Transit, retention and stockpiling of cluster munitions on Australian
territory by non-states parties
Section 72.42 of the bill provides defences for the stockpiling,
retention and transit of cluster munitions by military personnel of non-states
parties on Australia territory. In considering this provision within the
context of joint military operations with states not party to the Convention,
the chapter considers the manner in which the transit, retention and
stockpiling of foreign cluster munitions has been interpreted internationally
before considering the evidence before the committee and the government's position
in relation to it.
Interpreting the Convention
For the purposes of the Convention, the transit, retention and foreign
stockpiling of cluster munitions are interpretive issues. The definition of
'transfer' in Article 2 of the Convention does not make explicit that the
transit of cluster munitions through the territory of a state party is either prohibited
or permissible. For this reason, different interpretations of the prohibition
on assistance in Article 1(1)(c) have been applied to the issue of cluster
munitions transit. Similarly, Article 21(3) concerning interoperability leaves
scope to interpret states parties' relations with non-states parties including
that in relation to the transit and stockpiling of cluster munitions when
engaged in joint operations.
Austria and Germany have banned the transit of foreign cluster munitions
in their implementation legislation.
A number of other states including Bulgaria, Madagascar, Malta, and Mexico have
indicated that they interpret the Convention to proscribe transit and
stockpiling of foreign-owned cluster munitions on the territory of a states
Whilst a specific prohibition on the transit of cluster munitions into French
law was rejected on the basis that transit would be difficult to control, the
Secretary of State for Defence noted that France will endeavour to prevent any
state transit of cluster munitions on its territory. It would make known its
obligations and commitments through diplomatic channels, and encourage other
countries to respect them.
The Netherlands in contrast has taken the view that the transit (or physical
movement) across Dutch territory of cluster munitions of non-states parties is
not prohibited but that the transfer (of ownership) of such munitions is.
In addition, whilst the Netherlands has stated that there is no foreign
stockpiling on its territory, it does not consider such storage by non-states
parties to be prohibited under the Convention provided that the munitions
remain under the ownership of that non-state party.
Similarly, Portugal has taken the view that the Convention does not
unequivocally exclude the possibility of foreign stockpiling and transit with the
qualification that transit is permissible only in circumstances where the
cluster munitions in question remain under the control of the non-state party
which requested their passage.
Section 72.42 provides a defence in relation to the transit, retention
and stockpiling of cluster munitions by non-states parties where such acts
carried out in the course of military cooperation or operations with the ADF.
It provides that military personnel of non-states parties can raise the defence
in relation to the stockpiling, retention or transfer of cluster munitions when
they are on a base, aircraft or ship in Australian territory.
The provision is consistent with the government's interpretation of the
Convention that the continuation of military cooperation and operations with
non-states parties is expressly permitted under Article 21(3). Moreover, the
defence recognises the government's position that military personnel of a
country not party to the Convention are not required to comply with it.
The explanatory memorandum clarifies that the definition of 'transfer'
in the bill reflects the meaning given by Article 2(8) of the Convention and
includes either physical movement into or from national territory or transfer
of title and control.
Rather than distinguish transfer from transit, Australia's interpretation is
consistent with the common interpretation of the Mine Ban Treaty's definition.
Whilst the defence applies to military personnel of countries that are
not party to the Convention in relation to the stockpiling, retention and
transfer of cluster munitions, it does not apply in relation to the use,
development, production or acquisition of cluster munitions whilst such
personnel are in Australian territory. As the explanatory memorandum
highlights, such conduct 'remains prohibited to the military personnel of
countries not party to the Convention while they are in Australian territory'.
Many submitters were concerned about the scope of the section 72.42
defence and the implications of providing explicitly for the stockpiling,
retention and transit of cluster munitions by military personnel of non-states parties
on Australian territory. The Australian Red Cross argued that this provision
'allows acts generally prohibited in the Convention to occur on the territory
of a State party'.
Other submitters took the view that allowing foreign stockpiling and the
transit of such weapons through Australian airspace and water would undermine Article
9 specifically and the objectives of the Convention more broadly whilst
contributing to the continued use of the weapons.
The International Committee of the Red Cross (ICRC) held that it would be
difficult to reconcile the broad exemptions under this provision with the
obligations under paragraphs 1 and 2 of Article 21 to promote the norms of the
Convention and discourage non-states parties from using the munitions.
The ICRC continued that Article 21 was not meant to ensure that military
cooperation and operations were unaffected by the Convention and that the
provision permitted acts, prohibited by the treaty, to occur on territory under
the jurisdiction and control of a state party.
ALHR held the view that it was:
...simply unconscionable that a state which has committed
itself to the universal eradication of these weapons and the promotion of the
treaty's humanitarian norms would allow for cluster munitions to be brought to,
transferred and retained on its territory...The use of Australian
infrastructure and territory amounts to clear assistance in breach of article
1, and facilitates the proliferation of cluster munitions, thereby defeating
the object and purpose of the Convention, in addition to breaching articles 1
The ICRC as well as Human Rights Watch and IHRC noted that the bill goes
further in this area than the legislation of other common law countries as
Australia is believed to be the only state that will explicitly allow for
foreign stockpiling in its implementation legislation.
