Conciliation in International Law : The OSCE Court of Conciliation and Arbitration [1 ed.] 9789004312111, 9789004312104

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Conciliation in International Law

Conciliation in International Law The osce Court of Conciliation and Arbitration Edited by

Christian Tomuschat Riccardo Pisillo Mazzeschi Daniel Thürer

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Tomuschat, Christian, editor. | Pisillo Mazzeschi, Riccardo, editor. | Thürer, Daniel, editor. Title: Conciliation in international law : the osce court of conciliation and arbitration / edited by Christian Tomuschat, Riccardo Pisillo Mazzeschi, Daniel Thürer. Description: Leiden ; Boston : Brill/Nijhoff, 2016. | Includes bibliographical references. Identifiers: lccn 2016042752 (print) | lccn 2016044160 (ebook) | isbn 9789004312104 (hardback) : alk. paper) | isbn 9789004312111 (e-book) Subjects: lcsh: Mediation, International. | Arbitration (International law) | Pacific settlement of international disputes--International cooperation. | Organization for Security and Co-operation in Europe. Classification: lcc kz6078 .c6125 2016 (print) | lcc kz6078 (ebook) | ddc 341.5/2--dc23 lc record available at https://lccn.loc.gov/2016042752

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-31210-4 (hardback) isbn 978-90-04-31211-1 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface VII Notes on Contributors VIII 1 Introduction 1 Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer

part 1 Conciliation as a Method of International Dispute Settlement 2 Expectations Attached to Conciliation Reconsidered 7 Jean-Pierre Cot 3 Conciliation within the Framework of Dispute Settlement Procedures: An East European Perspective 12 Lauri Mälksoo 4 Diplomatic and Jurisdictional Aspects in Conciliation Procedures: Conciliation between Dispute Settlement and Conflict Prevention 26 Giuseppe Palmisano 5 Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation 40 Daniel Thürer

part 2 Dispute Settlement within the osce 6 Prevention and Resolution of Conflicts in the osce and the Role of the Court of Conciliation and Arbitration 57 Riccardo Pisillo Mazzeschi

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Contents

Conciliation within the Framework of the osce Court of Conciliation and Arbitration: An Assessment from the Viewpoint of Legal Policy 79 Christian Tomuschat

part 3 Specialized Conciliation Procedures 8 unesco Mediation and Conciliation Procedure for Promoting the Return and Restitution of Cultural Property 107 Edouard Planche 9

Elements of Conciliation in Dispute Settlement Procedures Relating to International Economic Law 116 August Reinisch

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The Project for an International Environmental Court 133 Stuart Bruce

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Conciliation under the un Convention on the Law of the Sea 171 Rüdiger Wolfrum

Part 4 A Prominent Example of Successful Conciliation 12 The Jan Mayen Case (Iceland/Norway): An Example of Successful Conciliation 193 Ulf Linderfalk

Annex Annex 1: Decision on Peaceful Settlement of Disputes 219 Annex 2: Convention on Conciliation and Arbitration within the Csce 221 Annex 3: Provisions for a csce Conciliation Commission 235 Annex 4: Provisions for Directed Conciliation 238

Index  241

Preface This volume collects the materials underlying the International Colloquium ‘Conciliation in the Globalized World of Today’, held on 11 and 12 June 2015 in Vienna under the auspices of the Court of Conciliation and Arbitration within the osce. All the papers were reviewed for the purposes of publication. The editors, all members of the Bureau of the Court and contributors to this book, are grateful to Brill publishers for having included the outcome of this research project in their program of publications. Christian Tomuschat, Berlin Riccardo Pisillo Mazzeschi, Siena Daniel Thürer, Zürich June 2016

Notes on Contributors Stuart Bruce is an Australian-qualified lawyer in the International Arbitration Group at King & Wood Mallesons (London), focusing on investment treaty arbitration, public international law and international commercial arbitration for corporate and government clients. He has particular interests in sustainable energy, natural resources and environmental matters, both professionally and academically. Stuart Bruce is also a Researcher at the University of Cambridge, a Legal Research Fellow at the Centre for International Sustainable Development Law, a member of the Legal Aspects of Sustainable Energy for All working group within the World Bank’s Global Forum on Law, Justice and Development and a member of the iucn World Commission on Environmental Law. The author can be contacted at: [email protected]. Jean-Pierre Cot Professeur émérite, Université de Paris 1 Panthéon-Sorbonne. Juge, Tribunal international du droit de la mer (2002–). Docteur en droit (thèse sur la conciliation internationale). Agrégé des Facultés de droit. Professeur aux Facultés de droit d’Amiens, puis de Paris. Député de la Savoie (1973–1981). Ministre de la coopération (1981–1982). Membre du Conseil exécutif de l’unesco (1983–1984). Député au Parlement européen (1984–1999). Ulf Linderfalk Professor of International Law at the Faculty of Law, Lund University, Sweden. Editor-in-Chief of the Nordic Journal of International Law. Numerous books and articles on general international legal elements such as treaty interpretation, jus cogens, international legal hierarchy, normative conflict, special regimes, legal principles, legal discretion, balancing and conceptual terms. Lauri Mälksoo is Professor of International Law at the University of Tartu School of Law and head of the public law department. He was also director of the Estonian Foreign Policy Institute, a think tank in Tallinn. He is member of the executive board of the European Society of International Law (2008–2016) and in 2015 was elected associate member of the Institut de droit international. He is one of the three editors-in-chief of the Baltic Yearbook of International Law (at Brill) and has published on various issues of international law, especially the history and

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theory of ­international law. His most recent monograph, “Russian Approaches to International Law” was published in 2015 at Oxford University Press. Giuseppe Palmisano is Professor of International Law at University of Camerino, School of Law. He is a member (since 2011) and currently President of the European Committee of Social Rights of the Council of Europe. Since 2012 he is Director of the Institute for International Legal Studies of the National ­Research Council of Italy. He is the author and editor of books and articles on issues of international law and European law, particularly in the areas of human rights, state responsibility, dispute settlement, and migrations. Edouard Planche holds a master’s degree in public international law and art history from AixMarseille iii and Exeter Universities. He is specialized in the legal protection of cultural heritage. In his position for 18 years at unesco, Mr. Planche has focused his career on the implementation of several cultural Conventions (1954, 1970, 2001, 2003 and 2005). Over the past ten years, he has been responsible for the programme dedicated to the fight against illicit traffic of cultural objects and their restitution (1970 Convention). He also serves as Secretary of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (icprcp). Riccardo Pisillo Mazzeschi (LL.M. Harvard), professor of international law and European Union law, Department of International and Political Sciences, University of Siena. Visiting professor or scholar at Tulane Law School, ucl, Université Paris ii, Keio University, Lauterpacht Centre of International Law. Lectures at The Hague Academy of International Law. Formerly member of working groups and legal expert on human rights for the Italian Ministry of Foreign Affairs, member of the Italian delegation at the un General Assembly and the un Human Rights Council. At present arbitrator and member of the Bureau of the osce Court of Conciliation and Arbitration. He has written 4 books and about 80 articles and book chapters on Public International Law, European Union Law, Private International Law. August Reinisch has been a Professor of International and European Law at the University of Vienna since 1998. He is a membre associé of the Institut de droit international, President of the Austrian Branch of the ila and Vice-President of the German

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Society of International Law. He is a Member of the icsid Panels of Conciliators and of Arbitrators and of the Court of the Permanent Court A ­ rbitration. He has published widely in international law with a recent focus on international investment law, the law of international organizations, international responsibility, human rights and non-state actors. Daniel Thürer is Prof. em. of Law at the University of Zürich, former Dean of the Faculty and former Director of its Institute of Public International Law and Comparative Constitutional Law. He was educated at the Universities of Zurich, Geneva, Cambridge and Harvard and at the Max Planck Institute for Comparative Public Law and International Law. He was a Judge at the Liechtenstein Constitutional Court, Member of an Expert Commission on the Total Revision of the Swiss Federal Constitution and of an International Commission on the role of Switzerland in the Second World War. He served as a Member of the Board of the German Society of Constitutional Law and as the President of the German Society of International Law. He was a longstanding Member of the International Committee of the Red Cross and is a Member of the Bureau of the osce Court of Conciliation and Arbitration and the Bureau of the European Commission against Racism and Intolerance. He is a Member of the ‘Institut de Droit international’. Daniel Thürer has published widely and edited books and periodicals in the field of international, European and constitutional law. Christian Tomuschat is Professor em. of the Faculty of Law of Humboldt University, Berlin. Education at the universities of Heidelberg and Montpellier. From 1972 to 1995 he was professor for constitutional and international law at the University of Bonn. He lectured at the Hague Academy of International Law in 1993 and 1999 (General Course). He was a member of the Human Rights Committee under the ­International Covenant on Civil and Political Rights (1977–1986) and of the International Law Commission (1985–1999, President in 1992). From 1997 to 1999, he coordinated the Commission for Historical Clarification in Guatemala. He served as judge on the Administrative Tribunal of the InterAmerican Development Bank (1995–1997) and on the Administrative Tribunal of the African Development Bank (1999–2008). He became a member of the Institut de droit international in 1997. Since September 2013, he discharges the functions of the President of the Court of Conciliation and Arbitration within the osce. He is the author of numerous books and articles. Among his latest publication is “Human Rights. Between Idealism and Realism” (3rd ed. Oxford

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2014). He is also one of the co-editors and authors of the Commentary on the Statute of the icj (2nd ed. Oxford 2012). Rüdiger Wolfrum Born 13 December 1941 in Berlin, Professor for public law and international law Faculty of Law University of Kiel and Director at the Institute of International Law, Kiel (now Walter Schücking Institute)(1982–1993); Director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg (1993–2012); Member of the Faculty of Law, University of Heidelberg, (1993–2012); Judge at the International Tribunal for the Law of the Sea (since 1996); President of the International Tribunal for the Law of the Sea (2005–2008); President Arbitral Tribunal “Delimitation Gulf of Bengal”; Member Arbitral Tribunal “Chagos Island”; Member Arbitral Tribunal “Philippines v. China”; Member of the Institut de Droit International. Author of numerous books and articles on international public law and in particular the law of the sea and international dispute settlement regimes.

chapter 1

Introduction Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer The United Nations places its trust in peaceful relations among the nations of this globe. The world organization was created after the horrors of World War ii with a view to ‘saving succeeding generations from the scourge of war’ (un Charter, Preamble, para. 1). Accordingly, Article 2(1) obligates all States to respect the sovereign equality of their peers, and as a logical consequence Article 2(4) prohibits any use of force, complementing this interdiction by the order that any emerging disputes must be settled peacefully (Article 2(3)). In order to implement these basic principles, Article 33 recalls to the world community the existence a vast array of dispute settlement mechanisms all of which had already stood the test of time as technical devices before the entry into force of the Charter. In 1945, there was a widespread belief that through such mechanisms it would be possible to constrain any disputes that might break out from time to time. The leading states persons of the world were of course conscious of the fact that peace required more than just conduct in conformity with the rules of international law: the rule of law could not resolve all the present and future problems mankind would have to address. Yet the rule of law was considered to be the main element supporting an international framework of international security and stability. The balance sheet is not as positive concerning actual resort to the available mechanisms of dispute settlement which the governments of the world have indeed established both at world level and within the framework of regional communities. There is no doubt that negotiation is the most frequently used method of settlement. Negotiation does not require any burdensome expenditure. Every State must have an efficient department of external affairs able to address any problems arising in the relationship with other nations, and communications do not pose any obstacles in the world of today. Accordingly, any endeavour to settle an actual dispute starts out with negotiations. Yet all the other methods of dispute settlement involving the presence of a third party are generally viewed with a high degree of scepticism. After having overcome the ties of colonial rule, developing nations were for many years reluctant to accept any kind of decision-making by third parties, being anxious not to compromise their newly won sovereignty. Only recently have they discovered the weighty advantages of international settlement of disputes as shown by

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the register of the International Court of Justice where the number of cases brought by them has increased continually over recent years. Europe was split for many years. The nations of Western Europe have become used to third-party decision-making in particular through the two European courts, the Strasbourg Court of Human Rights and the Luxemburg Court of the European Community (now: the European Union). On the other hand, the Soviet Union and, under its guidance, all the central and Eastern European socialist States were totally averse to international judicial settlement of disputes. In a similar fashion, the United States of America turned its back on judicial settlement of disputes since its defeat in the Nicaragua case in 1984 and 1986. Since in the csce/osce the States of Western and Eastern Europe, including the United States of America and Canada, had pledged, since the adoption of the Helsinki Final Act in 1975, to cooperate with one another a compromise had to be found regarding the ways and means of dispute settlement when the ideological gap between East and West seemed to have been overcome in 1990 and all of a sudden peaceful settlement of disputes became a realistic project. Obviously, arbitration was too far away from the fundamental positions of the great powers. Could not conciliation provide the middle-of-the road solution that would satisfy all parties involved? In fact, conciliation became the core element of the Stockholm Convention that after strenuous negotiations took shape in December 1992. In a departure from the classic principle of actual consent to international dispute settlement, States parties agree ex ante to the unilateral initiation of conciliation proceedings in the same way as the European nations have accepted the jurisdiction of the Strasbourg Court of Human Rights and the Luxemburg Court of the European Union. Unfortunately, since its very inception the Stockholm Convention has been rejected precisely by the big powers – and nothing has changed in their attitude to date. Furthermore, regarding the 34 States that have ratified the Stockholm Convention the hope that they would use this instrument in a cooperative way to sort out their difficulties has not come true either. For 21 years now, the Court stands idle. Not a single case has been brought to its cognizance, neither for conciliation nor for arbitration. Given this record of complete inactivity for 21 years, the question cannot be escaped whether this Court is a useless institution, originally brought into being with optimistic expectations but now maintained for decorative purposes only. The current members of the Bureau of the Court do not share this assessment. They decided to organize a colloquium on conciliation, the main method of conflict resolution with real prospects of being acceptable to all sides at least in the long run, in order to examine its merits and possible

Introduction

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shortcomings. With a view to gaining a broader understanding of the situation, a wide range of comparable institutions and procedures were chosen for consideration. Thus, it would be possible to assess the specific advantages of conciliation by contrasting it with the main types of other available mechanisms of dispute settlement. In some areas, the scope of research was consequently widened considerably. The colloquium took place in Vienna in June 2015. After having carefully scrutinized the papers delivered on that occasion, the conclusion was drawn that the Court could not be fairly characterized as an obsolete institution. But it is undeniable that it is not actively present in the minds of governments and those who are entrusted with responsibilities in their foreign offices: Too little is known about the pros and cons of conciliation. In particular, it should be better appreciated that conciliation has three great advantages: it is extremely flexible, both as far as the procedure is concerned and its outcome, and it will invariably provide the parties involved with an accurate and objective assessment of the litigious situation, thus paving the way for an agreed solution of the conflict concerned. Additionally, the parties are empowered to take part in the choice of the conciliators so that they may have full confidence in the bench called upon to provide advice on the case submitted to it. This book is intended to draw the attention of everyone having to deal with conflict management to those advantages. It does not end by providing a summary of conclusions to be drawn from the examination of the rules governing the osce Court and the practice of the other institutions considered. The reader will have to find out her/himself what experiences have been made in other fields where conciliation has been institutionalized as a disputesettlement procedure. In this regard, the present book constitutes a treasury of lessons that cannot easily be brought down to a common denominator. However, the editors have gained the firm conviction that there is no other institution in Europe better suited to undertake conciliation efforts than the Court of Conciliation and Arbitration within the osce. All the other international courts being endowed with jurisdiction for European matters are primarily duty-bound to perform their law-applying function. No other permanent institution is mandated to bring about a resolution by methods that combine respect for legal norms and political experience and wisdom at the same time. It remains that a government must recognize the advantages of the conciliation procedure under the Stockholm Convention by initiating a proceeding – which should never be seen as an unfriendly act but rather as an attempt to resolve a looming conflict in a cooperative way.

part 1 Conciliation as a Method of International Dispute Settlement

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chapter 2

Expectations Attached to Conciliation Reconsidered Jean-Pierre Cot I felt very honoured when I received the invitation by President Christian Tomuschat to participate in this International Colloquium, convened by the Court of Conciliation and Arbitration within the osce. Honoured and somewhat puzzled! I wrote a PhD thesis on the issue of international conciliation under the direction of Professor Suzanne Bastid some fifty years ago.1 But I had not reopened the book since! I luckily found a copy in the attic and had a second, critical look at the text. I had the impression I was looking at an old family photo album, trying to remember names and recognize friends on the pictures. You can understand that I shall limit my remarks to a historical perspective. What were the expectations for conciliation at the time? The nineteen sixties are an appropriate date to that effect. In those years, conciliation became more fashionable. The Institut de droit international had addressed the issue in in 1927 on the basis of a report by Count Rostworowski.2 It came back to the issue and adopted a resolution proposed by Henri Rolin at the Lausanne session in 1961.3 The International Law Association followed suit with Louis B. Sohn in Buenos Aires in 1968.4 The nineteen seventies opened a new phase for conciliation. Conciliation was built into major international treaties as a procedure for the settlement of´disputes, in particular the Vienna Convention on the Law of Treaties in 1969 and the Montego Bay Convention for the Law of the Sea in 1982, not to mention the osce. I do not intend to address these new issues, as they are the main subject of our colloquium. We shall hear about them later in the day and tomorrow morning by colleagues who have a far greater experience of more recent developments. 1 La conciliation internationale (Paris: Pedone, 1968). 2 (1927) Annuaire de l’Institut de droit international (Vol. ii) 835–873; (Vol. iii) 299–317 and 339–342. 3 (1959) Annuaire de l’Institut de droit international (Vol i) 1–130; (1961) Annuaire de l’Institut de droit international (Vol. ii) 192–371. 4 Among the more recent publications cf. Sven M.G. Koopmans, Diplomatic Dispute Settlement. The Use of Inter-State Conciliation (The Hague: t.m.c. Asser Press, 2008).

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cot

In a historical perspective, it is important to agree on a definition of conciliation, as distinct from other forms of settlement of disputes. The Hague conferences of 1899 and 1907 singled out mediation, i.e. the intervention of a third party, often a powerful neighbour, to help solve an issue. They also recognized the importance of international commissions of inquiry to sort out the facts. The Dogger Bank incident was an important step in that direction.5 When a Russian-English naval incident was investigated after the incident that took place in 1904, the international commission of inquiry also pronounced upon the question of responsibility, at the request of the parties. It thus expanded its activity beyond the traditional mandate of commissions of enquiry expected to sort out the facts and stop at that. The Bryan Treaties, negotiated by the United States in 1913–1914 with their Latin-American neighbours, went a step further.6 The bilateral treaties thus adopted gave the permanent international commissions a large mandate. Moreover, the States Parties agreed to abstain from use of force during the proceedings. The expression ‘international conciliation’ did not appear before the First World War. Max Huber, in his Report endorsed by the Swiss Conseil Fédéral on 11 December 1919, gave a clear definition of international conciliation.7 He proposed to support the future League of Nations and in particular its provisions for settlement of disputes. He had no problem with adjudication by arbitration or by an international court of justice. But he considered that the settlement of disputes by the organs of the League of Nations amounted to political inter­vention and did not qualify as conciliation. He insisted on the necessary independence of a conciliation commission, composed of highly qualified personalities, mandated to help find a peaceful solution without triggering any external political pressure. Max Huber thus clearly defined the two distinct procedures: mediation being placed under the control of a political authority; conciliation performed by a body of independent personalities, chosen for their independence and their personal experience and capacities. I proposed to qualify these two distinct interventions by a third party as that of a wiseman (‘le sage’) and a political authority (‘le prince’).8 5 International Commission of Inquiry, Report, 26 February 1905, reprinted in: James Brown Scott (ed). The Hague Court Reports (1916) 404 et seq. 6 James Brown Scott (ed.), Treaties for the Advancement of Peace between the United States and Other Powers (New York: Oxford University Press, 1920). 7 Max Huber. Rapport du Conseil fédéral à l’Assemblée fédérale concernant les traités internationaux d’arbitrage (1919), 71 Feuille fédérale suisse (Vol. v) 808 et seq. 8 See Cot (supra note 1) 389 pp. English translation: International Conciliation (London: Europa Publications, 1972) 349.

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The Institut de droit international picked up the issue in Lausanne in 1927, Count Rostworowski being the rapporteur. It laid down the classical model of conciliation. Conciliation was to be implemented by a conciliation commission, normally composed of five persons, including conciliators appointed by each party. An individual conciliator could be appointed, but a collective body seemed more appropriate. The commission was to examine all the aspects of the dispute: the facts, but also the law and political considerations. At the end of the proceedings, the commission was to draft a report and propose an amicable settlement. The proceedings and the report were confidential. The proceedings were not mandatory in any way. The concept of a compulsory conciliation was considered as contradicting the logic of a non-obligatory procedure for the settlement of disputes. There were some dissenting voices. Hersch Lauterpacht was among the strongest.9 He challenged the then common distinction between political disputes and legal disputes, arguing that all international disputes were legal and should be settled by application of the existing rules of international law. Hence, he rejected the notion that settlement by adjudication was not appropriate for non-legal disputes, as the concept of non-legal disputes was inherently flawed. By giving legal authority through a quasi-jurisdictional procedure to a settlement of disputes integrating non-legal considerations, international conciliation was weakening the rule of law. Lauterpacht was in a minority at the time. Expectations attached to conciliation were quite high after the First World War. Max Huber considered conciliation as an important contribution to world peace and security. The procedure was included in the major international agreements to that effect, in particular the Locarno Treaties, the General Act for the Settlement of Disputes and, in Latin America, the Saavedra Lamas Treaties. These international agreements also called for non-resort to force during the proceedings. They indicated that conciliation was considered an appropriate method of settling high intensity disputes and not only minor or technical disputes. Conciliation thus reflected the idealistic spirit of good will at the time. However, the spirit of goodwill was not followed by any effective practice. The contrast is striking between the number of important, elaborate and highly political agreements calling for conciliation to solve international disputes on one hand, the paucity of any effective resort to conciliation on the other hand. Expectations were definitely not met at the time.

9 Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933) 267.

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Lack of practice of conciliation before the war did not stop States from referring to conciliation after World War ii. Article 33 of the un Charter mentions conciliation among the procedures of pacific settlement of disputes. The 1949 revised General Act for the Pacific Settlement of Disputes carries over the 1928 provisions relating to conciliation. Bilateral treaties of pacific settlement of disputes concluded since 1945 likewise refer to the procedure. Some so-called conciliation commissions were in fact arbitral tribunals and, as such, did perform an important activity. This was for instance the case of the conciliation commissions set up by the peace treaties with Italy after World War ii. But ‘traditional’ conciliation commissions included in agreements after World War ii were not any more active than their predecessors. Only a few cases can be cited.10 Among the rare cases, the Gorm and Svava case opposed Denmark and Norway on a fishing incident in 1952.11 Henri Rolin was a member of the Commission. He proposed an interesting turn. Focusing on the legal aspect of the dispute, he considered that the role of the conciliation commission was to act as a legal counsel to the parties. It was to assess the respective values of the legal arguments of each party and to propose a settlement based on that evaluation. He later persuaded the Institut de droit international to reexamine the issue in 1961. The Institut had already examined the subject in 1927 and adopted a Report proposed by Count Rostworowski. But in 1961, expectations were rather focused on low intensity conflicts, not major conflicts. These more modest expectations were no more fulfilled than the more ambitious ones. To sum up, conciliation did not meet the expectations attached to it during the period under consideration. What were the reasons for the disappointment? One can suggest the following. High intensity conflicts oppose the parties very seriously. Political preconditions for a successful condition are absent, as the lack of trust among the parties does not allow for a fruitful non-compulsory procedure. Low intensity conflicts do not present the same difficulty. But in that case, why go through the heavy and costly burden of appointing a commission, producing memorials with the necessary documents, organizing meetings, etc.? A wellconducted bilateral negotiation can sort out the issue and solve the dispute in general. If such is not the case, the parties can resort to arbitration and be sure to have a definitive settlement. The space for bilateral conciliation appears thus very limited. Hence the disappointing results when compared with the expectations. Yet the lack of 10 11

Cf. Koopmans (supra note 4). Henri Rolin, ‘Une conciliation belgo-danoise’, 61 (1957) r.g.d.i.p 353 et seq.

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results triggers a question. Why do diplomats and academics insist on drafting elaborate provisions to be included in bilateral or multilateral agreements? Diplomats are no fools. They well know that the chances of implementing such provisions are minimal. Allow me to conclude with a slight provocation. The expectations attached to conciliation may not be those that come naturally to mind. The main expectation may well be that the provisions for conciliation shall never be resorted to. Mentioning the procedure does flash a commitment to peaceful settlement of disputes. But with no effective obligations attached …

chapter 3

Conciliation within the Framework of Dispute Settlement Procedures: An East European Perspective Lauri Mälksoo i Introduction As is well known to the students of international law, the techniques of conflict resolution in their subject matter fall into two categories: diplomatic and legal procedures. Obviously, such doctrinal distinction comes from legal positivism which aims at the clear separation of law and politics. Diplomatic methods of dispute settlement are negotiation, good offices, mediation, inquiry and conciliation. The key common characteristic of these methods and procedures is that their outcome is not legally binding. At the other end of the spectrum, binding methods of dispute settlement are arbitration by arbitration tribunals and adjudication by international courts which both issue binding judgments. In reality, the positivist foundation of the dispute settlement procedures, Article 33(1) of the un Charter, does not so neatly separate diplomatic and legal procedures and simply stipulates: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies and arrangements, or other peaceful means of their own choice. Thus, in international law there is a fundamental principle of peaceful settlement of disputes. To contribute to peaceful settlement of disputes is perhaps the highest calling of international law because the alternative to this is violence and war. At least since the late 19th century, if not earlier, international law has been entrusted with reducing violence and war. Conciliation is a dispute settlement procedure that contains elements of inquiry (fact finding) and mediation. Scholars often point out the Janus-like or hybrid nature of conciliation – sometimes conciliation is little more than ‘institutionalised negotiations’ and then at other times it may, at least procedurally,

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markedly resemble arbitration.1 In conciliation, there is a neutral third party involved – a conciliator – who attempts to establish what the facts are as well as actively to propose solutions to the dispute. The difference with mediation is that although a mediator is also a neutral third party, he or she is not actively expected to offer proposals for solution and instead takes a more passive role of mediation. At the same time, in conciliation the proposed solutions offered by the conciliator are not legally binding on the conflicting parties; they do not constitute an ‘award’ in the sense of arbitration or a ‘judgment’ in the sense of adjudication. All dispute settlement procedures, including conciliation, have their legitimate place under the sun. The Latin maxim suum cuique sums up the situation well. For example, Malcolm Shaw praises conciliation as extremely flexible and that by clarifying the facts and discussing proposals this may stimulate negotiations between the parties.2 This is an important point because adjudication is altogether more adversary, final and may promote the mentality of ‘the winner takes it all’. However, considering the practical relevance of ‘lesser’ methods of dispute settlement, international lawyers have been perhaps disproportionately fascinated with international arbitration and adjudication. For example, Jan Klabbers writes in his textbook on international law that for the lawyers, ‘the two more interesting methods (…) are arbitration and adjudication’.3 At the same time J.G. Merrills has pointed out that in state practice negotiation is employed more frequently than all the other methods put together.4 Nevertheless, consciously or less so, the thinking of international lawyers seems to be: let international lawyers deal first of all with the legally binding methods of dispute settlement and politicians, diplomats and academically international relations experts (rather than lawyers) – the likes of Henry Kissinger – focus on non-binding methods. In this spirit, conciliation as method of dispute settlement is formally recognized as part of the doctrine of international law, but for some lawyers it is somehow still not legal enough. There are certain political costs and cultural limitations to this tendency of emphasizing international adjudication and arbitration and neglecting other methods of dispute settlement. Professor Onuma Yasuaki from Meiji University in Tokyo has criticized the ‘‘‘domestic model (of Western society) approach”

1 J.G. Merrills, International Dispute Settlement, 5th ed (Cambridge: Cambridge University Press, 2011) 65–66. 2 Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2008) 1023. 3 Jan Klabbers. International Law (Cambridge: Cambridge University Press, 2013) 142. 4 Merrills (supra note 1) 2.

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in international legal studies, represented by excessive judiciary centrism’.5 As a result this tendency sometimes makes us miss parts of the everyday reality of international law: by far not all important cases and disputes in the context of international law lead to international arbitration or court cases. International law often remains the language of normative claims and counterclaims in international relations, without secured access to international courts. Moreover, the black and white dichotomy of diplomatic and legal methods of dispute settlement, as valuable as it may be for pedagogical purposes, and as much sense as it may make from the viewpoint of legal positivism, may also be simplifying the actual state practice in which for instance certain court judgments or arbitral awards are in practice not easy to implement. From the viewpoint of compliance, as a result diplomatic dispute settlement may be successfully implemented whereas a judgment of an international court is not. Moreover, one should keep in mind that the context of all dispute resolution in international affairs – whether through ‘legally binding’ or merely ‘diplomatic’ means – remains political. International politics frames the bigger picture of international dispute settlement, and even the praised ‘judicialisation’ of international politics – to the extent that it does exist – happens in a political context as well. Dispute settlement in international law is usually presented as a universal phenomenon, and at least conceptually it is surely that. However, in the context of international arbitration and adjudication there are also significant differences between different countries and regions in terms of to what extent they actually take part in international court and arbitration proceedings.6 Every country of course participates in negotiations now and then. Beyond negotiations, however, some countries have contributed tremendously to more formalized methods of international dispute settlement whereas other countries less so. Such differences are sometimes reflected in international law textbooks and also the domestic scholarship. For example, reading Russian textbooks on international law and looking at their sources one can sometimes have the impression that international law is first of all what Presidents and Ministers of Foreign Affairs do, not so much what international courts and arbitration tribunals decide.7 This is a legitimate view of international law but it 5 Yasuaki Onuma, A Transcivilizational Perspective on International Law (Leiden: Martinus Nijhoff, 2010) 245. 6 See also Benedict Kingsbury, ‘International Courts: Uneven Judicialisation in Global Order’, in: James Crawford and Martti Koskenniemi (eds) The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) 212 et seq. 7 See further Lauri Mälksoo, Russian Approaches to International Law (Oxford: Oxford University Press, 2015).

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is also quite a different approach compared to Anglo-Saxon textbooks in which international law is largely presented empirically-judicially, i.e. through actual cases from dispute settlement, whether international or domestic. To some extent such differences also reflect different approaches to dispute settlement in State practice; as I already mentioned, some countries have simply ‘produced’ less cases of adjudication. In Western scholarship, the fascination with adjudication among international lawyers may also have something to do with John Austin’s 19th century criticism that international law was not ‘law properly called so’ because it did not have sanctions similar to domestic law.8 Moreover, according to another famous English jurist, H.L.A. Hart, developed legal orders had to have elaborate secondary norms in support of their primary norms.9 The fragmented nature of secondary norms – norms of procedure, institutions, responsibility and enforcement – has for a long time been regarded as a relative weakness of international law. By emphasizing international adjudication and following the ‘judicialisation’ of international relations as something by definition progressive and therefore also worth particular legal academic attention, international lawyers have hoped to counter the persistent criticism that international law was still somehow inferior to domestic law.10 In this chapter the focus is on conciliations but still in the context of dispute settlement procedures in international law. Inevitably, different dispute settlement procedures are closely connected with each other, and in many cases governments must decide and choose which methods to select and favour. Therefore, it makes sense to approach conciliation from the viewpoint of different alternatives that exist there ‘at the market’ (of dispute resolution). In the following, I will give a brief overview of conciliations in the context of dispute settlement procedures in international law and then ask whether conciliation as an international dispute settlement method still has a viable place in the future. Empirically, I will particularly focus on my own home region, the so-called Eastern Europe, especially the region of the former ussr. I will do so because the so-called Eastern Europe is central in the history of the osce and sadly, mostly due to Russia’s deep dissatisfaction with the geopolitical status quo, this region has again a considerable conflict potential. My main argument is that conciliation as a dispute settlement method could indeed be particularly promoted in the context of Eastern Europe. On the one hand, international 8 9 10

John Austin, The Province of Jurisprudence Determined: Being the First Part of Series of Lectures on Jurisprudence, or, the Philosophy of Positive Law, 2nd ed. (London: J. Murray, 1861). H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). This criticism has not disappeared. See e.g. Jack L. Goldsmith and Eric A. Posner. The Limits of International Law (Oxford: Oxford University Press, 2006).

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conflicts, incidents and disputes must be dealt with. On the other hand, the hands of international adjudication and arbitration are still relatively short in Eastern Europe, for reasons that I will also discuss below. In this sense, conciliation is still much ‘better than nothing’ in the context of dispute settlement procedures in international law and certainly better than violent conflicts and wars which, unfortunately, have returned to the region. Conciliation may in some sense be ‘less’ than adjudication but, as a well known advertisement paradoxically suggests to us, sometimes less can be more. ii

Conciliation, Disputes and Conflicts: From the 1920s to the osce

Conciliation has not been a major preoccupation in international law scholarship, at least compared to the study of international courts and tribunals.11 Perhaps this reflects the fact that in State practice conciliation has not been the most popular international dispute settlement procedure. In this regard, international law scholars have simply followed where the power and the action in dispute settlement have been. On the other hand, the relative lack of intellectual interest among international lawyers in conciliation may in turn have contributed to the relative scarcity of conciliation proceedings in recent state practice. We should not forget that since Hugo Grotius (1583–1645) and Emer de Vattel (1714–1767), the ideas and preoccupations of international law scholars have played a constitutive role in how international law has been viewed in practice. In terms of the historical narrative on the use of conciliations in international relations, there isn’t actually much to add to the excellent overview of J.G. Merrills which discusses in detail and yet in a popular way previous cases of conciliation and their historical contexts.12 In a nutshell, the story of conciliation goes something like this. In the 1920s certain bilateral treaties providing for conciliation were concluded in Europe, for example the influential 1925 ‘model’ treaty between France and Switzerland.13 The multilateral General Act for the Pacific Settlement of International Disputes concluded in 1928 was also important in this regard. During the interwar period, about 200 similar treaties were concluded.14 11

See e.g. Cesare PR Romano, Karen Alter and Yuval Shany (eds) The Oxford Handbook of International Adjudication (Oxford: Oxford University Press, 2014); Vladislav L. Tolstykh, Mezhdunarodnye sudy i ikh praktika (Moscow: ‘Mezhdunarodnye otnoshenia’, 2015). 12 Merrils (supra note 1). 13 Merrills, ibid. 59. 14 Merrills, ibid. 60.

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The list of actual conciliations includes the Chaco commission dealing with a conflict between Bolivia and Paraguay in 1929, the German-Lithuanian conciliation after the expulsion of some German nationals from Memel (nowadays Klaipeda) in 1931, the Franco-Siamese Conciliation Commission on border issues in 1947, the 1955 Franco-Swiss commission on costs related to the internment of a Polish military unit during World War ii, conciliation carried out by Dr Ulbricht and concerning the division of assets between Kenya, Uganda and Tanzania when the East African Community broke up and the 1980 conciliation between Iceland and Norway on the division of continental shelf between Iceland and Jan Mayen Island.15 Two observations can be made based on the study presented by J.G. Merrills and other similar overviews.16 On the one hand, conciliation as a method of international dispute settlement has primarily not been used in very high profile political cases, i.e. cases of war and peace. There was a dispute, a conflict but usually not a mortal one. Therefore, it seems that diplomatic goals associated with conciliation procedures have been relatively modest and one should not at the very beginning become too ambitious about the possibilities offered by the method of conciliation in international relations. At the same time, we should also keep in mind that in this sense conciliation does not even differ too much from arbitration and adjudication because as a rule governments, fearing the loss of control over the issues, will also be reluctant to hand over ‘life or death’ security issues to international arbitration or adjudication. Secondly, it appears from diplomatic history that conciliation has been more popular in the 20th century than it has been recently, after the end of the Cold War. Clearly, today’s international media do not often refer to conciliation procedures when they cover international affairs; at least recently, there has not been much to refer to. Instead, quality media might refer to developments in the icj, icc, the ECtHR, investor-state arbitration tribunals and the like. These are places to which much of the international dispute settlement seems to have shifted since the late 20th century, and some of this is certainly connected to the shifting of the focus on individuals, their rights (ECtHR) and duties (icc). However, from the historical perspective the success of some international courts has also come at the cost of their lesser ‘diplomatic’ brethren – such as conciliation. Seen in this light, international arbitration and adjudication may indeed appear as the ‘real deal’ since they offer binding

15 Merrills, ibid. 60–65. 16 Another useful account on dispute settement procedures is John Collier and Vaughan Lowe, The Settlement of Disputes in International Law (Oxford: Oxford University Press, 1999).

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judgments for the states who want to settle the dispute authoritatively with the help of a neutral third party. Reading recent Russian scholarship on international dispute settlement reveals one additional historical element or rather claim – it has been maintained that the ussr used conciliation commissions for the settlement of border incidents.17 However, Western treatises on international dispute settlement say nothing about this. In principle, this omission may be out of ignorance, of course. At the same time, it remains unclear who the neutral third party in the case of conciliation procedures following border incidents involving the ussr was. If the conciliators represented the two respective governments, it is difficult to imagine that in the Soviet case they had the independence expected from a ‘third party’ in classic conciliation. If so, then the use of such Soviet border incident commissions as examples of ‘conciliation’ in the context of international dispute settlement is somewhat idiosyncratic, if not plainly misleading. The overall tendency of the Soviet approach to international dispute settlement was to guard one’s sovereignty at any cost and not to give decision making away, not even to a conciliator who could have made ‘mere’ proposals and not binding judgments. Altogether, Russian scholars point out that globally there have not been too many examples of successful conciliations in State practice – altogether about 20 cases.18 At this stage of research, I would conclude that the ussr and post-Soviet Russia have not had any cases of conciliation in the classic understanding, i.e. including a neutral third party as conciliator. With these historical excursions in mind, does this mean that conciliation as method of settlement of international disputes is nowadays something primarily from the annals of the history of international law, like the Free City of Danzig or the concept of ‘reprisals’ (nowadays effectively replaced by the notion of ‘countermeasures’)? Perhaps conciliations have ‘stepped back’ because more advanced methods of dispute settlement such as adjudication and arbitration have emerged and flourished? As already indicated before, to conclude so may still be preliminary. Serious international disputes have certainly not disappeared from the world and specifically from Europe. At least politically, there seems to be an increasing need 17

18

Sergey A. Egorov (ed.), Mezhdunarodnoe pravo (Moscow: Statut, 2014) 929; Aslan Kh. Abashidze, Aleksandr M. Solntsev, Konstantin V. Ageichenko, Mirnoe razreshenie mezhdunarodnykh sporov: sovremennye problemy (Moscow: Rossiiskii universitet druzhby narodov, 2011) 70. Igor I. Lukashuk, Mezhdunarodnoe pravo. Osobennaya chast’ (Moscow: Beck, 2nd ed. 2001) 218.

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for the use of a bigger variety of international dispute settlement mechanisms. Whatever the merits of international adjudication (and there are indeed many as far as jurisdiction of an international court can be established) they will not suffice in all complex circumstances of all international disputes. In some cases, adjudication – even if one party, the plaintiff, attempts it – is too rigid as a dispute settlement mechanism. Often there will simply be no readiness on both sides of the conflict/dispute to subject the dispute to a binding decision made by a neutral third party. Even if it was possible to establish the jurisdiction of an international court or arbitral tribunal (which is often not the case) the court case might sometimes not resolve the underlying problem between the two states and even increase the adversarial spirit. It is indeed possible that something like an attempt to reanimate conciliation is underway in the context of the Convention on Conciliation and Arbitration within the osce which was signed in Stockholm on 15 December 1992. It entered into force on 5 December 1994 when twenty – mostly West European – states had ratified the Convention. Currently 33 osce participating States are parties to the Convention. However, its mechanism of conciliation has not yet been used in practice. Moreover, still a noteworthy number of osce participating States have not ratified this instrument, including my own country, Estonia. (This must have something to do with the sometimes tense interaction between the osce and Estonia in the early 1990s, due to different interpretations of the legal and political situation of the Russian speaking minority in the country. Altogether Estonia has in principle been open to international adjudication as evidenced by the fact that it has accepted the compulsory jurisdiction of the icj under Article 36(2) of the icj Statute.) To mention some other examples, the Russian Federation signed the Stockholm Convention on 15 December 1992 but has not ratified it – adding one more example to the multilateral treaties that Russia signed in the early 1990s but until today has not ratified (another example is the 1965 icsid Convention). Other East European nations (and I am using this concept only in the geographical way it is used by the un, not carrying any cultural-political ‘baggage’), for example Bulgaria, the Czech Republic, Serbia and Slovakia, have failed to ratify the Convention. On the other hand, from the group of old Western democracies Belgium and Canada, for example, have not ratified the Convention either while for instance Central Asian osce members such as Tajikistan and Uzbekistan have done so.19 Nevertheless, the academic conference which was organized at the initiative of the current President of the osce Court of Conciliation and 19

See further for the list of ratifications http://www.osce.org/cca/40119?download=true.

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Arbitration, Christian Tomuschat, at the osce’s headquarters in Vienna in June 2015, from which the content of this chapter is drawn, testifies to the fact that there is renewed political interest in the 1992 Convention and its dispute settlement procedures, including conciliation. Historically, interest in international dispute settlement has come in specific waves. Paradoxically, to some extent this renewed interest in conciliation may even be potentially alarming because it testifies that something is in the air; something may not be right. Historically, waves of interest in dispute settlement procedures happened to come before major cataclysms; unfortunately, the efforts of lawyers and diplomats were unable to prevent them. Thus, it is a worrisome fact that the 1899 and 1907 Hague Peace Conferences took place immediately before World War i, and the dispute settlement procedures designed for the League of Nations as well as the Kellogg-Briand Pact of 1928 were unable to prevent the catastrophe of World War ii from happening. One may only hope and wish that there is no bad omen in focusing on conciliation procedures today, in the context of the osce. Recent developments in European and Eurasian politics have certainly been worrisome. In August 2008, Georgia and Russia ended up having five days of war as a result of which Russia recognized the independence of South Ossetia and Abkhazia, territories that according to the principle of uti possidetis belonged to Georgia. And, before the Ukrainian conflict broke out in 2014, some more hawkish (or they would themselves probably say, simply honest) political analysts characterised Western-Russian relations as the ‘new cold war’.20 Russia’s invasion and annexation of Crimea in 2014 as well as the conflict in Eastern Ukraine, frozen by now, in which East Ukrainian separatists covertly supported by Moscow constituted a heavy blow to the European security architecture and particularly to the osce. It was the Helsinki Final Act of the csce,21 the predecessor of the osce, that in 1975 recognized the principle of the inviolability of European borders which has been understood to mean that no borders should be changed unilaterally, i.e. by using military force. However, exactly this happened in Crimea.22 Of course, the legal obligation not to use military force and violate State sovereignty originates first of all from Article 2(4) of the un Charter. It is by the way a fascinating aspect of the situation concerning the 20 21 22

Edward Lucas, The New Cold War. Putin’s Russia and the Threat to the West (New York: Palgrave Macmillan, 2008). See Daniel C. Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton: Princeton University Press, 2001). For an interpretation sympathetic to Russian concerns and arguments, see Richard Sakwa, Frontline Ukraine. Crises in the Borderlands (London: i.b. Tauris & Co, 2015).

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principle of inviolability of borders that formally it was the Soviet and Russian viewpoint (both on a governmental and scholarly level) rather than the viewpoint of Western diplomacy that the Helsinki Final Act of 1975 indeed created legally binding rather than just political obligations. However, not much was apparently left of this position after the annexation of Crimea. After the 2008 August war between Georgia and Russia, different dispute settlement procedures were used but perhaps none of them could deal with the situation in an entirely satisfactory manner. In the very heat of the war, the President of France, Nicolas Sarkozy acted as mediator between Moscow and Tbilisi and in this capacity helped to stop the acute military conflict.23 Recently, we have witnessed increased ‘lawfare’ in international courts and fora, resulting from wars and other unsolved security conflicts in Eastern Europe. First of all, Georgia sued Russia in the icj under the 1965 un Convention against Racial Discrimination – which became the first ever case of adjudication that Russia has had in the icj.24 However, it seems that the Georgian initiative was doomed from the beginning in the sense that the Russian Federation has not accepted the compulsory jurisdiction of the icj under the optional clause of the icj Statute (Article 36(2)). The icj’s jurisdiction under the 1965 International Convention on the Elimination of All Forms of Racial Discrimination is difficult to establish since it requires the demonstration of certain prior political steps Georgia was unable to demonstrate that it had taken vis-a-vis Moscow. It is difficult to establish with certainty what political and/or legal purposes the Georgian government pursued when initiating the icj case against Russia. If one of them was putting pressure on Moscow and preventing the Russian occupation of the whole country, Tbilisi may even have succeeded to some extent. However, the icj case, which did not go further from the jurisdiction phase, hardly managed to ‘settle’ any substantive dispute between Georgia and Russia. Other examples of ‘lawfare’ resulting from the political and territorial conflict between Georgia and Russia have been Georgian initiated state-to-state cases in the ECtHR. On the 3rd of July 2014, the Grand Chamber of the ECtHR issued a judgment on the merits concerning the arrest, detention and expulsion of Georgian nationals from Russia in late 2006, which was in favour of 23

See also Aslan Kh. Abashidze, Aleksandr M. Solntsev, Konstantin V. Ageichenko, Mirnoe razreshenie mezhdunarodnykh sporov: sovremennye problemy (Moscow: Rossiiskii universitet druzhby narodov, 2011) 56. 24 See icj, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, Judgment of 1 April 2011.

