LM Report 2001

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THE MINE BAN TREATY AND NATIONAL IMPLEMENTATION LEGISLATION

Verification Research, Training and Information Centre (VERTIC - www.vertic.org), London^[6]

INTRODUCTION

Article 9 of the Mine Ban Treaty (MBT) obliges each state party to take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any prohibited activity by persons or on territory under its jurisdiction or control. This study assesses the extent to which these obligations have been carried out to date,^[7] compares how states parties have framed their legislative, administrative and other measures (including their comparative strengths and weaknesses), suggests best practice where appropriate, and proposes measures to enhance implementation of Article 9.

OVERALL STATUS OF ARTICLE 9 IMPLEMENTATION

States Parties that have enacted domestic enabling legislation as of 1 June 2001^[8]

In the third year since the MBT entered into force, the number of States that have implemented, or are in the process of implementing, Article 9, is increasing, albeit gradually. As of June 2001, thirty States – more than a quarter of States Parties – had enacted some sort of domestic enabling legislation.

States parties can be divided into three groups with regard to the implementation of national implementation legislation. The first group of states claim that legislation they passed before the treaty entered into force for them has the effect of implementing the treaty’s provisions. This group of states includes Austria, Belgium, Guatemala, Ireland, Italy, and Switzerland.^[10]

The second group of States Parties includes those that have passed implementing legislation, or passed amendments to existing laws, since the treaty entered into force. These legislative measures are either designed to specifically implement the treaty’s provisions, or have the effect of implementing the treaty by enacting prohibitions and sanctions for a range of weapons including antipersonnel (AP) mines.

The third and, sadly, the largest, group of States Parties covers those that have not enacted any implementing legislation. In many cases, the delay in enacting legislation is due to limited resources, or the presence of other more pressing domestic issues. Some States may feel that legislation is unnecessary, as no landmine-related activities have ever taken place within their borders. This position is unsatisfactory, since enacting penal sanctions for treaty violations is a mandatory obligation for states parties. Also, there is no guarantee that prohibited activities will not occur in such states in the future. Moreover, without legislation that has extraterritorial coverage, there is nothing to stop nationals from these countries carrying out prohibited AP mine activities in other states that are not party to the MBT.^[11]

Of the eighty-six States Parties without implementing legislation,^[12] some are relatively close to adopting legislation, with a bill at the drafting, debating or development stage;^[13] the remainder have still to begin a legislative process. Some states, including Ecuador, Fiji, Mexico, Panama, Portugal, and Venezuela, have a provision in their constitution that makes treaties self-enacting upon ratification or accession. Hence the MBT is considered by them to be in force domestically even though no legislation has yet been passed to implement the treaty as a whole or to implement specific measures such as penal sanctions. Other States, such as Andorra and Denmark, have passed administrative orders or formed commissions or agencies to meet their obligations under Article 9 of the MBT, yet these measures do not put in place the penal sanctions required by that article. Meanwhile, Jordan, Peru, Thailand, and Tunisia have statutes applying to broad categories of weapons^[14], such as explosive devices, which predate the MBT. These pre-existing statutes may not implement the treaty as effectively as specific statutes passed after entry into force.

LEGAL OBLIGATIONS

Although the Mine Ban Treaty obliges States Parties to implement the treaty domestically, the extent to which they have done so deserves close examination. This applies especially to aspects such as the implementation of penal sanctions, which must be done whether or not national law allows for international treaties to be self-enacting on ratification.^[15] While the provisions of the text have been broadly implemented, precise enactment varies considerably. Some states have left out some elements of the treaty in their legislation. Some have been reluctant to go beyond the MBT’s basic provisions, while others have gone well beyond them.

