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Table 5.4 Dutch policies on ERW December 2002 – November 2003: Towards a Protocol

Objectives The main objective of the government was to reach consensus on a Fifth

Protocol to the CCW Treaty, dealing with ERW. With respect to the contents of the instrument, the most important objective was to adopt a protocol in which civilians would be effectively protected against the risks and effects of ERW.

Results On 28 November 2003, an agreement on a Protocol V to the CCW Treaty

was achieved. Weapons-specific preventive measures and measures to be taken during a conflict were not included. During the Meeting of States Parties it was decided that the issues of weapons-specific preventive measures and the relationship between IHL and ERW would be the subject of future discussion. To that end, a working group on ERW was established.

Interventions As coordinator of the GGE, the Netherlands continued its pioneer role and

organised three GGE meetings prior to the negotiations. The Dutch government also organised an informal meeting in Garderen.

Impediments The most important problem areas that hindered general agreement on a

protocol were: definitions, responsibility for clearance of new ERW, responsibility for clearance of existing ERW, the inclusion of generic preventive measures, the status of the instrument, cooperation and weapons-specific preventive measures.

Objectives

The principal objectives of the Dutch government after December 2002 were to achieve consensus on a legally binding instrument in December 2003, preferably a protocol, and to continue its leading role on the ERW issue.219 _{Next to these general objectives,}

the Dutch government formulated more specific ones with respect to the contents of the instrument:

A legally binding instrument should be created (the obvious instrument being a •

Protocol under the CCW).

The Protocol should also apply to conflicts within states. •

The successful conclusion of the negotiations on ERW should be the priority of the •

GGE.

The negotiations should preferably be concluded during the meeting of States •

Parties in November 2003.

The most important objective of the ERW Protocol should be the protection of the •

civil population against the effects and risks created by ERW.

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Provisions for existing ERW should be included, because of the need to take into •

account that existing ERW in several countries around the world constitute a huge humanitarian problem for the daily lives of people.

There should be a strong clearance obligation in the Protocol, including a time •

frame. Responsibility for clearance should also be determined. Based on Article 10 of Amended Protocol II, a realistic stipulation should be included to deal with the responsibility to clear ERW that come into existence after the Protocol has entered into force.

Far-reaching provisions for protecting the population against ERW should be •

included.

Generic preventive measures should be part of the Protocol. •

Provisions on victim assistance should also be included. •

Humanitarian activities (clearance, raising ERW-awareness, etc.) should not start •

only after the conflict has ended, but ‘without delay after the cessation of active hostilities’. Legally speaking, it should be realised that it is preferable to speak of ‘undue delay’, because otherwise in case of retardation, parties can be held liable. However, for obvious political reasons, the Netherlands refrains from suggesting such a change since this substitution could be considered as scaling down the text of Amended Protocol II.

The Protocol should contain provisions on mandatory annual reports and an annual •

meeting. It should be attempted to cluster the several relevant meetings (for example in the context of CCW) as much as possible, in order to prevent proliferation of meetings.

The Protocol should pay attention to compliance. •

The Protocol should contain far-reaching provisions on cooperation and assistance, •

taking into account the export provisions on strategic goods and other regulations. The government realised that it would be impossible to achieve consensus on all the points mentioned. Even achieving consensus within the EU would be difficult. Further, the negotiations would only be about post-conflict measures, since weapons- specific preventive measures and measures that could be taken during conflicts had been left out of the negotiation mandate. In that respect, the ERW protocol would differ from the other CCW protocols. Nonetheless, Amended Protocol II and the Ottawa Convention were important references for the ERW protocol. Whereas Ottawa provided the framework for Dutch policy on landmines, Amended Protocol II had its added value in including States Parties that are not members of the Ottawa

Convention (such as the US, China, Russia, Pakistan and India).

Results

During the Meeting of States Parties in December 2003, agreement was reached on a fifth protocol to the CCW treaty (see box 5.2). After the conference it was concluded that the objectives of the Netherlands had been achieved.Indeed, many elements the Dutch government had pursued since December 2002 were included in Protocol V. At the same time, the protocol did not go as far as the Dutch government had hoped. The

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