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Canada

Last Updated: 17 December 2012

Cluster Munition Ban Policy

Commitment to the Convention on Cluster Munitions

Convention on Cluster Munitions status

Signatory

Participation in Convention on Cluster Munitions meetings

Attended Second Meeting of States Parties in Beirut, Lebanon in September 2011 and intersessional meetings in Geneva in April 2012

Key developments

Draft national legislation introduced in Parliament. Ratification in progress and stockpile destruction process underway

Policy

Canada signed the Convention on Cluster Munitions on 3 December 2008.

In Canada, national implementation legislation must be enacted before ratification “to ensure full compliance with any new international treaty.”[1] The cabinet approved ratification of the Convention on Cluster Munitions on 19 January 2012 and the convention was proposed in parliament on 15 February 2012.[2] After a required waiting period of 21 sitting days, domestic implementing legislation prepared by the government was tabled. 

Senator Marjory Lebreton of the governing Conservative Party introduced an “Act to Implement the Convention on Cluster Munitions,” Bill S-10, in the Senate on 25 April 2012, where it passed its first reading.[3] On 1 May 2012, Senator Suzanne Fortin-Duplessis of the governing Conservative Party moved that the Prohibiting Cluster Munitions Act be read a second time, stating “this government is proud to ratify the convention and to implement all of its provisions by passing a federal law.”[4]

During the second debate, two Senators from the opposition Liberal Party spoke in support of Canada’s ratification of the Convention on Cluster Munitions, but expressed several concerns with the text of the draft legislation, particularly with the section dealing with “interoperability” or relations between States Parties and states that have not joined the convention, including during joint military operations (see the Implementation legislation section below).

The Prohibiting Cluster Munitions Act passed its second reading and was referred to the Senate Committee on Foreign Affairs and International Trade (SCAIT) on 22 June 2012. The committee is expected to consider the bill in the next session, starting 25 September 2012, and during committee hearings it is customary to call witnesses to provide input. After a third and final Senate reading, the bill will be voted on and then referred to the House of Commons (lower chamber) for consideration and approval. Following approval by both chambers, the bill will be sent for royal assent.

Canada submitted a voluntary Convention on Cluster Munitions Article 7 transparency report on 24 January 2011, for the period from 1 August 2010 to 31 January 2011, and a second voluntary Article 7 report on 30 April 2012, for the period from 1 February 2011 to 30 April 2012.

Canada participated in the Oslo Process that produced the Convention on Cluster Munitions and advocated for strong provisions on victim assistance and on international cooperation and assistance.[5] It continued to play an active role in the work of the convention in 2011 and the first half of 2012. Canada attended the convention’s Second Meeting of States Parties in Beirut, Lebanon in September 2011. Canada also participated in the convention’s intersessional meetings in Geneva in April 2012, where it made a statement on stockpile destruction.

At both meetings, Canada continued to lead discussions on the convention’s architecture (institutional structures and mechanisms) and work program in its capacity as Friend of the President of Second Meeting of States Parties.

Since 2008, Mines Action Canada (MAC), a CMC co-founder and member, has advocated for Canada’s swift ratification of the Convention on Cluster Munitions and strong national implementing legislation. In May 2012, following the introduction of the Prohibiting Cluster Munitions Act, MAC launched a petition calling on the federal government to fix Bill S-10 “to make it clear that no Canadian should ever be involved in the use of cluster munitions for any reason, anywhere, at any time, for anyone.”[6]

Implementation legislation

Section 6 (prohibitions) of the Prohibiting Cluster Munitions Act prohibits the use, acquisition, transfer, and possession of cluster munitions. It also prohibits “aid[ing], abet[ing] and counsel[ing]” the commission of such activities. For violations of these prohibitions, Section 17 (enforcement) contains penalties for persons “on conviction on indictment” of up to five years imprisonment or C$500,000 fine and “on summary conviction” of up to 18 months imprisonment or C$5,000 fine. The definition of person applies to both individuals and organizations.

The Prohibiting Cluster Munitions Act does not explicitly address transit or foreign stockpiling of cluster munitions and could be read to implicitly allow these activities.[7] According to a senior government official, the bill “does not allow stockpiling of cluster munitions on Canada’s territory, including by a State not party to the Convention, as it prohibits all forms of possession.”[8]

The Prohibiting Cluster Munitions Act contains no specific prohibition on investment in the production of cluster munitions. According to a senior government official, “an investment that is executed with the knowledge and intention that it will encourage or assist cluster munitions production would be captured by the legislation's prohibition on aiding and abetting any primary offence.[9]

Section 7 of the Bill permits retention of cluster munitions for training and counter-measures, but it does not specify that only “the minimum number of cluster munitions absolutely necessary” may be retained, as the convention itself does. It also does not include any the associated reporting requirements that are required by the convention.

