Countries’ best practices
Governments can and should lead the way by providing good examples. Governments cannot afford to maintain double standards by opposing the use of cluster munitions, while continuing to allow investment in cluster munitions producers. Any governmental effort to oppose the misery that cluster munitions cause, should include efforts to dry up the supply of capital that funds the companies that produce cluster munitions.
Recent years have witnessed a growing group of legislative measures to ban investment in cluster munitions. Some countries addressed the investment issue as part of the Convention on Cluster Munitions ratification measures; others issued separate laws to prohibit investments.
Legislation banning investments in cluster munitions exists in the following countries:
Belgium was the first country in the world to prohibit investments in producers of cluster munitions. The 2007 law prohibits: “the financing of a company under Belgian law or under the law of another country, which is involved in the manufacture, use, repair, marketing, sale, distribution, import, export, stockpiling or transportation of anti-personnel mines and or sub-munitions within the sense of this act, and with a view to distribution thereof (…).” The law states the exact meaning of financing, which it defines as “all forms of financial support, namely credits, bank guarantees or the acquisition for own account of the financial instrument these companies have issued.”
Ireland was a driving force behind the Oslo process. It signed and ratified the Convention on Cluster Munitions on 3 December 2008.
Already before that, Irelands National Pensions Reserve Fund announced that it would withdraw its investments from six international companies involved in producing cluster munitions. Ireland was the first country to specify an investment prohibition in the legislation implementing and ratifying the CCM. This is an important example for other countries. Ireland has also stated that investing in or financing prohibited weapon production undermines the international legal framework that governs their prohibition.
- Download Ireland’s Legislation
Italy signed the CCM on 3 December 2008 and ratified it on 21 September 2011. On 4 July 2011, the Law on the Ratification and Implementation of the Oslo Convention on the ban on cluster munitions (Law no. 95) was published. Art. 7 (1) of that Law declares financial assistance to acts prohibited by the law to be a crime.
- Download Italy’s Legislation
The Italian Campaign to Ban Landmines has advocated a separate, more detailed law. On 26 April 2010, separate draft legislation on investments was introduced in the Senate. It would prohibit all Italian financial institutions from providing any form of support to Italian or foreign companies performing a range of activities including the production, use, sale, import, export, stockpiling, or transport of antipersonnel mines as well as cluster munitions and explosive submunitions. As of August 2018, the amended law (now referred to as S.1) is pending approval through a privileged process in the Senate.
- Download Italy’s Draft Legislation
The Principality of Liechtenstein signed the Convention on Cluster Munitions in Oslo on 3 December 2008. Liechtenstein ratified the convention on 4 March 2013. At the same time, the Parliament of Liechtenstein approved an amendment to the Law on Brokering War Material which entered into force on 1 September 2013. The amended law prohibits brokering and direct and indirect financing of prohibited war material, including cluster munitions. The prohibition is set out in Articles 7b and 7c, governing direct and indirect investment:
“Art. 7b Prohibition of direct financing
- The direct financing of the development, manufacture or acquisition of prohibited war material is prohibited.
- Direct financing within the meaning of this Act is the direct extension of credits, loans or donations or comparable financial benefits to cover the costs of or to promote the development, manufacture or acquisition of prohibited war material.
Art. 7c Prohibition of indirect financing
- The indirect financing of the development, manufacture or acquisition of prohibited war material is prohibited where the prohibition of direct financing is circumvented thereby.
- Indirect financing within the meaning of this Act is:
a. the participation in companies that develop, manufacture or acquire forbidden war material.
b. the acquisition of bonds or other investments products issued by such companies.”
- Download Liechtenstein’s legislation
Luxembourg passed its Convention on Cluster Munitions ratification law on 7 May 2009. Article 3 of the law contains a ban on investments: “All persons, businesses and corporate entities are prohibited from knowingly financing cluster munitions or explosive submunitions.” At the first Meeting of State Parties in Laos, the Luxembourg Vice Prime Minister Jean Asselborn has encouraged all states who have signed the Convention states to prohibit the financing of cluster bombs.
In January 2013 the Dutch Market Abuse (Financial Supervision Act) Decree entered into force that imposes an obligation that prevents any Dutch financial institution to directly support any national or foreign enterprise which produces, sells or distributes cluster munitions. The legislation includes a prohibition on: providing loans, acquiring or offering a financial instrument that has been issued by a company engaging in the production, selling, or distribution of cluster munitions, and acquiring non-marketable holdings in the capital of such a company. The above is equally prohibited for enterprises that hold more than half of the share capital of an enterprise that produces, sells or distributes cluster munitions. It does not apply to:
a. transactions based on an index in which enterprises described in subsection 1 (a) constitute less than 5 percent of the total;
b. transactions in investment funds operated by third parties in which enterprises described in subsection 1 (a) constitute less than 5 percent of the total; and
c. investments in clearly defined projects carried out by an enterprise described in subsection 1 (a) insofar as such funding is not utilized for the production, sale and distribution of cluster munitions.
