Cluster Munitions and Anti-Personnel Mines Act 2008

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Cluster Munitions and Anti-Personnel Mines Act 2008.

(2) This Act shall come into operation on such day or days as the Minister may, by order or orders, appoint either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.

2.. Interpretation.

2.— (1) In this Act, unless the context otherwise requires—

“abandoned cluster munitions” means cluster munitions or explosive submunitions, whether or not they have been prepared for use, that have not been used and that have been left behind or dumped, and that are no longer under the control of the party that left them behind or dumped them;

“anti-handling device” means a device intended to protect a mine and which is part of, linked to, attached to or placed under the mine and which activates when an attempt is made to tamper with or otherwise intentionally disturb the mine;

“anti-personnel mine” means a mine designed to be exploded by the presence, proximity or contact of a person and that is capable of incapacitating, injuring or killing one or more persons;

“Anti-Personnel Mine Ban Convention” means the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, done at Oslo on 18 September 1997, the text of which in the English language is set out for ease of reference in Schedule 2;

“Anti-Personnel Mine Ban Convention state” means a state (other than the State) that is declared by order under section 8 to be a State Party to the Anti-Personnel Mine Ban Convention;

“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, but does not include 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 10 explosive submunitions;

(ii) each explosive submunition weighs more than 4 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;

“Cluster Munitions Convention” means the Convention on Cluster Munitions, done at Dublin on 30 May 2008, the text of which in the English language is set out for ease of reference in Schedule 1;

“Cluster Munitions Convention state” means a state (other than the State) that is declared by order under section 5 to be a State Party to the Cluster Munitions Convention;

“cluster munition remnants” means failed cluster munitions, abandoned cluster munitions, unexploded submunitions and unexploded bomblets;

“dispenser” means a container that is designed to disperse or release explosive bomblets and which is affixed to an aircraft at the time of dispersal or release;

“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;

“explosive submunition” means a conventional munition that in order to perform its task is dispersed or released by a parent munition and is designed to function by detonating an explosive charge prior to, on or after impact;

“failed cluster munition” means a cluster munition that has been fired, dropped, launched, projected or otherwise delivered and which should have dispersed or released its explosive submunitions but failed to do so;

“international organisation” has the same meaning as it has in section 1 of the Defence (Amendment) Act 2006;

“International United Nations Force” has the same meaning as it has in section 1 of the Defence (Amendment) Act 2006;

“Irish ship” has the same meaning as it has in section 9 of the Mercantile Marine Act 1955;

“mine” means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle;

“Minister” means the Minister for Foreign Affairs;

“self-deactivating” means automatically rendering a munition inoperable by means of the irreversible exhaustion of a component, such as a battery, that is essential to the operation of the munition;

“self-destruction mechanism” means an incorporated automatically-functioning mechanism which is in addition to the primary initiating mechanism of the munition and which secures the destruction of the munition into which it is incorporated;

“transfer”, in relation to cluster munitions, explosive bomblets or anti-personnel mines includes, in addition to the physical movement of cluster munitions, explosive bomblets or anti-personnel mines, the transfer of title to and control over cluster munitions, explosive bomblets or anti-personnel mines, but does not include the transfer of territory containing cluster munition remnants or emplaced anti-personnel mines;

“unexploded bomblet” means an explosive bomblet that has been dispersed, released or otherwise separated from a dispenser and has failed to explode as intended;

“unexploded submunition” means an explosive submunition that has been dispersed or released by, or otherwise separated from, a cluster munition and has failed to explode as intended.

(2) For the purposes of the definition of “anti-personnel mine” in subsection (1), mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person and that are equipped with an anti-handling device shall not be considered to be anti-personnel mines by reason only of being so equipped.

3.. Laying of orders before Houses of Oireachtas.

3.— Every order made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to anything previously done thereunder.

4.. Expenses.

4.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Cluster Munitions and Explosive Bomblets

5.. Orders.

5.— For the purposes of this Act, the Minister may by order designate any state specified in the order to be a Cluster Munitions Convention state, and such an order shall be evidence that that state is a Cluster Munitions Convention state.

6.. Offences.

6.— (1) Subject to section 7, a person who—

(a) uses,

(b) develops or produces,

(c) acquires,

(d) possesses or retains, or

(e) transfers to any person,

a cluster munition or explosive bomblet is guilty of an offence.