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Georgia.25 The ECtHR found that there had been a coordinated Russian policy of arresting, detaining and expelling Georgian nationals and that this policy violated the echr. However, the ECtHR postponed the decision regarding just satisfaction (reparation). The 2008 Georgia-Russia war also triggered the use of a third party enquiry, initiated by the eu. This was the Independent International Fact-finding Mission on the Conflict in Georgia which was chaired by the Swiss diplomat Heidi Tagliavini. The so-called Tagliavini report that resulted from the work of the commission26 was useful in terms of fact finding (addressing questions like: Who started the August 2008 war? Were war crimes committed? Were acts of genocide committed in South Ossetia?), but also extensively applied international law to facts that had been discovered and discussed. Like a teacher who sees two of her pupils unnecessarily fighting, the Tagliavini report established certain violations of international law on both sides of the conflict, by Georgia and Russia. In other words, in the eyes of the fact finder some significant blame fell on both conflict parties (due to their biases, different readers can come to different conclusions on which side more blame was put). In the acknowledgments section at the end of the report, Tagliavini gives a ‘special mention’ to the ‘useful cooperation which the Mission received throughout its work from all four sides directly related to the conflict: these were Georgia, the Russian Federation, South Ossetia and Abkhazia’.27 This diplomatic formulation reveals as much as it hides because ‘useful cooperation’ can mean different things, and in fact sometimes also very limited cooperation. In any case, the formulation signals that none of the conflicting parties completely ignored or worked openly against the Tagliavini-led Mission. They may not have shared all the information they had but instead the conflicting parties tried hard to make their version of events prevail in the eyes of the Swiss diplomat and her team. Furthermore, Russia’s 2014 invasion and annexation of Crimea and the subsequent military conflict in Eastern Ukraine in which Russia participated while officially denying it subsequently led to its own ‘lawfare’. Thus, Ukraine has already initiated four interstate cases against Russia in the ECtHR; also on 8 September 2015 Ukraine lodged a declaration at the icc accepting the icc’s jurisdiction with respect to alleged crimes committed in its territory since

25 26 27

ECtHR, Grand Chamber, Case of Georgia v Russia (i), Application no 13255/07, Judgment (Merits), 3 July 2014. http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/30_09_09_iiffmgc_report.pdf. Ibid. 39.

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20 February 2014.28 Moreover, the shooting down of the Malaysian Airlines civil airplane in Eastern Ukraine during the military conflict there in July 2014 led to a Dutch-initiated investigation commission, since many of the victims on the plane were Dutch citizens. However, at the un Security Council, Moscow vetoed the draft resolution expressing the idea of creating an international tribunal to investigate and punish those responsible for the shooting down of the Malaysian Airlines airplane. While I am writing these lines in early December 2015, Russia and Turkey are quarrelling about Turkey shooting down a Russian military jet at the TurkishSyrian border. Both parties seem to disagree on whether the Russian military jet entered (illegally) Turkish airspace or not. Again, there is clearly an international dispute with contested facts but could there also be a successful dispute settlement beyond negotiations between Moscow and Ankara? These are some recent examples of dispute settlement procedures and even ‘lawfare’ involving East European nations, or examples of where international dispute settlement would actually be needed. In the end of this chapter, I will sum up and explain further why in the future conciliation could actually be a viable option in some similar cases. iii

The Case for Conciliation

Because of its greater flexibility, conciliation may be a viable option when the mistrust between countries is too big to go straight to adjudication, which would by definition be legally binding. In the context of Eastern Europe, the main argument for considering and promoting conciliation as an alternative method of international dispute settlement is that the acceptance to settle disputes using arbitration or adjudication has not been very high in the region. Even after the demise of the Communist ideology, a number of East European elites sense uneasily that they do not have enough ‘control’ of international adjudication; that the predominant language in these bodies is Western and that, consequently, the role and weight of their nations there is too marginal. Connected to this, politically and psychologically, state sovereignty has remained a very important, even the most central concept among the political elites in many East European countries. Such identities sometimes naturally clash with

28 See icc Press Release, ‘Ukraine Accepts icc Jurisdiction over Alleged Crimes Committed Since 20 February 2015’, https://www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/Pages/pr1146.aspx.

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the increasing imperial and self-assured political identity that Moscow recently demonstrates. When one critically studies the history of international dispute settlement, especially the legally binding settlements and the cases of diplomatic protection, then one can easily make the discovery that very often these are historically Western cases rather than cases representing the history of the whole of mankind or even Europe. It cannot be denied that there are relatively few cases of international arbitration and adjudication in Eastern Europe.29 Already before World War i there was a pattern that the us and Britain practiced more international arbitrations than Central and East European continental powers; the first modern international arbitration case was the Alabama Claims between the us and Britain in 1872. During the Communist rule in Eastern Europe, the tendency of being suspicious about legally binding methods of international dispute settlement deepened further. Only during the post-Communist period have some prominent cases in the icj been initiated in the region such as the Gabčikovo-Nagymaros dam case.30 However, in the foreseeable future the icj will not be a realistic option for example regarding international disputes involving the Russian Federation because so far the Russian government has not been enthusiastic about taking or agreeing to take disputes for legal settlement to the icj. Furthermore, it is not certain whether the ECtHR as an institution is ready in the long run to successfully settle very difficult and adversarial interstate cases like Georgia v Russia or Ukraine v Russia. Although the Ukraine cases in the ECtHR have not been decided yet, one can already see now that Moscow has been very dissatisfied with what it calls the ‘politicization’ of the ECtHR. The golden rule of international adjudication is that the acceptance of the jurisdiction of an international court must be genuine; in the case of Russia and the ECtHR it seems that Moscow’s acceptance of the Court’s jurisdiction in ‘political’ cases seems to be vanishing. In July 2014, the Constitutional Court of the Russian Federation decided that if judgments of the ECtHR are seen to contradict the Russian constitution, they will not be implemented in the 29

30

See L.A. Kamarovskii, O mezhdunarodnom sude (Moscow: Zertsalo M, 2015) 375. The original of this monograph written by the later Professor of International Law at Moscow University was published in Russian in 1881 and in French in 1887. See also M.N. Korkunov, ‘Lektsii po mezhdunarodnomu pravu, chitannye v Voenno-Yuridicheskoi Akademii v 1883–1884 godu’, in: Zolotoi fond rossiiskoi nauki mezhdunarodnogo prava, Volume 1 (Moscow: Mezhdunarodnye otnoshenia, 2007) 361 (comparing existing arbitrations between pre-World War i European powers). icj, Case concerning the Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, icj Reports 1997, 7.

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Russian legal order. Respective legal mechanisms have been worked out in the Russian State Duma. Thus, it is not even certain for how long – and how effectively – the ECtHR will be able to resolve human rights cases concerning Russia, and especially interstate cases. Both the echr member States, the ECtHR and particularly Moscow will face some serious legal-political dilemmas in this regard. Should Russia even stay – or be allowed to stay – in the system if it is increasingly willing to reject certain outcomes in the ECtHR? Thus, there may soon develop a need for plan B – for example in case Moscow decides to leave the Council of Europe. In that no longer fully inconceivable case, the only organization beyond the un where all European States still interact by definition, is the osce. Thus, there may also rapidly develop further needs for peaceful settlement of disputes in the framework of the osce. In 1914, European states ‘sleepwalked’ into World War i.31 Today, we must do everything in our capacity and use all existing means at our disposal including conciliation in order not to let the past tragedies come to us in new forms. An increased study of the history of methods of international dispute settlement may inspire us further when the advice of international lawyers is again rapidly needed in the dark hours that may lie ahead.

31

Christopher Clark, The Sleepwalkers. How Europe Went to War in 1914 (London: Allen Lane, 2012).

chapter 4

Diplomatic and Jurisdictional Aspects in Conciliation Procedures: Conciliation between Dispute Settlement and Conflict Prevention Giuseppe Palmisano i

The Dual Dimension of Conciliation

From a procedural and functional standpoint, conciliation represents the most evolved and complex among so-called diplomatic means of settlement of inter-State disputes. Conciliation combines in fact typical elements of both fact-finding and mediation, and it also approaches – in certain cases and in given contexts – arbitration and judicial procedures.1 1 It is worth stressing from the outset that in the present contribution we take into consideration the ‘classic’ notion and model of conciliation as it has been defined by the Institut de Droit International in a Resolution adopted at the Salzburg session (1961): ‘On entend par « conciliation » … un mode de règlement des différends internationaux de toute nature dans lequel une Commission constituées par les parties, soit à titre permanente, soit à l’occasion et à raison d’un différend, procède à un examen impartial du différend et s’efforce de définir les termes d’un arrangement susceptible d’être accepté par elles, ou de prêter aux parties en vue de son règlement tel concours qui lui aurait été demandé’, 49 (1961-II) Annuaire de l’Institut de Droit International, 275). We will not refer, therefore, to other kinds of conciliation procedures which have a different object and purpose, such as those envisaged – for example – within the framework of the international protection of human rights, or which constitute a part, or a phase, of a more wide and articulated dispute settlement mechanism, such as that established by the Dispute Settlement Understanding in the wto system.    On conciliation as a diplomatic means of settlement of inter-State disputes, see among others: Jean Efremoff, ‘La conciliation internationale’, 18 (1927-III) Recueil des cours de l’Académie de Droit International de la Haye 5; Georges Revel, ‘Rôle et caractère des commissions de conciliation’, 38 (1931) Revue générale de droit international public 564 et seq.; Jean-Pierre Cot, La conciliation internationale (Paris: Pedone, 1968); Hazel Fox, ‘Conciliation’, in: C.M.H. Waldock (ed.), International Disputes: The Legal Aspects (London: David Davies Memorial Institute for International Studies, Europa Publications, 1972) 93–100; Ugo Villani, La conciliazione nelle controversie internazionali (Napoli: Jovene, 1979); Vladimir Djuro Degan, ‘International conciliation: its past and future’, in: P. Fischer et al. (eds.), Völkerrecht und Rechtsphilosophie. Internationale Festschrift für Stephan Verosta (Berlin: Duncker & Humblot 1980) 261–286; Handbook on the Peaceful Settlement of Disputes between States (New York: United Nations Publications, 1992), 45 et seq.; Ruth Donner, ‘The procedure of

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_005

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The study of treaty provisions concerning conciliation and the practice of conciliation commissions reveal, in particular, the co-existence in conciliation of two dimensions – or, better, two possible distinct approaches to a ­dispute – which often assume a different weight in the relevant treaty and case law. The two dimensions could be defined as ‘diplomatic’ and, respectively, ‘jurisdictional’: having regard, the former, to the elaboration by the conciliation commission of a proposal which is likely to meet the full consent of all States Parties to the dispute and, the latter, to that aspect of the work of conciliation commissions consisting in an objective examination and assessment of the claims of the parties in light of the applicable rules of international law.2

international conciliation: some historical aspects’, 1 (1999) Journal of the History of International Law 103–124; Ferhat Horchani, ‘La Conciliation’, in: F. Horchani (ed.), Règlement pacifique des différends internationaux (Tunis/Bruxelles: Bruylant, 2002) 169 et seq.; Sven M.G. Koopmans, Diplomatic Dispute Settlement. The Use of Inter-State Conciliation (Berlin/The Hague: Springer, 2008); John G. Merrills, International Dispute Settlement 5th ed. (Cambridge: Cambridge University Press, 2011) 58–83. 2 On the distinction between ‘diplomatic’ and ‘jurisdictional’ dimension of international conciliation see more in extenso Giuseppe Palmisano, ‘Sulla duplice valenza, diplomatica e giurisdizionale, della conciliazione internazionale’, in: G. Arangio-Ruiz et al. (eds.), Studi giu­ ridici in ricordo di Giovanni Battaglini (Napoli: Jovene, 2013) 181–208.    With respect to what we call here the ‘jurisdictional’ dimension of conciliation, we would like to point out that even in those cases in which such a dimension is predominant (see infra para. iii), conciliation cannot be qualified, in our view, as a ‘legal’ means of settlement, like arbitration or judicial settlement. In fact, the report of a conciliation commission does not constitute per se a means of settling the dispute, in the sense that it is neither adequate to impose new obligations on the States Parties, nor does it constitute for the parties a binding assessment of their opposing claims in light of existing rules of international law. Only a subsequent agreement between the States Parties which would adopt the terms of settlement proposed by the commission would be suitable to make those terms legally binding on the parties, and would therefore constitute the ‘legal’ means of settlement of the dispute.    It is true, however, that one can find some treaty provisions which try to strengthen the legal force of the proposals submitted to the parties by a conciliation commission. For example, according to Art. 85, para. 7 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character: ‘[t]he recommendations in the report of the Commission shall not be binding on the parties to the dispute unless all the parties to the dispute have accepted them. Nevertheless, any party to the dispute may declare unilaterally that it will abide by the recommendations in the report so far as they are concerned’. And in a different way, the 1985 Vienna Convention for the Protection of the Ozone Layer establishes that ‘[t]he Commission shall render a final and recommendatory award, which the parties shall consider in good faith’. Whatever the legal significance and effects of such provisions, they do not seem likely to transform the essence

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The ‘Diplomatic’ Dimension in Conciliation

The ‘diplomatic’ dimension of conciliation is clearly predominant in cases where the conciliation commission is called to play a role which could be qualified as ‘amiable compositeur’, and which essentially consists of an action aimed at facilitating a close collaboration between the parties and the commission, with a view to identifying proposals for a negotiated solution which would be acceptable to the parties, regardless of how much or how little they conform to ‘objective’ parameters of legal or equitable evaluation. A series of elements have indeed the effect of emphasizing such a diplomatic dimension in conciliation procedures. One element is found, for example, in the composition of the commission when the number of so-called ‘national’ members is greater than that of the so-called ‘neutral’ members. The presence of ‘national’ members meets in fact the essential aim of fostering the relationship of trust and cooperation between the States Parties and the commission and, therefore, the availability of the parties in considering as acceptable the solutions which the commission will be able to propose. Another element in the same direction is the rule of confidentiality (or secrecy) which characterizes, in most cases, in actual practice and in relevant treaty provisions, the work of conciliation commissions.3 In general, of the procedures in question: they have still to be considered as diplomatic-conciliatory procedures, and not arbitral or judicial procedures.    Other kinds of treaty provisions, expressly giving binding force to the decisions of a ‘conciliation’ commission, are an entirely different issue. Well known examples are found in the 1947 Peace Treaties concluded by the victorious Powers of World War Two with Italy, Finland, Bulgaria, Romania and Hungary. Despite the nomen iuris such commissions and procedures should be excluded, in our view, from the category of ‘conciliation’ properly understood, and should instead be considered to fall within the category of ‘arbitration’. The same applies to the conciliation procedure provided for under the Treaty establishing the Organization of Eastern Caribbean States (oecs). According to Art. 14, para. 3, of that Treaty (and to para. 6 of the Annex): ‘Member States undertake to accept the conciliation procedure … as compulsory. Any decisions or recommendations of the Conciliation Commission in resolution of the dispute shall be final and binding on the Member States’; ‘[t]he report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall be binding upon the parties’. 3 The rule of confidentiality is expressly established, for example, in Art. 10 of the General Act for the Pacific Settlement of International Disputes (1928) and in the European Convention for the Peaceful Settlement of Disputes (1957) (Art. 11). Confidentiality is also highlighted as a feature of conciliation in both Resolutions on conciliation adopted by the Institut de Droit International. According to Art. 5 para. 5 of the Resolution of 1927, ‘Aucune pubblicité ne sera

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c­ onciliation procedures take place behind closed doors, and the final report is made public only if there is consensus on this among all the parties to the ­dispute. The reasons for confidentiality and non-publicity in conciliation procedures are easy to understand. First, confidentiality facilitates the use of conciliation inasmuch as it is worth sheltering the conduct of the proceedings from the pressures of public opinion in the States Parties. Secondly, the climate of discretion facilitates a more open dialogue, which contributes to creating such confidence between the parties and the commission which may, in turn, be decisive in the success of the procedure (to be intended as the acceptance by the parties of the proposals advanced by the commission). Apart from and beyond this, the predominance of a diplomatic approach to the dispute is evident in all cases where the treaty provisions on the procedural aspects of conciliation are not so rigid and detailed, and neither the drafting of an extensive report nor the formulation of conclusions consistent with the assessment contained in the report are required. In those cases, what is usually required is nothing but the drafting by the commission of a short memorandum which either attests the agreement between the parties (sometimes reporting terms and conditions of such agreement) or, in the case of a negative outcome, limits itself to certifying that it was not possible to reconcile the positions of the parties. Such features may be easily found in conciliation procedures established by bilateral or multilateral treaties concluded from the Twenties to the Fifties of the last Century. Examples are in the provisions of the 1925 Locarno Agreements, or the 1928 General Act for the Pacific Settlement of International Disputes, or the 1957 European Convention for the Peaceful Settlement of Disputes. The wording of such provisions indeed emphasizes the diplomatic dimension of the commission’s mandate, by stating expressly that the commission’s task is ‘to endeavour to bring the parties to an agreement’ (‘de s’efforcer de concilier les parties’).

donneé soit à l’ensemble des travaux de la Commission, soit au rapport, soit au procès verbal, autrement qu’en vertu d’une décision prise par la Commission avec l’assentiment des Parties’ (see 33 (1927-II) Annuaire de l’Institut de Droit International 339 et seq.). The Resolution of 1961 (supra note 1) places a duty of secrecy on commission members and the States Parties to the dispute in Arts. 10 and 14 of Section 4, precisely entitled ‘Secret des travaux’. The ‘Model Rules’ adopted by the General Assembly in 1995 dedicate a series of provisions to the ‘confidentiality’ of the procedure (Arts. 25–26). A duty of secrecy is also provided for under Art. 14 of the ‘Optional Rules’ adopted by the Permanent Court of Arbitration in 1996, http://www.pca-cpa .org/CONCENGbe42.pdf?fil_id=197.

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The same also applies to the more recent ‘Model Rules’ on conciliation adopted by the General Assembly of the United Nations in December 1995,4 as well as to the ‘Optional Rules on Conciliation’ provided for by the Permanent Court of Arbitration in July 1996.5 In the un ‘Model Rules’ the predominance of the diplomatic approach emerges, inter alia, from the following elements: the essential function of conciliation is ‘to assist the parties in reaching an amicable settlement of the dispute’ (Art. 7); the commission ‘shall refrain from presenting in its report any final conclusions with regard to facts or from ruling formally on issues of law, unless the parties have jointly asked it to do so’ (Art. 20, para. 2); and even in the case of acceptance of the settlement proposals by the State Parties, ‘acceptance by a party of recommendations submitted by the commission in no way implies any admission by it of the considerations of law or of fact which may have inspired the recommendations’ (Art. 28, para. 2). As for the ‘Optional Rules’ adopted by the Permanent Court of Arbitration, the diplomatic approach to conciliation is made evident: by the possibility of having a single conciliator (Art. 3); by the definition of the role of the conciliation commission, as assisting the parties in their attempt to reach an amicable settlement of the dispute (Art. 7, para. 1); by the ‘flexibility’ of the procedure (Art. 7, para. 3); and by the possibility for the commission (or single conciliator) to advance settlement proposals that are not accompanied ‘by a statement of the reasons therefor’ (Art. 7, para. 4). iii

The ‘Jurisdictional’ Model of Conciliation

Without underestimating the fact that the above mentioned ‘Model’ and ‘Optional’ rules on conciliation, which have been adopted in the Nineties, do emphasize the diplomatic aspects of conciliation, it has to be noted, however, that in the last decades of the last Century the remarkable enhancement of conciliation – especially within the framework of a number of so-called codification treaties – has been essentially linked with the development of the other dimension of conciliation, that is the jurisdictional (or ‘quasi-arbitral’) dimension. In that regard, reference should be made first and foremost to the 1969 Vienna Convention on the Law of Treaties (and to such other Vienna Conventions dealing with the law of treaties). But reference can be made as well, for 4 ga Resolution 50/50, 11 December 1995. 5 Supra note 3.

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example, to the 1982 Montego Bay Convention on the Law of the Sea, the 1975 Convention on the Representation of States in their Relations with International Organizations of a Universal Character, the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1992 Framework Convention on Climate Change and the 1992 Convention on Biological Diversity.6 All these conventions endorse recourse to conciliation as a procedure for settling legal disputes relating to the interpretation and application of the conventions themselves. They promote or even make compulsory such recourse, establishing mechanisms for the unilateral activation of the procedure, and emphasize the importance of properly assessing the questions of law over the fact of reaching a merely transactional and amicable settlement of the dispute. Within the framework of such (and other) ‘codification’ conventions, the aspect of conciliation which stands out most is clearly its similarity with arbitral procedures, not only from the viewpoint of the composition of the body entrusted with examining the dispute (a board of independent experts, usually qualified jurists of recognized competence in international law), but also from the standpoint of the rules of procedure and the outcome of the process.7 In particular, the provisions on conciliation in the above mentioned codification conventions usually establish that the conciliation commission, in carrying out its functions, shall hear the parties and impartially examine the claims and objections; it can also summon and hear witnesses and experts, 6 On conciliation as a dispute settlement means provided for by the 1969 Vienna Convention on the Law of Treaties and other ‘codification’ conventions, see: René-Jean Dupuy, ‘Codification et règlement de différends. Les débats de Vienne sur les procedures de règlement’, 15 (1969) Annuaire français de droit international 70–91; W. Michael Reisman, ‘Procedures for Controlling Unilateral Treaty Terminations’, 63 (1969) American Journal of International Law 544 et seq.; Shabtai Rosenne, ‘The Settlement of Treaty Disputes under the Vienna Convention of 1969’, 31 (1971) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1 et seq.; Francesco Capotorti, ‘L’extinction et la suspension des traités’, 134 (1971-III) Recueil des cours de l’Académie de Droit International de la Haye 559 et seq.; Roberto Lavalle, ‘Dispute Settlement under the Vienna Convention on Succession of States in Respect of Treaties’, 73 (1979) American Journal of International Law 407 et seq. Ugo Villani, ‘A New Conciliation Procedure: the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character’, 4 (1978–1979) Italian Yearbook of International Law 31 et seq.; Roberto Lavalle, ‘Conciliation under the un Convention on the Law of the Sea: A Critical Overview’, 2 (1997) Austrian Review of International and European Law 25 et seq. 7 See Francesco Capotorti, ‘Sugli aspetti quasi arbitrali di talune forme di conciliazione’, 14 (1975) Comunicazioni e Studi – Il processo internazionale. Studi in onore di Gaetano Morelli 137 et seq.

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and visit, with the consent of the parties, the localities in question. And, if it is able to conclude its work, the commission shall draft and submit a report to the parties, including conclusions regarding the facts and all the questions of law. Another element emphasizing the similarity of the rules on conciliation in codification treaties with rules which are typical of arbitral or judicial procedures concerns the mechanism of so-called ‘compulsory’ conciliation. In fact, all these conventions provide for mechanisms of ‘compulsory’ conciliation. As is well known, by virtue of such a mechanism, when a dispute arises as to the interpretation or application of the treaty in question, and States Parties are unable to achieve a settlement through means of their choice within a given period of time, a conciliation procedure may be invoked and set into motion unilaterally, that is by an action of only one of the parties to the dispute. And once the procedure is initiated, a number of rules ensure that it continues without likely risks of interruption or delays, and terminates within a reasonable time. This kind of jurisdictional approach to the dispute is also found in the provisions on conciliation provided for by the 1992 Stockholm Convention on Conciliation and Arbitration within the osce.8 The Stockholm conciliation procedure does in fact provide for appropriate guarantees that any settlement proposed to States Parties will be impartial, reasonable, and in conformity with the existing rules of law. Both the provisions dealing with the appointment of a conciliation commission (e.g. the composition of the conciliation commission of an odd number of neutral members greater than the number of State Parties appointed, under Article 21) and the fact that the settlement

8 On conciliation within the framework of the 1992 Stockholm Convention, see Torsten Lohmann, ‘The Role of Conciliation and Similar Proceedings in International Dispute Settlement and the osce Procedures’, in: M. Bothe et al. (eds.), The osce in the Maintenance of Peace and Security. Conflict Prevention, Crisis Management and Peaceful Settlement of Disputes (The Hague/London/Boston, Brill/Nijhoff, 1998) 409 et seq.; Helmut Steinberger, ‘The Conciliation Procedure Established by the Convention on Conciliation and Arbitration within the osce’, in: L. Caflisch (ed.), Règlement pacifique des différends entre Etats: Perspective universelle et européenne (The Hague/London/Boston, Kluwer, 1998) 67 et seq. See also Alain Pellet, ‘Notes sur la Cour de conciliation et d’arbitrage de la csce’, and Pierre-Michel Eisemann, ‘La Convention de Stockholm relative à la conciliation et à l’arbitrage au sein de la csce. Quelques observations iconoclastes’, in: E. Decaux, A.L. Sicilianos (eds.) La csce: Dimension Humaine et Règlement des Différends (Paris: 1993) 189 et seq., 219 et seq.; Charles Leben, ‘La mise en place de la cour de conciliation et d’arbitrage au sein de l’O.S.C.E., 100 (1996) Revue générale de droit international public 135 et seq.

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proposal submitted by the commission must be in accordance with international law and the osce commitments (Article 24) point in this direction. iv

The ‘Jurisdictional’ Model of Conciliation: Success or Failure?

The main reason for the success – at least within the framework of many codification treaties – of this quasi-arbitral model of conciliation is probably its ability to reconcile and adapt two distinct requirements. There is, first, the need to assure an objective and impartial application of rules, such as those of a codification convention, the observance of which means to all States Parties to the treaty much more than the achievement of a merely transactional settlement in a dispute between two of them. But neither should one overlook the need for States to have at their disposal a settlement mechanism which is less rigid and more manageable than judicial settlement or arbitration. From this point of view, an appointed conciliation commission is in fact enabled to recommend terms of settlement which, albeit not a slavish application of the treaty provisions and other rules of positive law, do not distort the legal rationale of the whole conventional system to be applied. In addition, any conciliation mechanism is of course fully respectful of the ‘sovereign’ liberty of each State Party to the dispute to accept the proposed solution or not. Having said this, it is not easy to determine whether this quasi-arbitral model of conciliation is actually an effective and fitting procedure for settling interstate disputes. The remarkable number of multilateral treaties which provide for and regulate recourse to such types of conciliation would seem to offer an affirmative answer. However, when one bears in mind that conciliation procedures provided for by codification treaties have never been used by States, and that up to now there have been no cases handled by conciliation commissions concerning the interpretation or application of such treaties, it ‘becomes clear – to say as John Merrills says – that conciliation has failed to become the routine procedure that its promoters expected’.9 If this is true, one should not, on the other hand, ignore the preventive effect ascribable to the above mentioned treaty provisions on conciliation. As it has been rightly observed, the value of these provisions resides more in their mere existence than in any probability that the settlement procedure in question will frequently be put to use.10 As Sir Ian Sinclair put it many years ago, commenting on the Vienna Convention on the Law of Treaties: ‘[p]aradoxically, 9 10

John G. Merrills, International Dispute Settlement (supra note 1) 80. Tullio Treves, Le controversie internazionali (Milano: Giuffrè, 1999) 192–193.

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the less they are utilised the more effective they will be. No State is anxious to indulge in lengthy and expensive international conciliation or litigation. This imposes a very heavy burden upon Foreign Offices and upon their legal advisers, with the outcome far from certain. What is important – what is indeed crucial – is that there should always be in the background, as a necessary check upon the making of unjustified claims, or upon the denial of justified claims, automatically available procedures for the settlement of disputes’.11 v

The ‘Jurisdictional’ Model of Conciliation from a Conflict Prevention Perspective

Apart from the question of success or failure of conciliation as a means of settlement of disputes concerning the interpretation or application of codification treaties, the manner in which conciliation combines a diplomatic and a jurisdictional approach to dispute settlement may indeed lead to enhance it as a tool to settle not only legal disputes but also political disputes, likely to endanger international peace and security. From a conflict prevention perspective, conciliation may in fact prove not only to be a more appropriate instrument than judicial settlement but also merely transactional means, like mediation. With respect to mediation, the added value of conciliation would be, in particular, that it is devised to produce a settlement proposal whose persuasiveness does not depend on the political force or leverage of a third State (or group of States). Its persuasiveness depends instead on the ‘justness’ of the proposal, which results from the combination of an objective assessment of all the aspects of the dispute in the light of international law and principles of equity, and an attempt to ensure that the outcome of such an assessment produces an arrangement which could be spontaneously accepted by the parties. In other words, compared to mediation, conciliation would be better suited to achieving a settlement which may willingly be accepted by all parties to the dispute, without anyone seeing the solution achieved as being imposed from outside (or from above). In addition, by virtue of its ability to produce an objective and impartial settlement proposal, conciliation would also better respond to the superior interest that States in their international relations do actually conform themselves to existing and accepted rules, and that any disagreement be settled 11

Ian Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984) 235.

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as much as possible in conformity with such rules. From this viewpoint too, therefore, conciliation would seem well suited to favouring a solid settlement, since the proposal resulting from it would presumably receive political and moral support by the so-called ‘international community’. vi

Conciliation and ‘Directed’ Conciliation within the Framework of the Stockholm System

These kinds of arguments in favour of conciliation as a means of conflict prevention probably explain the signs of rediscovery of conciliation that one can find, at the end of the last Century, in some international instruments concerned with the maintenance of international peace and security.12 Such signs are found especially within the osce. We refer, in particular, to the adoption of the 1992 Stockholm Convention on Conciliation and Arbitration, and to the establishment, within the framework of this Convention, of a mechanism of compulsory conciliation. Outside Europe, one could also refer to the Constitutive Act of the African Union,13 and in particular to Article 4(3) of this Treaty, affirming the principle of the ‘peaceful resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly’. As has been rightly pointed out, with such a provision the oau Member States meant precisely to legitimize ‘both the practice of the creation of ad hoc conciliation commissions by the oua Conference, and the establishment of the Mechanism for Conflict Prevention, Management and Resolution, which occurred in 1993 by mere resolution of the oau Assembly’.14 With regard to the osce, the establishment of the Stockholm ‘compulsory’ conciliation procedure is indeed noteworthy from many points of view. First of all, it is noteworthy because the pan-European system of the osce is one of the most attentive, on an international organized level, to running 12

13 14

We say ‘rediscovery’ instead of ‘discovery’ simply because, ever since its origins, conciliation has also been conceived as favouring the prevention of possible conflicts and the ‘cooling off’ of dangerous disputes between States. In this respect, one needs hardly to recall the ‘Bryan Treaties’ or the Gondra Treaty, which constituted some of the first examples of ‘cooling-off’ treaties. See Jean Efremoff, ‘L’organisation de la conciliation comme moyen de prévenir les guerres’, 59 (1937-I) Recueil des cours de l’Académie de Droit International de la Haye 145 et seq. Of 11 July 2000, http://www.peaceau.org/uploads/au-act-en.pdf. Raffaele Cadin, ‘L’atto istitutivo dell’Unione africana’, 8 (2001) Rivista della cooperazione giuridica internazionale 77, at 85 (as translated by us; italics added).

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a global security architecture within which great importance is attached to amicable dispute settlement means as an instrument for conflict prevention. In light of this, it is significant that, under the Stockholm Convention, every participating State may unilaterally set the conciliation procedure into motion for any dispute which might arise between it and one or more other States Parties to the Convention (Article 20(1)). This should increase, at least in theory, the possibilities that political and even politically dangerous disputes between osce participating States who are also parties to the Stockholm Convention may be submitted to and resolved by a peaceful settlement means. Furthermore, the way in which the Stockholm system involves the osce political institutions in the conciliation procedure is really noteworthy. According to Article 25 of the Convention, each time the conduct of a State Party should cause the failure of the conciliation procedure, the State in question would have the political duty to openly explain its choice before the political forum consisting of the osce Council. The common position emerging in such a highly representative body could thus give the procedure the political but impartial pressure apt either to induce the recalcitrant state to accept the settlement proposed by the conciliation commission, or to persuade the States Parties to the dispute to converge towards an adjusted variant of such settlement, which is the outcome of the political reappraisal made by the Council. In short, the political body’s intervention would provide the conciliation procedure with the leverage lacking in ‘classic’ conciliation. Such leverage is indeed decisive when the need is to settle a political dispute, which is likely to escalate into a threat to international peace or security. And compared to negotiation or mediation, the conciliatory procedure’s leverage would have, as we stressed before, the substantial merit of being derived from the concern of the osce community of States over the dispute in question, and from the common interest of such States in a settlement which is both amicable and in conformity with the proposals emerging from a procedure which has been made available to States precisely because it is deemed suitable for reaching a just and feasible solution. Within the osce, the belief in the need for political bodies to increase the chances of bridling and effectively resolving dangerous disputes by means of a conciliatory procedure is also confirmed by the provisions on ‘directed’ conciliation that are the object of Annex 4 of the Stockholm Convention. According to this political (but not legally binding) document, if two osce States have been unable to settle a dispute within a reasonable time, the osce Council of Ministers or the Committee of Senior Officials (cso, now the Senior Council), deciding by ‘consensus-minus-two’ (i.e., without the two contending States) can ‘direct these States to seek conciliation’. As has been stressed, whenever

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the Council or cso (the Senior Council) has actually exercised its power of ‘direction’, this implies the assumption of a political responsibility for the participating States which do not intend to comply with the ‘directions’ of the Council and/or the cso (the Senior Council). vii

Enhancing ‘Directed’ Conciliation within the United Nations and the Security Council’s Practice

Twenty years after the emergence of the Stockholm Convention, the potentialities of the ‘mix’ obtained, within the framework of the Stockholm system, by combining classic conciliation with political intervention by organs representing a broad community of States, should not only be taken seriously and enhanced, at long last, by the osce itself and its members, but could also be exported into other international organized contexts. We refer in particular to the United Nations and the dual task with which the Security Council is entrusted: performing both a ‘conciliatory’ function in potentially dangerous situations or disputes (under Chapter 6 of the un Charter), and a peace-enforcement action where the crisis has escalated, peace is actually threatened, or an armed conflict is in progress (under Chapter 7 of the Charter). In this regard, recourse by the Security Council to a method of ‘directed’ conciliation, of the kind envisaged within the Stockholm system, could indeed be a way towards a revitalization of its conciliatory function, with a view to preventing tensions and conflicts between States, or within States.15 In exercising the powers conferred upon it by Articles 33(2), 36(1) and 37(2) of the Charter, the Security Council could for example recommend to the parties to a dangerous dispute (State and non-State entities) to: (i) either use a given and pre-established conciliation procedure, available to the parties in the context of a regional agreement or organization (such as the procedures existing within the osce or the oau); or (ii) resort to an ad hoc conciliation commission, to be set up by means of an agreement between the parties, possibly with the assistance of the un Secretary General; or (iii) use a conciliation commission set up by the Security Council itself. In the latter case, such a commission could, for example, be patterned after the conciliation commission

15

On this issue see Giuseppe Palmisano, ‘Reflections on Directed Conciliation in a Conflict Prevention Perspective’, in: Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (Napoli: Editoriale scientifica, 2004), vol. ii, 1095, at 1118–1127.

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provided for by the Stockholm Convention and proceed in conformity with pre-established model rules of procedure. In the resolution requesting the parties to utilize a definite conciliation procedure, the Council could also instruct the conciliation commission to report periodically and promptly to the Council on the progress and outcome of the procedure, mostly in the event of a failure due to lack of cooperation or unjustified refusal to accept the settlement proposal by one or all of the parties involved. In addition, and more importantly, the Council could urge the parties to refrain from any conduct which might aggravate the dispute and compromise the chances of peaceful settlement, thereby contributing to the existence of a threat to or breach of the peace. Such conduct would include hindering the conciliation commission from doing its work, or resorting to unilateral coercive measures before a peaceful settlement procedure has been tried or while it is ongoing. Recourse by the Security Council to such a ‘directed’ conciliation would have, in our view, a number of advantages in view of preventing dangerous disputes from degenerating into violent conflicts. First, a ‘direction’ coming from the Security Council may prove to be the appropriate political step in order to induce the parties to amicably settle their dispute and, hence, to cool off the crisis, at least temporarily. This is because the Security Council is the most powerful and representative international organ, insofar as the maintenance of international peace and security is concerned. In addition, by choosing the method of conciliation, the Council and its permanent Members would give convincing proof that they are not attempting to impose a merely political and one-sided solution: they would rather commit themselves to support settlement proposals resulting from a procedure that has been accepted by the parties and that offers sufficient guarantees of objectivity, impartiality and ‘justness’. Lastly, by using ‘directed’ conciliation, the Security Council would be calling upon the parties to abstain from any arbitrary conduct which could prevent the conciliation procedure from terminating or achieving a positive outcome, or which could otherwise cause an aggravation of the dispute likely to threaten the peace. Such a calling would allow the parties to foresee the possibility for the Security Council to determine subsequently the existence of a threat to the peace under Article 39 of the Charter, and to combat therefore – under Chapter 7 of the Charter – any stubborn refusal by one of the parties to engage in an amicable settlement attempt, addressing any hostile acts by one of the parties against the other while the procedure is ongoing. Aware of such a possibility and of the risk that the Security Council would decide to adopt coercive measures under Chapter 7 of the Charter, the recalcitrant party or

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parties could indeed be induced either to proceed with the recommended conciliation procedure with genuine cooperation, or to convince the other party to resort to a different, but still effective, amicable settlement method. In brief, and to conclude, use of the model of ‘directed’ conciliation, exported mutatis mutandis from the osce/Stockholm system to the United Nations system and the Security Council practice under Chapter 6 of the Charter, could present at least two positive outcomes. The first would be that of having an additional, possibly effective, tool for strengthening conflict prevention efforts, which rightly are a priority for the United Nations and other international organizations concerned with the maintenance of peace and security. The other positive outcome would be that ‘directed’ conciliation might prove to be an instrument suitable to enhance, in a legally proper way, the conciliatory potential of the Security Council, which seems indeed at risk of being even less resorted to in the globalized world of today than it was in the Cold War era.

chapter 5

Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation Daniel Thürer* „Entscheidend ist, dass wenigstens das Verfahren obligatorisch ist. Anders ausgedrückt muss ein Staat das Recht haben, es in Gang zu setzen, und der andere muss verpflichtet sein, sich darauf einzulassen.“ rudolf l. bindschedler1

∵ Conflict is an inevitable part of human life. It is inherent in the open democratic process and may bring progress. If it is not controlled, it can also produce destructive effects. Law deals with conflict, for example, in the domestic sphere: family disputes, neighbourhood disputes, commercial disputes and labour disputes are a few well known areas with legal conflicts. In the international domain further well known examples are border disputes or disputes in the field of international commerce, investment, technology, public common spaces such as international waters and water ways. Many disputes also have national and international components and dimensions. It is a central concern of the rule of law to safeguard peace and security (stability and order on the basis of law and justice). In order to fulfil this function, conflicts should be settled in a peaceful way. The main instruments in domestic law are court systems that have the power to make binding decisions according to procedures provided by law. But less formalized ways and manners of settling disputes were used in earlier times and some still survive today. The ombudsman institution comes to mind which developed * I cordially thank for inspiration my wife Susi Thürer-Reber who always had, as a lawyer, an open mind for alternative ways of dispute settlement. 1 Rudolf L. Bindschedler, ‘Friedliche Streitbeilegung’, in: Max Petitpierre, ‘Seize Ans de neutralité active. Aspects de la politique étangère de la Suisse (1945–1961)’ (Neuchâtel: 1980) 155.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_006

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at first in Scandinavian countries, or the ‘Friedensrichter’, ‘juge de paix’, ‘justice of the peace’, as it is known in many European countries as well as equivalent figures in African or Asian countries.2 In the international community we observe a different picture: Courts and tribunals (criminal, civil, administrative or constitutional, with general or with specialized jurisdiction, ad hoc, or permanent) are the exception. A variety of more or less informal means and methods of settling disputes, in some cases ‘à l’amiable’, amicably, or under more or less pressure, are the rule.3 It is the purpose of this essay to give an overview of the various forms of peaceful settlement with a special emphasis on conciliation, then to focus on its institutionalisation within the osce process. Is Switzerland, so we may ask turning to the national sphere, a model/pioneer in this area? On the whole, it has been observed that conciliation has so far not fulfilled in practice the hopes placed in it by doctrine or regulation. The present essay should, however, not be concluded without exploring perspectives of a more promising character: can the powers and/or functions of instruments established within the osce not be enlarged, and deepened, adding, by interpretation, or new rules, competences to the traditional functions, thereby opening the system to business and other transnational areas? On a more profound level, could it be that the system of law and the structure of international/national communities are undergoing a transformation process in which mechanisms of alternative dispute settlement receive a more vital function? Finally, it is proposed that the means of dispute settlement, be they more traditional or classic, or more innovative and belonging to a new generation, should become part of public communication and awareness and, first of all, of our systems of education, research and training. i

International Settlements of Disputes: A General Framework

Modern international law is based on the idea of peace which is one of its main purposes. Article 2 (3) of the Charter of the United Nations (hereinafter: 2 See Christian Tomuschat, ‘Menschenrechte und kulturelle Traditionen’, 43 (2016) Europäische Grundrechte-Zeitschrift 6 et seq.; Victor H. Umbricht, Multilateral Mediation – Practical Experiences and Lessons (Dordrecht et al.: Martinus Nijhoff, 1989) 222 et seq. 3 See John Collier and Vaughan Lowe, The Settlement of Disputes in International Law – ­Institutions and Procedures (Oxford: oup, 1999). For broad surveys see, e.g., Ian Brownlie, Principles of Public International Law (Oxford: oup, 7th. ed. 2008) 701 et seq.; Antonio Cassese, International Law (Oxford: oup, 2nd ed. 2005) 278 et seq.

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Charter) provides that all ‘Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. Furthermore, Articles 33 to 38 of the Charter deal with questions of dispute settlement techniques and the authority of the Security Council. Article 33 stipulates that the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. This rudimentary list of instruments for bringing about the peaceful settlement of disputes is more than a ‘tool box’ and less than a concrete and coherent system. It starts with the most elementary method – settling international disputes by resorting to the least interfering method, namely, negotiation between the disputing parties – and it ends with the legally most developed procedure, namely, a ‘judicial settlement’. J.L. Brierly4 noted: ‘The problem of effecting the peaceful settlement of a dispute is addressed through two methods; we may either induce the disputing parties to accept the terms of settlement dictated to them by a third party, or we may persuade them to come together and agree on terms of settlement for themselves. In the international field, the former method takes the form either of arbitration or judicial settlement; the latter method takes the form of negotiation, good offices, mediation, or conciliation’. Other authors make a distinction between disputes with a legal and those of a political character, the former being justiciable and the latter not,5 and still others distinguish between negotiation of the disputing parties involved and methods with third party involvement that embrace all the other described modes of dispute settlement. However, the dualism suggested by Brierly seems to me to be the most useful and straightforward method to bring order into this complex set of instruments. Central elements of this system are ‘conciliation’ and ‘mediation’ the former falling in the first, the latter in the second of Brierly’s categories. What are its characteristics? What are its specificities? Helmut Steinberger6 notes: ‘The essence of conciliation, as distinguished from other means of peaceful settlement, such as mediation, on the one hand, 4 Andrew Clapham, Brierly’s Law of Nations (Oxford: oup, 7th edition 2012) 392. 5 This is a central point in Hersch Lauterpacht’s seminal book on ‘The Function of Law in the International Community’ (Oxford: Clarendon Press, 1933; new edition: Oxford: oup, 2011) and the introduction by Martti Koskenniemi, xxix, especially xxxiii et seq. 6 Helmut Steinberger, ‘The Conciliation Procedure Established by the Convention on Conciliation and Arbitration within the osce’, in: Lucius Caflisch (ed.,), The Peaceful Settlement of

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and arbitration or resort to an international court, on the other, is the submission by the parties of their dispute to an organ already constituted or to be constituted, whose task it is to clarify in an impartial measure the elements of the dispute, be they factual, legal or other, in order to assist the disputants in finding a solution by themselves or, if no solution is found, to submit recommendations for a settlement to them. The parties to a dispute are at liberty to accept recommendations or not, or they may have agreed in advance to consider the proposal of the conciliator as binding’. Lucius Caflisch7 thus concludes: ‘[D]u fait même de son indépendence, il (le conciliateur) ne dispose d’aucun moyen – autre que son intelligence, son bon sens et ses dons de persuation – pour faire agréer ses recommendations’. And, referring to another distinguishing feature he goes further to observe that: ‘au cours de la médiation, le différend – et le conflit armé qui a pu en résulter – persiste, tandis que les Etats parties au litige sont tenus, pendant la durée du processus de conciliation, de s’abstenir de tout comportement susceptible d’aggraver la situation, ce qui fait que la conciliation se rattache d’avantage à l’objectif du maintien de la paix, encore que cet objectif soit commun aux deux modes de règlement diplomatique puisqu’ils aspirent tous les deux au rpd’. To sum up: A central feature or characteristic of a conciliation commission is that it only recommends and has no power to decide on the terms of the settlement. And regarding the way it is supposed to handle this function, the International Law Institute commented: The President of the Commission may accompany his communication with a statement, either orally or in writing, of the principal reasons which, in the opinion of the Commission, appear likely to persuade the Parties to accept the settlement. He will refrain in this statement from setting forth definitive conclusions with reference to disputed facts or from formally deciding questions of law involved, unless the Commission has been requested to do so by the Parties.8

Disputes between States: Universal and European Perspectives (The Hague et al.: Kluwer Law International, 1998), 67 et seq. 7 Lucius Caflisch, ‘Cent ans de Règlement pacifique des différends interétatiques’, 288 (2002) Recueil des cours de l’Académie de Droit international de la Haye 282. 8 Art. 7, Regulations on the Procedure of International Conciliation, International Law Institute, ii (1961) Annual Report 232; http://www.justitiaetpace.org/idiE/resolutionsE/ 1961_salz_02_en.pdf.

