Cluster Munitions and Anti-Personnel Mines Bill 2008: Committee Stage.

This meeting has been convened to consider the Cluster Munitions and Anti-Personnel Mines Bill 2008, Committee Stage. I propose that this consideration be completed not later than 7.30 p.m. Is that agreed? Agreed.

I welcome the Minister for Foreign Affairs, Deputy Martin and his officials to the meeting. I request that all mobile telephones and Blackberries be switched off. Before we commence I pay tribute to the Minister and his officials, particularly Mr. Dáithí O'Ceallaigh and his colleagues, on the success of the recent cluster munitions conference in Croke Park. It was a momentous achievement for Ireland to preside over and co-ordinate that very important occasion. This committee has taken a keen interest in this issue for a long time and congratulations are due to both Opposition and Government sides. I invite the Minister to make his introductory remarks, after which I will turn to section 1 of the Bill.

The principal purpose of this Bill is to make provision in domestic law for the obligations the State will assume under the Convention on Cluster Munitions. As the committee is aware, the convention was adopted by consensus at the conclusion of the Dublin diplomatic conference last May at Croke Park. It will be opened for signature at a ceremony in Oslo on 3 December and will enter into force six months after 30 States have ratified it. The Government is committed to promoting the earliest possible entry into force of the convention. As a demonstration of that commitment and to provide a strong signal to other States, we have given priority to the early publication and enactment of this Bill so Ireland will be in a position to ratify, as well as sign, the convention in December.

Deputies are aware of the loss of life and limb due to these horrendous weapons and have previously expressed their support for action to bring an end to this scourge. The programme for Government committed us to campaign for a complete ban on cluster munitions, a priority which has been shared by all parties. From the outset of Ireland's engagement on this issue, my predecessor and I have enjoyed the full support of this committee and the Oireachtas and I express my appreciation for this. There is no doubt that the cross-party support contributed to our success.

The comprehensive convention that emerged from the negotiations under Irish chairmanship represents one of the most significant contributions to the development of international humanitarian law in recent years and is a major achievement in Irish foreign policy. I am very proud of the contribution made by officials of my Department, and by members of the Defence Forces, to this success. Ireland's concern on this issue developed from practical experience of humanitarian operations on the ground, including our tradition of involvement in UN peacekeeping operations where our troops were confronted by the problems faced by affected communities and were themselves exposed to the hazards inherent in clearance of unexploded cluster munitions.

The heart of the convention is an immediate and unconditional ban on all cluster munitions which cause unacceptable harm to civilians. Each state party undertakes never in any circumstances to use, develop, produce, acquire, stockpile, retain or transfer cluster munitions, or to assist another party in doing so. By adopting a wide and encompassing definition, the convention effectively prohibits all cluster munitions that have ever been used in armed conflict.

It was also a very important achievement that the convention provides for no transition periods during which the cluster weapons outlawed could still be used. States that sign up to the convention will undertake to ensure the destruction of all their cluster munitions within eight years, with short extensions possible in case of difficulty. Areas containing cluster munition remnants must be cleared within ten years. The Government is also very pleased that the language in the new convention on victim rights and assistance is the most advanced on these issues ever included in an international instrument.

Ireland and other key actors intend to begin work immediately after the signing ceremony to ensure that momentum for entry into force of the convention is maintained. Some of the key issues we have already started to think about are the lessons we have learned from the implementation of the 1997 Anti-Personnel Mine Ban Treaty and how they might be applied to the convention and the role that civil society can play in monitoring and implementation of the convention. We will also work to ensure continued ownership and support among the key actors and to promote universalisation of the convention.

I reiterate the high priority the Government attaches to Ireland's being in a position to both sign and ratify the convention in Oslo on 3 December. Early enactment of the Bill will be a concrete manifestation of Ireland's continued leadership in international efforts to ban cluster munitions and I call on all members to support it.

We now commence our consideration of the Bill. A note has been circulated that it is proposed to group the following amendments for the debate: Nos. 2, 6 and 10; Nos. 4 and 8; Nos. 5, 11 to 16, inclusive, 21 and 22; Nos. 7 and 9; and Nos. 19 and 20. I will mention each of these as they arise. All other amendments will be discussed individually.

SECTION 1.

I move amendment No. 1:

In page 3, lines 20 to 23, to delete subsection (2).

I very much appreciate the Minister's remarks and his generous recognition of the support of colleagues in bringing this legislation to fruition. The purpose of my amendments is to strengthen the legislation. The convention came into existence as the creature of consensus and Ireland should follow the example of other countries in establishing a template that is higher again so that it is not a minimal compliance but something like the Belgian legislation.

Amendment No. 1 seeks to delete subsection (2) because I see no need for ministerial discretion in this text. The subsection reads, "This Act shall come into operation on such day or days as the Minister may, by order or orders, appoint either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions." I do not see the need for such a reservation and the case has not been made for it. Given the time restrictions, I will not delay for long on the less substantive amendments. I will concentrate on those amendments dealing with handling devices and issues of definition and interoperability.

I understand the Deputy's concern. It has been a legislative convention for a Bill to be commenced by means of ministerial order and the Parliamentary Counsel has advised this. In practical purposes it is intended to commence the Bill as soon as possible. There will be issues on the Defence Forces training and manuals will have to be adapted to reflect the State's new commitment's under the convention on cluster munitions, which is not yet in force. Article 17 of the convention provides that it will come into force only six months after the 30th instrument of ratification has been deposited. Ireland is likely to be the first country in the world to ratify the convention and its entry into force is to take place as soon as possible after that. This is a normal provision and should not cause a problem.

I am happy to make a concession to the archaism in this case.

I thought the Deputy might.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

I move amendment No. 2:

In page 3, subsection (1), to delete lines 30 to 33.