(2) Subject to section 7, a person who assists, encourages or induces a person to commit an offence under subsection (1) is guilty of an offence.

(3) Subsections (1) and (2) apply to an act committed outside the State if the act—

(a) is committed on board an Irish ship,

(b) is committed on an aircraft registered in the State, or

(c) is committed by a member of the Defence Forces.

7.. Permitted conduct.

7.— (1) Section 6 does not apply to—

(a) the acquisition, possession, use, retention or transfer of a cluster munition or explosive bomblet by a member of the Defence Forces in accordance with an authorisation under subsection (2) that is in force, or

(b) the possession, retention or transfer of a cluster munition or explosive bomblet—

(i) by a member of the Defence Forces in the course of his or her duties for the purpose of—

(I) rendering that cluster munition or explosive bomblet harmless, or

(II) the future destruction of that cluster munition or explosive bomblet,

(ii) by a member of the Garda Síochána—

(I) in the exercise of any power conferred by law on that member to seize and retain a cluster munition or explosive bomblet in connection with any criminal proceedings, or

(II) for the purpose of delivering that cluster munition or explosive bomblet to the Defence Forces for destruction, or

(iii) by any other person appointed by the Minister by warrant in writing, in the course of that person’s duties for the purpose of delivering that cluster munition or explosive bomblet to the Defence Forces for destruction.

(2) The Minister for Defence, in consultation with the Minister, may, by notice in writing, authorise the Chief of Staff of the Defence Forces—

(a) subject to subsection (3), to acquire, retain or transfer a specified number of cluster munitions or explosive bomblets for the purposes of the development of, or training in, cluster munition or explosive bomblet detection, clearance or destruction techniques, or for the development of cluster munition counter-measures, by the Defence Forces, or

(b) to permit the Defence Forces to transfer to an appropriate authority of a Cluster Munitions Convention state a specified number of cluster munitions or explosive bomblets for the purpose of their destruction.

(3) The number of cluster munitions or explosive bomblets specified in a notice under paragraph (a) of subsection (2) shall not exceed the minimum number absolutely necessary for the purposes mentioned in that paragraph.

(4) Subject to subsection (5), section 6(2) does not apply to any act done or omission made by any person:

(a) in the course of his or her duties in the planning or conduct of operations by an International United Nations Force to which the State has contributed a contingent of the Permanent Defence Force in accordance with section 2 of the Defence (Amendment) (No. 2) Act 1960 and to which a state that is not a Cluster Munitions Convention state has also contributed personnel; or

(b) in the planning or conduct of operations with a state that is not a Cluster Munitions Convention state while carrying out duties as a military representative or filling an appointment or posting outside the State, including secondments to any international organisation, in accordance with section 3(1)(a) of the Defence (Amendment) Act 2006.

(5) Nothing in subsection (4) shall be construed as permitting a person, in the course of the activities referred to in paragraph (a) or (b) of that subsection, to expressly request the use of cluster munitions in cases where the choice of munitions used is within his or her exclusive control.

PART 3 Anti-Personnel Mines

8.. Orders.

8.— For the purposes of this Act, the Minister may by order designate any state specified in the order to be an Anti-Personnel Mine Ban Convention state, and such an order shall be evidence that that state is an Anti-Personnel Mine Ban Convention state.

9.. Offences.

9.— (1) Subject to section 10, a person who—

(a) uses,

(b) develops or produces,

(c) acquires,

(d) possesses or retains, or

(e) transfers to any person,

an anti-personnel mine is guilty of an offence.

(2) Subject to section 10, a person who assists, encourages or induces a person to commit an offence under subsection (1) is guilty of an offence.

(3) Subsections (1) and (2) apply to an act committed outside the State if the act—

(a) is committed on board an Irish ship,

(b) is committed on an aircraft registered in the State, or

(c) is committed by a member of the Defence Forces.

10.. Permitted conduct.