Section 11 of the bill on “Joint Military Operations” contains problematic provisions that raise a host of concerns. During joint military operations, the bill would permit Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party performing activities prohibited under the Convention on Cluster Munitions. This interpretation could be viewed as running counter to the prohibition on assistance, encouragement, and inducement contained in the Convention on Cluster Munitions. The bill would also permit Canadian forces and public officials to “expressly request” use of cluster munitions by a state not party if the choice of weapons is not within the “exclusive control” of the Canadian Armed Forces. In other words, Canada could expressly request the use of cluster munitions as long as a state not party actually uses them.

Section 11 would also allow Canadians themselves to use, acquire, possess, or transfer cluster munitions if they are temporarily assigned to the armed forces of a state not party.

According to Section 11 of the bill, during joint military operations with a state not party, a person would be allowed to do the following activities, arguably violating the prohibition on assistance:

·         Paragraph 2—“transporting” cluster munitions in the possession or under the control of the state not party.

·         Paragraph 3(a)—“aiding, abetting or counselling” another person with a prohibited activity if that activity is not prohibited to the other person. 

·         Paragraph 3(b)—“conspiring” with another person to perform a prohibited activity if that activity is not prohibited to the other person.

·         Paragraph 3(c)—“receiving, comforting, or assisting” someone who has committed a prohibited act if that act was not prohibited to the other person. 

During the second reading of the bill, Senator Fortin-Duplessis laid out the government’s rationale for the draft legislation’s extensive provisions on joint military operations, stating that the Convention on Cluster Munitions “allows signatories, under section 21, to continue to engage in combined security operations with allies that have not signed—operations considered to be essential to international security—without breaching their duties under the convention. This balance is important for Canada. Our country and a number of other allies have made that balance a top priority from day one of the negotiations of the convention. A number of major allies and signatories to the convention continue to subscribe to the importance of this balance. It allows us to solidify our objective to rid the world of cluster munitions while ensuring that the Canadian Forces can continue to participate in multinational operations with allies that are important to Canada but have not signed the convention, such as the United States.”[10]

In May 2012, a representative of the minister of public safety instructed a MAC member to “Please be assured our legislation fully implements Canada’s commitments to the Convention and is in line with key allies, including Australia and the United Kingdom…The Canadian Forces will make it a policy to prohibit its members from using cluster munitions, including members serving on exchange with allied armed forces. This legislation preserves Canada’s ability to work alongside the United States.”[11]

In 2011, United States (US) diplomatic cables made public by Wikileaks showed how the US sought to influence Canada’s draft implementing legislation after engaging with Canada throughout the Oslo Process.[12]

During the second reading of the bill, Senator Elizabeth Hubley of the opposition Liberal Party stated, “I cannot in good faith support the legislation as it stands before us. In fact, I am extremely disappointed with clause 11 in Bill S-10 and its interpretation of Article 21 of the convention. This extreme interpretation is so far from the original intent of Article 21 and the spirit of the treaty itself that it calls Canada’s credibility as a signatory to the convention into question.” Senator Hubley also urged that the proposed legislation “be strengthened by adding explicit prohibitions against investment in cluster munitions manufacturing and in the transit of cluster munitions through Canadian territory and on Canadian carriers.” She said “We should not be sending mixed messages to our soldiers and our civilians. If our government and our military think that in some circumstances we may need to keep our options open or be able to use or request the use of cluster munitions during a combined operation, then we should never have signed the convention in the first place and we should not be pursuing the implementation legislation now. There is no room for flexibility here. Either we believe cluster munitions are inhumane and we therefore accept the terms of the treaty, or, very simply, we do not and consequently should not ratify the convention.”[13]

On 22 June 2012, during the second debate on the draft legislation, Senator Romeo Dallaire of the opposition Liberal Party provided his views on the Prohibiting Cluster Munitions Act. Dallaire said that the draft legislation “has the potential to be a strong legislative tool to end the use of the weapon” but described its provisions as “flawed—deeply so. Its promise is undermined by its exceptions, exceptions so broad you can drive a tank through it. They water down and weaken the treaty—perhaps even critically.” He stated, “It does not make sense to comprehensively ban an immoral, indiscriminate weapon, and then turn around and say, it’s still okay to use them in combined operations. Almost all operations are combined operations, and so we are effectively paving the way for their continued use. The exceptions laid out in Section 11 go against the spirit of the convention and, in international law, may amount to non-compliance. In this legislation, we are condoning activities that are banned in the convention. This is simply not legally or morally tenable.”[14]

