Micheál Martin (Cork South Central, Fianna Fail)

The convention prohibits all types of cluster munitions that have ever been used in an armed conflict. Furthermore, following proposals made by the Irish delegation, the convention also prohibits explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft in the same way as it does cluster munitions proper. This is an extremely important provision which closes potential loopholes created by new technologies.

The convention provides that a state party's stockpiles of cluster munitions must be destroyed within eight years of the convention's entry into force for that state party. This period may, under exceptional circumstances, be extended. In view of the fact that some states may not have facilities suitable for destroying stockpiled cluster munitions, the transfer of cluster munitions to another state party for the purpose of destruction is permitted. Furthermore, the retention or acquisition of a limited number of cluster munitions and explosive submunitions for training purposes, as well as their transfer to another state party for such purposes, is permitted. The number of submunitions retained or acquired shall not exceed the minimum absolutely necessary and there is an obligation to report on the numbers retained or acquired and the use made of them.

With regard to the clearance of cluster munition remnants, such remnants in areas under the jurisdiction or control of a state party are to be cleared and destroyed within ten years of the convention's entry into force for that state party, or within ten years of the end of active hostilities in cases where such remnants arise after such entry into force. Provision is made for the extension of this deadline where circumstances warrant it.

An important feature of the convention is the onus it puts on state parties that have used cluster munitions against other states parties to assist in the clearance of cluster munition remnants. They are strongly encouraged to provide technical, financial, material or human resources assistance to the latter state party as well as providing the precise locations of any strike. This element of the convention, as the International Committee of the Red Cross has stated, establishes a broader norm so those who engage in armed conflict can no longer walk away from the long-term consequences of the munitions they use, leaving the burden to devastated local communities. The convention includes comprehensive provisions on assistance by state parties to cluster munition victims in areas under their jurisdiction or control. They should adequately provide age and gender sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for social and economic inclusion.

Article 6 of the convention includes detailed provisions regarding international co-operation and assistance. This will be most relevant to the obligations regarding stockpile destruction, clearance and destruction of cluster munition remnants and victim assistance. The article also stipulates that states in a position to do so shall provide technical, material and financial assistance to state parties affected by cluster munitions. Furthermore, a state party may seek assistance from the international community, including states parties, the UN and NGOs in developing a national action plan.

The provisions of the convention in regard to victim assistance have been acknowledged as setting a new benchmark in this area. Irish Aid is urgently examining how best to integrate this aspect into its funding and co-operation activities. Ireland is fully committed to support for victim assistance. A case in point is our dedication to the Ottawa Convention on anti-personnel land mines. In 2007 alone, we provided funding to 11 affected countries, including €1 million for integrated mine clearance projects in Laos.

The convention lays down detailed obligations regarding annual reporting by state parties on the implementation of their obligations. It also provides for meetings between the state parties. The first meeting must be convened within one year of the entry into force of the convention with subsequent meetings to be convened by the Secretary General of the United Nations annually until the first review conference.

Taking account of the fact that, at least initially, not all states will be party to the convention and that some states not party may wish to continue to use cluster munitions, provision is made in Article 21 for state parties to engage in military co-operation and operations with states not party to the convention that might engage in activities prohibited to a state party. This provision specifically does not authorise a state party to develop, produce or otherwise acquire cluster munitions, to itself stockpile or transfer cluster munitions, to itself use cluster munitions or to expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control. When considering this article, it should be noted that each state party is obliged to encourage states not party to the convention to become party to it and, where it engages in military co-operation or operations as referred to above, to notify the states concerned of its obligations under the convention, promote the norms established by the convention and make its best efforts to discourage states not party to the convention from using cluster munitions.

Ireland believes that the prohibition on cluster munitions contained in the convention will become established as a new norm of international humanitarian law. This will happen when states begin to feel obliged to behave in accordance with it, irrespective of whether they are parties to it. It has happened already, very successfully, in the case of the anti-personnel mine ban convention. We hope that the Convention on Cluster Munitions will have a similar effect. It would be difficult to overestimate the importance of this convention and the positive impact it will have for present and future generations of civilians caught up in zones of conflict. With the ground breaking provisions for victim assistance and clearance of contaminated areas, it represents a major advance in international humanitarian law. At the conclusion of the Dublin conference, the International Committee of the Red Cross delivered a statement stressing its humanitarian significance in which it observed:

The implementation of this treaty will undoubtedly allow many children in future conflict zones the chance to grow up to be adults. It will also afford their parents the chance to feed those children from the harvests of lands not contaminated with cluster munitions.

