Given the international attention devoted to cluster munitions in recent years, it is striking how little is still known about government policy and practice. There is especially a dearth of information that has been provided officially by governments. Despite the Oslo Process and the Convention on Cluster Munitions, and the work in the Convention on Conventional Weapons, many governments have never made formal, public statements regarding their policy toward cluster munitions. Some governments will not even acknowledge that they have produced, stockpiled, and/or exported cluster munitions. The great majority of those who have produced, stockpiled, and/or exported have provided no official details about those activities. This includes both signatories and non-signatories to the Convention on Cluster Munitions. On the positive side, more than three dozen governments responded to the request of Human Rights Watch (HRW) and Landmine Action for information for this report, with some providing very detailed information not previously known.

Transparency will be a crucial element in the effort to establish an international norm against cluster munitions. We encourage all governments to be as open and transparent about cluster munitions as possible, as a confidence-building measure and as part of the global effort to address the humanitarian dangers of these weapons. Signatories to the Convention on Cluster Munitions should not wait until their legal obligation to provide annual transparency reports takes effect; they should start now.

Signature and Ratification of the Convention on Cluster Munitions

As of April 2009 a total of 96 countries had signed Convention on Cluster Munitions, including 94 during the Oslo signing conference on 3–4 December 2008 and two (Tunisia and the Democratic Republic of the Congo, DRC) subsequently at the UN in New York.

Of the 96 signatories, 35 are from sub-Saharan Africa, 32 from Europe, 15 from the Americas, 12 from Asia-Pacific, and two from the Middle East-North Africa. A total of 35 countries that have used, produced, stockpiled, or exported cluster munitions have signed the convention and thereby committed to never engage in those activities again. Twenty of the 28 NATO members are signatories. Fourteen of the countries that have been affected by cluster munitions have signed, including some of those most severely contaminated, such as Afghanistan, Lao PDR, and Lebanon.

By signing, nations have already taken on a legal obligation, under the Vienna Convention on the Law of Treaties, not to undertake any act that would defeat the purpose of the convention—such as use, production, or trade of cluster munitions. At least three signatories have announced that they are provisionally applying Article 1 of the convention (the basic prohibitions) until it enters into force: Norway,^[1] the Netherlands, ^[2] and Spain.^[3]

The Convention on Cluster Munitions requires 30 ratifications to trigger entry into force six months later.^[4] As of April 2009, six signatories had ratified: Holy See, Ireland, Norway, and Sierra Leone during the signing conference on 3 December 2008, and Lao PDR and Austria afterwards.

As detailed in the various country entries in this report, many signatories have already initiated the ratification process and expect to conclude soon. A significant number of non-signatories have indicated their intention to join in the future, including some of the 25 nations that participated fully in the negotiations and formally adopted the convention in Dublin.^[5]

National Ban Legislation

Some countries have already enacted national laws banning cluster munitions, and others have already begun to develop national legislation to implement the Convention on Cluster Munitions.

Belgium was the first country to legislate a national prohibition on use, production, transfer, and stockpiling of cluster munitions in February 2006. Austria became the second country to pass national ban legislation in December 2007. Both laws set deadlines for the destruction of stockpiles.

Ireland passed legislation implementing the convention on 2 December 2008 which also served as its instrument of ratification, allowing it both to sign and ratify on the same day. The law prohibits use, development, production, acquisition, possession, and transfer of cluster munitions and explosive bomblets, and contains other provisions to implement the convention. Those guilty of offenses may be fined up to €1 million and imprisoned up to 10 years.

In December 2008, Luxembourg published a draft law of ratification that also has implementing provisions, including a prohibition on financing cluster munitions or explosive submunitions.^[6]

Unilateral Ban Moratoriums

Prior to and during the Oslo Process, a number of states declared unilateral national moratoriums on the use (and in some cases, the production, stockpiling, and transfer) of cluster munitions.

In May 2006, the Norwegian Ministry of Defense decided to institute a national moratorium on use of cluster munitions until further testing of its cluster munition failure rates had been undertaken.^[7] In November 2006, Norway extended its moratorium on the use of cluster munitions until a legally-binding instrument on cluster munitions could be concluded. At the initial conference to launch the Oslo Process in February 2007, Austria announced a national moratorium on the use of cluster munitions.