Amendment No. 2 deals with something very important. The issue is that if something is a danger to life, it should be simply forbidden. The more important idea is what is involved in this part, the concept of an anti-handling device.

In the whole debate about cluster munitions across the international community, there are different perspectives from which people have departed in trying to understand it. I make no apology for looking at the issue from the victim's perspective. The suggestion with an anti-handling device is almost that the device will be able to discover intention and so forth. The point is whether the device represents a real threat to life or limb, but the suggestion is that one of the limitations is if there is an anti-handling device, it somehow or another satisfies the intention of not seeking injury and acceptability. I reject that as mines have not become so sophisticated they can detect intentions. To the farmer ploughing his field or the child picking something up, it means nothing. The fact is if the device explodes in a person's body, face or limbs, that person will be either dead or mutilated.

I have tried to cross the bridge to the people who make the argument for this kind of language. Their suggestion is there has been a technological evolution that can draw a distinction between that which has a handling device and that which has not. Their argument is departing from a technological competence of sorts, whereas mine departs from the position of impact on the victim. That is the reason I have moved the amendment. I want mines representing a threat to be bannedsimpliciter. I have found this to be one of the definitional issues which arose from my Second Stage speech and I have made the case.

I have mentioned a farmer ploughing his field or a child playing. How will the mine detect these to be an innocent act and therefore that it should not go off? If there is any pressure, even if I went along with some of the technological arguments, the device still represents a danger.

Anti-vehicle landmines with anti-handling devices are, simply, anti-personnel devices. I am against the inclusion of anti-handling devices in the Irish legislation. With respect, such an omission will strengthen rather than weaken our position. The responsibility remains with the governments to use anti-vehicle mines with no anti-personnel effects.

To save much time I should say this is one of the issues upon which I am disposed to press the amendment.

This is the interpretations section and amendments Nos. 6 and 10 are related to amendment No. 2. These are to be discussed together by agreement.

Without getting involved in the complexities of amendments Nos. 2, 6 and 10, one could argue the issue of definition does not arise if I am to propose later that it be deleted. I say this for ease of reference on amendments Nos. 2, 6 and 10. When it comes to it I will formally move amendments Nos. 6 and 10 without repeating the arguments. The argument I am now making is germane to this combination of amendments.

Before going into the detail of these amendments, I should say I fully understand the desire of the Deputy to raise the bar and have in place the highest possible provisions. We have been a party to an international convention and we were one of the lead nations in pulling countries together to go this route. The numbers have grown. I have a difficulty if, in co-ordinating this effort and pulling it together thereby achieving a substantive international agreement, we then unpick part of it almost unilaterally in the context of legislation.

The convention is about standardising the position of countries on these issues. We may end up with a case that in practical terms could have implications for participation of our Defence Forces in peacekeeping, for example. We may have one set of prohibitions as against another country that would conform with the convention.

We have signed up to and agreed an international convention and this legislation is fundamentally about the implementation of that convention. I am adopting the approach that is faithful to it. It may not satisfy everybody and it represents compromise. This, in essence, is its strength because one would not have the number of countries participating and agreeing if there was no compromise. The success of the convention depends on the credibility of the exercise from the outset. As so many countries participated in the Dublin and Wellington conferences, it is credible.

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 their obligations are observed in a consistent manner among them. This is especially true with regard to 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.

The effect of the first two proposed amendments is essentially to blur the distinction between an anti-personnel mine on the one hand and an anti-tank mine equipped with an anti-handling device on the other. The first is prohibited by the anti-personnel mine ban convention while the second is not. Deputy Higgins's amendments would have the effect of introducing an undesirable level of uncertainty concerning anti-tank mines equipped with anti-handling devices.

As Deputies will appreciate, the purpose of the Bill is to implement the two conventions. Article 2 of the anti-personnel mine ban convention specifically provides that "mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, and that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped".

By applying different standards in our own laws to those being adopted by other states parties to the convention we would risk, at best, severely complicating international co-operation in the implementation of the convention. The proposed amendments would effectively prevent the Defence Forces from participating in peacekeeping or other similar missions with almost any other country — whether or not it is a party to the conventions — because we would have implemented a different standard of prohibition. That prohibition relates not just to the use of the munition as defined — in this case an anti-personnel mine — but to assisting any other country that might use it. If the Irish definition of the munition is different from that agreed in the convention, other countries may very well be using that munition because it will be permitted by the convention. The purpose of the convention is, conversely, to standardise prohibitions.

With regard to the proposed repeal of section 30(1)(e) of the 1954 Act, I have consulted the Minister for Defence, whose position is that such a repeal is unnecessary. The provision concerned is an enabling one only, permitting the Minister for Defence to lay mines. However it must be exercised in accordance with the State’s relevant international legal obligations, including the anti-personnel mine ban convention, the convention on certain conventional weapons and the Geneva Conventions. The term “mines” in the 1954 Act is not restricted to anti-personnel mines but will include anti-tank mines and sea mines. The laying of any of these mines may only be done in accordance with applicable international law. In the case of anti-personnel mines that means it will be only for the purposes of training in mine clearance techniques etc., in accordance with the provisions of the anti-personnel mine ban convention.

For these reasons I am not disposed to accept the Deputy's amendment.

I will begin by referring to the end of the Minister's comments. It would be useful for him to indicate if he is calling for the Minister for Defence to amend section 30 of the 1954 Act. That rather baldly gives the right to the Minister to authorise the laying of mines. There is nothing to suggest that this is restricted. I would have thought it would be easier, given that the Minister is bringing in such a regime now, to consider either a repeal of that section or an amendment. The Minister can come back to it at a later stage if he wishes.

