Introduction | Universalization | Use | Production | Transfer | Stockpiles | Retention | Transparency Reporting | National Implemenation Legislation | Interpretive Issues

Introduction

2017 marks 10 years since the launch of the Oslo Process to address the unacceptable harm caused by cluster munitions. That fast-track diplomatic initiative delivered the Convention on Cluster Munitions the following year, adopted by 107 countries.[1] Fittingly, the body of international humanitarian disarmament law that the convention belongs to further expanded this year with the adoption on 7 July of the Treaty on the Prohibition of Nuclear Weapons.

These instruments and the 1997 Mine Ban Treaty are all the products of strong partnerships forged by like-minded states working in cooperation with key United Nations (UN) agencies, the International Committee of the Red Cross (ICRC), and non-governmental organizations united under the banner of coordinated global coalitions.[2] These treaties are having a positive impact, even without the participation of major powers such as China, Russia, and the United States (US).

As of 1 August 2017, there are 102 States Parties to the Convention on Cluster Munitions while another 17 signatories still must ratify to become fully bound by its provisions. Since the publication of Cluster Munition Monitor 2016 in September 2016, Madagascar and Benin have ratified the Convention on Cluster Munitions, both in 2017. The last country to join or “accede” was Cuba in April 2016.

Non-signatories continue to demonstrate strong interest in and support for the convention as seen by their December 2016 votes for the second UN General Assembly (UNGA) resolution promoting implementation of the convention. A total of 141 countries, including 32 non-signatories, voted in favor of this resolution, which calls on all states outside the convention to join “as soon as possible.” Russia and Zimbabwe were the only states to vote against it as they did previously on the first UNGA resolution on the convention in 2015. The 39 countries that abstained on the 2016 resolution were all non-signatories with the exceptions, again, of signatories Cyprus and Uganda.

There have been no reports or allegations of any States Parties engaging in new use or other activities prohibited by the Convention on Cluster Munitions since 2008.

New use of cluster munitions caused civilian harm in non-signatories Syria and Yemen during the reporting period. Cluster munition attacks by Syrian government forces on opposition-held areas continued unabated throughout 2016 and the first half of 2017 in cooperation with Russia, which has participated in a joint military operation with the government since September 2015. Russian Foreign Minister Sergey Lavrov provided a position paper on cluster munitions in Syria in December 2016 that did not explicitly deny or admit to Russia’s involvement in the cluster munition attacks, but made a general claim that cluster munitions have been used in accordance with international humanitarian law and not indiscriminately.

In Yemen, there were fewer cluster munition attacks in the reporting period by a Saudi Arabia-led coalition of states that has conducted a military operation since March 2015. The decrease comes after strong public outcry, global media coverage, and widespread condemnation.

There is also evidence that cluster munitions may have been used in Iraq and Libya since July 2016, but it has not been possible to verify the alleged use.

To date, 28 States Parties have destroyed their stocks of cluster munitions, all well in advance of the convention’s eight-year deadline. Collectively, States Parties have destroyed 1.4 million cluster munitions containing more than 175 million submunitions. This represents the destruction of 97% of the total reported global stocks of cluster munitions and 98% of the total number of submunitions declared by States Parties.

In 2016 alone, three States Parties destroyed 56,171 cluster munitions and 2.8 million submunitions. Spain and Switzerland are working to complete the destruction of their remaining stocks during 2018, while Slovakia has already destroyed more than 20% of its cluster munition stocks since starting in 2015 and is on track to complete destruction well in advance of its deadline.

However, no State Party has completed destruction of its cluster munition stocks since the publication of Cluster Munition Monitor 2016. Worryingly, 10 States Parties with stocks have not started destruction any of their cluster munition stocks in the past year, and several have indicated they will require financial and technical assistance to do so. Moreover, signatories with stocks, such as Cyprus, Indonesia, and Nigeria, have taken few, if any, steps to ratify the convention or declare and destroy their cluster munitions.

Specific implementation legislation to enforce the convention’s provisions has been enacted in 27 States Parties, while two-dozen more are in the process of adopting new legislation and another 32 have indicated that existing laws are sufficient to ensure their adherence. More than 80% of States Parties have provided initial transparency reports detailing the actions they are taking to implement and promote the convention.

This ban overview covers activities during the second half of 2016 and the first half of 2017, and sometimes to the end of July 2017 when data was available. The findings are drawn from detailed country profiles available from the Monitor website.[3]

Universalization

When the Convention on Cluster Munitions entered into force on 1 August 2010, becoming binding international law, 108 states had signed, of which 38 were States Parties legally bound by its provisions. Another 53 signatories have ratified since then and 11 countries have acceded. Both accession and ratification usually involve some form of parliamentary approval, typically in the form of legislation.

Accessions

Since the Convention on Cluster Munitions became binding international law in 2010, states can no longer sign, but instead must join through a process known as accession, which is essentially a process that combines signature and ratification into a single step.[4]

Since August 2010, the number of countries that are party to the convention has risen from 108 to 119, following accessions by 11 countries.[5] There have been no accessions since the publication of Cluster Munition Monitor 2016. The last country to accede to the convention was Cuba in April 2016.[6]

Ratifications

A total of 53 signatories have ratified the convention since August 2010 to become States Parties. This includes two states that have ratified since the publication of Cluster Munition Monitor 2016, both in 2017:Madagascar on 20 May and Benin on 10 July.[7]

Most of the 17 remaining signatories to the convention have committed to complete their ratification and many have conducted stakeholder consultations on the convention, but only a few appear to have parliamentary approval processes underway.[8]

Meetings and actions on cluster munitions

The Permanent Representative of the Netherlands to the Conference on Disarmament, Ambassador Henk Cor van der Kwast, presided over the Sixth Meeting of States Parties to the Convention on Cluster Munitions in Geneva, Switzerland, on 5–7 September 2016. A total of 86 countries attended this meeting (60 States Parties, eight signatories, and 18 non-signatories) in addition to UN agencies, the ICRC, and the Cluster Munition Coalition (CMC).[9] States Parties adopted a political declaration reaffirming their commitment to the convention and condemning “any use of cluster munitions by any actor, in conformity with Article 21.”[10] The declaration commits States Parties to “continue to call upon those who continue to use cluster munitions, as well as those who develop, produce, otherwise acquire, assist, encourage, and induce the production, stockpiling, retention, and transfer of these weapons, to cease immediately and to join as States Parties to the Convention.”[11]

This was the only international meeting of the convention in the reporting period.[12] However, the convention’s coordinating committee meets regularly and the implementation support unit has worked with the president of the Seventh Meeting of States Parties, Ambassador Michael Biontino of Germany, to convene four regional workshops aimed at encouraging universalization and implementation of the convention.

