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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Anti-Personnel
Mines Convention Bill 1998
No. ,
1998
(Foreign
Affairs)
A Bill for an Act to implement the
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer
of Anti-Personnel Mines and on their Destruction, and for related
purposes
ISBN: 0642 376972
Contents
A Bill for an Act to implement the Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Anti-Personnel Mines Convention Act
1998.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation, being a day not earlier than the day on which the Convention
enters into force for Australia.
(2) If this Act does not commence under subsection (1) within the period
of 6 months beginning on the day on which the Convention enters into force for
Australia, it commences on the first day after the end of that period.
The following is a simplified outline of this Act:
• This
Act implements the Anti-Personnel Mines Convention.
• It is an offence to place, possess, develop,
produce, acquire, stockpile or transfer anti-personnel mines.
• If a fact-finding mission to Australia is
authorised under the Convention, the Minister must appoint each member of the
mission as an inspector. Inspectors may enter premises, and exercise powers of
inspection, for the purpose of finding out whether the Convention has been
complied with.
• The Minister may require a person to give
information that is relevant to Australia’s reporting obligations under
the Convention.
In
this Act, unless the contrary intention appears:
anti-handling device means a device that:
(a) is intended to protect a mine; and
(b) is part of, linked to, attached to or placed under the mine;
and
(c) activates when an attempt is made to tamper with or otherwise
intentionally disturb the mine.
anti-personnel mine means a mine that:
(a) is designed, intended or altered so as:
(i) to be placed under, on or near the ground or other surface area;
and
(ii) to be exploded by the presence, proximity or contact of a person;
and
(b) is capable of incapacitating, injuring or killing one or more
persons.
However, a mine that is designed, intended or altered so as to be detonated
by the presence, proximity or contact of a vehicle as opposed to a person, and
that is equipped with an anti-handling device, is taken not to be an
anti-personnel mine as a result of being so equipped.
Note: A mine that has been permanently deactivated is not an
anti-personnel mine since it is not capable of incapacitating, injuring or
killing a person.
Australia, when used in a geographical sense, includes the
external Territories.
Convention means the Convention on the Prohibition of the
Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their
Destruction (a copy of the English text of which is set out in Schedule 1), as
amended by any amendment of the Convention that has entered into force for
Australia (a copy of the English text of which is set out in the
regulations).
inspector means a person appointed as an inspector under
section 12.
mine means a munition (other than a command-detonated
munition) designed, intended or altered so as:
(a) to be placed under, on or near the ground or other surface area;
and
(b) to be exploded by the presence, proximity or contact of a person or a
vehicle.
munition has the technical meaning generally accepted within
the defence community.
occupier, in relation to premises, includes a person present
at the premises who is in apparent control of the premises.
police officer means:
(a) a member or special member of the Australian Federal Police;
or
(b) a member of the police force of a State or Territory.
premises includes the following:
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place (whether enclosed or built on or not);
(c) a part of a thing referred to in paragraph (a) or (b).
transfer ownership or control, in relation to an
anti-personnel mine, does not include the transfer of the ownership or control
of land containing emplaced anti-personnel mines.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act extends to all the external Territories.
Offence
(1) A person is guilty of an offence if:
(a) the person places an anti-personnel mine under, on or near the ground
or other surface area; or
(b) the person is knowingly in the possession of an anti-personnel mine;
or
(c) the person develops, produces or otherwise acquires an anti-personnel
mine; or
(d) the person stockpiles anti-personnel mines; or
(e) the person physically moves an anti-personnel mine; or
(f) the person transfers ownership or control of an anti-personnel mine,
whether directly or indirectly, to another person.
Penalty:
(a) if the offender is an individual—600 penalty units or
imprisonment for 10 years, or both; or
(b) if the offender is a body corporate—10,000 penalty
units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Exceptions
(2) Subsection (1) does not apply to:
(a) the placement, possession, production, acquisition, physical movement
or transfer of ownership or control of an anti-personnel mine in accordance with
a permission in force under section 8; or
(b) the possession, acquisition, physical movement or transfer of
ownership or control of an anti-personnel mine for the purpose of its
destruction or permanent deactivation; or
(c) the possession, acquisition, physical movement or transfer of
ownership or control of an anti-personnel mine by a person in the course of the
person’s duties as a member of the Australian Defence Force, or as a
police officer, for:
(i) the purpose of the conduct of criminal proceedings; or
(ii) the purpose of rendering the mine harmless.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection
(1) does not apply to anything done by way of the mere participation in
operations, exercises or other military activities conducted in combination with
an armed force that:
(a) is an armed force of a country that is not a party to the Convention;
and
(b) engages in an activity prohibited under the Convention.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (3) applies to operations, exercises or other military
activities, whether or not conducted under the auspices of the United
Nations.
Extraterritorial operation
(5) This section extends outside Australia, but does not apply in relation
to any person outside Australia unless that person is:
(a) an Australian citizen; or
(b) a member of the Australian Defence Force.
