Commitment to the Convention on Cluster Munitions

Policy

The Commonwealth of Australia signed the Convention on Cluster Munitions in Oslo on 3 December 2008. In March 2009 during a Special Event on the Convention on Cluster Munitions held at the UN in New York, Australia confirmed that it had started its parliamentary process to ratify the convention.[1] In Australia, national implementation legislation must be enacted before ratification.

In May 2010, the Office of the Minister for Foreign Affairs and Trade stated that implementation legislation was still being drafted, and once finalized, will be released for public comment and undergo the usual parliamentary procedures.[2] Another official told the CMC that draft instructions have been issued to the Office of Parliamentary Counsel, and once finished, legislation will be introduced into the Parliament at the first possible opportunity.[3] No timetable has been set for the legislation or ratification, but it does not appear likely before the First Meeting of States Parties in November 2010.

Australia has shown strong interest in promoting the convention. It is a member of the Lao Support Group, a voluntary group of countries tasked with advancing preparations for the First Meeting of States Parties, to be held in Lao PDR in November 2010.  In particular, Australia serves as “Friend of the President” to develop the topic of clearance measures under Article 4 for consideration at the First Meeting of States Parties. Australia’s Permanent Mission to the UN in Geneva hosted a meeting of the Lao Support Group in June 2009.

Australia has announced that it will provide A$730,000 to the new UNDP trust fund for Lao PDR to help set up a new treaty support unit and support the First Meeting of States Parties.[4]

Australia participated in the Berlin Conference on the Destruction of Cluster Munitions in June 2009, the Regional Conference on the Promotion and Universalization of the Convention on Cluster Munitions in Bali, Indonesia in November 2009, and the International Conference on the Convention on Cluster Munitions in Santiago, Chile in June 2010.

During the Bali conference, Australia emphasized its commitment to the promotion of universalization of the convention, particularly in the Asia-Pacific region.[5] At the Santiago conference, Australia again expressed its focus on universalization in the region. It also made a presentation on clearance obligations, in its role as Lao Support Group Friend of the Chair. It also stressed the need to make linkages among this convention, the Mine Ban Treaty, and the Convention on the Rights of Persons with Disabilities.[6]

In November 2009, at the Commonwealth Heads of Government Meeting in Trinidad and Tobago, Australia co-sponsored with the United Kingdom the “Port of Spain Declaration on Cluster Munitions” which welcomed the Convention on Cluster Munitions as “an historic achievement in international humanitarian law” and called on all states to join.[7]

Australia has not yet made known its views on certain important issues related to interpretation and implementation of the convention, including the prohibition on transit, the prohibition on foreign stockpiling, and the prohibition on investment in the production of cluster munitions. 

With respect to the prohibition on assistance during joint military operations with states not party that may use cluster munitions, during the negotiations Australia was one of the strongest backers of a provision on “interoperability” and pushed to ensure that the ban on assistance would not unduly affect joint military operations. In a May 2010 response to the Joint Standing Committee on Treaties, the government states that the prohibition on assistance “is subject to the exception contained in Article 21,” noting this provision “allows States Parties to continue to conduct operations with allies not party to the Convention who may be using prohibited cluster munitions, such as the United States. The Convention does not prohibit inadvertent participation in the use, or assistance in the use, of cluster munitions.”[8]

Australia participated extensively in the Oslo Process that created the convention in 2007 and 2008.[9] Its policy evolved significantly during that time. It was not an early supporter of any kind of prohibition on cluster munitions, and even after joining the Oslo Process made clear its preference for addressing cluster munitions in the Convention on Conventional Weapons (CCW).

Australia is a party to the CCW and its Protocol V on explosive remnants of war. Australia continued to engage in and be supportive of the CCW deliberations on cluster munitions in 2009 and 2010. At the annual Meeting of States Parties in November 2009, Australia praised the Convention on Cluster Munitions, while still expressing strong support for the work in the CCW. It said that any future CCW instrument on cluster munitions must include a meaningful prohibition with immediate effect and a ban on transfer, and must be consistent with the ban convention.[10]  

Use, production, transfer, and stockpiling

The Australian Department of Foreign Affairs and Trade has previously stated that, “Australia has not developed, produced or used cluster munitions, and does not currently develop, produce or use them.”[11] In May 2007, the department stated, “Australia does not in fact have a stockpile of cluster munitions; the ADF [Australian Defence Force] holds representative samples of cluster munitions—most of them inert—solely for research and training.”[12]

Human Rights Watch and Landmine Action reported in 2009 that while Australia no longer uses, produces or stockpiles cluster munitions, parliamentary inquiries and historical records appeared to show that Australia produced and stockpiled cluster munitions in the past and possibly used them as well.[13]

In April 2010, the Department of Foreign Affairs and Trade provided the following information with respect to past practice. It said, “To the best of our knowledge, the ADF has not used cluster munitions as a weapon of war, and has never had operational stocks of cluster munitions to use.”

It stated that in the 1970s and 1980s, Australia produced “limited numbers” of Karinga cluster bombs “for testing purposes,” noting that approximately 10–20 cluster munitions were tested. Australia also acquired and tested “limited numbers” of US CBU-58 cluster bombs “to ‘baseline’ the Karinga’s performance.”[14]

However, “the trials did not result in a decision to order quantity production of the Karinga weapons.” They were never introduced into service and never used in an ADF operation. “Most Karingas and CBU-58s were destroyed in the early 1990s, with some inert samples retained for training and countermeasures purposes.”[15]

The Department of Foreign Affairs and Trade also said that the ADF “does not, and did not previously have a stockpile of Rockeye cluster munitions,” despite the reporting in standard reference works. It notes, “The ADF does have one Rockeye dispenser and some representative samples of inert Rockeye submunitions.”[16]

Australia acknowledges that it “holds some representative samples of inert cluster bombs and inert cluster submunitions for the purposes of developing countermeasures and for clearance training…. They are not part of Defence’s operational weapons inventory, and are not—in either numbers or configuration—suitable for operational use by the ADF.”[17]   

Australia has purchased SMArt 155 weapons with submunitions. The Department of Foreign Affairs and Trade has stated, “The SMArt 155 is a 155mm anti-tank artillery round that was procured for the Australian Defence Force in 2007. The SMArt 155 contains two submunitions and it is not defined as a cluster munition in the Convention on Cluster Munitions…. While the ADF does not disclose the numbers of operational stocks of specific weapons, we can advise that the contract is worth approximately AUD$14 million.”[18] The weapon is not captured by the definition of a cluster munition in the Convention on Cluster Munitions because it meets the technical criteria set out by negotiators as necessary to avoid the negative effects of cluster munitions.[19]