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I salute the Arms Control Association … for its keen vision of the goals ahead and for its many efforts to identify and to promote practical measures that are so vitally needed to achieve them. -

– Amb. Nobuyasu Abe
Former UN Undersecretary General for Disarmament Affairs
January 28, 2004
Australian Cluster Bill Called Weak

Farrah Zughni

Legislation in the Australian Senate to approve the Convention on Cluster Munitions (CCM), the most comprehensive international treaty on cluster bombs, is drawing criticism from political leaders and nongovernmental organizations for falling short of the treaty’s requirements.

The bill approaching Senate debate comes on the heels of a May 2 article in the Australian newspaper The Age citing WikiLeaks cables documenting how Australian officials secretly worked with the United States and other countries to weaken the CCM during its negotiations in 2008.

The Australian bill, which passed the country’s House of Representatives in November, prohibits the use, production, stockpiling, and transfer of cluster munitions. “It will add to Australia’s strong legal framework against weapons that cause indiscriminate harm,” Australian Attorney General Robert McClelland said in a March 28 press release.

However, a number of organizations, including Human Rights Watch, the International Human Rights Clinic of Harvard Law School, and the International Committee of the Red Cross, have submitted proposed amendments to the bill, which, they argue, does not uphold the spirit or the letter of the CCM. They criticize the extent to which Australia can engage in joint military operations and exercises with nonparties when such activities involve the stockpiling, storage, transfer, or use of cluster munitions. For example, under the legislation, military personnel of nonparties may stockpile and move cluster munitions on Australian territory.

“If passed, Australia’s legislation would be the weakest national legislation on cluster munitions to date,” Human Rights Watch senior researcher Bonnie Docherty said in a May 18 e-mail to Arms Control Today. Docherty, who is also a lecturer at HarvardLawSchool’s International Human Rights Clinic, testified March 3 at a hearing of the Senate Standing Commitee on Foreign Affairs, Defence and Trade.

In her e-mail, she said the United Kingdom’s ratification legislation “has related provisions but includes some precautions.” Other countries, such as New Zealand and Norway, “make allowances for joint operations, but do not excuse assistance with [cluster munitions] use during such operations,” she said.

Earl Turcotte, the former senior coordinator for mine action at the Canadian Department of Foreign Affairs and International Trade, issued a March 30 statement on the Australian prohibition bill, which, he argues, does not meet the convention’s requirements. Turcotte, who resigned in March to protest his country’s handling of its own cluster munitions ratification bill, led the Canadian delegation throughout the negotiation of the CCM.

The CCM language addressing military operations is in Article 21, known as the “interoperability” clause. The article explicitly states that parties “may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.” During the treaty negotiation process, many U.S. allies pushed for this provision because Washington had made clear it would not support the emerging accord. (See ACT, July/August 2008.)

Such cooperation is restricted, although to what extent is heavily debated. According to Turcotte, states-parties may not, among other things, allow nonparty states to stockpile cluster munitions on their territory; invest in companies that develop, produce, transfer, or use cluster munitions; or “authorize or order, directly or indirectly, the use of cluster munitions by non-party state forces,” Turcotte said in his March 30 statement.

“We did not envision that this Article might be interpreted, rather misinterpreted, such that States Parties could deliberately and significantly aid and abet the use of these indiscriminate weapons,” he said.

In anticipation of Australian ratification of the CCM, Australia’s Future Fund, established in 2006 to cover pensions of Australia’s public servants, disinvested from 10 companies involved in production or sales of cluster munitions, including Lockheed Martin Corp. and General Dynamics Corp., according to a May 3 article in Bloomberg News. The $81.7 billion fund is independent of the Australian government.

The Future Fund board of guardians “will not invest in economic activities that are illegal in Australia or contravene conventions,” Will Hetherton, a fund spokesman told Bloomberg News.

Although advocates for a stronger cluster bill hailed the fund’s disinvestment, many say that the legislation’s language does not require disinvestment and that such an omission runs contrary to the CCM. (See ACT, December 2009.)

The proposed legislation is set to be debated in the Senate just weeks after The Age reported on WikiLeaks cables revealing that Australian officials told their U.S. counterparts in 2007 that the country would withdraw from negotiations on the CCM “unless a loophole was added to allow signatories to the convention to cooperate with military forces still using cluster bombs,” as the paper put it. The successful effort to do that produced the language at the center of the current dispute over the Australian bill.

The Age also reported that the WikiLeaks cables show that Australia covertly appealed to a number of Asian and African countries in an effort to win additional votes on several “hard-line” issues, including the military cooperation stipulation.

In a May 12 statement before the Senate, Sen. Scott Ludlam referred to the incident exposed in The Age as “an extraordinarily ugly episode in modern Australian history” and said the country’s cluster munitions bill was an “expression of those behind-the-scenes negotiations where Australia was effectively doing the dirty work” of the United States.

“The bill that the Senate will soon be debating allows the stockpiling and transfer of cluster bombs. It permits our forces to violate the spirit and intent of the treaty if the act involving cluster bombs is carried out in the course of a joint exercise with a non-party to the treaty,” Ludlam said.

Attempts to contact Australian officials on the matter were unsuccessful.