Second reading of Bill S-225, An Act to amend the Prohibiting Cluster Munitions Act (investments)

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I am pleased to speak to Bill S-225, which is sponsored by Senator Ataullahjan. This bill amends a piece of legislation passed by Parliament in November 2014, the Prohibiting Cluster Munitions Act, which implements the Convention on Cluster Munitions. This convention was adopted on May 30, 2008, and entered into force on August 1, 2010. To date, 32 other countries have passed legislation to bring the convention into force and another 20 are working on it, while 83 others consider their legal framework to be sufficient.

As the name suggests, the convention covers cluster munitions, which are weapons designed to disperse or release explosive submunitions. If these submunitions end up unexploded on the ground, they can then kill or injure people in the same way as anti-personnel mines.

The convention has several objectives, including a ban on the production of cluster munitions unless they are equipped with self-destruction and self-deactivation mechanisms, the destruction of existing stockpiles, a ban on the export and import of such weapons, the clearance of contaminated sites, risk reduction education and victim assistance.

In her speech on April 7, Senator Ataullahjan appropriately reminded us of the devastating impact that cluster munitions have on innocent civilians who may come into contact with unexploded or deactivated submunitions. These victims are often children.

Last August, while the Senate was on summer break, the Cluster Munition Monitor released a report. I have it in my hands. It is published occasionally, with the previous edition dating back to 2018.

In this very recent report, which was published last summer, we read that since the advent of cluster munitions, 23,000 people have been killed or injured by these weapons. However, in reality, this number is much higher because not all cases are reported. According to the Cluster Munition Monitor, there could be between 56,500 and 86,500 victims who have been injured or killed.

In the summer of 2021, the Cluster Munition Monitor reported 59 people killed and 90 injured. All these people were victims of cluster munition remnants scattered in the ground. That is especially the case in Syria and in some other countries where these munitions have been used. Children accounted for 66% of these casualties.

In 2022, the situation has worsened. As of June 30, 2022, the Monitor reports that there were at least 689 casualties of cluster munitions, mostly in Ukraine.

To this day, 110 countries are party to the convention, including Canada. Unfortunately, however, 74 countries have not yet ratified the convention, including China, Russia and the United States — three members of the United Nations Security Council. However, among the states not party to the convention, Greece, Poland, Romania, Singapore, Turkey, Israel and the U.S. have said that there is no longer any production of cluster munitions in their respective territories. In addition, in April 2022 — a few months ago — EXPAL USA was awarded a contract by the U.S. government for the demilitarization and disposal of the stock of cluster munitions in the U.S.

But there are still countries that tolerate the production of such arms in their territories and their export. They need to be denounced and put on a shame list, particularly those producing the cluster munitions reported to have been used recently in Syria, Nagorno-Karabakh and Ukraine.

Among the countries still producing cluster munitions, some are welcoming foreign investments, such as South Korea, Brazil and India. The public denunciation of these countries must extend to Canadians or Canadian institutions, if any, that still invest in companies producing cluster munitions.

Speaking of South Korea, the president of which was here not long ago, the shareholders of Hanwha Corporation, one of the South Korean conglomerates, voted in September 2020 to end the company’s production of cluster munitions by shifting this activity to the Korea Defense Industry Corporation, a new, separate company that, unfortunately, seems to remain affiliated with Hanwha. This was described as an attempt by Hanwha to get rid of an unethical arms business. They still produce other types of arms but not those that are covered by the convention.

It is also interesting to note that the government pension funds in Australia, France, Ireland, Luxembourg, New Zealand, Norway and Sweden have decided by themselves to withdraw their investments — fully or partially — in companies or groups that are related to cluster munition production. Furthermore, many private financial institutions have acted to stop investment in cluster munition producers and to promote socially responsible investment in states parties to the convention such as Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland and the U.K. Clearly, there is social responsibility being assumed by private financial institutions, and that’s good.

That explains why several private companies based in non-signatory states have ceased production of cluster munitions. These companies include Elbit Systems Ltd. of Israel, Singapore Technologies Engineering, and U.S. companies Lockheed Martin, Orbital ATK and Textron Systems. So even if the U.S. is not a signatory to the conventions, U.S. companies are disengaging.

In terms of adoption of national laws to prevent such types of investments, it is fair to say that there is a controversy about the intent of the convention regarding investments. At least 38 countries, parties or signatories to the convention have stated that they regard investments in cluster munition production as a form of assistance prohibited by the convention. But some other countries who are party to the convention have expressed the contrary view, including Germany, Japan and Sweden.

The current Prohibiting Cluster Munitions Act, adopted by our Parliament in 2014, does not contain any provision relating to investment. Such is also the case for the Model Law Convention on Cluster Munitions, which was legislation for common law states proposed in 2008 by the International Committee of the Red Cross. However, the Lausanne Action Plan, adopted by states parties at the convention’s second review conference in September of last year, encourages the adoption of national legislation prohibiting investment in producers of cluster munitions.

Senator Ataullahjan’s legislation thus comes as a response to this action plan, and it is welcome. Bill S-225 proposes that Parliament make it an offence to acquire or have, directly or indirectly, any pecuniary interest in a person, knowing that such person is involved in the use, production, possession, development, transportation, importation or exportation of cluster munitions or to attempt to commit such an act. This prohibition would cover loaning funds or guaranteeing a loan of funds. Though we have no current data on the extent of Canadian investments in cluster munitions-related businesses, if any, I nevertheless see merit in Bill S-225. I think that it would send a strong message to Canadian investors and maybe also to other investors in foreign countries.

The bill proposes to use the criminal law power of the Canadian Parliament to enact a new offence that could lead to a conviction further to an indictment or a summary proceeding. But it is worth mentioning that in both cases, the proceedings could only be commenced with the consent in writing of the Attorney General of Canada. It is also notable that in both cases the federal prosecutor would have to prove beyond any reasonable doubt that the investor was aware that the investment was made in an entity involved in one or more of the activities targeted by the Prohibiting Cluster Munitions Act. It appears to me that a conviction under such a regime may be rare, but I leave it to the committee process to assess the proposed regime.

Incidentally, by adopting a statutory ban against such investments, Canada would become the twelfth country since 2007 to enact legislation designed to prohibit investments related to cluster munitions. The last country to do so was Italy in December 2021. The Italian law is titled Measures to ban the funding of manufacturers of anti-personnel mines, cluster munitions and submunitions. That law prohibits the financing of businesses engaged in the manufacture, production, development, exporting, stockpiling, et cetera, of cluster munitions and submunitions, as well as anti-personnel mines — a category of arms not included in the proposed bill before us. Perhaps this is another issue that the committee could look at.

Furthermore, the Italian Parliament has opted for a regulatory scheme under the authority of the Bank of Italy and some other regulatory agencies instead of creating a new crime. The Italian law empowers regulatory agencies to instruct registered Italian financial intermediaries to ensure compliance. Failure to comply exposes these intermediaries to a substantial administrative fine ranging between €150,000 to €1,500,000.

The committee called to review Bill S-225 could also consider the model law developed by the Cluster Munition Coalition in conjunction with Human Rights Watch and Harvard Law School’s International Human Rights Clinic. It draws heavily on their report Staying Strong: Key Components and Positive Precedent for Convention on Cluster Munitions Legislation. This model law, for example, adopts a slightly different definition of what is prohibited, which we could find useful for comparison and possible amendment of the bill.

In closing, as Senator Coyle did recently, I invite you to complete second reading of this bill and send it to committee for study and report.

Thank you. Tshinashkumitin.


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