|Statement by H.E. Mr. Hu Xiaodi, Ambassador for Disarmament Affairs of China, on the Clearance of ERW (July, 2002, Geneva)
Large amounts of Explosive Remnants of War (ERW) have been resulted from the past wars and conflicts. And new ones are being produced by the on-going conflicts. It is, therefore, a pressing task for the international community to clearly define the obligations and modalities of ERW clearance, so as to eliminate the risks posed by the existing ERW, and prevent, as much as possible, and ensure the timely clearance of any future ERW. On this issue, the Chinese delegation has the following preliminary views:
I. On Clearance Responsibility/Obligation
From a theoretical point of view, the clearance responsibility on ERW should be based on a clear definition of the rights and wrongs of states in a war or conflict. Regrettably, however, such a mechanism does not exist in today's world. Nonetheless, for the sake of humanitarianism, a feasible solution must be worked out. To this end, the discussion of responsibility or obligation in this respect is not aimed at pursuing the responsibility of war of any state, but rather the institution, in a legal form, of the obligations on the clearance of ERW. On this issue, two different views have been put forward so far, one is that the user should be responsible for removing ERW, the other puts that responsibility on the party that has jurisdiction over the affected area. Though not perfect, both approaches have the merit of giving a direction to our work. Based on our analysis, we are of the view that it would be more rational and practical to establish as the main principle that the user should be responsible for clearing ERW. The reasons are as followers:
First, from the moral perspective, the user's responsibility offers a rational approach to ERW clearance. No matter who should be held responsible for a war or a conflict, it is always the innocent civilians in the affected areas that are more liable to be the victims of ERW. At present, ERW exist mainly in developing countries. They are posing serious threat to the lives and properties of the local people, and hampering their economic and social development. If the jurisdictional state is held responsible for ERW clearance, it could only add to woes of the people of these countries, and, therefore, would be grossly unreasonable.
Second, from the technical perspective, it is more feasible for the user to be responsible for clearance. The clearance of ERW involves multiple factors, including the type, quantity and features the munitions involved, their location and the best ways of clearance. As a result, the user would usually be in a better position to do the job. So from a practical point of view, having the user responsible for clearance would enhance the safety and efficiency of the clearance work, and would be beneficial to the rapid elimination of the risks caused by ERW.
Third, from the perspective of prevention, establishing the user's responsibility could have the benefit of forcing more restraints on states' in their military operations, which hopefully would be more inclined to seek peaceful solutions of disputes. At the same time, it could also provide an additional incentive for states to increase the reliability of their munitions, thus reducing the number of future ERW.
II. On the Modalities to Carry out the Responsibilities for Clearance
In reality, the modalities to carry out the responsibility for the clearance of ERW may differ due to various factors such as the cause of ERW, the economic and technical capabilities of the countries concerned and their state of relations. The possible modalities may be as followers:
First, the state that bears the responsibility conducts the on-site clearance; the ERW-affected country assists or participates in the clearance.
Second, the user provides necessary financial, technical resources and information; the affected country undertakes the real job.
Third, the bearer provides necessary financial, technical resources and information; a third party (the UN or relevant agencies) undertakes the real job.
III. Retrospect of Responsibility for Clearance
Some countries have stated that the responsibility for clearing ERW is not retrospective in legal term. The possible regulations only apply to future, not existing ERW. The Chinese side, nonetheless, can not agree with such a view.
First, the ERW issue came into the agenda of the international community because of the real threat caused by the existing ERW. It is a pressing task as well as the intention of our discussion to clear the existing ERW.
It is extremely irresponsible to overlook the real problem and let the threat of current ERW exist forever. Therefore, our discussion should not only aim at future problem, but also focus on solving the issue of current ERW. Though complex it might be to clear existing ERW, it can in no way excuse us from bypassing the problem.
Second, "no retrospect" is not an absolute principle in legal terms. In fact, many exceptions can be found in the international law that deals with war affairs. The regulations governing abandoned chemical weapons of Convention On the Prohibition of Chemical Weapons (CWC) has set an excellent example in this regard, and is of great value in our discussion of the ERW issue. In light of the above, the Chinese side is in favor of establishing the principle of retrospect in the responsibility for clearing ERW, and is ready to explore the deadline of retrospect with other delegations.
IV. Special Cases in Fulfilling the User's Responsibility
As stated above, the user's responsibility is a desirable solution, though not perfect. Given the complexity of the ERW issue, this principle might counter with difficulties in implementation. We should treat different case according to different situations and seek proper solutions.
First, in the case of ERW caused by joint military action, it is difficult to define the user. In such a case, participating states of the military action might share the responsibility according to field situation or do it on a voluntary basis.
Second, the user can hardly be defined because ERW has existed for long time. Usually a country keeps record of the weapons and munitions it produces or uses. The producer can be distinguished from one to the other. In most cased, the user can be identified according to the materials provided by relevant countries.
Third, in case that the user could in no way be defined, or the user, though identified, could not afford clearing the ERW, the United Nations or other international agencies can assist in clearing. In the case of ERW caused by civil war, if the affected country can not afford the clearance, the international community might assist it in clearing.
Clearing existing ERW, preventing and timely clearing new ERW is a complex and difficult task that can not be solved shortly. Therefore, we should, in one hand, have the sense of responsibility and urgency to solve the issue, and enough patience and confidence on the other. We believe that, if each country can face its due responsibility with calmness and bravery in a flexible and business-like manner, we can definitely live up to the expectation of the international community and work out a proper solution of the ERW issue.
Thank you, Mr. Co-coordinator.