Ten-Year Review: State Party Australia ratified the convention on 8 October 2012, after enacting implementing legislation. It has participated in every meeting of the convention and has promoted its universalization, especially in Asia and the Pacific. Australia has condemned new use of cluster munitions in Syria and elsewhere.

According to its initial transparency report for the convention provided in 2013, Australia has not used, produced, or transferred cluster munitions and never possessed an operational stockpile. Australia initially retained cluster munitions for training and research purposes, but destroyed them in 2013.

Policy

Australia signed the Convention on Cluster Munitions on 3 December 2008, ratified on 8 October 2012, and the convention entered into force for the country on 1 April 2013.

Australia’s implementing legislation is the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, which also took effect on 1 April 2013.[1] Australia states the legislation and ban convention “are fully reflected in Australian Defence Force (ADF) doctrine, procedures, rules and directives.”[2] A joint directive by the Secretary of the Department of Defence and Chief of the Defence Force on 27 March 2013 instructed all defence personnel on compliance with the Act and ban convention.[3]

Australia submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 6 September 2013. It has provided annual updates since then, most recently in January 2020.[4]

Australia participated extensively in the Oslo Process that created the Convention on Cluster Munitions and its policy toward the prohibition on cluster munitions evolved significantly during that time.[5] Australia joined in the consensus adoption of the convention in Dublin on 30 May 2008 and signed in December 2008.

Australia has participated in every meeting of the convention, most recently the Ninth Meeting of States Parties in Geneva in September 2019. Australia attended the convention’s First Review Conference in Dubrovnik, Croatia in September 2015 and intersessional meetings in Geneva in 2011–2015.

Australia works to universalize the convention, especially in Asia and the Pacific, where it has supported regional workshops and other activities aimed at addressing cluster munitions and explosive remnants of war (ERW).[6] Cluster Munition Coalition (CMC) member SafeGround (formerly the Australian Network to Ban Landmines and Cluster Munitions) promotes Australia’s support for the Convention on Cluster Munitions and is surveying the impact of ERW in the Pacific, starting in the Solomon Islands.[7]

In December 2019, Australia voted in favor of UN General Assembly (UNGA) Resolution 74/62 promoting universalization and implementation of the convention.[8] It has voted for the annual resolution promoting the convention since it was first introduced in 2015.

In September 2019, Australia told States Parties that the use of cluster munitions “in current conflicts, including in Syria and allegations of new use in Libya … is particularly concerning given the disproportionate effect these weapons have on civilian populations.”[9] Australia has condemned the use of cluster munitions in Syria several times, and has voted in favor of multiple UN Human Rights Council resolutions condemning the use of cluster munitions in Syria, most recently in June 2020.[10] Australia has also voted in favor of UNGA resolutions condemning the use of cluster munitions in Syria, most recently in December 2019.[11]

In 2014, Australia’s Minister of Foreign Affairs described “reports of possible use of cluster munitions in South Sudan” as concerning and “contrary to the growing international consensus established by the Convention against the use of these indiscriminate weapons.”[12]

Interpretive issues

In correspondence, statements made during the Oslo Process, and in the legislative process to enact the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012, Australia has publicly elaborated its views on several important matters relating to its interpretation of the Convention on Cluster Munitions.

The CMC has described the 2012 implementing law as “extremely problematic” because it “allows its military personnel to assist with cluster munition attacks by states not party, and it creates explicit exceptions for transit across, and foreign stockpiling of cluster munitions in the country’s territory. The provisions not only run counter to the prohibition on assistance but also contravene Article 9, which requires penal sanctions for activities prohibited by the convention and ‘undertaken by persons or on territory under its jurisdiction or control.’ Such interpretations of the convention, which are in the minority, are contrary to both the language of the treaty and its underlying aim.”[13]

Joint military operations

During the Oslo Process, Australia supported the inclusion in the convention text of provisions on “interoperability” or military relations with states that have not joined the convention (Article 21).[14] In a December 2008 United States (US) diplomatic cable made public by Wikileaks in 2011, a senior Australian foreign affairs official reportedly informed US officials that “From a policy perspective, Australia would strongly wish to avoid any limitations on ADF involvement in tactical planning with US forces.”[15]

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.”[16] During joint or coalition military operations, ADF 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.[17]

In the view of the CMC, Section 72.41 of Australia’s implementing legislation may be interpreted to allow Australians to assist in the context of joint or coalition military operations with prohibited activities that run counter to the convention’s object and purpose as well as its prohibition on assistance. In 2012, the CMC expressed concern that the legislation “allows Australian troops to directly and actively assist in activities prohibited by the Convention during military operations with states not party to it, allowing its military personnel to help plan, give logistical support for, or provide intelligence for cluster munition attacks by states not party.”[18] The CMC believes a State Party can allow participation in joint military operations without permitting these forms of assistance.