Grant of permission
(1) The Minister for Defence may, by writing, grant permission for
specified anti-personnel mines to:
(a) be placed under, on or near the ground or other surface area,
or
(b) be possessed; or
(c) be produced or otherwise acquired; or
(d) be physically moved; or
(e) be the subject of a transfer of ownership or control;
for the purposes of the development of, and training in, any or all of the
following:
(f) anti-personnel mine detection techniques;
(g) anti-personnel mine clearance techniques;
(h) anti-personnel mine destruction techniques;
(i) anti-personnel mine deactivation techniques.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) The Minister for Defence must ensure that the total number of
anti-personnel mines that are the subject of permissions under subsection (1)
does not exceed the minimum number absolutely necessary for the purposes of the
development of, and training in, any or all of the techniques referred to in
that subsection.
Decision-making principles
(3) The Minister for Defence must, by writing, formulate principles to be
complied with by the Minister for Defence in exercising the power conferred by
subsection (1).
(4) Before formulating the principles under subsection (3), the Minister
for Defence must consult the Minister administering this Act.
(5) In exercising the power conferred by subsection (1), the Minister for
Defence must comply with the principles formulated under subsection
(3).
(6) Principles formulated under subsection (3) are disallowable
instruments for the purposes of section 46A of the Acts Interpretation Act
1901.
Offence
(1) A person is guilty of an offence if:
(a) the person is knowingly in the possession of an anti-personnel mine;
and
(b) the person does not deliver the mine, without delay, to a member of
the Australian Defence Force, or to a police officer, for destruction or
permanent deactivation.
Penalty:
(a) if the offender is an individual—600 penalty units or
imprisonment for 10 years, or both; or
(b) if the offender is a body corporate—10,000 penalty
units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Exception
(2) Subsection (1) does not apply if the person is in the possession of
the anti-personnel mine in circumstances that are not prohibited by section
7.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(1) If an anti-personnel mine is delivered to a member of the Australian
Defence Force, or to a police officer, in accordance with section 9, the member
or officer, as the case may be, must ensure the destruction or permanent
deactivation of the mine.
(2) The requirement under subsection (1) does not apply to:
(a) an anti-personnel mine that becomes the subject of a permission under
section 8 after the mine is delivered to the member or officer; or
(b) an anti-personnel mine that is required to be kept for purposes in
connection with the conduct of criminal proceedings.
(1) If a court:
(a) convicts a person of an offence against this Part; or
(b) makes an order under section 19B of the Crimes Act 1914 in
respect of a person charged with an offence against this Part;
the court may order forfeiture to the Commonwealth of any anti-personnel
mine used or otherwise involved in the commission of the offence.
(2) An anti-personnel mine ordered by a court to be forfeited under this
section becomes the property of the Commonwealth and must be destroyed or
permanently deactivated unless it becomes the subject of a permission under
section 8.
Members of fact-finding mission
(1) If a fact-finding mission to Australia is authorised under Article 8
of the Convention, the Minister must, by instrument in writing, appoint each
member of the mission as an inspector.
Domestic inspectors
(2) The Minister may, by instrument in writing, appoint any of the
following persons as an inspector:
(a) a person who is appointed or employed by the Commonwealth;
(b) a person who is appointed or employed by a State or
Territory.
Note: Inspectors appointed under subsection (2) are not part
of fact-finding missions.
(3) In exercising powers or performing functions as an inspector, an
inspector appointed under subsection (2) must comply with any directions of the
Minister.
(4) A person appointed as an inspector under subsection (2) must not
exercise powers or perform functions as an inspector unless the person is
accompanied by an inspector appointed under subsection (1).
(5) Before exercising the power conferred by subsection (2), the Minister
must consult the Minister for Defence.
Identity cards
(6) The Minister must issue an identity card to an inspector, in the form
prescribed by the regulations. The identity card must contain a recent
photograph of the inspector.
(7) A person is guilty of an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not immediately return the identity card to the
Minister.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(8) An inspector must carry the identity card at all times when exercising
powers or performing functions as an inspector.
(1) An appointment of an inspector under subsection 12(1) is subject to
such conditions (if any) as are specified in the instrument of
appointment.
(2) The Minister must not impose any conditions under subsection (1)
unless the Minister is satisfied that it is necessary to do so for:
(a) the protection of sensitive equipment, information or areas;
or
(b) the physical protection and safety of the inspector.
(3) A condition of appointment may provide that the inspector is not
authorised to enter specified premises.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(4) A condition of appointment may provide that the inspector is not
authorised to exercise specified powers while on specified premises.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(5) Subsections (3) and (4) do not limit subsection (1).
(6) Before
exercising a power conferred by this section, the Minister must consult the
Minister for Defence.
(1) For the purpose of finding out whether the Convention has been
complied with, an inspector may:
(a) enter any premises; and
(b) exercise the powers set out in subsection 16(1).
(2) An inspector is not authorised to enter premises under subsection (1)
unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a warrant issued under section 20.
(3) This section has effect subject to section 13.
An inspector is not entitled to exercise any powers under this Part in
relation to premises if:
(a) the occupier of the premises has required the inspector to produce his
or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
(1) The powers an inspector may exercise under paragraph 14(1)(b) are as
follows:
(a) to search the premises and anything on the premises;
(b) to inspect, examine, take measurements of, or conduct tests (including
by the taking of samples) concerning, anything on the premises that relates to
an anti-personnel mine;
(c) to take photographs or make video or audio recordings or sketches of
the premises or anything on the premises;
(d) if the inspector was only authorised to enter the premises because the
occupier of the premises consented to the entry—to require the occupier
to:
(i) answer any questions put by the inspector; and
(ii) produce any book, record or document requested by the
inspector;
(e) if the inspector was authorised to enter the premises by a warrant
under section 20—to require any person in or on the premises to:
(i) answer any questions put by the inspector; and
(ii) produce any book, record or document requested by the
inspector;
(f) to inspect any book, record or document on the premises;
(g) to take extracts from or make copies of any such book, record or
document;
(h) to take onto the premises such equipment and materials as the
inspector requires for the purpose of exercising powers in relation to the
premises.
