Five-Year Review: State Party Spain was among the first 30 ratifications that triggered entry into force of the convention on 1 August 2010. On 30 July 2015, an amendment to existing legislation that incorporates the convention’s provisions was signed into law. Spain has participated in every meeting of the convention and served as co-coordinator for the convention on stockpile destruction in 2012–2014. Spain promotes universalization of the convention and has elaborated its views on several important issues relating to the interpretation and implementation of the convention.

Spain states that it has never used cluster munitions. In its initial transparency report for the convention provided in 2011, Spain acknowledged it produced and transferred cluster munitions in the past and destroyed a stockpile of 4,762 cluster munitions and 232,647 submunitions in 2009. In 2012, Spain reported additional stocks of 3,574 cluster munitions and 75,045 submunitions that it is working to destroy. Spain is retaining 315 cluster munitions and 7,335 submunitions for training and research purposes, which is less than half the amount it initially reported it would retain.

Policy

The Kingdom of Spainsigned 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 1998 implementing legislation for the Mine Ban Treaty (Law 33/1998) was amended by both houses of parliament in 2013–2015 to incorporate the provisions of the Convention on Cluster Munitions and took effect on 30 July 2015, a day after it was published in the official State Bulletin.[1] Spain also amended its penal code, on 22 June 2010, to provide sanctions for violations of the convention’s provisions[2] (see National implementation legislation section below).

Prior to entry into force of the convention, Spain declared a unilateral moratorium on use, production, and transfer of cluster munitions on 11 July 2008.[3] Directive No. 71/2008, issued by the Secretary of Defense on 30 July 2008, has regulated implementation of the convention by Spanish Armed Forces.[4]

Spain submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 27 January 2011 and has provided annual updated reports ever since, most recently on 1 April 2015.[5]

Spain participated throughout the Oslo Process that created the Convention on Cluster Munitions and its position evolved significantly to embrace 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.[6]

Spain engages in the leadership of the Convention on Cluster Munitions and served as the convention’s co-coordinator on stockpile destruction in 2012–2014, together with Albania and then Croatia. Spain has participated in every Meeting of States Parties of the convention, including the Fifth Meeting of States Parties in San José, Costa Rica in September 2014, where it made statements on stockpile destruction and international cooperation and assistance. Spain has attended all of the convention’s intersessional meetings in Geneva, most recently in June 2015.

At the Fifth Meeting of States Parties, Spain highlighted the collaboration between civil society, international organizations, and states in working for universalization of the convention.[7] At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2014, Spain reaffirmed its commitment to the convention, particularly its universalization.[8]

Spain last expressed concern individually at new use of cluster munitions in 2011, when it condemned the use of Spanish-made and -supplied cluster munitions in Libya by government forces of then-leader Muammar Gaddafi.[9]

The Monitor is not aware of any public statements by Spain protesting new cluster munition use since 2011. At the intersessional meetings in June 2015, Spain objected to proposed language condemning new cluster munition use contained in draft documents to be issued by the convention’s First Review Conference.[10]

Spain has however, voted in favor of resolutions condemning new use of cluster munitions. It has voted for UNGA resolutions condemning the use of cluster munitions in Syria, including Resolution 69/189 on 18 December 2014, which expressed “outrage” at the continued use.[11] As a non-permanent member of the UN Security Council, Spain voted in favor of Security Council Resolution 2228 on 29 June 2015 that expressed concern at evidence of cluster munition use in Darfur and called on the government of Sudan to “immediately investigate the use of cluster munitions.”[12]

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 reported that a process had been initiated to amend its Mine Ban Treaty implementation legislation—Law 33 enacted in October 1998—to incorporate “a total ban on cluster munitions and similar arms.”[13]

On 14 September 2013, the government introduced draft amendments for Law 33/1998 in Congress.[14] On 21 November 2013, Congress’s lower house—the Chamber of Deputies—voted to accept the draft legislation rather than an alternative legislative text proposed by Joan Tardà i Coma of the opposition Esquerra Republicana de Catalunya (ERC) Party.[15] The draft legislation was then sent to the foreign affairs committee, which approved it on 17 June 2015 with three changes.[16] The House of Deputies published the amended draft legislation on 19 June 2015.[17] The bill was then introduced in the Senate on 23 June 2015 and referred the Senate committee on foreign affairs, which approved it without changes on 21 July 2015.[18] After receiving royal assent, the bill was published in the official State Bulletin and entered into force on 30 July 2015.