A financial institution in violation of Article 21a can be sanctioned to a fine with a set basic amount of €500,000 and a maximum of €1,000,000.
The Cluster Munitions (Prohibition) Bill of 2009, which governs New Zealand’s implementation of the Convention on Cluster Munitions, includes a prohibition on investment in cluster munitions: “A person commits an offence who provides or invests funds with the intention that the funds be used, or knowing that they are to be used, in the development or production of cluster munitions.” The law is clear about what sort of financing is prohibited: “funds mean assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired; and includes legal documents or instruments (for example bank credits, travellers’ cheques, bank cheques, money orders, shares, securities, bonds, drafts, and letters of credit) in any form (for example, in electronic or digital form) evidencing title to, or an interest in, assets of any kind.” The legislation was unanimously adopted and signed into law by the governor-general on 17 December 2009 paving the way for the deposit of New Zealand’s ratification instrument on 23 December 2009.
- Download New Zealand’s legislation (PDF 666 KB)
Saint Kitts & Nevis acceded to the Convention on Cluster Munitions on 13 September 2013.[i] Its “Cluster Munitions Prohibition Act” came into effect in 2014. The Act contains an explicit prohibition on investments in cluster munitions. A reference to the Act was also contained in Saint Kitts & Nevis’ Article 7 report over 2017, as part of the reporting on measures for national implementation.[ii]
Article 4 of the Cluster Munitions Prohibition Act states that:
“[…] A person shall not provide or invest funds with the intention that those funds are to be used, or knowing that they are to be used, in the development or production of cluster munitions.”
It also provides for penalties for violation the Act:
“A person who commits an offence against the investment prohibition can be convicted to a prison sentence of maximum of ten years or a fine of maximum $50,000, or both.”
Article 7 clarifies the scope of application of the Act:
“(1) This Act applies to all acts done in Saint Christopher and Nevis.
(2) This Act also applies to all acts done outside Saint Christopher and Nevis by a citizen of Saint Christopher and Nevis or by a company incorporated in Saint Christopher and Nevis or by a member of the Defence Force.”
Download the legislation of Saint Kitts & Nevis here.
The Convention on Cluster Munitions ratification law of the Independent State of Samoa took effect on 27 April 2012. Part II, article 6 of the Cluster Munitions Prohibition Act 2012 contains a prohibition on investments in cluster munitions. The Cluster Munitions Prohibition Act 2012 states that: “[…] a person who directly or indirectly does one (1) or more of the following commits an offence: invest funds with the intention that the funds be used, or knowing that the are to be used, in the development or production of cluster munitions.” The law clearly defines what it means by funds: “funds means assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired; and includes legal documents or instruments in any form evidencing title to, or an interest in, assets of any kind.”
- Download Samoa’s legislation (PDF)
Spain announced banning financing of cluster munitions in the State’s Official Bulletin number 180 published on 29 July 2015. The ban was included in the amended law of 33/1998 on total ban of antipersonnel mines and similar arms and states that “Therefore, the financing or marketing of this type of arms by any means, and of all related items described in the previous paragraph, is prohibited.” (official text: (“Asimismo, queda prohibida la financiación o la publicidad de este tipo de armas, y de los conceptos explicitados en el párrafo anterior, por cualquier medio.”)
- Download Spain’s legislation
Switzerland passed its Convention on Cluster Munitions ratification law on 17 July 2012. Switzerland enacted legislation to implement the Convention by approving amendments to its Federal Law on War Material which came into force 1 February 2013.
The Federal Law on War Material was amended to include a prohibition on direct and indirect investments in prohibited war materiel, including cluster munitions. Article 8b regarding direct investments reads as follows:
“1. The direct financing of the development, manufacture or acquisition of prohibited war material is itself prohibited.
2. Direct financing within the meaning of this Act is the direct granting of credits, loans or gifts or comparable financial advantages in order to pay or advance costs and expenditures that are associated with the development, manufacture or acquisition of prohibited war material.”
Article 8c covers indirect investments, which are forbidden “where the prohibition of direct financing is circumvented thereby.”