(2) A
person is guilty of an offence if:
(a) the person is subject to a requirement covered by paragraph (1)(e);
and
(b) the person recklessly contravenes the requirement.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises or another person who apparently represents the
occupier is present at the premises, the inspector must make available to that
person a copy of the warrant.
(2) The inspector must identify himself or herself to that
person.
(3) The copy of the warrant referred to in subsection (1) need not include
the signature of the magistrate who issued the warrant.
(1) An inspector must, before entering the premises under a
warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(2) An inspector is not required to comply with subsection (1) if he or
she believes on reasonable grounds that immediate entry to the premises is
required:
(a) to ensure the safety of a person; or
(b) to prevent serious damage to the environment; or
(c) to ensure that the effective execution of the warrant is not
frustrated.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises or another person who apparently represents the
occupier is present at the premises, the person is entitled to observe the
search being conducted.
(2) The right to observe the search being conducted ceases if the person
impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath, that it is reasonably necessary that one or more
inspectors should have access to the premises for the purposes of finding out
whether the Convention has been complied with. This subsection has effect
subject to subsection (3).
(3) The magistrate must not issue the warrant unless the inspector or some
other person has given to the magistrate, either orally or by affidavit, such
further information (if any) as the magistrate requires concerning the grounds
on which the issue of the warrant is being sought.
(4) The warrant must:
(a) authorise one or more inspectors (whether or not named in the
warrant), with such assistance and by such force as is necessary and
reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in subsection 16(1) in relation to the
premises; and
(b) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
A person is guilty of an offence if:
(a) the person makes a statement in an application for a warrant under
section 20; and
(b) the statement is false or misleading in a material
particular.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) This section applies to a person if the Minister has reason to believe
that the person has information or a document that is relevant to:
(a) the administration or enforcement of this Act; or
(b) Australia’s obligation to report under Article 7 of the
Convention; or
(c) Australia’s obligation to provide information under Article 8 of
the Convention.
(2) The Minister may, by written notice given to the person, require the
person:
(a) to give to the Minister, within the period and in the manner and form
specified in the notice, any such information; or
(b) to produce to the Minister, within the period and in the manner
specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the Minister,
within the period and in the manner specified in the notice, those
copies.
(3) A
person is guilty of an offence if:
(a) the person is subject to a requirement covered by subsection (2);
and
(b) the person recklessly contravenes the requirement.
Penalty: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
A person is entitled to be paid by the Commonwealth reasonable
compensation for complying with a requirement covered by paragraph
22(2)(c).
(1) An individual is not excused from giving information or producing a
document or a copy of a document under this Part on the ground that the
information or the production of the document or copy might tend to incriminate
the individual or expose the individual to a penalty.
(2) However:
(a) giving the information or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing the document or
copy;
is not admissible in evidence against the individual in criminal
proceedings other than proceedings under, or arising out of, subsection 22(3) or
section 25 or 26.
A person is guilty of an offence if:
(a) the person gives information under section 22; and
(b) the information is false or misleading in a material
particular.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person is guilty of an offence if:
(a) the person produces a document, or a copy of a document, under section
22; and
(b) the document or copy is false or misleading in a material
particular.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subsection (1) does not apply to a person who produces a document, or
a copy of a document, that, to the knowledge of the person, is false or
misleading in a material particular if the document or copy is accompanied by a
written statement signed by the person or, in the case of a body corporate, by a
competent officer of the body corporate:
(a) stating that the document or copy is, to the knowledge of the person,
false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document or copy is, to the knowledge of the person, false or
misleading.
(1) The Minister may inspect a document or copy produced under this Part
and may make and retain copies of, or take and retain extracts from, such a
document.
(2) The Minister may retain possession of a copy of a document produced in
accordance with a requirement covered by paragraph 22(2)(c).
(1) The Minister may take, and retain for as long as is necessary,
possession of a document produced under this Part.
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified by the
Minister to be a true copy.
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(4) Until a certified copy is supplied, the Minister must, at such
reasonable times and places as the Minister thinks appropriate, permit the
person otherwise entitled to possession of the document, or a person authorised
by that person, to inspect and make copies of, or take extracts from, the
document.
Delegation by the Minister
(1) The Minister may, by writing, delegate to:
(a) the Secretary to the Department; or
(b) a person holding or performing the duties of a Senior Executive
Service office or position (whether or not in the Department);
all or any of the Minister’s powers under this Act.
(2) A delegate is, in the exercise of a power delegated under subsection
(1), subject to the directions of the Minister.
