S-10
First Session, Forty-first Parliament,
60-61 Elizabeth II, 2011-2012
SENATE OF CANADA
BILL S-10
An Act to implement the Convention on Cluster Munitions
first reading, April 25, 2012
LEADER OF THE GOVERNMENT IN THE SENATE
90653
SUMMARY
This enactment implements Canada’s commitments under the Convention on Cluster Munitions. In particular, it establishes prohibitions and offences for certain activities involving cluster munitions, explosive submunitions and explosive bomblets.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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1st Session, 41st Parliament,
60-61 Elizabeth II, 2011-2012
senate of canada
BILL S-10
An Act to implement the Convention on Cluster Munitions
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Prohibiting Cluster Munitions Act.
INTERPRETATION AND APPLICATION
Definitions
2. The following definitions apply in this Act.
“cluster munition”« arme à sous-munitions »
“cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions. However, it does not include any of the following:
(a) a munition that is designed to disperse or release flares or pyrotechnic devices;
(b) a munition that is designed to produce, disperse or release smoke or chaff;
(c) a munition that is designed to produce electrical or electronic effects;
(d) a munition that is designed exclusively for air defence;
(e) a munition that is designed to contain fewer than 10 explosive submunitions, each of which
(i) weighs more than four kilograms,
(ii) is designed to detect and engage a target that is a single object, and
(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;
(f) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.
“Convention”« Convention »
“Convention” means the Convention on Cluster Munitions, done at Dublin on May 30, 2008, as amended from time to time to the extent that the amendment takes effect for Canada, that is set out in the schedule to this Act.
“conventional munition”« munition classique »
“conventional munition” means a munition that is not a nuclear, radiological, chemical, biological or toxin weapon.
“explosive bomblet”« petite bombe explosive »
“explosive bomblet” means a conventional munition, weighing less than 20 kg, that is not self-propelled and that, in order to perform its task, is dispersed or released from a container affixed to an aircraft and that is designed to detonate before, on or after impact. However, it does not include any of the following:
(a) a flare, a pyrotechnic device or a munition that is designed to produce, disperse or release smoke or chaff;
(b) a munition that is designed to produce electrical or electronic effects;
(c) a munition that is designed exclusively for air defence;
(d) a munition that is designed to be dispersed or released from a container that is designed to contain fewer than 10 of those munitions, each of which
(i) weighs more than four kilograms,
(ii) is designed to detect and engage a target that is a single object, and
(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;
(e) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.
“explosive submunition”« sous-munition explosive »
“explosive submunition” means a conventional munition, weighing less than 20 kg, that, in order to perform its task, is dispersed or released from another conventional munition and that is designed to detonate before, on or after impact. However, it does not include any of the following:
(a) a flare, a pyrotechnic device or a munition that is designed to produce, disperse or release smoke or chaff;
(b) a munition that is designed to produce electrical or electronic effects;
(c) a munition that is designed exclusively for air defence;
(d) a munition that is designed to be dispersed or released from another conventional munition that is designed to contain fewer than 10 of those munitions, each of which
(i) weighs more than four kilograms,
(ii) is designed to detect and engage a target that is a single object, and
(iii) is equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature;
(e) a mine as defined in section 2 of the Anti-Personnel Mines Convention Implementation Act.
“person”« personne »
“person” means an individual or an organization as defined in section 2 of the Criminal Code.
“use”« utilisation »
“use”, in respect of a cluster munition, explosive submunition or explosive bomblet, means firing, dropping, launching, projecting, dispersing, releasing or otherwise delivering it for the purpose of detonation.
Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province.
PURPOSE OF ACT
Implementation of commitments
4. The purpose of this Act is to implement Canada’s commitments under the Convention.
DESIGNATION OF MINISTER
Order
5. The Governor in Council may, by order, designate one or more federal ministers for the purpose of section 7.
PROHIBITIONS
Prohibitions
6. Subject to sections 7, 8 and 10 to 12, it is prohibited for any person to
(a) use a cluster munition, explosive submunition or explosive bomblet;
(b) develop, make, acquire or possess, a cluster munition, explosive submunition or explosive bomblet;
(c) move a cluster munition, explosive submunition or explosive bomblet from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it;
(d) import or export a cluster munition, explosive submunition or explosive bomblet;
(e) attempt to commit any act referred to in paragraphs (a) to (d);
(f) aid, abet or counsel another person to commit any act referred to in paragraphs (a) to (d);
(g) conspire with another person to commit any act referred to in paragraphs (a) to (d); or
(h) receive, comfort or assist another person, knowing that the person has committed, or has aided or abetted in the commission of, any act referred to in paragraphs (a) to (d), for the purpose of enabling the person to escape.
Exception — training, counter-measures, etc.
7. Any minister designated under section 5 may, by order, on any conditions that he or she considers appropriate, exempt a person or class of persons from section 6 if, in his or her opinion, the exemption is necessary for the development of, and training in, cluster munition, explosive submunition or explosive bomblet detection, clearance or destruction techniques, or for the development of cluster munition, explosive submunition or explosive bomblet counter-measures.
Exception — destruction on behalf of the Canadian Forces or the Department of National Defence
8. (1) The Minister of National Defence may, by order, on any conditions that he or she considers appropriate, exempt from section 6 a person or class of persons who, for the purpose of destroying a cluster munition, explosive submunition or explosive bomblet on behalf of the Canadian Forces or the Department of National Defence, acquires, possesses, imports or exports that munition or moves that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it.