At the Lima Conference on Cluster Munitions in May 2007, Hungary announced that it would enact a national moratorium on the use of cluster munitions until a legally-binding international instrument was concluded. The Netherlands announced in June 2007 a temporary suspension of the use of cluster munitions, stating that the military would not use cluster munitions until further notice. Croatia announced in December 2007 that it had enacted a moratorium on the use, production, and transfer of cluster munitions.

Bosnia and Herzegovina (BiH) declared a moratorium in February 2008 on the use of cluster munitions until an international agreement was concluded. Also in February 2008 Bulgaria announced its adoption of a unilateral moratorium on the use of cluster munitions “until the entry into force of an international treaty on the use, production, transfer, and stockpiling of cluster munitions that cause unacceptable harm to civilians.”^[8] Spain declared a unilateral moratorium on use, production, and transfer of cluster munitions in June 2008.

Use of Cluster Munitions

Cluster munitions have been used during armed conflict in 33 countries and disputed territories since the end of World War II, including Afghanistan, Albania, Angola, Azerbaijan, BiH, Cambodia, Chad, Croatia, DRC, Eritrea, Ethiopia, Georgia, Grenada, Iraq, Israel, Kuwait, Lao PDR, Lebanon, Montenegro, Saudi Arabia, Serbia, Sierra Leone, Sudan, Syria, Tajikistan, Uganda, Vietnam, and Zambia, as well as Chechnya, Falkland Islands/Malvinas, Kosovo, Nagorno-Karabakh, and Western Sahara.

At least 14 government armed forces have used cluster munitions.

Summary of States Using Cluster Munitions and Locations Used

In several cases it is unclear which belligerent party used cluster munitions, including in Angola, Azerbaijan, DRC, Nagorno-Karabakh, Tajikistan, Uganda, and Zambia. In addition to use by the armed forces of states, non-state armed groups (NSAGs) have used cluster munitions in Afghanistan (by the Northern Alliance), Croatia (by a Serb militia), Israel (by Hezbollah), and BiH (by a Serb militia).

The most recent use of cluster munitions occurred in August 2008 when both Russian and Georgian forces used the weapon during the conflict over South Ossetia, killing or injuring at least 70 civilians.^[9] Russia used air-dropped and ground-delivered cluster munitions in or near nine towns and villages in the Gori-Tskhinvali corridor south of the South Ossetian administrative border. Georgian forces used M85 submunitions delivered by Mk.-4 160mm unguided surface-to-surface rockets, weapons that it bought pre-packaged from Israel.^[10] They landed in or near at least five towns and villages.

The scale of cluster munition use has varied widely by conflict. The most extensive and most sustained use was by the United States in Cambodia, Lao PDR, and Vietnam between 1965 and 1975. In Lao PDR for example, over 260 million cluster submunitions were dropped on the country with some estimates suggesting as many as 80 million submunitions left unexploded.^[11] This contamination has caused thousands of civilian casualties, continues to claim victims even today, and still presents an impediment to development and reconstruction. Although no precise details are known, Soviet use of cluster munitions in Afghanistan from 1979–1989 was likely massive as well.

Large numbers of cluster munitions containing millions of submunitions were used in relatively brief conflicts such as Iraq (in 1991 and 2003) and Lebanon (in 2006). The US, France, and the United Kingdom dropped 61,000 cluster bombs containing some 20 million submunitions on Iraq and Kuwait in 1991. The number of cluster munitions delivered by surface-launched artillery and rocket systems is not known, but an estimated 30 million or more dual purpose improved conventional munition (DPICM) submunitions were used in the conflict. In the 2003 invasion of Iraq, the US and UK used nearly 13,000 cluster munitions containing an estimated 1.8 million to two million submunitions.^[12] Israel fired more than four million submunitions into south Lebanon in 2006 over the course of just a few days.^[13]

In other cases, a limited number of cluster munitions were used. For example, US Navy aircraft dropped 21 Mk.-20 Rockeye cluster bombs on Grenada in close air support operations during the invasion of Grenada in November 1983.^[14] Nigerian forces operating as ECOMOG peacekeepers dropped a small number of cluster bombs in Sierra Leone in 1997.^[15]

