Yesterday’s announcement of a new US military “base” in Darwin, Australia (spun as a “rotational deployment” for China, I suspect), will necessitate foreign weapons systems and armaments being stockpiled, retained and transited on and in Australian territory.

Although they are long-standing and committed allies, Australia and the United States hold different positions on many matters relating to both arms control and humanitarian law. One recent normative development where the US and Australia’s views have diverged is the ban on cluster bombs, a weapon that has inside multiple – often hundreds – of small explosive sub-munitions or “bomblets” that are dispersed over an area the size of several football fields from either the air or ground. As a result, the final location of each bomblet is impossible to control for those deploying them, and so whom they maim or kill is both unknown and indiscriminate. Roughly 30 per cent of those deployed “fail” to explode on impact, and so the unexploded bomblets become de facto landmines.

When the Cluster Munitions Convention (CMC) came into effect in August last year, Australian Prime Minster Julia Gillard’s government joined a chorus of NGOs and governments that saw “an end for all time” of the use of cluster munitions by prohibiting their production, use, stockpiling and transfer. At present, a bill sits with the Senate that will criminalise Australian deployment of the weapon under domestic law, thereby ratifying the international convention.

Conversely, under President Barack Obama, the US have refused to sign the CMC, despite having a quarter of the world’s estimated four billion cluster munitions in its arsenal. The US instead propose an alternate measure, negotiated through the framework of the Convention on Certain Conventional Weapons, in which a lesser standard only limiting pre-1980 cluster munitions will be banned (a final outcome of those international negotiations are to be finalised later this month).

With the establishment of a US military base in Darwin, Gillard will effectively make use of certain “loopholes” in the bill that arise from US’ non-signatory status to the Convention, and obfuscation of negotiations that are currently taking place for an additional arms control measure this week. Best estimates are that the US forces presently have a quarter of the world’s four billion cluster munitions in stockpiles across both its territory and existing overseas bases. The US last deployed cluster munitions during the Iraq War in 2003, despite the emerging norm.

In my view, there’s a fair degree of probability cluster munitions will be stockpiled in Darwin, since there are known plans for the US to base a number of B-52 bombers historically used to deploy cluster bombs. It is already known that nuclear weapons will not be permitted onto Australian territory, but a number of the US’ naval fleet are nuclear-powered vessels, which will be allowed.

Curiously, there have been no statements from the Gillard government as to whether the Darwin deal will result in US cluster munitions being transited and stockpiled in Darwin, despite widely debated concerns over the bill.

For instance, writing to the Senate Committee responsible for a detailed review of the draft legislation in a letter dated March 16, I warned that the current wording provided:

“Australia’s military allies that are not party to the convention unfettered access to stockpile, retain, and transit cluster munitions within Australia.”

Specifically, the bill provides a blanket exemption for the stockpiling and transit of cluster munitions on or in Australian territory by foreign forces. Where this is provided – Section 72.42 – severely contravenes Article 9 of the international Convention, which requires state parties to criminalise all prohibited activities (including stockpiling and transfer) on their territory, and to also refrain from assisting non-signatory states in doing so.

Both acts would result in Australia violating the spirit and intent of the Convention – to eliminate cluster munitions and the harm they cause for all time. And both are likely to occur as a result of the US base in Darwin.

Speaking at the Senate Committee hearing on cluster munitions in March this year, Greens Senator Scott Ludlam probed this military interoperability loopholes most expertly with then Lieutenant General David Hurley, then vice chief of the defence force:

Senator Ludlam: If I one day got a security clearance to go and visit Stirling, Fleet Base West, would I find some secret stockpile of United States cluster munitions that they can sweep by and pick up? To cut to the chase: Are we stockpiling these materials on behalf of anybody else?Lt Gen. Hurley: We are not stockpiling cluster munitions on behalf of anybody.

Senator Ludlam: Okay. Do they get transhipped through Australian airspace or over land?

Lt Gen. Hurley: If US forces are transiting Australian airspace or sea passage there is a possibility they will have them on board, yes.

Senator Ludlam: Would Defence be brought into the conversation as a result of negotiations that kicked off late last year between us and the US government on an expanded US military presence here? How would the general public know if cluster munitions were to be brought onto Australian soil?

Lt Gen. Hurley: There are a couple of hypotheticals in that. We are in very early stages of the force posture review discussions with United States armed forces. The nature and characteristics of the outcome of those discussions are really hard to tell at the present time, and whether that would involve any stockpiling of US explosive ordnance in Australia would be a decision far down the track. I think that would be a policy decision government would make and it would determine how it would advise the population.

At the time Lieutenant General Hurley made these statements (he is now “chief”), it is clear he foresaw the strong possibility of foreign forces such as the US stockpiling cluster munitions in or on Australian territory, as well as subsequent demands for some form of public disclosure and accountability for the defence forces and/or the federal government.

Any loophole analysts found in the bill, then, were deliberate.

