Ireland was actively involved in the negotiations that resulted in the adoption of the Convention on Cluster Munitions. Ireland was described as the “driving force behind” the process and as bearing “a great deal of the responsibility for the successful outcome of the negotiations and the strength of the convention.” Ireland signed and ratified the Convention on December 3, 2008. Ireland is also a party to the Anti-Personnel Mine Ban Convention, which it ratified on December 3, 1997. These treaties have been implemented into Ireland’s national law through the Cluster Munitions and Anti-Personnel Mines Act 2008.
II. Types of Prohibited Investment and Financing Activity
The Cluster Munitions and Anti-Personnel Mines Act 2008 prohibits the investment of public money, either directly or indirectly, in any company involved in the manufacture of prohibited munitions or components. Public money is defined in the Act as “moneys provided by the Oireachtas out of the Central Fund”; thus, the application does not extend to private investors.
A prohibited munition is defined as a “cluster munition, explosive bomblet or anti-personnel mine.”
When public money is directly invested in a company that is, or later becomes, a company involved in manufacturing prohibited munitions, the investor must establish that the company intends to stop its involvement. If the investor is not satisfied that the company will cease its involvement in these activities, it must divest the investment in that company.
Indirect investment through collective investment undertakings and investment products are also addressed in the Act. Public money may only be invested in these undertakings and products where the investor has satisfactorily established that “there is not a significant probability” that public money will be invested in a company involved in the manufacture of prohibited munitions. In cases where public money is invested in a collective investment undertaking or investment product that invests in a covered company, the investor must establish to his or her satisfaction that the company intends to stop its involvement. If the investor is not satisfied that this criteria can be met the collective investment undertaking or investment product must divest itself of the investment in the company involved in the manufacture of prohibited munitions. Additionally, there must be a significant probability that the collective investment or investment product will not invest public money in a munitions company again. The investor also has the option of divesting itself of its investment in the collective investment undertaking or investment product, provided that all contractual obligations are taken into account.
The Act does not extend to “contracting derivative financial instruments based on a financial index,” and this exemption has been described as weakening the law because the investments are permitted even when they contain instruments connected to companies involved in prohibited munitions. As noted above, the Act only applies to the investment of public money, so private investors continue to be free to invest in companies that would otherwise be prohibited under the Act.
As noted, the Act’s prohibitions on investment only extend to public funds. The Act’s penalty provisions are contained in sections 16–19 and address parts of the Act other than those of public investment, which are matters of public administration.
The Act does not specify a specific government branch or department that is responsible for overseeing that its provisions are followed. Given that an “investor” covered by the act is defined as a “person or body responsible for the investment of public moneys owned by a Minister of the Government,” it appears that oversight would be within the government department that oversees the investor. For example, the Ireland Strategic Investment Fund is overseen by the National Treasury Management Agency.
The government department in charge of Ireland’s foreign affairs is the Department of Foreign Affairs and Trade. The parliamentary committee that would likely be responsible for considering amendments to the Act would be the Joint Committee on Foreign Affairs and Trade, and Defence.
VI. Government’s List of Companies Affected by the Legislation
In the months prior to the enactment of the Cluster Munitions and Anti-Personnel Mines Act the Irish government requested that the Irish National Pension Reserve Fund withdraw €27 million (approximately US$30 million) from six international companies linked to the manufacture of cluster munitions. The Irish National Pension Reserve Fund complied and disinvested its funds from these companies. The Irish government later transferred all monies from this pension fund to the Ireland Strategic Investment Fund (ISIF) in 2014 after the government decided that it wanted to change the pension fund into an investment fund, to “support economic activity and employment.”
The ISIF has published a list of companies that are excluded from the Fund as mandated by the Cluster Munitions and Anti-Personnel Mines Act 2008. The list currently contains nineteen companies, but it is kept under review and updated as necessary. The companies listed are: Aryt Industries Ltd., Doosan Corporation, Hanwha Corporation, Poongsan Holdings Corporation, Poongsan Corporation, Hanwha Techwin Co. Ltd. (previously Samsung Techwin), Orbital ATK Inc (previously Alliant Techsystems), Lockheed Martin, L-3 Communications, Raytheon, Textron, Aselsan AS, Ashot Ashkelon, China Spacesat China, Aerospace International Holdings, Motovilikha Plants JSC, Norinco International Cooperation Ltd., S&T Dynamics Co. Ltd., and S&T Holdings Co. Ltd. The list does not specify the countries that the listed companies are from.
Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
 Convention on Cluster Munitions, Oct. 30, 2008, 2688 U.N.T.S. 39, https://treaties.un.org/doc/Publication/CTC/26-6.pdf, archived at https://perma.cc/9L93-Z4VQ.
 ROOS BOER ET AL., WORLDWIDE INVESTMENTS IN CLUSTER MUNITIONS: A SHARED RESPONSIBILITY ¶ 2.3.2 (June 2016), https://www.paxforpeace.nl/media/files/worldwide-investments-in-cluster-munitions-pax-june-2016.pdf, archived at https://perma.cc/4957-GCN6.
 Ireland Cluster Munition Ban Policy, LANDMINE AND CLUSTER MUNITION MONITOR (Sept. 1, 2013), http://archives.the-monitor.org/index.php/cp/display/region_profiles/theme/2717#_ftn4, archived at https://perma.cc/V8L5-LC99.
 Treaties, States Parties and Commentaries, Convention on Cluster Munitions, Int’l Comm. of the Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_ treatySelected=620 (last visited Nov. 7, 2016), archived at https://perma.cc/3GH4-AGK4.
 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211, https://treaties.un.org/doc/Publication/UNTS/Volume%202056/v2056.pdf, archived at https://perma.cc/75E5-HNT5.
 Treaties, States Parties and Commentaries, Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Int’l Comm. of the Red Cross, https://ihl-databases. icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=580, archived at https://perma.cc/BZL8-X9UT.
 Cluster Munitions and Anti-Personnel Mines Act 2008, No. 20 of 2008, http://www.irishstatutebook.ie/eli/2008/act/20/enacted/en/print#sec1, archived at https://perma.cc/6LWK-FGKQ.
 Id. § 12.
 Id. § 11.
 “Investor” is defined in section 11 of the 2008 Act as “a person or body responsible for the investment of public moneys owned by a Minister of the Government.”
 Id. § 13, http://www.irishstatutebook.ie/eli/2008/act/20/enacted/en/print#sec1, archived at https://perma.cc/6LWK-FGKQ.
 Id. § 14.
 Id. § 15.
 BOER ET AL., supra note 2, ¶ 2.3.2.
 Cluster Munitions and Anti-Personnel Mines Act 2008, No. 20 of 2008, § 11.
 Joint Committee on Foreign Affairs and Trade, and Defence, HOUSES OF THE OIREACHTAS, http://www.oireachtas.ie/parliament/oireachtasbusiness/committees_list/foreign-affairs-trade-defence/ (last visited Nov. 7, 2016), archived at https://perma.cc/BB6H-89T5.
 Ireland, Cluster Munition Ban Policy, LANDMINE & CLUSTER MUNITION MONITOR (Aug. 5, 2015), http://www.the-monitor.org/en-gb/reports/2015/ireland/cluster-munition-ban-policy.aspx, archived at https://perma.cc/RR38-TST3.
 BOER ET AL., supra note 2, ¶ 2.3.2.
 BOER ET AL., supra note 2, ¶ 2.2.23.
 Cluster Munitions, IRELAND STRATEGIC INVESTMENT FUND, http://www.isif.ie/how-we-invest/responsible-investment/cluster-munitions (last visited Nov. 1, 2016), archived at https://perma.cc/X796-4LVZ; see also NATIONAL TREASURY MANAGEMENT AGENCY, INFORMATION SOUGHT BY THE PUBLIC ACCOUNTS COMMITTEE FOLLOWING THE NTMA’S APPEARANCE BEFORE THE COMMITTEE App. E (July 21, 2016), http://www.oireachtas.ie/parliament/media/committees/pac/correspondence/2016-meeting1832909/PAC32-70-B-----Conor-OKelly-NTMA-Follow-up.pdf, archived at https://perma.cc/7ZZP-6DV8 (providing ISINs for the listed companies).
Last Updated: 12/30/2020