A total of 17 states from Sub-Saharan Africa attended the African Regional Workshop on the Universalization of the Convention on Cluster Munitions in Addis Ababa, Ethiopia, on 4–5 August 2016: six States Parties, eight signatories, and three non-signatories.[13] Participants agreed to an “Addis Ababa Commitment” that expresses their support for universalization of the convention and “to prioritize the enactment of new legislation” aimed at enforcing the convention’s provisions.[14]

From Southeast Asia, seven states participated in a regional seminar on “Cooperating to implement the Convention on Cluster Munitions” in Bangkok, Thailand, on 16–17 March 2017: one State Party, two signatories, and four non-signatories.[15] The seminar did not specifically address universalization of the convention but discussed country-specific issues, with presentations by Cambodia, Lao PDR, Malaysia, Philippines, Sri Lanka, and Thailand.[16]

Uganda co-hosted a seminar on the convention in Kampala on 29–30 May 2017, which nine African signatories attended as well as new State Party Madagascar.[17] States provided updates on their ratification efforts and discussed national implementation requirements, including transparency reporting, legislative measures, and implementation of the convention’s clearance obligations.[18]

A regional workshop on enhancing implementation of the Convention on Cluster Munitions in southeast Europe took place in Rakitje, Croatia, on 12–13 June 2017, with the participation of Croatia and two other States Parties from southeast Europe.[19] Participating states gave presentations on their work to implement the Convention on Cluster Munitions and discussed measures to enhance cooperation.[20]

In addition, in September 2016, New Zealand chaired a session on the Convention on Cluster Munitions at a regional meeting in Apia, Samoa, organized by the UN Regional Centre for Peace and Disarmament in Asia and the Pacific (UNRCPD) and attended by 10 Pacific island states.

At the Fifth Review Conference of the Convention on Conventional Weapons (CCW) in Geneva, held 12–16 December 2016, states endorsed a final declaration expressing “their strong determination to protect civilians from the deleterious humanitarian impact of cluster munitions.”[21] There have been no deliberations on cluster munitions at the CCW since November 2011, when the Fourth Review Conference failed to adopt a draft protocol on cluster munitions. This has left the Convention on Cluster Munitions as the sole international instrument dedicated to ending the suffering caused by cluster munitions. Only three states mentioned cluster munitions in their statements to the 2016 CCW Review Conference and there were no proposals to add cluster munitions back on the CCW’s program of work.[22]

The CMC continues its advocacy in support of the convention’s universalization and implementation. It provided small grants to 16 campaign members in 15 countries during 2016 as part of a program to support national campaigns.[23] The CMC issued an action alert in March 2017 to pressure Saudi Arabia to stop using cluster munitions in Yemen and accede to the Convention on Cluster Munitions. On 23 May 2017, CMC members participated in a Global Day of Action to Stop Explosive Investments, which included the launch in Tokyo of an updated PAX report on investments in producers of cluster munitions.[24]

The Permanent Representative of Germany to the Conference on Disarmament, Ambassador Michael Biontino, will serve as president of the convention’s Seventh Meeting of States Parties in Geneva on 4–6 September 2017.[25] Germany, as president, has held bilateral meetings with more than a dozen non-signatories that have produced and/or stockpiled cluster munitions, including Brazil, Saudi Arabia, Syria, and Ukraine.[26] The UN has received sufficient funds to allow the Seventh Meeting of States Parties to be held, but $44,620 was still owed to the Convention on Cluster Munitions, according to a UN summary of contributions issued 30 June 2017.[27]

UN General Assembly Resolution 71/45

Since 2015, a UNGA resolution on the Convention on Cluster Munitions has become a key barometer of support for its provisions.

On 5 December 2016, 141 states voted in favor of adopting UNGA Resolution 71/45 that calls on states outside the Convention on Cluster Munitions to “join as soon as possible.”[28] Non-signatories Russia and Zimbabwe were the only states to vote no, while 39 states abstained. No State Party abstained or voted no on the resolution, while Cyprus and Uganda were the only signatories to abstain.

A total of 32 non-signatories voted in favor of Resolution 71/45 and 37 non-signatories abstained from the vote.[29] Several of these states made detailed statements explaining their vote on the resolution and position on joining the Convention on Cluster Munitions.[30]

The 2016 resolution voting record was almost identical to that on the first UNGA resolution promoting implementation of the convention adopted on 7 December 2015. A total of 139 states voted in favor of UNGA Resolution 70/54, while two opposed (Russia and Zimbabwe) and 39 abstained, including signatories Cyprus and Uganda.[31] Non-signatories Algeria and Kyrgyzstan voted in favor of the 2016 UNGA resolution after abstaining from the 2015 vote.

Regional universalization developments

Support for the Convention on Cluster Munitions is strongest in Sub-Saharan Africa, where 31 of its 49 countries are States Parties and 12 are signatories.[32] As of 1 August 2017, Madagascar and Benin were the only signatories in the world to ratify the convention this year. The Democratic Republic of the Congo’s parliament approved ratification of the convention in 2013, while national assemblies in Liberia and Uganda are considering draft ratification legislation.[33] Other signatories from Sub-Saharan Africa have expressed their desire to ratify and several have undertaken stakeholder consultations on the matter.[34] None of the seven non-signatories from Sub-Saharan Africa took any major steps to join the convention in the reporting period. In April 2017, Gabon told the Monitor that it does not intend to accede to the convention “in the immediate future.”[35]

There is also strong support for the convention throughout the Americas, where 24 of the 35 countries are States Parties and Haiti and Jamaica have signed but not ratified.[36] The region’s nine non-signatories include Brazil and the US, which are vocally opposed to the convention. The affirmative votes on the UNGA resolution by Caribbean non-signatories the Bahamas, Barbados, Dominica, Saint Lucia, and Suriname indicates they will likely join the convention at some point in the future.

In Europe, the Caucasus, and Central Asia, support for the convention is strongest in the European Union (EU), which accounts for 21 States Parties to the convention.[37] The six EU member states that have not signed the convention—Estonia, Finland, Greece, Latvia, Poland, and Romania—have abstained rather than vote yes or no on the UNGA resolution.[38] EU member state and signatory Cyprus also abstained on the resolution and its parliament made no effort to approve ratification during the reporting period. Of the 54 countries in the region, 34 are States Parties to the convention, but not Belarus, Russia, Serbia, Turkey, Ukraine, or any countries from the Caucasus or Central Asia.[39]

Only 10 of the 40 states in the Asia-Pacific region are States Parties to the Convention on Cluster Munitions.[40] Signatories Indonesia and the Philippines still have not concluded their years-long stakeholder consultations on the convention or introduced ratification legislation into their respective parliaments for consideration and approval.

The convention has received the least support in the Middle East and North Africa region, which has four States Parties: Iraq, Lebanon, Palestine, and Tunisia.[41] Non-signatories Algeria, Jordan, and Libya voted in favor of the 2016 UNGA resolution on the convention while the other non-signatories either abstained or were absent.[42]

Use of Cluster Munitions

Summary of states that have used cluster munitions and locations used[43]

Global overview

Cluster munitions have been used by at least 21 governments in 40 countries and four disputed territories since the end of World War II, as detailed in the following table and the timeline of cluster munition use at the end of this chapter. Almost every region of the world has experienced cluster munition use at some point over the past 70 years, including Southeast Asia, Southeast Europe, the Caucasus, the Middle East and North Africa, Sub-Saharan Africa, and Latin America.