Delegation by the Minister for Defence
(3) The Minister for Defence may, by writing, delegate to:
(a) the Secretary to the Department of Defence; or
(b) the Secretary to the Department; or
(c) the Chief of the Defence Force; or
(d) a person holding or performing the duties of a Senior Executive
Service office or position (whether or not in the Department); or
(e) an officer of the Navy who holds the rank of Commodore or a higher
rank; or
(f) an officer of the Army who holds the rank of Brigadier or a higher
rank; or
(g) an officer of the Air Force who holds the rank of Air Commodore or a
higher rank;
the power conferred on the Minister for Defence by subsection
8(1).
(4) A delegate covered by paragraph (3)(a), (c), (e), (f) or (g) must not
exercise the power delegated under subsection (3) unless the exercise of the
power relates to the operation of the Australian Defence Force.
(5) A delegate is, in the exercise of a power delegated under subsection
(3), subject to the directions of the Minister for Defence.
(1) This section applies to a fact-finding mission to Australia that is
authorised by Article 8 of the Convention.
(2) The regulations may confer on the members of the mission such
privileges and immunities as are necessary or desirable to give effect to, or
facilitate the operation of, that Article.
(3) The privileges and immunities conferred by the regulations are
privileges and immunities in relation to the operation of the laws of the
Commonwealth and of the laws of the States and Territories.
(4) This section does not limit the International Organisations
(Privileges and Immunities) Act 1963.
(1) A person may exercise a power or perform a duty under this Act only to
the extent that the exercise or performance is not inconsistent with
Australia’s obligations under the Convention.
(2) A person must, in exercising a power under this Act, have regard to
Australia’s obligations under the Convention.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay the person a reasonable amount of
compensation in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Note: This is the copy of the Convention referred to in the
definition of Convention in section 4 of this
Act.
Preamble
The States Parties,
Determined to put an end to the
suffering and casualties caused by anti-personnel mines, that kill or maim
hundreds of people every week, mostly innocent and defenceless civilians and
especially children, obstruct economic development and reconstruction, inhibit
the repatriation of refugees and internally displaced persons, and have other
severe consequences for years after emplacement,
Believing it
necessary to do their utmost to contribute in an efficient and coordinated
manner to face the challenge of removing anti-personnel mines placed throughout
the world, and to assure their destruction,
Wishing to do their
utmost in providing assistance for the care and rehabilitation, including the
social and economic reintegration of mine victims,
Recognizing
that a total ban of anti-personnel mines would also be an important
confidence-building measure,
Welcoming the adoption of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices, as amended on 3 May 1996, annexed to the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, and
calling for the early ratification of this Protocol by all States which have not
yet done so,
Welcoming also United Nations General Assembly
Resolution 51/45 S of 10 December 1996 urging all States to pursue vigorously an
effective, legally-binding international agreement to ban the use, stockpiling,
production and transfer of anti-personnel landmines,
Welcoming
furthermore the measures taken over the past years, both unilaterally and
multilaterally, aiming at prohibiting, restricting or suspending the use,
stockpiling, production and transfer of anti-personnel
mines,
Stressing the role of public conscience in furthering the
principles of humanity as evidenced by the call for a total ban of
anti-personnel mines and recognizing the efforts to that end undertaken by the
International Red Cross and Red Crescent Movement, the International Campaign to
Ban Landmines and numerous other non-governmental organizations around the
world,
Recalling the Ottawa Declaration of 5 October 1996 and the
Brussels Declaration of 27 June 1997 urging the international community to
negotiate an international and legally binding agreement prohibiting the use,
stockpiling, production and transfer of anti-personnel mines,
Emphasizing
the desirability of attracting the adherence of all States to this
Convention, and determined to work strenuously towards the promotion of its
universalization in all relevant fora including, inter alia, the United Nations,
the Conference on Disarmament, regional organizations, and groupings, and review
conferences of the Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or
to Have Indiscriminate Effects,
Basing themselves on the
principle of international humanitarian law that the right of the parties to an
armed conflict to choose methods or means of warfare is not unlimited, on the
principle that prohibits the employment in armed conflicts of weapons,
projectiles and materials and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering and on the principle that a
distinction must be made between civilians and combatants,
Have agreed as
follows:
Article 1
General obligations
1. Each State Party undertakes never under any circumstances:
a) To
use anti-personnel mines;
b) To develop, produce, otherwise acquire,
stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel
mines;
c) To assist, encourage or induce, in any way, anyone to engage in any
activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy or ensure the
destruction of all anti-personnel mines in accordance with the provisions of
this Convention.
Article 2
Definitions
1. “Anti-personnel mine” means a mine designed to be exploded
by the presence, proximity or contact of a person and that will incapacitate,
injure or kill one or more persons. Mines designed to be detonated by the
presence, proximity or contact of a vehicle as opposed to a person, that are
equipped with anti-handling devices, are not considered anti-personnel mines as
a result of being so equipped.
2. “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
3. “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.
4. “Transfer” involves, in
addition to the physical movement of anti-personnel mines into or from national
territory, the transfer of title to and control over the mines, but does not
involve the transfer of territory containing emplaced anti-personnel
mines
5. “Mined area” means an area which is dangerous due to the
presence or suspected presence of mines.
Article 3
Exceptions
1. Notwithstanding the general obligations under Article 1, the retention
or transfer of a number of anti-personnel mines for the development of and
training in mine detection, mine clearance, or mine destruction techniques is
permitted. The amount of such mines shall not exceed the minimum number
absolutely necessary for the above-mentioned purposes.
2. The transfer of
anti-personnel mines for the purpose of destruction is permitted.