Exception — destruction other than on behalf of the Canadian Forces or the Department of National Defence
(2) The Minister of Foreign Affairs may, by order, on any conditions that he or she considers appropriate, exempt from section 6 a person or class of persons who, for the purpose of destroying a cluster munition, explosive submunition or explosive bomblet other than on behalf of the Canadian Forces or the Department of National Defence, acquires, possesses, imports or exports that munition or moves that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it.
Notice of revocation
9. A minister may revoke an exemption that the minister has granted under section 7 or 8 only if the minister provides reasonable notice to the person to whom the exemption was granted.
Exception — deactivated cluster munitions, explosive submunitions, explosive bomblets
10. Section 6 does not prohibit a person from acquiring or possessing a cluster munition, explosive submunition or explosive bomblet, or from moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership and control over it, if that munition has been deactivated by
(a) removing all explosive substances; and
(b) removing or destroying any priming, detonating, dispersal or release mechanism or rendering the mechanism inoperable in such a way that its function cannot readily be restored.
Exceptions — military cooperation or combined military operations
11. (1) Section 6 does not prohibit a person who is subject to the Code of Service Discipline under any of paragraphs 60(1)(a) to (g) and (j) of the National Defence Act or who is an employee as defined in subsection 2(1) of the Public Service Employment Act, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from
(a) directing or authorizing an activity that may involve the use, acquisition, possession, import or export of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state or that may involve moving that munition by those armed forces from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it;
(b) expressly requesting the use of a cluster munition, explosive submunition or explosive bomblet by the armed forces of that state if the choice of munitions used is not within the exclusive control of the Canadian Forces; or
(c) using, acquiring or possessing a cluster munition, explosive submunition or explosive bomblet, or moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it, while on attachment, exchange or secondment, or serving under similar arrangement, with the armed forces of that state.
Exception — transport
(2) Section 6 does not prohibit a person, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from transporting or engaging in an activity related to the transport of a cluster munition, explosive submunition or explosive bomblet that is owned by, in the possession of or under the control of that state.
Exception — if act of other person not an offence
(3) Section 6 does not prohibit a person, in the course of military cooperation or combined military operations involving Canada and a state that is not a party to the Convention, from
(a) aiding, abetting or counselling another person to commit any act referred to in paragraphs 6(a) to (d), if it would not be an offence for that other person to commit that act;
(b) conspiring with another person to commit any act referred to in paragraphs 6(a) to (d), if it would not be an offence for that other person to commit that act; or
(c) receiving, comforting or assisting another person, knowing that that other person has committed, or has aided or abetted in the commission of, any act referred to in paragraphs 6(a) to (d), for the purpose of enabling that other person to escape, if it was not an offence for that other person to commit that act.
Exception for peace officers, etc.
12. Section 6 does not prohibit a person, in the course of the person’s duties or employment, from acquiring, possessing, importing or exporting a cluster munition, explosive submunition or explosive bomblet, or from moving that munition from a foreign state or territory to another foreign state or territory with the intent to transfer ownership of and control over it, for the purpose of destroying or deactivating it or for the purpose of investigations or proceedings under an Act of Parliament, if the person is
(a) an officer or non-commissioned member, as those terms are defined in subsection 2(1) of the National Defence Act;
(b) a peace officer as defined in section 2 of the Criminal Code;
(c) a person engaged or employed by or on behalf of Her Majesty in right of Canada or a province; or
(d) a person acting on behalf of a foreign state with the permission of the Government of Canada.
DETENTION IN A SAFE PLACE
Seizure or acquisition by other means
13. An officer or non-commissioned member, as those terms are defined in subsection 2(1) of the National Defence Act, or a peace officer, as defined in section 2 of the Criminal Code, who seizes or acquires by any other means a cluster munition, explosive submunition or explosive bomblet may remove it to a safe place and detain it there.
If required for proceedings
14. If a cluster munition, explosive submunition or explosive bomblet may be required for any proceedings under an Act of Parliament, a justice of the peace, a provincial court judge as defined in section 2 of the Criminal Code, a judge as defined in subsection 462.3(1) of that Act or a military judge as defined in subsection 2(1) of the National Defence Act may order its detention in a safe place until it is no longer required.
DELEGATION
Minister’s powers, duties and functions
15. A minister may delegate to any person, subject to any conditions that the minister considers appropriate, any powers, duties or functions conferred on the minister under this Act.
AMENDMENTS TO THE CONVENTION
Amendment to schedule
16. The Minister of Foreign Affairs must, by order, amend the schedule to incorporate any amendment to the Convention as soon as feasible after the amendment takes effect for Canada.
ENFORCEMENT
Offence — section 6
17. (1) Every person who contravenes section 6 is guilty of an offence and liable
(a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both; and
(b) on summary conviction, to a fine of not more than $5,000 or to imprisonment for a term of not more than 18 months, or to both.
Offences — regulations
(2) Every person who contravenes a regulation made under section 23, the contravention of which has been made an offence by that regulation, is guilty of an offence punishable on summary conviction.
Sections 21, 22, 23 and 24 and subsection 465(3) of Criminal Code
(3) Sections 21, 22, 23 and 24 and subsection 465(3) of the Criminal Code do not apply to any contravention of section 6.