This active and willing dilution of an international humanitarian instrument is of considerable international embarrassment, since Australia’s implementing legislation is inconsistent with that adopted in other common law counties such as New Zealand and Ireland, where there are no provisions excluding the application of their laws to foreign forces or vehicles on their territory.

Furthermore, the governments of Austria and Germany have made reference to the prohibition of the transit and stockpiling of cluster munitions in their territories, and the United Kingdom, while not expressly banning weapons stores in transit, requested upon signing the Convention in 2008 that the US military remove its stockpiles of cluster munitions within the eight-year timeframe agreed to in the Convention. By November 2010 the UK was able to confirm that there were “no foreign stockpiles of cluster munitions in the UK or on any UK territory”.

What’s more, in the future, all cluster munitions transited in or on British territory will require the authorisation of the British parliament – or under exceptional circumstances, and there has been only one instance in which this was necessary, the Foreign Secretary alone.

Australia has made no such provisions in the bill before its Senate.

It is the view of the world’s primary humanitarian controlling authority, the International Committee of the Red Cross (ICRC), that the Gillard government’s draft legislation:

“It would … exempt the military personnel of States not party from the offences created by the Bill for acts committed in or on Australian territory. It would also permit the transit of cluster munitions through Australian waters and airspace and allow States not party to stockpile or retain cluster munitions on ADF and other bases within Australia.”

In recognition of this, speaking at the Senate Committee hearing in March, Senator Ludlam sought to expose what scant disclosure and governmental accountability is in place to oversee US military armaments in or on Australian territory:

Senator Ludlam: There is serious debate underway in Australia about interoperability around maybe increased deployments of US military forces in Australia or at least increased stockpiles … Are cluster munitions stored in Australia at the moment? Do we know that they are being transported through Australian waters or airspace? How real is this issue?Chair: That might be a question better put to the people who store them – Defence.

Senator Ludlam: Defence will tell me they cannot possibly give us that information in an open hearing

In relation to stockpiling cluster munitions on or in Australian territory, Department of Foreign Affairs and Trade (DFAT) interpret the international Convention such that the distinction between domestic and foreign stockpiles are “separate” in addition to having provided a clear articulation on what measures are in place for cluster munitions in transit:

“All munitions owned by foreign armed forces that are stored on Australian soil are required to be managed as ‘Commonwealth Explosives’, in accordance with the Explosives Act 1961, and its subordinate regulations and codes. This requires specific approval for the storage and transportation of these munitions, and their inclusion in Defence information holdings. Additionally, they are stored in Defence facilities licenced to store explosive ordnance, and are managed on the Computer System for Armaments. Consequently, Defence both approves and has full visibility of all foreign armed forces munitions that are stored on Australian soil.”

In relation to stockpiling cluster munitions on or in Australian territory, DFAT interpret the international Convention such that the distinction between domestic and foreign stockpiles are “separate”:

“The Government’s position is that the defence for acts by military personnel of non-States Parties (section 72.42) is consistent with Article 9 of the Convention … The defence in Section 72.42 applies to military personnel of countries that are not party to the Convention who in the course of their military duties stockpile, retain or transfer cluster munitions while on a base, aircraft or ship that is in Australian territory. This defence takes into account that Australia engages in military co-operation and operations with some countries that are not party to the Convention, as permitted by Article 21. This military cooperation and operations may extend to hosting foreign bases, aircraft or ships. Article 9 must be read alongside Article 21. The defence in the Bill recognises that it is not appropriate to require military personnel of non-States Parties to comply with an international legal obligation to which their sending country has not consented.”

As I wrote for Crikey in March this year, “No other signatory country in the world has expressly permitted such unfettered free access to its territories as this. It is unprecedented.”

If only I knew then what I do now about Darwin, especially given how little we are likely to ever know about what weapons the US keeps there.

Postscript: On 23 November following a meeting of the Labor Caucus the previous day, a motion to amend the legislation to ensure the US navy could not stockpile and/or transit cluster munitions in Darwin led to the following statement being issued by the Attorney General, Foreign Affairs Minister and the Defence Minister effectively committing the present government to ban the US from stockpiling cluster munitions on or in Australian territory:

The Australian Government confirmed today that it will not approve the stockpiling of cluster munitions in Australia by foreign governments.

The commitment not to authorise stockpiling by foreign governments will be confirmed in a public statement at the time of Australia’s ratification of the Convention on Cluster Munitions and in Australia’s Annual Transparency Report under the Convention.

This must be seen as insufficient for two reasons. First, no mention was made of weapons transited in or on Australian territory, only goods permanently stockpiled are explicitly prohibited according to the statement. Second, and more importantly still, whilst this must be seen a small step toward ensuring Australia fulfils its obligations under the international Cluster Munitions Convention, a departmental statement is not legally binding as would be an amended Bill!

That is, there are no guarantees that the stated commitment will be met – by present, or future governments.

Follow NAJ Taylor on Twitter: @najtaylor

A later version of this post appeared in my Al Jazeera column.