New Zealand Ministry of
Foreign Affairs and Trade
Manatū Aorere
16 December 2024
195 Lambton Quay
Private Bag 18−901
Wellington 6160
New Zealand
Andrew Ecclestone
T +64 4 439 8000
[FYI request #28391 email]
F +64 4 472 9596
OIA 29681
Tēnā koe Andrew Ecclestone
We refer to your email of 13 September 2024 in which you request the following under the
Official Information Act 1982 (OIA):
On 22 December 2009 New Zealand ratified the Convention on Cluster Munitions
(https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-
6&chapter=26&clang=_en)
State parties to the Convention expressed the views that they were, "Deeply
concerned that civilian populations and individual civilians continue to bear the brunt
of armed conflict, Determined to put an end for all time to the to the suffering and
casualties caused by cluster munitions a the time of their use, when they fail to
function as intended or when they are abandoned, Concerned that cluster munition
remnants kill or maim civilians, including women and children, obstruct economic
and social development, including through the loss of livelihood, impede post-conflict
rehabilitation and reconstruction, delay or prevent the return of refugees and
internally displaced persons, can negatively impact on national and international
peace-building and humanitarian assistance efforts, and have other severe
consequences that can persist for many years after use."
Article 1(c) of the Convention states that each party to the Conventions "undertakes
never under any circumstances to...assist, encourage or induce anyone to engage in
any activity prohibited to a State Party under this Convention.
Article 21 of the Convention states (inter alia):
"1. Each State Party shall encourage States not party to this Convention to ratify,
accept, approve or accede to this Convention, with the goal of attracting the
adherence of all States to this Convention.
2. Each State Party shall notify the governments of all States not party to this
Convention, referred to in paragraph 3 of this Article, of its obligations under this
Convention, shall promote the norms it establishes and shall make its best efforts to
discourage States not party to this Convention from using cluster munitions.
3. Notwithstanding the provisions of Article 1 of this Convention and in accordance
with international law, States Parties, their military personnel or nationals, may
engage in military cooperation and operations with States not party to this
Convention that might engage in activities prohibited to a State Party."
e [MFAT request email]
w www.mfat.govt.nz
Page 2 of 9
On 10 September 2024, New Zealand's Deputy Permanent Representative to the
Conference on Disarmament in Geneva made a statement to the 12th Meeting of
States Parties to the Convention on Cluster Munitions
(https://www.mfat.govt.nz/en/media-and-resources/convention-on-cluster-
munitions-12th-meeting-of-states-parties-new-zealand-general-statement).
This noted the use of cluster munitions in Ukraine, and that "The United States has
transferred cluster weapons of various kinds from its own stockpile to Ukraine. These
actions will have economic, social, and environmental consequences for years to
come, including in hampering recovery efforts in places where they have been used."
It has been reported that both Russia and Ukraine have been using cluster munitions
during their armed conflict.
Please provide me with the following information:
1. The dates on which New Zealand, pursuant to Article 21(2), notified the governments
of Russia, Belarus, Iran, Ukraine and the United States of its obligations under the
Convention on Cluster Munitions.
2. The dates on which New Zealand, pursuant to Article 21(2), communicated to the
governments of Russia, Belarus, Iran, Ukraine and the United States in accordance
with its obligation to "make best efforts to discourage States not party to this
Convention from using cluster munitions."
3. Copies of all communications falling within 1 and 2 above, and the replies received.
4. The dates since October 2020 on which legal advice was requested on what New
Zealand needed to do to meet its obligations under the Convention on Cluster
Munitions.
5. Copies of all requests since October 2020 for legal advice on what New Zealand
needed to do to meet its obligations under the Convention on Cluster Munitions.
6. The dates since October 2020 on which legal advice was provided on what New
Zealand needed to do to meet its obligations under the Convention on Cluster
Munitions.
7. Copies of all legal advice provided since October 2020 on what New Zealand needed
to do to meet its obligations under the Convention on Cluster Munitions.
8. The dates on which, since October 2020, advice has been provided to the Ministers of
(a) Disarmament and Arms Control and (b) Foreign Affairs that relate to the
Convention on Cluster Munitions and New Zealand's obligations under that
Convention with regard to the conflict in Ukraine.
9. Copies of all advice since October 2020 to the Ministers of (a) Disarmament and
Arms Control and (b) Foreign Affairs that relate to the Convention on Cluster
Munitions and New Zealand's obligations under that Convention with regard to the
conflict in Ukraine.
10. The dates of all meetings and correspondence with the Ministry of Defence since
October 2020 that relate to the Convention on Cluster Munitions and New Zealand's
obligations under that Convention with regard to the conflict in Ukraine.