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ii The osce System The principles, mechanisms and features just outlined above apply to all States. However, within the framework of universally applicable rules and principles a variety of regional arrangements or regional organisations have been developed. They vary in reach and character and result from the traditions and needs of their political, social and cultural environments. Whereas African and Asian States prefer to rely on settlement methods where final decisions rest in their own hands and are not put in the hands of judicial, arbitral or other extraneous bodies,9 in Europe a highly more complex and differentiated culture of dealing with conflict has emerged. On this continent, strictly binding, legal procedures are typical of the legal and political culture. Regional arrangements with their variable internal structures and ways of functioning and their specific connectedness with civil society have become parts of differentiated networks of peace and development. They all contributed, after World War ii, in a highly complex and pluralistic world, to a state of affairs which might be called, to use the term coined by Steven Pinker,10 the ‘Long Peace’, or the ‘New Peace’. On our continent, the Organisation for Security and Co-operation in Europe (osce), which was originally called ‘Conference for Security and Co-operation in Europe’ played an important role in this process of transition. It focuses, with its combined strategy, on containment of force in international relations, promotion of civil society in the field of human rights, and the protection of minorities as well as on economic and technological co-operation. Within the osce new forms of prevention and settlement of disputes have been developed. Since its inception, the peaceful settlement of international disputes has been one of its main purposes. The efforts culminated in the Convention on Conciliation and Arbitration within the osce (‘Stockholm Convention’).11 Referring to Arts. 2 (3) and 33 of the Charter, the parties emphasized their solemn commitment to settle their disputes through peaceful means and their decision to develop mechanisms to settle disputes between participating States, emphasizing that they do not, in any way, impair other existing institutions or mechanisms.

9 10 11

Umbricht (supra note 2) 222. Steven Pinker, The Better Angels of Our Nature – Why Violence Has Declined (London: Viking, 2011) xxii et seq. See Jean-Pierre Cot, entry ‘Conciliation’, in: Rüdiger Wolfrum (ed.), Encyclopedia of Public International Law, Vol. ii (Oxford: oup, 2012) 576–582.

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The design of the Court, which was created in 1992 and has its seat in Geneva, is outstanding. As an institution of an organisation established by virtue and functioning by means of ‘soft law’ it is the only osce organ that is based on a formal international convention with a multilateral character. It provides for a two-level architecture. This is not unique in the landscape of European (and comparable non-European) institutions.12 The European Court of Human Rights was, in its original structure, similarly built on two levels: the Commission and the Court. But contrary to the Strasbourg system, the Chambers of the osce Court function side by side. They are linked together by a common organisational setting and, at least theoretically, a procedure initiated within a Conciliation Commission can be taken up again in the Court of Arbitration without the Court being bound by proceedings and the report of the Conciliation Commission. As a matter of fact, these institutions function, bound by their own rules of procedure, separately within their own sphere of competence. They each operate in their own world and on the basis of their own philosophies. The work of an Arbitral Tribunal is rule-based – rules meaning legal provisions to be interpreted and applied along the lines established by relevant doctrine and jurisprudence. Within the model of conciliation, there is a conciliator in charge, be it a single person or – which is the rule – a commission composed of three individuals (“tres faciunt collegium”) or more wise men and women, which draw their intellectual resources (knowledge, wisdom, sensitivity, imagination) from various paths of life and personal or public experiences. They may base their considerations and reports on norms which might – contrary to the work of an Arbitral Tribunal – also be of a non-binding nature such as basic osce commitments.13 They may even base their work on existing law or act in the ‘shadow of the law’, i.e., imagine in their deliberations how a judge would deal with the case, reflecting on what a court would do. However, their work and way of operation is different: governed not primarily by strictly legal rules and mechanisms but with an open eye to information, experience and expertise of various paths of life, be it expertise in smaller, technical cases, or be it political and diplomatic experience in big cases. 12

13

As to the (regional) systems and cultures for human rights protection see Christian Tomuschat, Human Rights – Between Idealism and Realism (Oxford: oup, 3rd ed. 2014) 30 et seq.; Thomas Buergenthal and Daniel Thürer, Menschenrechte – Ideale, Instrumente, Institutionen (Baden-Baden and Zürich: Nomos and Dike, 2009) 185 et seq. See Article 24(1) of the Stockholm Convention and 14 (l) of the Rules of the Court according to which the purpose of conciliation is ‘to assist the parties to a dispute in finding a settlement in accordance with international law and their osce commitments’ (emphasis added).

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The Court here under consideration is composed of conciliators and arbitrators appointed by the Parties to the Convention.14 The central feature of this regime established by the Stockholm Convention, supporting the system, is mandatory conciliation. This means that any Party may unilaterally submit an application to the registrar requesting the constitution of a conciliation commission if a dispute exits with one or more State Parties. There is a duty of the Party to the conflict to submit to conciliation. The procedure is of a compulsory nature whereas the results in substance, as has been explained before, may or may not, be accepted by the Parties. iii

The Swiss Experience

Switzerland, although assimilated more and more to the modern type and style of State and society in Europe, developed, in the course of history, its own identity, consisting of democracy, federalism, multilingualism and, flowing from these elements, its own culture, spirit and style of compromise and mutual understanding as well as, towards the outside, a legal position of permanent neutrality. Neutrality was, in the tradition of Swiss foreign politics, complemented by the guidelines of universality and availability. This was so from the days of Emer de Vattel15 to the seminal Report of 1919, drafted by Professor Max Huber, for the Swiss Federal Council on the project of Switzerland joining the League of Nations. In the 19th century, and during the two World Wars, Switzerland was proudly called in patriotic terms ‘Helvetia mediatrix’. Today, against the background of tensions and conflicts which have emerged within (central and eastern) Europe and worldwide, classic concepts of Swiss foreign policy might become alive again, even if in an adapted and modified form. The then Swiss Secretary of State Raymond R. Probst16 described this part of Swiss identity in the following words:

14 15

16

For more details see Cot, op cit. (supra note 11). See Lucius Caflisch, ‘Vattel and Peaceful Settlement of International Disputes’, in: Vattel’s International Law in a XXIst Century Perspective, ed. by Vincent Chetail and Peter Haggenmacher (Leiden and Boston: Martinus Nijhoff, 2011) 257 et seq. Raymond R. Probst, ‘“Good Offices” in International Relations in the Light of Swiss Practice and Experience’, in: 201 (1987) Recueil des cours de l’Académie de droit international de La Haye 265 et seq.

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A permanently neutral State may be in a favoured position to assist other nations in settling their conflicts. This is all the more so if the State emerged from a Confederation with a tradition, in past centuries, of settling internal conflicts between largely independent member states (cantons) wherever possible by means of conciliatory or arbitral procedures. There existed the custom in Switzerland of not concluding, be it internally or externally, any agreements at all without at the same time making provisions for the settlement of differences. In this way the settlement of disputes by peaceful methods had become an institution firmly entrenched in the Swiss legal culture.17 A specific practice thus emerged on the basis of this long experience. It consisted of arbitrators endeavouring primarily to dispose of the conflict “by concord” (in German: “nach Minne”, i.e. trying first to conciliate; only when this course failed, they have to judge the conflict “by law” (in German: “nach Recht”). The method elaborated in Switzerland within the laboratory of the Swiss Confederation was later, i.e., on the basis of its Constitution of 1848, used by the Federation in its treaty practice with other States. The engagement of Switzerland for peaceful settlement of disputes is rooted in a longstanding tradition and ‘Good Offices’ (understood in a larger sense) were proposed and offered abroad as part of the specific understanding of the Swiss role in international affairs.18 A special highlight of this international engagement was the successful conclusion of the Alabama affair by the rendering of 17

18

Many internal differences had been brought to terms in this manner in the course of more than half a millenium. Between the thirteenth and sixteenth century alone such settlements are estimated to number approximately 1,500. There is a long line in Swiss literature which deals with this tradition reaching a climax in the work of Dietrich Schindler (sen.), listed by Jean Monnier in his article on ‘Le rôle de la Suisse dans l’histoire de l’arbitrage de droit international public’, in; Recueil de travaux suisses sur l’arbitrage international, éd. par Claude Reymond and Eugen Bucher (Zürich: Schulthess, 1984) 3 (note 1). More recent publications are: Rudolf L. Bindschedler, ‘Friedliche Streitbeilegung’, in: Petitpierre (supra note 1) 155; id., ‘Verfahren der friedlichen Streitbeilegung’, in: Alois Riklin, Hans Haug and Hans Christoph Binswanger (eds.), Handbuch der schweizerischen Aussenpolitik (Bern and Stuttgart: Haupt, 1975) 875 et seq.; Lucius Caflisch, ‘L’avenir de l’arbitrage interétatique’, in: 25 (1979) Annuaire français de droit international 9 et seq.; id., ‘Vers des mécanismes pan-européens de règlement pacifique des différends’, 97(1993) Revue Générale de Droit International Public 1 et seq.; Jean Monnier, ‘Observation sur la codification et le développement progressif du droit international’, in: Mélanges Georges Perren (Lausanne, 1984) 237 et seq.; id., ‘Le rôle de la Suisse dans l’histoire de l’arbitrage de droit international public’, in: Recueil de travaux suisses sur l’arbitrage international (supra note 18) 3 et seq.

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the first significant arbitration award in Geneva on September 14, 1872. This tradition of commitment to the international rule of law and international availability flows from the insight that it is in the true interest of the small State to base its foreign relations on the rule of international law, to strengthen the rule of law in international relations and that the country is, without power politics on its agenda, predestined to cultivate friendly relations to all and thus to be – as Emer the Vattel put it – ‘l’ami de tous’. Switzerland, as a small State, situated in the centre of Europe and standing apart from the games of big powers with their nationalist and militarist ambitions and temptations, seemed to be naturally disposed to such a role. Max Petitpierre, the long-term Swiss Foreign Minister after the Second World War (1945–1961), gave expression to a common wisdom when he said: ‘Lorsqu’un litige s’élève avec un autre Etat, nous nous efforçons de le résoudre par voie de conciliation ou de l’arbitrage’.19 A concept that might in principle be expandable to other countries and be objectively applicable in the world and regional order in a wide sense. iv

Conciliation: Hope or Failure?

Conciliation is, in the general opinion and especially within the legal community, underrated. It is considered by many lawyers as an ‘unprofessional’ and ‘unlawyerly’ method of thinking and approaching challenges of dispute resolution. However, as far as the domestic forum is concerned, an American expert, considering real life pragmatism, rightly observed: The 1970s and 1980s mark the beginning of the movement around the country, when judges, court administrators, legal and non-legal educators, attorneys, paralegals, clients and others became interested in thinking about and developing a broad array of dispute resolution processes. The acronym “adr” was chosen. It stands for “alternative dispute resolution”.20 Astonishingly enough, alternative ways of settling disputes have not yet found, so it seems, their appropriate place in higher education and in textbooks, at least in the formal legal education and professional training of diplomats and

19 20

Quoted by Bindschedler, ‘Friedliche Streitbeilegung’ (note 18) 156. Martin A. Frey, Alternative Methods of Dispute Resolution (New York: Thomson – Delmar Learning, 2003) xxii.

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public servants, at least not in Europe. As far as conciliation is concerned experts sadly talk about a failure. Jean-Pierre Cot21 puts it this way: Conciliation has not lived up to the expectations of its founding fathers. It has never successfully operated in situations of major tension. The few instances where conciliation commissions were set up concerned technical matters with modest results. A handful of cases have been submitted to conciliation commissions since 1920. Even in economic and trade issues, conciliation had not been a success. This mode of alternative dispute resolution has not worked in the international field. And Lucius Caflisch22 came, after analysis, to the following conclusion: Abstraction faite des rares traités bilatéraux qui, à côté de l’arbitrage, proposent la conciliation, de même que de certaines procédures instituées sur le plan régional (osce), dans le cadre de traités de codification … et dans des accords multilatéraux réglant des matières spécifiques (droit de la mer, cours d’eau internationaux, commerce international), aucun progrès n’a pu être enrégistré, ces derniers temps, en matière de conciliation. Pour ce qui est du recours effectif à ce moyen, on doit même parler d’une régression, puisqui’un seul litige – la délimitation des espaces marins de l’île Jan Mayen entre l’Islande et la Norvège – a été acheminé, avec succès, vers cette voie. But are these rather sad evaluations of failings to date in fact the last word on the matter? Is there not more potential in embracing this concept, and thus giving reasons for hope? Consider the following: – Conciliation might be speedier and cheaper than court procedures, dragging along from (artificial) complexity to complexity with all its pitfalls utilized by clever litigators. – Conciliation naturally tends to preserve relations and does not leave behind winners and losers; it creates cooperative, win-win situations. – Conciliation favours, by its very nature, mutual understanding and trust instead of confrontation. – Conciliation allows for solutions tailored to the case of the parties: specific values, traditions, interests and circumstances may be taken into account. Conciliation gives room for imaginative ways of thinking about and 21 22

Op. cit. (supra note 11). Lucius Caflisch, ‘Cent ans’ (supra note 7) 359.

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handling of difficult problems, maybe by enlarging the frame of reference or by putting it on a higher level of awareness. By creative thinking I do not have in mind chaotic brainstorming which might inspire and promote negotiations, but rather cases motivated and driven by systematic thinking like one in which the present author participated some years ago, that can be categorized as conciliation strico sensu or not: A group of experts from the osce, the Council of Europe or academia deliberated in a remote Ukrainian place about a new constitutional arrangement (the name given to the project was the creation of a ‘State within the State’) for Transnistria within Moldavia: for the debates structured and led by an American diplomat some words like ‘sovereignty’, ‘autonomy’, ‘minority regime’ etc. were excluded. The idea was that by avoiding usage of certain particular notions and terms that carry with them certain values, preconceptions, clichés and prejudices standing in the way of broader visions, new horizons might be discovered to deal with the problems at hand. The debate became open to fresh concepts and alternative views on how to approach the situation: not necessarily producing immediate results but hopefully bearing fruit in the long run, at some time in future.23 Finally we should not overlook that, even if they are not expressly mentioned in the Rules of Procedure, certain ‘Ground Rules of Fairness’ are necessary in order to secure success. Victor Umbricht, an experienced mediator, reminds us of legal rules such as good faith in negotiation (no reservatio mentalis); the principle of equality of the parties with all its implications and consequences; sovereignty of State according to which the terms of the settlement must be freely chosen and not imposed from the outside; and the obligation to avoid any action that might jeopardise the prospects of a successful settlement.24 It is suggested that the situation is not as hopeless as it seems to be at present and that the day may come, sooner or later, where the osce Court may no longer be characterised as ‘a sleeping beauty’ as mentioned by its President Christian Tomuschat at a meeting some time ago, but that it might live up to the hopes and imagination of those who created it: as a useful legal/non-legal complement to the many legal institutions and procedures already existing in Europe on a international and supranational level. This leads me to some final, rather far-reaching considerations, and questions.

23 24

Details by Daniel Thürer, Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit, Vol. ii (Baden-Baden und Zürich: Nomos and Dike, 2009) 69 et seq. Ibid., 219 et seq.

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New Avenues to be Opened in a Restless World? ‘You see things: and you say, “Why”? But I dream things that never were, and I say: “Why not?”’ bernard shaw25

Here are some final, future-oriented remarks: 1.

2.

3.

25

26

27 28

The field of application of methods of peaceful settlement might be expanded: de lege lata by way of interpretation of existing instruments (The Stockholm Convention and Rules of Procedure), de lege ferenda by creating and shaping new international instruments as they might be added to those legally binding rules that are already in force, be it in the form of ‘soft law’26 as a guide for interpretation of the law or a source of evolution for more developed regimes. The scope of action for the Court might be widened: from the traditional setting in the world of inter-state relations towards including non-state actors: e.g. ngos, the business community. This might bring experience from daily real life into the work of the Court. It might enlarge and transform the perception of the mechanisms and working methods by opening new fields of transnational action. When mention is made of new actors and perspectives, representatives of civil society, consultants or legal advisors come to mind.27 The field is promising, but – as Professor Gabrielle Kaufmann-Kohler advised: no ‘miracle solutions’ are in sight. Broader levels of action as well as scientific and practical reasoning might be introduced through circles of participants that are not only concerned with dealings in a one-on-one format but which reach out into complex multilateral settings and which include analysis of hierarchally structured multilevel games in all their complexity.28 Quoted by Daniel Thürer, ‘International Humanitarian Law: Theory, Practice, Context’, Cours de l’Académie de droit international. Pocketbooks of the Hague Academy of International Law (The Hague: Nijhoff, 2011) 37. See Daniel Thürer, ‘Soft Law – Norms in the Twilight between Law and Politics’, in: id., Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit, Vol. 2 (Baden-Baden and Zürich: Nomos and Dike, 2009) 159 et seq. See Robert H. Mnookin and Lawrence E. Susskind (eds.), Negotiating on Behalf of Others (Thousand Oaks: Sage Publishing, 1999). See Mnookin and Susskind (supra note 27).

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4.

More active efforts should be made on the part of diplomacy, foreign offices to spread knowledge about alternative methods of peaceful settlement of disputes, showing the way it functions, demonstrating its strengths and weaknesses, experimenting with modes for further development in a an open field of legal-political engineering. An active search for ‘clients’ and ‘cases’ is a high priority and further efforts should be undertaken by various actors: i.e. by encouraging and managing diversity in the field of ethnic and other minorities; transborder arrangements in the fields of public planning or pollution control; conflicts connected to electronic communication; air traffic and airports; attribution of capacities in the field of electronic communication; fair taxation; trading and cooperating in the field of electricity and other forms of energy, etc. And is it too demanding and unrealistic to imagine, that questions of refugee flows and immigration could, one way or another, be taken up by the Court. Or is this too big a challenge to be addressed by the Geneva mechanism? Education and competence centres may be created in countries such as Switzerland and others in order to collect experience in the field of dispute settlement, designed to work on strengths of alternative methods as well as to select talent, develop competence and give them the necessary training to use them in harsh reality. An important aim should be to bring professionals from the public and private sector together so that they may, in multi-disciplinary fora, be enabled to learn from each other’s thoughts and experiences.

5.

Roger Fisher wrote in the preface to the third edition of his popular book and international bestseller ‘Getting to Yes – Negotiating an Agreement without Giving in’:29 A generation ago, the prevailing view of decision-making in most places was hierarchical. The people at the top of the pyramids of power … were supposed to make the decisions and the people at the bottom of the pyramids to follow the orders. Of course, the reality was always more complicated’. But Fisher continued: ‘In today’s world, characterized by flatter organizations…, the pyramids of power are shifting into networks of negotiation. This quiet revolution, which accompanies the

29

Roger Fisher and William Ury and for the revised editions Bruce Patton, (London: Penguin Books, 2001), ix s. See also Roger Fisher and Daniel Shapiro, Beyond Reason – Using Emotions as You Negotiate (London: Random House, 2005).

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better known knowledge revolution, could well be called the “negotiation revolution”.30 Such a challenging vision which contains profound insights into the structure of our world moving into a new period might be supplemented by the pragmatic observation of Robert Mnookin, Professor at Harvard University and author of the book ‘Bargaining with the Devil’ (2011), at a seminar conducted at Zurich University some time ago: ‘Be sceptical but not cynical’ and he continued: ‘True believers may exaggerate benefits but sceptics fail to understand promise’.

30

Such a vision is further developed by François Ost and Michel van de Kerchove, De la pyramide au réseau? Pour une théorie dialectique du droit (Bruxelles: Facultés universitaires Saint Louis, 2002), and Daniel Thürer, ‘Grundrechtsschutz in Europa – Globale Perspektive’, Europäischer Juristentag 2005 in Genf, in: id.: Europa als Erfahrung und ­Experiment – Grundidee Gerechtigkeit (Zürich: Dike, 2015) 195 et seq.

part 2 Dispute Settlement within the osce

∵

chapter 6

Prevention and Resolution of Conflicts in the osce and the Role of the Court of Conciliation and Arbitration Riccardo Pisillo Mazzeschi* i

Various Organs and Procedures of the osce and Their Role in Prevention and Resolution of Conflicts

1) The Mandate of the osce The osce is an international organisation for the maintenance of politicalmilitary, economic and environmental security, also including humanitarian aspects. It tackles different problems, such as: (i) armaments control; (ii) confidence and security building measures; (iii) border security management; (iv) protection of human rights; (v) prevention and resolution of conflicts; (vi) protection of minority rights; (vii) democratisation; (viii) control of elective mechanisms; (ix) the fight against terrorism; and (x) economic and environmental activities. Its approach to security is unique, being global and cooperative. The approach is global because it regards three dimensions of security: political/military, economic-environmental and human. It is closely linked to concepts of ‘preventive alert’ (or pre-alarm), prevention of conflicts, crisis management and post war reconstruction that form the so-called ‘conflict cycle’. The approach is cooperative because all participating States enjoy equal status. The osce is a regional organisation according to Chapter 8 of the United Nations Charter: the largest in the world in the field of security. The osce has 57 participating States,1 including the United States, France, Italy, Germany, Russia and the United Kingdom, and generally all decisions, usually politically but not legally binding, are taken by consensus.2 The osce is financed by contributions from the participating States. About 550 persons work in its institutions and about 2330 are engaged in various field missions. * This chapter has been prepared with the precious support of Prof. Paolo Venturi and Dr. Eugenio Carli, University of Siena. 1 The osce avoids the concept of ‘member States’. 2 The Prague Document on Further Development of csce Institutions and Structures, January 1992, introduced the consensus-minus-one rule according to which appropriate action may be taken, if necessary in the absence of the State concerned, in case of ‘clear, gross and uncorrected violations of relevant csce commitments’. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_007

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With regard to the latter, the osce ensures a network of operations in the western Balkans, the southern Caucasus and central Asia.3 In this way the osce offers and continues to offer fundamental support in the processes of democratic transition and/or construction of state apparatus after the political events of the nineteen nineties. The osce currently has 19 missions in the field.4 2) Decisional Organs 2.1) Summits These are not organs but rather meetings between Heads of State or Governments of participating States that define the priorities and provide the orientations at the highest political level. They are the most authoritative seat in the osce where the programmatic and directional lines of its decisional and regulatory activity are formulated. The first Summit was held in Helsinki in 1975; on that occasion, the 35 States belonging to the csce signed the Final Act that would constitute the basis for the subsequent creation of the osce. From 1990 to 2005, with the drawing up of the Charter of Paris for a New Europe and institutionalisation of the process, there were several meetings known as Review Conferences that developed the multilateral process begun in Helsinki. These conferences are held every two years and last at most three months, preceding the Summits. The role of the Summits in the prevention and resolution of conflicts is rather limited in practice, dealing as it does with meetings to define general orientations of an exclusively political nature. 2.2)

Ministerial Council (Formerly Council of the Conference on Security and Co-operation in Europe) Created in 1990 by the Charter of Paris for a New Europe and thus denominated by the Document of Budapest of 1994, the Ministerial Council brings together the foreign ministers of participating States once a year to analyse situations of interest for the osce and to make the appropriate decisions. It is the central decisional and political organ. It decides on the admission of new States, confers the status of observer, institutes and regulates the function of new organs, adopts conventions, makes nominations (such as that of the High Commissioner on National Minorities), issues mandates (such as that of the

3 The osce currently has missions in Kosovo, Albania, Macedonia, Montenegro, Bosnia, Moldova and Ukraine. 4 The first long operative mission of the osce was in Kosovo in 1992. It failed because war broke out in the Balkans.

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acting President to visit regions subject to special political tensions) and manages relations of collaboration with other international organisations. It plays an important role in maintaining contact between political decisions taken during Summits and the daily work of the osce, also acting as a point of reference for other institutions. The Ministerial Council does not have a conflict resolution function, since it could only have a limited role in conflict prevention due to the fact that it meets once a year. The main function of the Ministerial Council is that of making general decisions about the osce missions of conflict prevention. This is reflected in the guidelines adopted on the subject, in reform of the osce institutional structure and in more generic terms in the discussion of problems regarding security. The functions in turn can be important to the extent that they influence daily activities of prevention conducted by other organs, subordinate with respect to the Ministerial Council. 2.3) Permanent Council This is the main organ charged with the task of political dialogue and decisional processes. It meets formally each week in Vienna to discuss developments of the osce action and takes the appropriate decisions. It meets informally on a daily basis. As a daily management organ of the osce, it is composed of an assembly with general competence, including decisions of a financial nature. The Permanent Council is the central political organ, intergovernmental, on the subject of preventive alert, conflict prevention and management of crises in the osce framework. Developments of ongoing conflicts are discussed in its sessions, declarations are adopted and decisions are made. The Permanent Council absorbed most of the functions of the Senior Council,5 which dissolved in 2006. It can raise questions regarding geographical areas of the osce of any significance for a participating State, it can make political declarations and it can follow up reports and recommendations of the High Commissioner on National Minorities. However, its powers in the sector of conflict prevention are limited by the fact that it cannot impose sanctions. Moreover, all of its decisions require consensus.6 5 The Senior Council was created during the meeting of ministers in Budapest in December 1994. Its task was to discuss and define ‘political orientations and general budget criteria’. During its meetings, general questions of a largely political nature that impacted daily functioning of the osce organs, especially the Permanent Council, were discussed. See the Declaration of the Budapest Summit, Towards a True Partnership in a New Era, at www.osce.org/ it/mc/39557?download=true, § I.17. 6 But see supra note 2.

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In the last few years, its role in the prevention of conflicts and the management of crises has nevertheless evolved. Its main instrument is the specific or long term inquiry, as well as the establishment of directive groups and initiation of peace processes (e.g. the Minsk Process).7 In theory, the Permanent Council could decide to launch peace-keeping operations. The most generic instrument of conflict prevention is the possibility of initiating political consultations, as provided by the 1992 Decisions of Helsinki. 2.3.1) Minsk Group Among the directive groups instituted by the Permanent Council, the Minsk Group is noteworthy for its aim of settling the Nagorno-Karabakh dispute between Armenia and Azerbaijan. Jointly chaired by France, the United States and Russia,8 its activities are known as the Minsk Process. Its character is one of crisis management and peace building in a post conflict situation, rather than one of conflict prevention. The co-presidents regularly visit the region to continue dialogue with the parties, reporting to the Minsk Group and the acting president. Their task is to provide an appropriate context for conflict resolution, ensuring and favouring the negotiation process. They also have to make sure that the parties negotiate an agreement for an end to hostilities in order to enable the Conference of Minsk to take place. Finally, they have to promote the process of peace through deployment of peacekeeping forces. 2.4) Forum for Security Co-operation This is an autonomous decision making institute of the 1992 Summit of Helsinki, where representatives of participating States meet weekly to consult on questions of security and military stability. It helps favour the exchange of military information and mutual control between States, including dissemination of the Code of Conduct.9 The Forum also makes decisions and provides assistance for the problem of illegal arms proliferation (light arms and weapons of mass destruction) and oversees the dialogue, cooperation and exchange of military information between participating States. Basically, it is the military side of the osce. The Chairmanship is assigned every four months by rotation, in alphabetical order of the osce participating States.

7 It was instituted by the Budapest Summit of 1994 and continues its work. 8 The permanent members of the group are Germany, Belarus, Italy, Sweden, Finland and Turkey, as well as Armenia and Azerbaijan. Sometimes the Troika participates. 9 Code of Conduct on Politico-Military Aspects of Security, doc.FSC/1/95, 3 December 1994, at www.osce.org/fsc/41355.

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The functions of the Forum emphasise conflict prevention. The osce participating States use the Forum to discuss aspects regarding conflict prevention and crisis management, especially military aspects. 2.5) Chairmanship The Chairmanship is held for a year by a participating State and guided by its foreign affairs minister. It coordinates the decisional process and defines the osce priorities. The Document issued by the 1994 Summit of Budapest establishes that the Presidency must have ‘general responsibility of executive functions’. Although the Chairmanship plays a crucial role in the osce, it can only function with the political support of the participating States. The role of the Presidency in conflict prevention is important. An effective example was the creation of the osce Group of Assistance at Grozny (southern Russia) in spring 1995 during the Hungarian chairmanship. The mission played a major role in conciliating the positions of the conflicting parties in order to find a political solution. One of the instruments the Chairmanship can use to carry out its conflict prevention and crisis management functions is to nominate personal representatives for specific missions. These figures were used, for example, in the conflicts of Nagorno-Karabakh, Georgia, Moldova and Croatia. Their flexibility makes them an effective response to emergency situations in the short term. 2.6) Troika The Troika was instituted in 1992 and consists of the representatives of the present, past and future Chairmanship. It is an important tool of political coordination within the osce and is always headed by the acting Chairmanship. The activities of the Troika are under the responsibility of the Chairmanship. Since Troika meetings normally take place behind closed doors, it is difficult to concretely assess their effective functions in the framework of conflict prevention and resolution. 2.7) Parliamentary Assembly Currently composed of 323 parliamentarians from the 57 participating States (the Vatican may only send two representatives as guests of honour), it facilitates legislative cooperation and monitors elections in member countries. Among the tasks of the Parliamentary Assembly, the Preamble of the Rules of Procedure mentions evaluation of fulfilment of the osce objectives by participating States, discussion of questions raised in meetings of the Ministerial Council and Summits, development and promotion of mechanisms of conflict prevention and resolution, help in strengthening and consolidating

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democratic institutions in participating States, and contribution to the development of the institutional structures of the osce and their mutual relations and coordination. To meet these objectives, the Parliamentary Assembly may use resolutions, recommendations and a final declaration, which are adopted each year at the annual session. 3) Executive Organs 3.1) Secretariat The Secretariat, based in Vienna, assists the Chairmanship in the exercise of its functions under the direction of the Secretary General, providing consultancy and analysis, formulating decisions, disseminating the osce policy and practice and maintaining contact with cooperation partners and other international organisations. The Secretariat also provides assistance to member States in the implementation of decisions they adopted, as well as support for the process of dialogue and political negotiation between participating States. It also helps all other structures of the osce to implement their mandates and the political orientations received from participating States by appropriate application of the Common Regulatory Management System10 and in programmatic coordination. The Secretariat includes the Office of the Secretary General, the Centre for conflict prevention, the Office of the coordinator of economic and environmental activities of the osce, the Department of management and finance, the Department of human resources and the Office of internal supervision. With regard to the figure of the Secretary General, his/her authority rests on the collective decisions of participating States. He/she acts under the guidance of the acting Chairmanship, to which he/she provides support for all activities aimed at fulfilling the osce objectives. The Secretary General also ensures implementation of the osce decisions and acts as Head Administrator and Head of the osce Secretariat. Although mainly an administrative officer with reduced competences, in recent years his/her political role has increased. Indeed, the Secretary General may visit the osce countries, especially new ones, and raise questions of interest for the osce. In this sense, the Secretariat plays a role in the prevention of conflicts because it can provide an early report of any critical situations that could degenerate into genuine conflicts.

10

This mechanism was instituted to give form to all the osce activities and facilitate efficient management of human, financial and material resources provided for the objectives of participating States through the organs of the osce. See Decision no. 705 ‘Common regulatory management system’, PC.DEC/705, 1 December 2005.

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3.1.1) Conflict Prevention Centre It is worth noting the function of the Conflict Prevention Centre (cpc) within the Secretariat. Created in 1990 to reduce the possibility of a conflict arising, the cpc provides policy advice, support and analysis to the Secretary General, the Chairmanship, participating States and field operations.11 It acts as a wide early warning focal point of the osce,12 facilitating negotiation, mediation and other means of conflict prevention and resolution, as well as support for regional cooperation initiatives.13 It also assists the Forum for Security Co-operation. 3.2) Office for Democratic Institutions and Human Rights (odihr) Instituted in 1990 as the Office for free elections and subsequently reorganised in name and mandate, odihr, based in Warsaw, is the main institution of the osce designed to assist participating States in actuating their ‘humandimension’ commitments.14 Its activity is articulated in five macro areas: elections; democratisation; human rights; tolerance and non-discrimination; and questions regarding Roma and Sinti. Within these areas, the competence and activity of odihr concentrates on the following fields: election observation; monitoring of implementation of the osce human rights standards by participating States; the fight against slavery; questions regarding the participation of Roma and Sinti; protection of human rights in the fight against terrorism; promotion of religious freedom; freedom of movement and gender equality; the fight against racism and forms linked to intolerance; and promotion of civil society formations in member countries.

11

12 13

14

The Conflict Prevention Centre is responsible for organising the deployment, modification and closure of operations. It identifies lessons learned and best practices in order to develop the work done by these operations. See website factsheet The osce Conflict Prevention Centre, at www.osce.org/secretariat/ conflict-prevention. For a summary of the main mechanisms and procedures available within the osce related to risk reduction, early warning, preventive action and crisis management, see osce Secretariat’s Conflict Prevention Centre, osce Mechanisms & Procedures: Summary/Compendium, Vienna, 2011, SEC.GAL/132/11, 10–28, at www.osce.org/secretariat/ conflict-prevention. The “human dimension” is an important concept in the framework of the osce, since it is closely linked to that of security as conceived by the osce. It includes respect, defence of human rights and democracy. Participating States therefore affirm that lasting security is impossible without respect for human rights and democratic institutions and they are committed to drawing up a catalogue of human rights and democratic rules that constitute the human dimension.

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In recent years, odihr commitment has concentrated particularly on following up recommendations formulated in final reports of missions of election observation and on perfecting observation methods with special reference to new voting technologies. Besides monitoring, odhir promotes the implementation of the osce commitments in the framework of the ‘human dimension’, offering training, consultancy and legal support to participating States and civil society. The activities of odhir cannot be said to be closely and directly linked to prevention of conflicts, functioning rather as an organ of creation of conditions of democracy and peace in and between participating States. Nevertheless, through this function odihr somehow functions as a long term conflict prevention instrument, since by helping States in the development and promotion of human rights and the rule of law, it contributes indirectly to avoiding the outbreak of conflicts arising from the violation of such principles. 3.3) Representative on Freedom of the Media This organ is based in Vienna and has the role of monitoring the development of the media in participating States and of preventive alert in cases of violation of freedom of expression and of the media. The Representative on Freedom of the Media was set up in December 1997 to ensure a high level of conformity with the laws and standards on freedom of expression and the media accepted by the osce participating States. Like the High Commission for National Minorities (see sub 3.4), the Representative on Freedom of the Media acts as an instrument of prevention in cases of violation of freedom of expression, paying special attention to any obstacles or impediments to journalism. In order to fulfil this task, the activities of the Representative are articulated on two levels: on the one hand it continuously monitors and collects information on the state of the media in the osce countries within the framework of the ‘early warning’ function; on the other, it supports participating States so that they fulfil their commitments regarding freedom of expression and of the media. In this context, the States and other interested parties (such as ngos or private institutions concerned with the media) can submit requests, suggestions and comments about the strengthening or further development of commitments made by the States in line with the osce principles. The Representative receives communications on alleged cases of severe irregularity and on use of the media in violation of such principles. The Representative can also visit the osce participating States. The following questions are considered particularly urgent by the current Representative: security of journalists; freedom of the Internet; and decriminalisation of defamation. Finally, the Representative provides the osce

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States with legal analysis and recommendations on laws and proposed laws related to freedom of the media and also on topics such as access to information, state secrets, journalism code of ethics and radio/television grants. 3.4) High Commissioner on National Minorities The High Commission on National Minorities has its offices in The Hague and was instituted in 1992 with the aim of identifying, and, if possible, preventing situations of ethnic tension that could threaten the peace, stability or friendly relations within or between the osce countries. Besides acting as a conflict prevention mechanism, it can also promote rapid solutions which can ­interrupt processes of escalation and violence. The mission of the High ­Commissioner on National Minorities is to contain and reduce tensions in participating States and to alert the osce in cases where such tensions threaten to reach a level that the High Commissioner could not control with the means at his disposition and that threaten to break out into conflict. The High Commissioner fulfils his mandate by collecting information on the situations of national minorities from any source, including ngos and the mass media and evaluating the data and the role of the parties involved. In the course of his investigations, he may visit places in any participating State for the purpose of ascertaining the facts and promoting dialogue between the parties. He conducts his functions confidentially and impartially, operating independently of all the parties directly involved in the tensions, but at the same time requires political support from participating States, especially in situations in which he has to present reports and recommendations to the States involved and to the Permanent Council. Finally, the High Commissioner provides the osce States with consultancy regarding the laws on minorities and inter-ethnic relations and helps the States in their bilateral dialogue on questions connected with national minorities. The role of the High Commissioner is important in the framework of conflict prevention and preventive alert, since he intervenes at the first signs of ethnic tensions that could break out into conflict within a State. The High Commissioner also conducts such prevention activities in the long term, including protection and promotion of minority rights, and publication of guidelines, recommendations and best practices on how to maintain stability in multiethnic States. 4) OSCE-related Bodies 4.1) Joint Consultative Group Based in Vienna, the Joint Consultative Group is concerned with questions of observance of the rules of the 1999 Treaty on Conventional Armed Forces in

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Europe. It endeavours to resolve disputes on interpretation of the Treaty text, ensure effective observance of Treaty provisions and consider any controversies that may arise from the implementation of the Treaty. 4.2) Open Skies Consultative Commission This Commission meets periodically in Vienna and is composed of representatives of the 34 States who ratified the “Open Skies” Treaty that establishes a regime of non-armed fly-over of the territory of the signatory States. Provisional Conclusions on the Competence of the osce Organs in Prevention and Resolution of Conflicts As indicated above, the various organs of the osce perform important functions in the field of conflict prevention and resolution. Among these, the Permanent Council certainly plays the most important role. However, in all cases, they are organs that mainly act at a political level (Summits, Permanent Council, Chairmanship, High Commissioner on National Minorities) or at a military level (Forum for Security Co-operation, Conflict Prevention Centre). These organs are concerned more with prevention than with resolution of conflicts. However, with regard to the latter they employ only purely diplomatic and negotiating means of settlement (such as negotiation, good offices and mediation), not legal or quasi-legal means of settlement (such as arbitration and conciliation). An inadequately structured link between the various instruments of preventive alert and the political decision making process also emerges. The osce institutions, in particular, are not legally obliged to act on the basis of ‘early warnings’ from the various organs and this may undermine the effectiveness of the mechanism of conflict prevention. It may therefore be advisable to have measures to strengthen that link. With regard to the settlement of international disputes, it is worth recalling the function of the Joint Consultative Group, which is limited to observance of the Treaty on Conventional Armed Forces. A certain role can also be ascribed to the Conflict Prevention Centre, which as we have seen favours recourse to negotiation and mediation between States, whether to prevent or to settle cases already in existence. However, its activity is of a political/diplomatic nature, not bound by specific legal rules and procedures. Thus there do not seem to be clear cases of overlapping competences between the above-mentioned organs and the osce organs concerned with conflict resolution by legal or quasi-legal means of settlement (such as arbitration and conciliation) (see below Part III).

5)

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Historical Development of the osce Competence on Peaceful Settlement of Disputes

1) The Fifth Principle of Helsinki The Stockholm Convention of 1992 on Conciliation and Arbitration within the osce and the ensuing ‘institutionalisation’ of mechanisms of peaceful settlement of disputes that it envisages is part of a historical framework of acts and initiatives based on the Helsinki Final Act, Principle V (‘Peaceful settlement of disputes’), then incorporated also in the so-called Final Document of Vienna (1986) and the Charter of Paris (1990). Principle V underlines the need for peaceful settlement of disputes in conformity with international law, so as to ensure rapid and fair resolution according to the principles of justice, peace and international security. Towards this purpose, it provides a broad list of instruments and invites the States to put them into practice in good faith and in a spirit of collaboration. 2) The ‘Valletta Mechanism’ Historical evolution of the debate on the implementation of Principle V within the osce has been characterised by meetings of experts nominated by States, at different historical times (including Montreux 1978, Athens 1984, Vienna 1989, Valletta 1991, Geneva 1992 and Stockholm 1992). The prevalent orientation has always been to favour means of dispute settlement directly controlled by the conflicting States (i.e. purely diplomatic means such as negotiation, good offices and mediation) and to give a residual role to means of settlement entrusted to third and independent bodies (i.e. legal or quasi-legal means such as arbitration and conciliation). Until the crumbling of the eastern bloc, debate within the osce was substantially paralysed by radical differences on the nature and function of international law between the two blocs and therefore on its possible role in the peaceful settlement of disputes. This radical divergence prevented any progress in the implementation of Principle V. It is therefore not by chance that the most direct antecedent on the conciliation and arbitration function within the osce was in the ‘Report of the csce Meeting of Experts on Peaceful Settlement of Disputes, Valletta 1991’. In this report, in the part concerning ‘Principles for Dispute Settlement’, the conciliatory and arbitral function is framed as indispensable for promoting the peaceful settlement of disputes in line with international law and the principles of justice. In this perspective, forms of preventive consultation aimed at avoiding disputes are to be hoped for (point 4), as well as measures to manage disputes (point 5)

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and finally means for dispute solution (point 6) such as negotiation, inquiry, good offices, mediation, conciliation, arbitration and judicial settlement. However, the elements that the Stockholm Convention translated into law, as well as other aspects that could be useful for progressive development of the activities of the Court of Conciliation and Arbitration (cca), are found in the part concerning ‘Provisions for a csce Procedure for Peaceful Settlement of Disputes’. Section i of these Provisions establishes that if a dispute arises between participating States, they should first seek to settle the dispute through a process of direct consultation and negotiation, or seek to agree upon an appropriate alternative procedure for settling the dispute. Only when there has been no solution after a reasonable period of time should the parties request a ‘csce Dispute Settlement Mechanism’ (so-called ‘Valletta Mechanism’) (see Section iv). This mechanism involves independent individuals (selected from a predefined register composed of up to four nominees per participating State), chosen by the disputing States, or if not (within 2 months) by a third subject or ‘Senior Official of the nominating institution’ (Section v). The mechanism has broad powers. Its main aim is to help the parties find an appropriate dispute settlement procedure, offering comments or opinions (Section vii). This gives it particular versatility, because it can lead the parties to a settlement according to the merits of the dispute or simply convince them to use a peaceful settlement mechanism, such as good offices, mediation, conciliation, arbitration or adjudication (Section viii). To this end, the mechanism has sufficient room for manoeuvre, being free to contact the parties separately and to provide confidential comments and/or opinions of a general or special nature, or with the partial aim of providing support and assistance to the parties (Sections vi–xi), however, with the limit ratione materiae of Section xii: territorial integrity; national defence or State sovereignty. Practically, the ‘Valletta Mechanism’ is a very flexible tool (both in form and method) at the service of participating States and can sustain them even only in negotiations for a peaceful solution to their disputes. However, the ‘Valletta Mechanism’ has, so far, never been used.15 3) Further Developments of the Geneva and Stockholm Meetings The process begun with the ‘Valletta Mechanism’ was further amplified by the Geneva and Stockholm meetings. In the latter (1992), its evolution was consolidated by four acts approved by the Council of the csce: (a) modification and

15 See osce Secretariat’s Conflict Prevention Centre, osce Mechanisms & Procedures (supra note 13) 30.

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integration of the ‘Valletta Mechanism’;16 (b) adoption of the text of the Stockholm Convention regarding conciliation and arbitration within the csce;17 (c) adoption of a procedure aimed at completing the ‘Valletta Mechanism’ by institution of a ‘csce Conciliation Commission’,18 a distinct and separate organism from the cca envisaged by the Stockholm Convention; d) endowment of the Ministerial Council or the Committee of Senior Officials of the csce with the power to prescribe conciliation to two participating States to help them to settle a dispute that they were unable to solve in a reasonable period of time (so-called ‘Provisions for Directed Conciliation’).19 The original intention to strengthen the tools of peaceful settlement of disputes led to an articulated system, full of overlaps, without any clear delimitation of the functions of the various organisms. The choice of the Stockholm Meeting was due to the need to advance the process of implementation of Helsinki’s Principle V through instruments that bring together the various orientations within the osce. Indeed, it is a cumulative approach designed to ensure an absence of radical opposition by single States or groups of States and as far as possible to enable the best to be made of the different ideas towards the common denominator of instituting peaceful settlement of disputes between the osce participating States. The flexible and open nature of these mechanisms was probably a necessary consequence of the cumulative approach. Indeed, it was necessary to favour maximum use of these tools if requested by participating States. This may also explain the reasons why, as we shall see, in the case of the most articulated tool (that of the Stockholm Convention), any overlap with other mechanisms is solved by limiting the competence of the cca to a subsidiary role. The Conciliation Commission and the Provisions for Directed Conciliation We have briefly described the ‘Valletta Mechanism’. The changes made by the Stockholm Meeting in Annex 1 of the Report are not very significant. The institution of the Conciliation Commission (Annex 3) as a separate and

4)

16

17 18 19

csce, Third Meeting of the Council, Stockholm 1992, ‘Decision on Peaceful Settlement of Disputes’, CSCE/3-C/Dec.1 (15 Dec.), Annex 1: ‘Modification to Section v of the Valletta Provisions for a csce Procedure for Peaceful Settlement of Disputes’. csce, Third Meeting of the Council (supra note 16) Annex 2: ‘Convention on Conciliation and Arbitration within the csce’ (supported by France and Germany). csce, Third Meeting of the Council (supra note 16) Annex 3: ‘Provisions for a csce Conciliation Commission’ (supported by the United Kingdom). csce, Third Meeting of the Council (supra note 16) Annex 4: “Provisions for Directed Conciliation” (supported by the United States).