A few non-signatory states have imposed restrictions on the possible future use of cluster munitions. The US June 2008 cluster munition policy dictates that until 2018, the use of cluster munitions that exceed a 1% unexploded ordnance (UXO) rate (which includes all but a tiny fraction of the US arsenal) must be approved by a “Combatant Commander,” a very high-ranking military official.^[16] After 2018, the US will no longer use cluster munitions that result in more than 1% UXO.^[17]

Romania restricts the use of cluster munitions “exclusively on our territory, under the national defense programme.”^[18] An official from the Polish Ministry of National Defense said Poland would use cluster munitions for defensive purposes only, and does not intend to use them outside its own territory.^[19]

Timeline of Cluster Munition Use

Production

A total of 34 states have developed or produced more than 200 types of cluster munitions.^[20] In December 2008, 14 of these states signed the Convention on Cluster Munitions, foreswearing any future production. Of the 20 non-signatories that have produced, it is likely that 17 continue to produce today (but not Argentina, Iraq, or Serbia—see below).

Of the signatories, several stopped production a number of years ago.^[21]

Of the non-signatories, Argentine military officials told HRW that an effort to produce 155mm artillery projectile containing self-destructing DPICM submunitions did not reach full-scale production and was dismantled, and the projectiles were never fielded by the armed forces.^[22] The current status of production facilities in Iraq is not known with certainty, but the capability was likely destroyed in 2003. Serbia informed HRW in February 2009 that it has not produced cluster munitions since the dissolution of the Socialist Federal Republic of Yugoslavia.^[23]

In these listings, the loading, assembling, and packaging of submunitions and carrier munitions into a condition suitable for storage is considered production of cluster munitions. Modifying the original manufacturers’ delivery configuration for improved combat performance is also considered a form of production. Some states developed and tested cluster munitions but the projects never entered into a serial production phase. In addition to the Argentina case mentioned above, Australia developed, manufactured, and tested, but never produced a cluster bomb named Karinga in the 1970–1980s.^[24] Similarly in Belgium, the company Mecar SA at one point developed a mortar bomb containing submunitions, but claims that this project never reached production status due to economic reasons. Another company, Forges de Zeebrugge (FZ), has claimed that “a project for a rocket containing nine submunitions with no self-destruct system existed in the 1980s. This product did not go further than a prototype.”^[25]

Production of cluster munitions in 2009

In 2009, it appears that cluster munitions are being produced to some degree in 17 states. Cluster munitions continue to be publicly listed as available products on the international arms market and continue to be displayed at some arms fairs. The states where production is occurring, the companies involved, and the types of cluster munitions believed to be currently in production are listed below.

Many states have licensed the production of cluster munitions to companies in other states. Most recently, the South Korean company Poongsan entered into a licensed production agreement with Pakistan Ordnance Factories in November 2004 to co-produce K310 155mm extended-range (base bleed) DPICM projectiles in Pakistan. While the ammunition is primarily being produced for Pakistan’s army, the two firms will also reportedly co-market the projectiles to export customers.^[26] Israel Military Industries has concluded licensing agreements with companies in India (Indian Ordnance Factories), Romania (Romarm), Turkey (MKEK and Rocketsan), and the US (Alliant Techsystems) to produce M85 DPICM submunitions.

At least three of the countries still producing cluster munitions have established reliability standards for submunitions. In 2001, the US instituted a policy that all submunitions reaching a production decision in fiscal year 2005 and beyond must have a dud rate of less than 1%.^[27] Poland stated in 2005, “The Ministry of Defense requires during acceptance tests less than 2.5% failure rate for the purchased submunitions.”^[28] South Korea issued a directive in 2008 requiring that in the future it only acquire cluster munitions with self-destruct mechanisms and a 1% or lower failure rate.^[29]