With regard to the general point made by the Minister, this information would be useful for the sake of knowing where we are, because cluster munitions were discussed here by way of submission in 2006 and 2007. The Minister said the entire purpose of the legislation is to establish a common standard. We should remember the position I took on the two occasions a submission was made here. At that stage I said that the Ottawa Convention on landmines had been crucially influenced by the initiative of Norway and Ireland in establishing a template to which the conference then responded, to an extent. There are flaws within that which I am happy to say this legislation corrects, including with regard to the Explosives Act. The political intention was to have the template and then the convention. I am an elected parliamentarian, not a diplomat. I have the greatest respect for diplomacy. People go away with the diplomatic, parliamentary and political intention having been clarified. However, my political intention was that we should have the highest possible legislation that will serve as a template for others who are attending the convention. We differ on that. The idea of the Minister's predecessor, who argued against me, was to have the convention first and then, when we had a consensus, proceed to legislate. That is a difference — a respectable difference — between the two of us. What I suggest he is doing is to regard the conclusion of the excellent diplomatic process as his starting point. I do not.

Neither am I convinced, by the way, that if I were to withdraw all these amendments and stop seeking to strip the legislation, there would automatically be a common position across all of the signatory countries. That is not my information. I am aware of at least two countries which have in fact brought in legislation that differs from that before us. Therefore, it behoves me to make the politically consistent case that the Irish parliamentary initiative is in fact to have the best legislation. Hence, I am not interested in dancing on the top of a pin about what is a danger to a civilian or not. If I am, I may well later be convinced as we move on. Whatever we decide in the end will obviously have my support. I am interested in crafting the best definitions. I am not convinced, for example, that my amendments would introduce confusion between anti-tank munitions and anti-personnel munitions. It is best to be straightforward about it. If the Minister wants Irish services to be able to continue co-operating with the use of such munitions, it is better to say so. It is not necessary to say to me that I do not understand the distinction between a missile aimed at a tank and one that has consequences for a person. I am well aware of it. That is why I have put down the amendment. I am disposed to press this amendment.

I accept fully the right of Deputy Higgins, as a parliamentarian, to seek the highest standards. However, we are not in isolation. By passing this legislation we are making a contribution, but we are also part of a global project. We have a certain degree of bona fides in this respect. I have a genuine sense that this legislation will become a template for many other countries and signatories to the convention. I am disposed to consider amendment No. 10 again and I will come back on Report Stage in this regard. I will consult again the Minister for Defence about it. I will not consider amendments Nos. 2 and 6, for the reasons I have already outlined, but I will certainly consider No. 10 again and see if I can accommodate it on Report Stage.

I can withdraw No. 10 when we come to it.

Amendment put and declared lost.

Out of courtesy to my fellow members of the committee I should point out it is my intention to press a division on one or two of the later amendments. However, I accept this.

Amendment No. 3 is in the name of Deputy Higgins.

I move amendment No. 3:

In page 4, subsection (1), to delete lines 21 to 33.

This is perhaps one of the most important amendments. Section 2 seeks to let in certain types of munition beneath the excluding bar of the prohibition. What I have suggested is that we delete certain lines in this regard. According to subsection (1)(2)(c), the definition of “cluster munition” does not include:

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 10 explosive submunitions;

(ii) each explosive submunition weighs more than 4 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;

To save time, let me say that the effect of my amendment is to eliminate these as exceptions. They are in fact dangerous. The condition is the avoidance of indiscriminate area effects and the risk posed by unexploded submunitions. This includes munitions in which each munition contains fewer than ten explosive submunitions, as in subparagraph (i). What if the first submunition has an effect? What is the position with regard to the others that were used in the form of a cluster? What about munitions in which "each explosive submunition is designed to detect and engage a single target object", as in subparagraph (iii)? All of the science is with me on this one. The research on the use of these munitions has shown they are in fact unreliable in their consequences.

Subparagraph (iv) refers to munitions in which "each explosive submunition is equipped with an electronic self-destruction mechanism". This is an argument made by those who want to retain such submunitions. It is again drawing a distinction between, as it were, old-fashioned indiscriminate weapons and newer, more refined, technologically equipped munitions. One must remember, with regard to the more global argument, the notion of smart bombs and so forth. I simply do not accept any of this. Subparagraph (v) states: "each explosive submunition is equipped with an electronic self-deactivating feature". Yes, it is true that some countries are disgracefully putting whole areas of other countries into a state in which they can never be used again and can never be traversed with safety. Some say that with the new generation of munitions we would be able to give to a peacekeeping force a map which would show the self-deactivating munitions. None of the evidence in this regard is convincing. I can see the argument the Minister might make that this was as much as we could get. However, this is one of the crucial issues. The section draws a distinction between a total bomb of such munitions and allowed exceptions. My amendment proposes to get rid of these exceptions.

I am not disposed to accept this amendment. The definition of what constitutes a cluster munition was one of the most difficult and contentious issues to be resolved during the course of the negotiations in Dublin. The guiding principle of the negotiations was to reach agreement on a prohibition of all cluster munitions that cause unacceptable harm to civilians. In the Bill we reproduced a definition that was agreed in those negotiations. That definition is comprehensive and meets the objective of prohibiting all cluster munitions that cause unacceptable harm to civilians.

The convention prohibits all types of cluster munitions that have ever been used in an armed conflict. Furthermore, and it is important to make this point, 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 prohibits cluster munitions proper. This is an extremely important provision which closes potential loopholes created by new technologies.

The effect of Deputy Higgins's proposed amendment would be to broaden the definition of a cluster munition to include munitions that are not regarded as cluster munitions for the purposes of the convention, and which are not prohibited by it. I said earlier that if we apply different standards, however desirable, in our own laws to those being adopted by other states and parties to the conventions, we seriously risk complicating international co-operation in the implementation of the conventions, particularly in the context of international peacekeeping operations. At worse, we could make it impossible. The convention sets out the standard to be met by all states involved in the negotiations. If each state in turn were to apply different standards in its domestic laws the conventions would become unworkable.

