With the final decision on draft legislation for cluster munitions being deferred for some months now, this is not the place to again rehearse arguments based on either international humanitarian law, general treaty obligations, or the role of a middle-powers such Australia in norm entrepreneurship. Rather, I seek here to highlight two possible ways in which individual Australians will be needlessly faced with operational implementation and moral dilemmas that the Senate must ensure are addressed by immediate amendment to the current bill.
That is, why two loopholes in the Cluster Munitions Prohibition Bill (2010) makes for one big cluster fuck.
For some months now, experts critiquing the bill have argued it contains within it two significant loopholes relating to “military interoperability” and “indirect investment”.
Military interoperability refers to that part of the draft legislation that permits Australia’s military allies that are not party to the convention unfettered access to stockpile, retain and transit cluster munitions within Australia, as well as allowing Australian military personnel to actively assist in cluster munitions-related activities during joint military operations with our non-signatory allies. Removing this first loophole remains the primary focus of the Fix the Bill campaign run by the Australian branch of the Cluster Munition Coalition, as well as the campaign launched by GetUp in mid-August 2011, while it is being defended by the Australian government’s Department of Foreign Affairs and Trade, Department of Defence, and the Attorney-General’s office.
Indirect investment refers to holdings in foreign companies that produce cluster munitions as part of its broader business activities — such as components manufacturers or firms with sufficiently diversified businesses. Australia’s restrictive reading of the convention does not meet the standards set by the respective governments of New Zealand, Ireland, Holland, Luxembourg and Belgium, who have in their domestic legislation included statements specifically banning investment and provision of other financial services — such as banking, loans and equity — to companies that either develop or produce cluster munitions.
Other governments, including those of Britain, Germany, France, Switzerland, Lebanon, Mexico, Norway and Rwanda, have all publicly stated that they interpret the convention as including a prohibition of direct (i.e. firms that specialise in producing cluster munitions — of which none presently exist) and indirect investment. Removing this second loophole remains the focus of a small number of individual experts and the largest grouping of superannuation funds in Australia, the Australian Council of Super Investors, who represent more than $300 billion in assets. At the same time the Department of Foreign Affairs and Trade is attempting to maintain the present loophole, against the best advice of the Attorney-General’s office.
Combined, these two loopholes will have unintended negative consequences for Australia.
Military interoperability will needlessly burden the Australian Defence Force and its members with a complex operational and moral dilemma as they operate in the field, in my view. For instance, it is expected that a specialist in the Australian Defence Force embedded within American headquarters will not be permitted to be actively involved in the planning or actual deployment of the cluster bombs in the American arsenal.
What a tremendously conflicted message that sends to any Australian soldier in the field — as an Aussie soldier you are not permitted to deploy cluster bombs due to your country’s humanitarian concerns, but it is expected you will operate alongside Yanks while they do. I fear that directive will not be so easily resolved as it may sound.
Indirect investment will undoubtedly burden Australian superannuation (pension) funds by banning one avenue of investment in cluster munitions producers and not others. For instance, the bill would require Australian super funds to direct their overseas-based investment managers to cease direct investment in cluster munitions producers, while explaining to them that Australian legislation does permit indirect investment in firms involved in the development and production of cluster munitions (i.e. holdings in firms that either produce other goods as well as cluster munitions). This could be a long conversation, since the distinction between direct and indirect investment is not one that is made elsewhere — and there are few armaments of any type that are produced by such specialist firms as to trigger this direct investment classification.
Thus, a British investment manager who is tasked with allocating the funds of an Australian super fund, will be banned from all types of investment in cluster munitions producers under British law, but may continue to invest in all seven current cluster munitions producers for their Australian clients.
Quite apart from the sound humanitarian arguments made against the deployment of cluster munitions, the current bill is unfairly and inappropriately outsourcing the function of upholding an international norm to various individual Australians.
As things presently stand, only the members of the Senate can avoid burdening individual military personnel and super fund trustees with one big headache.
*NAJ Taylor is a PhD candidate in the School of Political Science and International Studies at the University of Queensland, and casual lecturer in the Faculty of Law and Management at La Trobe University