Evidence of meeting #6 for Foreign Affairs and International Development in the 41st Parliament, 2nd session. (The original version is on Parliament’s site.) The winning word was munitions.
A recording is available from Parliament.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
I was just going to ask for clarification on the stockpiles that are going to be disposed of. Does that exclude a small portion that will be used for training purposes? Is there no sort of expiry clause on those until you decide that you can't use them anymore?
Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
To provide further information, the stockpile awaiting destruction is 12,597 rounds of 155-millimetre artillery shells, dual-purpose improved conventional munitions. The convention would permit the retention of a small number of those for the purpose of training in clearance or developing countermeasures. That's within the convention itself.
While there has been some discussion of that, there are no current plans to retain any of those stockpiles. But if that were to be done, the convention would permit it and the legislation before you would permit it as well, but only for those narrow purposes.
Legal Counsel, Criminal Law Policy Section, Department of Justice
Just a note that it's covered by clause 8, Mr. Chairman.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Given the excellent commentary from colleagues around the table and from the experts, I don't think I'm allowed to do this but I would be prepared to withdraw the amendment. But I think you might have to put it to a vote since I'm not a member of the committee. I don't know if I'm allowed to withdraw.
Conservative
The Chair Conservative Dean Allison
I would need unanimous consent, so I guess my question is, do we have unanimous consent for Ms. May to withdraw the motion?
Okay, we have unanimous consent.
Thank you very much.
Conservative
The Chair Conservative Dean Allison
We'll then move on to Green Party amendment 3.
Ms. May, the floor is yours.
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
On this one, I'm more confident that I believe the legislation will be much improved by this. I think a lot of the commentators who have looked at this legislation are concerned that we have too many exemptions for activity that is in the course of military cooperation. In order to make this convention as effective as possible in banning the use and possession of cluster munitions, I'm proposing Parti Vert amendment 3. We're still at clause 6 on page 4, adding an additional prohibition against:
(i) in the course of military cooperation or combined military operations involving Canada and a state not a party to the Convention, knowingly transport or engage 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.
What I'm proposing you do as the committee is to incorporate in clause 6 a clear prohibition so that the intent of the convention and Canada's ratification of it forms a complete statement of integrity that we will not be engaged in the use of cluster munitions, even in the situation where we are in military cooperation with a state that is not a party to the convention.
Conservative
Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
Ma'am, the reason for not including this is twofold. I'll speak to transport and I'll speak to assistance, or transport-related activities, separately.
In either case, the convention itself does not prohibit that activity and the bill was drafted to include only those activities that are prohibited by the convention itself.
With respect to transport, however, the Canadian Forces has already made it clear that it will nonetheless be prohibited within the directive of the Chief of the Defence Staff, that will be issued following royal assent for Bill C-6. That would prohibit the transport of cluster munitions on vehicles or vessels owned by or controlled by the Canadian armed forces.
Violation of that, I should note for the record, would be punishable under the code of service discipline, either as disobedience of a lawful command or as conduct to the prejudice of good order and discipline. So there would be potential penal sanctions for violation of that, which would flow from that directive itself.
With respect to activities related to the transport of a cluster munition, that could cover a vast range of potential activity that could take place in the context of combined operations or military cooperation with a state not party. Guarding an airfield from which states not party to the convention are flying aircraft carrying cluster munitions, for example, or providing air traffic control services or services to a ship on a port visit to Canada that is known to carry cluster munitions, all of that would potentially be captured by the concept of activities related to the transport of cluster munitions.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I just have what may seem to be an obvious point.
I appreciate, Lieutenant-Colonel, your point that it isn't precluded by the convention. But in the context of international negotiations, any global convention has the aim of having every party, every country around the world, ratify it. To be a fully global, effective convention every government should become a party. In that context, a convention wouldn't anticipate the behaviour of non-parties generally because the hope is that every government will ratify and therefore this is closing a loophole by saying that in a period of time let's hope that all governments will ratify this convention. Then I wouldn't need this particular provision to the prohibitions list. But in a period of time where we know that some rather large players are not ratifying, this would be one way of improving the ambit of the convention. I think the fact that it wasn't anticipated in the convention language, with all due respect, is not a strong argument, because one would hope that every government would eventually ratify.
Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
To address that, Madam, universality of the prohibitions within the convention, universality of state membership, would be the ideal. It would certainly avoid any need for interoperability provisions within the convention itself or within the domestic legislation.
This was an issue through the negotiations. Working with states not party to the convention was expressly contemplated as a recognition of reality at least at this stage. Article 21 was drafted for that purpose as a necessary transition provision to allow states such as Canada with interoperability concerns to nonetheless join the convention, recognizing that they still might need to work with states not parties to the convention until such time as those states join. It was in that context contemplated, with the overall object and purpose of the convention being a universal ban on cluster munitions, a meaningful article 21 that permitted interoperability, of the sort that we've discussed, allowed numerous states to join that wouldn't have been able to and contributed to that object and purpose.
Legal Counsel, Criminal Law Policy Section, Department of Justice
Very quickly, Mr. Chairman. It will save time, perhaps, because this is a recurring issue obviously with both the bill and the convention.
The legislation was specifically drafted with what lawyers would call a class closing rule in it. If you look at the way clause 11, in particular, has been drafted, apart from what is permitted as an exception to the prohibitions in clause 6, there are two other requirements. Number one, there has to be military cooperation and a person who's permitted to engage in that military cooperation, but the military cooperation has to be with at least one non-party state. The intention of this is that as more and more countries ratify the convention and join the convention, the permitted exclusions from the offences will become narrower and narrower. If every country ratifies it, there will be no exceptions under this bill except for the ones in clause 12 for defensive research and that sort of thing. If all of our allies ratify it, then the practical effect will be the same. The idea is to close this down, as Lieutenant-Colonel Penny said, as more and more countries renounce cluster munitions.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
You bring up the point that transport is not mentioned in the convention. Nevertheless when this receives royal assent, the Chief of the Defence Staff will issue a directive forbidding transport to occur, if I understood you correctly. We're trying to make sure that this legislation is clear. I'm just wondering why we shouldn't put it in this legislation as opposed to—I don't mean this the wrong way—at a lower level within a directive in the Department of National Defence.
Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
As I said, within the Canadian armed forces that directive of the prohibition against transport will prevent transport within vehicles and vessels under our ownership or control. Transport itself would also potentially capture issues such as transit by a non-state party, which would be not something the Canadian armed forces itself is doing but, for example, a port visit or overflight by a non-state party would be considered in many respects transport of munitions. This prohibition would extend beyond the Canadian armed forces itself.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
But the directive could be changed later on without Parliament, in any way, having any say in it.
Directorate of International and Operational Law, Office of the Judge Advocate General, Department of National Defence
That is correct, sir, but the government and the Canadian Forces are on record as saying that this is the policy that will be implemented. And as indicated, violation of that policy that will be reflected in the Chief of the Defence Staff directive would give rise to penal sanctions for individuals engaged in that activity.