The following countries have stated that investment in cluster munition producers are or can be seen as prohibited under the Convention on Cluster Munitions:
Australia signed the Convention on Cluster Munitions on 3 December 2008. Australia deposited its instrument of ratification on 8 October 2012 and became a State Party on 1 April 2013. The Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 implemented the Convention on Cluster Munitions.
The Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 contains no provision prohibiting investment in cluster munitions. However, on 27 October 2010, the Attorney-General offered the following example of prohibited conduct: “where a person provides financial assistance to, or invests in, a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company.” In March 2011, when asked about the issue again in the Australian senate, the Attorney General’s Department on the Bill confirmed that “the intentional provision of financial assistance to an entity so that the entity can develop or produce cluster munitions will amount to an offence.”
In a letter to Human Rights Watch on 14 July 2011 the Ministry of Foreign Affairs states that Bosnia and Herzegovina “considers investment in the production of cluster munitions to be prohibited.”
In an email to Handicap International France in May 2011, the Ministry of External Relations stated that Cameroon “approves therefore […] the prohibition on investments in cluster munitions.”
Canada’s implementation legislation does not contain a specific prohibition on investment in cluster munitions. However, in a debate in the Senate in May 2012, the Honourary Suzanne Fortin-Duplessis said that “under the bill it is prohibited to assist, encourage or induce anyone to engage in any prohibited activity including knowingly and directly investing in the production of cluster munitions.” On 9 July 2012, a Senior Defence Advisor from the Ministry of Foreign Affairs and International Trade stated in an email to Human Rights Watch that: “an investment that is executed with the knowledge and intention that it will encourage or assist cluster munitions production would be captured by the legislation’s prohibition on aiding and abetting any primary offence.” On 29 May 2013, the Parliamentary Secretary to the Minister of Foreign Affairs reiterated the view that investment is prohibited under the bill.
During the 8th meeting of States Parties to the CCM, Chad stated that:
“Investing in or financing of the production of prohibited weapons undermines the international legal framework that governs their prohibition. We therefore consider investments in the production of cluster munitions are in violation with Article 1 of the CCM.”
Responding to a questionnaire by Landmine and Cluster Munition Monitor, the Ministry of Foreign Affairs of Colombia stated on 26 March 2010 that it views “investments by any government in the production of cluster munitions” as prohibited by the Convention on Cluster Munitions.
At the First Review Conference of the Convention on Cluster Munitions, Costa Rica declared on 10 September 2015 that it views “investment in the production of cluster munitions […] as a form of assistance that is prohibited by the convention.”
Responding to a questionnaire by the Cluster Munition Monitor, the Ministry of Foreign Affairs and European Integration of Croatia stated on 23 March 2011 that it agrees that “investment in the production of cluster munitions is prohibited” by the Convention on Cluster Munitions.
In a letter to Human Rights Watch on 30 April 2012, the Ministry of Foreign Affairs said that the Czech Republic believes that “investment in the production of cluster munitions is prohibited by the Convention.”
In April 2012 the coordinator of the government’s National Focal Point of the Struggle Against Mines stated that the Democratic Republic of the Congo was of the opinion that the Convention on Cluster Munitions includes a prohibition on investments in the production of cluster munitions.
On 8 June 2013, Colonel Lucien Nkoua, National Focal Point of the Struggle Against Mines, informed the Cluster Munition Monitor that “[…] the Republic of Congo agrees with the views of a number of States Parties to the convention and the Cluster Munition Coalition that investment in the production of cluster munitions is also prohibited by the convention.”
In 2011 the Danish government issued a Guide to responsible investment based on the Principles for Responsible Investment, a voluntary set of responsible investment principles supported by the United Nations.
According to the Danish government, “although the Principles for Responsible Investment do not include specific references to international conventions, they are to be seen in connection with the ten principles of the UN Global Compact. As such, responsible investment according to PRI and the Danish Guide to responsible investment would demand all investors to respect international norms and conventions including e.g. the CCM.”
The French government gave an interpretative statement specifying that they understand investments in cluster munitions as being banned under the prohibition on assistance. On 6 July 2010, the Deputy Minister of Defense at the National Assembly said: “any knowingly financial assistance, directly or indirectly, in the production or trading of cluster munitions would be considered as assistance, encouragement or inducement falling within the scope of the law under criminal complicity or commission of offenses under this bill. If the monitoring of the implementation of the law by the National Commission for the Elimination of Antipersonnel Mines (CNEMA) shows a failure on this point, the Government would draw the appropriate conclusions, proposing to Parliament the necessary legislative changes.”
After a period of inactivity, CNEMA restarted its work in 2012. It decided to look into how the investment prohibition as declared by the French government is being implemented and to consider possible further actions.