In March 2011, Earl Turcotte, the diplomat who led Canada’s delegation during meetings of the Oslo Process that created the Convention on Cluster Munitions, resigned in part due to his concern that the government was pursuing weak implementing legislation with respect to Article 21 of the ban convention.[15] When the legislation was introduced, Turcotte said that it “falls way below even the minimum threshold of legality under international humanitarian law and is an insult to colleagues in other countries who, seemingly unlike Canada, negotiated in good faith.”[16]

MAC has expressed serious concerns over the draft legislations provisions, particularly those on interoperability and disinvestment, stating “Now it is time for Senators and Members of Parliament to fix the bill to ensure that no Canadian should ever be involved in the use of cluster munitions for any reason, anywhere, at any time, for anyone.”[17]

Interpretive issues

Canada identified “interoperability” (joint military operations with states not party), addressed in Article 21 of the convention, as a key priority during the negotiations of the convention.[18] In June 2011, Canada further elaborated its views on Article 21, stating that the provision was designed to protect activities that “might involve or relate to the continued lawful use of cluster munitions by states not party.”[19] Canada stated that its adoption of the convention text in Dublin was based on the understanding that “Article 21, paragraph 4, expressly and fully delineates activities prohibited” in the context of joint operations with states not party.[20]

Canada stated that the positive obligations of Article 21, paragraph 2—to notify states not party of its obligations under the convention, to promote the convention’s norms, and to make its best efforts to discourage the use of cluster munitions by states not party—do not extend beyond the governmental level and are not ongoing obligations “at the operation or tactical levels for individual military personnel.”[21]

In May 2012, Senator Fortin-Duplessis said that “the Canadian Forces will prohibit their members, through official policies, from using cluster munitions, training themselves or others in their use when they participate in exchanges with the armed forces of another country. Moreover, the transport of cluster munitions by means of transportation belonging to or controlled by Canadian Forces shall be prohibited.”[22]

This statement contradicts Section 11(2) of Canada’s proposed legislation, which allows Canadian forces to transport the cluster munitions of a state not party during joint military operations. It therefore creates confusion in Canada’s position on this issue.

In May 2012, Senator Fortin-Duplessis stated that “under the bill it is prohibited to assist, encourage or induce anyone to engage in any prohibited activity including knowingly and directly investing in the production of cluster munitions.” On 14 June 2012, MAC called on the Canadian government to ban investments in companies that produce cluster munitions and to amend the draft bill to specifically prohibit investment.[23]

Convention on Conventional Weapons

Canada is party to the Convention on Conventional Weapons (CCW) and actively participated in CCW work on cluster munitions.

At the outset of the CCW’s Fourth Review Conference in November 2011, Canada said that the chair’s draft text of the proposed CCW protocol on cluster munitions “does not correspond to its mandate as states chiefly do not share a common view on what constitutes the appropriate balance between humanitarian and military concerns.” Canada stated, “Until we do that, we will continue running in circles over and over,” and proposed that “[r]ather than continue to chase an elusive rabbit down a warren fraught with diametrically opposed paths and mutually exclusive trails, we need to pause, regroup and focus our efforts on our basic understandings.”[24]

During the negotiations, Canada said there was a need to ensure “complementarity” between the draft chair’s text and the Convention on Cluster Munitions, warning that it had “concern about legitimizing the use of cluster munitions” already prohibited by the ban convention.[25]

When a revised version of the proposed CCW cluster munitions protocol was tabled on the final day of the conference, Canada expressed disappointment with the chair’s text, describing it as “weaker than its predecessor” and stating that it “does not have consensus.”[26] Canada did not, however, endorse a joint statement on behalf of a group of 50 countries declaring that the chair’s draft text does not fully address the fundamental concerns and is unacceptable from a humanitarian standpoint, and therefore does not command consensus.[27]

The Review Conference ended without reaching agreement on the draft protocol, thus concluding the CCW’s work on cluster munitions.

Use, transfer, and production

On 1 May 2012, the government stated that “Canada has never manufactured cluster munitions and has never used them in its operations.”[28] Canada has reported that it has never produced cluster munitions.[29] Canada is not known to have ever exported cluster munitions, but it imported the weapons and has a stockpile.