Financial disinvestment from companies that produce cluster munitions

As the issue of cluster munitions developed in Belgium, the NGO Netwerk Vlaanderen undertook detailed research on ongoing investments in cluster munition manufacture. This work prompted changes in practice from some financial institutions and further legal reforms. ^[30] In December 2006, Belgian Senator Philippe Mahoux proposed to add cluster munitions to an existing law prohibiting direct or indirect financing in the production, use or possession of antipersonnel landmines.^[31] The law was approved in March 2007, making Belgium the first country to make it a crime to invest in companies producing cluster munitions.^[32] Ireland’s implementation law for the Convention on Cluster Munitions explicitly prohibits the investment of public money in cluster munitions producers, making Ireland the second country in the world to prohibit investment in cluster munitions.^[33] In December 2008, Luxembourg published a draft law of ratification of the Convention on Cluster Munitions that would prohibit all persons or businesses from “knowingly” financing cluster munitions or explosive submunitions.^[34]

In 2004, the Norwegian Ministry of Finance decided to include cluster munitions in a category of inhumane weapons to be excluded from investment under the Norwegian Government Pension Fund’s ethical guidelines. In June 2005, eight foreign companies involved in the production of cluster munitions were excluded from the Fund’s investments.^[35] Additional companies were excluded in 2006 and 2008.^[36]

On 18 March 2007, considerable public outcry was generated when Dutch television aired a documentary titled “The Clusterbomb Feeling,” an exposé into major pension funds’ investments in companies involved in the production of landmines and cluster munitions.^[37] Many pension funds subsequently announced their intention to end investments in cluster munition manufacturers.^[38]

In July 2007, the Axa Group, a French insurance company, announced it was withdrawing assets invested in companies involved in the production of cluster munitions. Axa was quoted as stating, “While no international convention banning cluster bombs is yet in place, the Axa Group acknowledges that there is an emerging international consensus around the banishment of certain types of cluster bombs.”^[39]

On 3 March 2008, Ireland’s National Pensions Reserve Fund announced it would withdraw from investing in six international companies involved in the production cluster munitions, while the NZ Superannuation Fund followed suit on 4 April 2008.^[40]

On 1 June 2008, the Swedish pension fund AP 7 announced that it would sell off its holdings in companies involved in the production of cluster munitions. AP 7, one of Sweden’s seven government-owned pension funds, manages around 90 billion kronor.^[41] Four other Swedish pension funds followed suit in September 2008.^[42]

In response to inquiries from HRW, several signatories to the Convention on Cluster Munitions have expressed their views on the issue of financial investment in acts prohibited by the convention. Mexico stated that “investment for the production of cluster munitions is also prohibited by the Convention.”^[43] Lebanon stated that financing and investment in cluster munition production or transfer is prohibited. ^[44] Bulgaria noted that while a ban on investment in cluster munition production is not explicit in the text of the convention, it would need to be “considered in light of the general prohibition on the development and production of cluster munitions.”^[45] The Netherlands said that investment in production of cluster munitions runs counter to the spirit of, but is not banned by, the convention. ^[46]

Stockpiling

A total of 85 countries have possessed stockpiles of cluster munitions at some point in time.^[47] Of these, 35 have signed the Convention on Cluster Munitions as of April 2009.

It appears 79 countries currently stockpile cluster munitions, of which 31 have signed the convention. Countries that are no longer thought to have stockpiles include signatories Australia, Honduras, Mali, and Spain, and non-signatories Argentina and Iraq. Spain completed its stockpile destruction program in March 2009, the first to do so since signing the convention. A significant number of other signatories have started stockpile destruction. (See next page).

While most states acquired their stockpiles by domestic production or importation from others, some states simply inherited stockpiles of cluster munitions upon gaining independence, including Azerbaijan, Belarus, BiH, Croatia, Czech Republic, Georgia, Kazakhstan, Moldova, Montenegro, Serbia, Turkmenistan, Ukraine, and Uzbekistan.

The total global stockpiles of submunitions contained in cluster munitions likely number into the billions. The US alone possesses cluster munitions in its active inventory which contain between 730 million and one billion submunitions. Stockpiles of cluster munitions in Russia and China are likely to be comparable in scale. It is believed that many national stockpiles of cluster munitions consist of millions to tens of millions of submunitions.

The very limited confirmed information about the numbers of submunitions in stockpiles is detailed in the following table. The information for non-signatories Bahrain, Jordan, Morocco, Egypt, and Saudi Arabia comes from US export notifications.

