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ended and should not exclude any topic in advance. For a negotiation mandate, a separate decision of the States would be required, because the discussion mandate would merely result in recommendations.

After the third PrepCom, the FoC worked on a discussion mandate. The mandate was constantly improved on the basis of bilateral consultations between September and December. The FoC’s final proposal was adopted during the Review Conference (see box 5.1). It was agreed that the GGE would be allocated five weeks for discussion throughout the year (one in May, two in July and two in December). The Netherlands was appointed as coordinator of the process.

Box 5.1

The Review Conference of the States Parties 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 decides to establish an open-ended Group of Governmental Experts to discuss ways and means to address the issue of Explosive Remnants of War (ERW). In this context, and taking into account the example of Amended Protocol II or of other existing instruments as appropriate, the Group shall consider all factors, appropriate measures and proposals, in particular:

• factors and types of munitions that could cause humanitarian problems after a conflict; • technical improvements and other measures for relevant types of munitions, including sub-munitions, which could reduce the risks of such munitions from becoming ERW; • the adequacy of existing International Humanitarian Law in minimising post-conflict risks of

ERW, both to civilians and to the military;

• warning to the civilian population in or close to ERW-affected areas, clearance of ERW, the rapid provision of information to facilitate early and safe clearance of ERW, assistance and cooperation, and associated issues and responsibilities;

The Group of Governmental Experts shall undertake its work in an efficient manner so as to submit its recommendations at an early date for consideration by the States Parties, including whether to proceed with negotiating a legally-binding instrument or instruments on ERW and/or other approaches.

Source: Report of the Second Review Conference of the CCW

Impediments

There was broad support for a negotiating mandate on ERW within the context of CCW, but in December 2001 it was considered to be too early to establish such a mandate. Many countries were still in the initial phase of thinking about ERW and not ready for a negotiation mandate.

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Another impediment was the possibility that the US would couple a decision on ERW to progress achieved on the AVM issue.As elaborated upon in chapter 4, the AVM issue was discussed analogous to the process of creating an ERW instrument. During a meeting of a few NATO members in Charlottesville, USA, on 28 February 2001, the Netherlands proposed including the AVM issue in the ERW discussion if it would prove to be impossible to get consensus on the AVMs in the context of Amended Protocol II of the CCW. On 23 May 2001, however, the Dutch delegation to the Conference on Disarmament (CD) advised the Dutch government not to include the AVM issue in the ERW discussion. At the same time, the CD delegation acknowledged the theoretical possibility that ERW and AVMs would become coupled anyway. Therefore, there was much communication between the FoC on ERW and the FoC on AVMs (Bulgaria). The FoC on ERW urged the US several times to be careful not to undermine the common willingness of CCW States Parties to discuss ERW as a result of their priority objective of dealing with the AVM issue.

The third impediment concerned military operational measures that could possibly be taken during a conflict phase. During the same Charlottesville meeting of NATO members, the Dutch delegation suggested that the operational necessity of using certain munitions should be weighed against the long-term humanitarian effects of these munitions.Some others argued, though, that a field commander could not be expected to consider the long-term humanitarian effects of the munitions he uses. However, on 23 May 2001, the Dutch government thought that there was sufficient support to include a criterion in the protocol that would oblige field commanders to take into account the possible long-term effects of using certain weapons. The issue of operational regulations was discussed again during the third PrepCom, when both the US and the UK made clear that they did not support such additional measures. However, operational measures were still discussed subsequently – during the later second meeting of the GGE, for instance.

Ultimately, three impediments during the negotiations in December 2001 made the coordinator change the GGE’s discussion mandate. In the preamble to the mandate, the reference to Protocol II (and indirectly to the Ottawa Convention by referring to ‘other existing instruments as appropriate’) was deleted. Secondly, ‘assistance and cooperation’ was separated from warning, clearance and the provision of information, because according to several non-aligned countries this would give more focus to the issue. Thirdly, Cuba insisted that the last paragraph contain a provision explicitly determining that the recommendations to the States Parties should be achieved by consensus.

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