DEFINITIONS

Article 2 of the MBT provides definitions, including that of an AP mine, which ideally should be reproduced in domestic legislation and regulations.^[16] In fact, many States have either reproduced sections of the treaty language verbatim in their legislation, or attached the treaty as a schedule to their legislation^[17]. Others have amended the treaty model to create their own definition in a way that may, or may not, extend or limit the treaty definition.^[18] Finally, a number of States have effectively extended the scope of the treaty as it applies to them by adopting a broader definition than is contained in MBT Article 2.^[19]

The manner in which States have approached the definition reveals three issues of concern. First, the treaty’s definition of AP mine excludes anti-vehicle (AV) mines, and allows the use of anti-handling devices on the latter. Most states have underlined this distinction: the British definition, for example, makes a point of outlawing only AP mines designed as such.^[20] Ireland, on the other hand, voluntarily opted for a definition that bans not just AP mines, but all landmines.^[21]

The second issue concerns advances in mine technology beyond the use of explosives. Virtually all the acts examined use the MBT’s term “exploded” or “detonated”, which covers explosive substances only. The exception is Italy, which adds the phrase “cause an explosion or release of disabling substances,” thereby prohibiting devices that employ alternatives to explosives such as gas or other incapacitating substances.^[22] This is particularly prudent as Italian companies were major producers of new landmine technologies and the government needed to ensure that such firms did not attempt to remain in the AP mine market by developing new technologies.

The third issue raised is the distinction between “designed” and “adapted.” The MBT uses the former, and most states have entrenched this definition in their statutes. However, other explosive devices not designed as AP mines, such as grenades, may be adapted to serve as AP mines; only when so adapted are these weapons illegal. Several States, including Italy and Canada, have included in their definition of AP mine any device that is so adapted or altered,^[23] thereby extending the MBT definition.

OPERATIVE CLAUSES ON PROHIBITION

The MBT’s general provisions banning AP mines are contained in Article 1. While most states have adopted these provisions wholesale, many have neglected to provide measures to prevent individuals and industry using loopholes to circumvent these provisions. Three significant aspects must be considered in this regard, especially in this era of globalization, where the porousness of national boundaries, the free movement of individuals and capital and the trans- and multi-national character of industry can make enforcement of domestic law difficult.

The first issue is that of extraterritoriality. Ideally national legislation should prohibit violation of the MBT by nationals not only inside, but also outside their country of origin. It should also prohibit legal persons registered in a state party, such as manufacturing firms, from setting up AP mine production facilities in non-states parties. In the words of McGrath and Robertson, “the nexus for the criminal sanction is the citizenship of the person breaching the prohibition, not the location of the prohibited activity.”^[24] An example of an effective piece of legislation in this respect is the British Act, in which Section 3 imposes prohibitions on British nationals even if the activity is conducted outside the UK.^[25]

Loosely related to this extraterritoriality clause and equally important is a provision preventing nationals from contracting the production of AP mines to nationals of non-states parties. Without provisions preventing such activity, a manufacturer may legitimately remain in the AP mine business by simply contracting production to a company in a non-party State and ensuring that it is staffed entirely with locals. Again, the Italian and British acts are commendable in this regard. The latter’s Section 2(3) prohibits nationals making arrangements with other persons to acquire or transfer APMs. Section 4 of Trinidad & Tobago’s act applies to conduct within the country or elsewhere.

Finally, there is the issue of a ban on technology transfers to prevent indigenous firms selling technology rights offshore. Both the Spanish and the Czech acts include a provision for this.^[26] By far the strictest in this respect is the Italian statute, which bans the transfer of patents, technology and even intellectual property rights.^[27] Most other statutes, including, surprisingly, those of France and Canada, contain operative clauses that cover only the use, development, stockpiling and transfer of the devices themselves.

Penal Provisions

No law can be truly enforceable without provisions to punish violators. Article 9 of the MBT requires States Parties to implement penal sanctions, in addition to other appropriate legal and administrative measures, to prevent violations of the operative clause. The actual degree of maximum possible punishment written into national legislation varies considerably, as shown below.