11. Copies of all meetings notes and correspondence with the Ministry of Defence since
October 2020 that relate to the Convention on Cluster Munitions and New Zealand's
obligations under that Convention with regard to the conflict in Ukraine.
12. The dates, since October 2020, of any meetings or correspondence any MFAT official
has had with any member or representative of the government of the United
Page 3 of 9
Kingdom that included mention of either country's obligations under the Convention
on Cluster Munitions.
13. The dates, since October 2020, of any meetings or correspondence any New Zealand
government minister has had with any member or representative of the government
of the United Kingdom that included mention of either country's obligations under the
Convention on Cluster Munitions.
Under section 16 of the Official Information Act, my preferences are (a) to receive a
copy of the whole of each document (b) that the information is disclosed in a text
searchable format, either Word or PDF, (c) that it does not have a watermark of
‘Released under the Official Information Act’ or similar across the text and (d) that it
is sent to the email address from which the Ministry received this request.
If the Ministry decides that there is 'good reason' under the OIA to withhold any of
the information I am requesting, then under section 19(a)(ii) of the OIA, I further
request that the Ministry provide me with the grounds in support of each withholding
reason cited for refusal and the public interest factors favouring disclosure that the
Ministry considered.
On 24 September 2024, we contacted you seeking to refine your request to:
All timeframes are from 1 October 2020 to 13 September 2024.
1- Communications between Ministry of Foreign Affairs and Trade (MFAT) officials
and the governments of Russia, Belarus, Iran, Ukraine and the United States
relating to New Zealand’s obligations under Article 21(2) of the Convention on
Cluster Munitions;
2- Legal advice produced by MFAT relating to New Zealand’s obligations under
Article 21(2) of the Convention on Cluster Munitions;
3- Formal advice to Ministers produced by MFAT relating to New Zealand's
obligations under the Convention on Cluster Munitions with regard to the
conflict in Ukraine;
4- Formal meeting notes and correspondence between MFAT and the Ministry of
Defence that relate to New Zealand's obligations under the Convention on
Cluster Munitions with regard to the conflict in Ukraine;
5- The dates of formal and planned meetings between New Zealand based MFAT
officials and British High Commission representatives to New Zealand where the
Convention on Cluster Munitions was a named agenda item.
On 30 September 2024, you declined this refinement. On 10 October 2024, the
timeframes for responding to your request were extended by an additional 45 working
days because responding to your request necessitated the review of a large quantity of
information, and due to the consultations necessary to make a decision on your request
(section 15A(1) of the OIA refers).
Your request has been broken down into 5 sections to aid in the Ministry of Foreign Affairs
and Trade’s (the Ministry) response:
Section 1:
1) The dates on which New Zealand, pursuant to Article 21(2), notified the
governments of Russia, Belarus, Iran, Ukraine and the United States of its
obligations under the Convention on Cluster Munitions.
2) The dates on which New Zealand, pursuant to Article 21(2), communicated to the
governments of Russia, Belarus, Iran, Ukraine and the United States in accordance
Page 4 of 9
with its obligation to "make best efforts to discourage States not party to this
Convention from using cluster munitions."
3) Copies of all communications falling within 1 and 2 above, and the replies received.
Please refer to pages 1-5 of the collated docs. We have withheld some information under
the following sections of the OIA:
6(a): to avoid prejudicing the security or defence of New Zealand or the international
relations of the New Zealand Government;
6(b)(i): to protect the passing of information from another government on a
confidential basis;
6(b)(ii): to protect the passing of information from an international organisation on a
confidential basis; and
9(2)(g)(i): to protect the free and frank expression of opinions by departments.
In addition to the dates mentioned in the collated docs there is a recollection of this topic
being raised with the government of United States of America in December 2022. There is
no formal record of this interaction.
Information on New Zealand’s statements at the Convention on Cluster Munitions Meeting
of States Parties and Oral Questions to the former Minister of Foreign Affairs are refused
under section 18(d) of the OIA, as the information is publicly available via the following
links:
Golriz Ghahraman’s 27 July 2023 oral parliamentary question to Hon Nanaia Mahuta
relating to the ban on cluster munitions:
www.parliament.nz/en/pb/hansard-
debates/rhr/document/HansS_20230727_050760000/4-question-no-4-foreign-affairs
New Zealand's statements at Convention on Cluster Munitions Meetings:
2020 – www.clusterconvention.org/files/meetings/9msp/New-Zealand-
Universalization-1.pdf
2021 – www.clusterconvention.org/wp-content/uploads/2021/09/New-Zealand-CCM-
2RC-general-statement-Item-7.pdf
2022 – www.clusterconvention.org/wp-content/uploads/2022/08/CCM-10MSP-New-
Zealand-Statement-Aug-2022.pdf
2023 – www.clusterconvention.org/wp-content/uploads/2023/09/New-Zealand-
National-Statement-CCM-MSP-11-September-2023.pdf
2024 – www.clusterconvention.org/wp-content/uploads/2024/09/New-Zealand-
statement-CCM-12MSP-10-September-2024.pdf
The Ministry can also confirm that the New Zealand Government has notified the
government of Ukraine of our obligations under the Convention on Cluster Munitions. This
correspondence is withheld in full under the following sections of the OIA:
6(a): to avoid prejudicing the security or defence of New Zealand or the international
relations of the New Zealand Government; and
6(b)(i): to protect the passing of information from another government on a
confidential basis.