Consent of Attorney General of Canada
18. Proceedings for an offence under section 17 or under a regulation made under section 23, other than proceedings before a service tribunal as defined in subsection 2(1) of the National Defence Act, may only be commenced with the personal consent in writing of the Attorney General of Canada.
Limitation period or prescription
19. Proceedings by way of summary conviction may be instituted within two years after the day on which the subject matter of the proceedings arose.
Forfeiture
20. An order that a cluster munition, explosive submunition or explosive bomblet be forfeited to Her Majesty in right of Canada may be made by
(a) a provincial court judge as defined in section 2 of the Criminal Code or a judge as defined in subsection 462.3(1) of that Act, on ex parte application by the Attorney General of Canada; or
(b) a military judge as defined in subsection 2(1) of the National Defence Act, on ex parte application by the Director of Military Prosecutions.
Forfeiture — if person found guilty
21. (1) If a person is found guilty of an offence under section 17 or under a regulation made under section 23, the court may, on application by the prosecutor, in addition to any punishment imposed, order that anything by means of which or in respect of which the offence was committed be forfeited to Her Majesty in right of Canada.
Exception — real property or immovables
(2) Subsection (1) does not apply to real property or immovables other than real property or immovables built or significantly modified for the purpose of facilitating the commission of the offence.
Disposal
22. Anything that is forfeited under section 20 or 21 must be disposed of as the Attorney General of Canada directs except if the thing is a cluster munition, explosive submunition or explosive bomblet or if the order to forfeit is made by a military judge as defined in subsection 2(1) of the National Defence Act. In both of those cases, the thing must be disposed of as directed by the Minister of National Defence.
REGULATIONS
Regulations
23. (1) The Governor in Council may make regulations that the Governor in Council considers necessary for carrying out the purpose of this Act.
Contravention of regulation
(2) A regulation made under subsection (1) may make it an offence to contravene the regulation.
COMING INTO FORCE
Order in council
24. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
SCHEDULE 
(Sections 2 and 16)
CONVENTION ON CLUSTER MUNITIONS
The States Parties to this Convention,
Deeply concerned that civilian populations and individual civilians continue to bear the brunt of armed conflict,
Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned,
Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of livelihood, impede post-conflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international peacebuilding and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use,
Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction,
Believing it necessary to contribute effectively in an efficient, coordinated manner to resolving the challenge of removing cluster munition remnants located throughout the world, and to ensure their destruction,
Determined also to ensure the full realization of the rights of all cluster munition victims and recognizing their inherent dignity,
Resolved to do their utmost in providing assistance to cluster munition victims, including medical care, rehabilitation and psychological support, as well as providing for their social and economic inclusion,
Recognizing the need to provide age- and gender-sensitive assistance to cluster munition victims and to address the special needs of vulnerable groups,
Bearing in mind the Convention on the Rights of Persons with Disabilities which, inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realization of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability,
Mindful of the need to coordinate adequately efforts undertaken in various fora to address the rights and needs of victims of various types of weapons, and resolved to avoid discrimination among victims of various types of weapons,
Reaffirming that in cases not covered by this Convention or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law, derived from established custom, from the principles of humanity and from the dictates of public conscience,
Resolved also that armed groups distinct from the armed forces of a State shall not, under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention,
Welcoming the very broad international support for the international norm prohibiting anti-personnel mines, enshrined in the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction,
Welcoming also the adoption of the Protocol on Explosive Remnants of War, annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its entry into force on 12 November 2006, and wishing to enhance the protection of civilians from the effects of cluster munition remnants in post-conflict environments,
Bearing in mind also United Nations Security Council Resolution 1325 on women, peace and security and United Nations Security Council Resolution 1612 on children in armed conflict,
Welcoming further the steps taken nationally, regionally and globally in recent years aimed at prohibiting, restricting or suspending the use, stockpiling, production and transfer of cluster munitions,
Stressing the role of public conscience in furthering the principles of humanity as evidenced by the global call for an end to civilian suffering caused by cluster munitions and recognizing the efforts to that end undertaken by the United Nations, the International Committee of the Red Cross, the Cluster Munition Coalition and numerous other non-governmental organizations around the world,
Reaffirming the Declaration of the Oslo Conference on Cluster Munitions, by which, inter alia, States recognized the grave consequences caused by the use of cluster munitions and committed themselves to conclude by 2008 a legally binding instrument that would prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and would establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation for victims, clearance of contaminated areas, risk reduction education and destruction of stockpiles,
Emphasizing the desirability of attracting the adherence of all States to this Convention, and determined to work strenuously towards the promotion of its universalization and its full implementation,
Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and the rules that the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only, that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations,
HAVE AGREED as follows:
Article 1
General obligations and scope of application
1. Each State Party undertakes never under any circumstances to:
(a) Use cluster munitions;
(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;
(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.
2. Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft.