Article 4
Destruction of stockpiled
anti-personnel mines
Except as provided for in Article 3, each State Party undertakes to destroy
or ensure the destruction of all stockpiled anti-personnel mines it owns or
possesses, or that are under its jurisdiction or control, as soon as possible
but not later than four years after the entry into force of this Convention for
that State Party.
Article 5
Destruction of anti-personnel mines
in mined areas
1. Each State Party undertakes to destroy or ensure the destruction of all
anti-personnel mines in mined areas under its jurisdiction or control, as soon
as possible but not later than ten years after the entry into force of this
Convention for that State Party.
2. Each State Party shall make every effort
to identify all areas under its jurisdiction or control in which anti-personnel
mines are known or suspected to be emplaced and shall ensure as soon as possible
that all anti-personnel mines in mined areas under its jurisdiction or control
are perimeter-marked, monitored and protected by fencing or other means, to
ensure the effective exclusion of civilians, until all anti-personnel mines
contained therein have been destroyed. The marking shall at least be to the
standards set out in the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices, as amended on 3 May 1996, annexed to the
Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects.
3. If a State Party believes that it will be unable
to destroy or ensure the destruction of all anti-personnel mines referred to in
paragraph 1 within that time period, it may submit a request to a Meeting of the
States Parties or a Review Conference for an extension of the deadline for
completing the destruction of such anti-personnel mines, for a period of up to
ten years.
4. Each request shall contain:
a) The duration of the proposed
extension;
b) A detailed explanation of the reasons for the proposed
extension, including:(i) The preparation and status of work conducted under
national demining programs;(ii) The financial and technical means available to
the State Party for the destruction of all the anti-personnel mines;
and(iii) Circumstances which impede the ability of the State Party to destroy
all the anti-personnel mines in mined areas;
c) The humanitarian, social,
economic, and environmental implications of the extension; and
d) Any other
information relevant to the request for the proposed extension.
5. The
Meeting of the States Parties or the Review Conference shall, taking into
consideration the factors contained in paragraph 4, assess the request and
decide by a majority of votes of States Parties present and voting whether to
grant the request for an extension period.
6. Such an extension may be
renewed upon the submission of a new request in accordance with paragraphs 3, 4
and 5 of this Article. In requesting a further extension period a State Party
shall submit relevant additional information on what has been undertaken in the
previous extension period pursuant to this Article.
Article 6
International cooperation and
assistance
1. In fulfilling its obligations under this Convention each State Party has
the right to seek and receive assistance, where feasible, from other States
Parties to the extent possible.
2. Each State Party undertakes to facilitate
and shall have the right to participate in the fullest possible exchange of
equipment, material and scientific and technological information concerning the
implementation of this Convention. The States Parties shall not impose undue
restrictions on the provision of mine clearance equipment and related
technological information for humanitarian purposes.
3. Each State Party in a
position to do so shall provide assistance for the care and rehabilitation, and
social and economic reintegration, of mine victims and for mine awareness
programs. Such assistance may be provided, inter alia, through the United
Nations system, international, regional or national organizations or
institutions, the International Committee of the Red Cross, national Red Cross
and Red Crescent societies and their International Federation, non-governmental
organizations, or on a bilateral basis.
4. Each State Party in a position to
do so shall provide assistance for mine clearance and related activities. Such
assistance may be provided, inter alia, through the United Nations system,
international or regional organizations or institutions, non-governmental
organizations or institutions, or on a bilateral basis, or by contributing to
the United Nations Voluntary Trust Fund for Assistance in Mine Clearance, or
other regional funds that deal with demining.
5. Each State Party in a
position to do so shall provide assistance for the destruction of stockpiled
anti-personnel mines.
6. Each State Party undertakes to provide information
to the database on mine clearance established within the United Nations system,
especially information concerning various means and technologies of mine
clearance, and lists of experts, expert agencies or national points of contact
on mine clearance.
7. States Parties may request the United Nations, regional
organizations, other States Parties or other competent intergovernmental or
non-governmental fora to assist its authorities in the elaboration of a national
demining program to determine, inter alia:
a) The extent and scope of the
anti-personnel mine problem;
b) The financial, technological and human
resources that are required for the implementation of the program;
c) The
estimated number of years necessary to destroy all anti-personnel mines in mined
areas under the jurisdiction or control of the concerned State
Party;
d) Mine awareness activities to reduce the incidence of mine-related
injuries or deaths;
e) Assistance to mine victims;
f) The relationship
between the Government of the concerned State Party and the relevant
governmental, inter-governmental or non-governmental entities that will work in
the implementation of the program.
8. Each State Party giving and receiving
assistance under the provisions of this Article shall cooperate with a view to
ensuring the full and prompt implementation of agreed assistance
programs.
