processes for cluster munitions.[28] In 2011, Instalaza filed a claim with the government for damages and profits lost from the cancellations of sales to seven countries following the government’s 2008 decision to ban cluster munitions.[29] On 12 January 2014, media reported that Spain’s High Court had rejected Instalaza’s €59.9 million compensation claim.[30]

Explosvos Alaveses SA (EXPAL) is not mentioned in the Article 7 reports, but Spain has confirmed that the company produced the BME-330B/AP cluster bomb, which contains eight SAP submunitions and 20 SNA submunitions.[31] According to a standard reference work, EXPAL has produced two other variants of BME bombs, both of which are banned under the Convention on Cluster Munitions. The BME-330AT cluster bomb contains 516 bomblets, a mixture of 512 armor-piercing SAC-1 AP antipersonnel bomblets and four MAC-2 antivehicle mines.[32] The BME-330C (multipurpose) cluster bomb holds 180 bomblets of three different types: the CP fragmentation (antipersonnel), the CH shaped charge (anti-armor), and the SNA area denial bomblets.[33] Spain imported two variants of the Rockeye cluster bomb, the CBU-99B and CBU-100, from the US.[34]

Few details are known on past Spanish exports of cluster munitions, however, Peru has declared a stockpile of 90 BME-330 cluster bombs and 16,200 submunitions.[35]

Stockpiling and destruction

Under Article 3 of the Convention on Cluster Munitions, Spain is required to destroy all stockpiled cluster munitions under its jurisdiction and control as soon as possible, but not later than 1 August 2018.

Spain was the first signatory to the Convention on Cluster Munitions to report the completion of the destruction of its stockpile in March 2009, but three years later it declared additional cluster munitions requiring destruction. In total, Spain has declared a stockpile of 8,362 cluster munitions and 308,245 submunitions.

In its initial Article 7 report provided in 2011, Spain reported the destruction of a total of 4,762 cluster munitions containing 232,647 submunitions.[36] The stockpile was dismantled and destroyed from December 2008 and March 2009 at a cost of €4.9 million (US$6.8 million).[37]

In the Article 7 report provided in 2012, Spain declared a total of 3,600 cluster munitions and 75,598 submunitions and explained that when the unilateral moratorium on cluster munitions was declared on 11 July 2008, Instalaza SA was in the midst of a manufacturing cycle which was “automatically stopped” mid-process, leaving it with cluster munitions and submunitions that were in the process of being made.[38] In its June 2014 Article 7 report, Spain declared a slightly revised stockpile total of 3,574 MAT-120 cluster munitions and 75,045 submunitions.[39]

In its 2012, 2013, and 2014 Article 7 reports as well as in other statements, Spain has stated that the government is considering a proposal by Instalaza to destroy the remaining stocks; although the government did not provide a timeframe for the destruction, it committed that the destruction would be completed before the August 2018 deadline provided by the convention.[40]

Retention

Spain’s proposed amendment to Law 33/1998 allows for retention of antipersonnel landmines or cluster munitions for training purposes. The number should not exceed the minimum quantity absolutely necessary, and the government must report on those quantities to parliament.[41]

In its June 2014 Article 7 report, Spain declared that it has decreased the total cluster munitions retained for training and research purposes by more than half, to a total of 354 cluster munitions containing 8,380 submunitions.[42] In the initial report provided in 2011, Spain declared the retention of 711 cluster munitions and 16,562 submunitions for training and countermeasure testing purposes permitted under Article 3 of the Convention on Cluster Munitions.[43]

Cluster munitions retained by Spain[44]

Spain has reported consuming 302 ESPIN-21 cluster munitions and 6,342 submunitions in the course of explosive ordnance disposal training and for research purposes during 2013.[45] It has stated that retained cluster munitions are for training national and foreign clearance experts at the International Demining Training Centre in Madrid.[46]

Foreign stockpiling

A United States (US) diplomatic cable dated 26 November 2008 and released by Wikileaks in 2011 indicated that US military forces store cluster munitions in Spain.[47] It is not known if the US still maintains stockpiles of cluster munitions in Spain.