3. This Convention does not apply to mines.
Article 2
Definitions
For the purposes of this Convention:
1. “Cluster munition victims” means all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalization or substantial impairment of the realization of their rights caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities;
2. “Cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. It does not mean the following:
(a) A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role;
(b) A munition or submunition designed to produce electrical or electronic effects;
(c) A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:
(i) Each munition contains fewer than ten explosive submunitions;
(ii) Each explosive submunition weighs more than four kilograms;
(iii) Each explosive submunition is designed to detect and engage a single target object;
(iv) Each explosive submunition is equipped with an electronic self-destruction mechanism;
(v) Each explosive submunition is equipped with an electronic self-deactivating feature;
3. “Explosive submunition” means a conventional munition that in order to perform its task is dispersed or released by a cluster munition and is designed to function by detonating an explosive charge prior to, on or after impact;
4. “Failed cluster munition” means a cluster munition that has been fired, dropped, launched, projected or otherwise delivered and which should have dispersed or released its explosive submunitions but failed to do so;
5. “Unexploded submunition” means an explosive submunition that has been dispersed or released by, or otherwise separated from, a cluster munition and has failed to explode as intended;
6. “Abandoned cluster munitions” means cluster munitions or explosive submunitions that have not been used and that have been left behind or dumped, and that are no longer under the control of the party that left them behind or dumped them. They may or may not have been prepared for use;
7. “Cluster munition remnants” means failed cluster munitions, abandoned cluster munitions, unexploded submunitions and unexploded bomblets;
8. “Transfer” involves, in addition to the physical movement of cluster munitions into or from national territory, the transfer of title to and control over cluster munitions, but does not involve the transfer of territory containing cluster munition remnants;
9. “Self-destruction mechanism” means an incorporated automatically-functioning mechanism which is in addition to the primary initiating mechanism of the munition and which secures the destruction of the munition into which it is incorporated;
10. “Self-deactivating” means automatically rendering a munition inoperable by means of the irreversible exhaustion of a component, for example a battery, that is essential to the operation of the munition;
11. “Cluster munition contaminated area” means an area known or suspected to contain cluster munition remnants;
12. “Mine” means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle;
13. “Explosive bomblet” means a conventional munition, weighing less than 20 kilograms, which is not self-propelled and which, in order to perform its task, is dispersed or released by a dispenser, and is designed to function by detonating an explosive charge prior to, on or after impact;
14. “Dispenser” means a container that is designed to disperse or release explosive bomblets and which is affixed to an aircraft at the time of dispersal or release;
15. “Unexploded bomblet” means an explosive bomblet that has been dispersed, released or otherwise separated from a dispenser and has failed to explode as intended.
Article 3
Storage and stockpile destruction
1. Each State Party shall, in accordance with national regulations, separate all cluster munitions under its jurisdiction and control from munitions retained for operational use and mark them for the purpose of destruction.
2. Each State Party undertakes to destroy or ensure the destruction of all cluster munitions referred to in paragraph 1 of this Article as soon as possible but not later than eight years after the entry into force of this Convention for that State Party. Each State Party undertakes to ensure that destruction methods comply with applicable international standards for protecting public health and the environment.
3. If a State Party believes that it will be unable to destroy or ensure the destruction of all cluster munitions referred to in paragraph 1 of this Article within eight years of entry into force of this Convention for that State Party it may submit a request to a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the destruction of such cluster munitions by a period of up to four years. A State Party may, in exceptional circumstances, request additional extensions of up to four years. The requested extensions shall not exceed the number of years strictly necessary for that State Party to complete its obligations under paragraph 2 of this Article.
4. Each request for an extension shall set out:
(a) The duration of the proposed extension;
(b) A detailed explanation of the proposed extension, including the financial and technical means available to or required by the State Party for the destruction of all cluster munitions referred to in paragraph 1 of this Article and, where applicable, the exceptional circumstances justifying it;
(c) A plan for how and when stockpile destruction will be completed;
(d) The quantity and type of cluster munitions and explosive submunitions held at the entry into force of this Convention for that State Party and any additional cluster munitions or explosive submunitions discovered after such entry into force;
(e) The quantity and type of cluster munitions and explosive submunitions destroyed during the period referred to in paragraph 2 of this Article; and
(f) The quantity and type of cluster munitions and explosive submunitions remaining to be destroyed during the proposed extension and the annual destruction rate expected to be achieved.
5. The Meeting of States Parties or the Review Conference shall, taking into consideration the factors referred to in paragraph 4 of this Article, assess the request and decide by a majority of votes of States Parties present and voting whether to grant the request for an extension. The States Parties may decide to grant a shorter extension than that requested and may propose benchmarks for the extension, as appropriate. A request for an extension shall be submitted a minimum of nine months prior to the Meeting of States Parties or the Review Conference at which it is to be considered.
6. Notwithstanding the provisions of Article 1 of this Convention, the retention or acquisition of a limited number of cluster munitions and explosive submunitions for the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures, is permitted. The amount of explosive submunitions retained or acquired shall not exceed the minimum number absolutely necessary for these purposes.
7. Notwithstanding the provisions of Article 1 of this Convention, the transfer of cluster munitions to another State Party for the purpose of destruction, as well as for the purposes described in paragraph 6 of this Article, is permitted.
8. States Parties retaining, acquiring or transferring cluster munitions or explosive submunitions for the purposes described in paragraphs 6 and 7 of this Article shall submit a detailed report on the planned and actual use of these cluster munitions and explosive submunitions and their type, quantity and lot numbers. If cluster munitions or explosive submunitions are transferred to another State Party for these purposes, the report shall include reference to the receiving party. Such a report shall be prepared for each year during which a State Party retained, acquired or transferred cluster munitions or explosive submunitions and shall be submitted to the Secretary-General of the United Nations no later than 30 April of the following year.