Article 7
Transparency measures
1. Each State Party shall report to the Secretary-General of the United
Nations as soon as practicable, and in any event not later than 180 days after
the entry into force of this Convention for that State Party on:
a) The
national implementation measures referred to in Article 9;
b) The total of
all stockpiled anti-personnel mines owned or possessed by it, or under its
jurisdiction or control, to include a breakdown of the type, quantity and, if
possible, lot numbers of each type of anti-personnel mine stockpiled;
c) To
the extent possible, the location of all mined areas that contain, or are
suspected to contain, anti-personnel mines under its jurisdiction or control, to
include as much detail as possible regarding the type and quantity of each type
of anti-personnel mine in each mined area and when they were
emplaced;
d) The types, quantities and, if possible, lot numbers of all
anti-personnel mines retained or transferred for the development of and training
in mine detection, mine clearance or mine destruction techniques, or transferred
for the purpose of destruction, as well as the institutions authorized by a
State Party to retain or transfer anti-personnel mines, in accordance with
Article 3;
e) The status of programs for the conversion or de-commissioning
of anti-personnel mine production facilities;
f) The status of programs for
the destruction of anti-personnel mines in accordance with Articles 4 and 5,
including details of the methods which will be used in destruction, the location
of all destruction sites and the applicable safety and environmental standards
to be observed;
g) The types and quantities of all anti-personnel mines
destroyed after the entry into force of this Convention for that State Party, to
include a breakdown of the quantity of each type of anti-personnel mine
destroyed, in accordance with Articles 4 and 5, respectively, along with, if
possible, the lot numbers of each type of anti-personnel mine in the case of
destruction in accordance with Article 4;
h) The technical characteristics
of each type of anti-personnel mine produced, to the extent known, and those
currently owned or possessed by a State Party, giving, where reasonably
possible, such categories of information as may facilitate identification and
clearance of anti-personnel mines; at a minimum, this information shall include
the dimensions, fusing, explosive content, metallic content, colour photographs
and other information which may facilitate mine clearance; and
i) The
measures taken to provide an immediate and effective warning to the population
in relation to all areas identified under paragraph 2 of Article 5.
2. The
information provided in accordance with this Article shall be updated by the
States Parties annually, covering the last calendar year, and reported to the
Secretary-General of the United Nations not later than 30 April of each
year.
3. The Secretary-General of the United Nations shall transmit all such
reports received to the States Parties.
Article 8
Facilitation and clarification of
compliance
1. The States Parties agree to consult and cooperate with each other
regarding the implementation of the provisions of this Convention, and to work
together in a spirit of cooperation to facilitate compliance by States Parties
with their obligations under this Convention.
2. If one or more States
Parties wish to clarify and seek to resolve questions relating to compliance
with the provisions of this Convention by another State Party, it may submit,
through the Secretary-General of the United Nations, a Request for Clarification
of that matter to that State Party. Such a request shall be accompanied by all
appropriate information. Each State Party shall refrain from unfounded Requests
for Clarification, care being taken to avoid abuse. A State Party that receives
a Request for Clarification shall provide, through the Secretary-General of the
United Nations, within 28 days to the requesting State Party all information
which would assist in clarifying this matter.
3. If the requesting State
Party does not receive a response through the Secretary-General of the United
Nations within that time period, or deems the response to the Request for
Clarification to be unsatisfactory, it may submit the matter through the
Secretary-General of the United Nations to the next Meeting of the States
Parties. The Secretary-General of the United Nations shall transmit the
submission, accompanied by all appropriate information pertaining to the Request
for Clarification, to all States Parties. All such information shall be
presented to the requested State Party which shall have the right to
respond.
4. Pending the convening of any meeting of the States Parties, any
of the States Parties concerned may request the Secretary-General of the United
Nations to exercise his or her good offices to facilitate the clarification
requested.
5. The requesting State Party may propose through the
Secretary-General of the United Nations the convening of a Special Meeting of
the States Parties to consider the matter. The Secretary-General of the United
Nations shall thereupon communicate this proposal and all information submitted
by the States Parties concerned, to all States Parties with a request that they
indicate whether they favour a Special Meeting of the States Parties, for the
purpose of considering the matter. In the event that within 14 days from the
date of such communication, at least one-third of the States Parties favours
such a Special Meeting, the Secretary-General of the United Nations shall
convene this Special Meeting of the States Parties within a further 14 days. A
quorum for this Meeting shall consist of a majority of States Parties.
6. The
Meeting of the States Parties or the Special Meeting of the States Parties, as
the case may be, shall first determine whether to consider the matter further,
taking into account all information submitted by the States Parties concerned.
The Meeting of the States Parties or the Special Meeting of the States Parties
shall make every effort to reach a decision by consensus. If despite all efforts
to that end no agreement has been reached, it shall take this decision by a
majority of States Parties present and voting.
7. All States Parties shall
cooperate fully with the Meeting of the States Parties or the Special Meeting of
the States Parties in the fulfilment of its review of the matter, including any
fact-finding missions that are authorized in accordance with paragraph
8.
8. If further clarification is required, the Meeting of the States Parties
or the Special Meeting of the States Parties shall authorize a fact-finding
mission and decide on its mandate by a majority of States Parties present and
voting. At any time the requested State Party may invite a fact-finding mission
to its territory. Such a mission shall take place without a decision by a
Meeting of the States Parties or a Special Meeting of the States Parties to
authorize such a mission. The mission, consisting of up to 9 experts, designated
and approved in accordance with paragraphs 9 and 10, may collect additional
information on the spot or in other places directly related to the alleged
compliance issue under the jurisdiction or control of the requested State
Party.