Most states outside the convention have never used cluster munitions.[44] Despite rhetoric to the contrary, only Israel, Russia, and the US can be considered major or prolific users and producers of cluster munitions.[45]

Article 1 of the Convention on Cluster Munitions contains the convention’s core preventive measures designed to eliminate future humanitarian problems from cluster munitions, most crucially the absolute ban on the use of cluster munitions. Several past users of cluster munitions are now States Parties to the convention and have relinquished any use of these weapons under any circumstances.[46]

There have been no confirmed reports or allegations of new use of cluster munitions by any State Party to the convention.

Cluster munitions have been used in seven non-signatories to the convention since its August 2010 entry into force, including Cambodia (2011), Libya (2011 and 2015), South Sudan (2014), Sudan (2012 and 2015), Syria (2012–present), Ukraine (2014–2015), and Yemen (2015–present).[47]

In this reporting period (July 2016–July 2017), cluster munitions were used in Syria and Yemen, as summarized below. There is also evidence that cluster munitions may have been used in Iraq and Libya, but it was not possible to verify the alleged use.

In September 2016, States Parties to the Convention on Cluster Munitions issued a joint declaration stating that they “condemn any use by any actor” and expressing deep concern at “any and all allegations, reports or documented evidence of the use of cluster munitions, most notably in Syria and Yemen in the past year.”[48]

New use in Syria

The government of Syria has denied possessing or using cluster munitions, but its armed forces are responsible for the bulk of the more than 600 cluster munition attacks recorded in 12 of Syria’s 14 governorates in the five-year period to mid-July 2017. At least 13 types of air-dropped and ground-launched cluster munitions have been used in Syria, as shown in the following table.

Types of cluster munitions used in Syria since 2012

Evidence recorded by local activists, journalists, first responders, medical personnel, and others points to at least 238 separate attacks using cluster munitions in Syria between August 2016 and July 2017.[49] Previously, Cluster Munition Monitor 2016 reported at least 360 cluster munition attacks between July 2012 and July 2016 in multiple locations across all except two of the country’s 14 governorates.[50] Russia began its joint operation with Syrian government forces on 30 September 2015 and the past year has seen a more than 200% increase in the use of cluster munitions in Syria.[51]

All cluster munitions used in Syria since 2012 were manufactured by the Soviet Union or its successor Russia with two exceptions.[52] When and how the Syrian government obtained these cluster munitions and in what quantities remains unknown.[53] Of the cluster munition remnants that could be identified from 238 attacks in the reporting period, 115 involved the use of AO-2.5RT submunitions and 65 used ShOAB-0.5 submunitions.

In a three-page position paper attached to a December 2016 letter sent to Human Rights Watch by the Russian foreign minister, Russia did not explicitly deny or admit to its involvement in the use of cluster munitions in Syria.[54] Rather, it made the general claim that cluster munitions have been used in accordance with international humanitarian law and not indiscriminately in Syria. Previously, in December 2015, the Russian Defence Ministry stated that “Russian aviation does not use [cluster munitions]” and that “there are no such munitions at the Russian air base in Syria.”[55]

Russia’s position paper states, “no cases of indiscriminate use of air weapons have been registered so far in the course of the counter-terrorist operation in Syria” and concludes that “given all these elements we consider the question of the involvement of the Russian military personnel in the cases of indiscriminate CMs [cluster munitions] use in Syria mentioned in your letter totally inappropriate.”[56] In the paper, Russia criticizes the research findings on the use of cluster munitions in Syria as based on “unverified, unsubstantiated, and at time [sic] even misleading information.”

There is abundant evidence that Syrian government forces have used RBK-series air-dropped cluster bombs since mid-2012, when the government began its air campaign on opposition-held areas.[57] In 2012, markings on cluster munitions indicated they were produced in the 1970s and 1980s, while since September 2015, most bear production dates from 1989 into the early 1990s.[58] More advanced RBK-500 SPBE bombs containing SPBE sensor-fuzed submunitions and a ground-fired 240mm 3-O-8 mortar projectile have been used since Russia entered into its joint operation with Syrian government forces at the end of September 2015.[59]

Ground-launched cluster munitions have been used since government forces first used multi-barrel rocket launchers to deliver 122mm SAKR cluster munition rockets containing DPICM submunitions at the end of 2012.[60] In early 2014, Syrian government forces began to use 9M55K and 9M27K-series surface-to-surface rockets containing 9N235 submunitions equipped with self-destruct mechanisms.[61]

In July 2014, the first Islamic State (IS) cluster munition use was documented during its advance on Ayn al-`Arab/Kobani, involving a DPICM-like submunition with a distinctive red nylon ribbon called “ZP-39.”[62] There have also been multiple examples of use of 9M79-series Tochka ballistic missiles.

As the Syria conflict deepens, it is not possible to determine with confidence if armed groups other than IS have used cluster munitions. However, there is evidence that opposition forces have repurposed unexploded submunitions for use in air-delivered and ground-emplaced improvised explosive devices (IEDs). When activated by their victim, such devices are considered antipersonnel landmines prohibited by the Mine Ban Treaty.[63]

The US and its coalition partners have not used cluster munitions in the “Operation Inherent Resolve” military action against IS forces that started in 2014 in Syria and Iraq.[64]

The civilian harm caused by the use of cluster munitions in Syria has attracted widespread media coverage, public outcry, and condemnations from more than 140 states.[65] More than 40 of these countries have made national statements condemning the use in Syria, including by the foreign ministers of States Parties Austria, Belgium, Costa Rica, Croatia, Denmark, France, Germany, Mexico, Netherlands, Norway, Sweden, and the UK.[66] US Secretary of State Rex Tillerson condemned the Syrian government’s use of “cluster bombs and other types of weapons that are intended to maim and kill in the most horrific ways” during an April 2017 press briefing in Moscow with the Russian foreign minister.[67]

New use in Yemen

On 26 March 2015, a Saudi Arabia-led coalition began a military operation in Yemen against Ansar Allah (Houthi) and their allied forces that continued as of 1 August 2017, despite multiple ceasefire agreements in 2016 and repeated calls for ceasefire agreements in the first half of 2017.[68] None of the states participating in the Saudi-led coalition—Bahrain, Egypt, Jordan, Kuwait, Morocco, Pakistan, Sudan, and the United Arab Emirates (UAE)—are party to the Convention on Cluster Munitions.

Human Rights Watch, Amnesty International, and others have documented evidence of at least 23 cluster munition attacks in the conflict involving the use of seven types of air-delivered and ground-launched cluster munitions made in three countries, as the following table shows.

In the second half of 2016 and the first half of 2017, fewer instances of cluster munition use were recorded in Yemen compared to the previous period. The Saudi-led coalition used Brazilian-made ASTROS II cluster munition rockets in Saada governorate on at least three locations, most recently in February 2017, according to investigations by Amnesty International and Human Rights Watch.[69] CBU-105 Sensor Fuzed Weapons were used in a 5 October 2016 attack on the coastal village of al-Hayma.[70]

There were allegations of more cluster munition use in Yemen during the second half of 2016 and first half of 2017, but it was not possible to verify the evidence or conclusively determine responsibility for the attacks.[71] While other cluster munition use likely went unrecorded, overall there were fewer cluster munition attacks in Yemen compared to the widely condemned attacks of 2015 and the first half of 2016 using various types of cluster munitions.