Article 4
Clearance and destruction of cluster munition remnants and risk reduction education
1. Each State Party undertakes to clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control, as follows:
(a) Where cluster munition remnants are located in areas under its jurisdiction or control at the date of entry into force of this Convention for that State Party, such clearance and destruction shall be completed as soon as possible but not later than ten years from that date;
(b) Where, after entry into force of this Convention for that State Party, cluster munitions have become cluster munition remnants located in areas under its jurisdiction or control, such clearance and destruction must be completed as soon as possible but not later than ten years after the end of the active hostilities during which such cluster munitions became cluster munition remnants; and
(c) Upon fulfilling either of its obligations set out in subparagraphs (a) and (b) of this paragraph, that State Party shall make a declaration of compliance to the next Meeting of States Parties.
2. In fulfilling its obligations under paragraph 1 of this Article, each State Party shall take the following measures as soon as possible, taking into consideration the provisions of Article 6 of this Convention regarding international cooperation and assistance:
(a) Survey, assess and record the threat posed by cluster munition remnants, making every effort to identify all cluster munition contaminated areas under its jurisdiction or control;
(b) Assess and prioritize needs in terms of marking, protection of civilians, clearance and destruction, and take steps to mobilize resources and develop a national plan to carry out these activities, building, where appropriate, upon existing structures, experiences and methodologies;
(c) Take all feasible steps to ensure that all cluster munition contaminated areas under its jurisdiction or control are perimeter-marked, monitored and protected by fencing or other means to ensure the effective exclusion of civilians. Warning signs based on methods of marking readily recognizable by the affected community should be utilized in the marking of suspected hazardous areas. Signs and other hazardous area boundary markers should, as far as possible, be visible, legible, durable and resistant to environmental effects and should clearly identify which side of the marked boundary is considered to be within the cluster munition contaminated areas and which side is considered to be safe;
(d) Clear and destroy all cluster munition remnants located in areas under its jurisdiction or control; and
(e) Conduct risk reduction education to ensure awareness among civilians living in or around cluster munition contaminated areas of the risks posed by such remnants.
3. In conducting the activities referred to in paragraph 2 of this Article, each State Party shall take into account international standards, including the International Mine Action Standards (IMAS).
4. This paragraph shall apply in cases in which cluster munitions have been used or abandoned by one State Party prior to entry into force of this Convention for that State Party and have become cluster munition remnants that are located in areas under the jurisdiction or control of another State Party at the time of entry into force of this Convention for the latter:
(a) In such cases, upon entry into force of this Convention for both States Parties, the former State Party is strongly encouraged to provide, inter alia, technical, financial, material or human resources assistance to the latter State Party, either bilaterally or through a mutually agreed third party, including through the United Nations system or other relevant organizations, to facilitate the marking, clearance and destruction of such cluster munition remnants;
(b) Such assistance shall include, where available, information on types and quantities of the cluster munitions used, precise locations of cluster munition strikes and areas in which cluster munition remnants are known to be located.
5. If a State Party believes that it will be unable to clear and destroy or ensure the clearance and destruction of all cluster munition remnants referred to in paragraph 1 of this Article within ten years of the entry into force of this Convention for that State Party, it may submit a request to a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the clearance and destruction of such cluster munition remnants by a period of up to five years. The requested extension shall not exceed the number of years strictly necessary for that State Party to complete its obligations under paragraph 1 of this Article.
6. A request for an extension shall be submitted to a Meeting of States Parties or a Review Conference prior to the expiry of the time period referred to in paragraph 1 of this Article for that State Party. Each request shall be submitted a minimum of nine months prior to the Meeting of States Parties or Review Conference at which it is to be considered. Each request shall set out:
(a) The duration of the proposed extension;
(b) A detailed explanation of the reasons for the proposed extension, including the financial and technical means available to and required by the State Party for the clearance and destruction of all cluster munition remnants during the proposed extension;
(c) The preparation of future work and the status of work already conducted under national clearance and demining programmes during the initial ten year period referred to in paragraph 1 of this Article and any subsequent extensions;
(d) The total area containing cluster munition remnants at the time of entry into force of this Convention for that State Party and any additional areas containing cluster munition remnants discovered after such entry into force;
(e) The total area containing cluster munition remnants cleared since entry into force of this Convention;
(f) The total area containing cluster munition remnants remaining to be cleared during the proposed extension;
(g) The circumstances that have impeded the ability of the State Party to destroy all cluster munition remnants located in areas under its jurisdiction or control during the initial ten year period referred to in paragraph 1 of this Article, and those that may impede this ability during the proposed extension;
(h) The humanitarian, social, economic and environmental implications of the proposed extension; and
(i) Any other information relevant to the request for the proposed extension.
7. The Meeting of States Parties or the Review Conference shall, taking into consideration the factors referred to in paragraph 6 of this Article, including, inter alia, the quantities of cluster munition remnants reported, assess the request and decide by a majority of votes of States Parties present and voting whether to grant the request for an extension. The States Parties may decide to grant a shorter extension than that requested and may propose benchmarks for the extension, as appropriate.
8. Such an extension may be renewed by a period of up to five years upon the submission of a new request, in accordance with paragraphs 5, 6 and 7 of this Article. In requesting a further extension a State Party shall submit relevant additional information on what has been undertaken during the previous extension granted pursuant to this Article.