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distinct organism from the cca of the Stockholm Convention was more important. The procedure entrusted to the Conciliation Commission is presented as integrative of the ‘Valletta Mechanism’ and can be based on agreement of the parties or on a prescription by the Ministerial Council or the Permanent Council (the Committee of Senior Officials in the original text).20 There is a further link with the ‘Valletta Mechanism’ since candidates chosen by the parties come from the list prepared for that mechanism. However, the Conciliation Commission is not a permanent structure and each time it consults the parties about the procedure to follow. The rules are very limited and mainly concern the nomination of conciliators and the nature of the proposals of the Commission. The position of this Commission seems strengthened by the faculty of the Ministerial Council or the Permanent Council to prescribe the mechanism as a necessary measure if States are unable to settle their dispute in a reasonable time (Annex 4: Directed Conciliation). If the question regards States parties to the Stockholm Convention, these organs can prescribe that the States have recourse to the conciliation provisions of that Convention.21 However, the provisions for an osce Conciliation Commission and those for Directed Conciliation have not, so far, been put into practice.22 The Stockholm Convention and the Institution of the osce Court of Conciliation and Arbitration The Stockholm Convention established a more structured and rigid mechanism than the above. This made it necessary to formalise it through an international agreement. Unlike the other mechanisms, which were immediately operative, given appropriate conditions, the Stockholm Convention only came into force in 1994. 5)

iii The osce Court of Conciliation and Arbitration: Main Issues 1) General Provisions The Stockholm Convention, that in 1995 instituted the cca in the framework of the osce, envisages a conciliation and arbitration procedure. Conciliation 20

In 1994 the Committee of Senior Officials became the Senior Council. In 2006 the Senior Council was officially dissolved and most of its functions were transferred to the Permanent Council. 21 csce, Third Meeting of the Council (supra note 16) Annex 4, point 3. 22 See osce Secretariat’s Conflict Prevention Centre, osce Mechanisms & Procedures (supra note 13) 31.

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is achieved by a Conciliation Commission set up for each dispute and arbitration is achieved by an Arbitral Tribunal set up for each dispute. There are procedures for the designation of conciliators and the nomination of arbitrators; the set of conciliators and arbitrators constitutes the cca. The members of the cca must be independent (Art. 5) and possess high qualifications (Art. 3.2). The rules of the procedures are fixed by the Convention itself and the Rules of the Court (Art. 11).23 Here we describe only the most significant aspects of the conciliation and arbitration procedures. 2) Competence of the Commission and the Tribunal The conciliation procedure can be activated unilaterally by any State Party to the Stockholm Convention24 to settle a dispute, not settled by negotiation in a reasonable period of time, between it and one or more other States who are also parties to the Convention (Arts. 18.1 and 20.1). It may also be activated by agreement between States Parties to the Convention or between States Parties and other osce participating States (Art. 20.2). The arbitration procedure can only be activated by agreement between States who are parties to the Convention or between States Parties and other osce participating States (Arts. 18.2 and 26). However, Art. 19 of the Convention contains a ‘safeguard clause’ for procedures of settlement of pre-existing disputes, according to which the competence of the Commission and/or Tribunal ceases if the dispute is brought before another court whose competence the parties are obliged to accept or if that body has already ruled on the question (letter a) or if the parties previously accepted the exclusive competence of another jurisdictional body or if they decided to settle the question by other means (letter b). These provisions show the secondary nature of the competence of the cca with respect to other international courts. Moreover, in the case of the Commission alone, paragraph 2 and 3 of Article 19 add further limits. Paragraph 2 allows the parties to suspend the work of the Commission if one or all of the parties ‘refer the dispute to a court or tribunal whose jurisdiction in respect to the dispute the parties thereto are under a legal obligation to accept’. Paragraph 3, on the other hand, establishes an obligation of suspension for the Conciliation Commission if recourse has been

23

See ‘Rules of the Court of Conciliation and Arbitration within the osce’, 1 February 1997, at www.osce.org/cca/40108. 24 Thirty-four participating States of the osce are parties to the Stockholm Convention. See the list of signatures and ratification or accessions with respect to the Convention on Conciliation and Arbitration within the osce, at www.osce.org/cca.

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made to another body with competence ‘to formulate proposals with respect to this dispute’. Article 19(6) calls for reflection: if the parties do not agree on the ‘competence’ of the Commission or the Tribunal, ‘the decision in the matter shall rest with the Commission or the Tribunal’. Although this provision seems vague, the formula does not seem to refer to competence ratione materiae, that Article 18 defines in very broad terms so as not to create misunderstanding. Rather, it seems to refer to the limits of competence established by Article 19. In practice, it seems to subordinate the effectiveness of these limits to the autonomous evaluation of the cca when the parties do not agree on the concrete operation of these limits to the single case. ‘Disagreement’ on competence seems more plausible in cases of unilateral recourse to the Commission. 3) The Conciliation Procedure 3.1) Access to Conciliation According to Article 20 The conciliation procedure can only be activated by States in dispute. This conclusion does not fail even if the initiative is promoted by the Ministerial Council or the Permanent Council according to Annex 4, point 3 of the Stockholm Meeting of 1992 (see above). Indeed they direct States to conciliation but lack the power to directly invest the Commission. Articles 18 and 20 and the manner in which the Commission is formed (Articles 20–22) seem to require the initiative and participation of States in dispute. In other words, unilateral recourse to the conciliation procedure by the osce organs does not seem possible. Note that the dispute subject to conciliation may concern States that have not ratified the Stockholm Convention, provided they are participants of the osce. This possibility is contemplated by ‘agreement’ between the parties in dispute (Article 20.2). 3.2) Independence of the Commission The Conciliation Commission is not a permanent organ but is constituted ad hoc for a dispute on the basis of Articles 21 and 22 of the Convention. The Commission operates in absolute independence (see Articles 3 and 21). This principle is also inferred from: the prevalence of members elected by the Bureau (an independent institutional organ; see Article 7); the Chairmanship assigned obligatorily to said members; the exclusive and preliminary competence of the Bureau in the solution of questions regarding the maximum number of conciliators who can be elected by the parties; lack of nomination of the conciliator by one of the parties or his/her incompatibility or refusal (Article 21, paragraphs 5–8 and Article 17 of the Rules).

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3.3) Objective of Conciliation The objective of conciliation is expressly indicated in Article 24 of the Stockholm Convention and is to help the parties in dispute to find a solution in line with international law and with their osce commitments (see also Article 14 of the Rules). Article 24 is very important because the fact that the Conciliation Commission can also apply the osce commitments gives it a very special and unique competence in the matter, and from some points of view also greater flexibility than other international conciliation procedures. 3.4) Result of the Conciliation Conciliation does not necessarily settle the dispute. If an agreed solution is reached, that solution is indicated in the minutes and signed by the representatives of the parties and by the members of the Commission. Conciliation then closes (Article 25(1)) and the minutes take the value of an agreement between the parties (Article 21.1 of the Rules). If the Commission considers that all possible instruments have been tried without success, it draws up a final report in which it indicates possible features of a settlement (Article 25(2)). The parties have 30 days from receipt of the report to accept or reject the Commission’s proposal (Article 25(3)). If they do not agree, the report is transmitted to the osce Council and agreement by only one of the parties loses its effectiveness (Article 25(4)). Article 25(5) is very important because transmission of the report to the osce Council can be considered ‘political’ pressure on the parties to rethink their positions. In other words, when a State’s behaviour in a dispute causes the conciliation procedure to fail, that State is duty bound to publicly explain its reasons before all the States of the osce united in Council. Involvement of the ‘political’ organ can give the conciliation procedure a certain political weight, especially when the dispute could degenerate into a threat to peace and security. 3.5) Advisory Activity of the Conciliation Commission? It is noteworthy that the conciliation procedure of the Stockholm Convention, unlike that of the ‘Valletta Mechanism’, does not mention any advisory activity of the Commission (even linked to an ongoing dispute) in support of the parties and aimed at finding the most efficient solution. However, the text does not seem to exclude it categorically, and I think that the power of the Commission to give advisory opinions to the parties concerning specific legal points linked to the dispute cannot be totally excluded, especially when the positions are far apart. In such cases, perhaps, the Commission’s report, even

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without an agreement of the parties, could be considered as a sort of advisory opinion. 4) The Arbitration Procedure 4.1) Access to Arbitration According to Article 26 The arbitration procedure can only be activated by agreement between the parties in dispute. Article 26(1) (combined with Article 23 of the Rules) states that the dispute may also concern non-member States to the Convention but osce participating States, provided one State is a party to the Convention. Unilateral preliminary acceptance of the competence of the Arbitral Tribunal is envisaged, subject to reciprocity (Article 26(2)). Declaration of acceptance may or may not have a deadline and may also exclude disputes regarding territorial integrity, sovereignty and national defence. However, the arbitration procedure instituted by unilateral request is only possible after an unsuccessful attempt at conciliation (Article 26(3)). 4.2) Function of the Arbitral Tribunal The function of the Arbitral Tribunal is ‘to decide, in accordance with international law, such disputes as are submitted to it’ (Article 30). If admitted by the parties, the Tribunal may also decide ex aequo et bono. The Convention gives the Tribunal the faculty (automatically, after hearing the parties) of issuing interim measures according to Article 26(4) (and Article 28 of the Rules). The Tribunal can also independently modify or revoke precautionary measures after consulting with the parties (Article 28(3) of the Rules). It is not clear whether the Arbitral Tribunal can also decide on the basis of the osce commitments, like the Conciliation Commission. The text of the Convention seems to exclude this. However, in our view, the term ‘international law’ could also be considered as covering some commitments of the osce. 4.3) The Arbitral Award The award and orders are binding for the parties to the procedure (and for any intervening party ex Article 31(2) of the Rules). The award must be motivated (and the possibility of individual and dissident opinions is also contemplated); and it is public and final (see Articles 31–32 of the Convention and Article 34 of the Rules). The parties can ask the Tribunal to interpret its award as to meaning or scope (Articles 31(3) of the Convention and 35 of the Rules). The Tribunal can also decide to provisionally suspend the implementation of the award.

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The parties can request revision of the award if new decisive facts, antecedent to the award and unknown to the court and/or the parties, emerge, provided the request is made within 6 months of their discovery or no later than 10 years after the arbitration award (Article 31 of the Convention). iv Conclusions It is well known that the cca has never been put into practice. President Tomuschat has underlined the advantages of the cca on several occasions:25 low cost of the procedure; a certain measure of control of disputing States in the choice of arbitrators and conciliators; the competence of the Conciliation Commission to decide also on the basis of the osce commitments; the experience of the conciliators and arbitrators in international law; and the ‘political’ weight of the possible involvement of the osce Council in the conciliation procedure. Which problems are preventing effective functioning of the cca? What can be done about them? 1) Problems 1.1) Low Participation in the Stockholm Convention In the first place, a major obstacle seems to be the fact that only 34 participating States of the osce are parties to the Stockholm Convention and this limits the possibilities of recourse to the cca. It is therefore fundamental to favour higher ratification of the Convention by osce participating States. Alternatively, the Convention could be amended (according to its Article 35) to enable access to the cca by States who are not participants of the osce. This possibility seems unlikely. 1.2) Safeguard Clause of Article 19 of the Convention Another problem is the difficulty of activating cca jurisdiction. The safeguard (or subordination) clause of Article 19 of the Convention in particular is a big obstacle. Moreover, the many reservations about Article 19 expressed by a great number of States26 leaves little room for manoeuvre to the Court. Thus the cca 25

26

Christian Tomuschat, ‘Sleeping Beauty’, 2/2014 Security Community .36–37; Id., ‘Address by the President of the osce Court of Conciliation and Arbitration’, Permanent Council Meeting, 5 June 2014. Germany expressed reservations about Art. 19, para. 4, claiming to wish to submit disputes to settlement procedures that could be activated unilaterally, when such are

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seems to have ‘residual jurisdictional competence’, since other procedures of settlement of disputes, even outside the osce system, are predominant. In my opinion the clause should be modified. 1.3)

Competition with Other Conflict Resolution Mechanisms of the osce The cca also suffers from competition within the osce system. In fact, as we have seen, the Stockholm Convention only identifies one of the various possible mechanisms of the osce for the peaceful settlement of disputes.27 There is no hierarchy of preference among the different mechanisms, which are all possible, but the subjective scope of application of the Stockholm Convention is narrower with respect to other competing instruments. Moreover, the cca provides for a more articulated conciliation procedure and that may be a disadvantage. The cca seems to have the only advantage of also providing for an arbitral procedure. In spite of that, the existing competition with the other dispute settlement mechanisms of the osce does not favour the functioning of the cca. 1.4) Excessively Rigid Conciliation Mechanism One of the advantages of international conciliation procedures is that they are more flexible than arbitration procedures. However, from this point of view, the conciliation procedure envisaged by the Stockholm Convention is rather rigid and complicated. Thus it does not offer States all the advantages of the above-mentioned flexibility. Additionally, like all conciliation procedures, it has the defect of not producing binding decisions. In other words, the cca conciliation procedure is in a difficult intermediate situation between more flexible and controllable dispute settlement procedures (negotiations, good offices and mediation) and procedures with binding effects (arbitrations). 2) Possible Solutions 2.1) Revision of Certain Provisions of the Stockholm Convention? As mentioned above, a revision of the Stockholm Convention aimed at ameliorative amendment of certain critical points could provide some solutions. However, this does not seem easy to achieve.

27

contemplated. Similar reservations were expressed by Switzerland, Romania, Poland, Malta, Liechtenstein and Denmark. See, especially (supra notes 18 and 19) the mechanisms established in Annex 3 and Annex 4 of the Report of the Stockholm meeting.

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2.2) ‘Specialization’ of the cca? For the cca to play an important role and begin to function effectively, in my opinion it should specialize. The abundance of other more easily accessible international courts makes the cca a duplicate of other courts. In particular, it could be useful to give the cca a specific sectorial competence at two levels: ratione materiae and ratione personae. Regarding the first aspect, the cca could specialize in certain subjects and rule on questions of ‘minor political impact’ so as to be more easily accessible to participating States. In other words, since simplification of the various mechanisms of peaceful settlement of disputes of the osce is unlikely, it may be more realistic to differentiate the activity of the cca with respect to other competing courts or bodies. It could concentrate its activity in matters concerning its geopolitical area but without a global valence; for example, questions of ‘good-neighbourship’ that could emerge from protection of the environment or common natural resources; disputes about cross-border arms traffic; questions linked to processes of democratisation of legal systems or to border management; and, perhaps, even disputes about human rights. This possible development could make the best of the peculiarities of the mechanism offered by the Stockholm Convention, eliminating inevitable uncertainties caused by the overlapping of procedures within the osce and differentiating what the Convention offers (otherwise too generic and vague) with respect to other instruments available for the osce participating States. This could prompt the osce to favour the use of this instrument at a political level in a more efficient and proactive manner. With regard to the second aspect, namely specialization ratione personae, the cca could try to concentrate on dispute settlement between States from certain geographical areas (e.g. Eastern European and Asian countries).28 These States might be more willing to resort to conciliation procedures. 2.3) Possible Advisory Role of the cca? Another hypothesis is to allow the cca to issue advisory opinions on subjects in its field of competence, especially with regard to the osce commitments. Today solutions of synergy with other organs of the osce by their explicit request to the Court for advisory opinions seem impracticable (not being expressly contemplated by the Stockholm Convention). However, 28 The osce includes many states from this geographical area: Armenia, Azerbaijan, Belarus, Bulgaria, the Czech Republic, Estonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Poland, Romania, Russia, Slovakia, Tajikistan, Turkey, Turkmenistan, the Ukraine, and Uzbekistan.

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as already said, it seems possible that the cca take an advisory role in relation to specific legal questions raised by disputing States. Moreover, when the parties do not reach a conciliatory settlement of their dispute, the final report of the Commission, containing the proposals for the peaceful settlement of the dispute, may have an impact on the interpretation of legal questions. This sort of advisory/conciliatory function of the cca is not explicitly envisaged in the Stockholm Convention or in the procedural Rules, nor however is it excluded. 2.4)

Improvement of Dialogue between the cca and the osce Institutions It would also be appropriate to ensure better dialogue between the cca and other institutions or subsidiary bodies of the osce and better integration of the former in the structure of the osce. With regard to this, the action of organs such as the High Commissioner on National Minorities and the Forum for Security Co-operation could provide useful material to the cca about tensions between States and activate the Court in a preventive manner, so that it can propose means of peaceful settlement of disputes. In other words, the cca could develop a function of prevention (but founded on legal means) with respect to disputes and conflicts.

chapter 7

Conciliation within the Framework of the osce Court of Conciliation and Arbitration: An Assessment from the Viewpoint of Legal Policy Christian Tomuschat i

Peaceful Settlement of Disputes in the New Europe after 1990

Conciliation figures among the different methods of settlement of international disputes listed in Article 33 of the un Charter (hereinafter: Charter) but has never attained the same degree of prominence as international adjudication. Its operation is mostly clad in diplomatic secrecy so that its results may never come to the knowledge of a broader public. On the other hand, it is normally characterized by a certain degree of formalism. Where conciliation is sought governments turn to the expertise of a body of knowledgeable ‘wise men’1 after their own efforts have proved abortive. According to a classic definition given by Oppenheim / Lauterpacht, [c]onciliation is the process of settling a dispute by referring it to a commission of persons whose task it is to elucidate the facts and … to make a report containing proposals for a settlement.2 It can only prosper in an atmosphere of mutual trust and confidence, where both sides are in principle prepared to listen to rational and reasonable arguments, ready to seize a good opportunity to put to rest a dispute that has negatively affected their mutual relations. It is not self-evident why conciliation and arbitration often appear together in one package notwithstanding their great diversity. If no agreement in respect of a dispute is reached by the parties concerned themselves, a conciliation procedure normally ends up with a recommendation or a proposal, a nonbinding act, whereas the award rendered by an arbitration body constitutes a genuine decision which produces binding effects for the parties. However, 1 This terminology has not changed although it does not do justice to the achievements of great female politicians. 2 L. Oppenheim and H. Lauterpacht, International Law. A Treatise, Vol. ii (London: Longmans, 7th ed. 1952) 12.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_008

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since the first international agreement setting up conciliation in conventional form, the German Swiss Convention on Arbitration and Conciliation of 3 December 1921,3 the two procedures are generally treated as siblings being intimately related to one another. Apparently, the fact that both in conciliation and in arbitration a third party is present in the proceedings is one of the reasons that have led diplomats to conceptualize them as a unit notwithstanding their substantive differences. More importantly, in many instances a link is constituted by the subsidiary character of conciliation with regard to arbitration. It may become operative only if no agreement can be reached on submitting the relevant dispute to arbitration,4 or otherwise unsuccessful attempts at conciliation may have to precede the initiation of arbitration proceedings.5 Conciliation and arbitration may also be tied to one another institutionally. The tradition of linking conciliation and arbitration has also made its impact felt within the osce/csce. The Court of Conciliation and Arbitration within the osce (hereinafter: Court) assembles under its roof both procedures although conciliation does not pertain to the class of judicial proceedings. Yet it was conceived, as a whole, as one of the central pillars of the architecture of Europe ushered in by the Charter of Paris for a New Europe (hereinafter: Charter), adopted by the Second csce Summit of Heads of State or Government in Paris on 21 November 1990.6 The Charter was meant to reflect the spirit of understanding and cooperation that had gained ground in Europe after the collapse of totalitarianism in Europe, symbolized by the fall of the Berlin Wall on 9 November 1989, and the further signs that the Soviet Union would introduce major reforms, renouncing even its control over the Baltic States. All of the European nations looked ahead with great expectation. The spectre of war seemed to have been removed once and for all. In the prevailing euphoria, it seemed that all of the looming problems of the past had been resolved to everyone’s satisfaction. The Preamble of the Charter articulated these hopes and expectations in straightforward language. It noted that ‘[t]he era of confrontation and division of Europe has ended’, continuing in the following terms: 3 Reprinted in: Wilhelm G. Grewe (ed.), Fontes Historiae Iuris Gentium, Vol. 3/2 (Berlin / New York, 1992) 1057. 4 Article 13 of the German-Swiss Convention (supra note 3). 5 Under the Locarno Arbitration Conventions concluded by Germany with Belgium, France, Great Britain and Italy (reprinted in Grewe, supra note 3, 1062) attempts at conciliation were a preliminary requirement before seizing an arbitral tribunal or the Permanent Court of International Justice. The same rule is now set forth in Article 26(3) of the Stockholm ­Convention (sc). 6 Reproduced in: 30 (1991) ilm 193.

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Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity in Europe. Ours is a time for fulfilling the hopes and expectations our peoples have cherished for decades: steadfast commitment to democracy based on human rights and fundamental freedoms, prosperity through economic liberty and social justice, and equal security for all our countries. All these lofty propositions were highlighted and to some extent particularized in the subsequent sections of the Charter. Perusing it must provide deep satisfaction to every reader. The heritage of the classic liberal democracy is carefully noted but the elements of a social democracy are taken into account as well with great sincerity. It seems as if the conflicting concepts of modern governance, opponents and rivals up to that date, had all of a sudden succeeded in entering into a happy match. ii The csce Court of Conciliation and Arbitration – A Symbol of the Rule of Law in Europe One of the key objectives of the Charter was the emphasis on the protection of human rights and fundamental freedoms. On the other hand, the ‘classic’ subject matters of dispute were not overlooked. No one could ignore the simple fact that the general political framework is decisive not only for the maintenance of international peace and security at the international level but also for the lives of the human beings concerned on the ground. Referring to the general principle of peaceful settlement of disputes under Article 2(3) of the un Charter as well as to Principle v of the Helsinki Final Act,7 the summit meeting confirmed our commitment to settle disputes by peaceful means. We decide to develop mechanisms for the prevention and resolution of conflicts among the participating States. In other words, the nations represented in Paris felt that the existing machinery for the settlement of disputes did not satisfy all legitimate needs, leaving considerable room for improvement. This statement was on the one hand a 7 Of 1 August 1975, reprinted in: 14 (1975) ilm 1292.

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frank acknowledgement that the United Nations was far from having reached an optimal structure for that purpose. Two grounds in particular motivated the European nations to place their confidence in a specific European scheme. On the one hand, the view was widely held that for Europeans it would be preferable to settle any emerging disputes among themselves without having to take into account invariably the specific political interests of the other regions of this globe, including permanent members of the Security Council from outside the region. Yet the main driving factor seems to have been the belief that the unity now manifested in the Charter would elevate Europe to a level of internal cohesion far above the standards applicable at world level. As a consequence it must have appeared logical to establish new mechanisms in consonance with the proposed deep changes in substantive law. It is against this political background that after many rounds of preliminary negotiations the decision was taken, at the Third Meeting of the csce Council in Stockholm, to establish a genuine judicial body under international law in order to stabilize the machinery for the settlement of international disputes.8 This decision was not carried by unanimous support but required extraordinary efforts on the part of the politicians and diplomats involved in the undertaking. For many years, Switzerland had taken the lead, producing one after another constructive proposals whose personal authorship (Rudolf Bindschedler) was never kept confidential. In more recent years, the President of the French Constitutional Council and former Minister of Justice, Robert Badinter, also engaged his best efforts to promote the project of a court for Europe.9 Germany joined the French initiative as well. Driven by a broad alliance, in which Eastern European States also prominently voiced their longing for a world governed by the rule of law, the Convention on Conciliation and Arbitration within the csce (hereinafter: Stockholm Convention or sc) was

8 The different steps leading to that decision have been carefully described by Cornelia Lüthy, Verfahren zur friedlichen Beilegung internationaler Streitigkeiten im Rahmen der osze (Zürich: Schulthess, 1998) 115–146; Alain Pellet, ‘Notes sur la Cour de conciliation et d’arbitrage de la csce’, in: Emmanuel Decaux and Linos Alexandre Sicilianos (eds.), La csce: Dimension ­humaine et règlement des différends (Paris: Montchrestien, 1993) 189–217; ­Riccardo Pisillo Mazzeschi, in this book, 67 et seq.; Linos Alexandre Sicilianos, ‘Le mécanisme de règlement des ­différends au sein de la csce approuvé à Stockholm’ (1993) Annuaire français de droit ­international 899–918; Patricia Schneider and Tim J. Aristide Müller-Wolf, The Court of Conciliation and Arbitration within the osce. Working Methods, Procedures and Composition (Hamburg: Center for osce Research, Working Paper 16, 2007). 9 See, e.g., ‘L’Europe du droit’, 4 (1993) ejil 15–23. As is well known, Badinter became in 1995 the first President of the Court.

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eventually adopted by a conference decision on 15 December 1992.10 Very soon, it received a considerable number of ratifications. After having reached the threshold level of twelve ratifications (Article 33(3)), it could enter into force on 5 December 1994. Thereafter, the institutional machinery was established. The Court became operative on 29 May 1995. In the subsequent years, other csce Participating States followed suit. Currently, the number of ratifications and accessions stands at 34 (while the csce counts 57 Participating States).11 However, since 2003 only one new instrument of accession has been registered. And the Court is still waiting for its first case.12 This is the situation which requires analysis and explanation. Obviously, the original euphoria has subsided. The Court, which at its outset seemed to swim on a wave of overwhelming support,13 has almost fallen into oblivion. It is noteworthy in the same vein that the legal literature seems to have almost completely lost its interest in the dispute settlement mechanisms of the osce: since the year 2000, just one article (above note 12) seems to have been published on the relevant issues. After being in operative existence for more than 20 years, it is now time to take stock. Does the Court, in particular its Chapter on Conciliation, have any inherent shortcomings? And how could such shortcomings possibly be remedied? Or has the general climate in which conciliation could prosper generally changed so that a formal conciliation proceeding would seem to be somewhat anachronistic?14 The present publication is intended to shed some light on these issues. It does so in particular by drawing on the experience of other conciliation 10 11 12

13 14

Annex 2, reprinted in this book, 221, also in 32 (1993) ilm 557. Many important Western European countries have failed to ratify the Stockholm Convention: Belgium, Estonia, Ireland, Netherlands, Spain, Turkey, United Kingdom. See the words of regret spoken by Lucius B. Caflisch on 22 April 2004 before the Permanent Council of the osce in Vienna, reprinted in: Heinrich B. Reimann, ‘Le règlement pacifique des différends internationaux’, in: Marcelo G. Cohen (ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law. Liber Amicorum Lucius Caflisch (Leiden: Martinus Nijhoff, 2007) 891, at 894. The present has called the Court a ‘sleeping beauty’: ‘Sleeping Beauty. The osce Court of Conciliation and Arbitration’, (2–2014) Security Community 36. Russia, the United Kingdom and the United States made it clear from the very outset that they would not ratify a convention establishing a judicial body. On the practice of conciliation see Jean-Pierre Cot, entry ‘Conciliation’, in: The Max Planck Encyclopedia of Public International Law, Vol. ii (Oxford: oup, 2012) 576, at 577, paras. 7, 12; Hans von Mangoldt, ‘Arbitration and Conciliation’, in: Max Planck Institute for Comparative Public Law and International Law (ed.), Judicial Settlement of International Disputes (Berlin et al.: Springer, 1974, 417, at 484–487.

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procedures provided for in different contexts, the basic assumption being that some lessons may be learned from the practice of such other mechanisms. Of course, it cannot be our aim to demonstrate that the conciliation procedure anchored in the Stockholm Convention constitutes an ideal mechanism. However, it seems that the innovative and original features of the Court have not been fully acknowledged by the governments that have to reflect on how best to deal with a conflict opposing it to another government. A judicial or conciliatory body that has remained inactive for two decades cannot be attractive when the most suitable avenue for the settlement of an international dispute is sought. It is therefore necessary to draw attention to those features of the conciliation procedure under the Stockholm Convention that from a viewpoint of political expediency imply advantages that other procedures may be lacking. iii

No Legally Binding Effect of Reports Concluding a Conciliation Proceeding

The greatest advantage of the conciliation procedure is that it does not lead to an outcome that would be binding on the parties involved. This specific characteristic has remained unchanged since the first appearance of conciliation as a formal procedure in the German-Swiss Convention on Arbitration and Conciliation of 3 December 1921,15 the treaty that has served as a model for all later agreements on conciliation. Article 15(3) of that Convention provides that the final report concluding a conciliation proceeding ‘shall not … be in the nature of a final judgment binding upon the Parties’. All the later texts have kept this feature that embodies the essence of conciliation as a procedure fully respecting the sovereign rights of the parties involved. Thus, the 1928 General Act for the Pacific Settlement of International Disputes16 confines itself to stating (Article 15) that the Conciliation Commission shall ‘elucidate the questions in dispute, … collect with that object all necessary information … and endeavour to bring the parties to an agreement’, clarifying at the same time that any terms of settlement require the agreement of the parties. The Institut de droit international took the same approach in its 1961 Resolution on International Conciliation17 by emphasizing that the parties involved are only required to inform the conciliation commission whether they accept the proposed 15 16 17

Supra note 3. Reprinted in Grewe (supra note 3) 1067. http://www.justitiaetpace.org/idiE/resolutionsE/1961_salz_02_en.pdf.

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settlement (Article 7). That a report of a conciliation commission contains no more than ‘recommendations for consideration’ has also been confirmed by General Assembly resolution 50/50 of 11 December 1995 (Article 20), which sets out in general the basic principles of conciliation. The Stockholm Convention follows this path by requiring acceptance of the proposals of a Conciliation Commission (Article 25 (4)) established under its provisions. The flexibility thus confirmed not only by the letter of the Stockholm Convention but also by a tradition extending for almost a century, being the main asset of conciliation, constitutes at the same time its greatest weakness. Once the parties have conducted a proceeding generally onerous in time and financial resources they are left with nothing else than recommendations that can be rejected by either side even without submitting any valid reasons. More often than not, governments embark on international proceedings with the expectation that the international body concerned relieves them of the burden to take hard decisions. In matters that do not affect the very existence of their nations, they would prefer to lose than to have to take the relevant decisions themselves. They may consider that eventually conciliation provides no better results than negotiation – which in any event is much less burdensome financially. Such assessment seems to be short sighted but it must be reckoned with as a fact of life. Essentially, a well-balanced report, which has clarified the factual background and has carefully weighed the variegated legal and political aspects inherent in the dispute, should pave the way for a rational decision acceptable not only to a governmental elite but also to a democratic public that suffers from emotional impulses.18 The authority inherent in such a report derives exclusively from the objectiveness of its findings by a group of renowned experts who have acted with total independence and impartiality. Although lacking a binding character, the report of a conciliation commission carries therefore considerable moral and political weight. It cannot easily be dismissed as irrelevant or fundamentally unjust. It depends of course on the parties themselves whether they eventually will welcome the advice given or just endure such guidance. Given the factual consequences which any procedure for the settlement of international disputes may entail, even a conciliation procedure, commencing such a proceeding requires a lot of political courage on the part 18

On this specific issue see Torsten Lohmann, ‘The Role of Conciliation and Similar Proceedings in International Dispute Settlement and the osce Procedures’, in: Michael Bothe et al. (eds.), The osce in the Maintenance of Peace and Security. Conflict Prevention, Crisis Management and Peaceful Settlement of Disputes (The Hague et al.: Kluwer Law International, 1997) 409, at 421.

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of the responsible authorities, except in constellations where recourse to legal remedies has become a matter of routine like in the European Union. Unfortunately, such a climate of serenity has not yet emerged in international relations world-wide, not even within the narrower group of the csce Participating States. Hence, from a general viewpoint, it must be said that the chances for conciliation are generally not very good – a prognostic assessment which obviously does not apply across the board.19 However, scepticism is nurtured by the observation that for the last 30 years not a single bilateral conciliation procedure has taken place. Only within the framework of international organizations has conciliation experienced a certain revival. iv

Overlapping Conciliation Procedures

Within the csce system, the apparent lack of enthusiasm for the services of the Court may also be explained to some extent by the large variety of options provided by the institutional machinery available for that purpose. Several procedures were created within a short span of time, seemingly in a frenzy to facilitate by all means the settlement of international disputes likely to threaten the harmony that had just been found at the 1990 Paris Conference. Yet, in reality profound divergences led to the proliferation of procedures. Because of the widely diverging political conceptions, no systematic coordination took place, with the inevitable result that many overlaps have arisen. Thus, States wishing to avail themselves of the institutional resources provided by the csce system and not prejudiced ex ante against the Court find themselves before an embarras de richesse that renders any choice somewhat difficult. Governments will undoubtedly wish to know at a preliminary stage what advantages and what drawbacks they will have to face by opting for either one of the relevant mechanisms. In any event, almost a quarter of a century after the deliberations on the renewal of the csce system of conflict management a fresh assessment would appear to be necessary. This is not the place to dwell at length on all of the features of the procedures which sprang up after the vision of a Pan-European future had taken shape at the Paris Conference in December 1990. Already at the Valletta meeting of Experts on Peaceful Settlement of Disputes in 1991, three months later, agreement was reached on a number of substantive principles for dispute settlement and

19

In this book, Jean-Pierre Cot, ‘Expectations Attached to Conciliation Reconsidered’, 11, shares that sceptical assessment.

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a corresponding procedure divided into two stages.20 Every Participating State was provided with the faculty to bring any ‘dispute of importance to peace, security or stability’ in Europe to a Committee of Senior Officials21 and to request, in case of failure by this body to settle the conflict, the establishment of a specific Dispute Settlement Mechanism. The institutional and procedural features of that Mechanism were laid down in amazingly precise detail as far as its composition is concerned. However, as to the methods of dealing with actual disputes the Mechanism is characterized by a great deal of indetermi­nacy. It refrains from providing for a specific procedural framework. Section viii of the Procedural Provisions stipulates: The comment or advice of the Mechanism may relate to the inception or resumption of a process of negotiation among the parties, or to the adoption of any other dispute settlement procedure, such as fact-finding, conciliation, mediation, good offices, arbitration or adjudication or any adaptation of any such procedure or combination thereof, or any other procedure which it may indicate in relation to the circumstances of the dispute, or to any aspect of any such procedure. Obviously, the drafters of the Valletta Mechanism did not place their hopes in the inherent virtues of a specific procedure. To them, the main objective was to bring the parties concerned into some framework of dialogue, no matter how loose and flexible. On the other hand, they still wished the endeavours for a settlement to move slightly away from the pure field of bilateral negotiations by introducing the monitoring or assistant function of a third actor, the members of the Mechanism. In their view, the objective – removing any causes of tension and thereby maintaining international peace – took precedence over the usual procedural patterns. The noble aims justified any innovative initiatives, provided that the key concepts of procedural fairness, as outlined in the Report, were respected. At the same time, great caution prevailed. During a first stage the Mechanism was only entrusted with providing advice on procedural matters, and only after the fruitless expiry of that first stage could the Mechanism be requested to provide ‘general or specific comment’ on the substance of the dispute (Section xi). Expectations were that the Mechanism would be resorted to in numerous instances, in particular now that the immobilization which had held societies under socialist rule in its grip for decades melted away and rendered 20 21

See the Report of the Valletta Meting, 8 February 1991, reprinted in 30 (1991) ilm 384. Now the osce Conflict Prevention Centre.

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accessible for the first time the many international problems which could not be addressed during the earlier epoch. However, to this very date the Valletta Mechanism has never been activated. One can only speculate about the reasons underlying this negative finding. Some observers have appraised the Mechanism as so complex and even confused that in their view it is ‘destined never to be used’.22 One of the other determinative reasons may be the ­general mistrust that always prevailed in Eastern Europe under the dogma of socialism regarding dispute settlement with the help of third parties. Like the Soviet Union and later Russia, the Eastern European States never believed in the advantages of a system under the rule of law where a judge has the last word regarding inter-State conflicts.23 When in 1992 the newly created system was overhauled, hence not in the light of intervening practice but with a view generally to strengthen the pro­cedural foundations, no decision was taken to abandon the Valletta Mecha­nism. Instead, the Participating States opted for complementing that Mecha­nism. Additionally, upon the insistence of the United Kingdom that resolutely rejected the concept of a genuine judicial body, they established a ‘Conciliation Commission’.24 This Commission remained within the usual logic of the csce system that is overwhelmingly made up of commitments of a non-legal character, therefore unable to impose truly juridical obligations. At the same time, however, the Court with its two components, conciliation and arbitration, was created under the Stockholm Convention.25 At first glance, it looks somewhat contradictory to establish a Conciliation Commission on the basis of a conference resolution and to provide at the same time for a Court one of whose tasks will also be conciliation. Several reasons may be adduced to explain this parallelism. On the one hand, the promoters of the Court had 22 23

24

25

See Pellet (supra note 8) 196. See, e.g., Christoph Royen, ‘Die Einstellung der Sowjetunion und der übrigen osteuropäischen Staaten zu obligatorischen (gerichtlichen und schiedsgerichtlichen) Formen der friedlichen Streitbeilegung’, in: Bruno Simma and Edda Blenk-Knocke (eds.), Zwischen Intervention und Zusammenarbeit. Interdisziplinäre Arbeitsergebnisse zu Grundfragen der ksze (Berlin: Duncker & Humblot, 1979) 401–438. Today, all of the Eastern European States members of the Council of Europe are also parties to the European Convention on Human Rights, and those that have joined the European Union are placed under the jurisdiction of the Court of Justice of the European Union. csce, Third Meeting of the Council, Stockholm 1992, Decision on Peaceful Settlement of Disputes, Annex 3: Provisions for a csce Conciliation Commission; Annex 4: Provisions for Directed Conciliation, 15 December 1992, reprinted in this book, 235 resp. 238, also in: 32 (1993) ilm 568. Supra note 10.

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to make concessions to its adversaries by agreeing to a ‘package deal’.26 On the other hand, the diversity of the legal context played a decisive role. csce resolutions, not meant to engender genuine legal obligations, enter into force immediately since they are not subject to ratification and do not, if not otherwise specified by a national constitution, require approval by the competent parliamentary bodies. Yet the Court was planned as a true judicial body in its arbitration segment, empowered to hand down truly binding decisions. Therefore, a treaty under positive international law was required, with all the attendant risks and delays: According to Article 33 (2) of the Stockholm Convention, a minimum threshold of twelve ratifications was required for its entry into force, and it could of course not be anticipated when that requirement would be fulfilled. Sceptics – who were in a minority – might even have wished that the statute of the Court as laid down in the Stockholm Convention would never attract the minimum number of ratifications. Therefore, in that perspective it made perfect sense to provide for a parallel procedure pursuant to the usual csce pattern which had been brought into existence in 1975 with the Helsinki Final Act. Lastly, the system of dispute settlement was rounded off by the introduction of a procedure of ‘Directed Conciliation’.27 Pursuant to the provisions on this procedure, the csce Council of Ministers or the Committee of Senior Officials28 may direct any two (or more?) Participating States to seek conciliation to assist them in resolving a dispute that they have not been able to settle ‘within a reasonable period of time’ (Section 1). From a theoretical viewpoint, this is a revolutionary innovation since, with the exception of the powers of the Security Council, a preliminary condition of international dispute settlement is invariably consent. Here, by contrast, the parties would be enjoined at least to talk to one another. The governments present at Stockholm excluded, however, disputes concerning territorial integrity, national defence, title to sovereignty over land territory and other similar claims from the scope of Directed Conciliation (Section 5(c)). In political terms, this addition to the arsenal of dispute settlement procedures is in any event infinitely less dramatic since the parties concerned remain in full control of the subject matter. Also regarding 26 27

28

See Sicilianos (supra note 8) 900; Lüthy (supra note 8) 140–146. Conference Resolution, 15 December 1992, Annex 4, reprinted in this book, 238, also in 32 (1993) ilm 570. The procedure of ‘Directed Conciliation’ stems from a proposal of the United States. Meanwhile the terminology has changed. The Council of Ministers has become the Ministerial Council and the Committee of Senior Officials was replaced by the csce Conflict Prevention Centre.

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‘Directed Conciliation’ the outcome would invariably be no more than an advice or a recommendation which either one of the parties would be (legally) free to reject, albeit to the displeasure of the osce governing bodies.29 In sum, States are facing a wide array of procedures the pros and cons of which require careful examination. Under different circumstances, any lawyer entrusted with a preparatory research would turn to the practice that can be retrieved. Here such additional materials for orientation are simply unavailable. This is a factor that does not inspire confidence. Procedures that have never been tested by any State resemble an expedition into uncharted territory. And yet, such fears appear to be rather irrational since the relevant rules are clear-cut and do not hide any treacherous intricacies. In fact, once any instinctive fears of the unknown features of conciliation have been overcome, the overview reveals to the reader of the Stockholm Convention a terrain that shows many well-known characteristics of international dispute settlement. v

Compulsory Conciliation

The Stockholm Convention follows indeed in general the pattern of conciliation consolidated by tradition. Just one departure from the basic principle of consent, which normally also governs the right to initiate proceedings, may be observed. Pursuant to Article 20(1) sc, any State party may request the establishment of a Conciliation Commission for the resolution of a dispute opposing it to another State party, provided that the dispute ‘has not been settled within a reasonable period of time through negotiation’ (Article 18(1) sc). The potential respondent does not have the right to refuse participation in the ensuing proceeding. Thus, conciliation becomes indeed compulsory for all the States parties to the Stockholm Convention. It was hoped that such facilitation would indeed encourage governments to resort to conciliation as a matter of routine. French jurist Alain Pellet has characterized the compulsory character of conciliation as the ‘principal innovation’ of the Stockholm Convention.30 Once a proceeding has been instituted, each party is bound to appoint a conciliator to sit on the Commission. Should the respondent State refrain from complying with this duty, the Court’s Bureau would have to choose one expert from the list of conciliators who, together with the appointed arbitrators, form 29

30

For an assessment see Michael Bothe, ‘The Various Dispute Settlement Procedures – General International Law and osce Practice’, in: The osce in the Maintenance of Peace and Security (supra note 18) 367, at 377–378. Pellet (supra note 8) 196.

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the corpus personale of the Court (Article 2(3) sc). Under ordinary circumstances, the Bureau will in any event have to select the three remaining members of the Conciliation Commission, which normally shall be composed of five members. All of this is done in consultation with the parties concerned (Article 21(4) sc) where the Court will have to show its mastership in securing fair and equitable proceedings. After the appointment procedure has been completed, each party may additionally raise objections to one of the members if serious reasons may be adduced that shed a suspicion of bias on that person (Article 21(7) sc). In other words, the procedure of conciliation resembles to a large extent the usual rules applicable to the constitution of arbitral bodies. There is no fixed bench. Each of the parties chooses in full freedom for ‘its’ seat the name of one of the conciliators contained in the list to which each State party may appoint one person and an alternate (Article 21(1) sc). It would seem to be a matter of natural logic for a government to appoint a lawyer of its own nationality. But no such requirement exists de jure. A government can as well come up with a proposal which departs from that logic, in particular if it wishes to show that it is sure of its own cause and does not need partisan support, governments are indeed encouraged to depart from their natural instincts since pursuant to the listing procedure one of the two national conciliators may have another nationality (Article 3(1) sc). In the election process of judges for the European Court of Human Rights, where three candidates must be presented to the Parliamentary Assembly, States have indeed sometimes presented candidates of other nationalities on their lists. To be nominated or appointed by a foreign government first for the list of conciliators and later in an actual proceeding invariably constitutes a sign of distinction for the person concerned. Since the appointment of the other three members of a Conciliation Commission is effected after consultations with the Bureau (Article 21(4) sc) any risk of an unpleasant surprise is excluded. In the consultations with the Bureau, each party can openly voice its opposition to one or the other candidate taken into consideration. Only truly neutral and independent persons can hope to find the agreement of the parties involved. No one who has the reputation of nurturing pre-conceived ideas about the outcome of the pending proceeding will be accepted by the government whose case would therefore be prejudiced from the very outset. A pre-determined bench has definite advantages, as today is well known in particular from the Court of Justice of the European Union and the Strasbourg Court of Human Rights. However, where a decision-making body has not yet been able to assemble trust and confidence, such ‘vetting’ of candidates constitutes a reliable method of ensuring the good

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functioning of that body. In sum, not the slightest suspicion of bias may be directed against the Court when it exercises it conciliatory powers. It should be noted, in this connection, that neither the President nor the other members of the Bureau of the Court enjoy any privileged role in the constitution of a Conciliation Commission. Grosso modo, they perform the same functions as the Secretariat of the Permanent Court of Arbitration (pca) which is confined to establishing arbitrary panels if the governments concerned decide to avail themselves of the services of the pca. This does not mean that the President and the members of the Bureau of the Court are excluded from assuming active conciliatory functions (Article 21 (5) sc). But they will only do so if this corresponds to the wishes of the parties involved. The Court is lastly no more than a facilitator tasked with ensuring the smooth functioning of the system. It could never play the same role as the Court of Justice of the European Union or the Strasbourg Court of Human Rights. In each and every case of either conciliation or arbitration, a new Commission or Tribunal is established. Therefore, it would be hazardous to forecast any kind of consolidated jurisprudence which, in any event, cannot emerge in the field of conciliation, since conciliation focuses essentially on the specific details of the case concerned and since, furthermore, its outcome will not necessarily come to the cognizance of a broader public. In conclusion, the risk of getting involved in a proceeding of conciliation with unforeseeable consequences is minimal, even non-existent. Above all it should never be overlooked that any comments or recommendations flowing from a conciliation proceeding lack authoritativeness in the true juridical sense. They enjoy no more than the authority of the expertise of knowledgeable lawyers well versed in international law and politics. As already pointed out, that kind of ‘objective’ authority may have considerable weight but cannot be equated with a determination that dictates a fair and just solution to the litigious problems in issue. vi

The Scope of Jurisdiction ratione materiae

The scope of jurisdiction ratione materiae of a Conciliation Commission has no substantive limits. It does not exclude so-called ‘political’ disputes whose demarcation from legal disputes had continually attracted the interest of international lawyers during the first half of the 20th century. Furthermore, the Court has made a great leap forward in comparison with the Valletta Mechanism that discarded from its operation (Section xii), issues

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concerning its territorial integrity, or national defence, title to sovereignty over land territory, or competing claims with regard to the jurisdiction over other areas. Attempts by the United Kingdom to also introduce this clause into the Stockholm Convention with regard to conciliation remained unsuccessful.31 No departure from the principle that any kind of dispute may be submitted for conciliation to the Court (Article 20(1) sc) is permitted. Nor does the Convention allow for reservations which, accordingly, are inadmissible (Article 34 sc). Hence, even grave breaches of rules and principles of international law ­affecting international peace and security might be brought to the Court for conciliation.32 On the other hand, the principle of subsidiarity (Article 19 sc) would normally block such requests. Regarding the csce Conciliation Commission the same broad opening was stipulated. However, since the relevant Provisions make conciliation dependent on the parties’ agreement (Section i) no need could be perceived to restrict the field of jurisdiction of a Conciliation Commission. vii

The Scope of Application ratione personae

Only States may appear in conciliation proceedings. The Court has not been bestowed with jurisdiction over any other subjects of international law. Obviously, protection of individual rights is ensured by the Strasbourg Court of Human Rights and does not need any additional institutional guarantees. During the negotiations leading to the adoption of the Stockholm Convention, the proposal had been ventilated to introduce additionally a competence to deliver advisory opinions at the request of the osce Council of Ministers. This proposal met with harsh resistance in particular from Turkey, the United 31 32

See Lucius Caflisch, ‘The osce Court of Conciliation and Arbitration: Some Facts and Issues’, in: The osce in the Maintenance of Peace and Security (supra note 18) 381, at 384. However, there was agreement from the very outset that the Court would not constitute the appropriate institution of dispute settlement with regard to such vital issues. Instead, it was believed that the Court was ideally suited to deal with disputes involving issues of a lower degree of political tension like for instance concerning good neighbourliness. Patricia Schneider and Tim J. Aristide Müller-Wolf (note 8) have drawn up a catalogue of points of tension in Europe where resort to the Court might constitute, after careful reflection, the appropriate remedy.