The legislation amends Law 33/1998, which prohibits the use, development, production, acquisition in any way, stockpile, conservation, transfer, or exportation, directly or indirectly of antipersonnel mines, cluster munitions, explosive bomblets, and weapons of similar effect.[19]  Spain defines development as “any activity consistent with the creation of new cluster munitions or the modification of preexisting cluster munitions.”[20] It also prohibits assisting, encouraging, or inducing anyone to participate in any activity prohibited by the convention or the implementation legislation.[21]

The law requires the destruction of all stocks of antipersonnel mines and cluster munitions within the treaties’ deadlines.[22] It includes a provision on international cooperation and assistance requiring financial support for clearance programs, training for deminers, and victim assistance in affected states.[23]

Spain’s law allows for retention of cluster munitions for training purposes, but states that the number should not exceed the minimum quantity absolutely necessary and requires that the government must report the quantity retained to parliament.[24] The law establishes that Spain’s military cooperation and participation in military operations—by the state, its military personnel, or its nationals—with states that are not party to the Convention on Cluster Munitions that use cluster munitions is not prohibited.[25] This interoperability language and a prohibition on investment in cluster munition producers were subject to parliamentary debate in both houses.

When the draft legislation was introduced in the lower house in November 2013, opposition representatives raised several concerns with the draft and proposed some amendments. Joan Baldoví Roda from the Mixed Group said that allowing Spain to cooperate in military operations in which cluster munitions may be used would compromise “the spirit of the Oslo Treaty,” as the Convention on Cluster Munitions is sometimes called.[26] The opposition groups PSOE, Izquierda Plural, and UPyD y Compromís called for the draft legislation to prohibit Spain’s involvement at all times in military operations with other states that use cluster munitions. The Popular Party also objected to the draft legislation text on joint military operations with states that use cluster munitions.[27] Agirretxea Urresti from the Partido Nacionalista Vasco called for a stronger approach to international cooperation and assistance.[28] There was also a proposal to add a new paragraph to prohibit direct or indirect financing of producers of cluster munitions.[29]

The Chamber of Deputies foreign affairs committee unanimously approved three amendments to the draft legislation during its 2013 review:

• Amendment 7 changed Article 3.2 to require that companies that produced cluster munitions report on their progress to decommission or convert their production facilities and removed a qualifier for the reports to be submitted “if appropriate.”[30]
• Amendment 10 modified the second paragraph of Article 2.1 prohibiting advertising or publicizing cluster munitions by adding the word “financing” to prohibit financial investment in activities prohibited by legislation.[31] 
• Amendment 21 was adjusted to ensure Spain implements the positive obligations of Article 21(2) of the Convention on Cluster Munitions, which require it to work for universalization of the convention and discourage non-signatories from using cluster munitions.[32]

The committee rejected a broader proposal by Centella Gomez of the Communist Party of Spain to amend the draft legislation to prohibit “direct or indirect” financing of prohibited activities.[33]

The Act prohibits transfers and stockpiling of cluster munitions.[34] On the issue of foreign stockpiling, in its Article 7 reports, Spain has also declared that it was “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.[35]

Use, production, and transfer

Spain has stated that it has never used cluster munitions. However, Spain produced and transferred cluster munitions in the past.

