[IntLawProfessors] Australian Legislation Implementing Convention on Cluster Munitions

[Matthew Zagor]

The Australian government have finally tabled legislation implementing the CMC. The government has kept very tight lipped in recent months about how they would go about implementing article 21(3), the vaguely worded interoperability clause. Civil society has pushed for clear statements that States Parties must not intentionally or deliberately assist, encourage or induce any activity prohibited under the treaty (ie consistent with article 1(1)(c), which is otherwise implemented in the legislation in cl 72.38).  

A brief scan of the legislation would seem to indicate that this standard has not been met. Rather, the treaty obligations have been interpreted very narrowly (see cl 72.41). As long as the Commonwealth does not use, develop, stockpile or transfer a cluster munition, or 'expressly request the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth's exclusive control', no offence is committed. The legislation thus seems to treat article 21(4), which lists a small group of activities that remain banned in joint operations, as exhaustive rather than illustrative (there is no mention of the advocacy obligations in art 21 which have been read by some commentators as a further reason to treat the clause as illustrative and the prohibition on assistance as not waived). Moreover, cl 72.42 allows for the continuing stockpiling, retention or transfer of a cluster munition by a non-party in Australia - whether done with the use of a base, aircraft or ship. 

So, the prohibition on assistance, otherwise so essential to the operation of the treaty, is gone in joint operations, and the weapons can remain on Australian soil. Earlier statements that Australia 'will not participate in planning or implementation of activities related to anti-personnel mine use in joint operations' do not seem to have been acted upon. As Human Rights Watch have said about such an approach more generally, it allows Australians to load the gun so long as they do not pull the trigger. 

These are just my initial observations. I may well be missing something (I hope I am). 

Whether Australia's interpretation of its treaty obligations contradicts the object and purpose of the convention and results in an internally inconsistent reading of article 21 will hopefully be explored in more depth should the bill be sent to committee.

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=priority,title;page=0;query=Dataset_Phrase%3A%22billhome%22%20ParliamentNumber%3A%2243%22%20Portfolio_Phrase%3A%22attorney-general%22;rec=1;resCount=Default