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Kingdom and the United States.33 They were afraid that advisory opinions might strengthen the authority of the osce governing bodies. Eventually, the proposals had to be withdrawn. In this book, authors have come back to the idea of entrusting the Court with advisory powers.34 Given the highly controversial nature of the relevant draft proposals as submitted in 1992, one cannot perceive any realistic chance that the jurisdiction of the Court might in the near future be enlarged by such an additional title of jurisdiction. viii

The Applicable Law

Concerning the applicable law, the procedure also provides large room for a flexibility that will benefit both parties in a dispute. It should be clear from the very outset that a vast array of factors should be susceptible of being taken into account if one really wishes to get to the deep roots of a conflict. The first enactments on international conciliation refrained from setting forth a legal framework for the recommendations to be addressed to the parties to the dispute. The 1921 German-Swiss Convention on Arbitration and Conciliation35 confined itself to stating that the board of conciliation provided for in the Convention was tasked with drawing up (Article 15(1)) a report which shall determine the facts of the case and shall contain proposals for settling the disputes. The same cursory use of words could be observed a few years later in the Geneva General Act for the Pacific Settlement of International Disputes36 where again the emphasis was placed on the responsibility of the Conciliation Commission ‘to bring the parties to an agreement’ (Article 15). This line of caution is also reflected in the Resolution on Conciliation adopted by the Institut de droit international at its Salzburg Session in 1961 (Article 7(1))37 and the un Model Rules for the conciliation of Disputes between States,38 which all remain silent about any relevant parameters for the recommendations of a conciliatory body. 33 See Pellet (supra note 8) 197. 34 Pisillo-Mazzeschi, 77. In the same vein Reimann (supra note 12) 895. 35 Note 3. 36 Of 26 September 1928, reprinted in Grewe (supra note 3) 1067. 37 http://www.justitiaetpace.org/idiE/resolutionsE/1961_salz_02_en.pdf. 38 Adopted by General Assembly Resolution 50/50, 11 December 1995.

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This silence is not amazing, it rather reflects the essence of conciliation as it was conceived in the past. A conciliation commission was not viewed as a law-applying body but rather as a group of experts having to engage their best efforts to bring to an end an open dispute between two States. According to all of these statutes, the rule of law does not constitute the supreme objective. Conciliation, in those former times, was intimately permeated by the scepticism that the law alone is not capable of amalgamating in a satisfactory conclusion the manifold aspects of a given conflict. It is highly significant that the csce procedures deviate from the pragmatic approach that dominated the entire 20th century, until 1990, in line with the increasing tendency of a ‘moralizing’ of international law. The Valletta Mechanism, in its Principles for Dispute Settlement, specifies in Section 6 that the Participating States will endeavour in good faith and in a spirit of co-operation to reach a rapid and equitable solution of their disputes on the basis of international law, and will for this purpose use such means as negotiation, enquiry, good offices, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice … It is obvious that arbitration and judicial settlement must be based on the rules and principles of international law – but this is not as obvious regarding more flexible procedures such as negotiation and conciliation. Yet where the ­Valletta Mechanism refers to the powers of the Valletta Dispute Settlement Mechanism to pronounce itself on the substance of a dispute, the text (Section xi) reiterates that the aim should be ‘to assist the parties in finding a settlement in accordance with international law and their csce commitments’. As a general guideline this phrase would, at first glance, appear to be unobjectionable since its direct addressees are the parties and not the Dispute Settlement Mechanism. Without any doubt the parties to a conflict should primarily seek to adapt their conduct to the law in force, complemented by their csce commitments. The Stockholm Convention has incorporated the language of the Valletta Mechanism when referring to the parameters of legitimacy of the advice given to the parties of a dispute by a Conciliation Commission. Article 24 sc provides: The Conciliation Commission shall assist the parties to the dispute in finding a settlement in accordance with international law and their csce commitments.

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Notwithstanding the cautious formulation of this provision, the question cannot be avoided as to whether the Conciliation Commission, when elaborating its proposals for the settlement, is not bound, on its part, too, by international law and, to a lesser extent, by csce commitments. A textual interpretation could easily reach this conclusion by arguing that any proposals of the Conciliation Commission must be in full accord with what the parties themselves should later do. However, such a far-reaching effect of Article 24 sc would run against the spirit of conciliation. Conciliation cannot be equated with an arbitration procedure with the sole difference that the outcome does not produce a binding effect.39 Conciliation must enable the parties to consider, over and beyond the legal elements involved, any relevant political elements of expediency. Only then can in the majority of cases a fully satisfactory solution be hammered out that will provide solid foundations for the continuation of peaceful relations. Therefore, it would have been useful to mention equity as one of the relevant standards.40 Furthermore, it is trivial to note that in most disputes it proves extremely difficult to find out who breached the law, and to what extent. The normal situation is complex and entangled: both sides come up with allegations of breaches of the law the veracity of which can hardly be ascertained to a full extent. On the other hand, flexibility cannot be boundless under today’s structural stabilization of international law, often called ‘constitutionalization’. Since the advent of the United Nations Charter with its emphasis on peace and human rights, the legal cosmos of international law has ceased to be the outcome of the dealings among individual sovereign States whose power is limitless in legal terms.41 This need not be explained in the present context. The legal concepts of jus cogens and obligations erga omnes reflect the core of those lofty concepts as operative principles. They do not only restrict the legal powers of States but must also be respected by any international bodies rooted in governmental authority.42 Therefore, a Conciliation Commission under the 39

40 41 42

See, e.g., Jean-Pierre Cot, entry ‘Conciliation’, in: Max Planck Encyclopedia of Public International Law, Vol. ii (Oxford: oup, 2012) 576, at 589, para. 27; Pellet (supra note 8) 209. The only author who seems to be satisfied with Article 24 sc is Tullio Treves, ‘Règlement des conflits interétatiques: possibilités et limites à l’aube des systèmes de Stockholm’, in: Lucius Caflisch (ed.), The Peaceful Settlement of Disputes between States: Universal and European Perspectives (The Hague et al.: Kluwer Law International, 1998) 3, at 13. As proposed by Robert Badinter, see Sicilianos (supra note 8) 914. See Christian Tomuschat, ‘International Law’, in: id. (ed.), The United Nations at Age Fifty. A Legal Perspective (The Hague et al.: Kluwer Law International, 1995) 281–308. See Christian Tomuschat, ‘The Security Council and jus cogens’, in: Enzo Cannizzaro (ed.), The Present and Future of Jus cogens (Rome: Sapienza Università Editrice, 2015) 7, paras. 33–34.

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Stockholm Convention would have to abstain, for instance, from recommending, as the outcome of its consideration of the dispute under review, the resettlement of a population that would amount to ethnic cleansing.43 It cannot make itself the agent of a powerful nation that through its military strength has changed the territorial map, hoping thereby to create a fait accompli. What seems easy and self-evident ex ante, however, may cause much greater difficulties once the challenge is to effect reparation after major breaches of international law have occurred. What about territorial issues where illegal annexation has occurred and the question then emerges whether the de facto situation should be recognized as the final territorial configuration? Many times authors have advocated the view that in the case of violations of jus cogens norms no compromise is acceptable and that only full reparation, primarily restitution, may provide a solution fully in accordance with the law. This thesis is belied by the practice of the international community. In its judgment in Germany v. Italy, the International Court of Justice has clearly manifested its view that jus cogens norms are intended to avert evil deeds and occurrences but that, on the other hand, States enjoy wide discretion on how to react ex post to such grave breaches of the international legal order.44 The international community needs mechanisms enabling it to restore a situation of peaceful coexistence even after horrible crimes have been committed. Peaceful conditions could not be re-established if the spirit of hate and revenge could not be put to rest by serious measures of reconciliation that permit a people a fresh start, against the dictum ‘ex iniuria ius non oritur’ which applies only to the immediate sequels of war and conflict but cannot be determinative for a longterm settlement. In sum, it must be recognized that the recommendations of a Conciliation Commission under the Stockholm Convention must remain within the framework of lawfulness and legitimacy defined by the ground norms of the presentday international legal order. They must not infringe these basic parameters of good neighbourly relations and respect for human dignity. On the other hand, no ban should be imposed on a conciliation commission to touch upon even hard issues in a post-conflict period. Dealing with the past is a tremendous 43

44

Respect for rules of jus cogens is also advocated by Lucius Caflisch, ‘The osce Court of Conciliation and Arbitration: Some Facts and Issues’, in: The osce in the Maintenance of Peace and Security (supra note 18) 381, at 394; Helmut Steinberger, ‘The Conciliation Procedure Established by the Convention on Conciliation and Arbitration within the osce’, in: The Peaceful Settlement of Disputes between States (supra note 38) 67, at 76; Nina Vajič, ‘Diplomatic ‘Settlement as Adjudication? Advantages and Drawbacks’, in: The Peaceful Settlement of Disputes between States (supra note 38) 17, at 21–23. icj, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), icj Reports 2012, 99.

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challenge where the available solutions are not predetermined by the letter of the law and where a conciliation commission is then called upon to deploy its entire potential of creativity. ix

Procedural Rules

In the same way as a conciliation commission enjoys wide discretion as to the factors and elements it may take into account when elaborating its recommendations, it also needs considerable freedom in framing its procedures, with one great exception: all the statutes considered regulate with elaborate punctiliousness the constitution of the conciliation body concerned. Indeed, the impact that a conciliation commission may have depends entirely on its independence and impartiality. It is not necessary, in this connection, to give a detailed account of all the techniques that have been imagined with a view to ensuring the fairness of proceedings before a conciliation commission ratione personae. In this regard, no great changes had to be introduced since the inception of conciliation as a procedure governed by international law. The German-Swiss Convention on Arbitration and Conciliation of 1921 had already shaped the model according to which each side appoints one conciliator, and three other members, supposed to constitute the independent core of the commission, are appointed in a way that satisfies both sides as to their impartiality. In the case of the Court, as already pointed out, it is the Bureau which assumes this task (Article 21 (5) sc). One may speak of a pattern that, in other contexts, has stood the test of time and deserves no further discussion. In contradistinction to an arbitration procedure or a procedure of judicial settlement, however, a conciliation commission is empowered to shape its procedures as it sees fit, provided the parties concerned consent to the rules and practices proposed by the commission. The German-Swiss Convention of 1921 showed in this regard total disregard for the ways and means the board of conciliation should proceed regarding in particular the collection of evidence, which is a central issue in any conciliation procedure. It should indeed be ensured that the factual premises of a recommendation or advice correspond to the real situation. Any inaccuracy deprives the opinion of a conciliation commission of any value. Realizing the weakness of the 1921 Convention in this connection, the Geneva General Act of 1928 specified at least that it was the task of the Conciliation Commission ‘to elucidate the questions in dispute, to collect with that object all necessary information by means of inquiry or otherwise’. The Institut de droit international, when setting out its views on

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conciliation in 1961, went one step further in mentioning at least the usual methods of fact-finding by providing (Article 5): If the Commission establishes that the Parties are in disagreement on a question of fact, it may proceed, either at their request or ex officio, to the consultation of experts, to investigations on the spot, or to the interrogation of witnesses. Similarly, the General Assembly of the United Nations did not neglect these technical aspects when in 1995 it concluded as to the issue of fact-finding (Article 12): The parties, acting in good faith, shall facilitate the commission’s work and, in particular, shall provide it to the greatest possible extent with whatever documents, information and explanations may be relevant. The csce mechanisms are drafted in fairly general vagueness. Regarding the Conciliation Commission set up at the Stockholm Conference in December 1992, priority is given to the wishes of the parties. Section v of its statute determines (Article vi (1)): The Commission will consult the parties on the procedure to be followed in the exercise of its responsibilities as described herein. The Commission will give effect to any agreement between the parties on procedure. The only other instruction given tells the Commission that it should ‘seek to clarify the points in dispute between the parties’ (Section ix). Some more substance is provided by the Stockholm Convention and by the Rules of the Court. Article 23 (1) sc states that the conciliation proceedings shall be confidential and that all parties to the dispute shall have the right to be heard. Furthermore, the same provision clarifies that the procedure will be determined by the Conciliation Commission after consultation with the parties to the dispute. The Rules add a caveat in deciding that the rules of procedure laid down by a Conciliation Commission are subject to approval by the Bureau of the Court and that in any event (Article 19 (b)) the parties shall participate in the proceedings and shall co-operate with the commission, in particular by providing the documents and information it may require.

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These are no more than elementary principles of procedural fairness that would apply even in the absence of any written rule. When overviewing all of the rudimentary rules on the operation of the procedure before a conciliation commission, the observer finds that very little is specified in detail. Again, this shows the proximity of conciliation to a political procedure. It distances itself from a political process only through the presence of a third party which, however, is the vital essence of conciliation. The third party is confined to advising, recommending and commenting. Conciliation must therefore hold up a belief in political rationality, in the feasibility of persuading by arguments. Where hate and emotions prevail, conciliation cannot prosper. One may call it therefore a logical consequence that conciliation procedures are not overburdened with technical details. It is left to a conciliation commission to find the appropriate trail for its endeavours. Since the prevailing objective is to reach an outcome acceptable to all parties involved, it would be a futile formality to establish rules for the use of documents, for the interrogation of witnesses and the hearing of experts. Such rules are necessary where the primary aim is to find out the truth, in particular by ruling on guilt or innocence of an accused. In inter-State relations, the presumption of innocence does not apply. Here, the preservation of peace trumps all other considerations.45 One great advantage of the wide margin of discretion granted to a conciliation commission is that it is empowered, at any stage of its proceedings, to seek contact with the parties. The mystery of judicial proceedings where after the final pleadings the judges withdraw and deliberate in secret, sometimes with unexpected results, finds itself institutionally eliminated. True, a conciliation commission remains a separate body whose internal functioning remains closed to the eyes of the outside observer. However, the dividing line between the conciliation body and the parties with whom it has to deal does not ­constitute a watertight wall. Communication between the parties concerned remains open at all times.46 This openness constitutes a formidable asset, making conciliation a process from which all elements of surprise are removed. Here again, the observer finds an advantage of conciliation which to date has not been sufficiently highlighted in legal doctrine.

45

46

However, Helmut Steinberger (supra note 42) 73, has pointed out that the necessity may arise for a conciliation commission to inform itself of the situation on the ground in one of the two countries concerned, a right of visit on the spot being required under such circumstances. Much might be learned from the wto dispute settlement procedures.

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Provisional Measures

The Stockholm Convention even provides for a nucleus of provisional measures. Pursuant to Article 16 (2), a Conciliation Commission may draw the attention of the parties to the dispute submitted to it to the measures the parties could take in order to prevent the dispute from being aggravated or its settlement made more difficult.47 It is obvious that since the final recommendations will lack any binding force, such a ‘hint’ can have no binding force either. The language makes this abundantly clear through its highly cautious choice of words. Yet such tentative steps could one day pave the way for a much bolder practice, as exemplified by the jurisprudence of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights.48 xi Confidentiality In contradistinction to judicial proceedings before an international court, transparency of conciliation proceedings has never been sought. If it is permissible for a conciliation commission to take into account for its concluding recommendations all kinds of arguments, even those of a non-juridical character, a ‘room of secrecy’ must surround the deliberations of the commission. Otherwise it would be brought under the pressure of the media, having to behave strictly according to criteria of political correctness articulated in particular by non-governmental organizations. Publicity is not a value as such. There must be a chance for the members of a conciliation commission to use frank language in his/her submissions, without having to fear the political revenge of those who feel disadvantaged by the position taken.49 Another matter is the publicity of the final outcome of a conciliation proceeding. First of all, it is the parties themselves, who are essentially the masters of the proceeding, to agree on whether the advice given to them should

47 48 49

Article 20(1) of the Rules does not add any substantive element. CCPR/C/3/Rev. 10, 11 January 2012, Rule 92. Article 11 of the Locarno Conventions (supra note 4) states explicitly: ‘The labours of the Permanent Conciliation Commission are not public, except when a decision to that effect has been taken by the commission with the consent of the Parties’.

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be made public.50 However, where a multilateral framework of assistance has been established within an international organization, it would appear almost evident that the responsible institutions of the organization take full cognizance of the relevant materials. Thus, Article 25(5) sc specifies that the csce Council shall be informed if the parties to the dispute have not accepted the proposed settlement. Such information cannot be kept confidential. Forwarding the report to the csce Council means at the same time that the public at large will – and is supposed to – gain access to the relevant facts and the considerations resorted to in attempting to resolve the dispute. The observer may assume, nonetheless, that any report will do its best not to create tensions by revealing details detrimental to either side. xii Costs Costs of international proceedings may rise to considerable amounts. Nonpermanent arbitral bodies must be established before they can become operative. To find the judges and appropriate staff requires a high degree of expertise. Concerning the icj, all States members of the un benefit from the financing of the ‘principal judicial organ’ of the international community (Article 92 Charter) by the un. The operation of the Court, including the salaries of its judges and the staff, is covered by the contributions payable according to Article 17 of the Charter. On the other hand, the parties have to defray the costs for their agents and counsel. In any event, however, it constitutes a great financial advantage for any State wishing to bring a dispute before the icj that it does not have to support the general infrastructure of the Court. The Stockholm Convention has decided, against objections initially raised by the United Kingdom and the United States, to follow the model of the icj. Since the Court was considered the key element of the institutional structure of conciliation and arbitration, the parties committed themselves to meeting the costs of the Court, i.e. the body as such and its infrastructure (Article 13).51 On the other hand, it was also specified that the parties to a dispute shall each bear their own costs. In this regard, the rules concord fully with the corresponding provisions of the icj Statute (Article 64). Different rules have been framed for the Conciliation Commission whose statute 50 51

See also 1961 Resolution of the Institut de droit international (supra note 17), Article 10; un General Assembly Resolution 50/50, Article 25. This is confirmed by the Financial Protocol of 28 April 1993, reprinted in: Revue générale de droit international public 99 (1995) 237.

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(‘Provisions’) was also adopted in December 1992 in Stockholm.52 According to Section xiii of these Provisions, [e]ach party to the dispute will bear its own costs and the costs of the conciliator appointed by it. The rest of the costs of the Commission will be shared equally by the parties. In other words, it is definitely more expensive to have recourse to the informal csce mechanism, which has no legal basis in positive international law. Those who have ratified the Stockholm Convention have thereby created an institution which they can use according to their preferences, and their advantage is that in such case they only have to defray their own costs. This regulation has obviously been intended to serve as an attraction to join the Stockholm Convention. But, as already pointed out several times, the encouragement has not born fruit. xiii Subsidiarity The drafters of the Stockholm Convention have been reluctant to establish their own machinery as a true competitor for the pre-existing mechanisms of dispute settlement. The Preamble emphasizes that the States parties do not ‘in any way’ intend to impair other existing institutions or mechanism’. Following this guideline, Article 19 sc establishes the principle of subsidiarity with great vigour, not only with regard to arbitration, but also with regard to conciliation. One must acknowledge as well founded the judgment reflected in paragraph 2 of Article 19 sc: where the parties engaged in a conciliation proceeding decide to submit their dispute to a court or tribunal, i.e. an institution that is entitled to render a binding decision, a Conciliation Commission ‘shall take no further action’. But the first sentence of paragraph 3 of Article 19 sc would seem erroneous as being much too cautious: A Conciliation Commission shall postpone examining a dispute if this dispute has been submitted to another body which has competence to formulate proposals with respect to this dispute. Why should the Court’s proceedings be inferior to any other conciliation proceeding? No valid ground can be seen that would justify giving precedence to 52

Supra note 23.

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other proceedings of a similar nature. Priority in time should not establish precedence in law. Unfortunately, Article 19 sc sounds as if the drafters had lost confidence in the sensibleness of their own construction. This timidity may also be one of the reasons why the conciliation procedure under the Stockholm Convention has remained a ‘sleeping beauty’ until this very day, more than 23 years after its signature. xiv

Concluding Observations

Notwithstanding the scepticism which has sometimes emerged on the preceding pages, the cause of the csce Court of Conciliation and Arbitration should not be considered lost. All of a sudden, governments may rediscover the Court when they realize that to settle a dispute by peaceful means is by far the best and cheapest solution. Conciliation under the Stockholm Convention may have its negative sides as a result of a high degree of formalism. On the other hand, conciliation within the framework of the Court remains a relatively cheap and swift procedure.53 Initiating and conducting legal proceedings of any kind may lead into frustrating situations. However, resorting to armed force entails invariably higher costs, in particular by demanding human lives. In any event, the Court is ready to fulfil its mission as soon as it is requested to do so.

53

We do not agree with Pierre-Michel Eisemann, ‘La Convention de Stockholm relative à la conciliation et à l’arbitrage au sein de la csce – Quelques observations iconoclastiques’, in: La csce: Dimension humaine et règlement des différends (supra note 8) 213, at 226.

part 3 Specialized Conciliation Procedures

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chapter 8

unesco Mediation and Conciliation Procedure for Promoting the Return and Restitution of Cultural Property Edouard Planche i Introduction: unesco’s Contribution to Promoting the Return and Restitution of Cultural Property Historical Role in Facilitating Restitution Cases and Alternative Resolutions unesco has steadily become an important partner for civil society as well as for its Member States in protecting cultural heritage and diversity. One major pillar in this work is the protection of cultural property, the fight against illicit trafficking of cultural objects and related restitution issues. Illicitly trafficked or otherwise misappropriated cultural property has been claimed back by the countries of origin on many occasions – regardless of time, value or kind of item. unesco, being the primary international organization charged with the protection and promotion of cultural diversity and pluralism as well as the sole specialized agency of the un organization officially mandated with that work, has taken on the task of enabling an objective environment for resolution between disputing parties. In cases of dispute concerning cultural property between unesco Member States, frequently one of the countries involved requests the support of the unesco Secretariat’s good offices. That task can be performed both by unesco Headquarters in Paris, or equally in one of unesco’s offices located across the globe. unesco’s many years of experience in this field are of tremendous help and is frequently called upon, particularly when negotiations are delicate. As an intergovernmental organization, unesco has a clear mandate to cooperate in such dispute cases with the governmental stakeholders as an impartial facilitator. In 1976, a committee of experts under the auspices of unesco met to study the question of the restitution or return of lost cultural property, either due to foreign or colonial occupation, or following illicit trafficking before the entry into force of the 1970 Convention for the concerned States.1 This is due to the fact that the Convention is not retroactive and only applies to

1)

1 Convention Citation. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_009

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States Parties concerned after its entry into force. Underlining the lack of international mechanisms when the 1970 Convention is not strictly applicable, the experts invited the Director-General of unesco to envisage the creation of an international body with the task of identifying ways to facilitate bilateral negotiations between concerned countries for the restitution or the return of cultural property in order to reach an agreement to this effect. Thus, the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (icprcp, hereafter “the Committee”) was created in 1978 at the 20th Session of the unesco General Conference.2 The Committee is a permanent intergovernmental body, independent from the above-mentioned 1970 Convention. In order to finance its activities and support States in the restitution processes, the Fund3 of the Committee was also established in 1978. 2) Establishment of the icprcp and Its Task (Session, Mandate) The States, Parties or not to the 1970 unesco Convention, which have lost certain cultural objects of fundamental significance and are calling for their restitution or return in cases where international conventions cannot be applied may call upon the assistance of the Committee. As the name indicates, the Committee is responsible for the following tasks according to Art. 4 of the Statutes:4 ‘seeking ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin’. In this connection, the Committee may submit proposals with a view to mediation or conciliation for the Member States concerned, contributing, among many other activities, to the promotion of multilateral and bilateral cooperation. Furthermore, it is the Committee’s task to encourage the necessary research and studies for the establishment of representative collections in countries whose cultural heritage has been dispersed. The Committee shall foster a public information campaign on restitution as well as guide the planning and implementation of unesco’s programme of activities with regard to that restitution. Among other things, it encourages the conservation of cultural property as well as the training of the necessary scientific and technical personnel. Moreover, the Committee has to report its activities to the General Conference of unesco. Comprised of 22 unesco Member States, the Committee is mandated over a period of four years, elected every two years, 2 Resolution 20 C4/7.6/5. 3 http://www.unesco.org/new/en/culture/themes/restitution-of-cultural-property/fund -of-the-committee/. 4 http://unesdoc.unesco.org/images/0014/001459/145960e.pdf.

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thus enabling a rotation of half of the members. Especially with regard to conciliation, the Committee’s role is to recommend making use of the procedure while the Secretariat will provide support by offering its good services. ii

icprcp and Its Contribution to Restitution Cases

After 33rd gc Need’s Assessment: Decision to Aim for Development of the Mediation and Conciliation Procedure During the 33rd session of the General Conference (2005), facing the regrettable consequences of losing cultural heritage through theft and illicit exports, the unesco Member States lamented their lack of resources and technical and scientific capacities to resolve the problem. Within the framework of strategies designed and implemented to facilitate the work of the Committee and to enhance the process of restitution of cultural objects, particularly in the context of dispute resolution linked to cultural heritage, unesco’s General Conference adopted a resolution that explicitly articulates the mediatory and conciliatory functions of the Committee. Following the approval of the General Conference to modify the Committee Statutes, a subcommittee was created and tasked with discussing a draft text. At its 16th session in September 2010, the Committee reviewed and adopted the resultant Rules of Procedure for Mediation and Conciliation5 (thereafter Rules of Procedure). Only unesco Member States and Associate Members may defer to the elaborated procedures for mediation and conciliation. However, States may represent the interests of public or private institutions located in their territories, as well as those of their nationals. As mentioned, every two years, each State is invited to nominate and submit to the Secretariat the names of two individuals who may serve as mediators and conciliators. Their qualification is contingent on their competency and mastery in matters of restitution, resolution dispute and other specific characteristics related to the protection of cultural property. The Rules of Procedure are conceived under the general principles of equity, impartiality and good faith, which are intended to promote harmonious and fair resolution for disputes concerning the restitution of cultural property. As such, the text provides for confidential communication in relevant political, diplomatic, juridical and financial matters between the mediators and conciliators and each party. 1)

5 http://unesdoc.unesco.org/images/0019/001925/192534E.pdf.

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The Rules of Procedure for Mediation and Conciliation are meant to be complementary to the work of the Committee. Moreover, their provisions may neither interfere nor slow, prevent, or otherwise threaten other procedural and legislative means. It is important to note that the text adopted by the Committee represents a legal tool that does not constitute a binding normative procedure. Consequently, the principles underlying the Secretariat strategy for facilitating the restitution of stolen or illicitly exported cultural property received wide support. The Rules of Procedure for Mediation and Conciliation aim at facilitating and complementing the work of the Intergovernmental Committee by providing an alternative channel for unesco Member States and Associated Members to find a mutual agreement concerning cultural property disputes. They were discussed during the 14th session (2007)6 and 15th session (2009)7 of the Committee, as well as during an Ad hoc Subcommittee meeting. Their adoption took place, as mentioned above, during its 16th session in 2010.8 2) The Procedure 2.1) Substantive Scope It is of importance that the cultural property in question must be of fundamental significance from the point of view of the spiritual values and cultural heritage of the people of the requesting State. Moreover, it must have been lost as a result of colonial or foreign occupation or as a result of illicit appropriation. 2.2) Personal Scope As for the procedure submitted before the Committee, only unesco Member States and Associate Members of unesco may benefit from a mediation or conciliation procedure.9 If they agree, States may represent the interests of public and private institutions located in their territory or, equally, the interests of their nationals.10 2.3) Mediators and Conciliators Given the complexity of the subject, only specialists with recognized expertise in the field of restitution and/or knowledge with regard to the nature of the dispute or the specificity of the cultural property at stake should be selected to 6 7 8 9 10

http://unesdoc.unesco.org/images/0015/001509/150913e.pdf. http://unesdoc.unesco.org/images/0018/001825/182569E.pdf. http://unesdoc.unesco.org/images/0019/001925/192534E.pdf. Art. 4 (1) Rules of Procedure. Art. 4 (2) Rules of Procedure.

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act as mediators or conciliators. International negotiation experience is advantageous as it facilitates just and mutually acceptable solutions or settlements of the dispute, together with the parties concerned. In this process, they have to be neutral and respectful of the rules of conduct expressly mentioned as fairness, impartiality and good faith. In order to help the parties concerned to identify such experts, the Secretariat draws up and maintains a list of potential mediators and conciliators. This list is at the disposal of the parties for their information and possible use. The parties do not necessarily need to choose their mediator or conciliator from this list and are free to appoint any other mediator and conciliator not included in this list. Currently,11 there are 60 experts designated by their respective country. The secretariat urges Member States on a perpetual basis to submit their nominations of experts to unesco. Only if this absolute number is kept high and maintained, geographical distribution, multilingualism and cultural diversity can be guaranteed while at the same time paying tribute to the variety of legal systems, knowledge and experiences. 2.4) Basic Principles The restitution shall be conducted confidentially in a cooperative manner, while searching for correct information, aiming at the consent of all parties concerned. Additionally, during the 19th meeting of the Committee in 2014,12 Member States noted in their ‘Discussions on the Mediation and Conciliation Rules of Procedure and updating the list of mediators/conciliators’13 that mediators shall in addition to the requirements above also conduct their work with fairness, impartiality, and in good faith (Dec. 9 and 10). 2.5) The Procedure The request for mediation or conciliation needs to be submitted in written form. This request is to be sent to the Director-General of unesco upon mutual consent of the disputing parties, and the chair of the Committee needs to be informed. The request itself shall contain an indication of the subject of the dispute as well as all relevant supporting documents.14

11 12 13 14

As of the deadline for editing this article, 18 December 2015. http://www.unesco.org/new/en/culture/themes/restitution-of-cultural-property/ sessions/19th-session-2014/. ICPRCP/14/19.COM/6; http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/ pdf/6_Mediation_Conciliation_19_ICPRCP_en.pdf. Art. 6 Rules of Procedure.

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The actual appointment of the mediators or conciliators who will in the end carry out the dispute settlement, has to take place within 60 days of the written request by the parties concerned or the Director-General. There are also replacement regulations in place.15 Furthermore, Arts. 8 and 11 clarify the agreement on practical modalities regarding times, places, dates and working languages as well as other organizational issues. Lastly, it is to be noted that one simply cannot foresee how the process unfolds. A settlement can be reached with the consent of the parties to conclude the proceeding. Or else, it is possible that no outcome is achieved due to a lack of consent or simply because of reaching the time limit. 3) Outcome and Restitution Cases under the Procedure In its recent history, the Committee acted successfully as intermediary and facilitator for the return of cultural property. Although the overall number of restitution cases under the Committee’s aegis stays until now below ten, there have been prominent restitutions in recent years. In May 2010, the Barbier-Mueller Museum in Geneva agreed to the restitution of a Makondé Mask to the United Republic of Tanzania. The discussions in the framework of the Committee began in 2006. The Committee continued to cooperate with the Swiss authorities, International Council of Museums (icom) and the unesco Secretariat. In May 2011, a bilateral agreement was reached between Germany and Turkey on the Boğazköy Sphinx. Shortly after the recommendation made during the sixteenth session of the Committee in September 2010,16 the unesco Secretariat was informed in May 2011 that Turkey and Germany had reached an agreement on the case of the Sphinx, and a memorandum of understanding was signed ensuring the return of the Boğazköy Sphinx to Turkey. The case had initially been presented to the Committee in 1987 and led to the adoption of a recommendation17 which invited Germany and Turkey to hold comprehensive bilateral negotiations as soon as possible with a view to bringing this issue to a mutually acceptable solution. Concluding this negotiation was an interesting case, not just because of the item itself but also because it normalized relations again between the countries. It becomes especially apparent in those kinds of cases that restitution

15 16 17

Art. 7 (1) Rules of Procedure. http://unesdoc.unesco.org/images/0018/001896/189639E.pdf. http://unesdoc.unesco.org/images/0018/001896/189639E.pdf.

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of cultural property is a delicate diplomatic issue and does influence public perception and a nation’s heritage. There are, however, still many cases that might be carried before the Committee, the most prominent one being the Parthenon Sculptures on display in the British Museum. On going discussions between Greece and the United Kingdom in respect of the physical reunification of the Parthenon Sculptures have not led to any concrete results yet. In order to achieve an amicable solution, unesco tries to sustain cooperation between the British Museum, the uk, and the Acropolis Museum, Greece. iii

The Holistic Picture

1) Partners of/in the ‘globalized world of today’ The Committee initiates the creation of practical and operational tools. This includes outreach initiatives and awareness-raising activities. It is crucial for the work of the Secretariat and unesco in general to be able to have recourse to a broad network of partners for those important tasks. unesco has, for example, drafted guidelines that address Member States wishing to take specific measures to control the online trade in cultural property. Those ‘Basic Actions concerning cultural objects being offered for sale over the Internet’ have been developed in close cooperation with interpol and the icom. Similarly, in cooperation with the World Customs Organizations (wco) the Committee has drawn up a ‘Model ExportCertificate for cultural objects’ which was specially adapted to the growing phenomenon of cross border movements of cultural objects. The current situation in export certificates has shown the Secretariat that usually the same export form is used for ‘ordinary’ objects (computers, clothes, etc.) as for cultural objects. This model fulfils requirements for identifying and tracing cultural objects. unesco and the wco recommend adopting the model, in its entirety or in part, as the national export certificate specifically for cultural objects. Conciliation as One Part of unesco’s Many Attempts to Protect Cultural Diversity Since the icprcp initiates the creation of other practical tools and prior to rising media attention on the issue of restitution of cultural property, a more holistic picture has to be presented in order to understand how the Committee’s restitution activities complement the overall Secretariat’s and unesco’s general work in protecting cultural property.

2)

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Other efforts of the Committee have included the drafting of the ‘unesco International Code of Ethics for Dealers in Cultural Property’18 (1999) which brings to the States’ attention the approach of curbing the demand side of illicit trafficking of cultural property. Only when this is achieved and only when such items are no longer sold, might the illegal market be overcome. Understandably, this is a delicate issue as voluntary codes do not have the same influence as mandatory sets of rules. However, in the experience of the Secretariat there have been examples of a change in dealers’ perceptions of what constitutes good and ethical conduct. The Secretariat also supports Member States but also any other interested institution or individual wishing to inquire about national legislation on cultural property protection in providing an online database of National Cultural Heritage Laws19 (2005). Therein, unesco Member States provide freely accessible copies of their national laws regarding the protection of cultural heritage and property. Moreover, awareness-raising campaigns have been launched, including partners from a wide range of different fields. Among others, unesco has worked with the French luxury umbrella organization ‘Comité Colbert’, the regulatory institution in France, called ‘Conseil Ventes Volontaires’, and closely cooperates with different Museums such as the ‘Prussian Heritage Foundation’ and its ‘Pergamon Museum’ in Berlin. Bearing in mind the latest developments in the Middle East, currently the main task of unesco’s Movable Heritage and Museums Section, is conducting workshops in the region in order to put an end to looting and illicit trafficking which is of the utmost importance. From June 2012 to April 2015, unesco organized 26 workshops with more than 132 participating countries, involving approximately 1000 participants. The objective is to reach police, customs authorities, archaeologists, museum staff and policy makers, etc. to raise awareness on the loss of identity and history that comes with the menaces currently carried out by terrorist organizations while trying to generate financial revenue for their barbaric acts. unesco has also been mandated by United Nations Security Council Resolution 2199 from 2015 to assist in the fight against pillaging of the cultural heritage in Syria and Iraq. The Secretariat is currently reviewing the un Member

18 http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/ legal-and-practical-instruments/unesco-international-code-of-ethics-for-dealers-in -cultural-property/. 19 http://www.unesco.org/culture/natlaws/.

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States’ implementation reports and will draw conclusions and recommendations for future actions from that. iv Conclusion It has become apparent that today’s globalized world has resulted in a manifold variety of new challenges. Be it the illicit trafficking of objects from mainly, but not exclusively, the Middle East or the steadily increasing number of requests for restitution of cases dating back decades or centuries, unesco plays an important role as it is charged with these topics as the primary un body and thus the sole international organization mandated to protect cultural heritage. The Secretariat of the Committee is actively engaged in implementing processes such as mediation and conciliation while at the same time not losing sight of the bigger picture. A rise in restitution claims is to be expected, drawing public perception to the topic as well as enhancing the States’ interest in providing for cultural heritage protection themselves. It will be unesco’s task to continue in the future with these processes and in providing its good offices. Having many decades of experience and a vast network of experts available for assistance reflects the organization’s readiness in meeting the world’s new needs for conciliation and mediation in a globalized world.

chapter 9

Elements of Conciliation in Dispute Settlement Procedures Relating to International Economic Law August Reinisch i Introduction As explained by Christian Tomuschat, ‘conciliation has less well-defined contours’ than arbitration.1 Indeed, conciliation or similar forms of dispute settlement involving third parties, but still being fundamentally based on a mutual consent of the disputing parties, may take various forms and are often not very clearly defined.2 Nevertheless, there seems to be quite a broad field of application for conciliation and similar dispute settlement techniques in international economic law or – as the organizers of this conference have very aptly suggested – quite a broad base of dispute settlement techniques in which “elements” of conciliation can be traced. These range from the traditional inter-state wto dispute settlement, to alternatives to mixed arbitration in the field of investor-state dispute settlement (isds) and to conciliatory elements in settling financial and monetary disputes. 1 Christian Tomuschat, ‘Conciliation – Its Significance in the Globalized World of Today’ Outline of an International Colloquium Placed under the Authority of the osce’, exposé, 1 October 2014, p. 1. 2 Pursuant to the Institut de Droit International conciliation is ‘a method for the settlement of international disputes of any nature according to which a commission set up by the parties, either on a permanent basis or on an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the parties, with a view to its settlement, such aid as they may have requested’. (Art. 1 Institut de Droit International, ‘Resolution on International Conciliation’ 49(ii) (1961) Annuaire de l’Institut de Droit International 385). However, legal scholars do not always agree on what the precise differences between ‘conciliation’ and ‘mediation’ may be, indeed, both terms are occasionally used interchangeably, see Linda Reif, ‘Conciliation as a Mechanism for the Resolution of International Economic and Business Disputes’, 14 (1990) Fordham International Law Journal 584; see also infra note 28. For the purpose of this article, both terms are used interchangeably.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_010

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The following contribution will provide an overview of the use of conciliation in international economic law as well its potential for more frequent recourse to such an alternative to judicial or arbitral dispute settlement. ii

The Actual Use of Conciliation in International Economic Law

Some elements of conciliation can actually be traced in the practice of settling disputes of a financial and/or monetary character between states and between states and international organizations. The ad hoc solutions sought in fora like the Paris Club, or the London Club, when it comes to restructuring sovereign debt vis-à-vis official and private creditors, or similar attempts through bondholder committees sometimes integrate conciliation elements. However, usually the emphasis is on direct negotiations between creditors and debtors, rather than on conciliation through third parties. Thus, in the following overview the focus will be on wto dispute settlement and on conciliation elements in isds. 1) wto Dispute Settlement In wto dispute settlement, conciliation takes a rather prominent position as a form of alternative dispute settlement, alternative to the prescribed twotiered quasi-arbitral dispute settlement between wto members which is provided for in the Dispute Settlement Understanding (dsu).3 Article 5 dsu explicitly provides for conciliation together with good offices and mediation 3 wto Dispute Settlement Understanding, 33 (1994) ilm 1226. See on wto dsu in general Lorand Bartels, ‘The Applicable Law in wto Dispute Settlement Proceedings’, 35 (2001) jwd 499; Peter Gallagher, Guide to Dispute Settlement (Kluwer 2002); William J. Davey, ‘The wto Dispute Settlement Mechanism’ (2003) Illinois Public Law Research Paper No 03–08; Meinhard Hilf, ‘Power, Rules and Principles – Which Orientation for wto/gatt Law?’ 4 (2001) jiel 111; John H. Jackson, The World Trade Organization – Constitution and Jurisprudence (Routledge 1998); Norio Komuro, ‘The wto Dispute Settlement Mechanism: Coverage and Procedures of the wto Understanding’, 29 (1995) Journal of World Trade 5; Donald McRae, ‘What is the Future of wto Dispute Settlement?’ 7 (2004) jiel 3; David Palmeter, Petros C. Mavroidis, Dispute Settlement in the World Trade Organization – Practice and Procedure (2nd ed, cup 2004); Ernst-Ulrich Petersmann, International Trade Law and the gat/wto Dispute Settlement System (Kluwer 1982); Giorgio Sacerdoti, Alan Yanovich, Jan Bohanes (eds), The wto at Ten: The Contribution of the Dispute Settlement System (cup 2004); Rüdiger Wolfrum, Peter-Tobias Stoll, Karen Kaiser (eds), wto – Institutions and Dispute Settlement (Max Planck Commentaries on World Trade Law) (Brill 2006).

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as a voluntary4 and confidential5 form of dispute settlement that can be resorted to at any time, most likely before the panel process, but even during such process.6 The procedural rules also emphasize the importance of this ‘voluntary’ dispute settlement method by enabling the Director General to ‘offer’ good offices, conciliation and mediation to the parties.7 In spite of its prominent place in the dsu, it seems, however, that conciliation is not frequently resorted to in practice.8 The reasons for that appear manifold. The emphasis on ‘voluntary’ dispute settlement appears as a relic of the old gatt trade diplomacy, the period when gatt dispute settlement was gradually developed in practice on the basis of the very loose directions contained in Articles xxii and xxiii gatt.9 Since successful dispute resolution under the old gatt dispute settlement was ultimately dependent upon the acceptance of the outcome under the (old) consensus rule, the entire gatt dispute settlement system had a strong resemblance to conciliation where the outcome also needs to be approved by the disputing parties. This was exactly what the requirement to ‘consent’ to the adoption of the final panel reports under the gatt dispute settlement system amounted to. Since this element was inherently foreign to the notion of true third party adjudication of disputes, it was eliminated in the new wto dsu, albeit in a rather awkward way by reversing the traditional consensus. Modern ‘reverse consensus’ de facto means

4 Art. 5 para. 1 dsu, supra note 3 (‘Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree’.). 5 Art. 5 para. 2 dsu, supra note 3 (‘Proceedings involving good offices, conciliation and mediation, and in particular positions taken by the parties to the dispute during these proceedings, shall be confidential, and without prejudice to the rights of either party in any further proceedings under these procedures’.). 6 Art. 5 para. 3 dsu, supra note 3 (‘Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begin at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are terminated, a complaining party may then proceed with a request for the establishment of a panel’.). 7 Art. 5 para. 5 dsu, supra note 3 (‘The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute’.). 8 According to ‘A Handbook on the wto Dispute Settlement System. A wto Secretariat Publication’ (2004), 95, conciliation has not been used. More recent official wto data is not available. 9 Ernst-Ulrich Petersmann, The gatt/wto Dispute Settlement System: International Law, International Organizations and Dispute Settlement (Kluwer Law International, 1997) 70–72, 84–91; William. J. Davey, ‘Dispute Settlement in gatt’, 11(1) (1987) Fordham International Law Journal 51, 61–65.