In its initial Article 7 report provided in 2011, Spain declared that the company Instalaza SA in Zaragoza manufactured 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 by Instalaza in 2007 had been used in Libya by the government forces of Muammar Gaddafi.[36] In June 2011, Spain condemned the use of cluster munitions in Libya and confirmed that the transfer of MAT-120 cluster munitions from Spain to Libya occurred in 2006 and 2008, prior to the adoption of the convention and Spain’s moratorium.[37]

Spain has reported that Instalaza and another company, Fabricaciones Extremeñas (FAEX), have closed down their manufacturing processes for cluster munitions.[38] 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.[39] On 12 January 2014, media reported that Spain’s High Court had rejected Instalaza’s €59.9 million compensation claim.[40] Instalaza is not known to have appealed the decision or taken any further action.

A third company Explosvos Alaveses SA (EXPAL) is not mentioned in the Article 7 reports, but in a letter to the Monitor, Spain confirmed the company produced the BME-330B/AP cluster bomb, which contains eight SAP submunitions and 20 SNA submunitions.[41] According to a standard reference work, EXPAL produced two other variants of BME cluster bombs. 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.[42] 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.[43]

Spain imported two variants of the Rockeye cluster bomb, the CBU-99B and CBU-100, from the United States (US).[44]

Few details are known on past Spanish exports of cluster munitions, with the exception of the 2008 transfer to Libya. Although, Peru has declared a stockpile of 90 BME-330 cluster bombs and 16,200 submunitions.[45]

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 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 stockpile of 4,762 cluster munitions and 232,647 submunitions.[46] The stocks were dismantled and destroyed between December 2008 and March 2009 at a cost of €4.9 million (US$6.8 million).[47]

In the Article 7 report provided in 2012, Spain declared another 3,600 cluster munitions and 75,598 submunitions, which it explained were being manufactured by Instalaza SA when the unilateral moratorium on cluster munitions was declared on 11 July 2008. The manufacturing cycle was “automatically stopped” mid-process, leaving cluster munitions and submunitions that were in the process of being made.[48] In its 2014 and 2015 Article 7 reports, Spain has declared a slightly revised total of 3,574 MAT-120 cluster munitions and 75,045 submunitions.[49]

In all its 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. The government has not provided a timeframe for the destruction, but it has committed to destroy the cluster munitions by the August 2018 deadline provided by the convention.[50]

Spain’s implementing legislation for the convention specifies the obligation to destroy all cluster munition stocks by the deadline provided by the convention and in accordance with public health and environmental regulations, and to report on the destruction in its annual Article 7 reports.[51] It states that costs for the destruction of cluster munitions will be covered by the owner of the cluster munitions.[52] The legislation also requires that companies inform the Minister of Defence of the type, quantity, and if possible, the lot numbers of each type of cluster munition produced or possessed and provide information on their conversion or decommissioning of production facilities.[53]

Retention

In April 2015, Spain reported a total of 315 cluster munitions and 7,335 submunitions retained for training and research purposes, as listed in the following table.[54]

Cluster munitions retained by Spain (as of 31 December 2014)[55]

The cluster munitions reported retained by Spain in April 2015 are the lowest number it has held to date and represent 44% of the original total of 711 cluster munitions and 16,562 submunitions that Spain initially reported would be retained in 2011.[56] Since 2011, Spain has progressively reduced the number of cluster munitions retained for training from 683 cluster munitions and 15,515 submunitions reported in April 2012, to 656 cluster munitions and 14,722 submunitions reported in April 2013, to 354 cluster munitions and 8,380 submunitions reported in June 2014, to the current total.[57]

Spain reported that 35 MAT-120 cluster munitions (containing 798 submunitions), three ESPIN-21 cluster munitions (containing 63 submunitions), and one CBU-100 cluster munition (containing 247 submunitions) were consumed during research and training during 2014.[58]

Spain has stated that retained cluster munitions are used to train national and foreign clearance experts at the International Demining Training Centre in Madrid.[59]

Foreign stockpiling

A US diplomatic cable dated 26 November 2008 and released by Wikileaks in 2011, indicated that US military forces store cluster munitions in Spain.[60] It is not known if the US still maintains stockpiles of cluster munitions in Spain.