Stockpiling and destruction

Canada has stockpiled two types of cluster munitions, both imported from the US: Rockeye cluster bombs, each containing 247 submunitions, and M483A1 155mm artillery projectiles, each containing 88 M42/M46 dual purpose improved conventional munition (DPICM) submunitions. In its initial voluntary Article 7 report, Canada stated that a total of 1,026 Rockeye cluster bombs containing 253,422 submunitions were destroyed over a two-year period ending in September 2006.[30]

In April 2012, Canada reported a stockpile of 12,597 M483A1 155mm artillery projectiles, containing total of 1,108,800 DPICM submunitions (806,208 M42 and 302,328 M46).[31] The entire inventory was declared surplus in January 2007 and removed from operational service for destruction.[32] In its second voluntary Article 7 report, Canada stated that “Three projectiles [were] expended to develop a demilitarization standard operating procedure.”[33]

In her speech introducing Bill S-10, Senator Fortin-Duplessis stated that “… the last stocks [of artillery cluster munitions] will be destroyed in the next few years, a process that is already well under way. We are convinced that their destruction will be completed within eight years of the convention entering into for Canada, as prescribed.”[34]

In June 2011, Canada stated that the “Department of National Defence is working with Public Works and Government Services Canada (PWGSC), the contracting arm of the Government of Canada, on the destruction of the 155mm projectiles.” It said that, “a Statement of Work and evaluation criteria have been drafted and are in the process of being finalized. Once approved, the intent is to publish the disposal requirement as a competitive procurement. It is estimated that it will likely take 12 months to complete the contracting requirements, with roughly 12–24 months to complete disposal of all munitions.” [35]

Canada has noted that the stockpile destruction must be carried out in compliance with stringent laws and regulations, including Canadian Controlled Goods regulations, and said it was a challenge to identify a supplier capable of completing the task.[36] On 5 July 2012, PWGSC issued a letter of interest on disposal of the 155mm projectiles.[37]

 



[1] Letter from Earl Turcotte, Senior Coordinator for Mine Action, DFAIT, to Human Rights Watch (HRW), 17 June 2010.

[2] Canada, voluntary Convention on Cluster Munitions Article 7 Report, Form J, 30 April 2012.

[3] Senate of Canada, “Bill S-10 - Act to Implement the Convention on Cluster Munitions,” http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Mode=1&Language=E&billId=5515475&View=8.

[4] Debates of the Senate (Hansard), Volume 148, Issue 73, 1 May 2012, http://www.parl.gc.ca/Content/Sen/Chamber/411/Debates/073db_2012-05-01-e.htm , accessed June 4, 2012.

[5] For detail on Canada’s policy and practice regarding cluster munitions through early 2009, see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 50–54.

[6] As of 30 June 2012, the MAC petition had received signatures from residents of all Canadian provinces and over 40 countries. See,, http://bit.ly/fixthebillca.

[7] The prohibition on transfer (Section 6c) applies only if there is intent to transfer ownership (not mere physical movement), which arguably means that transit of cluster munitions through Canada could be permissible.

[8] Email from John MacBride, Senior Defence Advisor, non-Proliferation and Disarmament Division, Foreign Affairs and International Trade Canada, to Mary Wareham, HRW, 9 July 2012.

[9] Ibid.

[10] Debates of the Senate (Hansard), Volume 148, Issue 73, 1 May 2012, http://www.parl.gc.ca/Content/Sen/Chamber/411/Debates/073db_2012-05-01-e.htm, accessed June 4, 2012.

[11] Email to Darryl Toews, Coordinator, Manitoba Campaign to Ban Landmine, from Mike Brown, Special Assistant, Office of the Minister of Public Safety, 8 May 2012.

[12] In 2011, Wikileaks released several US Department of State reporting cables for the period from January 2007 to January 2009 that show how the US engaged with Canada during the Oslo Process and on the draft legislation in the period after 2008. One cable dated 13 January 2009 included an “Action request” on the Canadian draft legislation that stated “pursuant to DFAIT/PM exchanges about a possible subject matter experts meeting in Ottawa on this subject, Embassy recommends that PM send relevant USG officials here at the earliest mutually convenient opportunity in order constructively to influence this drafting process by Canadian civilian and military officials on CCM implementation.” See “Convention on Cluster Munitions could limit CANUS interoperability,” US Department of State cable 09OTTAWA33 dated 13 January 2009, released by Wikileaks on 1 September 2011, http://www.cablegatesearch.net/cable.php?id=09OTTAWA33&q=cluster%20earl%20munitions%20turcotte .

[13] Debates of the Senate (Hansard), Volume 148, Issue 83, 30 May 2012, http://parl.gc.ca/Content/Sen/Chamber/41/Debates/073db.2012-5-01, accessed 31 May 2012.

