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The Cluster Munitions Prohibition Bill

NOTICE TO EXPORTERS - 2009/27 - 27 November 2009

1. Purpose of the Bill

The Cluster Munitions (Prohibitions) Bill will implement the UK’s international obligations under the Convention on Cluster Munitions (CCM) which the UK signed on 3 December 2008. The Bill will enable the UK to proceed with ratification and become a State Party to the CCM when it enters into force, as expected, in 2010.

 

2. When the Bill’s provisions will enter into force

The Bill was announced in the Queen’s Speech and introduced on 19 November 2009 in the House of Lords. Depending upon its Parliamentary progress it could enter into force as early as May 2010.

 

3. Effect of the Bill

This legislation will establish in UK law the CCM’s prohibitions by creating criminal offences to:

  • Use a prohibited munition;
  • Develop or produce a prohibited munition;
  • Make arrangements under which another person acquires a prohibited munition (acquisition is defined in clause 3 of the Bill);
  • Have a prohibited munition in your possession;
  • Transfer a prohibited munition (transfer is defined in clause 3 of the Bill); or
  • Make arrangements under which another person transfers a prohibited munition.

It will also be an offence to assist, encourage or induce any other person to engage in any of these prohibited activities.

Guidance on implementation will accompany the Act when it enters into force.

 

4. Extent of Application

The offences will apply to conduct taking place on UK territory, and to conduct by any UK national wherever they are.

 

5. Penalty

Anyone found guilty of one of the above offences faces a maximum penalty of a 14 year prison term, or an unlimited fine, or both.



6. Prohibited Munition

The Bill’s provisions apply to cluster munitions, and to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to an aircraft, as defined in Article 2 of the CCM. The key definitions from Article 2 are:

“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;

“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;

The following related terms defined in the CCM are also set in Schedule 1 of the Bill: explosive submunition; unexploded submunition; self-destruction mechanism; self-deactivating; and dispenser.

 

7. Defences

The Bill provides for exemptions (known as “defences”) to the prohibitions where the activity is for certain purposes permitted under the CCM:

  • Enabling the prohibited munitions to be destroyed (under Article 3 of the CCM States Parties have an obligation to destroy their stockpiles of cluster munitions);
  • Training in techniques in detection, clearance or destruction of prohibited munitions; and the development of cluster munition counter measures (Article 3 of the CCM permits the retention of a limited number of cluster munitions for such purposes); and
  • For the purposes of any criminal proceedings under the Bill.

Authorisation by the Secretary of State for Defence is required for the possession, transfer or acquisition of prohibited munitions for these purposes; or making arrangements for their acquisition or transfer.

 

8. Existing Controls

Cluster munitions and specially designed components are already subject to export and trade (trafficking & brokering) controls. The Export Control Order 2008 placed cluster munitions in Category A of the trade controls, making them subject to the most stringent controls. Cluster Munitions will remain in Category A.

A licence will therefore still be required from the Export Control Organisation in BIS to:

  • Export cluster munitions from the UK; or
  • To supply or deliver, or do any act calculated to promote the supply or delivery of, cluster munitions between third countries.

An import licence will also be required (from the BIS Import Licensing Branch) to import cluster munitions.

Licences will only be issued if the importer, exporter or trader can demonstrate that the munitions are intended for a permitted purpose and, where necessary, has the necessary authority of the Secretary of State for Defence (as described above).

 

9. Further Information

The FCO is the lead department on the Bill. Further information can be found on the FCO website: http://www.fco.gov.uk/en/global-issues/weapons/cluster-munitions/

For further details of strategic export controls please contact the ECO.

 

This notice is for information purposes only and has no force in law. Please note that where legal advice is required exporters should make their own arrangements.

 

Export Control Organisation

27 November 2009
NTE200927

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