Article 5
Victim assistance
1. Each State Party with respect to cluster munition victims in areas under its jurisdiction or control shall, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion. Each State Party shall make every effort to collect reliable relevant data with respect to cluster munition victims.
2. In fulfilling its obligations under paragraph 1 of this Article each State Party shall:
(a) Assess the needs of cluster munition victims;
(b) Develop, implement and enforce any necessary national laws and policies;
(c) Develop a national plan and budget, including timeframes to carry out these activities, with a view to incorporating them within the existing national disability, development and human rights frameworks and mechanisms, while respecting the specific role and contribution of relevant actors;
(d) Take steps to mobilize national and international resources;
(e) Not discriminate against or among cluster munition victims, or between cluster munition victims and those who have suffered injuries or disabilities from other causes; differences in treatment should be based only on medical, rehabilitative, psychological or socio-economic needs;
(f) Closely consult with and actively involve cluster munition victims and their representative organizations;
(g) Designate a focal point within the government for coordination of matters relating to the implementation of this Article; and
(h) Strive to incorporate relevant guidelines and good practices including in the areas of medical care, rehabilitation and psychological support, as well as social and economic inclusion.
Article 6
International cooperation and assistance
1. In fulfilling its obligations under this Convention each State Party has the right to seek and receive assistance.
2. Each State Party in a position to do shall provide technical, material and financial assistance to States Parties affected by cluster munitions, aimed at the implementation of the obligations of this Convention. Such assistance may be provided, inter alia, through the United Nations system, international, regional or national organizations or institutions, non-governmental organizations or institutions, or on a bilateral basis.
3. Each State Party undertakes to facilitate and shall have the right to participate in the fullest possible exchange of equipment and scientific and technological information concerning the implementation of this Convention. The States Parties shall not impose undue restrictions on the provision and receipt of clearance and other such equipment and related technological information for humanitarian purposes.
4. In addition to any obligations it may have pursuant to paragraph 4 of Article 4 of this Convention, each State Party in a position to do so shall provide assistance for clearance and destruction of cluster munition remnants and information concerning various means and technologies related to clearance of cluster munitions, as well as lists of experts, expert agencies or national points of contact on clearance and destruction of cluster munition remnants and related activities.
5. Each State Party in a position to do so shall provide assistance for the destruction of stockpiled cluster munitions, and shall also provide assistance to identify, assess and prioritize needs and practical measures in terms of marking, risk reduction education, protection of civilians and clearance and destruction as provided in Article 4 of this Convention.
6. Where, after entry into force of this Convention, cluster munitions have become cluster munition remnants located in areas under the jurisdiction or control of a State Party, each State Party in a position to do so shall urgently provide emergency assistance to the affected State Party.
7. Each State Party in a position to do so shall provide assistance for the implementation of the obligations referred to in Article 5 of this Convention to adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for social and economic inclusion of cluster munition victims. Such assistance may be provided inter alia, through the United Nations system, international, regional or national organizations or institutions, the International Committee of the Red Cross, national Red Cross and Red Crescent Societies and their International Federation, non-governmental organizations or on a bilateral basis.
8. Each State Party in a position to do so shall provide assistance to contribute to the economic and social recovery needed as a result of cluster munition use in affected States Parties.
9. Each State Party in a position to do so may contribute to relevant trust funds in order to facilitate the provision of assistance under this Article.
10. Each State Party that seeks and receives assistance shall take all appropriate measures in order to facilitate the timely and effective implementation of this Convention, including facilitation of the entry and exit of personnel, materiel and equipment, in a manner consistent with national laws and regulations, taking into consideration international best practices.
11. Each State Party may, with the purpose of developing a national action plan, request the United Nations system, regional organizations, other States Parties or other competent intergovernmental or non-governmental institutions to assist its authorities to determine, inter alia:
(a) The nature and extent of cluster munition remnants located in areas under its jurisdiction or control;
(b) The financial, technological and human resources required for the implementation of the plan;
(c) The time estimated as necessary to clear and destroy all cluster munition remnants located in areas under its jurisdiction or control;
(d) Risk reduction education programmes and awareness activities to reduce the incidence of injuries or deaths caused by cluster munition remnants;
(e) Assistance to cluster munition victims; and
(f) The coordination relationship between the government of the State Party concerned and the relevant governmental, intergovernmental or non-governmental entities that will work in the implementation of the plan.
12. States Parties giving and receiving assistance under the provisions of this Article shall cooperate with a view to ensuring the full and prompt implementation of agreed assistance programmes.