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automaticity, but at the same time it satisfies those fond of institutional memories by retaining the very loose reminiscence of ‘consensus’.10 Without further speculating why this rather unique veto-prone consensus was transformed into modern ‘reverse consensus’, it is clear that reforming the old trade diplomacy into a true trade dispute settlement system with obligatory jurisdiction ratione materiae over all disputes under the ‘covered agreements’, i.e. trade disputes, and ratione personae over all wto members was a major achievement towards trade adjudication giving all wto members, regardless of their size and power, equal access to independent third party adjudication of disputes. Conciliation – still possible and even institutionally supported by the organization – may be too reminiscent of the old power determined trade diplomacy to be resorted to. In addition, even the modern wto dsu is very distinct from other adjudication systems. The outcomes are still ‘rulings’ on potential violations plus ‘recommendations’ on how to act in conformity with wto obligations. There are no provisions permitting a complaining party to request damages to offset the economic harm suffered by wto inconsistent behaviour of another member. Only the voluntary offer of ‘compensation’ by wto members, found to act inconsistently with its wto obligations and still wishing to maintain this course of action, which may prevent trade retaliation measures by the opposing party, resembles to some degree classic ‘damages’ awarded for non-compliance with international legal obligations which cause economically assessable harm. The fact that wto members may ‘buy their way out’ of wto obligations by offering compensation or accepting trade retaliation has been noted as a characteristic of wto dsu, weakening its trade ‘adjudication’ nature.11 In 10

11

William J. Davey, ‘The wto and Rules-Based Dispute Settlement: Historical Evolution, Operational Success, and Future Challenges’, 17 (2014) jiel 679; Michael Esser, ‘Conflict Resolution under the General Agreement on Tariffs and Trade: Experience and Reform’, in: Daniel Friedmann and Ernst-Joachim Mestmäcker (eds), Conflict Resolution in International Trade: A Symposium (Baden-Baden: Nomos, 1993); Kofi Oteng Kufor, ‘From the gatt to the wto: The Developing Countries and the Reform of the Procedures for the Settlement of International Trade Disputes’, 31 (1997) Journal of World Trade 117; Joseph H.H. Weiler, ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of wto Dispute Settlement’, 35 (2001) Journal of World Trade 191. Judith Hippler Bello, ‘The wto Dispute Settlement Understanding – Less is More’, 90 (1996) ajil 416; John H. Jackson, ‘The wto Dispute Settlement Understanding – Misunderstandings on the Nature of Legal Obligation’, 91 (1997) ajil 60; id, ‘International Law Status of wto Dispute Settlement Reports: Obligation to Comply or Option to

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the end, wto members, though formally having to accept that panel and/or Appellate Body rulings may not be in their favour, still have the option of not accepting them in substance, i.e. avoiding compliance with those rulings. This is, of course, an element which points away from the trade ‘adjudication’ paradigm and towards trade diplomacy, or even conciliation. The bottom line is, a wto member does not really have to accept a dsu outcome without agreeing to it.12 This may be a further ground that there is no real need for conciliation, as well as good offices and mediation, as alternatives to wto panel proceedings. Finally, the consensual element of obligatory consultations required b­ efore formally triggering the panel process incorporates a number of elements also prominent in conciliation that may make recourse to formal conciliation superfluous. Most importantly – like in conciliation – parties engaging in s­ erious consultations will ultimately have to accept the outcome of their discussions, negotiations, etc. While conciliation brings in a third party, assisting the disputing parties to find a resolution of their dispute, this may not be a sufficient added benefit when parties have already spent considerable time, not being able to solve their differences and wishing to have a third party deciding independently. 2) Investor-State Dispute Settlement (isds) In investment dispute settlement, conciliation appears to have a much more prominent role than in most other fields of economic dispute settlement. Institutionally, this is most evident in the icsid Convention, where conciliation figures as an equivalent method of isds next to arbitration. According to Article 1 of the Convention establishing the Centre for the Settlement of Investment Disputes its purpose is to provide facilities for ‘conciliation and

12

“Buy Out”?’ 98 (2004) ajil 109; W.F. Schwartz and Alan O. Sykes, ‘The Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization’, 31 (2002) jls 179. See e.g. Rajesh R. Babu, Remedies under the wto Legal System (Martinus Nijhoff, 2012); Yuka Fukunaga, ‘Securing Compliance through the wto Dispute Settlement System: Implementation of dsb Recommendations’, 9 (2006) jiel 383; Patricio Grané, ‘Remedies under wto Law’, 4 (2001) jiel 755; Gary N. Horlick, ‘Problems with the Compliance Structure of the wto Dispute Resolution Process’, in: David L.M. Kennedy, and James D. Southwick (eds.), The Political Economy of International Trade Law: Essays in Honour of Robert E Hudec (cup, 2002); John Magnus, ‘Compliance with wto Dispute Settlement Decisions: Is There a Crisis?’ in: Rufus Yerxa and Bruce Wilson (eds), Key Issues in wto Dispute Settlement: The First Ten Years (cup, 2005).

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arbitration of investment disputes’.13 Article 25 of the Convention which ­delimits the ‘jurisdiction’ of the Centre does so by treating arbitration and ­conciliation on an equal footing. Also other institutions expressly provide for ‘conciliation’ of investment disputes. The United Nations Commission on International Trade Law (uncitral) has adopted rules for conciliation (uncitral Conciliation Rules).14 Also, the International Chamber of Commerce (icc), the Permanent Court of Arbitration (pca)15 and the Stockholm Chamber of Commerce (scc)16 have adopted rules providing for conciliation/mediation either for dispute settlement in general or expressly for investment disputes. In spite of this formal equivalence of conciliation and arbitration in wide parts of isds, which actually also justifies the increased use of the term isds instead of investor-state arbitration which is only part of the broader range of possible dispute settlement methods, it is also clear that arbitration is by far the most widely resorted to method of settling investment disputes. Compared to arbitration, conciliation or mediation has played only a marginal role in practice.17 This fact is corroborated by the available statistics.

13

Article 1 para. 2 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (icsid Convention), 18 March 1965, 575 unts 159; 4 (1965) ilm 532. 14 20 (1981) ilm 300. On the uncitral Model Law on International Commercial Conciliation (2002) (un Doc. A/CN.9/WG.II/WP.108); see E van Ginkel, ‘The uncitral Model Law on International Commercial Conciliation: A Critical Appraisal’, 21(1) (2004) J. Int’l Arb. 1. See also Pieter Sanders, The Work of uncitral on Arbitration and Conciliation (Kluwer Law International, 2004). 15 The Permanent Court of Arbitration Optional Conciliation Rules, Effective July 1, 1996, available at last visited 10 November 2015, which are based on the uncitral Conciliation Rules are “intended for use in conciliating disputes in which one or more of the parties is a State, a State entity or enterprise, or an international organization”. On this basis the pca also adopted Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment, Effective April 16, 2002, available at last visited 10 November 2015. 16 icc Mediation Rules, available at last visited 10 November 2015; Mediation Rules of the Stockholm Chamber of Commerce, available at last visited 10 November 2015. 17 See unctad, Series on International Investment Agreements ii: Investor-state dispute settlement: A sequel (2014) 61, available at last visited 10 November 2015.

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Although one has to use them cautiously, of course, since not all ­arbitrations are publicly known and equally the confidential nature of conciliation proceedings will often lead to situations where successful conciliations are not even in the public domain. In regard to icsid, however, statistics are likely to be quite reliable since icsid publishes all requests for either conciliation or arbitration that have been registered by its Secretary General. As of 31 December 2014, icsid had registered 497 cases under the icsid Convention and Additional Facility Rules, thereof only seven conciliation cases have been registered under the icsid Convention and two conciliation cases have been registered under the icsid Additional Facility Rules.18 When reflecting on a potential widening of the actual use of conciliation in the settlement of investment disputes, it is useful to consider the reasons why conciliation is currently much less frequently resorted to than arbitration. One reason for the dominance of arbitration may lie in the mixed character of isds where not only states are confronting each other, but where private parties are those who usually take the initiative. In the current debate on isds,19 investors are generally suspected to be prone to more litigious aspirations than states. It may be worthwhile to take a closer look at these underlying assumptions. One aspect seems clear: in the absence of isds, far fewer cases would be put before independent third party adjudication or arbitration through espousal of claims by home states of aggrieved investors. States espousing claims of their nationals having invested in other states and allegedly suffered harm in violation of customary international law or an applicable bilateral investment treaty (bit) or other international investment agreement (iia) may be more reluctant to go directly to judicial dispute settlement than the harmed investors themselves. Indeed home states may want to balance other interests they are pursuing in their foreign policy towards host states of their investors. These considerations are reflected in the low number of cases litigated before international courts or tribunals on an inter-state level. Barcelona 18

19

See The icsid Caseload – Statistics (Issue 2015–2), chart 1 and 3 on pages 7–8, last visited 10 November 2015; overall, there are 608 known isds claims by the end of 2014, unctad World Investment Report 2015, p. 112 and figure III.7 on page 114. See, e.g., R. Mason, ‘“Corporate wolves” will exploit ttip trade deal, mps warned’ (The Guardian, 15 January 2015), available at last visited 10 November 2015.

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Traction,20 elsi21 and Diallo22 are the few remarkable examples before the icj, but also on the basis of iias which regularly provide for the possibility of state-state arbitration of investment disputes, home states rarely take such initiatives.23 In spite of these facts there seems to be a new move towards conciliation/ mediation in the area of isds.24 Currently, there is an important debate on the use of mediation in investment disputes.25 The International Bar Association 20 21 22 23

24

25

Case concerning the Barcelona Traction, Light and Power Co Ltd (New Application: 1962) (Belgium v Spain) (Second Phase) Judgment, 1970 icj Reports 3. Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy) (Judgment), 1989 icj Reports 5. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (Merits), Judgment, 2010 icj Reports 639. Republic of Ecuador v. United States of America, pca Case No. 2012–5, Award 29 September 2012 (not public), last visited 10 November 2015; Republic of Peru v Republic of Chile, discontinued, see unctad, Investor – State Disputes arising from Investment Treaties: A Review, unctad Series on International Investment Policies for Development (New York and Geneva: United Nations, 2005), 12, n. 1; Italian Republic v. Republic of Cuba, ad hoc state-state arbitration, Award 1 January 2008 last visited 10 November 2015; see also A Roberts, ‘Stateto-State Investment Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’, 55 (2014) hilj 1, and Wolfgang Alschner, ‘The Return of the Home State and the Rise of “Embedded” Investor-State Arbitration’, in Shaheeza Lalani and Rodrigo Polanco (eds), The Role of the State in Investor-State Arbitration (Martinus Nijhoff, 2014) 293. See Mariel Dimsey, The Resolution of International Investment Disputes (Eleven International Publishing 2008) 144 et seq.; Susan D. Franck, ‘Using Investor-State Mediation Rules to Promote Conflict Management: An Introductory Guide’, 29(1) (2014) icsid Review 66, 80. See Jack J. Coe, ‘Toward a Complementary Use of Conciliation in Investor-State Disputes – A Preliminary Sketch’, 12 (2005) uc Davis Journal of International Law and Policy 7; Susan D. Franck, ‘Challenges  Facing Investment Disputes: Reconsidering Dispute Resolution in International Investment Agreements’, in: Karl P. Sauvant (ed), Appeals Mechanism in ­International Investment Disputes (oup 2008) 143; Barton Legum, ‘The Difficulties of Conciliation in Investment Treaty Cases: A Comment on Professor Jack C. Coe’s “Toward a Complementary Use of Conciliation in Investor-State Disputes A Preliminary Sketch”’, 21 (2006) Mealey’s International Arbitration Reporter 23; U. Omwuamaegbu, ‘The Role of adr in Investor-State Dispute Settlement: The icsid Experience’, 22 (2005) News from icsid 12; Jeswald W. Salacuse, ‘Is There a Better Way? Alternative Methods of Treaty-Based, Investor-State Dispute Resolution’, 31 (2007) Fordham International Law Journal 138; Nancy A. Welsh and Andrea Kupfer Schneider, ‘The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration’, 18 (2013) Harvard Negotiation Law Review 71.

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has recently adopted rules on the mediation of investor-state disputes which have been widely discussed.26 Most often, the terms ‘conciliation’ and ‘mediation’ are used interchangeably27 and there is no consensus on what the precise difference should be.28 2.1) Conciliation/Mediation Elements as a Precondition to Arbitration The requirement to resort to consultations/amicable settlement attempts prior to the initiation of arbitral proceedings has become a fairly common feature in iias.29 In this connection, it is important to note that this often constitutes a pre-condition for a host state’s consent to arbitration.30 However, arbitral tribunals have been divided over the question whether the non-compliance with an amicable settlement requirement affects a tribunal’s jurisdiction or whether this is a mere procedural formality that may be cured by actual lapse of time.31 26

See Wolf von Kumberg, Jeremy Lack and Michael Leathes, ‘Enabling Early Settlement in Investor-State Arbitration: The Time to Introduce Mediation Has Come’, 29(1) (2014) icsid Review 133–141. The iba rules are available at last visited 10 November 2015. 27 See e.g. Luc Demeyere, ‘About Dispute Resolution and Conflict Management’, 19(3) (2003) Arb. Int’l 313,321; Hilmar Raeschke-Kessler and Klaus Peter Berger, Recht und Praxis des Schiedsverfahrens (RWS-Verlag 2006) 23 et seq.; Pieter Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice (Kluwer Law International, 1999), Chapter 6. 28 According to Jan Paulsson, Nigel Rawding, Lucy Reed and Eric A. Schwartz, The Freshfields Guide to Arbitration and adr. Clauses in International Contracts (Kluwer Law International 2010) 109 et seq., conciliators play a more active role providing concrete proposals for a settlement to the parties while according to Julian D.M. Lew, Loukas Mistelis and Stefan Kröll, Comparative International Commercial Arbitration (Kluwer Law International 2003) 13 et seq., ‘mediators’ are more active than ‘conciliators’. 29 E.g. nafta Articles 1118–1120 or Article 26(2) of the ect. See Christian Tams, ‘Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?’ 15 (2014) Journal of World Investment and Trade 603. 30 See Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd ed, oup 2012) 268 et seq. 31 In Murphy Exploration and Production Company International v. Republic of Ecuador, icsid Case No. ARB/08/4, at para. 194, the tribunal established that this requirement ‘constitutes a fundamental requirement that Claimant must comply with, compulsorily, before submitting a request for arbitration under the icsid rules’. Other investment tribunals, however, treated ‘consultation periods as directory and procedural rather than as mandatory and jurisdictional in nature’. sgs Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, icsid Case No. ARB/01/13, Decision on Jurisdiction of 6 August 2003, para. 184. See also August Reinisch, ‘From Rediscovered Waiting Periods to Ever More

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While conciliation or mediation usually do not figure as separate prerequisites before opening access to arbitration in iias, some of them actually integrate conciliation/mediation elements into the amicable settlement requirement. In some iias, for instance, conciliation is introduced as a technique facilitating such amicable settlement. For instance, in the Belgo-Luxembourg Economic Union/Venezuela bit amicable settlement may be assisted “by conciliation”.32 2.2) Conciliation as a Host State-friendly Alternative to Arbitration One of the apparent reasons here is probably less a renewed interest in the virtues of conciliation, but rather a general increased scepticism, if not, hostility vis-à-vis investment arbitration. This has led not only to a general backlash against investment arbitration by states ‘exiting’ the icsid Convention and terminating their iias,33 but also to an increasing political impetus to question the need for investment arbitration in general. The current eu-us Transatlantic Trade and Investment Partnership (ttip) debate is illustrative of this fact.34 Thus, it is very controversial and unclear whether and, if it all, isds will form part of an agreement with the United States.35 The ttip negotiations were

32

33 34

35

Activist Annulment Committees – icsid Arbitration in 2010’, 11 (2011-II) Global Community yilj 933. Article 9(1) Agreement between the Belgo-Luxembourg Economic Union and the Government of the Republic of Venezuela for the Reciprocal Promotion and Protection of Investments, 2254 unts 395 (‘Any dispute between an investor and the other Contracting Party concerning the application of this Agreement shall be subject to written notification, accompanied by a sufficiently detailed memorandum from the investor. As far as possible, the Parties shall endeavour to settle the dispute amicably by negotiation, where necessary seeking expert advice from a third party or by conciliation’.). See Michael Waibel, Asha Kaushal, K. Chung and Cassandra Balchin (eds.), The Backlash Against Investment Arbitration (Kluwer Law International, 2010). See in general on the eu’s investment policy Marc Bungenberg, August Reinisch and Christian Tietje (eds), eu and Investment Agreements – Open Questions and Remaining Challenges (Nomos, 2013); Marc Bungenberg and August Reinisch (guest eds.), The Anatomy of the (Invisible) eu Model bit, 15 (2014) The Journal of World Investment and Trade 679. While the 2013 Council, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, available at last visited 10 November 2015, called for investor-state arbitration, the European Parliament has always been sceptical and the Commission presented in mid-September 2015 a negotiating proposal to the us replacing arbitration by a “permanent investment court”, Commission draft text ttip – investment, 16 September 2015, available at last visited 10 November 2015. 36 eu Trade Commissioner de Gucht launched a public consultation on the eu’s investment chapter within the eu-us Free Trade negotiations. See European Commission, Press Release of 21 January 2014, last visited 10 November 2015. 37 Consolidated ceta Text, published on 29 February 2016, available at last visited 19 September 2016. 38 Article 8.19 Consolidated ceta Text, supra note 37 (‘A dispute should as far as possible be settled amicably. Such a settlement may be agreed at any time, including after the claim has been submitted pursuant to Article 8.23. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the request for consultations pursuant to paragraph 4. […]’.). 39 Article 8.20 Consolidated ceta Text, supra note 37 (“The disputing parties may at any time agree to have recourse to mediation. […]”). 40 Article 8.20 para. 1 Consolidated ceta Text, supra note 37.

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the entire process of settling trade disputes.41 The Article further contains provisions on the appointment of a mediator42 and on a stay of time periods during any mediation interlude.43 Article 8.20 paragraph 4 ceta further prescribes that disputing parties ‘shall endeavour to reach a resolution of the dispute within 60 days from the appointment of the mediator’.44 This extremely short time period does not appear to provide a realistic option for the resolution of often highly technical and complex investment disputes. However, the language is clearly hortatory only, and given the mutually consensual process of mediation/conciliation disputing parties will certainly not be prevented from continuing to be engaged in mediation if they so wish. iii

General Policy Thoughts on the Use of Conciliation and Other Forms of adr in the Settlement of International Economic Law Disputes

Various forms and techniques of dispute settlement have advantages and disadvantages. When it comes to endorsing resort to specific forms of dispute settlement it is thus necessary to consider these pros and cons in order to be able to provide clear and substantiated recommendations. 1) Advantages of Conciliation Conciliation offers a number of advantages to disputing parties in specific circumstances. To what extent they may prevail over the advantages of third party determinations of a dispute will have to be assessed in each specific case. The following overview lists a few considerations in this regard.

41 See above text at note 4. 42 Article 8.20 para. 3 Consolidated ceta Text, supra note 37 (‘The mediator is appointed by agreement of the disputing parties. The disputing parties may also request that the Secretary-General of icsid appoint the mediator. 43 Article 8.20 para. 5 Consolidated ceta Text, supra note 37 (‘If the disputing parties agree to have recourse to mediation, Articles 8.19.6 and 8.19.8 shall not apply from the date on which the disputing parties agreed to have recourse to mediation to the date on which either disputing party decides to terminate the mediation. A decision by a disputing party to terminate the mediation shall be transmitted by way of a letter to the mediator and the other disputing party.). 44 Article 8.20 para. 4 Consolidated ceta Text, supra note 37.

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1.1) Maintaining Future Relations Conciliation enables the disputing parties to continue their legal and economic relations. This may be particularly important in the context of long-term investments. A successful conciliation will enable the parties to continue their investment relationship. As opposed to other business relationships, in particular in the field of private commercial relations, investment decisions usually imply a long-term commitment; both investors and host states usually will have an interest in continuing this relationship which often becomes profitable only after a considerable period of time. Thus, the practical need to continue working together may lead to a preference for conciliation over the ‘exit strategy’ of arbitration in which investors usually try to ‘salvage’ financially what is left from an investment that can no longer be continued.45 A similar, though even less cogent argument may be made in the context of trade disputes where successful conciliation could help to avoid the political ‘irritation’ triggered by formal dispute settlement proceedings. 1.2) Avoiding Costs of Arbitration This ‘irritation’ is actually linked to the question to what extent third party dispute settlement in the form of arbitration or panel determinations in the context of the wto entail political costs in the form of a nuisance or irritation cost by the party against whom such dispute settlement proceedings are instituted. There is still an unexpressed sentiment that bringing dispute settlement proceedings against a state is regarded as an “unfriendly act” that may imply diplomatic costs in inter-state relations.46 Similarly actual financial costs may be saved by having recourse to conciliation or mediation. Especially investment arbitration has started to impose quite considerable financial burdens on both parties as a result of high representation costs and, to a lesser degree, of the actual costs of arbitration consisting of arbitrator and institutional fees. 1.3) Shorter Duration Conciliation or mediation thus has the potential to save not only costs, but also time. Because it generally requires only the selection of one mediator, less time is often needed to inform the mediator of the parties’ basic positions for purposes of exploring an amicable resolution than for fully arbitrating or 45 46

See Susan D. Franck, ‘Using Investor-State Mediation Rules to Promote Conflict Management: An Introductory Guide’, 29(1) (2014) icsid Review 66, at 88. Kumberg, Lack and Leathes (supra note 26) 141.

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adjudicating a dispute.47 Settlements obviate the need for (lengthy) written decisions. The parties can immediately ‘move on’ in their relations once they have agreed. 1.4) More Efficient Outcome The consensual outcome of conciliation or mediation is generally regarded as reducing the risk of non-compliance.48 An outcome that is accepted by both parties should thus entail a higher rate of ‘voluntary’ compliance than one that is imposed on a ‘losing’ party by judicial or arbitral fiat. 1.5) Confidentiality Finally, the inherently confidential nature of conciliation or mediation is likely to be preferred by parties who wish to avoid the publicity of dispute settlement in the adjudicatory or arbitral arena of the wto or of investment arbitration.49 Today, both wto proceedings as well as most investment disputes are subject to a high level of transparency which implies that both the fact that proceedings are instituted and the outcome in the form of wto reports and icsid or other isa awards are usually publicly available. In some situations, the parties may wish to avoid such publicity. Mediation and conciliation are thus the remaining options for them. 2) Disadvantages At the same time, one should not neglect the potential disadvantages of conciliation and mediation. The following paragraphs summarize a few elements that parties will consider before opting for these alternative forms of dispute settlement. 2.1) Open, Indeterminate Outcome Mere conciliation or mediation has the risk of failing to clarify the rights and obligations of the disputing parties.50 For the sake of finding a mutually 47 48 49

50

See also S. Constain, ‘Mediation in Investor-State Dispute Settlement: Government Policy and the Changing Landscape’, 29(1) (2014) icsid Review 25, at 40. Kumberg, Lack and Leathes (supra note 26) 141. Silvia Constain, ‘Mediation in Investor–State Dispute Settlement: Government Policy and the Changing Landscape’, 29(1) (2014) icsid Review 25, 35; Jack J. Coe, ‘Toward a Complementary Use of Conciliation in Investor-State Disputes – A Preliminary Sketch’, 12(1) (2005) UC Davis Journal of International Law and Policy 7, 23. Constain (supra note 49) 33; Linda C. Reif, ‘Conciliation as a Mechanism for the Resolution of International Economic and Business Disputes’, 14(3) (1990–1991) Fordham International Law Journal 578, 586.

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acceptable solution, conciliators may prefer to avoid making clear determinations. This lack of truly resolving the underlying dispute may lead to a ‘quasisolution’ which keeps the dispute latently alive with the consequence that it may ‘erupt’ again at a later stage. 2.2) Loss of Time Thus, conciliation or mediation sometimes risks postponing third party adjudication. This is true both for ‘successful’ conciliations or mediations – where as described above a latent conflict is not truly resolved – as well as for merely obligatory attempts to solve a dispute by conciliation or mediation before arbitration or adjudication may be resorted to. The failed conciliation or mediation will only add to the length of the overall process without meaningfully contributing to the resolution of a dispute. In a certain way the entire notion of obligatory conciliation or mediation seems counter-intuitive and inherently incompatible with the voluntary character of conciliation or mediation. 3) Practical Problems While the above-mentioned advantages and disadvantages are generally inherent to any determination which form of dispute settlement may lead to the most efficient outcome, there are a number of more ‘practical’ problems as well that may require caution with regard to opting for conciliation or mediation for the purpose of settling economic disputes. These range from mundane ones relating to the actual conduct of conciliation or mediation to highly technical, legal ones that may actually make conciliation or mediation a non-option. 3.1) Lack of Experience Parties and mediators may lack actual experience with conciliation or mediation. In many areas of international economic law there is only a limited track record of mediation and conciliation. This is particularly true for investment disputes,51 but also in the wto context the success of the dsu has led to “underuse” of conciliation in practice. Clearly, this is not a principled argument against the use of conciliation or mediation. With time and repeated use experience will come both to third parties and to third party conciliators and mediators.

51

Only 8 concluded and 1 pending icsid conciliation proceedings, see: icsid Case Database, available at last visited 10 November 2015.

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3.2) Lack of Budgetary Authority More important and difficult to overcome is the fact that often outcomes produced by conciliation or mediation are practically prevented from being implemented by the parties, in particular by states because their internal budgetary rules prevent them from making payments on the basis of nonobligatory grounds.52 The agreed upon result of conciliation or mediation will often be viewed as a non-obligatory ground (as opposed to awards or judgments). In addition, the state officials ultimately accepting the result of conciliation or mediation may want to avoid political responsibility for the ‘agreed-upon’ solution. Thus, even though in the end often more costly, the third party determination in the form of an arbitral award or a judgment may be easier to accept. 3.3) Potential Fork-in-the-Road Effect In some dispute settlement procedures, conciliation and arbitration are mutually exclusive alternatives and not consecutive options. Most prominently, under the icsid Convention a party has to choose whether it opts for conciliation or arbitration.53 Once either form of dispute settlement is pursued, the other is no longer available. Similarly, many bit dispute settlement clauses provide for the consent of host states to a number of alternatives in the form of socalled fork-in-the-road clauses. These clauses often provide a choice between domestic and international remedies which, once taken, become final to the exclusion of the option not chosen, but they may also require an early choice between conciliation/mediation or arbitration. This may be a strong practical deterrent for claimants, in particular, to forego the possibility of third party determination in the form of arbitration or adjudication.

52

53

Agreements reached in the course of icsid conciliation are by themselves not enforceable, see Christoph H. Schreuer, Loretta Malintoppi, August Reinisch and Anthony C. Sinclair, The icsid Convention: A Commentary (2nd ed, cup 2009) 451; Coe (supra note 49) 17–18; on the general difficulties of enforcing such outcomes, see Reif (supra note 50) 586, 636. Rule 1 (1), icsid Institution Rules, available at last visited 10 November 2015 (‘Any Contracting State or any national of a Contracting State wishing to institute conciliation or arbitration proceedings under the Convention shall address a request to that effect in writing to the Secretary-General at the seat of the Centre. The request shall indicate whether it relates to a conciliation or an arbitration proceeding. […]’); Lester Nurick and Stephen Schnably ‘The First icsid Conciliation: Tesoro Petroleum Corporation v. Trinidad and Tobago’, 1(2) (1986) icsid Review 340, 342.

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iv Conclusion This overview has demonstrated that there is quite a large potential for conciliation and mediation for the settlement of international economic law disputes. While inter-state trade disputes are largely settled by the highly institutionalized wto dispute settlement which integrates some ‘conciliation elements’, the field of mixed dispute settlement of isds actually offers conciliation and mediation as alternatives to arbitration. Its limited use in the past may be mostly due to practical problems that could be remedied if the parties consider that the overall advantages of conciliation and mediation outweigh the benefits offered by arbitration.

chapter 10

The Project for an International Environmental Court Stuart Bruce* i Introduction Disputes involving the natural environment date back to the Pacific Fur Seal Arbitration in the late 19th Century, which concerned the United States’ interference with British fishing activities on the high seas.1 By mid-20th Century, two other notable environmental arbitration cases – Trail Smelter and Lac Lanoux – considered transboundary pollution and the use of shared international wa­ters.2 Beyond those cases, the environment was scarcely considered in international adjudication. In recent decades, a spectrum of compliance and ­enforcement mechanisms has emerged to facilitate and manage concerns regarding the environment.3 While binding dispute resolution has generally received less favour within environmental law regimes than other domains of international law, international courts and tribunals are increasingly hearing matters involving the environment.4 Yet few, if any, of those bodies are optimized to

* The views expressed in this chapter, and any errors, are solely those of the author. Special thanks are owed to Niko Pavlopoulos for his research assistance, and to Murray Carroll, Stephen Hockman qc and Philippe Sands qc for their insightful comments on an earlier draft of this chapter. 1 United States of America v. United Kingdom, Award, 15 August 1893, reproduced in: Volume xxviii (2007) Reports of International Arbitral Awards 263–276. 2 United States of America v. Canada, Award, 15 April 1935, reproduced in: Volume iii (2006) Reports of International Arbitral Awards 1905–1982; France v. Spain, Award, 19 November 1956, reproduced in: Volume xii (2006) Reports of International Arbitral Awards 281–317. 3 See generally Daniel Bodansky et al. (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) Part vii; Patricia Birnie et al., International Law and the Environment (Oxford: Oxford University Press, 2009) Ch 4; Philippe Sands and Jacqueline Peel (eds.), Principles of International Environmental Law (Cambridge: Cambridge University Press, 3rd ed, 2012) Ch 5; Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law (Cambridge: Cambridge University Press, 2015) Chs 8–9. 4 For historical analysis see Cesare Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (The Hague: Kluwer, 2000).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_011

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resolve and advance environmental concerns. This is particularly so given the polycentric character of environmental disputes,5 which produces coordination challenges for adjudication, including jurisdictional overlap, uncertainty regarding applicable law, and risks of forum shopping and fragmentation.6 In the light of modern concerns about the natural environment, efforts should be made to improve the capability of the existing, distributed system of international courts and tribunals to address environmental matters, and, to the extent that existing bodies cannot be sufficiently improved, explore options to create new institutions specifically designed to consider environmental matters.7 While specialist domestic environmental courts have proliferated, there is no dedicated international court or tribunal with competence over environmental matters. Intellectual and political support to establish a specialised International Tribunal for the Environment (“ite”) or International Court for the Environment (“ice”) has ebbed and flowed since its first conception in the late 1980s,8 and appears to be increasing hesitantly again, buoyed by scientific consensus 5 Birnie et al. (supra note 3) 255; Ole W. Pedersen, ‘An International Environmental Court and International Legalism’ 24(3) (2012) Journal of Environmental Law 551; Francisco Orrego Vicuña, International Dispute Settlement in an Evolving Global Society: Constitutionalization, Accessibility, Privatization (Cambridge: Cambridge: Cambridge University Press, 2004) 83–84. 6 Susan M. Hinde, ‘The International Environmental Court: Its Broad Jurisdiction as a Possible Fatal Flaw’, 32 (2003–2004) Hofstra Law Review 727; Tim Stephens, International Courts and Environmental Protection (Oxford: Oxford University Press, 2009) 61; Ellen Hey, Reflections on an International Environmental Court (The Hague: Kluwer Law International, 2000) 4–9. 7 Hinde (supra note 6) 728; Joost Pauwelyn, ‘Judicial Mechanisms: Is there a Need for a World Environment Court’ in W. Bradnee Chambers and Jessica F. Green (eds.), Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (United Nations University Press, 2005) 159; Alfred Rest, ‘Enhanced Implementation and Enforcement of International Environmental Laws by the Judiciary’ in Adrian Bradbrook et al., The Law of Energy for Sustainable Development (Cambridge: Cambridge University Press) Ch 17. 8 For discussion and critique of the general project see Stephens (supra note 6) 56–62. See generally, Robert Jennings, ‘Need for an Environmental Court’, 20 (1992) Environmental Policy and Law 312–314; Audra E. Dehan, ‘An International Environmental Court: Should There Be One?’, 3 (1992) Touro Journal of Transnational Law 31–58; Jeffrey L. Dunoff, ‘Institutional Misfits: The gatt, the icj & Trade-Environment Disputes’, 15 (1993–1994) Michigan Journal of International Law 1043–1128; Philippe Sands, ‘International Environmental Litigation and its Future’, 32 (1998–1999) University of Richmond Law Review 1619–1641; Sean D. Murphy, ‘Does the World need a new International Environmental Court’, 32 (1999–2000) George Washington Journal of International Law and Economics 333–349; Kenneth F. McCallion and H. Rajan Sharma, ‘Environmental Justice Without Borders: The Need for an International Court of the Environment to Protect Fundamental Environmental Rights’, 32 (2000) George Washington

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of anthropocentric climate change and the risks to humanity from environmental harm. Even if the project for an international environmental court or tribunal ultimately succeeds, which will depend on the values of society, national or political self-interest and the influence of decision-makers,9 its realisation will be a long-term endeavour. This chapter considers the case and options for creating an ite or ice (collectively referred to as the “ite/ice system”). It invites reflection on the adequacy of existing international institutions and structures to address modern disputes impacting the environment and contemplates how a new, carefully designed, specialised adjudicative body for the environment might function within, and complement, the global dispute settlement system. This chapter argues that the fact that practical and legal technical challenges would need to be overcome to form an ite/ice system is not a sufficient reason to discourage its consideration,10 nor is it sufficient that the system would add institutional complexity and be markedly different to any existing international or domestic judicial institutions.11 As Sands observes, “any comparison with national courts would be misplaced, since [national courts] have often had centuries to mature”.12 Law, as a human-made construction, is subject to modification and development to accommodate evolving imperatives. It is the job of international lawyers to devise creative and meaningful solutions to real-world problems and to make the pieces of international law work as a system. Part ii of this chapter identifies the existing international courts and tribunals that are able to hear disputes with an environmental dimension. Part iii

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Journal of International Law and Economics 351, 352; Hey (supra note 6); Hinde (supra note 6) 727–757; Pauwelyn (supra note 7) 150–177; Birnie et al. (supra note 3) 255–257; Pedersen (supra note 5) 547; Cathrin Zengerling, Greening International Jurisprudence: Environmental ngos before International Courts, Tribunals and Compliance Committees (Leiden: Martinus Nijhoff, 2013); Alan Boyle and James Harrison, ‘Judicial Settlement of International Environmental Disputes: Current Problems’, 4(2) (2013) Journal of International Dispute Settlement 245–276. For a commentary on the international relations theory underpinning the design of an ice, see Murray Carroll, ‘The Geopolitics of Climate Justice: Collective Interest or Raison de Système?’, 34(1) (2016) Journal of Energy & Natural Resources Law 109–125. See also Dunoff (supra note 8) 1088–1093. See also generally Jack Goldsmith and Eric Posner, The Limits of International Law (New York: Oxford University Press, 2005). Dupuy and Viñuales (supra note 3) 246. Stephens (supra note 6) 60–61. Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’, public lecture, United Kingdom Supreme Court, 17 September 2015, transcript, 8.

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considers the shortcomings of those fora and analyses whether there is a resulting need for an international environmental dispute resolution body. Part iv provides an overview of various former and current proposals for an ite or ice. Part v explains the purposes and benefits of such a body. Part vi considers the possible contours and elements of the ite/ice system. Part vii comments on the role of conciliation within an ite/ice system and Part viii offers concluding observations. ii

The International Disputes System and Environmental Matters

Immediate issues that hinder the classification of disputes before international courts and tribunals as ‘environmental’ include the absence of agreed definitions, political aversion to review of sovereign actions regarding natural resources and disagreement between states (and society generally) about the priority of environmental objectives compared to others such as economic development.13 These issues are likely to remain a crucial point of difference between states until they are systematically addressed. For the purpose of this chapter, ‘international environmental dispute’ is defined as a dispute that impacts upon the natural environment or involves substantive or procedural legal rights and obligations of states and non-state actors in relation to international environmental laws.14 Although doubtful about an ice, Sir Robert Jennings has acknowledged the “trite observation that environmental problems, although they closely affect municipal laws, are essentially international; and that the main structure of control can therefore be no other than that of international law”.15 The primary international bodies that currently hear international environmental disputes, within their general or specialised jurisdiction, include the International Court of Justice (“icj”), the International Tribunal for the Law of the Sea (“itlos”), the World Trade Organization (“wto”), human rights bodies and investment arbitration tribunals, about which brief remarks are made below.16 13 Birnie et al. (supra note 3) 255; Sands, ‘International Environmental Litigation and its Future’ (supra note 8) 1639. 14 See Boyle and Harrison (supra note 8) 247–250, for possible approaches and definitions of international environmental disputes. 15 Philippe Sands, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2nd ed, 2003) xv. This textbook, and others, examines the substantive content of international environmental law, which is beyond the scope of the present chapter. 16 For detailed consideration see Stephens (supra note 6). See also James Harrison, ‘Reflections on the Role of International Courts and Tribunals in the Settlement of

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Although conciliation is provided for under numerous environmental treaties,17 it has not been frequently utilised to date, despite its potential to resolve moderate-to-low level political differences regarding environmental matters. The icj, with its unlimited competence over international law matters, is the most obvious forum to hear environmental disputes. The icj established a Chamber of Environmental Matters in 1993, but it was never used and closed in 2006. While the icj has adjudicated numerous natural resources and boundary disputes, few contentious or advisory proceedings have specifically focused on the environment or international environmental law,18 and of those that did many were discontinued, such as Nuclear Tests i and Certain Phosphate Lands in Nauru.19 But in a small number of cases the icj has clarified the concept and content of certain environmental laws,20 and its Environmental Disputes and the Development of International Environmental Law’, 25(2) (2013) Journal of Environmental Law 501–514. 17 See e.g. United Nations Convention on the Law of the Sea, open for signature 10 December 1982, 1833 unts 3 (entered into force 16 November 1994) (“unclos”), art. 284, Annex v; Vienna Convention for the Protection of the Ozone Layer, open for signature 22 March 1985, 1513 unts 323 (entered into force 22 September 1998) (“Ozone Convention”), art. 11(4)-(5); Stockholm Convention on Persistent Organic Pollutants, open for signature 22 May 2001, 2256 unts 119 (entered into force 17 May 2004), art. 18(6), Annex G. For a successful example of this method of dispute resolution, see Ulf Linderfalk’s discussion on the Jan Mayen Island delimitation, in this book. 18 See Malgosia Fitzmaurice, ‘The International Court of Justice and Environmental Disputes’ in Duncan French et al. (eds.), International Law and Dispute Settlement: New Problems and Techniques (Oxford: Hart Publishing, 2010) 17–56. Note that the recent dispute between Ecuador and Colombia regarding transboundary harm for aerial spraying was settled and withdrawn: Case Concerning Aerial Herbicide Spraying (Ecuador v. Colombia), Order, 13 September 2013, icj Reports 2013, 278. 19 Nuclear Tests (Australia v. France), Judgment, icj Reports 1974, 253 and Nuclear Tests (New Zealand v. France), Judgment, icj Reports 1974, 457 did not result in an operative decision, as both Australia and New Zealand no longer had an objection when France discontinued its nuclear testing programme after interim measures were awarded. Certain Phosphate Lands in Nauru (Nauru v. Australia), Order of 13 September 1993, icj Reports 1993, 322 was settled after Nauru alleged that Australian mining operations degraded Nauru’s ecosystem and requested rehabilitation of those lands. 20 In Request for an Examination of the Situation in Accordance with Paragraph 63 of the Courts Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, icj Reports 1995, 288 the icj acknowledged the existence of international environmental law in international litigation but declined to reopen the case as requested.

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jurisprudence has cautiously evolved from restraint to selected environmental norm development.21 The icj’s keystone moment in recognising the significance of environmental concerns and attendant legal obligations was its 1996 Nuclear Weapons ­Advisory Opinion, which highlighted the potential catastrophic impact of nuclear weapons on the natural environment and emphasised that “the environment […] represents the living space, the quality of life and the very health of human beings, including generations unborn”.22 Remarkably, that opinion applied the Corfu Channel ‘no harm’ principle to the environment, recognising that states had obligations to ensure that no transboundary environmental harm occurred from activities within their jurisdiction or control. In Gabčikovo, the icj showed some ‘coming of age’.23 It accepted, among other things, the existence of the principle of “ecological necessity”, that environmental concerns could qualify as an “essential interest” of the state which when faced with real, grave and imminent peril could preclude international wrongfulness, and classified sustainable development as a “concept” (without articulating its legal standard or content).24 In Pulp Mills, the icj held as customary international law the obligation for states to undertake environmental impact assessments where a “proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource”, though it did not elaborate on the content of such an assessment, thereby requiring states to make that decision independently.25 After years of relative conservatism, the icj has recently evidenced a newfound openness and technical ability to deal with the complexities that accompany international environmental disputes, while also pronouncing more broadly on the substance of environmental obligations.26 In the Whaling in the 21

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Malgosia Fitzmaurice, ‘The International Court of Justice and International Environmental Law’ in Christian Tams and James Sloan, The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013) 353–375. icj, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, icj Reports 1996, 226, para. 29. Sands, ‘International Environmental Litigation and its Future’ (supra note 8) 1631. icj, Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, icj Reports 88 (“Gabčikovo”), paras. 53, 140. icj, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, icj Reports 2010 (“Pulp Mills”), 14, para. 204. Sands, ‘Climate Change and the Rule of Law’ (supra note 12) 3, 18: noting that the icj’s potential role on climate change in particular has evolved, due to a combination of factors, including changes in public opinion, Pope Francis’ encyclical letter, robust scientific evidence, and increasing government and domestic court action.

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Antarctic case, the icj quite unusually conducted a comprehensive inquiry into the technical and scientific evidence submitted by the parties and put its own questions to the party-appointed experts, who were also cross-examined.27 In Construction of a Road in Costa Rica, the icj extended the Pump Mills ruling, finding it an obligation to undertake an environmental impact assessment in respect of all, not only industrial, activities that create significant risks of transboundary harm. Again, the icj did not clarify when those circumstances would exist or the required content of the assessment. Inter-state disputes before the Permanent Court of Arbitration increasingly consider disputes involving environmental considerations. These have included the Indus Waters Kishenganga arbitration, which concerned the impact of an Indian hydroelectric dam on water supplies for communities downstream,28 and the Iron Rhine arbitration, which considered restrictions on Belgium’s right to free transport over a railway track pursuant to environmental legislation.29 itlos has heard disputes involving a range of environmental matters,30 including the conservation of particular species, the development of a nuclear facility, land reclamation activities, environmental obligations regarding exploration and exploitation of the deep seabed.31 itlos has repeatedly utilised the precautionary approach, given the sensitivity of the world’s oceans, 27

icj, Whaling in the Antarctic (Australia v. Japan), Judgment, 31 March 2014, icj Reports 2014, 226, paras. 20–21, 98–242. 28 Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December 2013, pca Case No. 2011–01. 29 Belgium v. The Netherlands, Award, 24 May 2005, reproduced in: Volume xxvii (2005) Reports of International Arbitral Awards 35–125. See generally Judith Levine, ‘Information About the Activities of the Permanent Court of Arbitration in Environmental Disputes in the Context of Energy Projects’ (pca, September 2014) accessed 1 May 2016. 30 See unclos, Annex vi, Annex vii and Annex viii. 31 itlos, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order of 27 August 1999; itlos, The mox Plant Case (Ireland v. United Kingdom), Order of 3 December 2001; itlos, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Order of 8 September 2003; itlos, Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (2011), Seabed Disputes Chamber, 1 February 2011 (“Seabed Opinion”). French suggests that the Seabed Opinion provides the most comprehensive treatment of international environmental law by any international court or tribunal: Duncan French, ‘From the Depths: the Seabed Disputes Chamber’s 2011 Advisory Opinion’, 26 (2011) International Journal of Marine and Costal Law 525.

