63 4.1 Introduction

At the time of the Dutch policy change in March 1996 the following five issues were on the agenda of the First Review Conference of the CCW:

strengthening of the provisions for anti-personnel mines; •

establishment of compliance and monitoring procedures; •

expansion of the number of States Parties to the convention and its protocols •

(universalisation);

expansion of the anti-vehicle mine restrictions; •

extension of the scope of the convention.

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On all of these issues, the Netherlands intervened in the international decision-making process. This chapter focuses on the Dutch interventions with respect to the last four issues. The Dutch interventions with respect to ‘anti-personnel mines’ will be dealt with separately in chapter 6, where the Dutch interventions in the negotiations leading to the Ottawa Convention are discussed.99 _{During 2000 a sixth issue appeared on the}

CCW agenda: reducing the humanitarian consequences of ERW. This issue will be considered in chapter 5.

Each section of this chapter deals with a different issue. All sections start by outlining the general course of events regarding the issue. Next, the results of the analyses of the Dutch interventions (in terms of: objectives, results, interventions and impediments) are schematically presented in policy overviews. Subsequently, the four sections of the framework of analysis are further elaborated upon, by addressing the following research questions:

1) What objectives did the Dutch government aim to achieve in the various phases of the international decision-making process?

2) Which Dutch objectives were achieved and which were not?

3) What interventions did the Netherlands make to achieve its objectives? 4) What were the obstacles in the decision-making processes and how did the

Netherlands respond to them?

Finally, the effectiveness of the Dutch efforts on these issues will be assessed in relation to the evaluation criteria connectedness, responsiveness, timeliness and scope (see table 1.2).

98 Intermittently, Switzerland has broached the establishment of a protocol incorporating certain design standards for small calibre bullets to minimise the extent of wounding. The issue will not be discussed in this report, because, to date, there has been virtually no support for putting it on the agenda of the convention. 99 Although the CCW and Ottawa are two separate arenas, the issue of strengthening the anti-personnel mine

regime is best assessed by combining them. The Ottawa process was started by a group of countries who were disappointed by the failure of the First Review Conference of the CCW to produce any significant results.

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4.2 Establishing a compliance mechanism within the

framework of the CCW

General course of events

The CCW makes no reference whatsoever to the issue of compliance,100 _{except for some}

limited provisions in Protocol II as Amended.101 _{In this respect the CCW differs from}

many other international regimes, such as the Ottawa Convention and Additional Protocol I of 1977 to the 1949 Geneva Conventions.102 _{Nonetheless, the establishment of}

a compliance mechanism had been on the international agenda leading to the creation of the CCW in 1980. Several states had argued that the CCW should include a compliance mechanism. Belgium, Canada, the Federal Republic of Germany, France, Ireland, Italy, Japan and the Netherlands had put forward a proposal consisting of a draft article on establishing an advisory/consultative committee of experts, based on Article 90 of Additional Protocol I of the Geneva Conventions. Taking Additional Protocol I as example implied the creation of a simple and flexible compliance mechanism.103

However, no consensus on a compliance mechanism could be achieved then. There were two phases in the decision-making on the establishment of a compliance mechanism: informal deliberations on the desirability of a compliance mechanism (1995/1995-2001) and formal consultations on the possibilities of such a mechanism (2001-2006). Deliberations on whether the establishment of compliance mechanism should be a formal discussion topic in the CCW were resumed in the lead-up to the 1995/1996 Review Conference. During the 2001 Review Conference it was agreed to start formal consultations (rather than negotiations) on such a mechanism. The formal consultation process ended with the decision to create a modest mechanism during the Third Review Conference in November 2006.

100 Compliance as has been discussed in the context of the CCW involves both ‘consultations’ and ‘fact finding’ or ‘verification’. See for example the Belgian working paper on compliance (File 736920, 26 September 2001 and CCW/CONF.II/PC.3/WP.8.

101 Viz. Article 13 on consultations and Article 14 on compliance. 102 CCW/CONF.II/PC.3/1:43.

103 The option had the advantage of being flexible, as the compliance procedure envisaged was simple. It did not settle everything down to the last detail but called upon the good will of states to ensure its effectiveness (CCW/CONF.II/PC.3/1:44-45).

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Table 4.1 Dutch policies on compliance 1995/1996-2001 Putting the establishment of a compliance mechanism on the CCW agenda

Objectives To strive for a simple and flexible compliance mechanism for the CCW as a

whole that takes into account consultations and dialogue between the States Parties and that offers room for fact-finding in cases of scepticism about compliance. Such a mechanism should be effective but not require an expensive verification system.

