Cluster Munitions Convention: Article 21

Question

14:57:00

Asked by

To ask His Majesty’s Government what assessment they have made of the risk of legal challenges when relying on the provision in Article 21 of the Cluster Munitions Convention allowing the United Kingdom to fight alongside states that are not party to that Convention.

My Lords, since ratifying the Convention on Cluster Munitions, the United Kingdom has regularly co-operated with non-state parties, including in combat. The Cluster Munitions (Prohibitions) Act 2010 sets out a clear UK legal framework for all UK military personnel and nationals engaging in military co-operation and operations with non-state parties to the convention. The Act enshrines the convention’s prohibitions in domestic criminal law, while providing a defence in the context of international military co-operation and operations with non-state parties.

I thank the Minister for his response; I just wonder whether, in the light of the rapidly changing international situation and Russian lawfare, it is perhaps a little optimistic. The Government are trusting in the strength of Article 21 in the face of legal challenge. I refer the Minister to the Human Rights Watch and Harvard Law School study of 2010, which made it quite clear that Article 21’s interoperability carve-out, which the previous Labour Government obtained, does not in fact exempt signatory states from their Article 1 obligation not to “assist, encourage or induce” the use of cluster munitions. It concludes that the prohibition on assistance must apply at all times. Can the Minister therefore assure this House that the Government are certain that so eminent an interpretation of the convention is incorrect and so does not provide grounds for a subsequent successful legal challenge to our Armed Forces?

The straight answer to the question is yes, I am satisfied. I will give the noble Lord a reason for that, but we should not forget that the CCM remains vital in protecting humanitarian norms. Cluster munitions continue to pose a threat to civilians. In 2024, the Landmine and Cluster Munition Monitor reported that civilians made up 93% of cluster munitions casualties in 2023. I have read the noble Lord’s report. Provisions for military interoperability between members of the CCM and non-members are clearly set out and enshrined in UK law and have functioned effectively since the CMM came into force. Since the convention came into force in 2010, UK Armed Forces have operated effectively, including in combat with all allies regardless of their membership of CCM, in line with the CCM provisions on interoperability under Article 21.

My Lords, I thank my noble friend for the comprehensive answers that he gave to the noble Lord, Lord Godson. However, there is a much simpler response to this Question, to be found in the 45 words of paragraph 3 of Article 21 of the convention, which states: “Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties”— which includes the United Kingdom— “their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party”. Is that not the answer?

My Lords, it may be that my noble friend has saved me some time, but I repeat that since the CMM came into operation in 2010, we have done exactly that. We have co-operated with states which are not party to the agreement. My noble friend is right.

My Lords, the noble Lord, Lord Browne, highlights an important point. A number of fellow NATO states have withdrawn from the convention or never joined it in the first place. Russia did not sign up to it initially. There is an obligation under the convention, to which Gordon Brown signed us up, to make representations to non-member states. Have the Government done that formally to some of our closest allies?

Absolutely; we are committed to it. During my time as a Minister, I have seen first-hand the positive impact of the United Kingdom’s involvement in this. I pay tribute to the fantastic work of the Halo Trust. When I was in Angola, I visited areas that were severely contaminated by such weapons, which impacted hugely on the safety of civilians and their ability to re-establish their economy after such a long period of war. To come back to the fundamental point about Article 21, I am not making a judgment. We work with our allies—particularly Ukraine, which is facing Russian aggression. Russia is also bombing civilian cities and attacking civilians and civilian buses. We are committed to defending Ukraine and its right to defend itself. However, we must be clear. The important point about the convention is how it tries to stop this huge impact of remnants of war. There have been 10 years of peace in Angola, yet people are still dying from these munitions.

My Lords, I agree with the Minister regarding the Halo Trust and the very long legacy that exists because of the use of these munitions. The UK was the world leader in demining and in the stabilisation programmes in communities affected by them. Unfortunately, the scale of the ODA cuts is biting very hard, especially on initiatives such as humanitarian mine action and the stabilisation programmes. In the last Question, the Minister suggested that I was incorrect on the reductions. Can he prove his case by saying that these programmes will now be protected?

I did not say the noble Lord was incorrect—I think Hansard would prove that; I said that he may have more information than I have. We are in the middle of a very detailed spending review. While the outlying figures are out, the department has to go through a programme-by-programme process to determine how we meet the commitment of ODA. I did not say that he was misleading. One thing I am determined to do is to ensure that we use all levers available to us. It is not limited to ODA, and it is not limited to our diplomatic efforts and working with allies. We should be more innovative in how we develop and deliver these programmes, including with the private sector.

My Lords, the Government have rightly made it clear that we should be prepared for conflict if necessary. Unfortunately, they, and indeed the previous Government, have gathered a reputation for so-called legal freeloading, in other words, being restrained by an interpretation of international law which has often made it difficult for our troops to perform in the way they would want. Can the Minister assure me that there has been a thorough analysis of our legal obligations in the face of the possibility of war, so that our troops, as well as facing difficulties that they are bound to face, do not find themselves walking into a legal minefield?

Let me be absolutely clear to the noble Lord: ratification of the CCM and subsequent removal of cluster munitions from our inventory does not constrain UK military capability nor prevent interoperability with allies. The UK has successfully developed alternative systems and policies that have allowed for effective operation with our allies since ratification in 2008, including in combat. The strategic defence review was clear that the United Kingdom Armed Forces will be a more lethal, integrated force, equipped and ready for all future challenges.

My Lords, I should declare an interest, as I was actively involved in the campaign to get these horrible weapons banned. Indeed, I was present in Dublin when word came through that Gordon Brown said that Britain should agree to the ban, which opened the door to other countries following suit. Given we have dealt with Article 21, is not the main onus on us to make sure that other countries do not withdraw from the convention and to use our influence as publicly as possible to urge them not to do so?

My noble friend is right. As a committed member of the CCM, the United Kingdom continues to promote the norms of the convention and discourage the acquisition and use of cluster munitions by all states, irrespective of their status within the convention. We are absolutely undertaking what my noble friend suggests.