In 2013, a government representative informed the Monitor that “Australia’s view regarding interoperability is a matter of public knowledge and has been consistent throughout the negotiations on the Convention to the present day. Section 72.41 of Australia’s implementing legislation is consistent with the provisions in Article 21 of the Convention.”[19] Upon Australia’s ratification of the convention in October 2012, the Minister for Foreign Affairs, the Minister for Defence, and the Attorney-General stated, “With this legislation, it is now an offence to use…and also to encourage others to engage with these dangerous weapons…The Convention and the Act will also apply to ADF personnel during military operations and ADF personnel serving alongside the defence forces of States not party to the Convention.”[20]

In 2011, the Minister of Defence, the Minister for Foreign Affairs, and the Attorney-General described interoperability as “central to the maintenance of Australia’s national security” and said “Australian Defence Force personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions, or to make the decision to do so. This includes while serving on combined operations with Defence forces of other countries, in combined headquarters, or on exchange with a foreign force.”[21]

In 2012, the Department of Foreign Affairs and Trade (DFAT) informed the Monitor that “ADF personnel involved in joint operations may call in fire support from forces of a State not party to the Convention, where they are aware that cluster munitions may be used. However, ADF personnel must not specifically request the use of cluster munitions where the choice of munitions is within their exclusive control.”[22] In 2012, the Attorney-General stated that “ADF personnel serving alongside defense forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements, which are applied through ADF doctrine, procedures, rules, and directives.”[23]

Transit and foreign stockpiling

Section 72.42 of Australia’s implementing legislation explicitly allows states not party to stockpile cluster munitions on Australian soil and permits them to transit cluster munitions through Australian ports and airspace. In the CMC’s view, transit and foreign stockpiling are activities banned under the prohibition on assistance of the Convention on Cluster Munitions.

Government representatives have often stated that foreign stockpiling of cluster munitions on Australian soil will not be allowed, despite the implementing legislation’s provisions explicitly allowing foreign stockpiling of cluster munitions in Australia. Australia’s 2013 transparency report states that as a matter of policy the government “will not approve the stockpiling of cluster munitions in Australia by foreign governments.”[24] The Minister for Foreign Affairs, the Minister for Defence, and the Attorney-General said in October 2012 that “Australia will not approve the stockpiling of cluster munitions in Australia by other countries.”[25] In June 2012, the Attorney-General stated that “the Government has not and will not authorise foreign stockpiles of cluster munitions in Australia.”[26] Before the November 2011 policy decision, Australian officials told the Monitor that the legislation permitted foreign stockpiling in Australia.[27]

Disinvestment

Australia’s implementing legislation does not include specific measures to prohibit investment in cluster munition production. In 2011, DFAT told the Monitor that the convention “does not expressly prohibit investment in companies that produce or manufacture cluster munitions,” but said “some acts of investment will fall within the scope of the conduct prohibited by Article 1” of the convention.[28] In 2010, the Attorney-General stated that prohibited activities includes where a person “invests in a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company.”[29] In 2011, the Attorney-General’s department stated “The intentional provision of financial assistance to an entity so that the entity can develop or produce cluster munitions will amount to an offence.”[30]

In 2011, Australia’s sovereign wealth fund disinvested its holdings in landmine and cluster munition manufacturers by excluding 10 companies from its investment portfolio.[31]

Australia is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.

Use, production, transfer, and stockpiling

In its Article 7 reports, Australia stated the “Australian Defence Force (ADF) has not used and does not use cluster munitions operationally.”[32]

Australia also reported that it “does not have and has never had a stockpile of cluster munitions for operational use.”[33] Before ratifying the convention, Australia stated several times that it has never possessed an operational stockpile of cluster munitions.[34]

In the initial transparency report, Australia disclosed that “in the 1970s and early 1980s Australia conducted the KARINGA project” which involved “design trials of an indigenous cluster munition, as well as operational test and evaluation trials.” According to the report, the trials “did not result in a production run” and “the KARINGA was not certified for operational employment, was never introduced into service, and has not been used in any operations.”[35] In 2010, a senior DFAT official told the Monitor that Australia tested approximately 10–20 cluster munitions and acquired “limited numbers” of US CBU-58 cluster bombs to test and “‘baseline’ the Karinga’s performance.”[36]

Retention

In 2013, Australia destroyed two cluster munitions and 276 explosive submunitions from the former Soviet Union that it initially retained for training.[37] Australia said the retained cluster munitions were “representative samples” of submunitions and dispensers of which only two bombs were “live.”[38]

Australia’s implementation legislation requires Ministerial authorization for the acquisition and retention of cluster munitions for training, counter-measures, and destruction purposes.[39]