- View the declaration in French.
During the 8th meeting of States Parties to the CCM, the Gambia stated that:
“The production, sale and use of cluster munitions should stop and states could do more by stopping the investment in companies either state on non-state, that produce cluster munitions.”
On 12 September 2013, Ghana said during the Fourth Meeting of States Parties to the Convention on Cluster Munitions in Lusaka, Zambia that “[…] Ghana considers investments in the production of cluster munitions a form of assistance that is banned by the Convention.” Furthermore, Ghana stated that it would ensure that its national legislation will criminalise investments in the production of cluster munitions. Ghana encouraged all States Parties to make known their view that the convention prohibits investment in the production of cluster munitions.
On 14 May 2010, the Permanent Representative of Guatemala to the United Nations in Geneva wrote in a letter to Human Rights Watch that “– according to the interpretation of the government of Guatemala- the Convention also includes a prohibition on investments in companies that manufacture cluster munitions.”
The Holy See, in a statement at the First Meeting of States Parties in Vientiane, Lao PDR in November 2010 stated that “in a world increasingly globalized and interdependent, countries produce, possess the means of production or invest in the military industry, beyond their national frontiers. It is important for the integrity of the Convention and its implementation to include those investments in the list of prohibitions.”
In a letter to Human Rights Watch on 27 April 2011, Janos Martonyi of the Ministry of Foreign Affairs stated that “Hungary believes that investment into the production of cluster munitions is prohibited by the Convention.”
In a letter to Human Rights Watch on 1 June 2011, the Ministry of Foreign Affairs said that Lao PDR “strongly supports the full prohibition of cluster munitions, including those activities during the joint military operations, transiting, foreign stockpiling and investment in the production of cluster munitions.”
On 10 February 2009, the Lebanese Permanent Representative to the UN in Geneva wrote in a letter to Human Rights Watch that “It is the understanding of the government of Lebanon that Article /1/ Paragraph (c) of the Convention prohibits the investment in entities engaged in the production or transfer of cluster munitions or investment in any company that provides financing to such entities. In the view of Lebanon, “assistance” as stipulated in Article /1/ paragraph (c) includes investment in entities engaged in the production or transfer of cluster munitions and is thus prohibited under the Convention.”
On 2 April 2010, Ambassador Rajemison Rakotomaharo (Permanent Representative to the United Nations in Geneva) wrote in a letter to Human Rights Watch that the Convention, in the opinion of Madagascar, also precludes investments in companies that produce cluster munitions. This view was reiterated in the statement Madagascar made on the First Meeting of State Parties in Lao PDR. Madagascar stated that, “there should be no exceptions when it comes to cluster munitions, which has a negative impact on all human beings, causing unacceptable suffering, therefore any investment in cluster munitions should indeed be prohibited.”
On 25 March 2010, Major Dan Kuwali, director of Legal Services of the Malawi Defence Force, stated during theAfrica Regional Conference on the Universalisation and Implementation of Convention on Cluster Munitions in Pretoria, South Africa that Malawi is of the opinion that the Convention constitutes a prohibition on the investment in producers of cluster munitions.
On 25 April 2010, the Ministry of Foreign Affairs offered its understanding of several provisions in the Convention on Cluster Munitions in an e-mail to Handicap International France. It stated that “The policy of the Government of Malta on issues of interpretation of the Convention is guided by the need to ensure the rapid destruction of cluster munitions. With regard to investment in the production of cluster munitions, Malta interprets Article 1 (b) of the Convention on Cluster Munitions as prohibiting this activity. Malta believes that assistance prohibition under Article 1 (c) of the Convention precludes financing and investment in corporations linked with the production of cluster munitions.”
During the 8th meeting of States Parties to the CCM, Mauritania stated that:
“I would like to use this opportunity to work together with other states against the financing of or assistance to companies for cluster bombs (companies that produce these bombs). These bombs, that kill hundreds of innocent people every day, are an obstacle to development, peace and security.”
In a letter to Human Rights Watch dated 4 March 2009, Ambassador Juan Manual Gómez Robledo from the Ministry of Foreign Affairs wrote that “Also, it is Mexico’s opinion that investment for the production of cluster munitions is also prohibited by the Convention.”
During the 8th meeting of States Parties to the CCM, Montenegro stated that:
“We would like to express our support for the Dubrovnik Action Plan, as a valuable guideline for further implementation of the CCM. We emphasize that investing in or financing prohibited weapons production undermines the international legal framework that governs their ban. Therefore Montenegro understands that any investment in producers of cluster munitions is a contravention of Article 1 (1) c of the CCM.”