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requiring states to undertake measures that reduce the risks of environmental harm even where there is scientific uncertainty as to the likely occurrence of harm.32 Recently, itlos confirmed that it had jurisdiction to provide advisory opinions in plenary and in so doing commented extensively on coastal and flag state obligations regarding sustainable fishing and illegal, unreported and unregulated fishing rights and obligations,33 among other things. This opinion, and a recent unclos arbitration award,34 may lead to subsequent opinions on a broader range of issues related to protection and preservation of the marine environment, including climate change, and movement towards an itlos with general environmental competence. Most recently, on 11 April 2016, Timor-Leste initiated compulsory conciliation proceedings, the first of its kind, against Australia regarding a disputed maritime boundary (Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia, pca Case No. 2016–10). In the trade context, the wto dispute settlement bodies have confronted environmental issues through the use by states of gatt Articles xx (b) and (g), where measures taken were asserted to be necessary to protect human, animal or plant life or health or related to the conservation of exhaustible natural resources. While there is evidence of improved integration of relevant environmental obligations into the reasoning of wto disputes bodies, unsurprisingly their frame of reference remains on economic liberalisation.35 The North American Agreement on Environmental Cooperation that accompanies the

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Most recently in Dispute Concerning Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana v. Cote d’Ivoire), Order for provisional measures, 25 April 2015. See also, Seabed Opinion (supra note 31) para 131 where the precautionary principle was treated as “an integral part of the general obligation of due diligence”. itlos, Advisory Opinion relating to the Questions Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, paras. 110–114, 120. Ad hoc Tribunal, Chagos Marine Protected Area Arbitration, Award, 18 March 2015; James Harrison, ‘Significant International Environmental Law Cases: 2014–15’, 27(3) (2015) Journal of Environmental Law 541–554. gatt, United States – Restrictions on Imports of Tuna, 16 August 1991, reproduced in: 30 (1991) International Legal Materials 1594; cf. wto dsb, United States – Import Prohibition of Certain Shrimp and Shrimp Products, 6 November 1998. See also wto Appellate Body, ec – Measures Concerning Meat and Meat Products, 16 January 1998; wto Appellate Body, ec – Measures Affecting Asbestos, 12 March 2001; wto Panel, ec – Measures Affecting Approval and Marketing of Biotech Products, 29 September 2006; wto Panel, Measures Related to the Exportation of Rare Earths, 26 March 2014; wto Appellate Body, Measures Prohibiting the Importation and Marketing of Seal Products, 22 May 2014. See more generally, Hinde (supra note 6) 749.

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North American Free Trade Agreement also attempts to balance environmental and economic imperatives through a review process.36 Other bodies dealing with disputes involving the environment include the World Bank’s Inspection Panel, which assesses compliance of the Bank’s projects with the Bank’s environmental policies and standards (and increasingly takes international standards into account),37 the World Heritage Commission, where listings are requested to persevere the natural environment, and the United Nations Compensation Commission, which determines claims for environmental and other damages arising out of the 1991 Gulf War.38 Importantly, human rights bodies readily accept the importance of the environment and increasingly assess how environmental issues affect the primary rights over which they have competence.39 The European Court of Justice also hears complaints regarding environmental regulation. Investor-state dispute resolution (investment arbitrations) is a particu­ larly  modern phenomenon that is increasingly called on to address environmental issues.40 For instance, in Perenco v. Ecuador, Ecuador filed an 36 37

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North American Agreement on Environmental Cooperation, open for signature 14 September 1993, 32 ilm 1480 (entered into force 1 January 1994). Despite some relevant, well-received jurisprudence, it is not a binding decision-making body and remains somewhat inward-looking. See e.g. Alix Gowlland Gualtieri, ‘The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel’, 72 (2001) British Yearbook of International Law 213. See especially Robin L. Juni, ‘The United Nations Compensation Commission as a Model for an International Environmental Court’, 7 (2000) The Environmental Lawyer 53–73. In relation to the Inter-American Commission on Human Rights, see e.g. San Mateo de Huanchor v. Peru, Admissibility, 15 October 2014, OEA/Ser.L/V/II.122 Doc. 5 rev. 1, 487; Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, 7 December 2005. In relation to the African Commission on Human and Peoples’ Rights, see e.g. The Social and Economic Rights Action Center and the Center for Economic and ­Social Rights v. Nigeria, Comm. No.155/96. For relevant cases before the European Court of ­Human Rights, see e.g. Fredin v. Sweden, App. 12033/86, Judgment, 18 February 1991, para. 48; Lopez-Ostra v. Spain, 303/C Eur. Ct. H.R. (ser. A) (1994); Guerra and Others v. Italy, Apps 116/1996/735/932, Judgment, 19 February 1998; Kyrtatos v. Greece, App. 41666/98, Judgment 22 May 2003; Budayeva and Others v. Russia, Apps. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgment, 20 March 2008; Mangouras v. Spain, App 12050/04, Judgment, 28 September 2010. On the development of substantive rights see generally Donald Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge: Cambridge University Press, 2011). See also Peggy Rodger Kalas, ‘International Environmental Dispute Resolution and the Need for Access by Non-State Entities’, 12 (2001) Colorado Journal of International Environmental Law 191, 214–221. See e.g. Metalclad Corporation v. The United Mexican States, Award, 30 August 2000, ­i csid Case No. ARB(AF)/97/1 (“Metalclad”); Técnicas Medioambientales Tecmed, S.A. v.

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e­ nvironmental counterclaim before the International Centre for Settlement of Investment Disputes (“icsid”). In August 2015, the Tribunal held, inter alia, that there was “some contamination” for which Perenco would likely be held liable (although a final ruling on this was deferred),41 while also finding several other procedural failures.42 Another example is Peter Allard (Canada) v. Barbados,43 where the claimant alleged that the Barbados government failed to enforce its domestic environmental laws and, as a result, that his eco-tourist resort was harmed, in breach of Barbados’ investment protection obligations.44 While the prevalence of environmental issues is increasing in frequency in investment arbitration awards, they may not be adequately addressed where tribunals lack specialised subject-matter knowledge or are disposed to apply international economic law with minimal regard for international environmental norms.45 Additionally, due to perceived inadequacies in the global investment regime, and states’ reluctance to enact and enforce environmental standards,46

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The United Mexican States, Award, 29 May 2003, icsid Case No. arb (AF)/00/2; Vattenfall ab, Vattenfall Europe ag, Vattenfall Europe Generation ag v. Federal Republic of Germany, icsid Case No. ARB/09/6 (still pending); William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, Award, 17 March 2015, uncitral, pca Case No. 2009–04; Tribunal Constituted under the Energy Charter Treaty, The pv Investors v. Spain (registered November 2011); Charanne B.V. and Construction Investments S.à.r.l v. Kingdom of Spain, Final Award, 21 January 2016, Arbitration No. 062/2012. See generally Jorge E. Viñuales, Foreign Investment and the Environment in International Law (Cambridge: Cambridge University Press, 2012). Perenco Ecuador Ltd v. Ecuador, Interim Decision on the Environmental Counterclaim, 11 August 2015, icsid Case No. ARB/08/6, paras. 582–586. Ibid, para. 447. Peter A. Allard (Canada) v. The Government of Barbados, pca Case No. 2012–06. This case is still pending and no decisions have been rendered to date. Other examples include the tribunal constituted under the bilateral investment treaty between Germany and Costa Rica, Marion Unglaube v. Costa Rica, Award, 16 May 2012, Case No. ARB/08/1; Marvin Roy Feldman Karpa v. Mexico, Award, 16 December 2002, Case No. ARB(AF)/99/1. See e.g. Compañía del Desarrollo de Santa Elena SA v. Republic of Costa Rica, Final Award, 17 February 2000, Case No. ARB/96/1; Metalclad, discussed in Philippe Sands, ‘Litigating Environmental Disputes: Courts, Tribunals and the Progressive Development of International Environmental Law’, (2008) oecd Global Forum on International Investment 9–10. Freya Baetens, ‘The Kyoto Protocol in Investor-State Arbitration: Reconciling Climate Change and Investment Protection Objectives’ in Marie-Claire Cordonier Segger et al. (eds.), Sustainable Development in World Investment Law (Alphen: Kluwer Law International, 2011) 683, 695–696.

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a process of modernisation is underway which, among other things, will likely better preserve states’ regulatory competence over environmental issues.47 Finally, domestic courts increasingly hear environmental and climate change cases. Although few in number, such cases may begin to shape environmental standards and liability for breaches of domestic law,48 whether or not informed by international law.49 While existing international courts and tribunal are more regularly hearing environmental disputes, they have shortcomings, explored next. iii

Is There a Need for an International Environmental Disputes Body?

Three often-cited reasons for not creating an ite or ice include the following: (i) the apparent reluctance of states to label a dispute as environmental, either because of differing value-based characterisations or concern to preserve sovereign policies;50 (ii) the infrequency with which factual and legal issues in dispute pertain exclusively to the environment rather than traversing multiple 47

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See e.g. Karl P. Sauvant, The Evolving Investment law and Policy Regime: Ways Forward (Geneva: International Centre for Trade and Sustainable Development, 2016) 7; Åsa Romson, Environmental Policy Space and International Investment Law (Stockholm: Acta Universitatis Stockholmiensis, 2012) 283–348. See e.g. Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge: Cambridge University Press, 2015); Aleksy P. Anisimov and Anatoly Y. Ryzhenkov, ‘Environmental Courts in Russia: To be or not to be?’, 47(3) (2013) The International Lawyer 441, 442, 449; cf. Eric A. Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’, 155 (2007) University of Pennsylvania Law Review 1925; Anna Huggins, ‘Is Climate Change Litigation an Effective Strategy for Promoting Greater Action to Address Climate Change? What Other Legal Mechanisms Might be Appropriate?’, 13 (2008) Local Government Law Journal 184. See also Brian J Preston, ‘Climate Change Litigation (Part i)’, 1 (2011) Carbon & Climate Law Review 3; Brian J Preston, ‘Climate Change Litigation (Part ii)’, 2 (2011) Carbon & Climate Law Review 244. See e.g. Urgenda Foundation v. the State of the Netherlands (Ministry of Infrastructure and the Environment), 24 June 2015, C/09/456689 / ha za, 13–1396, at 5.1. See also Ashgar Leghari v. Federation of Pakistan, 14 September 2015, Case No. W.P. No. 25501/2015. Other recent developments include the investigation of large corporate entities’ contribution to climate change or misrepresentation as to their contribution. See e.g. Justin Gillis and Clifford Krauss, ‘Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General’ 5 November 2015 accessed 1 May 2016. Dupuy and Viñuales (supra note 3), 244–245, 247.

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bodies of international law;51 and (iii) that international environmental law is neither adequately self-contained nor clearly codified or understood to be suitable for application by a specialised tribunal.52 Due to this, it has been argued, the better fora for hearing disputes that involve the environment are generalist courts such as the icj or specialised bodies such as itlos,53 which has reasonably broad competence over environmental issues.54 Undoubtedly the icj and itlos, and other bodies, make important contributions to environmental dispute resolution.55 Despite advancements in the international dispute settlement system, the following deficiencies are likely to inhibit adequate resolution of future international environmental disputes within existing fora.56 1) Environmental and Scientific Capability Environmental disputes frequently rely on complex, technical, scientific information. Practical experience shows that the required competence and flexibility to properly consider and address such information is generally not found within existing international courts and tribunals,57 though should be one of the most important functions.58 As Sands observes: unlike many national systems that provide for environmental or scientific assessors to join panels and assist in deciphering technical information, the international judge will likely be in no better position that you or I to decide on the relative merits of a scientific claim.59 51

See e.g. Gabčikovo (supra note 24). In addition to environmental matters, the icj also dealt with various issues pertaining to treaty law and state responsibility. See also Sands, ‘Litigating Environmental Disputes’ (supra note 45) 4; cf. icj, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015. 52 Birnie et al. (supra note 3) 255. 53 Phoebe N. Okowa, ‘Environmental Dispute Settlement: Some Reflections on Recent Developments’ in Malcolm Evans (ed.), Remedies in International Law: The Institutional Dilemma (Oxford: Hart Publishing, 1998) 157–172; Birnie et al. (supra note 3) 255. 54 unclos, Part xii. 55 See generally Jorge E. Viñuales, ‘Contribution of International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment’, 32(1) (2008) Fordham International Law Journal 232. 56 A point acknowledge by both proponents and critics of an ice. See e.g. Murphy (supra note 8) 343–347; Hey (supra note 6) 1–6; Hinde (supra note 6) 739–740. 57 See generally Murphy (supra note 8); Hinde (supra note 6) 739–740. 58 Sands, ‘Climate Change and the Rule of Law’ (supra note 12) 14–15. 59 Sands, ‘International Environmental Litigation and its Future’ (supra note 8) 1638.

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For instance, even though the icj may appoint independent technical experts and scientists, it seldom does. In Pulp Mills, instead of having independent experts who could submit reports and be cross-examined, experts were part of the counsel teams, inhibiting a robust interrogation of the scientific information. Without independent expert assistance, the court was required to assess some 5,000 pages of technical information.60 In their joint dissenting opinion Judges Al-Khasawneh and Simma noted: (i) that the manner in which the icj evaluated scientific evidence was flawed methodologically; (ii) the icj should have appointed scientific experts; and (iii) overall, the icj missed a “golden opportunity” to “demonstrate its ability to approach scientifically complex disputes in a state-of-the-art manner”.61 They observed that the icj: …had before it a case on international environmental law of an exemplary nature – a textbook example, so to speak, of alleged transfrontier pollution – yet, the Court has approached it in a way that will increase doubts in the international legal community whether it, as an institution, is well-placed to tackle complex scientific questions.62 Fortunately, the icj has taken steps to better its practices, as seen in the Whaling in the Antarctic case, discussed above. Similar criticisms have been made about various wto dispute settlement panels that have not consulted experts when it was thought beneficial to do so and have dealt inadequately with scientific issues and evidence.63 While the rules and procedures of courts and tribunals often permit the appointment of scientific experts on an ad hoc basis,64 those powers are underutilised, and 60 61 62 63

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Ibid, 1638. Pulp Mills (supra note 45) paras. 2–3, 12–13 (Judges Al-Khasawneh and Simma). Ibid, para. 3. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, adopted on 15 April 1994, 1869 unts 401 (entered into force 1 January 1995), Annex 2 [Dispute Settlement Rules: Understanding on Rules and Procedure Governing the Settlement of Disputes], article 13(2). See e.g. Diane Desierto, ‘Evidence in Environmental/Scientific Exceptions: Some Contrasts between the wto Panel Report in ChinaRare Earths and the icj Judgment in Whaling in the Antarctic’, ejil Analysis (7 April 2014) accessed 1 May 2016. See e.g. un ga Res 68/109, 16 December 2013 [Arbitration Rules of the United Nations Commission on International Trade Law] (“uncitral Arbitration Rules 2013”), art. 29; Singapore International Arbitration Centre, Arbitration Rules 2013, Rule 23; London

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in practice generally do not lend themselves to live witness evidence, particularly among international courts with a practice of asking few, selected questions upon the conclusion of oral submissions. As a result, specialist training coupled with greater levels of support from engineers, environmental scientists and other disciplines is required to improve the ability of international judges and arbitrators to effectively engage with environmental and scientific evidence and issues during proceedings and in written decisions.65 2) Harm Caused by Non-state Actors The actions of non-state actors can contribute significantly to transboundary and global harm, be it from ongoing emission of greenhouse gases that cumulatively contribute to climate change or catastrophic but infrequent accidents such as the recent Bento Rodrigues dam disaster.66 Yet standing and other procedural rules of most international dispute resolution bodies generally do not enable non-state actors to be held to account. Accordingly, non-state actors and their host states are seldom liable for causing international harm.67 Without accountability, international responsibility and the rule of law remain hollow notions. The most appropriate mechanisms for holding non-state actors (namely corporations and individuals) to account are domestic legal and administrative systems, including tribunals with specialised subject-matter expertise relevant to environmental disputes.68 As of early 2016, approximately 1,200 ­specialised environmental domestic courts, tribunals or other legal bodies existed within

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Court of International Arbitration, Arbitration Rules 2014, art. 21; International Chamber  of Commerce, Rules of Arbitration 2012, art. 25; Permanent Court of Arbitration, Arbitration Rules 2012, art. 29; unclos, art. 289; icj, Rules of Court (1978), art. 63; icsid Arbitration Rules, Rules 35–36. Stephen Hockman, ‘The Case for an International Court for the Environment’, 14 (2011) Effectius Newsletter 1, 2; Dunoff (supra note 8) 1052–1066, 1079–1085. McCallion and Sharma (supra note 8) 354. Kalas (supra note 39) 193–196. On mechanisms for institutional accountability see generally P.T. Muchlinski, Multinational Enterprises and the Law (Oxford: Oxford University Press, 2nd ed, 2007), Chs 3, 13–14; ‘Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises’, u.n. Doc. E/CN.4/Sub.2/2002/XX/ Add.2. John H. Knox, Report of the Independent Expert on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe Clean and Sustainable Environment: Compilation of Good Practices (Human Rights Council, 3 February 2015), para. 57; Catherine Pring and George Pring, ‘Specialized Environmental Courts and Tribunals: The Explosion of New Institutions to Adjudicate Climate Change and Other Complex Environmental Issues’ presented at the 2nd Global Conference on Environmental Governance and Democracy

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44 different states.69 The vast majority of those bodies apply domestic laws, and rightly so. However, domestic laws, rules and procedures are generally not well-suited to grapple with transboundary or global environmental issues, particularly climate change.70 Moreover, many domestic courts have an uneasy relationship with international law, whether international law is manifested through national legislation, is directly applicable through constitutional convention, or not applicable at all.71 In circumstances where domestic mechanisms are inadequate to bring non-state actors to account, a second line of defence in the form of international judicial and arbitral support may be beneficial, especially for globally significant environmental disputes. As put by Rest: alongside national courts and tribunals, international judicial control is indispensable for the proper protection of the environment on a regional and global level, as well as for the proper protection of the global commons and the human rights of those individuals that are threatened or injured in cases of transnational pollution… [it] is also strongly needed to control the activities of states, to remind them of their collective responsibility for the protection of the environment and to guarantee the implementation and application of international environmental agreements.72

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(17–19 September 2010) accessed 1 May 2016. Catherine Pring and George Pring, ‘Environmental Courts and Tribunals’ in L. Paddock, R. Glicksman & N. Byner (eds.), Decision Making in Environmental Law (Edward Elgar, Encyclopedia of Environmental Law series, 2016). The Access Initiative accessed 1 May 2016, Appendix  1. For country-specific examples see Anisimov and Ryzhenkov (supra note 48) 447; Gitanjalin Nain Gill, ‘A Green Tribunal for India’, 22(3) (2010) Journal of Environmental Law 461–474; Richard Macrory, ‘The Long and Winding Road – Towards an Environmental Court in England and Wales’, 25(3) (2013) Journal of Environmental Law 371–381. Preston (Parts i and ii) (supra note 48); Rest (supra note 7) 264–265. See generally Compendium of Summaries of Judicial Decisions in Environmental Related Cases (unep, revised 2nd ed (draft reference document) 2015). Rest (supra note 7) 266; unep, Decision 27/9: ‘Advancing justice, governance and law for environmental sustainability’, UNEP/GC.27/17 (12 March 2013). See generally unep Report, ‘Advancing justice, governance and law for environmental sustainability: Rio + 20 and the World Congress of Chief Justices, Attorneys General and Auditors General’ (unep, 2012). Rest (supra note 7) 285.

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Analogous examples of such mechanisms, with complementarity-based jurisdictions in the context of serious international crimes and human rights violations, are found in both the International Criminal Court and regional human rights bodies such as the European Court of Human Rights. 3) Restricted Access to International Courts and Tribunals Restrictions on standing, participation and access to international courts and tribunals are considered to be among the most pressing issues in relation to international adjudication of environmental disputes.73 While the classical conception of international law provides only states with international personality and standing before international courts,74 as discussed above, transboundary harm is increasingly a product of non-state actor activities. Additionally, whereas certain non-state actors are granted access to enforce their property and economic rights before international investment and commercial arbitration tribunals,75 persons harmed by non-state actors (e.g. individuals and indigenous populations) do not have standing to bring international claims.76 The result amounts to a systemic prioritisation of corporate economic interests over individual and collective environmental rights and issues at the international level, rather than some semblance of balancing those interests.77

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Hinde (supra note 6) 745; Murphy (supra note 8) 346; see generally Zengerling (supra note 8). Charter of the United Nations, open for signature 26 June 1945, 1 unts xvi (entered into force 23 October 1945) (“un Charter”), Annex [Statute of the International Court of Justice] (“icj Statute”), arts. 34, 65. See also Jacqueline Peel, ‘Giving the Public a Voice in the Protection of the Global Environment: Avenues for Participation by ngos in Dispute Resolution at the European Court of Justice and World Trade Organization’, 12 (1) (2001) Colorado Journal of International Environmental Law 47–76. See generally Kate Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge: Cambridge University Press, 2013). Permanent Court of Arbitration Optional Rules for Arbitrating a Dispute between Two Parties of which Only One is a State (1993); Permanent Court of Arbitration Optional Rules for Arbitration of Disputes relating to Natural Resources and/or the Environment (2001) (“Optional Arbitration Rules”). Hinde (supra note 6) 745; Murphy (supra note 8) 346. In international human rights litigation, where access is granted, few substantive rights directly involve the environment. See generally Kalas. Zengerling (supra note 8) 349. See also e.g. Antonie Biloune v. Ghana Investment Centre, Award on Jurisdiction and Liability, 27 October 1989, paras. 202–203.

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Similar limitations on enforcing environmental obligations are found in other specialist tribunals.78 To better reflect modern interests in international environmental disputes, it is argued that all non-state actors (corporations, injured individuals or communities, and civil society as independent providers of information and expertise) should have standing and access to international courts and tribunals that hear environmental disputes.79 This much has been acknowledged by Judge Weeramantry, who recognized the need for international law to evolve beyond inter-state dispute resolution so as to hear matters of “global concern of humanity as a whole”.80 Another reason for broadening standing and access rules is that actio popularis is presently, in the words of the icj, “not known to international law”.81 At the icj and itlos, even though a state may intervene as of right when the interpretation or application of the treaty to which they are party is in question,82 intervention in relation to customary law issues is only permissible when states’ legal interests are ‘affected’ by a decision. Because the relevant judicial body determines interventions,83 states may be unable to intervene, even if the dispute pertains to obligations owed erga omnes.84 In arbitration, third party intervention is seldom allowed, although some tribunals are, subject to certain 78

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With regard to the World Trade Organization, see McCallion and Sharma (supra note 8) 364; Dunoff (supra note 8) 1063. More generally see Dupuy and Viñuales (supra note 3) 247, 248–252. Boyle and Harrison highlight favourably the wto’s experience of including non-governmental organisations in proceedings: (supra note 8) 265–266. Daniel Magraw, unep/pca Advisory Group on Dispute Avoidance and Settlement concerning Environmental Issues: Annex v (Transparency and Public Participation in Dispute Avoidance and Settlement), convened on 2–3 November 2006, 18; Institut de Droit ­International, Session de Strasbourg, ‘Resolution on Environment’ (4 September 1997), 76(2) (1998) Annuaire idi; ‘Resolution on Responsibility and Liability under International Law for Environmental Damage’ (4 September 1997), 76(2) (1998) Annuaire idi. Gabčikovo (supra note 24) 118 (Vice-President Weeramantry). icj, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment, 18 July 1966, 1966 icj Reports, 6, para. 88. icj Statute, art. 63; unclos, Annex vi [Statute of the International Tribunal for the Law of the Sea] (“itlos Statute”), art. 32. Note that consensual proceeding at itlos can have broader access rights, permitting the involvement of international organisations, civil society and individuals. icj Statute, art. 62.2; itlos Statute, art. 31. For an extensive discussion of the emergence of public interest litigation and its possible role as an alternative to non-compliance procedures see Boyle and Harrison (supra note 8) 256–266.

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conditions, permitted to receive amicus curiae briefs from non-state actors.85 Such rules make it harder for disputes to properly consider broader issues including environmental considerations. For decades there have been calls for better public and open participation in international disputes, including those related to the environment: from the Rio Declaration (Principle 10),86 the regional Aarhus Convention87 and the United Nations Conference on Sustainable Development.88 An ite/ice system could help to fill this gap. 4) Implementation and Enforcement Limitations Since the 1972 United Nations Conference on the Human Environment, multilateral environmental agreements (“meas”) have proliferated and now number in excess of 500.89 While the doctrine of pacta sunt servanda requires that international obligations be kept in good faith, the majority of meas are inadequately implemented and enforced, for a broad range of reasons including the following: (i) the sheer volume of meas necessarily requires considerable dedicated financial and human resources that many states do not have;90 (ii) meas can be deliberately vague or open-textured, providing both uncertainty as to their content and low enforceability (also risking juridical activism); (iii) they are addressed to states rather than non-state actors (limiting the range of persons who may be interested in or able to bring international claims); (iv) few clear causes of action exist or can be established; (v) proving causation can be problematic (for example, this is often a hurdle 85 86

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See e.g. icsid Arbitration Rules, Rule 37(2); uncitral Arbitration Rules 2013, art. 4. 1992 Rio Declaration on Environment and Development, adopted 14 June 1992, reproduced in (1992) 31 ilm 874. Principle 13 (“States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control of areas beyond their jurisdiction”) and Principle 26 (“States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations”) also support international environmental adjudication. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, open for signature 25 June 1998, 2161 unts 447 (entered into force 30 October 2001). United Nations Conference on Sustainable Development, The Future We Want, un Doc. A/66/L.56 (24 July 2012), paras. 10, 43, 76, 89–90. Ivar Baste et al., ‘Global Environment Outlook 5: Environment for the Future We Want’ (United Nations Environment Programme, 2012) 457, 464. Dupuy and Viñuales (supra note 3) 270–271.

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to successful climate change litigation);91 and (vi) states may preference acting in their national and economic self-interest rather than the global collective interest. Given those (and other) challenges, in certain meas states have created special non-binding political and administrative processes to encourage adherence with international obligations, such as conferences of the parties and non-compliance procedures, which operate in addition to traditional non-binding forms of dispute resolution such as negotiation, mediation and conciliation.92 Non-compliance procedures, examples of which are found in the Montreal Protocol and Kyoto Protocol,93 involve the creation of subsidiary bodies that are empowered to receive submissions by any party concerned about another state’s compliance with mea obligations, assess information from various sources and, if necessary, issue a range of measures to encourage compliance with those mea obligations. Non-compliance procedures are lauded as innovative, adaptable mechanisms to manage or facilitate compliance, but their use is not always successful and ‘disputes’ often remain unresolved. As evidenced by Canada’s withdrawal from the Kyoto Protocol and the historically stagnated climate change negotiations, despite best intentions, 91

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Stephen Humphreys, ‘Climate Change and International Human Rights Law’ in Rosemary Rayfuse and Shirley V. Scott (eds.), International Law in the Era of Climate Change (Massachusetts: Edward Elgar, 2012) 31; Catherine Pring and George Pring (supra note 69) 13; Jacqueline Peel, ‘Issues in Climate Change Litigation’, 1 (2011) Climate Change Law Review 15; Richard Lord et al. (eds.), Climate Change Liability: Transnational Law and Practice (Cambridge: Cambridge University Press, 2012). Sands, ‘Climate Change and the Rule of Law’ (supra note 12) 6, notes that the Fifth Assessment Report by the Intergovernmental Panel on Climate Change (2014) provides clear and unambiguous evidence of the human influence on the natural climate system “well beyond the classical standards on the burden of legal proof, whether it be balance of probabilities, or beyond reasonable doubt”. See generally, Geir Ulfstein, ‘Treaty Bodies’ in Bodansky et al. (supra note 3) 877–892; Jorgen Wettestad, ‘Monitoring and Verification’ in Bodansky et al. (supra note 3) 974–994. See e.g. Convention on Long-range Transboundary Air Pollution, open for signature 13 November 1979, 1302 unts 216 (entered into force 16 March 1983), art. 9; Ozone Convention, art. 11; United Nations Framework Convention on Climate Change, open for signature 9 May 1992, 1771 unts 107 (entered into force 21 March 1994) (“unfccc”), art. 14; Convention on Biological Diversity, open for signature 5 June 1992, 1760 unts 79 (entered into force 29 December 1993), art. 27; Convention to Combat Desertification, open for signature 14 October 1994, 1954 unts 3 (entered into force 26 December 1996), art. 28; Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, open for signature 14 June 1994, 2030 unts 122 (entered into force 5 August 1998), art. 9. Sands and Peel (supra note 3) 163–166.

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non-compliance procedures and mea political processes do not always lead to meaningful action in relation to the underlying environmental concerns.94 Binding enforcement mechanisms such as arbitration and adjudication are usually either voluntary or entirely absent from meas (unlike economic treaties, which often provide compulsory adjudication),95 potentially prejudicing the ability for states to bring international claims, even when international responsibility is triggered.96 These are but some of the reasons that high-ranking representatives of the judicial, legal and auditing professions have called for “more effective […] international dispute settlement bodies for resolving [environmental] conflicts”.97 iv

Proposals for an International Environmental Court

There have been three major projects calling for an ite or ice. The first was instigated by Justice Postiglione of the Italian Court of Cassation who, in 1989, coordinated an international ‘Congress’ in which twenty-seven states participated to consider new global environmental institutions. He supported the development of “new legal State liability rules and, consequently, compulsory and efficient conflict regulation procedures supported by a permanent, international 94

Alan Boyle, ‘Saving the World? Implementation and enforcement of international environmental law through international institutions’, 3(2) (1991) Journal of Environmental Law 229; Lawrence Susskind and Connie Ozawa, ‘Negotiating More Effective International Environmental Agreements’ in Andrew Hurrell and Benedict Kingsbury (eds.), The International Politics of the Environment: Actors, Interests and Institutions (New York: Oxford University Press, 1992), 143. See also Johanna Rinceanu, ‘Enforcement Mechanism in International Environmental Law: Quo Vadunt?’, 15 (2000) Journal of Environmental Law and Litigation 147–177. 95 Birnie et al. (supra note 3) 251. But cf. Protocol on Environmental Protection to the Antarctic Treaty, open for signature 4 October 1991 (entered into force 14 January 1998) reproduced in 30 (1991) ilm 1455, art. 19(5); International Convention for the Prevention of Pollution from Ships, adopted 2 November 1973, 1340 unts 184 (entered into force 2 October 1983), art. 10. 96 un ga Res 56/83, 12 December 2001, Annex, art. 48 [Responsibility of States for Internationally Wrongful Acts]. If a treaty creates obligations erga omnes, those owed to the entire international community, a state that is not directly injured may possibly also bring a claim. 97 United Nations Conference on Sustainable Development, ‘Declaration on Justice, Governance and Law for Environmental Sustainability’, Principle i, para. 4, accessed 1 May 2016.

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authority”.98 Justice Postiglione’s proposed model entailed the creation of an ice that would adjudicate environmental matters to ensure respect by states and individuals, while also compelling repair of ecological damage where ­necessary. In 1992, he funded the International Court of the Environment Foundation (“icef”), which attended the un Conference on Environment and Development and presented a draft statute for consideration, which ultimately was removed from the conference agenda.99 According to the statute, the ice would have broad functions: (a) to protect the environment as a fundamental human right in the name of the International Community; (b) to decide any international environmental disputes involving the responsibility of States […] which has not been settled through conciliation or arbitration within a period of 18 months; (c) to decide any disputes concerning environmental damage, caused by private or public parties […] where it is presumed that, due to its size, characteristics and kind, this damage affects interests that are fundamental for safeguarding and protecting the human environment on earth; (d) to adopt urgent and precautionary measures when any environmental disaster concerning the International Community is involved; (e) to provide, at the request of the organs of the United Nations and other members of the International Community, advisory opinions on important questions regarding the environment on a global level; (f) to arbitrate, upon request, without prejudice to its judicial role; (g) to carry out, upon request, investigations and inspections with the assistance of independent technical and scientific bodies when there is environmental risk or damage and, ex officio, when considered necessary and urgent. The ice would also have broad standing rules and remedies, and could issue preliminary rulings following a request from a national court.100 In 1999, icef 98

Amedeo Postiglione, ‘A More Efficient International Law on the Environment and Setting up an International Court for the Environment within the United Nations’, 20 (1990) Environmental Law 321, 323–325; see e.g. Amedeo Postiglione, Global Environmental Governance: The Need for an International Environmental Agency and an International Court of the Environment (Brussels: Bruylant, 2010). 99 Dunoff (supra note 8) 1107. 100 Draft Statute of the International Environmental Agency and the International Court of the Environment, art. 10 accessed 1 May 2016.

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presented a revamped version of its draft statute to accommodate feedback that the earlier version was too ambitious.101 Having identified a vast range of environmental, economic, legal, societal, political, ethical, cultural and scientific reasons that support is proposal, icef continues to promote its ideas.102 The second project was established in 1994, as the International Court of Environmental Arbitration and Conciliation (“iceac”), a private initiative originating from Mexico with judges and lawyers working voluntarily that aims to provide a forum for, among other things, conciliation of environmental disputes (which have constituted the majority of its applications).103 In the iceac model, while all parties to a dispute must agree to the iceac’s jurisdiction, states, private parties and ngos may submit disputes. The iceac is also permitted to give relevant consultative opinions “at the request of any natural or legal person, whether public or private, national or international”.104 To date, the impact of iceac has been minimal. The third project commenced in 2009, under the auspices of the International Court for the Environment Coalition (“ice Coalition”). Under the leadership of Stephen Hockman qc, various lawyers, public servants, academics and civil society professionals sought to reactivate consideration of an ite or ice, given the then burgeoning awareness of environmental problems.105 The ice Coalition considers judicial mediation of international environmental issues, and climate change in particular, crucial.106 In 2014, the iba’s Climate Change Justice and Human Rights Task Force made numerous short-, mediumand long-term recommendations, amongst which it supported “the gradual

101 Ibid, arts. 7–8. 102 For icef’s involvement in other fora, see Deirdre Exell Pirro, ‘Project for an International Court of the Environment – Origins and Development’ in Thomas Greiber (ed.), Judges and the Rule of Law: Creating the Links – Environment, Human Rights and Poverty (Cambridge/Gland: International Union for Conservation of Nature and Natural Resources, 2006) 13–20; icef, ‘Call for Actions by the Participating States of the Rio + 20 Conference’, 4 June 2012 accessed 1 May 2016. 103 See Eckard Rehbinder and Demetrio Loperena, ‘Legal Protection of Environmental Rights: The Role and Experience of the International Court of Environmental Arbitration and Conciliation’, 31 (2001) Environmental Policy and Law 282. 104 iceac, Regulations (1994), art. 49. 105 For a critical view of this initiative, see Pedersen (supra note 5). 106 See generally Stephen Hockman, ‘Opinion: An International Court for the Environment’, 11 (2009) Environmental Law Review 1–4.

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development of an ad hoc arbitral body [ite] which would build towards a permanent formal institution [ice]”.107 In the short term, however, the iba suggests using and enhancing existing arbitral and judicial institutions that may hear environmental disputes, while also recognising their limitations.108 In particular, it identifies the pca as the preferred arbitral forum, having taken note of its innovative Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources (2001) (“Optional Arbitration Rules”) which, inter alia, empower a tribunal to order interim measures to prevent serious environmental harm and to request non-technical summaries of “scientific, technical or other specialized information”.109 It also endorsed access to the pca’s financial assistance fund, which helps states in need to meet the costs of dispute resolution proceedings, the possibility for non-state entities to bring or participate in claims and for the pca to maintain lists of experts and specialised arbitrators.110 To date those rules have been utilised infrequently. The iba has encouraged all other arbitral institutions to develop appropriate rules, procedures and expertise amenable to environmental issues.111 In this regard, the pca’s Optional Arbitration Rules as well as its Optional Rules for Conciliation of Disputes Relating to the Environment and/or Natural Resources (“Optional Conciliation Rules”),112 which provide for consensual participation by any domestic or international actors, as well as multiparty participation, merit attention.113 Until recently, it was thought that the age of international court-building had passed, but there are signs that institutional innovation may still be 107 David Estrin and Helena Kennedy, ‘Achieving Justice and Human Rights in an Era of Climate Change’ (London: International Bar Association, 2014) (“iba Climate Justice Report”) 28. 108 Ibid, 142. 109 Optional Arbitration Rules (supra note 75) arts. 24(4), 26(1). See generally M Vespa, ‘An Alternative to an International Environmental Court? The pca’s Optional Arbitration Rules for Natural Resources and/or the Environment’, 2 (2003) The Law and Practice of International Courts and Tribunals 295. 110 iba Climate Justice Report, 13. 111 Ibid, 14. 112 The pca has also created Optional Conciliation Rules for general disputes, Optional Rules for Arbitration Between International Organizations and States (1996) and Optional Rules for Arbitration Between International Organizations and Private Parties (1996), potentially providing the pca with broad jurisdiction. 113 The Optional Arbitration Rules were modelled on the 1976 uncitral Arbitration Rules, which have been superseded.

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possible. In 2015, eu Trade Commissioner Cecilia Malmström proposed the creation of a world Investment Court System as the dispute settlement body for the Transatlantic Trade and Investment Partnership,114 a version of which was accepted in the most recent Comprehensive Economic and Trade Agreement text, along with support for conciliation.115 If that political will can be harnessed in the context of environmental concerns, such that states (and relevant non-state actors) perceive there to be greater benefits from participation in an ite/ice system rather than maintenance of the status quo (discussed below), perhaps an adjudicative institution dedicated to the environment may not be as fanciful as once thought. To date, states, who would be the primary creators and users of an ice, have not evinced such enthusiasm. v

Potential Benefits of an International Environmental Disputes Body

Part ii above provided a brief survey of existing international courts and tribunals with competence to hear environmental disputes. But as shown in Part iii above, those bodies are presently not optimised to deal with the range of issues, interests and complexity that accompanies environmental disputes. Over time, those shortcomings could be addressed incrementally through enhancements to existing bodies,116 and by creating a well-designed ite/ice system. Kalas notes a number of other benefits that an ite/ice system could bring to states, communities, individuals and businesses: (i) a centralized system that is accessible to a range of actors; (ii) establishment of a body of law regarding international environmental issues; (iii) consistency in judicial resolution of international environmental 114 Transatlantic Trade and Investment Partnership, ‘Investment’, Draft (eu Commission), Section  3 – Resolution of Investment Disputes and Investment Court System accessed 1 May 2016. See generally Catharine Titi, ‘The European Commission’s Approach to the Transatlantic Trade and Investment Partnership (ttip): Investment Standards and International Investment Court System’, (2015) Transnational Dispute Management 6. 115 Comprehensive Economic and Trade Agreement between Canada and the European Union accessed 1 May 2016, Section F, arts. 23.11, 24.16. 116 For selected proposals see Boyle and Harrison (supra note 8) 273–276.

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disputes … (vi) increased focus on preventive measures; (vii) global environmental standards of care; and (viii) facilitation and enforcement of international environmental treaties. In addition, if an International Environmental Court were to enable more plaintiffs to bring suit, corporations and other private entities might be more inclined to engage in environmentally sound practices abroad. Such a Court could influence the business community to develop risk management programs, improve present practices, and make cost-benefit analyses prior to undertaking large development projects, which would have a corresponding reduction of environmental catastrophes, and increased compliance with applicable laws.117 Ultimately, an ite/ice system could help to build trust among states and nonstate actors through the provision of workable solutions to environmental disputes. In the context of risk management, an ite/ice system could even assist with interpreting and implementing new global initiatives aimed at disaster reduction.118 On one view, eventually the ite/ice system could become the preeminent global centre of excellence for environmental law and jurisprudence,119 cultivating coherence between international environmental law regimes and integration with other specialised areas of law,120 and provide complementary assistance to legislative and judicial systems. Practically, this aspirational objective could be achieved by the ite/ice system, and its conciliation arm, becoming the standard compliance and dispute settlement mechanisms for meas.121 Similarly, institutions or regional 117 Kalas (supra note 39) 239–230. 118 un ga Res. 70/1, 21 October 2015 [Transforming our World: the 2030 Agenda for Sustainable Development], 14; International Monetary Fund, ‘Financing for Development: ­Revisiting the Monterrey Consensus’, July 2015, 24; Report of the Secretary-General, Implementation of General Assembly Resolution 67/226 on the Quadrennial Comprehensive Policy Review of Operational Activities for Development of the United Nations System, un Doc. A/71/63-E/2016/8 (31 December 2015), paras. 2, 105, 154; World Conference on Disaster Reduction, 16 March 2005, Resolution 2 [Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters], paras. 3, 4, 11, 16, 19. 119 See e.g. McCallion and Sharma (supra note 8) 361. 120 Alessandra Lehmen, ‘The Case for the Creation of an International Environmental Court: Non-State Actors and International Environmental Dispute Resolution’, 26(2) (2015) Colorado Natural Resources, Energy and Environmental Law Review 180, 182–183. 121 iba Climate Justice Report, 145–156. Pauwelyn endorses the politically difficult proposal of expanding the icj’s jurisdiction to encompass meas, and as second-best solution for

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bodies created under meas could use the ite/ice system as a joint alternative or complement to, or replacement of, their own tribunals or non-compliance procedures.122 For example, through Article 20 of the Kyoto Protocol the ite/ice system could be empowered as an independent enforcement branch, which could go some way to overcoming the inherent limitations of the compliance committee as a quasi-judicial body that is susceptible to political influence. Other environmental regimes could follow suit. Referral to the ite/ice system could be achieved by amending, creating protocols to, or passing resolutions under existing meas. Such a proposal is neither unprecedented nor futile. For example, at least 11 meas reference the pca as either the arbitral forum or appointing authority for disputes123 and, as mentioned above, the pca increasingly administers disputes that include an environmental dimension. Additionally, the pca’s Optional Arbitration Rules and Optional Conciliation Rules are referred to, either wholesale or in modified form, in various other instruments touching upon environmental regulation.124 Should the ite/ice system become the dispute resolution system of choice, it is hoped that by virtue of the above-mentioned benefits, and the possible consequences of international action, participating states could gently be encouraged to display positive behavioural change and to increasingly comply with international environmental obligations.125

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an ice to fulfill this role under a World Environment Agency that coordinates all meas, (supra note 7) 159. For example, unfccc, art. 14 provides for an Annex regarding arbitration that is yet to materialise; Kyoto Protocol to the United Nations Framework Convention on Climate Change, open for signature 11 December 1997, 2303 unts 148 (entered into force 16 February 2006), art. 19; unfccc, Draft decision 1/CP.21, FCCC/CP/2015/L.9/Rev.1 [Paris Agreement], art. 24. But see Zengerling (supra note 8) 317. Permanent Court of Arbitration, ‘Environmental Dispute Resolution’ accessed 1 May 2016. Including the Protocol on Civil Liability and Compensation for Damage Caused by the  Transboundary Effects of Industrial Accidents on Transboundary Waters, adopted 21 May 2003 (not yet in force), art. 14; the Gold Standard Foundation certification appeals process; various Kyoto Protocol Clean Development Mechanism agreements; and Green Climate Fund related instruments. See Permanent Court of Arbitration, ‘Environmental Dispute Resolution’ accessed 1 May 2016. See generally Carroll (supra note 9) 112–114.

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Contours of an International Environmental Tribunal and Court

This Part considers the broad parameters, architecture and framework of the two proposed alternative and complementary models of environmental adjudication: an ite and an ice. It is envisioned that the former would serve as a precursor to the latter; to the extent the latter remains necessary over time.126 This section does not resolve the numerous thorny issues accompanying the creation of such bodies. Rather, it canvasses several of the difficulties faced and makes proposals to advance the scholastic log-jam in favour of practicable solutions in relation to their establishment and performance, jurisdiction, applicable law, transparency, competence and enforcement. 1) Creation, Structure and Operations The quickest, cheapest and easiest way to establish an ite would be by mutual agreement between parties to an international environmental dispute (be they states, international organisations, corporations, ngos or individuals) to (i) submit the dispute to the jurisdiction of an ite and (ii) to be bound by its constitution and award. Standing consent could be provided in advance through an arbitration agreement in contracts, legislation or treaties or by agreement after disputes arise. By comparison, an ice would be established through an international treaty, either within or outside the un system, with agreed ratification requirements and transposition into domestic law. This process could start by a recommendation at an international conference, supported by a un General Assembly resolution authorising the commencement of negotiations. An appropriate recent forum to instigate preparatory work would have been the 2012 United Nations Conference on Sustainable Development, but the idea was not addressed. When creating an ite or ice, careful consideration of its constituent parts, structure and operations will be required. First, the institutional position: whether an ite/ice would be more environmentally effective as a standalone adjudicative body or by sitting within or alongside an eventual world environment organization (or within the present formulation of unep). Second, the form of the founding instrument: whether a constitutive, procedural framework treaty setting out its competence, operations and powers, modelled on the icj Statute, the icsid Convention or best-practice 126 Stephen Hockman, ‘The Case for an International Court for the Environment’, 3(1) (2010) Journal of Court Innovation 215, 228.

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arbitration rules (uncitral, lcia, icc, scc, siac), or a new substantive convention on environmental rights or protections that includes the above as well as enunciating guiding principles and substantive legal obligations, akin to the Rome Statute, by which the parties will be bound. In principle, an ice statute and rules would likely provide less flexibility than that associated with partychoice inherent in an ite. In practice, however, an ite would provide the conceptual template for how an ice could work in terms of jurisdiction, applicable law, decision-making and procedure. Therefore, on certain measures few differences would exist between the ite and ice. Third, scope of the mandate: whether the function of an ite/ice should be limited to any of facilitating implementation and compliance of meas through judicial review, undertaking of risk assessments, operation of mea noncompliance mechanism and enforcement of obligations via inter-state dispute resolution,127 or a broader mandate where disputes may be brought by nonstate actors and the ite/ice may even extend to a form of guardianship over the natural environment. Pauwelyn notes the limited benefit of establishing a tribunal by consent that simply facilitates the “settlement of environmental disputes broadly defined”128 that could presently be heard before the pca, iceac, the icj or similar bodies. Whatever the mandate, the preponderance of opinion emphasises that a politically amenable mandate is one that trespasses lightly on state sovereignty and minimises jurisdictional overlaps with existing bodies.129 Indeed, states prefer granting compulsory jurisdiction to specialised bodies empowered to enforce certain treaty-specific claims, as seen in unclos and the wto.130 But at present, no international tribunal has jurisdiction over all meas, potentially offering fertile ground for development. Fourth, panel composition: in any model, an ite/ice would best be served by panels composed of both specialist international environmental law and generalist public international law experts, legislators or diplomats, supported by expert technical, scientific, engineering and other panels as required to address a particular matter.131 Separate chambers could also be established to focus on thematic areas (i.e. biodiversity, air pollution, climate change, wildlife, forests, etc.). Such expertise would allow judgments that demonstrate 127 Sands, ‘International Environmental Litigation and its Future’ (supra note 8) 1640: “the international community should consider strengthening the noncompliance procedures that are being established in various multilateral environmental agreements, and finding ways to fold them into a single body with overarching functions”. 128 Pauwelyn (supra note 7) 158–159. 129 Hinde (supra note 6) 728, 748–756. 130 Pauwelyn (supra note 7) 159. 131 Sands, ‘Litigating Environmental Disputes’ (supra note 45) 4.