There is a fundamental point here. If we wished to do it this way, the argument could be made that we need never bother with conventions but that individual states could implement in their domestic laws whatever they desire to implement. We could then forget about everybody else and about international agreements.

The Minister is unfair in his last point, very unfair.

The point is that we spent more than 18 months in discussions and negotiations with other countries and we agreed with them that this is the agreed template for an international agreement. I have a problem with the position the Deputy adopts although I understand why he is doing so.

I can help the Minister to understand. This goes back as far as Talleyrand. People have been discussing issues diplomatically over the centuries. In the history of diplomacy, a convention has been established as the fixed point in what has been achieved. However, it does not preclude a state's actions as long as they are compliant with the boundaries of what has been agreed.

There is a difference between us but the difference is not about the Minister's respect for conventions or my disrespect for them. It is about how we constitute them. I suggest that in many cases a convention is a basic point. It is the outcome of a consensus that has been debated, as in this particular issue. I hope that all signatories will at least assent to this minimum. However, I interpret the function of the participating countries as seeking to do this much, and then more, in terms of what has been agreed. I do not believe this erodes trust, or that if we were to have a stronger piece of domestic legislation that it would undermine our credibility in any sense. It simply means that we wish to do more.

I can take the Minister's point. It is a most interesting issue in many ways. It concerns whether the life of those who negotiated this particular point is made more difficult if one party says that another party signed up to it but is subsequently legislating further. The answer is in a single word: Parliament. It is an old word. This is what parliaments do, what diplomats do, what conventions do. That is the issue. We do not need to repeat these arguments because it is a real difference between us.

I do not accept the distinction Deputy Higgins makes between diplomats and politicians. We are a continuum. Diplomats work under political direction. We know the intervention of the British Prime Minister, Gordon Brown——

It is rather like the relationship between the architect and the construction engineer.

The intervention of Prime Minister Gordon Brown was critical with regard to the British signing up to this. He made a distinct and important intervention and in that way gave political direction to his negotiators at the convention to accept certain points, particularly in respect of interoperability. Interoperability was a key issue as were definitions. Our diplomats came back to us for political direction. My predecessor gave political direction at the very start of the process. It is not as if the entire diplomatic negotiations were somehow divorced from the Executive and the Parliament.

That is not what I am saying.

To a certain extent the Deputy is implying this in the comments he made. There is a point of difference between us but I sense that at some stage of a process, if a country signs up with others, in good faith, and brings people along who might have been reluctant to do so in the beginning——

The difference between us is a most respectable one——

The Deputy risks undermining the whole process of developing an international convention. I doubt that he wishes to do so but that is a potential consequence if everybody unpicks an agreement in their individual parliaments and comes up with individual templates. If that transpires there is a danger of undermining the entire edifice.

Rather than undermine the entire edifice, I can tell the Minister how I understand it. For example, because we are able to have a meeting on another day I am able to see something that I did not look at or study before. The weakness of foreign affairs committees, even select foreign affairs committees, concerns the sacrificing of parliamentary intiative and scrutiny. I argue frankly for the sovereignty of parliament and I do so without casting reflection for a second on the excellence of the diplomatic endeavour. As I said, and I apologise for having interrupted the Minister, I see it rather like the relationship between an architect and a structural engineer. We design foreign policy and people with genius sometimes implement it. That is the distinction.

Is the amendment being pressed?

Amendment put.
The Committee divided: Tá, 1; Níl, 11.

  • Higgins, Michael D.

Níl

  • Ardagh, Seán.
  • Deasy, John.
  • Fahey, Frank.
  • Martin, Micheál.
  • Nolan, M. J.
  • O’Brien, Darragh.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • Shatter, Alan.
  • Timmins, Billy.
  • Woods, Michael.
Amendment declared lost.

Amendments Nos. 4 and 8 are related and may be discussed together.

I move amendment No. 4:

In page 4, subsection (1), line 36, after "Schedule 1” to insert the following:

", but Article 21(3) of the said Convention may not be relied on by the State".

Most of the discussion has already taken place and I do not propose to labour any of the points previously made. The issue which arises is, to some extent, of a practical nature. The legislation suggests the Defence Forces are prohibited from participating in military operations where cluster munitions will be used, with the exception of training for clearing purposes. I am unhappy with the reasoning in the text. My understanding is that the Minister has gone to considerable lengths to ensure no Irish citizen could be guilty of a criminal offence, namely, being involved knowingly or with the intention of co-operating with the placing of cluster bombs. I suggest this is a fair interpretation of the legislation.

It seems there is a get-out clause for countries which have not signed up to the convention or which are in possession of cluster munitions and intend to use them. The argument of Defence Forces personnel could be either that he or she did not know, or assumed it was not the intention of those with whom they were co-operating to use the bombs. I found it somewhat theological. Asked to judge as to whether one should respond to such practicalities of what one may or may not know about those with whom one is co-operating for peaceful purposes, with which I have no difficulty, the issue then arose about whether Irish forces should not co-operate with people who might be liable to use cluster munitions. I decided in the amendment to make it simple and that is the purpose of the amendment.

I understand where Deputy Higgins is coming from and it was an issue I referred to on Second Stage. In an ideal world, as I pointed out at the time, with the passing of time, such an amendment might not be necessary. However, adopting a pragmatic approach, if we were to support this amendment it may mean that Ireland could not participate in any of their current missions.

On Second Stage I reflected that I was not aware if Ireland has operated in any situation where cluster munitions have been used by those they are operating alongside. Does the Minister have that information? On occasion they may have been used as a defensive mechanism. When we think of cluster munitions we think of how they were used by countries in very aggressive offensive missions, but when one thinks of them in a defensive operation, one is inclined to look at them slightly differently. Notwithstanding that, we support the banning of cluster munition but it would impinge upon our peacekeeping and make us redundant.