Submunitions Contained in Known Stockpiles of Cluster Munitions

Destruction of stockpiles

Several countries reported having destroyed their entire stockpiles before international action to prohibit cluster munitions intensified in 2006. Military officials from Argentina stated that stocks of BLG-66 Belouga and Rockeye air-dropped bombs were destroyed by 2005. Honduran officials stated in 2007 that the military destroyed its stockpile of air-dropped Rockeye cluster bombs as well as an unidentified type of artillery-delivered cluster munition in previous years.^[48] In December 2007, Mali announced that 10 years earlier it had destroyed all of its stockpile of cluster munitions.^[49]

Other states that reported the destruction of specific cluster munition systems before the adoption and signature of the Convention on Cluster Munitions include Belgium, Canada, France, Germany, Netherlands, Norway, Switzerland, and the UK. These cluster munitions were usually destroyed because they were considered obsolete, and in some cases, considered too unreliable. Destruction of obsolete and beyond-shelf-life cluster munitions is a routine part of ammunition operations. For example, over the past decade, the US has destroyed on average 7,000 tons (seven million kg) of cluster munitions per year at an average annual cost of US$6.6 million. As of 2006, at least 103,473 tons (103 million kg) of outdated cluster munitions were awaiting destruction.^[50]

The NATO Maintenance and Supply Agency (NAMSA) destroyed cluster munitions containing more than 65 million submunitions from 1997–2007 for NATO countries.^[51] One industrial consortium (General Dynamics and EBV) built, tested, and opened a facility in the US within a year to destroy a stockpile of 38,538 cluster bombs containing over 23 million submunitions over five years (2005–2009) recovering and recycling nearly 94% of the materials.^[52]

National legislation in Belgium and Austria dictated deadlines for the destruction of stockpiles. Belgium’s 2006 ban legislation requires all stocks to be destroyed within three years, which would be June 2009.^[53] In December 2008, the Belgian Minister of Foreign Affairs confirmed that “stockpile destruction is well underway and should be finalized, under the contractual provisions, in the first part of next year [2009].”^[54] Austria’s national law requires destruction within three years, which would be January 2011, but Austria said that it expected its stocks to be destroyed by the end of 2009.^[55] The Minister of Defense told the Parliament that the destruction costs would amount to €1 million.^[56]

To comply with its June 2008 national moratorium, Spain completed the destruction of its stockpile of 4,339 cluster munitions (containing 212,481 submunitions) on 18 March 2009. The Spanish Government paid €4.9 million to the company Fabricaciones Extremeňas SA (FAEX), of the Maxam Industrial Group, to dismantle and destroy the stockpile.^[57] Spain intends to retain 836 cluster munitions (containing 28,615 submunitions) for training and countermeasures testing purposes permitted under Article 3 of the Convention on Cluster Munitions.^[58]

Germany began to destroy stockpiles in 2001 and as of February 2009, approximately 30% of the stockpile (compared to the 2001 total) had been destroyed.^[59] Germany announced in April 2009 that it would destroy its stockpile within the eight-year deadline of the Convention on Cluster Munitions.^[60] It has estimated the costs of destruction at about €40 million.^[61] The cost for destroying the existing stockpile in Italy is estimated at €8,123,380.^[62] One report estimated the cost of destroying Japan’s stocks of cluster munitions at around ¥20 billion.^[63]

In October 2008, the Norwegian Minister of Defense stated that Norway had begun the process of destroying its stockpile of cluster munitions, and that Norway’s goal is to have all cluster munitions destroyed sometime in 2009. Norway has estimated that the destruction of its 155mm cluster munitions would be €40 per projectile.^[64] All UK stockpiles of cluster munitions have been removed from service and are now either in the process of being destroyed or contracts have been agreed for their destruction.^[65]

Transfer

While the true scope of the global trade in cluster munitions is difficult to ascertain due to lack of official information, at least 15 countries have transferred more than 50 types of cluster munitions to at least 60 other countries.^[66] Some recent examples of reported transfers of cluster munitions include:

