Testimony and Presentations Before Parliamentary Bodies
“Canada’s Involvement in NATO and the UN: A Comparison,” House of Commons Standing Committee on National Defence, 1 November 2017. Oral testimony: En, Fr. Pdf: En, Fr. Written brief: En (pdf), Fr (pdf)
Improving the Cluster Munitions Convention Legislation, House of Commons Committee on Foreign Affairs and International Development, Ottawa, 21 November 2013. (En) (Fr) (Sound recording, minutes 10-17)
United Nations Fact-Finding, Written testimony for the Canadian Standing Committee on External Affairs and International Trade, 5 November 1992.
Mexican Participation in Peacekeeping Operations, parliamentary seminar, Mexican Congress, Mexico City, 12 July 2005. (televised)
The Chemical Weapons Convention: National and International Implementation, presentation to the Arms Control and Disarmament Committee of the Social Democratic Party of Germany (SPD), Deutscher Bundestag, Bonn, 2 February 1993.
Ratifying and Implementing the Chemical Weapons Convention, (introducing a Parliamentary Declaration drafted by W. Dorn and subsequently signed by over 1,000 parliamentarians), Symposium of Parliamentarians for Global Action, French Parliament (L’Assemblée Nationale), Paris, 13 January 1993.
Arms Control After the End of the Cold War, talks with the Australian National Group of Parliamentarians for Global Action (upon invitation from Senator Margaret Reynolds), Australian Parliament, Canberra, 10 September 1992.
Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade (October 18, 2012)
Walter Dorn, Chair, Department of Security and International Affairs, Canadian Forces College, as an individual: Thank you so much, honourable senators, for this opportunity to meet with you.
The Convention on Cluster Munitions is a major achievement, coming after what I call a decade of darkness, the period after the signing of the 1997 Ottawa convention until this one, the 2008 Oslo convention.
This convention’s comprehensive ban deserves to be implemented with the strongest measures of support. Arms- control treaties like this one enhance both national and international security, and I am glad that Canada is finally ratifying the 2008 convention. However, similar to other testimony you have heard this morning, I have three grave concerns about clause 11 in Bill S-10.
On legality, clause 11 deals with Canadian military operations in conjunction with nations not party to the treaty. Unfortunately, this section opens a gaping loophole, one big enough to send planeloads of cluster bombs through. In effect, it allows Canadian soldiers in such combined operations to “assist,” “direct,” “aid and abet” and “conspire” with others to use cluster munitions. These are all words from the clause or section itself.
This section is clearly in contravention of the treaty, even under the widest possible interpretation of the treaty in Article 21. That article allows parties to engage in combined operations with non-parties — perfectly natural — but it does not allow a state party to assist or cooperate in using cluster munitions. Canadians in a U.S. chain of command, or fighting alongside, cannot legally, under this treaty, use cluster munitions or assist other nations to do so.
Clause 11 of the bill constitutes, in effect, a reservation to the treaty which is not permitted under article 19 of the treaty itself. Furthermore, the section is in contravention of the object and purpose of the convention, so it is prohibited by the 1969 Vienna Convention on the Law of Treaties.
My second point is about morality. As someone who works daily with those who have deployed in combined operations and who might do so myself as a civilian under the Code of Service Discipline, I have to say that the current draft legislation could put us in a compromising position.
Those deployed on behalf of Canada do not want to be forced to violate the treaty or be associated with violations. The terms of the bill would oblige Canadians to accept orders which they might consider illegal. It would then put them in a legal limbo between national and international law. Soldiers are trained to obey “lawful orders.” This would create confusion because the laws are contradictory. A complete prohibition, as obliged by the convention, would be much clearer.
Other troublesome moral questions arise. Would we want Canada to be considered an accomplice in the use of cluster munitions? Do we want Canada to apply double standards: one for solo missions and another for combined operations? Would we have accepted any kind of exemption like this when we ratified the torture convention or the Geneva Conventions?
My third area is about the norms we are establishing. When state parties apply reservations and narrow national interpretations to a treaty, the entire treaty regime is weakened. The convention needs to be reinforced, not weakened.
For norm creation, we can apply a Kantian test: Would Canada want other nations to apply these clause 11 reservations? In combined operations with other groups in which one country is not a signatory, would we want this to give licence to all state parties, friend or foe, in the group to participate in the use of cluster munitions? Aggressive states could apply this type of provision in an attempt to justify violations of the treaty during their own combined operations.
Beyond that, would we want other parties to include their own exemptions and loopholes that go beyond the outer bounds of the treaty? Once having given a self-serving interpretation, will Canada be in a position to criticize other nations who have their own self-serving interpretations of other provisions in this treaty?
In conclusion, clause 11 of the current draft legislation seems to be in legal contravention of the treaty. It gives rise to serious moral dilemmas and weakens the norm against the use of these terrible weapons. It should be removed or amended.
To end on a positive note, this Senate committee has an opportunity to build on this new and strong international norm. Your bill provides a special opportunity for the Senate to demonstrate sober, first thought, as it shows leadership in advance of the house. Hopefully, by putting the bill through the Senate first, the government is showing a willingness to consider senatorial input and improvements. The development of a strong, fully implemented treaty is now in your hands.