The statement went on to note:

In adopting this Convention [we] have put in place the last essential element in an international legal regime to address the effects of weapons that can't stop killing....we now have the tools to prevent or remedy the often tragic consequences for civilians of all explosive munitions used in armed conflicts.

The UN Secretary General, Ban Ki-moon, addressed the opening of the conference by video message and at the conclusion expressed his delight that the strong calls to address the humanitarian impact of cluster munitions had been answered. He described the convention as a new international standard that would enhance the protection of civilians, strengthen human rights and improve prospects for development. He also confirmed that he would accept depository functions and pledged the support and assistance of the entire United Nations system to states parties in implementing their treaty obligations. On 30 October, the first committee of the United Nations General Assembly adopted by consensus a resolution brought forward by Ireland, which provides the mandate for the UN Secretary-General to perform the administrative functions conferred on him by the Convention on Cluster Munitions.

The convention will be opened for signature in Oslo on 3 December this year, and will enter into force six months after the deposit of the 30th instrument of ratification, acceptance, approval or accession. Given our involvement with the Oslo process and our leadership throughout, the Government considers it imperative for Ireland to be in a position to both sign and ratify the convention on 3 December. This would be in keeping with our record on the Anti-Personnel Mine Ban Convention, where Ireland was one of only three states which signed and ratified on the first day. In order to be best placed to sign and ratify the Convention on Cluster Munitions the Government is seeking to enact this Bill within a very tight timeframe. Early enactment will ensure that the State is in a position to meet its obligations from the moment of the convention's entry into force. It was with this aim in mind that, as soon as the convention was adopted on 30 May, the relevant Departments began work on preparing the Bill.

The primary purpose of the Bill is to create offences in respect of the use, development, production, acquisition, stockpiling, retention or transfer of cluster munitions and explosive bomblets as required under the convention. We are also taking this opportunity to make similar provision for anti-personnel mines in order further to implement the Anti-Personnel Mine Ban Convention, which was ratified by Ireland in 1997. The current law on anti-personnel mines is set out in the Explosives (Land Mines) Order 1996, which was made under the Explosives Act 1875. That order is likely to be revoked by the Minister for Justice, Equality and Law Reform upon enactment of new explosives legislation and the consequent repeal of the 1875 Act and we wish to avoid a legal vacuum.

Section 1 sets out the Short Title of the Bill and provides for its commencement. Section 2 makes provision for the interpretation of key terms as defined in both conventions, and other relevant terms. Many of the terms defined for the purposes of the Bill have been the subject of agreement in the negotiation of the two conventions and their reproduction in the domestic laws of state parties is necessary to ensure that their obligations are observed in a consistent manner among them. This is especially true for the definitions of a cluster munition, an explosive bomblet and an anti-personnel mine. If different states were to define key terms in their domestic laws in different ways co-operation between the parties to the conventions would become extremely complex and problematic and would inevitably frustrate coherent implementation of the convention.

Sections 3 and 4 are standard provisions for the laying of orders and expenses. Section 5 allows the Minister to declare by order which states are parties to the Convention on Cluster Munitions. This is necessary for the purposes of co-operation with those states under section 7 of the Bill. A similar provision enabling the Minister to declare by order the states parties to the Anti-Personnel Mine Ban Convention is made in section 8.

Section 6 makes it a criminal offence, with certain exceptions set out in section 7, to use, develop, produce, acquire, possess, retain or transfer a cluster munition or an explosive bomblet. It will also be an offence to assist, encourage or induce the commission of such an offence. Any such act committed outside the State on board an Irish ship or aircraft, or by a member of the Defence Forces, will also be an offence. Section 6 gives effect to the requirement under Article 9 of the convention to take all appropriate measures to implement the convention, including the imposition of penal sanctions to prevent and suppress any prohibited activity.