On 15 June 2017, the European Parliament (EP) adopted a resolution condemning the Saudi-led coalition airstrikes in Yemen, including its use of cluster munitions. It adopted similar resolutions on 25 February 2016 and 9 July 2015 condemning the coalition’s use of cluster munitions in Yemen.[72]

Between April 2015 and October 2016, the Saudi Arabia-led coalition used CBU-105 Sensor Fuzed Weapons in seven attacks.[73] The CBU-105 is the only cluster munition still exported by the US, but only on the condition that they are not used in civilian areas. The weapon must also have a failure rate that results in less than 1% unexploded ordnance.[74] The UAE has denied using CBU-105 Sensor Fuzed Weapons in Yemen.[75] Saudi Arabia’s coalition spokesperson Brig. Gen. Ahmed Asiri said the coalition used CBU-105 Sensor Fuzed Weapons once, in April 2015, but not in a populated area and claimed they are not prohibited weapons.[76]

In May 2016, the Obama administration suspended US cluster munition transfers to Saudi Arabia following reports of civilian harm in Yemen.[77] Cluster munitions are not part of major 2017 arms deals by the US with Saudi Arabia. On 30 August 2016, CBU-105 manufacturer Textron Systems announced that it is stopping its production of the weapon, effectively ending US production of cluster munitions as it was the last producer.[78]

Cluster munitions used in Yemen since April 2015[79]

Investigations by Amnesty International showed coalition use of UK-made BL755 cluster munitions remnants in 2015 and the first half of 2016.[80] In December 2016, Saudi Arabia finally admitted to using UK-produced cluster munitions in Yemen and said the coalition would no longer use them.[81] This marked the first time that UK-made cluster munitions have been used since the Convention on Cluster Munitions, to which the UK is party, took effect in 2010.[82] The UK rejected evidence of Saudi-led coalition use of cluster munitions in Yemen until December 2016, when British Defence Minister Michael Fallon admitted in parliament that the coalition had used “a limited number” of UK-supplied cluster munitions in the conflict.[83] The UK has publicly disclosed that it last transferred BL755 cluster munitions to Saudi Arabia in 1989, prior to the UK’s adoption of the convention.[84]

Alleged use in Libya

Evidence continues to emerge indicating that Libyan National Army (LNA) forces used cluster munitions in 2016 and the first half of 2017. An aviation-focused blog reported the following incidents:

• Photographs published online in March 2016 and credited to the LNA indicate LNA forces may have used cluster munitions at least twice that month.[85]
• A photograph reportedly taken 15 August 2016 at Benina airbase in Benghazi shows an RBK-250–270 PTAB 2.5M cluster bomb mounted on a MiG-21 fighter aircraft.[86]
• Photographs reportedly taken on three different days in September 2016 show RBK-250 cluster bombs being mounted on a Mi-8t helicopters and a MiG-21 aircraft of the LNA Air Force. Reportedly these aircraft then flew sorties to the Benghazi enclave of Ganfouda.[87]
• A photograph reportedly taken on 4 February 2017 at the Benina airbase shows at least seven RBK 250 PTAB-2.5M and RBK-250-275 AO-1SCh lying on the tarmac. The “bombing location” is listed as “Benghazi - al-Sabri.”[88]
• Two videos reportedly taken at Benina airbase on 3 March 2017 show LNA technicians mounting two RBK-250 cluster bombs on two LNA aircraft that then allegedly flew sorties to Brega, Ras Lanuf, and Sidra.[89]

Further evidence of cluster munition use in Libya may have gone unrecorded due to a lack of media and independent reporting from the ground.

The Monitor was not able to independently verify this evidence and therefore cannot confirm cluster munition use.

Alleged use in Iraq

In the reporting period, there was one report of IS forces using cluster munition rockets containing DPICM-like submunitions against Iraqi government forces near Mosul in February 2017, killing one soldier.[90] The Monitor could not independently verify this evidence and cannot confirm the use. Previously, IS used cluster munition rockets in 2014 during its advance on the Syrian town of Kobane.[91]

Unilateral restrictions on use

Several states outside the Convention on Cluster Munitions have imposed restrictions on the possible future use of cluster munitions.

The US maintains that cluster munitions have military utility, but it has not used them since 2003 in Iraq, with the exception of a single strike in Yemen in 2009. A June 2008 US Department of Defense directive requires that any US use of cluster munitions before 2018 that results in a 1% or higher unexploded ordnance (UXO) rate must be approved by a “Combatant Commander,” a high-ranking US military official. After 2018, the US will no longer use cluster munitions that result in more than 1% UXO.

Romania has stated it restricts the use of cluster munitions to exclusively on its own territory. Poland has stated it would use cluster munitions for defensive purposes only, and does not intend to use them outside its own territory. Estonia and Finland have made similar declarations.

Non-state armed groups

Due to the relative complexity of cluster munitions and their delivery systems, very few non-state armed groups (NSAGs) have used them.

Government forces used cluster munitions against NSAGs in Syria and Yemen in the second half of 2016 and into 2017. There were allegations of use by NSAGs in Iraq by IS and Libya by the armed forces of General Hiftar. In the past, NSAG use of cluster munitions has been recorded in Afghanistan (by the Northern Alliance), BiH (by Croat and Serb militias), Croatia (by a Serb militia), Israel (by Hezbollah), Syria (by IS), and Ukraine (by opposition forces).[92]

Production of Cluster Munitions

A total of 34 states have developed or produced more than 200 types of cluster munitions, of which 18 ceased manufacturing cluster munitions prior to or upon joining the Convention on Cluster Munitions.[93]

Producers 

Sixteen countries are believed to produce cluster munitions or reserve the right to do so, as listed in the following table. None of these states have joined the Convention on Cluster Munitions. Asia and Europe account for most of producer states, with six and five producers, respectively.

Cluster munition producers

Due to a lack of transparency and available data, it is not clear if cluster munitions were produced in all these countries in 2016 or the first half of 2017. Greece, Romania, Singapore, and Turkey have indicated no active production, but the Monitor continues to list them as producers as it is unclear if they have adopted a new policy forswearing any future production of cluster munitions.

On 30 August 2016, CBU-105 manufacturer Textron Systems Corporation announced that it is stopping its production of the weapon, which are manufactured for each sales order in accordance with the delivery schedule.[94] In a filing with the US Securities and Exchange Commission, Textron announced it has discontinued production of the CBU-105 because of reduced orders, stating that “the current political environment has made it difficult” to obtain sales approvals from the executive branch and Congress.[95] While the US government has yet to prohibit US production of cluster munitions, Textron’s announcement marks the effective end of US cluster munition production as it was the last manufacturer of these weapons.[96]

Previously, in November 2015, the private company Singapore Technologies Engineering (STE) announced that it has ceased production of cluster munitions.

The Monitor will continue to list Singapore and the US as producers until they formally commit to not acquire cluster munitions from their domestic industry.