10.— (1) Section 9 does not apply to—

(a) the acquisition, possession, use, retention, emplacement or transfer of an anti-personnel mine by a member of the Defence Forces in accordance with an authorisation under subsection (2) that is in force, or

(b) the possession, retention or transfer of an anti-personnel mine—

(i) by a member of the Defence Forces in the course of his or her duties for the purpose of—

(I) rendering that anti-personnel mine harmless, or

(II) the future destruction of that anti-personnel mine,

(ii) by a member of the Garda Síochána—

(I) in the exercise of any power conferred by law on that member to seize and retain an anti-personnel mine in connection with any criminal proceedings, or

(II) for the purpose of delivering that anti-personnel mine to the Defence Forces for destruction, or

(iii) by any other person appointed by the Minister by warrant in writing, in the course of that person’s duties for the purpose of delivering that anti-personnel mine to the Defence Forces for destruction.

(2) The Minister for Defence, in consultation with the Minister, may, by notice in writing, authorise the Chief of Staff of the Defence Forces—

(a) subject to subsection (3), to acquire, retain or transfer a specified number of anti-personnel mines for the purposes of the development of, or training in, mine detection, mine clearance or mine destruction techniques by the Defence Forces, or

(b) to permit the Defence Forces to transfer to an appropriate authority of an Anti-Personnel Mine Ban Convention state a specified number of anti-personnel mines for the purpose of their destruction.

(3) The number of anti-personnel mines specified in a notice under paragraph (a) of subsection (2) shall not exceed the minimum number absolutely necessary for the purposes mentioned in that paragraph.

PART 4 Investment of Public Moneys

11.. Definitions (Part 4).

11.— In this Part—

“components” means components specifically designed for use in prohibited munitions;

“investor” means a person or body responsible for the investment of public moneys owned by a Minister of the Government;

“munitions company” means a company involved in the manufacture of prohibited munitions or components;

“prohibited munition” means a cluster munition, explosive bomblet or anti-personnel mine;

“public moneys” means moneys provided by the Oireachtas out of the Central Fund, or the growing produce thereof.

12.. Duty of investors to avoid investment in munitions company.

12.— (1) Nothing in any enactment that authorises the investment of public moneys shall be taken to authorise any investment, direct or indirect, in a munitions company.

(2) Notwithstanding any other enactment, an investor, in the performance of any function conferred on it by or under any enactment, shall endeavour to avoid the investment of public moneys in a munitions company.

(3) In pursuing the objective set out in subsection (2) an investor shall have regard to the matters set out in this Part.

13.. Direct investment in munitions company.

13.— (1) An investor shall endeavour to avoid the direct investment of public moneys in equity or debt securities issued by a munitions company.

(2) Where public moneys are directly invested in a company which is or becomes a munitions company, the investor shall—

(a) establish to its satisfaction that the company intends to cease its involvement in the manufacture of prohibited munitions or components, or

(b) divest itself of its investment in that company in an orderly manner.

14.. Indirect investment in munitions company.

14.— (1) An investor shall avoid investing public moneys in collective investment undertakings or investment products unless, having exercised due diligence, the investor is satisfied that there is not a significant probability that the public moneys will be invested in a munitions company.

(2) Where public moneys are invested in a collective investment undertaking or investment product which invests these moneys in a company which is or becomes a munitions company, the investor shall—

(a) establish to its satisfaction that—

(i) the company intends to cease its involvement in the manufacture of prohibited munitions or components, or

(ii) the collective investment undertaking or investment product intends to divest itself of its investment in the company,

and that there is not a significant probability that the collective investment undertaking or investment product will again invest public moneys in a munitions company,

or

(b) so far as possible, taking into account any contractual obligation it has assumed, divest itself of its investment in that collective investment undertaking or investment product in an orderly manner.

15.. Derivatives based on a financial index.

15.— Nothing in this Part shall prevent an investor from contracting derivative financial instruments based on a financial index.

PART 5 Penalties and Miscellaneous Provisions

16.. Provision of information.

16.— (1) The Minister may, by notice in writing, require any person whom he or she has reason to believe has information or documents relevant to—

(a) the enforcement of Part 2 or 3 of this Act, or

(b) the compliance by the State with an obligation under Article 7 or 8 of the Cluster Munitions Convention or Article 7 or 8 of the Anti-Personnel Mine Ban Convention,

to provide the information or documents to the Minister within such period as may be specified in the notice.

(2) (a) A notice under subsection (1) shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

(i) by delivering it to the person;

(ii) by leaving it at the address at which the person ordinarily resides or, in a case where an address for service has been furnished, at that address; or

(iii) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.