Results Except for a compliance mechanism in the amended Protocol II, no significant

results were achieved for the CCW as a whole. In 2001 the only consensus was on holding consultations (during the intersessional meetings) on possible options to promote compliance.

Interventions Participation in GGE meetings, PrepComs and plenary meetings of the First and Second Review Conferences of the CCW. Submission of a working paper on compliance on behalf of the EU in September 2001. Explicit support in December 2001 for any proposal on compliance with all Protocols.

Impediments Disagreement between a group of declared proponents of a compliance

mechanism and two other groups: a group of hard-line opponents and a group of countries that considered it too early to make any decisions on the issue.

Objectives

The Netherlands had been a proponent of the establishment of a simple and flexible compliance mechanism since the preparations leading to establishment of the CCW in 1980. After 1980, when the convention had failed to achieve consensus on the issue, the Dutch government maintained this position. In the run-up to the First Review Conference, the Ministers of Foreign Affairs and Defence informed Parliament on 22 May 1995 that the Netherlands would aim to add stipulations on verification to Protocol II.104 _{On 6 September 1995 the Minister of Foreign Affairs stated that the}

Netherlands advocated the insertion of short-term procedures to verify possible violations of the CCW on the spot. It was suggested that the procedures of the ‘Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction’ (1993) could perhaps be taken as an example.105 _{However, the First Review Conference resulted in a compliance mechanism}

for Amended Protocol II only. On the eve of the Second Review Conference, the Ministers of Foreign Affairs and Defence reported that the Netherlands would support a

compliance mechanism within the CCW that:

1) would take into account consultations and dialogue between the States Parties; 2) would offer room for fact finding in cases of scepticism on compliance; and 3) would be effective without an expensive verification system.106

104 TK, 23900, V, nr. 44:3. 105 TK, 24292, nr.2:8.

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As such, the Netherlands clearly aimed for a compliance mechanism that would apply to the CCW as a whole.

Results

In the period 1995/1996-2001 hardly any results were achieved on the issue of compliance.107 _{During the 1995/1996 Conference, a compliance mechanism was}

included in Amended Protocol II only. The mechanism focused mainly on the prevention and punishment of violations, the proper instruction of armed forces, and consultations. It lacked the strong verification regime the Netherlands was hoping for. Moreover, the Review Conference had not resulted in a compliance mechanism for the CCW as a whole. During the 2001 Review Conference it was decided merely to

undertake further consultations on compliance during the intersessionals .108

Interventions

Several interventions were made by the Netherlands in the period 1995/1995-2001 to achieve its objectives on compliance:

During the preparation of the First Review Conference, the Netherlands supported proposals on verification and compliance from other States Parties.109 _{In the run-up to}

the Review Conference it emphasised the importance of close collaboration in the EU and with likeminded NATO countries.110 _{During the Review Conference, Dutch efforts}

on compliance concentrated on adding verification and fact-finding procedures to the CCW. Working Group II (on ‘verification and fact-finding’) of the Group of

Governmental Experts (GGE) held two meetings during which discussions were held on all aspects relating to the question of a possible verification system and fact-finding missions. In the course of the deliberations a number of proposals were put forward, among others by Finland, France and Germany.111 _{However, no consensus could be}

achieved on establishing a verification system, either for the purpose of Protocol II or for the entire CCW.

In the context of the 2001 Review Conference new proposals on compliance were put forward by the US, France, the EU and South Africa:

107 Protocol II as Amended contains stipulations regarding annual meetings of States Parties, annual reports, transparency measures and adjustments in national legislation.

108 The next opportunity for decision-making would occur in December 2002. During the Review Conference the States Parties had also decided to commission follow-up work on decisions arising from the Review Conference under the oversight of the Chairman-designate of the 2002 Meeting of the States Parties to the Convention. This meeting would be held in December 2002 in conjunction with the Fourth Annual Conference of States parties to Amended Protocol II (Report of the Report of the Second Review Conference, 2001, Final Declaration).

109 Almost thirty States Parties participated in the work of the GGE (CCW/CONF.I/GE/23).

110 TK, 24292, nr. 2:8. On 10 and 11 April the EU countries had decided to take joint action in the Review Conference and its preparations (TK, 23900, V, nr. 44:6).

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