Some cluster munition producers have established specific standards aimed at addressing the weapon’s failure rate and resulting UXO:

• South Korea in 2008 issued a directive requiring that in the future it would only acquire cluster munitions with self-destruct mechanisms and a 1% or lower failure rate.[97]
• According to US policy, cluster munitions produced after 2005 must have a UXO rate of less than 1%.[98]

Former producers 

Under Article 1(1)(b) of the Convention on Cluster Munitions, States Parties undertake to never develop, produce, or acquire cluster munitions. There have been no confirmed instances of new production of cluster munitions by any of the convention’s States Parties or signatories since the convention took effect in August 2010.

Eighteen states have ceased the production of cluster munitions, as shown by the following table. All are States Parties to the Convention on Cluster Munitions except non-signatory Argentina, which has indicated that it does not intend to produce cluster munitions in the future.

Former producers of cluster munitions

Several States Parties have provided information on the conversion or decommissioning of production facilities in their Article 7 transparency reports, including France, Japan, Slovakia, Sweden, and Switzerland.[99]

Transfer of Cluster Munitions

The true scope of the global trade in cluster munitions is difficult to ascertain due to the overall lack of transparency on arms transfers. Despite this challenge, the Monitor has identified at least 15 countries that have in the past transferred more than 50 types of cluster munitions to at least 60 other countries.[100] 

Since joining the Convention on Cluster Munitions, no State Party is known to have transferred cluster munitions other than for the purposes of stockpile destruction or for research and training purposes.[101] States Parties Chile, France, Germany, Moldova, Slovakia, Spain, and the UK exported cluster munitions before they adopted the Convention on Cluster Munitions.

While the historical record is incomplete and there are large variations in publicly available information, the US has probably been the world leader in exports, having transferred hundreds of thousands of cluster munitions containing tens of millions of submunitions to at least 30 countries and other areas.[102] Cluster munitions of Russian/Soviet origin are reported to be in the stockpiles of at least 36 states, including countries that inherited stocks after the dissolution of the USSR.[103] The full extent of China’s exports of cluster munitions is not known, but unexploded submunitions of Chinese origin have been found in Iraq, Israel, Lebanon, and Sudan.

Non-signatories Brazil, Israel, South Korea, Turkey, Ukraine, and the US are known to have exported cluster munitions since 2000. In May 2016, the Obama administration suspended transfers of US cluster munitions to Saudi Arabia after reports of their use in civilian areas of Yemen.[104]

Non-signatories Georgia, India, Oman, Pakistan, Saudi Arabia, Singapore, South Korea, Taiwan, Turkey, and the UAE are among the recipients of cluster munitions exports since 2005.

At least two states that have not joined the Convention on Cluster Munitions have enacted a partial or complete export moratorium: Singapore and the US. 

Stockpiles of Cluster Munitions and their Destruction

Countries that have stockpiled cluster munitions[105]

Cluster munitions declared by States Parties[106]

Global stockpiles 

The Monitor estimates that prior to the start of the global effort to ban cluster munitions, 91 countries stockpiled millions of cluster munitions containing more than one billion submunitions, as shown in the following table.[107] At least 30 of these countries have now destroyed their stockpiled cluster munitions, while 13 States Parties to the convention still have stocks to destroy.

Stockpiles possessed by States Parties

A total of 41 States Parties have stockpiled cluster munitions at some point in time, of which 28 have now completed destruction of those stocks.

According to available information, at one point 32 States Parties stockpiled nearly 1.5 million cluster munitions containing more than 178 million submunitions, as shown in the above table.

Two more States Parties have been added to this table since Cluster Munition Monitor 2016, after they declared cluster munition stocks in their Article 7 reports:

• Cuba reported a stockpile in March 2017 of 1,856 air-dropped cluster munitions of Soviet origin and an unspecified quantity of submunitions.[108]
• Cameroon reported a stockpile of six BLG-66 Belouga cluster bombs made in France containing 906 submunitions.[109]

Five States Parties that have or are believed to stockpile cluster munitions are not listed in the table above due to insufficient information. Republic of the Congo, Guinea, Guinea-Bissau, and South Africa have yet to formally report the status of stockpiled cluster munitions by providing initial Article 7 transparency reports. Honduras submitted its report on 8 March 2017, but did not report the stockpile it has destroyed, probably because it destroyed the cluster munitions prior to entry into force.[110]

Afghanistan and Iraq have reported the completion of stockpile destruction, but did not provide a specific date of completion or information on types and quantities destroyed. Both countries continue to report the discovery and destruction of stocks of cluster munitions believed to have been abandoned in arms caches.

States Parties that never stockpiled 

A total of 47 States Parties have confirmed never stockpiling cluster munitions, most through a direct statement in their transparency report for the convention.[111] Since September 2016, Bolivia, Mauritius, and Niger have submitted initial transparency reports confirming they have never possessed any stockpiled cluster munitions.

Stockpiles possessed by signatories 

At least five signatories to the Convention on Cluster Munitions have stockpiled cluster munitions:

• Angola stated in 2010 that its entire stockpile had been destroyed and its armed forces no longer possessed cluster munitions, but it has yet to make an official declaration that all stocks of cluster munitions were destroyed.[112]
• The Central African Republic stated in 2011 that it had destroyed a “considerable” stockpile of cluster munitions and no longer had stocks on its territory.[113]
• Cyprus transferred 3,760 GRM 20 mortar projectiles and 2,559 M20G submunitions to State Party Bulgaria in 2014 for stockpile destruction, which has not yet commenced according to Bulgaria.[114]
• Indonesia has acknowledged stockpiling cluster munitions, but has not disclosed information on the types and quantities possessed.
• A Nigerian official said in 2012 that its armed forces stockpile BL755 cluster bombs.[115] In October 2015, Nigeria alleged that Boko Haram has been using BLG-66 cluster munitions recovered from arms caches.[116]

Stockpiles possessed by non-signatories 

It is not possible to provide a global estimate of the quantity of cluster munitions currently stockpiled by non-signatories to the Convention on Cluster Munitions as too few have disclosed information on the types and quantities possessed.

In 2011, the US said its stockpile was comprised of “more than 6 million cluster munitions.”[117] However, the US appears to have made significant progress since 2008 in removing cluster munitions from its active inventory and placing them in the demilitarization inventory for destruction.[118]

Georgia completed the destruction of 844 RBK-series cluster bombs containing 320,375 submunitions in 2013; it used Israeli-made cluster munition rockets during the 2008 conflict with Russia.[119] Greece and Ukraine have disclosed partial figures on their respective stockpiles of cluster munitions.[120]

Stockpile destruction

Cluster munitions destroyed by States Parties (as of 31 December 2016)[121]Note: Italics indicate States Parties that have not yet completed stockpile destruction.

Under Article 3 of the Convention on Cluster Munitions, each State Party is required to declare and destroy all stockpiled cluster munitions under its jurisdiction or control as soon as possible, but no later than eight years after entry into force for that State Party.

The convention’s States Parties have collectively destroyed 1.4 million cluster munitions containing more than 175 million submunitions, as shown in the above table.[122] This represents the destruction of 97% of the total reported global stocks of cluster munitions and 98% of the total number of submunitions declared by States Parties.