9. The Secretary-General of the United Nations shall prepare and
update a list of the names, nationalities and other relevant data of qualified
experts provided by States Parties and communicate it to all States Parties. Any
expert included on this list shall be regarded as designated for all
fact-finding missions unless a State Party declares its non-acceptance in
writing. In the event of non-acceptance, the expert shall not participate in
fact-finding missions on the territory or any other place under the jurisdiction
or control of the objecting State Party, if the non-acceptance was declared
prior to the appointment of the expert to such missions.
10. Upon receiving
a request from the Meeting of the States Parties or a Special Meeting of the
States Parties, the Secretary-General of the United Nations shall, after
consultations with the requested State Party, appoint the members of the
mission, including its leader. Nationals of States Parties requesting the
fact-finding mission or directly affected by it shall not be appointed to the
mission. The members of the fact-finding mission shall enjoy privileges and
immunities under Article VI of the Convention on the Privileges and Immunities
of the United Nations, adopted on 13 February 1946.
11. Upon at least 72
hours notice, the members of the fact-finding mission shall arrive in the
territory of the requested State Party at the earliest opportunity. The
requested State Party shall take the necessary administrative measures to
receive, transport and accommodate the mission, and shall be responsible for
ensuring the security of the mission to the maximum extent possible while they
are on territory under its control.
12. Without prejudice to the sovereignty
of the requested State Party, the fact-finding mission may bring into the
territory of the requested State Party the necessary equipment which shall be
used exclusively for gathering information on the alleged compliance issue.
Prior to its arrival, the mission will advise the requested State Party of the
equipment that it intends to utilize in the course of its fact-finding
mission.
13. The requested State Party shall make all efforts to ensure that
the fact-finding mission is given the opportunity to speak with all relevant
persons who may be able to provide information related to the alleged compliance
issue.
14. The requested State Party shall grant access for the fact-finding
mission to all areas and installations under its control where facts relevant to
the compliance issue could be expected to be collected. This shall be subject to
any arrangements that the requested State Party considers necessary
for:
a) The protection of sensitive equipment, information and
areas;
b) The protection of any constitutional obligations the requested
State Party may have with regard to proprietary rights, searches and seizures,
or other constitutional rights; or
c) The physical protection and safety of
the members of the fact-finding mission.
In the event that the requested
State Party makes such arrangements, it shall make every reasonable effort to
demonstrate through alternative means its compliance with this
Convention.
15. The fact-finding mission may remain in the territory of the
State Party concerned for no more than 14 days, and at any particular site no
more than 7 days, unless otherwise agreed.
16. All information provided
in confidence and not related to the subject matter of the fact-finding mission
shall be treated on a confidential basis.
17. The fact-finding mission shall
report, through the Secretary-General of the United Nations, to the Meeting of
the States Parties or the Special Meeting of the States Parties the results of
its findings.
18. The Meeting of the States Parties or the Special Meeting of
the States Parties shall consider all relevant information, including the report
submitted by the fact-finding mission, and may request the requested State Party
to take measures to address the compliance issue within a specified period of
time. The requested State Party shall report on all measures taken in response
to this request.
19. The Meeting of the States Parties or the Special
Meeting of the States Parties may suggest to the States Parties concerned ways
and means to further clarify or resolve the matter under consideration,
including the initiation of appropriate procedures in conformity with
international law. In circumstances where the issue at hand is determined to be
due to circumstances beyond the control of the requested State Party, the
Meeting of the States Parties or the Special Meeting of the States Parties may
recommend appropriate measures, including the use of cooperative measures
referred to in Article 6.
20. The Meeting of the States Parties or the
Special Meeting of the States Parties shall make every effort to reach its
decisions referred to in paragraphs 18 and 19 by consensus, otherwise by a
two-thirds majority of States Parties present and voting.
Article 9
National implementation
measures
Each State Party shall take all appropriate legal, administrative and other
measures, including the imposition of penal sanctions, to prevent and suppress
any activity prohibited to a State Party under this Convention undertaken by
persons or on territory under its jurisdiction or control.
Article 10
Settlement of disputes
1. The States Parties shall consult and cooperate with each other to settle
any dispute that may arise with regard to the application or the interpretation
of this Convention. Each State Party may bring any such dispute before the
Meeting of the States Parties.
2. The Meeting of the States Parties may
contribute to the settlement of the dispute by whatever means it deems
appropriate, including offering its good offices, calling upon the States
parties to a dispute to start the settlement procedure of their choice and
recommending a time-limit for any agreed procedure.
3. This Article is
without prejudice to the provisions of this Convention on facilitation and
clarification of compliance.
Article 11
Meetings of the States
Parties
1. The States Parties shall meet regularly in order to consider any matter
with regard to the application or implementation of this Convention,
including:
a) The operation and status of this Convention;
b) Matters
arising from the reports submitted under the provisions of this
Convention;
c) International cooperation and assistance in accordance with
Article 6;
d) The development of technologies to clear anti-personnel
mines;
e) Submissions of States Parties under Article 8; and
f) Decisions
relating to submissions of States Parties as provided for in Article
5.
2. The First Meeting of the States Parties shall be convened by the
Secretary-General of the United Nations within one year after the entry into
force of this Convention. The subsequent meetings shall be convened by the
Secretary-General of the United Nations annually until the first Review
Conference.
3. Under the conditions set out in Article 8, the
Secretary-General of the United Nations shall convene a Special Meeting of the
States Parties.
