10 May 2011
Australia: fix the bill
Teenage cluster munition survivor and ban advocate Soraj Ghulam Habib from Afghanistan in front of the Australian parliament building in Canberra campaigning for Australia to fix its proposed legislation. Photo credit: Mette Eliseussen(London, 9 May 2011) – The Australian Senate will debate and approve proposed legislation in the coming weeks that will implement the Convention on Cluster Munitions and enable Australia to ratify and become a State Party to the Convention. The draft law already passed the House, and therefore passage by the Senate will lead to its becoming law. Australia is among 108 countries that have signed this key disarmament and humanitarian treaty, which entered into force as binding international law on 1 August 2010. Many of Australia’s military allies have also joined the Convention – including the majority of NATO members with which Australia often conducts joint operations (20 out of 28 NATO members have signed the Convention, with the United States being a key exception.)The Cluster Munition Coalition (CMC) believes that key sections of the draft text of the Australian bill reflect neither the spirit nor the letter of the Convention, and that the Senate should significantly revise those sections in order to ensure that Australia will live up to its legal and humanitarian commitments. Upon signing the Convention, Australia bound itself to uphold the purpose of the treaty, and its draft law is arguably inconsistent with that purpose. Almost 30 national and international civil society organisations made submissions with proposed amendments to the bill, including the CMC in support of the submission by Human Rights Watch and the International Human Rights Clinic of Harvard Law School as well as the Red Cross none of which have been taken onboard. If the bill were to be passed in its current form, it would permit several activities that run counter to the goals of the Convention and could severely weaken its impact. Passage of the law without amendment would therefore call into question Australia’s commitment to the cluster munition ban and its universalisation, while potentially undermining Australia’s contribution to reducing the impact of these weapons through its role as a major donor for clearance and victim assistance.The CMC has five main concerns about the proposed Australian bill:1. Interoperability – joint military operations with countries not bound by the treatyProblem: The proposed legislation (Section 72.41) paves the way for Australian forces to assist in activities prohibited by the treaty during joint military operations.CMC recommendation: Section 72.41 should be amended to clarify that Australians may never assist with activities prohibited by the Convention on Cluster Munitions. Article 21 of the Convention was included largely as a way of making sure that States Parties can take part in joint military operations with allies that are outside the treaty, without risk of a criminal suit if those allies use cluster munitions. While the CMC agrees that the Convention allows participation in joint military operations, the CMC’s interpretation of Article 21 does not allow any complicity in the use of cluster munitions, or in assistance or planning for their use, as that would be contrary to the spirit and purpose of the Convention as a whole. Upon implementing the Convention nationally, other countries such as Norway have specifically explained that "the exemption for military cooperation does not authorise states parties to engage in activities prohibited by the convention."2. Jurisdiction over foreign military personnel, stockpiles and transitProblem: The proposed legislation (Section 72.42) explicitly allows foreign forces to use Australian territory to stockpile and transit cluster munitions.CMC recommendation: Section 72.42 should be deleted as it exempts the military personnel of non-States Parties from the Convention’s prohibitions while they are on Australian territory and is therefore inconsistent with the Convention. The Convention clearly prohibits States Parties from stockpiling or transferring cluster munitions as well as from assisting other countries to engage in these activities. In allowing transit and foreign stockpiling, the Australian bill does not reflect the letter or the spirit of the treaty. Several States Parties and signatories have already clarified that they believe the Convention does not permit transit or foreign stockpiling of cluster munitions. Austria and Germany ban transit in their implementation legislation, and the United Kingdom announced that although it did not consider itself legally obligated to do so, in keeping with the Convention’s spirit, it would seek the removal of all foreign stockpiles of cluster munitions from UK territory within the eight-year deadline for stockpile destruction.3. Retention of cluster munitionsProblem: The proposed legislation (Section 72.39) allows Australia to retain cluster munitions for training and research.CMC recommendation: Section 72.39 should be deleted, or at least supplemented with safeguards, because, in the view of the CMC, the retention of cluster munitions for training is unnecessary. Australia’s armed forces and international NGOs with cluster munition clearance operations do not use live munitions for training. Any munitions used for training purposes are disarmed in advance. The standard operating procedure for dealing with unexploded cluster submunitions is to destroy them in place rather than move or remove them from where they are found or have been abandoned. The proposed legislation not only allows retention but also does not include adequate safeguards. It does not specify a maximum number to be retained or any reporting obligations as required under Article 3 of the Convention. Of the cluster munition stockpilers that have so far joined the Convention, most have chosen not to retain any cluster munitions. These include among others Afghanistan, Austria, and Norway.4. InvestmentProblem: The proposed legislation fails to include any prohibition on the investment of public and private funds in companies that manufacture cluster munitions or their component parts.CMC recommendation: The proposed legislation should be amended to prohibit investment by Australian entities in the development or production of cluster munitions, in line with the spirit of the Convention on Cluster Munitions. Permitting Australian funds to support companies that produce cluster munitions is clearly assisting in the manufacture of the weapons and should be explicitly prohibited under Australian law. In a 2011 letter, the Australian Attorney General’s department stated that investing in cluster munitions producers "would amount to an offence under the proposed provisions of the Bill," but the bill itself does not make that clear. Several States Parties to the Convention have implemented strong legislation to ban direct and indirect investment in cluster munitions producers.5. Positive obligationsProblem: The draft legislation makes no mention of Australia’s commitment to the positive obligations mandated by the Convention.CMC recommendation: The proposed legislation should affirm Australia’s intent to comply with its positive treaty obligations and include a provision requiring that the government encourage states not party to join the Convention and promote the Convention’s norms to all states. Besides a comprehensive ban on the use, production, stockpiling and transfer of cluster munitions, the Convention specifically obliges States Parties to:
- assist in clearance of areas contaminated by cluster munitions;
- assist cluster munition victims and affected communities;
- assist other states parties to meet their treaty obligations; and
- work to universalise the Convention.