Destruction completed 

All States Parties that have completed destruction of their cluster munitions stocks did so well in advance of the convention’s eight-year deadline. With more than half a million cluster munitions, Germany reported the highest number of stocks of any State Party, but destroyed them all more than two years in advance of its 1 August 2018 deadline.[123]

Of the 28 States Parties that have completed destruction of their stockpiled cluster munitions, four destroyed their stocks before the convention’s August 2010 entry into force: Ecuador in 2004, Colombia in 2009, and Moldova and Norway in July 2010.

In the period since then, 20 States Parties have completed their stockpile destruction obligation under the convention:

• Austria, Belgium, Czech Republic, and Montenegro in the last four months of 2010
• BiH, Hungary, and Portugal in 2011;
• The Netherlands in 2012;
• Chile, Côte d’Ivoire, Macedonia FYR, and the UK in 2013;
• Canada and Denmark in 2014;
• Germany, Italy, Japan, Mozambique, and Sweden in 2015; and
• France in 2016.

No States Parties completed the destruction of their cluster munition stocks in the second half of 2016 or first half of 2017.

States Parties Afghanistan, Republic of the Congo, Honduras, and Iraq report or state that they have completed stockpile destruction, but did not specify the date of completion or the total quantity destroyed.[124]

Stockpile destruction by year since entry into force

Destruction underway 

During 2016, three States Parties destroyed 56,171 cluster munitions and nearly 2.8 million submunitions, as shown in the following table. 

Cluster munitions destroyed by States Parties in 2016

Three States Parties are in the process of stockpile destruction:

• Slovakia destroyed 163 cluster munitions and 11,666 submunitions prior to the convention’s 1 January 2016 entry into force for the country and destroyed a futher 92 cluster munitions and 4,550 submunitions in 2016.[125] This represents nearly 21% of its total declared stocks of cluster munitions and 5% of the submunitions. Slovakia is on track to complete destruction well in advance of its 1 January 2024 deadline.
• Spain reported in April 2017 a revised stockpile total of 2,095 MAT-120 cluster munitions and 61,005 submunitions.[126] It destroyed 669 cluster munitions and 14,040 submunitions in 2016 and has committed to destroy the remaining stocks by its 1 August 2018 deadline.
• Switzerland is on track to complete destruction in 2018, in advance of its 1 January 2021 deadline. By the end of 2016, Switzerland had destroyed a total of 177,152 cluster munitions and 9,879,347 submunitions, which represents 86% of its original stockpile of cluster munitions and nearly 81% of its original stockpile of submunitions.

Ten States Parties with cluster munition stockpiles did not destroy any in the reporting period:

• In April 2017, Botswana reported that it has requested assistance from Norwegian People’s Aid to destroy its stockpiled cluster munitions
• Bulgaria reported in June 2017 that a stockpile destruction program by the Bulgarian Armed Forces, managed by the NATO Support and Procurement Agency, was suspended in January 2017 because Expal Bulgaria, the contractor selected, “could not meet the criteria for authorization under the Bulgarian legislation.”[127] Bulgarian authorities are now exploring “new options for the destruction of the cluster munitions” by the country’s 1 October 2019 deadline.
• Cameroon has not indicated if it has a plan in place to destroy its stockpile of cluster munitions by its 1 January 2021 deadline.[128]
• Croatia’s stockpile destruction deadline is 1 August 2018. It did not destroy any cluster munition stocks in 2016 after making progress on its stockpile destruction in 2015.[129]
• Cuba reported a stockpile in its initial transparency report, provided in March 2017.[130] It has committed to destroy the stocks by its 1 October 2026 deadline in accordance with relevant environmental and safety measures and applicable national and international standards and procedures.
• Guinea is believed to stockpile cluster munitions, but has not provided its Article 7 transparency report for the convention, originally due in September 2015.
• Guinea-Bissau has requested financial and technical assistance to destroy its stockpiled cluster munitions by the 1 May 2019 deadline. It still has not submitted a transparency report for the convention—due in 2011—listing the types and quantities.[131]
• Peru completed a “preparation and testing” phase for stockpile destruction in May 2016.[132] It stated in June 2017 that Norwegian People’s Aid is scheduled to visit the country in August 2017 to provide a training on how to safely destroy the stocks and then the destruction process will begin so that it can be completed by the 1 March 2021 deadline.[133]
• Slovenia reported the completion of its stockpile destruction in 2011, but the Monitor has listed it as a stockpiler again after Bulgaria reported that 41,825 PAT794 submunitions transferred from Slovenia for stockpile destruction are still on Bulgarian territory and held by the company EXPAL Bulgaria.[134]
• South Africa has not submitted its initial Article 7 transparency report for the convention, originally due by 29 April 2016. In September 2016, South Africa told States Parties that it has a “small stockpile of aircraft-delivered cluster bombs and artillery-delivered cluster shells.”[135] It said that these stocks have been taken out of commission and “ring-fenced for planned disposal,” which it said it hoped to commence in the coming months.

Retention

Article 3 of the Convention on Cluster Munitions permits the retention of cluster munitions and submunitions for the development of training in detection, clearance, and destruction techniques, and for the development of counter-measures such as armor to protect troops and equipment from the weapons.

The CMC questioned the need for this provision when the convention was negotiated, as it saw no compelling reason to retain live cluster munitions and explosive submunitions for research and training purposes. In their transparency reports, statements and letters, and implementation legislation, most States Parties have expressed the view that there is no need to retain any live cluster munitions or explosive submunitions for training in detection, clearance, and destruction techniques, or for the development of counter-measures. This includes 21 States Parties that have stockpiled cluster munitions.[136]

Despite this, 11 States Parties—all from Europe—are retaining cluster munitions for training and research purposes, as shown in the following table. The quantity retained at the end of calendar year 2016 and quantity and types used or “consumed” for permitted purposes in this period are listed in the following table, which also notes the initial quantity of cluster munitions retained.

Cluster munitions retained for training (as of 31 December 2016)[137]

Germany remains the State Party with the highest number of retained cluster munitions, but it again reduced the total number after consuming the retained cluster munitions during explosive ordnance disposal (EOD) training in 2016. Czech Republic, France, Spain, and Switzerland also reduced the number of cluster munitions retained for training in 2016.

Switzerland reported a significantly reduced number of retained cluster munitions in April 2017, but it did not report if the cluster munitions were consumed in the course of training or destroyed as part of its ongoing stockpile destruction process.[138]

Italy, the Netherlands, Slovakia, and Sweden have yet to consume any of their retained cluster munitions.[139]

Czech Republic, Denmark, and Sweden are retaining individual submunitions only.

Most States Parties retaining cluster munitions for training have significantly reduced the number retained since making their initial declarations. This would indicate that the initial amounts retained were likely too high, but it is still not clear if current holdings constitute the “minimum number absolutely necessary” as required by the convention for the permitted purposes.

States Parties Australia and the UK initially retained cluster munitions, but have since destroyed and not replaced them. Some States Parties that have stockpiled cluster munitions—Chile, Croatia, and Moldova—have declared the retention of inert items that have been rendered free from explosives and no longer qualify as cluster munitions or submunitions under the convention.