While I understand where the Deputy is coming from, in an ideal world I would like to think that this amendment would not be necessary, but we are not in a position to support it.

The effect of these amendments is to prevent the participation of the Defence Forces in peacekeeping operations in countries that may or may not be parties to the convention on cluster munitions. These amendments will affect the provisions of the Bill concerning interoperability which, as I have said before, is the most difficult part of the convention. Article 21 of the convention is the most difficult to resolve and was only resolved at the last moment. I will go into some detail on Article 21 of the convention as it is an important background, and the provision of section 7 of the Bill which will implement it.

Provision is made in Article 21 of the convention for state parties to engage in military co-operation and operations with states which are not party to the convention that might engage in activities prohibited to a state party. This provision takes account of the fact that, at least initially, not all states will be party to the convention, and some states not party to it may wish to continue to use cluster munitions. It was a particular concern to members of NATO because the United States has been clear in its opposition to the Oslo process.

When considering Article 21 it is important to note 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 with these states to notify them of its own obligation under the convention, promote the norms established by the convention and make its best effort to discourage them from using cluster munitions.

Article 21(4) 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.

We believe the convention's prohibition on cluster munitions will, in time, become established as the norm and a new norm of international humanitarian law. This will happen when states begin to feel obliged to behave in accordance with it, whether they are party to it or not. This is what has happened in the context of the anti-personnel landmine convention and we hope to have a similar effect with the cluster munitions convention.

Article 21 of the convention is implemented by section 7 of the Bill and subsection (4) provides for particular circumstances which may arise on the participation of members of the Defence Forces in peacekeeping missions with states not party to the convention. On Second Stage I said the likelihood of our participation in such missions would be very low, so it is an unlikely scenario but one we have to provide for.

Section 6(1) of the Bill makes it an offence to use, develop, produce or acquire a cluster munition. Section 7(4)(i) deals with the situation in which a contingent of the Defence Forces is dispatched abroad for service in an international United Nations force in accordance with the Defence (Amendment) Act where the UN force concerned is one which has been authorised by the United Nations Security Council, and if the contingent consists of more than 12 members of the Permanent Defence Force its dispatch has normally been approved by Dáil Éireann.

The core is subsection (4)(ii) which deals with the situation in which a contingent or permanent member of the Defence Forces has, with the approval of the Government, been dispatched for service outside the State to carry out duties as a military representative, or fill an appointment or posting outside the State in accordance with the Defence Act. In both of these cases subsection (4) provides that a member of the Permanent Defence Force shall not be guilty of the offence of assisting, inducing or encouraging the commission of any of the offences created by section 6(1) of the Bill, which is to use, develop, produce, acquire, possess, retain or transfer to any person a cluster munition or an explosive bomblet. If he does any of these things himself he will of course be guilty of an offence.

Subsection (4) is intended to address only exceptional and very unlikely circumstances, such as where an Irish contingent of a UN-mandated peacekeeping force finds itself under attack and needs to call in air cover to relieve it. It may happen that air cover is provided by the forces of another state participating in the mission which is not a party to the convention, and it is conceivable that it would be delivered without the knowledge of the Irish contingent in the form of cluster munitions. The Bill provides that in such a scenario no member of the Defence Forces could be prosecuted for inducing or encouraging the use of cluster munitions contrary to section 6(2) of the Bill.

Everything possible will be done to avoid such a scenario occurring, and as I said during the debate on Second Stage, 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 a party will not arise.

If we were to find ourselves as members of a peacekeeping mission that included the armed forces of a state 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 there is no prospect of cluster munitions playing any role.

It is highly unlikely 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. In essence it is an ar eagla na heagla provision.

It sounds like it too and it reads like an ar eagla na heagla provision, and it is a matter of what we do about the eagla. Before I decide on it I want to ask the Minister to clarify another point. He used the word "transfer". My memory of the Ottawa convention was that one of its distinguishing features was the term "transfer", and if I remember rightly it uniquely demanded a duty of inspection if a person was transporting landmines. Does the same apply to this legislation?

I must check if that is the case. In practice what will happen is that if we are engaging with any other party in any peacekeeping mission, in drawing up the protocols, procedures and agreements before we become involved we will say we are a party to this convention and we do not want the use of cluster munitions in any shape, form or circumstance.

I have a question for the Minister and if he cannot answer it I shall return to it on Report Stage. I wish to ask a hypothetical question on section 7(5). Let us suppose there is a manned Irish position in Chad and a rebel group is on the offensive. The French arrive with cluster munitions, dump them and say, "We must go back to our post". The post commander must protect the people in the post, and the use of cluster munition as a defensive weapon may be the only way he can do that. Can he use them in such a situation?

No. He cannot use them.

What if the French ——

The reason for this provision is that we do not want an Irish soldier to be inadvertently subject to prosecution if an event happens that he or she has no control over.

Can one say to the French in that case, "Take away the cluster munitions; we cannot use them"?

As I said earlier, we went into Chad with prior knowledge of what it would entail. What happens is that an agreement is devised with the participating countries on the conduct of the peacekeeping mission. One also goes through a whole series of criteria, procedures, protocols, agreements and so on on how one will behave.

I am not pressing the amendment. I am withdrawing it on my understanding of the Minister's assurances on operability.

Amendment, by leave, withdrawn.

Amendments Nos. 5, 11 to 15, inclusive, 21 and 22 are related, and amendment No. 16 is consequential on amendments Nos. 11 to 15, inclusive. Amendments Nos. 5, 11 to 16, inclusive, 21 and 22 may be discussed together.