The ICRC argued that the legislation of New Zealand and Ireland respectively
'do not contain provisions excluding the application of their laws to foreign
forces or vehicles on their territory'. The ICRC noted that the UK legislation
creates 'defences for visiting forces of non-states parties for actions
relating to the possession and transfer of a cluster munition as well as
assisting, encouraging or inducing any other person to engage in any act that
is prohibited'. Even so, according to the ICRC, the UK has 'indicated that it
has requested the removal of foreign stockpiles of cluster munitions from UK
territories within the 8 year period allowed for stockpile destruction in the
A number of witnesses suggested that the section 72.42 defence be
deleted and replaced with specific wording prohibiting the transit, retention
and stockpiling by military personnel of non-states parties on Australian
Whilst agreeing with this suggestion, Human Rights Watch and the IHRC proposed
as an alternative, the removal of subsection 72.41(1) which specifically allows
for transit and foreign stockpiling on Australian territory.
The government's position
The government's position is that as military personnel of non-states
parties are not required to comply with the Convention's obligations, they
should not, therefore be subject to section 72.38 offences.
As Defence stated in evidence to the committee, it is not appropriate to
require military personnel of non-states parties to comply with an
international legal obligation to which their own country has not consented.
Furthermore, the defence is consistent with the government's interpretation of
the Convention that military cooperation and operations with non-states parties
are expressly permitted by Article 21 and that such cooperation may entail the
use by foreign states of bases on Australian territory or the entry of foreign
ships or aircraft into Australian territory.
As Defence emphasised, the ability to maintain interoperability with non-states
parties is 'central to the protection of international security, as well as
Australia's national security'.
However, in accordance with Article 21(4), non-states parties would not be
excluded from prosecution 'if they use, develop, produce or acquire cluster
munitions in Australia'.
Contrary to the views of many submitters, the government argued that
section 72.42 is consistent with Article 9 of the Convention as the offences
created in the bill 'apply to all persons on Australian territory and, under
certain circumstances, to persons outside of Australia'.
Furthermore, AGD emphasises that Article 9 must be read alongside Article 21
and that the defence in the bill:
...recognises that it is not appropriate to require military
personnel of non-States Parties to comply with an international legal
obligation to which their sending country has not consented. Nonetheless, such
visiting forces would not be excused from prosecution for the offences
contained in the Bill if they use, develop, produce or acquire cluster
munitions in Australia.
In response to concerns raised in submissions regarding foreign
stockpiling and how such a defence could be reconciled with the fact that
Australia does not itself currently have an operational stockpile of cluster
munitions, DFAT stated:
The issue of domestic and foreign stockpiles of cluster
munitions are separate. Australia does not have any operational stockpiles of
cluster munitions and is committed to a world free from cluster munitions.
However, Australia recognises that some non-States Parties to the
Convention—including Australia's allies—may continue to use cluster munitions.
When questioned about the practical application of the defence,
Lieutenant General David Hurley, Vice Chief of the Defence Force (VCDF) stated
that Australia is 'not stockpiling cluster munitions on behalf of anybody' and
when asked whether US cluster munitions get transhipped through Australian
territory, VCDF explained that if 'US forces are transiting Australian airspace
or sea passage there is a possibility they will have them on board'.
Again, it is important to read this provision on the stockpiling and
retention of cluster munitions in light of Australia's obligation to 'exert
influence where appropriate in discouraging the use of cluster munitions'.
According to Defence, this obligation may be discharged, for example, in 'bilateral
or multilateral spheres through oral or written communications aimed at
dissuading or advising States not party to the Convention against cluster
AGD and DFAT also stated that Australia would comply with its obligations under
Article 21(1) and (2) as appropriate opportunities arise and consistently with
its implementation of similar obligations in other international disarmament
instruments. They stated further that 'in formal and informal diplomatic and
other contacts, Australia will urge States not party to the Convention not to
use cluster munitions and encourage them to accede to the convention'. DFAT
Australia will also make our obligations under the Convention
clear to non-State Parties. When engaged in military cooperation, the
limitations contained in the Bill will be reflected in ADF doctrine,
procedures, rules and directives. This will ensure that Australia and Australians
will act consistently with the object and purpose of the Convention (including paragraphs
1 and 2 of Article 21), including when undertaking cooperative activities with countries
that are not obliged to comply with the Convention.
In this regard, it is important to note that according to Defence and
All munitions owned by foreign armed forces that are stored
on Australian soil are required to be managed as 'Commonwealth Explosives', in
accordance with the Explosives Act 1961, and its subordinate regulations
and codes. This requires specific approval for the storage and transportation
of these munitions, and their inclusion in Defence information holdings. Additionally,
they are stored in Defence facilities licensed to store explosive ordnance, and
are managed on the Computer System for Armaments. Consequently, Defence both
approves and has full visibility of all foreign armed forces munitions that are
stored on Australian soil.
No foreign armed force will be approved to fire cluster munitions
on any Australian training range. All munitions fired on Australian training
ranges by foreign armed forces are required to comply with the requirements
specified and prohibitions for each range by the Director of Operations and
Training Area Management.
The committee appreciates that section 72.42 is consistent with the
government's position on interoperability. The committee also notes the
statements by AGD, Defence and DFAT providing assurances that Australia 'would
comply with its obligations under Article 21(1) and (2) as appropriate
opportunities arise'. Australia is not exempt from these obligations when it
comes to non-states parties stockpiling or retaining cluster munitions on
Australian territory or allowing them to transit cluster munitions through
Australian airspace and water.
The Australia Government might help to allay people's concerns about the
operation of sections 72.41 and 72.42 by better publicising the work that it is
doing to encourage non-party states to adhere to, or endorse, the Convention
and the way it uses its best efforts to discourage others from using cluster
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