 Transparency Reporting

Under Article 7 of the Convention on Cluster Munitions, States Parties are obliged to submit an initial transparency report within 180 days of the convention taking effect for that country. An updated report is due by 30 April each year thereafter, covering activities in the previous calendar year. The CMC encourages states to submit their transparency reports by the deadline and provide complete information, including definitive statements.[140]

According to the UN Office of Disarmament Affairs website, a total of 82 States Parties have submitted an initial transparency report for the convention as of 30 July 2017.[141] This represents 82% of States Parties for which the obligation applied at that time. This is almost the same rate of compliance as the previous year.[142]

Colombia, Cuba, Honduras, Mauritius, and Niger have provided initial transparency reports since the convention’s Sixth Meeting of States Parties in September 2016. Two State Parties have transparency reporting deadlines pending in 2018: Madagascar is due by 30 April, while Benin is due by 30 June.

A total of 18 States Parties have missed the deadline to submit their initial transparency reports, as listed in the following table.

Overdue initial Article 7 reports (as of 30 June 2017)

As of 30 June 2017, a total of 50 States Parties have submitted their annual updated transparency report covering activities in 2016.[143] Twenty-seven States Parties have yet to submit their annual updated reports, which were due by 30 April 2017.[144]

Prior to ratifying, Canada provided voluntary transparency reports for the convention in 2011–2014, while Palau provided reports in 2011 and 2016. DRC submitted voluntary reports in 2011, 2012, and 2014.

A small number of states have used voluntary Form J to report on actions to promote universalization and discourage use of cluster munitions, list cooperation and assistance support, or report on other important matters such as their position on interpretive issues.[145]

National Implementation Measures  

According to Article 9 of the Convention on Cluster Munitions, States Parties are required to take “all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions.”[146] The CMC urges all States Parties to enact comprehensive national legislation to enforce the convention’s provisions and provide binding, enduring, and unequivocal rules.

A total of 27 States Parties have enacted specific legislative measures to implement the convention’s provisions, as listed in the table below. Some enacted legislation prior to ratifying or acceding to the convention, often by combining the legislative approval process for both implementation and ratification/accession. A total of 11 states enacted implementing legislation prior to the convention’s August 2010 entry into force and 16 states have done so since then.

States with implementing legislation for the Convention on Cluster Munitions

No States Parties adopted implementing legislation for the convention in the second half of 2016 or first half of 2017. The last country to enact implementing legislation for the convention was Mauritius in June 2016.

Legislation under consideration 

At least 24 States Parties have stated that they are planning or are in the process of drafting, reviewing, or adopting specific legislative measures to implement the convention: Afghanistan, Antigua and Barbuda, Belize, Botswana, Burkina Faso, Burundi, Cameroon, Chad, Colombia, Republic of the Congo, Côte d’Ivoire, Ghana, Grenada, Lao PDR, Lebanon, Lesotho, Malawi, Mali, Niger, Seychelles, Sierra Leone, South Africa, Swaziland, and Zambia.

Existing law deemed sufficient 

At least 32 States Parties have indicated that their existing laws will suffice to enforce their adherence to the convention: Albania, Andorra, BiH, Chile, Costa Rica, Cuba, Croatia, Denmark, El Salvador, Guinea-Bissau, Holy See, Iraq, Lithuania, Macedonia FYR, Malta, Mauritania, Mexico, Moldova, Montenegro, Netherlands, Nicaragua, Palau, Paraguay, Peru, Portugal, San Marino, Senegal, Slovakia, Slovenia, Tunisia, Trinidad and Tobago, and Uruguay.

In the reporting period:

• Cuba reported sufficient existing legislation to ensure adherence to the convention in its initial Article 7 transparency report in March 2017.
• New Zealand reported new policy that requires investors to disclose lists of individual assets to help ensure that the funds are not used for production of cluster munitions.
• Switzerland adapted the Swiss Criminal Code and Military Criminal Code to criminalize the use of prohibited weapons as a war crime.

Status unknown 

The status of national implementation measures is unknown or unclear in the other States Parties, many of which have not provided an initial Article 7 transparency report.

Interpretive Issues 

During the Oslo Process and the final negotiations in Dublin, where the Convention on Cluster Munitions was adopted on 30 May 2008, it appeared that there was not a uniform view on some important issues related to interpretation and implementation of the convention. The CMC encourages States Parties and signatories that have not yet done so to express their views on the following issues of concern so that common understandings can be reached:

• The prohibition on assistance during joint military operations with states not party that may use cluster munitions (“interoperability”);
• The prohibitions on transit and foreign stockpiling of cluster munitions; and
• The prohibition on investment in production of cluster munitions.

Several States Parties and signatories to the convention have elaborated their views on these issues, including through Article 7 transparency reports, statements at meetings, parliamentary debates, and direct communications with the CMC and the Monitor. Several strong implementation laws provide useful models for how to implement certain provisions of the convention. Yet, as of 21 July 2016, more than three-dozen States Parties had not articulated their views on even one of these interpretive issues.[147]

More than 400 US Department of State cables made public by Wikileaks in 2010–2011 demonstrate how the US—despite not participating in the Oslo Process—made numerous attempts to influence its allies, partners, and other states on the content of the draft Convention on Cluster Munitions, particularly with respect to interoperability, and US stocks and foreign stockpiling.[148]

Interoperability and the prohibition on assistance

Article 1 of the convention obliges States Parties “never under any circumstances to…assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.” Yet during the Oslo Process, some states expressed concern about the application of the prohibition on assistance during joint military operations with countries that have not joined the convention. In response to these “interoperability” concerns, Article 21 on “Relations with States not Party to this Convention” was included in the convention. The CMC has strongly criticized Article 21 for being politically motivated and for leaving a degree of ambiguity about how the prohibition on assistance would be applied in joint military operations.

Article 21 states that States 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.” It does not, however, negate a State Party’s obligations under Article 1 to “never under any circumstances” assist with prohibited acts. The article also requires States Parties to discourage use of cluster munitions by those not party and to encourage them to join the convention. Together, Article 1 and Article 21 should have a unified and coherent purpose, as the convention cannot both require States Parties to discourage the use of cluster munitions and, by implication, allow them to encourage it. Furthermore, to interpret Article 21 as qualifying Article 1 would run counter to the object and purpose of the convention, which is to eliminate cluster munitions and the harm they cause to civilians.

The CMC’s position is therefore that States Parties must not intentionally or deliberately assist, induce, or encourage any activity prohibited under the Convention on Cluster Munitions, even when engaging in joint operations with states not party.