I move amendment No. 5:

In page 5, subsection (1), between lines 21 and 22, to insert the following:

""Register of Prohibited Investment in Cluster Munitions" shall mean the Register created insection 17(1) of this Act;”.

This amendment is simply a definition of a register. I wish to deal with amendments Nos. 21 and 22 which are similar to the Minister's amendments Nos. 11 to 16, inclusive. This issue was signalled in our Private Members' Bill where the National Pensions Reserve Fund could not invest in companies involved in the trade or financing of cluster munitions. Our amendments are slightly different from those of the Minster. I would like to hear his view on his own amendments, bearing in mind that we have sought a few additional things in our amendments.

The purpose of the Government amendments, which will introduce a new Part 4 in the Bill, is to provide that public moneys cannot be invested outside the State in the manufacture of those munitions which, under the provisions of the Bill and the convention, may not be produced lawfully within the State. To put it mildly, it would not be a coherent policy from the position of the State to prohibit the production of those munitions on our own territory while profiting from the production elsewhere. In many cases this requirement can be met, should the need arise, through a simple policy direction to the agency or body having charge of public money or its investment.

Deputies will be aware that a considerable part of the legislation passed by the House relates to the control, payment or investment of public moneys. Financial and accounting provisions are included in the legislation dealing with the establishment of State bodies and public schemes. Quite often these provisions are tailored to the structure and purpose of the body in question. The National Pensions Reserve Fund, NPRF, legislation, for example, requires the National Pensions Reserve Fund Commission to pursue a commercial investment approach and does not provide for ministerial directions or guidelines. I should point out that earlier this year the NPRF Commission decided to divest from companies involved in the production of cluster munitions in anticipation of the adoption of the convention, and it did not have any holding on the manufacture of anti-personnel mines. We appreciated that decision by the commission.

It was appropriate, therefore, to legislate for the State's wider obligations and to put in place a clear legislative framework providing that any statutory investment mandate is qualified by a requirement to exclude investments in cluster munitions and anti-personnel mine manufacturers. The amendment sets down the requirement to avoid initial investment of public moneys, directly or indirectly, in manufacturers of prohibited munitions. It also sets out clear requirements and guidelines for dealing with those circumstances where such investments occur despite the best efforts to avoid them.

The amendments insert a new Part 4 consisting of five sections dealing with the investment of public moneys. The new section 11 sets out the relevant definitions. Section 12 establishes the principle that nothing in any other enactment authorises the investment of public money, directly or indirectly, in manufacturers of prohibited munitions and requires that positive steps be taken to avoid such investment occurring. Sections 13 to 15, inclusive, set down more detailed rules for compliance with this principle. Section 13 deals with the question of direct investment by requiring the investor to avoid direct investment in relevant shares or bonds. Where such investment inadvertently occurs as a result of a merger or takeover, the section provides for a procedure for orderly withdrawal from that investment unless it is established that the company intends to cease manufacturing prohibited munitions.

In the case of indirect investment of public moneys, for example, through a buy-out or a venture capital fund, section 14 requires an appropriate level of due diligence to establish that there is not a significant probability that the investment vehicle will not in turn invest in manufacturers of prohibited munitions. It is impossible to eliminate totally all risk that the collective investment undertaking would end up with an investment in the manufacturer of prohibited munitions and that some share of that investment would be attributable to public funds. Where this eventuality arises, the section sets out the procedures for the manager of the public moneys. These include confirming that the company would cease manufacturing the munitions or that the investment vehicle will withdraw from the investment or that there will be an orderly withdrawal from the collective investment undertaking.

Section 15 provides that nothing in the previous provisions shall prevent the use of derivative financial instruments based on a financial index. It is a technical provision included for avoidance of doubt and to clarify that investment funds may continue to use financial forfeitures for risk management purposes. Financial forfeitures do not involve investment in any of the underlying stocks.

Amendment No. 16 is consequential on the introduction of a new Part 4 and limits the scope of the existing section 11, provision of information, to enforcement of Part 2, cluster munitions, and Part 3, anti-personnel mines.

Does the Minister have a view on the investment of private moneys as opposed to public moneys, as in banking institutions, especially since the Government has signed up to a register? It is probably incorrect language but——

Would it be helpful if I was to comment on the Deputy's amendments?

Yes, if that is possible, and also on the register of prohibited companies. Does the Minister agree that the register might be useful because members of the civilian population inadvertently may invest in companies that manufacture cluster munitions as I am sure the National Pensions Reserve Fund invested in companies that it was not aware manufactured them until it sought out the matter.

The Deputy's amendments were based on a Bill he introduced last year or earlier this year. Those were examined in the legal division of my Department and in the Attorney General's office. The advice I have received is that restrictions on private investment outside the State gives rise to issues of EU law in regard to the rules on free movement of capital established by the Treaty of Rome. The issues require very careful consideration as well as consultation with the European Commission to establish whether legislative competence lies at national or Community level. It is particularly problematic where not all EU member states are party to the Convention on Cluster Munitions as appears likely to have been the case at least in the early stages. Given the very short timeframe available for enactment of the Bill, those kinds of issues could not be resolved in the time leading up to it.

In regard to the register of prohibited investments, the Bill does not prohibit such investment except in Ireland. There will be no companies lawfully engaged in the production of these weapons in Ireland. In addition, there have to be practical questions about the utility of such a register. What purpose would a register serve if investments by private individuals or companies in activities are lawful in other countries? In other words, if it is lawful somewhere else, how could we have an accurate or complete register of people who may be dual citizens and who may be investing in other countries that have not signed up to the convention?

In fairness, the whole import of the convention and this amendment in particular is to deal with State investments and any moneys controlled by the public purse to ensure it does not find its way into——

Did the Minister say it is not possible to keep a register? In regard to his own amendment, he said that public funds may be invested inadvertently in such companies.