During a meeting with the Cluster Munition Coalition in Geneva, Switzerland, Allassan Fousseini, Expert Mines Action and Small Arms and Light Weapons of the National Commission for the Collection and Control of Illicit Weapons stated that “Niger considers […] investments in cluster munitions to be banned by the convention.”
Norway implemented the Convention on Cluster Munitions in a separate law on cluster munitions. The Norwegian law states that anything prohibited under the convention is also prohibited and punishable under the law.
The preparatory work (Proposition no. 7) of the law notes that certain forms of investment in cluster munitions production “[…] may fall within the scope of the Convention’s prohibition of aiding and abetting” and that “[…] it cannot be excluded that private investment, for example, in companies that develop or produce cluster munitions, may be incompatible with the Convention.”
Proposition no. 7 adds that “the question whether such private financing or investment exceeds the threshold for criminal aiding and abetting in Norwegian law must also be assessed in the light of the general requirement of individual guilt.” The requirements would constitute that the offender would have to know that he/she was investing in cluster munition production, or it would amount to gross negligence if he/she did not know but ought to have known.
During the 2017 Meeting of States Parties of the CCM, Peru issued the statement that it considers investments to be prohibited under the CCM:
“Peru (…) understands the interpretation of Article 1.c of the Convention (…) includes a prohibition in the investments in cluster munitions, that is to say, provide financial assistance to producers of such weapons.”
During the 8th meeting of States Parties to the CCM, the Phillipines stated that:
“From these experiences stem our continued commitment to
prohibit the use, local and foreign stockpiling, investment,
production and transit of cluster munitions in our country.”
In a letter to Human Rights Watch on 6 April 2009, Minister Rosemary Museminali of the Ministry of Foreign Affairs and Cooperation made it known that “any investment in the production of cluster munitions is prohibited”.
In a letter to Human Rights Watch on 3 February 2011, the Ministry of Armed Forces said that Senegal “considers the transfer and foreign stockpiling of cluster munitions, and investment in cluster munitions to constitute a violation of the CCM.”
In a letter to Human Rights Watch on 14 March 2012, the Ministry of Foreign Affairs stated that it “has no intention of allowing investment in cluster munitions production.” The Deputy Permanent Representative of the Permanent Mission of Slovenia to the United Nations in Geneva clarified to PAX (formerly IKV Pax Christi) that Slovenia believes that the CCM prohibits investments and financing on Slovenian territory.
During the 2017 UN General Assembly First Committee meeting, representative of the Republic of Trinidad and Tobago ms. Roopnarine issued the statement that Trinidad and Tobago consider investments in cluster munitions to be prohibited under the Convention on Cluster Munitions:
“It is unambiguously clear that investing in or financing prohibited weapons undermines the international legal framework that governs their prohibition. My country’s accession to the CCM demonstrates our continued commitment to join efforts to end the terrible harm posed by these indiscriminate weapons. We therefore share the perspective that investment in the production of these weapons are a contravention of the CCM.”
The UK “Cluster Munition (Prohibition) Bill” received Royal Assent on 25 March 2010. In both Houses, debates on the Bill questioned whether the financing of cluster munition production was prohibited under the legislation. The text of the legislation does not explicitly include a prohibition on investment in, or provision of financial services to, companies involved in the production of cluster munitions. However, in response to parliamentary questions the Government issued a Ministerial Statement on 7 December 2009 confirming that “under the current provisions of the Bill, which have been modelled upon the definitions and requirements of the convention, the direct financing of cluster munitions would be prohibited. The provision of funds directly contributing to the manufacture of these weapons would therefore become illegal.”
The legislation does not prohibit indirect financing of cluster munitions, however the government intends to work with the financial sector, non-governmental organisations and other interested parties, to promote a voluntary code of conduct to prevent indirect financing, and if necessary would use their right to initiate legislation.
- Download the ministerial statement which provides clarification of the Cluster Munitions (Prohibitions) Act
During the National Committee on Anti-personnel Landmines (NCAL) on 11 September 2009 in Lusaka, the Director of Zambia Mine Action Centre stated that it is the understanding of Zambia that the Convention on Cluster Munitions includes a prohibition on investments in companies that manufacture cluster munitions.
To be considered as a country banning investments in cluster munitions, a country must either have stated officially that investments in cluster munitions are or can be seen as prohibited by Convention on Cluster Munitions, or have proposed or passed legislation banning investments. Legislative proposals need not be comprehensive, but they should meet the following criteria:
– The proposed law should be discussed in parliament or another body with power to issue legislation.
– The proposed law should contain an explicit ban on investment in cluster munitions.