Page 5 of 9
We have not directly contacted the governments of Russia, Belarus, or Iran to outline
New Zealand obligations under the Convention on Cluster Munitions. All UN Member States
were notified of New Zealand’s ratification of the Convention on 22 December 2009, via
the United Nations Secretary-General.
Section 2:
4) The dates since October 2020 on which legal advice was requested on what New
Zealand needed to do to meet its obligations under the Convention on Cluster
Munitions.
5) Copies of all requests since October 2020 for legal advice on what New Zealand
needed to do to meet its obligations under the Convention on Cluster Munitions.
6) The dates since October 2020 on which legal advice was provided on what New
Zealand needed to do to meet its obligations under the Convention on Cluster
Munitions.
7) Copies of all legal advice provided since October 2020 on what New Zealand
needed to do to meet its obligations under the Convention on Cluster Munitions.
Between the dates of 1 October 2020 to the date of your request, the Ministry requested
internal legal advice, related to what New Zealand needed in order to meet its obligations
under the Convention on Cluster Munitions, one time. This advice is withheld in full under
section 9(2)(h) of the OIA, to maintain legal professional privilege. We confirm that the
Ministry’s International Security and Disarmament Division sought legal advice on
23 November 2023 and received this advice on 27 November 2023.
Section 3:
8) The dates on which, since October 2020, advice has been provided to the Ministers
of (a) Disarmament and Arms Control and (b) Foreign Affairs that relate to the
Convention on Cluster Munitions and New Zealand's obligations under that
Convention with regard to the conflict in Ukraine.
9) Copies of all advice since October 2020 to the Ministers of (a) Disarmament and
Arms Control and (b) Foreign Affairs that relate to the Convention on Cluster
Munitions and New Zealand's obligations under that Convention with regard to the
conflict in Ukraine.
Please refer to pages 6-56 of the collated docs. Some information is under the following
sections of the OIA:
6(a): to avoid prejudicing the security or defence of New Zealand or the international
relations of the New Zealand Government;
6(b)(i): to protect the passing of information from another government on a
confidential basis;
6(b)(ii): to protect the passing of information from an international organisation on a
confidential basis;
9(2)(a): to protect individuals’ privacy;
9(2)(f)(iv): to protect the confidentiality of advice tendered by Ministers of the Crown
and officials; and
9(2)(g)(i): to protect the free and frank expression of opinions by departments.
Where the information has been withheld under section 9 of the OIA, we identified no
public interest in releasing the information that would override the reasons for withholding
it.
Page 6 of 9
In response to your questions for the dates of these communications, this information is
largely contained within the documents provided. The additional dates are provided below:
- The document,
INWARDS VISIT BY US SECRETARY OF STATE ANTONY BLINKEN 26
– 27 JULY 2023, located on page 17-23, was supplied to the Minister of Foreign
Affairs on 20 July 2023, and
- The supplementary question,
Did the Minister raise the US’ provision of cluster
munitions to Ukraine with Secretary Blinken?, located on page 25, was supplied to
the Minister of Foreign Affairs on 27 July 2023.
Section 4:
10) The dates of all meetings and correspondence with the Ministry of Defence since
October 2020 that relate to the Convention on Cluster Munitions and New Zealand's
obligations under that Convention with regard to the conflict in Ukraine.
11) Copies of all meetings notes and correspondence with the Ministry of Defence since
October 2020 that relate to the Convention on Cluster Munitions and New Zealand's
obligations under that Convention with regard to the conflict in Ukraine.
Please refer to pages 28-60 of the collated documents. We have withheld some
information under the following sections of the OIA:
6(a): to avoid prejudicing the security or defence of New Zealand or the international
relations of the New Zealand Government;
6(b)(i): to protect the passing of information from another government on a
confidential basis;
6(b)(ii): to protect the passing of information from an international organisation on a
confidential basis; and
9(2)(a): to protect individuals’ privacy.
Where the information has been withheld under section 9 of the OIA, we identified no
public interest in releasing the information that would override the reasons for withholding
it.
In response to your requests for the dates of these communications, this information is
contained within the documents provided.
Section 5:
12) The dates, since October 2020, of any meetings or correspondence any MFAT
official has had with any member or representative of the government of the United
Kingdom that included mention of either country's obligations under the Convention
on Cluster Munitions.
