Second reading of Bill S-235, An Act to amend the Prohibiting Cluster Munitions Act (investments)Published on 30 May 2017 Hansard and Statements by Senator Elizabeth Hubley
Hon. Elizabeth Hubley (Deputy Leader of the Senate Liberals):
Honourable senators, I rise today to speak at second reading of Bill S-235, an Act to amend the Prohibiting Cluster Munitions Act. As many of you may know, my interest in land mines and cluster munitions first began when I was appointed to the Senate in 2001 and met land mine survivors through my involvement with the Canadian Landmine Foundation. I was inspired by the survivors’ courage and determination to lead productive and fulfilling lives in spite of their terrible injuries. This is an issue I feel very passionately about.
On December 3, 2008, Canada signed the Convention on Cluster Munitions in Oslo, Norway. The convention entered into force on August 1, 2010. To date, 119 states have joined the convention in the form of 101 states parties and 18 signatories.
In March 2015, Bill S-10, an Act to implement the Convention on Cluster Munitions, was given Royal Assent, making Canada a state party to the convention. This legislation solidified Canada’s support of the convention, which seeks to address the humanitarian consequences and irreparable harm to citizens caused by cluster munitions through categorical prohibition.
The convention prohibits all use, production, stockpiling and transfer of cluster munitions. Additionally, the convention enacts a framework to ensure adequate care and rehabilitation for survivors, clearance of contaminated areas, risk reduction, and the destruction of existing stockpiles.
As the international community has collectively worked towards the prohibition of cluster munitions, Canada has not only actively participated but also demonstrated clear leadership. Canada set a strong example for other signatories and states parties to the convention, having completely destroyed all stockpiles well before the obligatory eight years after the convention becomes law.
Canada also participated in the Oslo process that provided the Convention on Cluster Munitions and advocated for strong provisions on victim assistance and on international cooperation and assistance. Canada has participated in all of the convention’s meetings and has actively advocated against the use of cluster munitions in countries such as Syria.
It is clear, however, that our current laws do not go far enough. As the official critic for Bill S-235, I believe that this bill helps to bring the Prohibiting Cluster Munitions Act in line with the spirit of the convention. Although the convention does not explicitly ban the investment of cluster munitions, Article 1 of the convention reads:
1. Each State Party undertakes never under any circumstances to . . .
(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.
This has been widely interpreted to include investment in any entity that has breached a prohibition within the convention. Bill S-235 bridges this gap.
Explicitly prohibiting investment in cluster munitions manufacturing would set clear guidelines for Canadian financial institutions. In fact, during a meeting on this subject with Mines Action Canada in February of 2010, Canadian financial institutions welcomed the idea of clear legislation that would help them to craft their policies.
Our financial institutions have recognized the problem of cluster munitions and are moving towards disinvestment. By amending our current legislation to include a strict prohibition on investment through Bill S-235, we can ease this process.
Last week PAX, a Dutch peace group, released a report that noted clearly that Canada is one of seven states that have joined the convention with financial institutions that continue to invest in cluster munition producers. This report listed three Canadian financial institutions. As stated in their report:
Fortunately, more and more financial institutions have acknowledged that cluster munitions producers are not ethical or viable long-term business partners and have installed a public policy to end investments in these companies.
As mentioned by Senator Ataullahjan, these weapons cause two problems for non-combatants. First, at the time of use, the large area — up to a square kilometre — covered by these weapons puts nearby civilians at risk.
Second, although these munitions are designed to explode on impact, not all do. This leaves a significant number of unexploded munitions after the military action has finished, threatening civilians when they return to the area at a later date; 98 per cent of all known cluster-munition casualties have been civilian.
I mentioned that Canada’s current legislation does not go far enough. Colleagues, even though this bill brings us one step closer, I wanted to take this opportunity to highlight the gaps in our current legislation, which have received international criticism.
On the Standing Senate Committee on Foreign Affairs and International Trade, when it studied Bill S-10 for four weeks in 2014, we heard from almost 30 witnesses, including the Minister of Foreign Affairs and International Trade; department officials from DFAIT, DND and Justice Canada; NGOs; independent legal experts; and individuals involved with the negotiation of the convention.
By and large, the witnesses all agreed on these main points: Cluster munitions are terrible weapons that harm civilians. The Convention on Cluster Munitions is an important international treaty. Canada supports the convention and international efforts to discourage the use of cluster munitions and support victims. Canada has never itself produced or used cluster munitions. Canada has no intention of ever using cluster munitions in the future. Finally, Canada strives to be a world leader in the humanitarian protection of civilians.
Where they differed was in their interpretation of Bill S-10 and whether or not they felt it adequately reflected Canada’s professed values and intentions when it comes to cluster munitions and the convention. In other words, does the bill do what we want it to? Is it good enough as is, or can it be improved?
Here we discussed the issue being addressed by this legislation: the need for an explicit prohibition of investment in cluster munitions producers. We also discussed the issue of interoperability: the joining of our military or equipment for operations with other states.
Canada’s Prohibiting Cluster Munitions Act contains a section on joint military operations that raises many concerns. As noted by the Landmine and Cluster Munition Monitor, during joint military operations with states not party to the Convention, the Act permits Canadian Armed Forces and public officials to undertake the following activities, arguably violating the prohibition on assistance:
- “Transporting” cluster munitions in the possession or under the control of the state not party;
- “Aiding, abetting or counselling” another person with a prohibited activity if that activity is not prohibited to the other person;
- “Conspiring” with another person to perform a prohibited activity if that activity is not prohibited to the other person; and
- “Receiving, comforting, or assisting” someone who has committed a prohibited act if that act was not prohibited to the other person.
Finally, colleagues, I would like to note that the Prohibiting Cluster Munitions Act, in its current form, does not explicitly prohibit the transit or foreign stockpiling of cluster munitions. If we are determined to never use cluster munitions and to work toward their eventual elimination, then we certainly should not be allowing our Canadian Forces to use them while on a combined mission.
Land mines are no longer widely used, and the few countries that still do use them face global condemnation. We have successfully stigmatized this weapon, and that is precisely what we hope will eventually happen with cluster munitions.
Furthermore, as cluster bombs are imprecise and designed to cover large areas, they can wreak havoc on a community’s economic livelihood. Unexploded cluster bombs can instantly turn what was once a productive orchard into no man’s land and render roads impassable, stifling trade and commerce.
They are also an impediment to post-conflict rehabilitation and reconstruction, as they can prevent the return of refugees and can undermine peace building and humanitarian assistance programs. Ultimately, cluster bombs cause horrendous human suffering and, in the age of modern warfare, are becoming increasingly obsolete.
Senators, Canada is currently one of 28 states to have not yet passed legislation against investment in cluster munition production. Our current legislation does not go far enough, but Bill S-235 will bring us closer to fully fulfilling the full intention of the Convention on Cluster Munitions. I hope that you will join me in supporting the timely and successful passage of this legislation.