At least 37 States Parties and signatories have agreed that the convention’s Article 21 provision on interoperability should not be read as allowing states to avoid their specific obligation under Article 1 to prohibit assistance with prohibited acts.[149]

States Parties Australia, Canada, Japan, and the UK have indicated their support for the contrary view that the convention’s Article 1 prohibition on assistance with prohibited acts may be overridden by the interoperability provisions contained in Article 21:

• Australia’s Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 has been heavily criticized for allowing Australian military personnel to assist with cluster munition use by states not party. Section 72.41 of Australia’s implementing legislation “provides a defence to the offence provisions where prohibited conduct takes place in the course of military cooperation or operations with a foreign country that is not a party to the Convention.”[150] During joint or coalition military operations, Australian Defence Force personnel could help plan operations or provide intelligence for, and/or contribute logistical support to coalition members during which a state not party uses cluster munitions.[151]
• Canada’s Prohibiting Cluster Munitions Act 2014 has elicited similar criticism for its provisions allowing Canadian Armed Forces and public officials to “direct or authorize” an act that “may involve” a state not party performing activities prohibited under the convention during joint military operations.[152] In March 2015, the Chief of Defence Staff issued a directive to “provide direction on prohibited and permitted activities to [Canadian Armed Forces] personnel who might become involved in cluster munition related activities.”[153]
• Japan has been reluctant to publicly discuss its interpretation of Article 21.[154] However, in a June 2008 State Department cable, a senior Japanese official apparently told the US that Japan interprets the convention as enabling the US and Japan to continue to engage in military cooperation and conduct operations that involve US-owned cluster munitions.[155]
• The UK’s 2010 implementation law permits assistance with a number of acts prohibited under the convention if the assistance occurs during joint military operations.[156] In addition, the UK stated in 2011 that its interpretation of Article 21 is that “notwithstanding the provisions of Article 1 [prohibition on assistance], Article 21(3) allows States Parties to participate in military operations and cooperation with non-States Parties who may use cluster munitions. UK law and operational practice reflect this.”[157]

States Parties France, the Netherlands, and Spain have provided the view that Article 21 allows for military cooperation in joint operations, but have not indicated the forms of assistance allowed. Spain’s 2015 implementation law establishes that military cooperation and participation in military operations by Spain, its military personnel, or its nationals with states that are not party to the Convention on Cluster Munitions and that use cluster munitions is not prohibited.[158] After Spain’s opposition parties called for the draft legislation to prohibit Spain’s involvement at all times in military operations with other states that use cluster munitions, the draft legislation was adjusted to incorporate the positive obligations of Article 21(2) of the convention, requiring Spain to work for universalization and to discourage the use of cluster munitions.

Transit and foreign stockpiling

The CMC has stated that the injunction to not provide any form of direct or indirect assistance with prohibited acts contained in Article 1 of the Convention on Cluster Munitions should be seen as banning the transit of cluster munitions across or through the national territory, airspace, or waters of a State Party. The convention should be seen as banning the stockpiling of cluster munitions by a state not party on the territory of a State Party.

At least 33 States Parties and signatories have declared that transit and foreign stockpiling are prohibited by the convention.[159]

States Parties that have indicated support for the opposite view—that transit and foreign stockpiling are not prohibited by the convention—include Australia, Canada, Japan, the Netherlands, Portugal, Sweden, and the UK.

US stockpiling and transit 

States Parties Norway and the UK have confirmed that the US has removed its stockpiled cluster munitions from their respective territories. The UK announced in 2010 that there were “no foreign stockpiles of cluster munitions in the UK or on any UK territory.”[160] According to a Norwegian Ministry of Foreign Affairs official, the US removed its stockpiled cluster munitions from Norway in 2010.[161]

The US Department of State cables released by Wikileaks show that the US has stockpiled and therefore may still store cluster munitions in States Parties Afghanistan, Germany, Italy, Japan, and Spain, as well as in non-signatories Israel, Qatar, and perhaps Kuwait:

• A US cable dated December 2008 states, “The United States currently has a very small stockpile of cluster munitions in Afghanistan.”[162]
• Germany has not expressed clear views on the convention’s prohibition on foreign stockpiling of cluster munitions, but according to a December 2008 cable, it has engaged with the US on the matter of cluster munitions that may be stockpiled by the US in Germany.[163]
• Italy, Spain, and Qatar were identified by the US in a November 2008 cable as “states in which the US stores cluster munitions,” even though apparently Qatar “may be unaware of US cluster munitions stockpiles in the country.”[164] In its initial report for the convention Spain reported that it was informing non-signatories which it cooperates with in joint military operations of its international obligations prohibiting stockpiling of prohibited weapons on territory under its jurisdiction or control.[165]
• Japan maintains that US military bases in Japan are under US jurisdiction and control, so the possession of cluster munitions by US forces does not violate the national law or the convention. A December 2008 cable states that Japan “recognizes U.S. forces in Japan are not under Japan’s control and hence the GOJ [government of Japan] cannot compel them to take action or to penalize them.”[166]
• According to a cable detailing the inaugural meeting on 1 May 2008 of the “U.S.-Israeli Cluster Munitions Working Group (CMWG),” until US cluster munitions are transferred from the War Reserve Stockpiles for use by Israel in wartime, “they are considered to be under U.S. title, and U.S. legislation now prevents such a transfer of any cluster munitions with less than a one percent failure rate.”[167]

• According to a May 2007 cable, the US may store cluster munitions in Kuwait.[168]

Disinvestment

Several States Parties as well as the CMC view the convention’s Article 1 ban on assistance with prohibited acts as constituting a prohibition on investment in the production of cluster munitions. The Dubrovnik Action Plan adopted by States Parties at the convention’s First Review Conference in 2015 encourages the adoption of national legislation prohibiting investments in producers of cluster munitions.[169]

Since 2007, 10 States Parties have enacted legislation that explicitly prohibits investment in cluster munitions, as shown in the table below.[170]

Disinvestment laws on cluster munitions

Four States Parties enacted legislation on cluster munitions containing provisions on disinvestment prior to the convention’s 1 August 2010 entry into force, while six have adopted disinvestment laws in the period since.

No country enacted legislation relating to cluster munitions disinvestment in 2016 or the first half of 2017, but a bill presented in the Canadian Senate in December 2016 proposes an amendment to the country’s implementing legislation for the convention to explicitly prohibit investments.[171]

At least 28 States Parties and signatories to the convention have elaborated their view that investment in cluster munition production is a form of assistance that is prohibited by the convention: Australia, BiH, Cameroon, Canada, Colombia, Republic of the Congo, Costa Rica, Croatia, Czech Republic, DRC, France, Ghana, Guatemala, the Holy See, Hungary, Lao PDR, Lebanon, Madagascar, Malawi, Malta, Mexico, Niger, Norway, Rwanda, Senegal, Slovenia, the UK, and Zambia.

A few States Parties to the convention have expressed the contrary view that the convention does not prohibit investment in cluster munition production, including Germany, Japan, and Sweden.

Government pension funds in Australia, Ireland, France, New Zealand, Norway, Luxembourg, and Sweden have either fully or partially withdrawn investments, or banned investments, in cluster munition producers.

Financial institutions have acted to stop investment in cluster munition producers and promote socially responsible investment in Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, and the UK.

At least two companies in states not party to the convention have ceased production of cluster munitions, in part due to divestment and inquiries from numerous investors: US company Textron Systems announced in August 2016 it is stopping cluster munition production, while Singapore Technologies Engineering announced in November 2015 that it no longer manufactures cluster munitions and landmines.

CMC co-founder and member PAX continues to lead advocacy and research to encourage governments to legislate against investment in cluster munition producers and provide clear guidance to financial institutions and investors. PAX issued an updated report on global investment in cluster munition producers at a press conference in Tokyo in May 2017.[172]

Timeline of cluster munition use[173]