I did mention that. It can happen if one invests in a company that is taken over by another company and so forth. Once that becomes apparent, the legislation obliges the manager to divest and take the money out of the company or else get a commitment from the company that it is no longer a manufacturer of the munitions or involved in them.

Does the Minister not think the register would be helpful?

Normally we would put the names of tax defaulters on the type of register the Deputy mentioned. If an Irish citizen is investing in a country where such investment is legitimate, irrespective of whether we agree with it, I would query the validity of registering them.

When this legislation becomes a model, which I presume it will, for the other signatories and the convention is signed by the United Kingdom, will that mean that the production of, say, cluster munitions in Derry or elsewhere in Northern Ireland will fall under the lash of similar legislation introduced by the United Kingdom?

I wish to make two small points in this regard, and I am disposed to supporting the amendments. Deputy Timmins's amendment No. 22 on the issue of the register is a good one. It would be of powerful assistance as a moral suasion for compliance in terms of the general abhorrence of the production, transfer and use of cluster munitions.

I find amendment No. 15 intriguing and do not consider it to be necessary. I ask the Minister to consider it carefully for Report Stage, as opposed to shaking any holy water on that kind of virtual derivative financial instrument. The notion of the amendment is that if one is contracting derivative instruments, there is surely a duty on one to know it is based on a financial index. I am not convinced by any of these arguments about people who did not know what they were doing and where their money went and so forth. I question the necessity for the inclusion of amendment No. 15. I am sympathetic and supportive of Deputy Timmins's amendment No. 22 and have no difficult with the Minister's amendments.

On the first point regarding a register, it would have to have a degree of practical application. Who would compile such a register? How would one ensure that it is an exhaustive, complete and accurate register? In essence, we would have to trawl the world to compile it.

They would be public funds.

We would have to trawl, on a continual basis, to establish what companies are involved and which Irish citizens are becoming involved. At a time when critical examination of the utilisation and role of public servants is the subject of national debate, this would involve the recruitment of an agency to do this work or for some public servants to do nothing else but track this detail. There is a practical dimension to this which I must raise. I will consider it again for Report Stage.

How will it be tracked with the investment of the public moneys? Will the same problem not arise?

No, we are making this a legal obligation in the first instance, which is an important point. In other words, it is illegal and we are disallowing the NPRF Commission from investing and so on. It is far easier to track our own State agency and its work than it is to track a whole——

I realise that.

I will consider it again in the context of Report Stage.

I may come back to it on Report Stage.

On Deputy Higgins's point——

He wanted the Minister to reconsider amendment No. 15.

When introducing a measure such as this cluster munitions Bill, one would hardly believe that one would get a useful tutorial and crash course on the markets and financial derivatives as well as a tutorial on armaments and munitions. It is a fascinating journey, apart from the political one of ratifying a convention. One never knows where one will end up.

These are toxic products.

I am reliably informed in terms of risk management and so on that the amendment is important.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6.

Amendments Nos. 7 and 9 are cognate and they may be discussed together.

I move amendment No. 7:

In page 6, subsection (3), between lines 27 and 28, to insert the following:

"(a) is committed by an Irish citizen or gives rise to injury to or death of an Irish citizen,”.

The purpose of amendments Nos. 7 and 9 is to extend the extraterritorial scope of the offence to ensure that offences committed by or against an Irish citizen are prohibited. The subsection contains a list covering details of where such an act is prohibited and my amendment proposes the addition of the words "an Irish citizen" to paragraph(a).

Section 6 creates certain criminal offences in regard to cluster munitions and explosive bomblets in accordance with the obligations the State will assume under the Convention on Cluster Munitions. Section 9 creates similar offences in regard to anti-personnel mines. Both provisions extend the jurisdiction of the State in regard to these offences beyond the territory of the State to acts committed on board Irish-registered ships or aircraft or where committed by members of the Defence Forces. This is in accordance with established principles of international law.

Deputy Higgins's proposed amendments would further extend the jurisdiction of the State to cover cases in which the perpetrator of an act is an Irish citizen. My advice is that, as a matter of legal policy, Ireland has only on a very limited basis ever extended criminal jurisdiction in such a manner. This is primarily because of the very large number of Irish citizens around the world, many of whom are dual nationals. The State has accordingly been very conservative in exercising jurisdiction on this basis and has only done so where there is very broad international consensus with regard to the character of activity concerned such as murder, manslaughter, certain sexual offences, etc. It would clearly be very problematic to extend criminal jurisdiction over acts that are lawful if committed in another state of which the perpetrator is a citizen. For those reasons, I am unable to accept the Deputy's proposed amendments.

I am disappointed. When I was framing this amendment what I had in mind were Irish mercenaries, and there are such. Effectively, there is a limitation in the provision covering a ship, aircraft and the professional vocation of the Defence Forces. If the act is reprehensible and wrong, it is an act of moral activism to direct one's attention to, for example, mercenary activity. In other legislation on the armaments industry, I would be following this in a slightly different way, but I thought this might have been a useful inclusion. I would like the Minister to agree to consider it between now and Report Stage, taking into consideration the arguments I have made.

The problem is that the amendments potentially would catch an Irish citizen who would be a member of the United States armed forces. I presume that is not the Deputy's attention. I know that the Deputy would not perhaps have a great——

You do not have a cousin there?

I will quit while I am ahead. In terms of mercenaries, we will consider that aspect. Perhaps we would do something specifically around mercenaries.

We will see. I am not giving a commitment on that. I will reflect between now and Report Stage and come back to the Deputy.

I thank the Minister and will withdraw my amendment.

Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTION.

Amendment No. 8 has already been discussed with amendment No. 4. How stands the amendment?

I move amendment No. 8:

In page 6, before section 7, to insert the following new section:

7.——The Defence Forces are prohibited from participating in military operations where cluster munitions will be used with the exception of training for clearing purposes.".