In accordance with the Convention on Cluster Munitions, section 7 permits certain acts that might otherwise be offences under section 6, namely retention or acquisition of a limited number of cluster munitions or explosive bomblets for development of, and training in, detection, clearance and destruction of these munitions, or for the development of counter-measures. This is in accordance with Article 3 of the convention. It also makes provision for their possession in the context of criminal investigations or proceedings and their transfer to the Defence Forces or to another state party for the purposes of their destruction.

Provision is also made to enable the Defence Forces to participate in United Nations mandated peacekeeping forces with a state or states that may not be party to the Convention on Cluster Munitions, in accordance with Article 21 of that convention. This is the so-called "interoperability" provision of the convention, which was the most difficult issue to resolve in the negotiations at Croke Park. Agreement was reached on Article 21 quite literally only at the last moment. Section 7(4) of the Bill will ensure that future participation by the Defence Forces in UN mandated peacekeeping operations will be consistent with the convention. Its purpose is to ensure that no member of the Defence Forces, while serving abroad with military personnel of states that are not party to the convention, such as in a UN peacekeeping mission, may find himself or herself criminally liable for an inadvertent, unintended or unavoidable act that might otherwise be an offence. The Bill makes clear that under no circumstances may he or she expressly request the use of cluster munitions.

It is very unlikely that section 7(4) of the Bill will ever be invoked. It is important to recall that Article 21 obliges every state party to the convention to work to promote universal adherence to it and the Government will continue to urge all states to become parties to the convention. Our preference in considering future contributions to peacekeeping missions will naturally be to join with states that are parties to the convention and in these circumstances the question of interoperability with states not party to it will not arise. Even were we to find ourselves as members of a peacekeeping mission that included the armed forces of a state that is not party to the convention, every effort will be made in the elaboration of codes of conduct, rules of engagement, caveats and similar agreements prepared for the mission to ensure that there is no prospect of cluster munitions playing any role. It is highly unlikely therefore that section 7(4) will ever apply but all Members of the House agree on the importance of ensuring that no member of the Defence Forces should ever face prosecution for simply carrying out his or her duty as a member of a peacekeeping mission.

Section 9 makes the use, development, production, acquisition, possession, retention or transfer of an anti-personnel mine an offence, in accordance with Article 9 of the Anti-Personnel Mine Ban Convention. Certain exceptions are permitted, in accordance with the convention, and these are provided for in section 10.

Section 13 provides for penalties to be imposed upon summary conviction and conviction on indictment of an offence under sections 6 and 9 relating to anti-personnel mines. The maximum penalty for conviction on indictment is ten years imprisonment or a fine of €250,000, or both. This reflects the seriousness of the offences concerned. Section 14 provides for liability of a body corporate and is a standard provision to ensure that bodies corporate do not avoid responsibility for conduct prohibited to individuals. Section 15 allows for the forfeiture of items to the State and is necessary to ensure that a cluster munition, explosive bomblet or anti-personnel mine seized during the investigation of a suspected offence is not returned to a claimant under the Police (Property) Act 1897 but is sent for destruction. The texts of the two conventions are set out for ease of reference in the Schedules to the Bill.

This comprehensive legislation was drawn up in consultation with the national committee on international humanitarian law, which was established in advance of the diplomatic conference. My Department has also consulted closely with the International Committee of the Red Cross, which made available an advance copy of its model law for the implementation of the Convention on Cluster Munitions.

In addition to the provisions of the Bill as published it is also the Government's intention to introduce additional legislative provision that will make it expressly clear that the investment of public moneys, including by the National Pensions Reserve Fund, in any company that produces cluster munitions or anti-personnel mines is prohibited. However this is a complex undertaking, involving consultations among numerous actors, and it was unfortunately not possible to complete work on it in time for its inclusion in the Bill as published. We hope to be able to bring this forward as soon as possible to allow for consideration on Committee Stage.

I must reiterate that it is an absolute priority for Ireland to be in a position to both sign and ratify the convention in Oslo on 3 December and this legislation will facilitate that objective. Thus I would ask all Members of the House to support the early enactment of this Bill in the best interests of international humanitarian law, disarmament and development. I thank all Members for their support to date, prior to and during the convention. I commend the Bill to the House.

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