i A Study of the Development of National Mine Action Legislation ii The Geneva International Centre for Humanitarian Demining (GICHD) supports the efforts of the international community in reducing the impact of mines and unexploded ordnance. The Centre is active in research, provides operational assistance and supports the implementation of the Mine Ban Treaty. For further information please contact: Geneva International Centre for Humanitarian Demining 7bis, avenue de la Paix P.O. Box 1300 CH-1211 Geneva 1 Switzerland Tel. (41 22) 906 16 60 Fax (41 22) 906 16 90 www.gichd.ch [email protected] A Study of the Development of National Mine Action Legislation, GICHD, Geneva, November 2004. The project was managed by Eric Filippino, Head, Socio-Economic Study Section ([email protected]). © GICHD The views expressed in this report are those of the authors and do not necessarily represent those of the GICHD. The designations employed and the presentation of the material in this publication do not imply the expression of the GICHD concerning the legal status of any country, territory or area, or of its authorities or armed groups, or concerning the delimitation of its frontiers or boundaries. iii Contents Summary of findings and recommendations 1 Introduction 5 Background to the study 5 Terms of reference 6 Study methodology 6 Report layout 6 Chapter 1. Afghanistan 9 Background 9 Mine action legislation 9 Mine action structure 10 Emerging issues 13 Annexes 1. Preliminary needs assessment for recovery and reconstruction 16 2. Overall mine action coordination structure for Afghanistan 18 3. Schematic of transitional phase management structure 19 4. List of MAPA implementing partners — National bodies 20 Chapter 2. Azerbaijan 23 Background 23 Mine action legislation 23 Mine action structure 28 Annexes 1. Presidential Decree No. 854 establishing the ANAMA 31 2. Azerbaijan Law on Humanitarian Demining 32 3. The structure of the Azerbaijan National Agency for Mine Action 42 Chapter 3. Bosnia and Herzegovina 43 Background 43 Mine action legislation 44 Mine action structure 46 Concluding remarks 49 Annex 1. Demining Law in Bosnia and Herzegovina 53 iv Chapter 4. Cambodia 63 Background 63 Mine action legislation 64 Mine action structure 68 Concluding remarks 70 Chapter 5. Colombia 73 Background 73 Mine action legislation 73 Mine action structure 73 Annex 1. National Mine Action Legislation 75 Chapter 6. Croatia 85 Background 85 Mine action legislation 86 Mine action structure 92 Concluding remarks 96 Annexes 1. Law on Mine Clearance 99 2. Decision on the Establishment of CROMAC 65 3. First Amendments to the Law on Mine Clearance 66 4. Second Amendments to the Law on Mine Clearance 67 Chapter 7. Kosovo 107 Mine action legislation 107 Mine action structure 108 Chapter 8. Kyrgyzstan 113 Background 113 Mine action legislation 113 Mine action structure 114 Annex 1. Decree No. 268 115 Chapter 9. Laos 117 Background 117 Mine action legislation 117 Mine action structure 117 Annexes 1. Prime Minister’s Decree No. 75 122 2. LAO PDR Trust Fund for Clearance of Unexploded Ordnance 124 Chapter 10. Mozambique 131 Background 131 Mine action legislation 131 Mine action structure 132 Annexes 1. Decree 37/99 138 2. The Demining Policy and Strategy 146 Chapter 11. Nicaragua 153 Mine action legislation 153 Mine action structure 154 Concluding remarks 158 v Chapter 11. Rwanda 161 Background 161 Mine action legislation 161 Mine action structure 161 Chapter 12. Tajikistan 163 Mine action legislation 163 Mine action structure 163 Chapter 13. Thailand 165 National mine action legislation in Thailand 165 Mine action structure 166 Annex 1. National Demining Committee 169 Chapter 13. Yemen 173 Background 173 Mine action legislation 173 Mine action structure 173 Coordination of mine action 174 Roles and responsibilities for mine action 174 National mine action structures 176 Annexes 1. Law No. 7 of 1998 177 2. Draft Law No. ( - - - - ) 2002 178 3. Prime Minister Resolution No. 46 of 1998 181 4. Organizational Bylaw of the National Mine Action Committee 183 5. Five-Year Strategic Mine Action Plan for Yemen 190 6. Prime Minister Resolution No. 282 of 2002 192 Bibliography 195 vi 1 Summary of study conclusions, findings and recommendations his summary takes account of case studies of national mine action legislation conducted in 2001–2002, and other norms and standards, Tparticularly decrees, rules and regulations, adopted in Afghanistan, Azerbaijan, Bosnia and Herzegovina, Cambodia, Colombia, Croatia, Eritrea, Ethiopia, Kosovo, Kyrgyzstan, Laos, Mozambique, Nicaragua, Rwanda, Tajikistan, Thailand, and Yemen. It addresses only incidentally legislative measures to implement the Anti-Personnel Mine Ban Convention. The GICHD has published a Guide to Developing