13) The dates, since October 2020, of any meetings or correspondence any New
Zealand government minister has had with any member or representative of the
government of the United Kingdom that included mention of either country's
obligations under the Convention on Cluster Munitions.
Part 12 of your request
is refused in full under section 18(f) of the OIA, as the information
requested cannot be made available without substantial collation and research. This is
because New Zealand meets regularly with States Parties, signatories and observers to the
Convention on Cluster Munitions (CCM). New Zealand was National Implementation
Measures coordinator for 10 years (until 2023), as part of the CCM Coordination
Committee, and during this time we met regularly with other States to discuss Treaty
Page 7 of 9
implementation. In addition, the United Kingdom was the President of the Tenth Meeting
of States Parties to the CCM, which took place from 30 August to 2 September 2022. As
the United Kingdom was CCM President and President designate during the time period in
your request, New Zealand engaged with the United Kingdom in Coordination Committee
meetings during that time. The minutes and dates of these meetings are publicly available
via the link below: www.clusterconvention.org/minutes/
Regarding part 13 of your request. Between the dates of 1
October 2020 and the date of
your request, no New Zealand Minister met with any member or representative of the
government of the United Kingdom to discuss the Convention on Cluster Munitions.
Accordingly, this part of your request is refused under section 18(e) of the OIA, as the
information requested does not exist.
In response to your section 16 preference:
(a)
to receive a copy of the whole of each document – this was not possible because
reviewing the entirety of all documents that are partially in scope of your request
would impact on the agency’s ability to carry out its other operations section
16(2)(a) of the OIA refers);
(b)
that the information is disclosed in a text searchable format, either Word or PDF –
due to the Ministry’s security requirements we are unable to complete this section
16 preference as doing so would require substantial additional administrative work.
Doing so would impair efficient administration (section 16(2)(a) of the OIA refers);
(c)
that it does not have a watermark of ‘Released under the Official Information Act’
or similar across the text – while we are unable to release these documents without
a watermark, we have moved this watermark to the margins of each page so it
does not interfere with the text;
(d)
that it is sent to the email address from which the Ministry received this request –
this response will be sent to the address the Ministry received it from (fyi-request-
[email address]).
In response to your section 19(a)(ii) request please refer to Annex 1.
In response to your statement around section 17(2) of the Public Records Act 2005 the
Ministry’s records management system allows us to locate information potentially in scope
of an OIA request using key words/document type/date etc, but in order for us to confirm
if any documents are in scope of an OIA request every document needs to be manually
reviewed.
Please note that it is our policy to proactively release our responses to official information
requests where possible. Therefore, our response to your request (with your personal
information removed) may be published on the Ministry website:
www.mfat.govt.nz/en/about-us/contact-us/official-information-act-responses/
Page 8 of 9
If you have any questions about this decision, you can contact us by email at:
[email address]. You have the right to seek an investigation and review by the
Ombudsman of this decision by contacting www.ombudsman.parliament.nz or freephone
0800 802 602.
Nāku noa, nā
Sarah Corbett
for Secretary of Foreign Affairs and Trade
Page 9 of 9
Annex 1.
Section 19(a)(ii) request.
OIA
Rational
Public Interest
Code
Considerations
6(a)
Information that if released would impact New Zealands
Not Applicable
international relations with:
- United States of America,
- Ukraine,
- Russia, and
- Other partners.
Providing a full list of countries could damage international relations
so has not been provided.
6(b)(i)
Information supplied to New Zealand on a basis of confidence
Not Applicable
from other governments that was shared on a basis of confidence,
for example:
- Ukraine, and
- America.
Providing a full list of countries could damage international relations
so has not been provided.
6(b)(ii)
Information supplied to New Zealand on the basis of confidence by Not Applicable
any international organisation.
- Information relayed to us by the Convention on Cluster
Munitions state members.
9(2)(a)
Protect the privacy of natural persons.
Considered and
-
not outweighed
Phone numbers are withheld to protect the privacy of staff.
9(2)(g)(i) The free and frank expression of opinions.
Considered and
-
not outweighed
Opinion/interpretation on other countries decisions.
- ‘If asked’ media lines are withheld as they are the free and
frank expression of opinions by officials and contains
speculative thinking. Officials need to be able to express
opinions to maintain the effective conduct of Foreign
Affairs. Release would make officials less likely to generate
similar information in the future.
9(2)(h)
Maintain legal professional privilege.
Considered and
-
not outweighed
Advice provided by the Ministry’s legal team, to protect
confidential communications between solicitor and client. It
is based on the impossibility of conducting legal business
without professional assistance and the need for full and
unreserved confidence between adviser and client in order
to receive that assistance effectively.