• The US military notified Congress in September 2006 of its intent to sell to the UAE 780 M30 GMLRS rockets with DPICM submunitions.^[67]
• Turkey sold 3,020 TRK-122 122mm rockets to the UAE in 2006–2007.^[68]
• Slovakia reported the export of 380 AGAT 122mm rockets to Turkey in 2007.^[69]
• Israel transferred four GRADLAR rocket launcher units to Georgia in 2007. Georgia has acknowledged using the launchers with 160mm Mk.-4 rockets, each containing 104 M85 DPICM submunitions, during its August 2008 conflict with Russia.^[70]
• South Korea exported M261 rockets to Pakistan in March 2008.^[71]
• The US announced in September 2008 that it was intending to sell India 510 CBU-105 air-dropped Sensor Fuzed Weapons.^[72]

While the historical record is incomplete, the US has transferred hundreds of thousands of cluster munitions containing tens of millions of unreliable and inaccurate submunitions to at least 30 countries: Argentina, Australia, Bahrain, Belgium, Canada, Egypt, Denmark, France, Germany, Greece, Honduras, India, Indonesia, Israel, Italy, Japan, Jordan, South Korea, Morocco, Netherlands, Norway, Oman, Pakistan, Poland, Saudi Arabia, Spain, Thailand, Turkey, the UAE, and UK.

Cluster munitions of Russian/Soviet origin are reported to be in the stockpiles of the following 33 states: Algeria, Angola, Azerbaijan, Belarus, Bulgaria, Croatia, Cuba, Czech Republic, Egypt, Hungary, Georgia, Guinea, Guinea-Bissau, India, Iran, Iraq, Kazakhstan, North Korea, Kuwait, Libya, Moldova, Mongolia, Peru, Poland, Romania, Slovakia, Sudan, Syria, Turkmenistan, Uganda, Ukraine, Uzbekistan, and Yemen.

While the full extent of Chinese exports of cluster munitions is not known, unexploded submunitions of Chinese origin have been found in Iraq, Israel, Lebanon, and Sudan. Hezbollah fired over 100 Chinese Type-81 122mm rockets with DPICM submunitions into northern Israel in 2006.

At least two states that have not signed the Convention on Cluster Munitions, the US and Singapore, have enacted export moratoriums. In December 2007, the US Congress placed a one-year moratorium on the transfer of cluster munitions unless they have a 99% or higher tested reliability rate. The legislation also required that any state receiving cluster munitions from the US must agree that those cluster munitions will only be used against clearly defined military targets and will not be used in areas where civilians are known to be present.^[73] This export ban was made permanent on 11 March 2009.^[74] On 26 November 2008, Singapore announced that it would impose an indefinite moratorium on the export of cluster munitions with immediate effect.^[75]

The Prohibition on Assistance: Transit, Foreign Stockpiling, and Joint Military Operations

During the Oslo Process meetings to develop the Convention on Cluster Munitions and during the Dublin negotiations, it appeared that there was not a uniform view on some matters relating to one of the convention’s most basic and important provisions: the prohibition on assistance with prohibited acts. State Parties have an obligation under Article 1 “never under any circumstances to…assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.”

The CMC has stated that this broad prohibition 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. It has also said that it should be seen as banning the stockpiling of cluster munitions by a state not party on the territory of a State Party.^[76] Most countries that have weighed in on these issues have agreed, but some have not.^[77]

There are also questions about the impact of the Article 1 prohibition on assistance on joint military operations involving States Parties and countries that have not joined the convention and still stockpile and reserve the right to use cluster munitions.^[78] As detailed in the previous chapter of this report, in response to these “interoperability” concerns, states agreed to the insertion of a new Article 21 on “Relations with States not Party to this Convention” which was strongly criticized by the CMC for being politically motivated and for leaving a degree of ambiguity about how the prohibition on assistance would be applied in joint military operations.^[79] The CMC has said, “States must make it clear that States Parties must not intentionally or deliberately assist, induce, or encourage any activity prohibited under this treaty—including use, transfer or stockpiling of cluster munitions—when engaging in joint operations with non-States Parties.” ^[80]

The CMC has called for states to develop common understandings on these issues, so that there is consistent implementation of the convention.