Mine Action Legislation, which is available in hard copy in Arabic, English, French, Russian and Spanish, and online in English. Conclusion 1. National mine action legislation, other than to implement the Anti- Personnel Mine Ban Convention, has been adopted in only a minority of the cases studied. Findings Of the cases studied, only in Bosnia and Herzegovina, Cambodia, Colombia, and Croatia have national mine action legislation been adopted, although such legislation is currently being drafted in Azerbaijan, while Kosovo remains under the auspices of a UN protectorate. In the remaining cases, the respective governments have typically passed decrees or orders to regulate the conduct of mine action. There are potentially a number of advantages in adopting national mine action legislation. These are particularly well articulated in the Afghanistan case study, and include: Ø reinforced coordination and communication between the mine action and mainstream relief/development sectors; Ø greater control over who becomes involved in mine action; Ø improved accreditation procedures and safety levels, including respect for the International Mine Action Standards (IMAS); 2 A Study of the Development of National Mine Action Legislation Ø improved coordination within mine action, including victim assistance service actors and the rest of the mine action sector; Ø improved transparency regarding mine action planning and tasking; and accordingly Ø better accountability to donors. Of course, legislation typically requires the commitment of both time and effort, and must be considered by a national parliament amid many competing priorities, especially in a post-conflict context. It may require amendment as the situation develops (the Croatian parliament has already adopted two formal amendments to its national mine action legislation and is planning to adopt an entirely new law on demining). If mine and/or unexploded ordnance contamination is not severe, as is the case in Kyrgyzstan for instance, legislation may not be needed, and a simple governmental decree allocating responsibilities among relevant actors may suffice. Recommendation 1. Where mine and unexploded ordnance contamination is severe, with the consequent need for prolonged mine action, States should give serious consideration to the adoption of national mine action legislation. Conclusion 2. The scope and detail of existing mine action legislation varies significantly, and may or may not be combined with provisions to implement the Anti-Personnel Mine Ban Convention. Findings Both Bosnia and Herzegovina and Croatia have adopted detailed mine action legislation. Indeed, the case study for Croatia questions whether the existing law contains excessive technical detail on mine clearance, which should better be dealt with in subsidiary documentation such as rules and regulations. The new Demining Law in Bosnia and Herzegovina is said to represent “a considerable advance on its predecessors, particularly in the establishment of a unified MAC and in the requirement for a pan-Bosnian Demining Plan”. Although “deficient in a number of critical areas”, for the most part the deficiencies “stem from the country’s remarkable constitutional framework”. Colombia is the only State Party to the Anti-Personnel Mine Ban Convention that has chosen to consolidate into one instrument detailed national mine action legislation with provisions to implement the treaty. Cambodian implementing legislation contains limited provisions governing the coordination and management of mine action, but the case study suggests that new legislation is required to do the job properly. Croatia has adopted separate legislation to implement the treaty. Recommendation 2. Legislation should seek to avoid excessive detail in its regulation of mine action, which should preferably be dealt with in subsidiary regulations or standards. There is no obvious objection to combining implementing legislation for the Anti-Personnel Mine Ban Convention with broader mine action regulation, but no overriding requirement to do so either. Summary of study conclusions, findings and recommendations 3 Conclusion 3. Although all mine action legislation will have commonalities, there is no “one size fits all”. Findings It is a truism that national legislation depends on the national context. Similarly, although the mine and unexploded ordnance threat bears comparison across affected States, the extent of the threat, its impact and the form of the mine action response may differ significantly. If, for example, a State is not party to the Anti-Personnel Mine Ban Convention, there may not be a need to include provisions on stockpile destruction in national legislation. This is the case in Azerbaijan, for instance, where the mine action