[15] Earl Turcotte lodged a written complaint after seeing how Canada was planning to interpret Article 21, which he said would enable Canada to “aid and abet” in the use of cluster munitions. Chris Cobb, “Lead arms negotiator quit over ‘matter of conscience,’” Ottawa Citizen, 2 April 2011.

[16] Chris Cobb, “Canada’s cluster bomb legislation weak and worst of ratifying countries, experts say,” The Ottawa Citizen, 29 April 2012, http://www.ottawacitizen.com/news/Canada/6537911/story.html .

[17] Mines Action Canada press release, “Petition launched to fix flawed cluster munition bill,” 9 May 2012, http://www.minesactioncanada.org/media-centre .

[18] For more details on Canada’s role in the Dublin negotiations see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 50–54; and ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), pp. 127–130.

[19] Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, Session on Other Implementation Measures, Geneva, 30 June 2011.

[20] Ibid.

[21] Ibid.

[22] Debates of the Senate (Hansard), Volume 148, Issue 73, 1 May 2012, http://parl.gc.ca/Content/Sen/Chamber/41/Debates/073db.2012-5-01.

[23] Mines Action Canada press release, “Stop funding cluster munition producers,” 14 June 2012, http://www.minesactioncanada.org/media-centre.

[24] Statement of Canada, CCW Fourth Review Conference, Geneva, 14 November 2011. Notes by AOAV.

[25] Ibid., 17 November 2011. Notes by AOAV.

[26] Ibid., 25 November 2011. Notes by AOAV.

[27] Joint Statement read by Costa Rica, on behalf of Afghanistan, Angola, Austria, Bolivia, Burkina Faso, Chile, Colombia, Congo, Costa Rica, Democratic Republic of Congo, Denmark, Djibouti, Ecuador, El Salvador, Ghana, Guatemala, Guinea, Guinea-Bissau, Haiti, Holy See, Honduras, Iceland, Lao PDR, Lebanon, Lesotho, Liechtenstein, Liberia, Madagascar, Mali, Mexico, Mozambique, Namibia, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Senegal, Slovenia, South Africa, Spain, Sudan, Togo, Tunisia, Uganda, Uruguay, Venezuela, Zambia and Zimbabwe. CCW Fourth Review Conference, Geneva, 25 November 2011. List confirmed in email from Bantan Nugroho, Head of the CCW Implementation Support Unit, UN Department for Disarmament Affairs, 1 June 2012.

[28] Debates of the Senate (Hansard), Volume 148, Issue 73, 1 May 2012, http://parl.gc.ca/Content/Sen/Chamber/41/Debates/073db.2012-5-01.

[29] Canada, voluntary Convention on Cluster Munitions Article 7 Report, Form D, 24 January 2011; and Canada, voluntary Convention on Cluster Munitions Article 7 Report, Form D, 30 April 2012. The company Bristol Aerospace Limited was once listed as a producer of the CRV-7 70mm unguided air-to-surface rocket containing nine M73 submunitions, but it provided information to the Department of National Defence stating that it only produced the rocket motor and never produced the cluster warhead (which contains the submunitions) for the CRV-7, indicating this warhead is only produced by US company General Dynamics. Information provided to HRW by Department of National Defence representatives, Canadian Delegation, CCW GGE on Cluster Munitions, Geneva, November 2007.

[30] In June 2011, Canada provided slightly different numbers, stating that the Rockeye destruction program included destruction of “over 248,000 bomblets contained within 826 bombs.” Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, Session on Stockpile Destruction, 27 June 2011.

[31] Canada, voluntary Convention on Cluster Munitions Article 7 Report, Form B, 30 April 2012.

[32] Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, Session on Stockpile Reduction and Retention, 27 June 2011.

[33] Convention on Cluster Munitions Article 7 Report, Form B, 30 April 2012.

[34] Debates of the Senate (Hansard), Volume 148, Issue 73, 1 May 2012, http://parl.gc.ca/Content/Sen/Chamber/41/Debates/073db.2012-5-01.

[35] Statement of Canada, Convention on Cluster Munitions Intersessional Meetings, Session on Stockpile Reduction and Retention, 27 June 2011.

[36] Ibid.

[37] The objective of the notification is twofold: “Firstly, it is to advise industry of DND's requirement for the demilitarization and disposal of the DPICM M48A3A1, 155 mm projectile and provide industry with an opportunity to provide statements of interest and capabilities in meeting the requirements and, secondly, to solicit assistance from industry in providing information, as requested below, to further develop the Statement of Work.” See, Public Works and Government Services Canada, “Disposal of 155mm dual purpose,” Ref: PW-$$BK-372-22955, 5 July 2012, http://www.merx.com.