Article 7
Transparency measures
1. Each State Party shall report to the Secretary-General of the United Nations as soon as practicable, and in any event not later than 180 days after the entry into force of this Convention for that State Party, on:
(a) The national implementation measures referred to in Article 9 of this Convention;
(b) The total of all cluster munitions, including explosive submunitions, referred to in paragraph 1 of Article 3 of this Convention, to include a breakdown of their type, quantity and, if possible, lot numbers of each type;
(c) The technical characteristics of each type of cluster munition produced by that State Party prior to entry into force of this Convention for it, to the extent known, and those currently owned or possessed by it, giving, where reasonably possible, such categories of information as may facilitate identification and clearance of cluster munitions; at a minimum, this information shall include the dimensions, fusing, explosive content, metallic content, colour photographs and other information that may facilitate the clearance of cluster munition remnants;
(d) The status and progress of programmes for the conversion or decommissioning of production facilities for cluster munitions;
(e) The status and progress of programmes for the destruction, in accordance with Article 3 of this Convention, of cluster munitions, including explosive submunitions, with details of the methods that will be used in destruction, the location of all destruction sites and the applicable safety and environmental standards to be observed;
(f) The types and quantities of cluster munitions, including explosive submunitions, destroyed in accordance with Article 3 of this Convention, including details of the methods of destruction used, the location of the destruction sites and the applicable safety and environmental standards observed;
(g) Stockpiles of cluster munitions, including explosive submunitions, discovered after reported completion of the programme referred to in subparagraph (e) of this paragraph, and plans for their destruction in accordance with Article 3 of this Convention;
(h) To the extent possible, the size and location of all cluster munition contaminated areas under its jurisdiction or control, to include as much detail as possible regarding the type and quantity of each type of cluster munition remnant in each such area and when they were used;
(i) The status and progress of programmes for the clearance and destruction of all types and quantities of cluster munition remnants cleared and destroyed in accordance with Article 4 of this Convention, to include the site and location of the cluster munition contaminated area cleared and a breakdown of the quantity of each type of cluster munition remnant cleared and destroyed;
(j) The measures taken to provide risk reduction education and, in particular, an immediate and effective warning to civilians living in cluster munition contaminated areas under its jurisdiction or control;
(k) The status and progress of implementation of its obligations under Article 5 of this Convention to adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for social and economic inclusion of cluster munition victims and to collect reliable relevant data with respect to cluster munition victims;
(l) The name and contact details of the institutions mandated to provide information and to carry out the measures described in this paragraph;
(m) The amount of national resources, including financial, material or in kind, allocated to the implementation of Articles 3, 4 and 5 of this Convention; and
(n) The amounts, types and destinations of international cooperation and assistance provided under Article 6 of this Convention.
2. The information provided in accordance with paragraph 1 of this Article shall be updated by the States Parties annually, covering the previous calendar year, and reported to the Secretary-General of the United Nations not later than 30 April of each year.
3. The Secretary-General of the United Nations shall transmit all such reports received to the States Parties.
Article 8
Facilitation and clarification of compliance
1. The States Parties agree to consult and cooperate with each other regarding the implementation of the provisions of this Convention and to work together in a spirit of cooperation to facilitate compliance by States Parties with their obligations under this Convention.
2. If one or more States Parties wish to clarify and seek to resolve questions relating to a matter of compliance with the provisions of this Convention by another State Party, it may submit, through the Secretary-General of the United Nations, a Request for Clarification of that matter to that State Party. Such a request shall be accompanied by all appropriate information. Each State Party shall refrain from unfounded Requests for Clarification, care being taken to avoid abuse. A State Party that receives a Request for Clarification shall provide, through the Secretary-General of the United Nations, within 28 days to the requesting State Party all information that would assist in clarifying the matter.
3. If the requesting State Party does not receive a response through the Secretary-General of the United Nations within that time period, or deems the response to the Request for Clarification to be unsatisfactory, it may submit the matter through the Secretary-General of the United Nations to the next Meeting of States Parties. The Secretary-General of the United Nations shall transmit the submission, accompanied by all appropriate information pertaining to the Request for Clarification, to all States Parties. All such information shall be presented to the requested State Party which shall have the right to respond.
4. Pending the convening of any Meeting of States Parties, any of the States Parties concerned may request the Secretary-General of the United Nations to exercise his or her good offices to facilitate the clarification requested.
5. Where a matter has been submitted to it pursuant to paragraph 3 of this Article, the Meeting of States Parties shall first determine whether to consider that matter further, taking into account all information submitted by the States Parties concerned. If it does so determine, the Meeting of States Parties may suggest to the States Parties concerned ways and means further to clarify or resolve the matter under consideration, including the initiation of appropriate procedures in conformity with international law. In circumstances where the issue at hand is determined to be due to circumstances beyond the control of the requested State Party, the Meeting of States Parties may recommend appropriate measures, including the use of cooperative measures referred to in Article 6 of this Convention.
6. In addition to the procedures provided for in paragraphs 2 to 5 of this Article, the Meeting of States Parties may decide to adopt such other general procedures or specific mechanisms for clarification of compliance, including facts, and resolution of instances of non-compliance with the provisions of this Convention as it deems appropriate.
Article 9
National implementation measures
Each State Party shall take all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.
Article 10
Settlement of disputes
1. When a dispute arises between two or more States Parties relating to the interpretation or application of this Convention, the States Parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of their choice, including recourse to the Meeting of States Parties and referral to the International Court of Justice in conformity with the Statute of the Court.
2. The Meeting of States Parties may contribute to the settlement of the dispute by whatever means it deems appropriate, including offering its good offices, calling upon the States Parties concerned to start the settlement procedure of their choice and recommending a time-limit for any agreed procedure.
Article 11
Meetings of States Parties
1. The States Parties shall meet regularly in order to consider and, where necessary, take decisions in respect of any matter with regard to the application or implementation of this Convention, including:
(a) The operation and status of this Convention;
(b) Matters arising from the reports submitted under the provisions of this Convention;
(c) International cooperation and assistance in accordance with Article 6 of this Convention;
(d) The development of technologies to clear cluster munition remnants;
(e) Submissions of States Parties under Articles 8 and 10 of this Convention; and
(f) Submissions of States Parties as provided for in Articles 3 and 4 of this Convention.