To help with preparation of this report, HRW and Landmine Action wrote letters to all signatories asking for their views on these matters. The responses are summarized below, along with other relevant statements nations have made.

Transit and foreign stockpiling

• Bulgaria has stated that it has interpreted Article 1 of the Convention to mean that “transit” of cluster munitions across the territory of States Parties is prohibited, as is the stockpiling of foreign-owned cluster munitions.^[81]
• Burkina Faso stated that it considers that the transit of cluster munitions by states not party through the territory of States Parties is prohibited.^[82]
• Ecuador stated that the transit of cluster munitions should be prohibited.^[83]
• Lebanon believes that the prohibition on transfer of cluster munitions includes a prohibition on “transit.” ^[84]
• Madagascar expressed the belief that the transit and storage of cluster munitions by a state not party within the territory of a state party would weaken the effects of the convention.^[85]
• Malta stated, “Our understanding of the commitments arising out of the convention is that, as a party, we will not permit the transit of cluster munitions across, or foreign stockpiling of cluster munitions on, our national territory.”^[86]
• Mexico believes that “both the transit and storage of cluster munitions is prohibited under any circumstances, unless these actions are performed for the purposes specifically stated in Article 3, paragraphs 6 and 7. This rule is also applicable in relations with States not Party to the Convention, as stated in Article 21.”^[87]
• The Netherlands stated that “the transit across Dutch territory of cluster munitions that remain the property of the third party in question is not prohibited under the Convention.”^[88]
• South Africa’s Department of Foreign Affairs said in March 2009 that the 2003 Anti-Personnel Mines Prohibition Act would likely serve “as the principal guideline when South Africa drafts its national legislation for the Convention on Cluster Munitions.” It noted that this Act prohibits South African forces from assisting a state not party to the Mine Ban Treaty with any activity prohibited under the treaty and includes “transit” under its definition of transfers.^[89]
• The UK stated on 5 June 2008 that although it does not deem it to be a legal requirement under the convention, in keeping with its spirit, the UK would seek the removal of all foreign stockpiles of cluster munitions from UK territory within the eight year period allowed for stockpile destruction.^[90]
• Zambia stated that it does not believe that States Parties should “in any way assist the use [or] transfer of cluster bombs within or without their territories in the name of joint operations.”^[91]

Joint military operations/interoperability

Bulgaria stated that it “will fully observe the regulations of Article 21 of the Convention…. Par.4 of Article 21 stipulates that participation in such military operations ‘shall not authorize a State Party’ to engage in acts prohibited under the terms of the Convention and contains an exhaustive list of such acts.” ^[92]

Ecuador has called for vigilance to ensure that Article 21 is never used to justify any derogation from the convention’s core prohibitions.^[93]

During the negotiations in Dublin, Iceland’s representative said that Article 21 should not be seen as undercutting the obligation in Article 1 not to assist with any activity prohibited by the convention. Specifically, “While the article sets out an appeal to States which are not parties to join the regime of the Convention, it recognizes the need for continuing cooperation in what is hoped will be a short transition period. This intention is captured clearly in paragraph 3 of the Article which should not be read as entitling States Parties to avoid their specific obligations under the Convention for this limited purpose. The decision to reinforce this position by listing some examples in paragraph 4 cannot therefore be interpreted to allow departures in other respects.”^[94]

Lebanon has stated that Article 1 of the convention takes precedence over Article 21, so that “States Parties must never undertake any act that could constitute deliberate assistance with a prohibited act.” ^[95]

When signing the convention in Oslo, Madagascar’s Minister of Foreign Affairs said that the question of interoperability should not constitute a barrier for countries to sign the convention. He stated that the goal is to encourage those outside of the convention not to resort to the use and transfer of cluster munitions. ^[96]

Mexico stated that “even when a State Party does not itself engage in prohibited activities during a joint military operation with States not Party to the Convention, deliberately providing assistance for the execution of prohibited activities is not allowed.”^[97]

On interoperability, the Netherlands has noted that States Parties should encourage others to accede to the convention and “try to discourage them from using cluster munitions.” But, “military cooperation with States not Party is still permitted, including operations where the use of cluster munitions cannot be ruled out…. The consequences of this article for NATO operations are currently being clarified.”^[98]