We have already discussed this amendment. In view of the fact that it will not be carried and that I have extracted quite an elaborate suggestion from the Minister as to the matter of implementation and his suggestions in regard to prior talks about participants in joint forces and campaigns, I will withdraw it.

Amendment, by leave, withdrawn.
Section 7 agreed to.
Section 8 agreed to.
SECTION 9.

I move amendment No. 9:

In page 8, subsection (3), between lines 26 and 27, to insert the following:

"(a) is committed by an Irish citizen or gives rise to injury to or death of an Irish citizen.”.

I intend to withdraw the amendment on the understanding that the Minister will examine the issue of mercenaries between now and Report Stage.

Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
NEW SECTIONS.
Amendment No. 10 not moved.

I move amendment No. 11: In page 9, before section 11, but in Part 3, to insert the following new section:

"PART 4.

INVESTMENT OF PUBLIC MONEYS

11. —In this Part —

"components" means components specifically designed for use in prohibited munitions;

"investor" means a person or body responsible for the investment of public moneys owned by a Minister of the Government;

"munitions company" means a company involved in the manufacture of prohibited munitions or components;

"prohibited munition" means a cluster munition, explosive bomblet or anti-personnel mine;

"public moneys" means moneys provided by the Oireachtas out of the Central Fund, or the growing produce thereof.".

Amendment agreed to.

I move amendment No. 12:

In page 9, before section 11, but in Part 3, to insert the following new section:

12. —(1) Nothing in any enactment that authorises the investment of public moneys shall be taken to authorise any investment, direct or indirect, in a munitions company.

(2) Notwithstanding any other enactment, an investor, in the performance of any function conferred on it by or under any enactment, shall endeavour to avoid the investment of public moneys in a munitions company.

(3) In pursuing the objective set out insubsection (2), an investor shall have regard to the matters set out in this Part.”.

Amendment agreed to.

I move amendment No. 13:

In page 9, before section 11, but in Part 3, to insert the following new section:

13. —(1) An investor shall endeavour to avoid the direct investment of public moneys in equity or debt securities issued by a munitions company.

(2) Where public moneys are directly invested in a company which is or becomes a munitions company, the investor shall—

(a) establish to its satisfaction that the company intends to cease its involvement in the manufacture of prohibited munitions or components, or

(b) divest itself of its investment in that company in an orderly manner.”.

Amendment agreed to.

I move amendment No. 14:

In page 9, before section 11, but in Part 3, to insert the following new section:

14. -(1) An investor shall avoid investing public moneys in collective investment undertakings or investment products unless, having exercised due diligence, the investor is satisfied that there is not a significant probability that the public moneys will be invested in a munitions company.

(2) Where public moneys are invested in a collective investment undertaking or investment product which invests these moneys in a company which is or becomes a munitions company, the investor shall—

(a) establish to its satisfaction that—

(i) the company intends to cease its involvement in the manufacture of prohibited munitions or components, or

(ii) the collective investment undertaking or investment product intends to divest itself of its investment in the company,

and that there is not a significant probability that the collective investment undertaking or investment product will again invest public moneys in a munitions company,

(b) so far as possible, taking into account any contractual obligation it has assumed, divest itself of its investment in that collective investment undertaking or investment product in an orderly manner.”.

Amendment agreed to.

I move amendment No. 15:

In page 9, before section 11, but in Part 3, to insert the following new section:

15. -Nothing in this Part shall prevent an investor from contracting derivative financial instruments based on a financial index.".

Amendment agreed to.
SECTION 11.

I move amendment No. 16:

In page 9, subsection (1)(a), line 36, after “of” to insert “Part 2 or 3 of”.

Amendment agreed to.

I move amendment No. 17:

In page 9, subsection (1)(b), line 38, to delete “Convention on Cluster Munitions” and substitute “Cluster Munitions Convention”.

Amendment agreed to.

I move amendment No. 18:

In page 10, lines 15 to 18, to delete subsection (3) and substitute the following:

"(3) A person who—

(a) fails to comply with a requirement under subsection (1), or

(b) in response to such a requirement, knowingly or recklessly provides the Minister with information or documentation that is false or misleading in a material respect,

is guilty of an offence and is liable—

(i) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 2 years or both.".

I also propose to delete section 12. These amendments are made to address the anomaly that was overlooked at the time of publication, namely, that a higher maximum penalty applied under section 12 for providing false or misleading information than that which applied for refusing to provide information under section 11. The amendment proposes merging the two and providing for the same penalties.

Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 deleted.
SECTION 13.

Amendment No. 20 is related to amendment No. 19, therefore, amendments Nos. 19 and 20 may be discussed together by agreement.

I move amendment No. 19:

In page 10, paragraph (b), line 34, to delete "€250,000" and substitute "€1,000,000".

This amendment seeks to increase the fine from €250,000 to €1 million. With respect to amendment No. 20, which is more important, the Minister mentioned earlier the additional cost and burden being placed on the public sector. If somebody is found with illegal waste on their property, they must meet the cost of disposing of it. Likewise, I believe that if somebody is involved in the production of cluster munitions and the munitions must be disposed of, the State should not have to pay for the disposal.

I am sympathetic to the Deputy's amendments. I will submit them to the Parliamentary Counsel before Report Stage to ensure they are in order.

I thank the Minister.

Amendment, by leave, withdrawn.
Section 13 agreed to.
Section 14 agreed to.
Amendment No. 20 not moved.
Section 15 agreed to.
Amendments Nos. 21 and 22 not moved.
Schedules 1 and 2 agreed to.
Title agreed to.

I thank the Minister and his officials for attending the select committee and for the explanations they provided. I also thank Deputies for the amendments they tabled and their full participation on Committee Stage.

Bill reported with amendments.