2. The first Meeting of States Parties shall be convened by the Secretary-General of the United Nations within one year of entry into force of this Convention. The subsequent meetings shall be convened by the Secretary-General of the United Nations annually until the first Review Conference.
3. States not party to this Convention, as well as the United Nations, other relevant international organizations or institutions, regional organizations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organizations may be invited to attend these meetings as observers in accordance with the agreed rules of procedure.
Article 12
Review Conferences
1. A Review Conference shall be convened by the Secretary-General of the United Nations five years after the entry into force of this Convention. Further Review Conferences shall be convened by the Secretary-General of the United Nations if so requested by one or more States Parties, provided that the interval between Review Conferences shall in no case be less than five years. All States Parties to this Convention shall be invited to each Review Conference.
2. The purpose of the Review Conference shall be:
(a) To review the operation and status of this Convention;
(b) To consider the need for and the interval between further Meetings of States Parties referred to in paragraph 2 of Article 11 of this Convention; and
(c) To take decisions on submissions of States Parties as provided for in Articles 3 and 4 of this Convention.
3. States not party to this Convention, as well as the United Nations, other relevant international organizations or institutions, regional organizations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organizations may be invited to attend each Review Conference as observers in accordance with the agreed rules of procedure.
Article 13
Amendments
1. At any time after its entry into force any State Party may propose amendments to this Convention. Any proposal for an amendment shall be communicated to the Secretary-General of the United Nations, who shall circulate it to all States Parties and shall seek their views on whether an Amendment Conference should be convened to consider the proposal. If a majority of the States Parties notify the Secretary-General of the United Nations no later than 90 days after its circulation that they support further consideration of the proposal, the Secretary-General of the United Nations shall convene an Amendment Conference to which all States Parties shall be invited.
2. States not party to this Convention, as well as the United Nations, other relevant international organizations or institutions, regional organizations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organizations may be invited to attend each Amendment Conference as observers in accordance with the agreed rules of procedure.
3. The Amendment Conference shall be held immediately following a Meeting of States Parties or a Review Conference unless a majority of the States Parties request that it be held earlier.
4. Any amendment to this Convention shall be adopted by a majority of two-thirds of the States Parties present and voting at the Amendment Conference. The Depositary shall communicate any amendment so adopted to all States.
5. An amendment to this Convention shall enter into force for States Parties that have accepted the amendment on the date of deposit of acceptances by a majority of the States which were Parties at the date of adoption of the amendment. Thereafter it shall enter into force for any remaining State Party on the date of deposit of its instrument of acceptance.
Article 14
Costs and administrative tasks
1. The costs of the Meetings of States Parties, the Review Conferences and the Amendment Conferences shall be borne by the States Parties and States not party to this Convention participating therein, in accordance with the United Nations scale of assessment adjusted appropriately.
2. The costs incurred by the Secretary-General of the United Nations under Articles 7 and 8 of this Convention shall be borne by the States Parties in accordance with the United Nations scale of assessment adjusted appropriately.
3. The performance by the Secretary-General of the United Nations of administrative tasks assigned to him or her under this Convention is subject to an appropriate United Nations mandate.
Article 15
Signature
This Convention, done at Dublin on 30 May 2008, shall be open for signature at Oslo by all States on 3 December 2008 and thereafter at United Nations Headquarters in New York until its entry into force.
Article 16
Ratification, acceptance, approval or accession
1. This Convention is subject to ratification, acceptance or approval by the Signatories.
2. It shall be open for accession by any State that has not signed the Convention.
3. The instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary.
Article 17
Entry into force
1. This Convention shall enter into force on the first day of the sixth month after the month in which the thirtieth instrument of ratification, acceptance, approval or accession has been deposited.
2. For any State that deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force on the first day of the sixth month after the date on which that State has deposited its instrument of ratification, acceptance, approval or accession.
Article 18
Provisional application
Any State may, at the time of its ratification, acceptance, approval or accession, declare that it will apply provisionally Article 1 of this Convention pending its entry into force for that State.
Article 19
Reservations
The Articles of this Convention shall not be subject to reservations.
Article 20
Duration and withdrawal
1. This Convention shall be of unlimited duration.
2. Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Convention. It shall give notice of such withdrawal to all other States Parties, to the Depositary and to the United Nations Security Council. Such instrument of withdrawal shall include a full explanation of the reasons motivating withdrawal.
3. Such withdrawal shall only take effect six months after the receipt of the instrument of withdrawal by the Depositary. If, however, on the expiry of that six-month period, the withdrawing State Party is engaged in an armed conflict, the withdrawal shall not take effect before the end of the armed conflict.
Article 21
Relations with States not party to this Convention
1. Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.
2. Each State Party shall notify the governments of all States not party to this Convention, referred to in paragraph 3 of this Article, of its obligations under this Convention, shall promote the norms it establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions.
3. Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.
4. Nothing in paragraph 3 of this Article shall authorize a State Party:
(a) To develop, produce or otherwise acquire cluster munitions;
(b) To itself stockpile or transfer cluster munitions;
(c) To itself use cluster munitions; or
(d) To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.
Article 22
Depositary
The Secretary-General of the United Nations is hereby designated as the Depositary of this Convention.
Article 23
Authentic texts
The Arabic, Chinese, English, French, Russian and Spanish texts of this Convention shall be equally authentic.
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