Thank you Chairman.
During the Oslo Process, the Dublin negotiations, and in States Parties' statements, legislation, and other actions since then, it is apparent that there are differing views on a number of key issues related to implementation and interpretation of the Convention on Cluster Munitions.
Most notably, this includes the prohibition on assistance during joint military operations (an issue sometimes called "interoperability"), the prohibitions on the transit of cluster munitions across and foreign stockpiling of cluster munitions on the national territory of a State Party, and the prohibition on investment in the production of cluster munitions in non-States Parties.
Based on statements and actions to date, it seems that the vast majority of States Parties and signatories agree that these are prohibited acts. However, a small number of states have taken a contrary view. The strength and credibility of the Convention are undermined when States Parties do not have a uniform understanding of what acts are banned and what acts are not. We urge States Parties to engage in open discussions on these issues.
Years of similar discussions in the context of the Mine Ban Treaty have shown that all but a few of the States Parties to that instrument agree that assistance with prohibited acts during joint military operations with a non-State Party, transit, foreign stockpiling, and investment in production are all banned.
The issue of the ban on assistance during joint military operations is complicated by Article 21 on relations with states not party. Article 21 allows a State Party to engage in joint military operations with non-States Parties even if those states reserve the right to use cluster munitions. During the negotiations and since, states have expressed differing interpretations of the relationship between the absolute prohibition on assistance contained in Article 1 and the language in Article 21. Now that the convention has entered into force, States Parties should clarify their understanding of what acts are permitted during joint operations.
The CMC believes that Article 21 should be read to allow participation in joint military operations, but only when it does not amount to assistance with acts prohibited by the Convention. Some have argued that the ban on assistance does not apply during joint military operations. Such an interpretation is contrary to both the text and the object and purpose of the Convention. Cluster munitions and the harm they cause will never be eliminated if Article 21 is seen to allow States Parties to assist with acts prohibited under the Convention. Thus, the prohibition on assistance must apply at all times, including during joint military operations. Allowing an exception to the prohibition on assistance could seriously undermine the aim of the convention.
Article 21 also requires States Parties to discourage use of cluster munitions by those not party, and to encourage them to join the Convention. An article which should have a unified and coherent purpose cannot logically require discouragement of use in one paragraph and then by implication allow encouragement of that use in another.
States Parties should make it clear that the Convention does not allow them to intentionally or deliberately assist, induce or encourage any activity prohibited by the Convention, including during joint military operations with non-States Parties.
The prohibition on assistance should be understood to ban a range of activities, including transit, foreign stockpiling, and investment in cluster munition production. Other forms of prohibited assistance should include, but not be limited to:
- securing, storing, or transporting cluster munitions that belong to a non-State Party;
- agreeing to rules of engagement that allow cluster munition use by a non-State Party;
- accepting orders from a non-State Party to use cluster munitions;
- requesting a non-State Party to use cluster munitions;
- participating in planning for use of cluster munitions by a non-State Party; and
- training others to use cluster munitions.
Several states have clearly said that the provision on interoperability is not an exception to the prohibition on assistance, or expressed a similar view. This includes: Belgium, Colombia, Ecuador, Ghana, Guatemala, Iceland, Ireland, Lebanon, Madagascar, Malawi, Mexico, Norway, and Slovenia.
States Parties should pass strong implementation legislation that stays true to all of the convention's norms and expressly addresses the prohibition on assistance and its application during joint military operations. The legislation should clarify that the prohibition on assistance remains in force even during joint military operations. Strong legislation should explicitly ban the range of activities that are most likely to occur during such operations.
Turning to the other interpretive issues, many states have already expressed the view that the ban on assistance with prohibited acts contained in Article 1 should be seen as a ban on the transit of cluster munitions across or through the national territory, airspace, or waters of a State Party. Many have also said that the ban on assistance constitutes a ban on stockpiling of cluster munitions by a non-State Party on the territory of a State Party.
Among those who have indicated that they believe transit and foreign stockpiling are prohibited are: Austria, Bulgaria, Colombia, Guatemala, Macedonia, Madagascar, Malawi, Malta, Mexico, and Slovenia.
The CMC believes that the prohibition on assistance constitutes a ban on investment, direct and indirect, in production of cluster munitions. The CMC has a Stop Explosives Investments campaign, spearheaded by members IKV Pax Christi and NetwerkVlaanderen. Financial institutions and investors have taken action to stop investment in cluster munition production in Australia, Belgium, Canada, Denmark, France, Germany, Japan, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the UK, and elsewhere.
National legislation in Belgium, Ireland, Luxembourg, and New Zealand prohibits investment in production, and government pension funds in Ireland, New Zealand, Norway, and Sweden have withdrawn and/or banned such investments.
Other countries that have made statements indicating that in their view investment in production is banned include Australia, Cameroon, Colombia, Croatia, France, Guatemala, Holy See, Hungary, Lebanon, Madagascar, Malawi, Malta, Mexico, Rwanda, the United Kingdom, and Zambia.
In closing, we again urge States Parties to have an open discussion about their implementation and interpretation of these key aspects of the Convention on Cluster Munitions. This will help to avoid possible compliance issues in the future, and the Convention will be stronger for it.
Thank you.