4. States not parties to this Convention, as well as the
United Nations, other relevant international organizations or institutions,
regional organizations, the International Committee of the Red Cross and
relevant non-governmental organizations may be invited to attend these meetings
as observers in accordance with the agreed Rules of Procedure.
Article 12
Review Conferences
1. A Review Conference shall be convened by the Secretary-General of the
United Nations five years after the entry into force of this Convention. Further
Review Conferences shall be convened by the Secretary-General of the United
Nations if so requested by one or more States Parties, provided that the
interval between Review Conferences shall in no case be less than five years.
All States Parties to this Convention shall be invited to each Review
Conference.
2. The purpose of the Review Conference shall
be:
a) To review the operation and status of this
Convention;
b) To consider the need for and the interval between further
Meetings of the States Parties referred to in paragraph 2 of Article
11;
c) To take decisions on submissions of States Parties as provided for
in Article 5; and
d) To adopt, if necessary, in its final report
conclusions related to the implementation of this Convention.
3. States
not parties to this Convention, as well as the United Nations, other relevant
international organizations or institutions, regional organizations, the
International Committee of the Red Cross and relevant non-governmental
organizations may be invited to attend each Review Conference as observers in
accordance with the agreed Rules of Procedure.
Article 13
Amendments
1. At any time after the entry into force of this Convention any State
Party may propose amendments to this Convention. Any proposal for an amendment
shall be communicated to the Depositary, who shall circulate it to all States
Parties and shall seek their views on whether an Amendment Conference should be
convened to consider the proposal. If a majority of the States Parties notify
the Depositary no later than 30 days after its circulation that they support
further consideration of the proposal, the Depositary shall convene an Amendment
Conference to which all States Parties shall be invited.
2. States not
parties to this Convention, as well as the United Nations, other relevant
international organizations or institutions, regional organizations, the
International Committee of the Red Cross and relevant non-governmental
organizations may be invited to attend each Amendment Conference as observers in
accordance with the agreed Rules of Procedure.
3. The Amendment Conference
shall be held immediately following a Meeting of the States Parties or a Review
Conference unless a majority of the States Parties request that it be held
earlier.
4. Any amendment to this Convention shall be adopted by a majority
of two-thirds of the States Parties present and voting at the Amendment
Conference. The Depositary shall communicate any amendment so adopted to the
States Parties.
5. An amendment to this Convention shall enter into force
for all States Parties to this Convention which have accepted it, upon the
deposit with the Depositary of instruments of acceptance by a majority of States
Parties. Thereafter it shall enter into force for any remaining State Party on
the date of deposit of its instrument of acceptance.
Article 14
Costs
1. The costs of the Meetings of the States Parties, the Special Meetings of
the States Parties, the Review Conferences and the Amendment Conferences shall
be borne by the States Parties and States not parties to this Convention
participating therein, in accordance with the United Nations scale of assessment
adjusted appropriately.
2. The costs incurred by the Secretary-General of the
United Nations under Articles 7 and 8 and the costs of any fact-finding mission
shall be borne by the States Parties in accordance with the United Nations scale
of assessment adjusted appropriately.
Article 15
Signature
This Convention, done at Oslo, Norway, on 18 September 1997, shall be open
for signature at Ottawa, Canada, by all States from 3 December 1997 until 4
December 1997, and at the United Nations Headquarters in New York from 5
December 1997 until its entry into force.
Article 16
Ratification, acceptance, approval
or accession
1. This Convention is subject to ratification, acceptance or approval of
the Signatories.
2. It shall be open for accession by any State which has not
signed the Convention.
3. The instruments of ratification, acceptance,
approval or accession shall be deposited with the Depositary.
Article 17
Entry into force
1. This Convention shall enter into force on the first day of the sixth
month after the month in which the 40th instrument of ratification. acceptance,
approval or accession has been deposited.
2. For any State which deposits its
instrument of ratification, acceptance, approval or accession after the date of
the deposit of the 40th instrument of ratification, acceptance, approval or
accession, this Convention shall enter into force on the first day of the sixth
month after the date on which that State has deposited its instrument of
ratification, acceptance, approval or accession.
Article 18
Provisional
application
Any State may at the time of its ratification, acceptance, approval or
accession, declare that it will apply provisionally paragraph 1 of Article 1 of
this Convention pending its entry into force.
Article 19
Reservations
The Articles of this Convention shall not be subject to
reservations.
Article 20
Duration and withdrawal
1. This Convention shall be of unlimited duration.
2. Each State Party
shall, in exercising its national sovereignty, have the right to withdraw from
this Convention. It shall give notice of such withdrawal to all other States
Parties, to the Depositary and to the United Nations Security Council. Such
instrument of withdrawal shall include a full explanation of the reasons
motivating this withdrawal.
3. Such withdrawal shall only take effect six
months after the receipt of the instrument of withdrawal by the Depositary. If,
however, on the expiry of that six-month period, the withdrawing State Party is
engaged in an armed conflict, the withdrawal shall not take effect before the
end of the armed conflict.
4. The withdrawal of a State Party from this
Convention shall not in any way affect the duty of States to continue fulfilling
the obligations assumed under any relevant rules of international law.
Article 21
Depositary
The Secretary-General of the United Nations is hereby designated as the
Depositary of this Convention.
Article 22
Authentic texts
The original of this Convention, of which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited with
the Secretary-General of the United Nations.