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an appreciation of the interrelationship between law, science, the environment and other technical matters and encourage greater systemic integration of international law (regardless of a restricted subject-matter jurisdiction). These benefits may distinguish an ite/ice as an attractive option to prospective disputing parties.132 Independent fact-finding, site visits and commissioned studies could also enable better understanding of the issues in dispute, though not all states my support national fact-finding missions. In both models the parties would have confidence that the adjudicators are well equipped to deal with the subject-matter, even though only an ite model would allow parties to choose their preferred arbitrators from standing lists or by agreed appointment, maintaining some party autonomy.133 Fifth, funding and costs: a number of options exist to fund and operate an ite or ice. Funding could be provided by states parties based on a pre-agreed formula, such as the un contribution model. Parties could bear their own costs or costs could be event-based or determined according to harm or principles such as ‘polluter pays’.134 Corporations could even provide long-term grants or annual fees in return for access by its entities that are often involved in disputes involving environmental concerns, such as mining companies. This may also create positive public perception benefits for those entities, by demonstrating a commitment to good environmental practice. Should the ite not have permanent infrastructure, but operate as an ad hoc body, establishment and operating expenses could be minimal. Like the pca’s fund for developing states, an ite/ice could provide open-access funding for indigenous persons and other vulnerable, affected persons or entities that would otherwise encounter difficulties in participating in proceedings. 2) Jurisdiction and Applicable Law Carefully designing the jurisdiction ratione personae, materiae and applicable law for the ite and ice will undoubtedly be the most challenging aspects of the project, and those most susceptible to criticism, but vital to minimise forum-shopping.135 132 Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’, 25 (2003–2004) Michigan Journal of International Law 903, 915– 916; Stephens (supra note 6) 51. 133 Cf. the osce Court of Conciliation and Arbitration structure that requires choice from standing lists only. 134 Pauwelyn (supra note 7) 168. 135 Boyle and Harrison propose the development of “a protocol reforming the present haphazard provision for dispute settlement in environmental treaties” than the radical idea of an ite or ice: (supra note 8) 275.

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Turning first to personal jurisdiction. As canvassed above, in the context of an ite it is assumed that jurisdiction ratione voluntatis would be present. Without consent, proceedings would be frustrated. Whose consent is required would depend on the model of an ite/ice (i.e. narrow or broad mandate). If the purpose of the project is to enforce states’ obligations under international law (or breaches of obligations due to acts or omissions by persons under its jurisdiction), a tribunal need only have jurisdiction over states, which could be provided in meas or by agreement. Individuals, corporations and ngos could then bring claims (standing for claimants is discussed below under ‘access, remedies and enforcement’). If private parties (or international organisations) wish to bring disputes inter se the tribunal will be required to consider, based on the doctrine of competence-competence, whether jurisdiction ratione personae may be established through contractual or other arbitration agreements, and whether it has exclusive jurisdiction. Of course procedures involving multiple defendants (and consideration of multiple treaties) would likely be necessary given the environmental subject matter. In the ice model, at one extreme end, state parties could agree that the ice has complementary compulsory jurisdiction over persons or entities domiciled within or governed by the law of their territory, covering the state and its organs, corporations, ngos, individuals and other structures, which could be especially necessary if environmental crimes are established.136 The need for compulsory jurisdiction in the international legal system generally has been emphasised by Lord Bingham of Cornhill, who observed that “if the daunting challenges now facing the world are to be overcome, it must be in important part through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced. That is what the rule of law requires in the international order”.137 Permanent jurisdiction of an ice would additionally provide, at minimum, a symbol of environmental stewardship, which could even be advanced by an independent commissioner or public prosecutor, linked to a world environment organisation or unep.138 136 See Kalas (supra note 39) 210–212. 137 Thomas Bingham, The Rule of Law (Penguin Books, 2010) 129, cited in Hockman, ‘The Case for an International Court for the Environment’ (supra note 126) 216. 138 Durwood Zaelke and James Cameron, ‘Global Warming and Climate Change – An Overview of the International Process’, 5 (1990) American University Journal of International Law and Policy 285. In a similar context, see the Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 unts 3 (entered into force 1 January 1989), art. 8, Decisions of the Meetings of the Parties to the Montreal Protocol Tenth Meeting of the Parties (Cairo, 23–24 November 1998) Annex ii: Non-compliance procedure, which permits its secretariat to activate an Implementation Committee.

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Over time, as international obligations and responsibility for international organisations mature, personal jurisdiction of an ite/ice could be amended, for example, to review conduct and decision-making compatibility with international environmental law, perhaps reducing the need for extant bodies such as the World Bank Inspection Panel. Jurisdiction ratione materiae will be a central design concern for the ite/ice system. In response to the concerns of Hey and others about the difficulty of defining an environmental dispute and related disagreements between disputing parties, a pragmatic proposal provides for subject matter jurisdiction by reference to meas rather than “disputes arising under international environmental law” or “disputes on the protection of the environment”.139 Those meas could be articulated in the ite/ice statute or be referenced as the ‘covered agreements’ within the scope and mandate of a future world environment organisation, borrowing from the wto system. Incorporating meas by reference, with carve-outs as necessary, would assist delineate between the jurisdiction of ite/ice and other international fora. Additionally, an ice in particular could provide a judicial review-like function of legal decisions made by other treaty compliance and supervisory bodies (should the ice not become the designated body). For instance, the ice may need to determine whether a decision of the Conference of the Parties to a treaty has legal effect for its state parties. Discharge of such duties could also be facilitated through consultative or advisory opinions on questions of environmental law or legal aspects of the use or protection of aspects of the natural environment. Equally, an ite/ice should be able to refer to the judgments of other institutions for guidance, and request opinions or advice from international organisations and scientific bodies of sound repute on factual matters (i.e. from the Intergovernmental Panel on Climate Change, the International Energy Agency, the European Union etc.). One difficulty for an ite or ice would be to identify and apply the relevant applicable law. It is argued that “customary international environmental law is in an embryonic state of development, and although treaties are numerous, they provide only islands of rules in a sea of vague general principles and custom”.140 Yet vague laws have not prevented the proliferation of cases in other domains 139 Pauwelyn (supra note 7) 161. 140 See Catherine A. Cooper, ‘The Management of International Environmental Disputes in the Context of Canada-United States Relations: A Survey and Evaluation of Techniques and Mechanisms’, 24 (1986) Canadian Year Book of International Law 247, 252. For consideration of the crystallisation of environmental rights see McCallion and Sharma (supra note 8) 354–359.

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such as international investment protection law, and should not prevent the project’s continuation. The particular applicable law would depend on whether the ite/ice has a broad or narrow mandate. On one conception, the law and guiding principles for an ite/ice would be predicated upon its founding convention on the right to a healthy environment or similar,141 or the consolidation of existing environmental treaties into a single international charter or constitution, which could encourage integration and coherence within international law rather than fragmentation and disunity.142 While those approaches develop, existing international laws would apply as relevant to the issues in dispute.143 Otherwise, for an ite, it would be for the parties to determine the applicable law in any arbitration agreement between them or to rely on established procedures to do so, in the absence of which by default international law would apply and prevail over any other conflicting law. For an ice, its seems sensible for the applicable law to be meas and other rules beyond international environmental law that are binding on the parties, in addition to general and customary international law which would assist with interpretation and application of substantive obligations.144 Indeed, arbitrators and judges of the ite/ice system could incrementally provide clarity, predictability and certainty to treaty law and customary norms, environmental rights and responsibilities, including on matters such as state responsibility for environmental harm from non-state entity conduct.145 This could perhaps be among its greatest roles and advance two functions of the system: a “retrospective function” in resolving immediate disputes between parties, and a “prospective function in articulating legal principles applicable in the .

141 Hinde (supra note 6) 749–756. See also iba Climate Justice Report, 118–126 which recommends the clarification of human rights obligations relating to climate change and in the long-term the possible creation of a “free-standing human right to a safe, clean, healthy and sustainable environment”. See also icef proposals. 142 Pierre-Marie Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, 31 (1999) New York University Journal of International Law and Policy 791, 798–799. But cf. Hey (supra note 6) 9–14 who notes the creation of a specialist environmental court may have the unwarranted side effect of contributing to further fragmentation of international law. 143 Boyle and Harrison caution against an expansive view of applicable law, which may dissuade states from participating or accepting compulsory jurisdiction: (supra note 8) 255. 144 Pauwelyn (supra note 7) 164. 145 See e.g. Hinde (supra note 6) 741–744.

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future”.146 In so doing, arbitrators and judges could raise public consciousness about environmental protection and its integration with other modern objectives.147 Coupled with compulsory jurisdiction, the ite/ice system could encourage greater implementation by all participants of their obligations, else risk international enforcement, the reciprocal assurance for which would foster a ‘level playing field’ in which excuses or options for free-riding are reduced.148 Where necessary, questions of general international law could be referred to the icj. Domestic law, as within other international courts, would be treated as a fact in either model. 3) Access, Remedies and Enforcement In the spirit of Principle 10 of the Rio Declaration, the Aarhus Convention, the growing movement of transparency in international arbitration, and continual calls for access to justice for those affected by environmental harm, it is anticipated that both an ite and ice would have broad standing and participation rules. As for standing in an ite, any persons or entities could bring claims by consent. In an ice, defendant and signatory states, international organisations and non-state actors could seek advisory opinions to identify and describe the law in relation to particular issues. If the system were truly open, access to justice would be provided to all actors through rights to bring claims (singularly or with multiple claimants) either directly or under complementarity jurisdiction, which on one level may assist to facilitate enforcement of obligations erga omnes when global commons resources are harmed, for example. In reality, it is unlikely that all states would support access to justice, have capacity to provide it or would risk censure from a non-state accountability mechanism. But as commented by Judge Jessup long ago, “it would be folly to provide for the settlement of disputes under environmental treaties without opening the tribunal or administrative body to those entities which will be as much concerned with enforcement of the new standards as will governments of state”.149 Others warn that 146 Vaughan Lowe, ‘The Function of Litigation in the International Community’, Annual lecture: ucl Centre for International Courts and Tribunals, Middle Temple Hall, 13 June 11, transcript, 6. 147 Sands, ‘Climate Change and the Rule of Law’ (supra note 12) 8. 148 But cf Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (Cambridge: Cambridge University Press, 2014) for a new perspective on why states may eschew such developments. 149 P.C. Jessup, ‘Do New Problems Need New Courts?’, 65 (1971) Proceedings of the American Society of International Law 261, 265.

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providing non-states with a cause of action may undermine the democratic legitimacy of international environmental law.150 This multifaceted concern warrants further exploration elsewhere. Various controls should exist to balance openness with perceived or actual risks to participating entities and the system itself, which could include any of the following requirements: individual or group harm, admissibility conditions to prevent frivolous claims and acceptance of only the ‘most serious’ breaches and issues (if a broad model is adopted), and exhaustion of local remedies. Such measures could emulate certain safeguards built into the International Criminal Court and the European Court of Human Rights.151 Controls for adjudication or arbitration would limit matters to those such as the Exxon Valdez or Deepwater Horizon oil spills, the Indian water arsenic poisoning and the toxic mud incident in Brazil, which, it is hoped, would also maximise the ite/ice system’s potential for contributing to the prevention of and response to major environmental harm. Conciliation could be commenced in relation to less serious breaches or less severe environmental issues. As for participation, both models could benefit by allowing amicus curiae briefs and expert testimony from ngos representative of the issues. Like other ad hoc bodies, an ite could be constituted anywhere in the world with appropriate facilities, potentially bringing (affordable) participation closer to the victims. Innovative and flexible remedies would be particularly necessary given the subject matter. At one end, an ite and ice may only be empowered to offer declarations of incompatibility of signatory states’ legislation with meas and other declaratory judgments, thereby enabling additional action against future behaviour inconsistent with a declaration. At the other end, an ice could issue fines and require compensation, order restoration and rehabilitation of damaged habitat, akin to those in the European Community Environmental Liability Directive.152 Importantly, provisions should be made for interim measures, in particular to preserve environmental evidence, as found in most domestic and international courts, and to prevent 150 Pauwelyn (supra note 7) 162. 151 Rome Statute of the International Criminal Court, open for signature 17 July 1998, 2187 unts 3 (entered into force 1 July 2002), preamble, arts. 1, 5(1); European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended), open for signature 4 november 1950, ets 5 (entered into force 3 September 1953), art. 34; European Court of Human Rights, Rules of Court, Rules 46, 47. 152 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004, L 143/56 EN oj; Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009, L 140/114 en oj.

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environmental harm. If environmental crimes were ever to be recognised, over which an ice may have jurisdiction, penalties could include punitive fines and imprisonment. If any of the remedies were not binding, then only normative pressure and reputational consequences could follow. Assuming they are binding, interim and final awards that are dispositive of issues could be enforced either under the New York Convention (assuming the ite is seated in a member state territory)153 or pursuant to an internal enforcement obligation within the ite’s or ice’s statute, akin to either the icsid Convention or the icj Statute.154 icj judgments in particular are highly regarded and provide considerable political and public pressure for compliance; it is hoped that so too would ice decisions. vii

Conciliation within the ite/ice System

It is beyond the scope of this chapter to review in detail the merits of conciliation or the types of disputes for which it is amenable, of which there are many. As suggested elsewhere in this book, environmental issues which thus far have tended not to imperil territorial integrity, threaten peace or result in war – for example disputes relating to transboundary water, air, land and noise pollution, global greenhouse gas emissions, breach of treaty obligations and maritime delimitation – are suitable for determination through conciliation. As discussed above, conciliation is included as a mode of dispute resolution in many meas, though its practical application is limited. Within the frame of an ite/ice system conciliation could operate as a mode of dispute settlement alongside adjudication in inter-state and mixed disputes.155 For example, the ite/ice system could operate as the conciliation commission envisaged under Article 14(6)-(7) of the unfccc. The current draft statute of the ice contemplates conciliation as a mandatory requirement before commencement of judicial proceedings.156 The

153 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, open for signature 10 June 1958, 330 unts 3 (entered into force 7 June 1959), art. iii. 154 icsid Convention, Article 54. Note the icj does not have mandatory enforcement power: un Charter (supra note 74) art. 94. Referrals to the Security Council for consideration of non-compliance is also a possibility. 155 See generally, Jean-Perre Cot, ‘Conciliation’, (2006) Max Planck Encyclopedia of Public International Law (oup). 156 Article 7 (manuscript with the author).

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aim of this pre-condition is to encourage time- and cost-effective resolution of disputes. Under the ice model, conciliation would be initiated with the administrative support of the Court’s Secretariat, who, in consultation with the members of the Court, would appoint a Commission capable of dealing with the legal and factual issues arising from the particular environmental dispute.157 The procedures common to conciliation would otherwise operate, resulting in a proposal for the settlement of the dispute being made to the parties, which is discussed with and considered by the parties separately and jointly.158 The rules could default towards confidentiality unless the parties agreed otherwise, although a short report summarising the case and solution would be made publically available, unless opposed by one of the parties. This position is aligned with the icsid Arbitration Rules.159 Nonetheless, in light of recent developments to improve transparency in investment arbitration and the public interest aspect of environmental disputes,160 future drafters may wish to consider adopting rules that would not render proceedings and publications confidential. Still, the benefit of such rules would have to be weighed against the risks of deterring conciliation in preference for other modes of dispute resolution. In many respects, it is quite possible that the ice conciliation rules, when fully developed, would be similar to the pca’s Optional Conciliation Rules (themselves modelled on the standard pca Conciliation Rules and uncitral Conciliation Rules), with allowances for modernisation in the context of international disputes generally. While procedurally these sets of rules would have similarities, a primary differentiating factor would be the subject-matter knowledge and specific environmental dispute experience possessed and developed over time by the ite or ice. This factor would also distinguish an ice from the general subject-matter competence of the osce’s Court of Conciliation and Arbitration.

157 Ibid, Article 7(2)-(3). 158 Ibid, Article 9(2). 159 icsid, Administrative and Financial Regulations, Regulation 22; icsid Arbitration Rules, Rule 48(4). 160 uncitral Arbitration Rules 2013 (supra note 64); See e.g. uncitral Rules on Transparency in Treaty-based Investor-State Arbitration (New York: United Nations, 2014); United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, adopted on 10 December 2014 by resolution 69/116 during the sixty-ninth session of the General Assembly of the United Nations.

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VIII Conclusions There are many reasons to question the practicality and feasibility of an ite or ice, as surveyed in this chapter. But even detractors acknowledge the merit in probing the boundaries of the practically possible, the “quixotic”161 or the presently improbable, to advance discussions globally about solutions to address environmental harm and collective action.162 Those discussions may encourage the creation of open mechanisms to remedy environmental harm occasioned to persons and humankind or gradual movement towards a centralised system of environmental dispute resolution. On the verge of the 1992 Rio Conference and agreement to the unfccc it was said that the “generalized political will for change is affecting the international legal process as consciousness evolves and as new meaning and purpose are given to international law in a newly conceived international society”.163 By 2016, our consciousness has again resurged. Whether it is sufficient to goad political action to evolve the international legal process will be known only in time. That international law and its component parts is presently insufficiently clear, underdeveloped or undesirable to resolve issues related to international environmental disputes should not preclude contemplation about progressive development of the international legal system so as to accommodate modern challenges. Indeed, in the domestic context, the iba’s project on a Model Statute on Remedies for Climate Change will be required to confront new frontier issues of causation, standing and burden of proof, among others, to recommend practical solutions to modern climate change litigation. Lessons and findings from that project could be instructive for legal developments relating to international environmental dispute resolution, as will many of the iba’s other recommendations. This chapter does not posit that an ite or ice is the solution to environmental governance and dispute resolution matters. For the reasons identified, adjudication may never mature to become the primary means of resolving global environmental issues.164 It simply commends reconsideration of the existing institutional architecture and opportunities for modernisation in the light of political and legal realities. Eventually, an ite/ice system “could provide an important engine for the further development and refinement of 161 162 163 164

Stephens (supra note 6) 60. Pedersen (supra note 5) 557–558, borrowing from John Rawls. Zaelke and Cameron (supra note 138) 285. Dunoff (supra note 8) 1100–1109.

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international environmental law, including coordination between its composite elements and its relationship to other norms of international law”.165 The increased recognition of the natural environment’s exhaustibility, the irreversibility of certain environmental harm, the growing urgency for coordinated mea implementation and enforcement efforts and the proper resolution of international environmental disputes require such a reappraisal for the benefit of disputing parties and for society at large. 165 Pauwelyn (supra note 7) 169.

chapter 11

Conciliation under the un Convention on the Law of the Sea Rüdiger Wolfrum i Introduction Conciliation was given a pronounced status as one of the means to settle disputes under the un Convention on the Law of the Sea (unclos or Convention), Annex v. This status does not reflect reality. So far, only one attempt has been made to make use of conciliation under Annex v of the Convention.1 However, in this respect the law of the sea merely follows the general trend in international law. Nevertheless one should not exclude any future use of the conciliation procedure; there may develop a trend for a more flexible procedure assisting in the settlement of disputes. Flexibility in this context means a mechanism which may be invoked more easily than an arbitral procedure. The rules concerning conciliation in the Convention can only be assessed in the context of the regime concerning the settlement of disputes under the Convention as set out in Part xv as well as in the Annexes v (Conciliation), vi (Statute of the International Tribunal for the Law of the Sea), Annex vii (Arbitration) and viii (Special Arbitration). For that reason, this article will briefly give an outline of the regime on the settlement under the Convention2 and only thereafter shall it deal with conciliation under the Convention in ­general,3 followed by a chapter on voluntary and compulsory conciliation4 before turning to other sources and initiatives regarding the introduction and promotion of conciliation and a conclusion.5 1 See the Conciliation Procedure initiated by Timor-Leste against Australia of 11 April 2016 under Section 2 of Annex v of the Convention (compulsory conciliation procedure). At the time of publication of this article it is still much too early to establish whether this Conciliation Procedure will lead to a positive result. So far, only the Conciliation Commission has been composed but Australia has already indicated that it will challenge the jurisdiction of the Commission. 2 See Chapter 2. 3 Chapter 3. 4 Chapters 4 and 5 respectively. 5 Chapters 6 and 7 respectively.

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The Dispute Settlement Regime under the un Convention on the Law of the Sea: An Overview

The Convention was adopted in 1982 at the conclusion of the Third United Nations Conference on the Law of the Sea and entered into force twelve years later, in 1994. It took another two years before the International Tribunal for the Law of the Sea was established. As is well known, the Convention is the result of comprehensive efforts by the international community to develop an international law of the sea while responding to new scientific findings concerning the oceans and the seabed. It was the intention of the Third un Conference on the Law of the Sea to deal with all law of the sea matters comprehensively, an approach, which is now occasionally being criticized. The Convention, known very pertinently as ‘a constitution for the oceans’, incorporates an obligatory system for the settlement of disputes as the decisive pillar to oversee the implementation and application of the Convention. This system was, and still is, considered an essential element in balancing all the various and very divergent interests in the use of the sea. It is a well-known fact that the Conference on the Law of the Sea had to accommodate the interests of States in the establishment of exclusive economic zones in which the coastal States concerned would exercise sovereign rights as far as the economic utilization of these zones is concerned. Equally, coastal States had an interest in safeguarding their sovereign rights in the continental shelf. On the other hand, several States were interested in internationalization not only of the deep seabed and the ocean floor but also of the high seas to provide for an efficient management of these spaces, particularly with a view to safeguarding them for peaceful uses and the protection of the marine environment. Again, another group was particularly interested in safeguarding the freedom of navigation. Further a group of geographically disadvantaged and landlocked States existed which attempted to secure the access of these States to the sea. Finally, island States – and in particular archipelagic States – emphasized that they were much more dependent on the sea than any other State and were striving for a special regime and safeguards. The concerns of the latter group of States become more and more relevant considering that climate change may have a detrimental impact upon the sea level. The compulsory dispute settlement system under the Convention is based upon Articles 2(3) and 33(1) of the un Charter. Article 33(1) of the un Charter mentions several means for the settlement of disputes while emphasizing that the parties to a dispute may have resort to ‘other peaceful means of their own choice’. This principle is upheld – as will be demonstrated later – in the Convention.

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The dispute settlement system established by Part xv of the Convention is covered by the ratification or accession of the States Parties to the Convention; no further declaration is necessary to render the dispute settlement system of the Convention generally applicable.6 The decisions of the courts and tribunals acting under Part xv of the Convention (the International Tribunal for the Law of the Sea (itlos), the International Court of Justice (icj) and arbitral tribunals acting under Annex vii of the Convention) are binding. Accordingly, when parties to a dispute relating to the interpretation or application of the Convention fail to resolve their dispute through voluntary procedures, namely, negotiation, conciliation or other peaceful means, agreed ad hoc or through a special international treaty, they are obliged to resort to compulsory procedures as set out in Part xv, Section 2, of the Convention entailing binding decisions. This is a significant innovation vis-à-vis the traditional compulsory dispute settlement system, which requires separate consent either in general or in respect of a particular treaty regime or ad hoc for a particular dispute, as is the case under Article 36(2) of the Statute of the International Court of Justice. The compulsory dispute settlement procedure under the Convention is limited in scope, though. According to Articles 286 and 288 unclos, courts and tribunals acting under Part xv unclos only have jurisdiction over disputes concerning the interpretation and application of the Convention (jurisdiction ratione materiae). Only if a court or tribunal has jurisdiction ratione materiae may it have recourse to other norms of public international law to the extent such other norm is not incompatible with the Convention.7 So far, the jurisprudence has frequently referred to the rules on international responsibility of States.8 6 It is mandatory to emphasize that this means the consent to the general applicability of the dispute settlement system under the Convention although it provides for numerous exceptions. However there seems to be a tendency in literature to overemphasize these ­exceptions, see, for example Bernard H. Oxman, ‘Courts and Tribunals: The icj, itlos, and Arbitral ­Tribunals’, in: D.R. Rothwell et al. (eds.) The Oxford Handbook of the Sea (Oxford: Oxford ­University Press, 2015) 394–415 at 396/7. 7 See Article 293 of the Convention. 8 It is discussed controversially as to whether so-called sovereignty issues are covered by the jurisdiction of international courts or tribunals under the Convention. The majority view seems to be that this is not the case since the Convention contains no rules upon which a decision of any such court or tribunal might be based as to which State may exercise sovereignty over a particular island or land. This is a matter of general international law. See on this Oxman (supra note 5) at 400 who excludes the jurisdiction of international courts tribunals concerning the sovereignty on land, in particular islands. However, one may argue that courts and tribunals acting under Part xv of the Convention may have sovereignty if

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The compulsory procedure, however, is not applicable to all disputes arising under the Convention, which constitutes a further limitation. Under Article 297 unclos, exceptions are provided to these compulsory procedures with respect to disputes relating to the sovereign rights of a coastal State in respect of fisheries in its exclusive economic zone (eez), or to the exercise by a coastal State of discretionary rights concerning marine scientific research in its eez. Article 297 unclos is not very clearly drafted; it first affirms the obligation to have recourse to compulsory dispute settlement and then establishes limits which, if interpreted broadly, may deprive the dispute settlement mechanism of all of its meaning concerning the exercise of the coastal State’s rights in respect of the exclusive economic zone. These exceptions are part of the overall compromise. These exceptions work automatically which means they do not have to be declared. However, there exists the possibility to waive them. So far, in the two cases on fisheries before itlos they have not been invoked9 nor has the exception in respect of scientific research been invoked in the M/V Louisa case.10 One may, on the basis of this limited jurisprudence, argue that such exceptions have to be invoked, as was the case in in the dispute of Mauritius v. the United Kingdom11 and in the Guyana/Suriname dispute.12 In none of the cases mentioned so far, where an exception under Article 297 unclos was referred to, was it contemplated to have recourse to conciliation. Article 298 unclos enumerates specific optional exceptions to compulsory dispute settlement under Part xv, Section 2, of the Convention. This ­provision the sovereignty question is incidental or ancillary to the main subject of the dispute. See, for example even favoring a wider interpretation, Tullio Treves, ‘What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards maritime delimitation disputes?’ in: R. Lagoni and D. Vignes (eds.), Maritime Delimitation (Leiden/Boston: Martinus Nijhoff Publishers, 2006) 77. It is undisputed, though, that the parties may agree that the question of sovereignty may be decided by the court or tribunal in question; further, the icj may decide such a question on the basis of international law and outside the purview of part xv of the Convention. 9 The M/V Saiga (No.2) case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999; The M/V Virgina G. case (Panama/Guinea-Bissau), Judgment of 14 April 2014. 10 The M/V Louisa case (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment of 28 May 2013. 11 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, http://www.pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_ id=2899, at 119 et seq. 12 Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex vii, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between Guyana and Suriname, Award of 17 September 2007, at p. 135.

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in itself constitutes a further elaboration on the general rule laid down in Article 309 unclos according to which no exceptions or reservations may be made to the Convention unless expressly permitted. A State may declare such exceptions at the time of ratification or accession or at any time thereafter. Article 298(1)(a) unclos permits a State Party to exclude from compulsory dispute settlement under Part xv, Section 2, ‘disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitation, or those involving historic bays and titles’. Article 298(1)(b) unclos permits a State Party to exclude from compulsory dispute settlement ‘disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297, paragraph 2 or 3’. Finally Article 298(1)(c) unclos permits States Parties to exclude disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.13 Making a declaration under Article 298(1)(a) unclos is of direct relevance for conciliation; this is not so, however, for declarations under Article 298(1)(b) and (c) unclos. Having briefly described the two exceptions from the compulsory dispute settlement regime under the Convention it is called for to emphasize that de facto the compulsory procedures under the Convention apply to the vast ­majority of its provisions, including those concerning fisheries, the marine ­environment and sea boundary delimitations. Furthermore, the courts and ­tribunals acting under Part xv of the Convention have jurisdiction over ­disputes submitted to them pursuant to the provisions of any other agreement concerning matters related to the law of the sea which refer to the d­ ispute ­settlement regime under Part xv of the Convention. To date several such ­multilateral agreements, including the 1995 United Nations Fish Stocks Agreement, contain such reference. Article 287 unclos provides States Parties with the choice of a forum – the International Tribunal for the Law of the Sea, the International Court of Justice or arbitration. This option shows a certain reluctance of turning to institutionalized judicial bodies. Some States, in particular from the Western European region, preferred more flexible forms of dispute settlement in particular where the size of the bench was limited – 5 rather than 21 – and where the parties 13

For further details see Oxman (supra note 6) 406/7.

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had some influence on the composition of the judicial body (arbitral tribunal) concerned. If no such declaration is made – and in reality most of the member States have not made such declaration – this fact is taken as a presumption that these States Parties have accepted the jurisdiction of arbitral tribunals established in accordance with Annex vii to the Convention. The reason why only few such declarations have been made is unclear. Frequently it may not be a deliberate decision. If the applicant and the respondent have not made the same choice the dispute will come under the jurisdiction of arbitration unless other­ wise agreed. The underlying principle is that only if the parties to a dispute have chosen the same forum, either by parallel declaration in advance, by agreement or by declaration ad hoc, the compulsory dispute settlement procedure under Section 2 of Part xv of the Convention is arbitration. Accordingly, in most cases arbitration under Annex vii, not the itlos, which is the sole permanent judicial organ established by the Convention, will be the only compulsory means of settling disputes, unless the parties agree upon the itlos or the International Court of Justice. This situation, where recourse to the itlos seems to be the exception, was probably not anticipated by those who drafted the Convention, considering that the itlos was established under the Convention as a specialized jurisdiction entrusted with the task of dealing with disputes relating to law of the sea matters. Even in respect of the choice of forum, exceptions exist. The Convention provides for two types of compulsory jurisdiction procedures entertained by itlos. Even in the absence of declarations made under Article 287 unclos, itlos has compulsory jurisdiction in two instances where the parties to a dispute have failed to agree within a given period of time, to submit their dispute to a court or tribunal. These instances are requests for the prescription of provisional measures pending the constitution of an arbitral tribunal in accordance with Annex vii to the Convention (Article 290(5) unclos) and requests for the prompt release of vessels and crews (Article 292 unclos). The majority of cases submitted to the itlos since the commencement of its activities in 1996 have been initiated on the basis of these provisions of the Convention. These cases may be instituted by unilateral application by any State Party to the Convention. But before submitting a dispute to the itlos, the icj or arbitration according to Part xv, Section 2, of the Convention the potential applicant has to satisfy the procedural requirements under Section 1 of this Part. In essence, the requirements which are set out in Articles 281, 282 and 283 unclos have as their objective to ensure that voluntary forms of dispute settlement or forms agreed upon previously prevail over the compulsory ones under Section 2. This again indicates a certain reluctance to submit disputes to compulsory forms of

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dispute settlement. Such a trend still exists and may be one of the reasons why Russia and the People’s Republic of China declared they would not participate in the arbitral proceedings initiated against them.14 Articles 279 and 280 unclos15 formulate the normative policy underlying the dispute settlement namely that States Parties to the Convention are obliged to settle their disputes concerning the interpretation and application peacefully. This provision contains a reference to Article 2(3) of the un Charter as well as to its Article 33, which must be deemed to reflect customary international law. The same is true in respect of Article 280 unclos which emphasizes that forms of dispute settlement agreed upon before or after the entering into force in principle prevail over compulsory forms as set out in Section 2 of Part xv of the Convention. Articles 281 and 282 unclos render the normative policy principle as contained in Article 280 unclos more concrete. Article 281 unclos states that if the parties have agreed to settle a dispute concerning the interpretation or application of this Convention by peaceful means of their own choice the agreed procedure should apply. If, however, the settlement of the dispute was not successful, recourse to the procedure under Section 2 of Part xv shall apply unless the Parties have agreed otherwise. This provision raises several interpretative questions which still require a solution by the international courts and tribunals concerned. The first question is what is meant by ‘interpretation and application of the Convention’ in this context. Does this mean that the dispute settlement system in question has to be as general as the Convention? This would deprive Article 281 unclos of its ­relevance since no such agreements exist and are unlikely to be concluded. It is sufficient that the dispute settlement system in question only covers particular aspects 14 See Arctic Sunrise case (The Kingdom of the Netherlands v. Russia), Judgment on Jurisdiction and Admissibility of 26 November 2014; Philippines v. People’s Republic of China Arbitration (Award on Jurisdiction and Admissibility of 29 October 2015). It is a matter of dispute as to whether parties to a dispute have the right not to appear. Considering that the procedural rules expressly addressing the effect of non-participation has been understood to imply that a State is not obliged to participate in the proceedings, see Oxman (supra note 5) 399. One may counter, though, that these rules without taking any position on the non-appearance only want to ensure that the court or tribunal in question ­delivers a non-appearance judgment. These rules protect the interest of the non-appearing State without necessarily condoning the fact of non-appearance. itlos in its Order of 22 November 2013 in the Arctic Sunrise case (The Kingdom of the Netherlands v. Russian Federation), (Provisional Measures) emphasized this point at para. 55; even more pronounced in the dispute Philippines v. China at paras 12, 112 et seq. 15 These are the two Articles which stand at the beginning of Section 1 of Part xv of the Convention.

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also covered by the Convention. Another pertinent question is whether the preclusion to have resort to other means must be expressed explicitly. This was the view of the majority in the Southern Bluefin Tuna case,16 which would dismantle the compulsory dispute settlement system under the Convention since such alternative agreements are not required to contain a compulsory dispute settlement system.17 Article 282 unclos in turn refers to general, regional or bilateral agreements establishing a procedure for the peaceful settlement of disputes which may supersede the dispute settlement system under Part xv, Section 2, ­u nclos if the following criteria are met. These are: (a) that the parties must have agreed through a ‘general, regional or bilateral agreement or otherwise’; (b) through which at the request of any party to the dispute such dispute shall be submitted to a procedure ‘that entails a binding decision’; and (c) that the parties have not otherwise agreed to retain access (i.e., to opt back in) to the Part xv, Section 2 procedures. Due to this qualification the alternative procedures referred to in Article 282 unclos do not put the obligatory nature of the dispute settlement system under the Convention into question. In such a case this generally, regionally or bilaterally agreed procedure prevails. The relationship between Articles 281 and 282 unclos is not fully clear; there exists little jurisprudence so far. The arbitral award in the Southern Bluefin Tuna cases18 dealt with Article 282 unclos and the Award on Jurisdiction and Admissibility in the dispute on the South China Sea (Philippines v. Peoples Republic of China)19 dealt with Articles 281 as well as 282 of the Convention. Another procedural requirement is prescribed in Article 283 unclos. ­According to it, parties to a dispute are obliged to ‘proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’. As recognised by the tribunal in the Chagos Marine Protected Area case: Article 283 unclos requires that a dispute has arisen with ­sufficient clarity that the parties were aware of the issues in respect of which they ­disagreed. Once a dispute has arisen, Article 283 unclos then requires that the parties engage in some exchange of views regarding the means to settle the dispute.20 This view was echoed by the tribunal in the Arctic Sunrise case, 16

Southern Bluefin Tuna cases (Australia v. Japan; New Zealand v. Japan) (Jurisdiction and Admissibility) (2000), Reports of International Arbitral Awards 23, at 56–64. 17 See an analysis of the award by Bernard H. Oxman, ‘Complementary Agreements and Compulsory Jurisdiction’, 95 (2001) American Journal of International Law 277. 18 See supra note 16. 19 Supra note 14. 20 See supra note 11, paras. 382–386.

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which held that Article 283 unclos requires ‘that the Parties exchange views regarding the means by which a dispute that has arisen between them may be settled … Article 283(1) does not require the Parties to engage in negotiations regarding the subject matter of the dispute’.21 Jurisprudence is not fully coherent as to the required intensity of such ­negotiations. However, it has been established frequently that the parties to a dispute, mostly the appellant since Article 283 unclos is invoked by the respondent, does not have to wait indefinitely. Article 284 unclos refers to the possibility of conciliation. This means of dispute settlement may be invoked if both parties so agree. Apart from the disputes mentioned so far another set of disputes exists – namely those concerning deep seabed activities. The particularity of these ­disputes is that they may not only involve States but also private entities and international organizations – the Enterprise of the International Seabed Authority and the International Seabed Authority itself. The ensuing disputes fall under the jurisdiction of the Seabed Disputes Chamber in accordance with Part xi of the Convention and the 1994 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted on 28 July 1994 (Implementation Agreement). Its jurisdiction is compulsory. The Seabed Disputes Chamber is competent to deal with different categories of disputes. These include disputes between States Parties ­concerning the interpretation or application of Part xi of the ­Convention and the 1994 Implementation Agreement; disputes between a State Party and the International Seabed Authority, for example, concerning acts or omissions of the Authority or of a State Party, alleged to be in violation of the ­Convention; and contractual disputes concerning the interpretation or application of a contract between a juridical person and the Authority. Article 285 unclos clarifies that the alternative forms of dispute s­ ettlement, including conciliation, may also become relevant for disputes concerning deep seabed activities. iii

The Conciliation Procedures under the Convention

Conciliation is referred to indirectly and directly in the Convention in several places describing two different forms of conciliation, namely in Articles 27922

21 The Arctic Sunrise case (Kingdom of the Netherlands v. Russian Federation), Merits, Award of 14 August 2015, para. 151. 22 Article 279: Obligation to settle disputes by peaceful means.

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and 28423 as well as in Articles 29724 and 298.25 Annex v to the ­Convention sets out the procedural rules concerning conciliation distinguishing between

23

24

“States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2(3) of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33(1) of the Charter.” Article 284: Conciliation. 1. A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex v, Section 1, or another conciliation procedure. 2. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. 3. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated. 4. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure. Article 297: (3) (a) Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with Section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations. (b) Where no settlement has been reached by recourse to Section 1 of this Part, a dispute shall be submitted to conciliation under Annex v, Section 2, at the request of any party to the dispute, when it is alleged that: (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered; (ii) a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or (iii) a coastal State has arbitrarily refused to allocate to any State, under articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist. (c) In no case shall the conciliation commission substitute its discretion for that of the coastal State.

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a ­conciliation procedure pursuant to Section 1 of Part xv of the Convention (­Articles 279 and 284) (‘voluntary conciliation procedure’) and ‘compulsory submission to conciliation procedure’ referred to in Section  3 of Part xv (­Articles 297 and 298). The procedure is set out in detail in Annex v to the ­Convention differentiating between voluntary and compulsory conciliation procedure although it should be noted that Articles 297 and 298 unclos ­already contain some procedural rules for the latter. Finally, when conducting conciliation procedures, the general rules on the settlement of disputes as contained in Part xv of the Convention are to be taken into account.

25

(d) T  he report of the conciliation commission shall be communicated to the appropriate international organizations. (e) In negotiating agreements pursuant to articles 69 and 70, States Parties, unless they otherwise agree, shall include a clause on measures which they shall take in order to minimize the possibility of a disagreement concerning the interpretation or application of the agreement, and on how they should proceed if a disagreement nevertheless arises. Article 298: Optional exceptions to applicability of Section 2 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under Section  1, declare in writing that it does not accept any one or more of the procedures provided for in Section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex v, Section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in Section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;…

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The Convention does not provide for a definition of conciliation but Annex v to the Convention reflects a definition of this notion which does not deviate from the definition generally proposed.26 1) Scope The conciliation procedures under the Convention are embedded in Part xv of the Convention dealing with the dispute settlement system under the Convention together with Annexes v–viii comprehensively. Accordingly, the scope of the conciliation procedures is identical with that of the contentious dispute settlement procedures, i.e. adjudication and arbitration. This means the dispute has to deal with the interpretation and application of the Convention. Compared to the jurisdiction of the International Court of Justice the jurisdiction of international courts and tribunals as well as the competence of the conciliation commissions under the Convention is thus limited to the ‘interpretation and application of the Convention’. This limitation is set out in Articles 279 and 280 unclos in general and in Articles 297(2)(b), 3(b-e) and 298 (1)(a)(i-iii) unclos in respect of a compulsory submission to conciliation procedures. It is a matter for discussion how this limitation of jurisdiction is to be interpreted. This is not merely an academic discussion but one of eminent practical consequences as the arbitral award of 18 March 2015 in the case ­Mauritius v. United Kingdom27 demonstrates. In procedures with a limited jurisdiction ratione materiae it is mandatory to define the content of the dispute. This definition is the responsibility of the court or tribunal in question as well

26

According to a 1961 resolution of the Institut de droit international ‘conciliation’ means a method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or on an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible to being accepted by them, or of affording the Parties with a view to its settlement, such aid as they may have requested (Resolution, International Conciliation, 49(II)) (1961) Annuaire de l’Institut de droit international 386, article 1. As to the definition of the term ‘conciliation’ see Jean-Pierre Cot, ‘Conciliation’, in: Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012); Sven M.G. Koopmanns, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (The Hague: t.m.c. Asser Press, 2008); J. G Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 5th ed. 2011); Sienho Yee, Conciliation and the 1982 un Convention on the Law of the Sea, 44 (2013) Ocean Development and International Law 315–328. 27 See supra note 11, 79 et seq.

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as the competent conciliation commission. These institutions have to perform those functions in an objective manner. 2) Consent A conciliation procedure may be initiated if both parties concerned have consented thereto. Such consent may be given ad hoc for a specific case or in general. In this respect the two conciliation procedures, referred to already, differ. If the initiated conciliation procedure is based on the general right to initiate such procedure as a diplomatic and alternative means for dispute settlement under Articles 279 and 284 unclos this always will be ad hoc. The procedure to be followed is set out in Annex v Section 1 although the parties to the conflict may modify this procedure by agreement.28 If, however, the conciliation procedure is invoked under Article 297 or 298 unclos, Section 2 of Annex v is applicable as well as the procedural rules contained in the said Articles. In this case, too, the parties to the dispute may change the procedural rules by agreement. 3) Legal Dispute A conciliation procedure can only be initiated if there is a legal dispute as defined in the jurisprudence of international courts and tribunals between the parties concerned. In that respect the conciliation procedure does not differ from the procedures for the settlement of contentious cases by adjudication or arbitration. To establish that a legal dispute exists is again the responsibility of the conciliation commission concerned. As already indicated the functions of the two conciliation procedures under the Convention are limited to the interpretation and application of the Convention. According to Article 288(2) unclos the scope of applicability of Part xv can be broadened by international agreements related to the law of the sea. In consequence thereof, the scope of voluntary conciliation procedures may also cover the interpretation and application of such international agreements. It should be noted in this context that according to Article 293 unclos adjudicative bodies under Part xv may have resort to general international law. This also applies to the conciliation procedures. But as itlos stated several times Article 293 unclos does not open the jurisdiction of adjudicative bodies and accordingly cannot establish the possibility for conciliation under the 28

See Article 10 of Annex v.

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Convention. However, according to Article 33 of the un Charter conciliation is always possible under general international law. 4) Obligation to Exchange Views Having resort to a conciliation procedure under the Convention does not absolve of the duty to apply the principles set out in Section 1 of Part xv of the Convention. This is explicitly stated in Article 298(1) unclos. The most important provision in this respect is Article 283 unclos. It stipulates that the parties to a dispute shall proceed expeditiously to an exchange of views regarding the settlement by negotiation or other peaceful means. This provision has frequently been misunderstood. It is sufficient – but also mandatory – that the parties concerned have exchanged views on how to settle the dispute procedurally.29 5) Conciliation and Subsequent Dispute Settlement Procedures Voluntary conciliation may be followed theoretically by a third party dispute settlement procedure, if the procedural requirements are met. As far as compulsory conciliation is concerned a third party dispute settlement procedure is actually excluded in Articles 297 and 298 unclos respectively. However, the parties to a dispute may theoretically agree otherwise. iv

Voluntary Conciliation

Voluntary conciliation is regulated, as indicated earlier, under Section 1 of Part xv of the Convention and Annex v Section 1. Actually the reference in Article 279 unclos to Article 33 of the un Charter makes it quite clear that conciliation exists as one option for the settlement of disputes. However, the drafters of the Convention meant to emphasize this possibility by including Article 284 and Annex v in the Convention, which in particular refer to the option of conciliation. The subject matter of voluntary conciliation can be any legal dispute under Article 288(1) unclos. The parties may use the procedure provided for under Annex v, Section 1 to the Convention, they may modify such procedure or they may adopt a different one. It the parties agree to use the procedure under Annex v Section 1 to the Convention, the following matters are already regulated: the institution of proceedings; the maintenance of a list of conciliators; the constitution of the conciliation commission of five members, possibly with the assistance of 29 See supra note 21.

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the un Secretary General; the procedure to be followed by the conciliation commission; the types of measures that may facilitate amicable settlement; the functions of the conciliation commission; the report of the commission; termination; and fees and expenses.30 The procedure provides for the following tasks of the commission: it may draw the attention of the parties to any measures that might facilitate an amicable settlement of the dispute; it must hear the parties, examine their claims and objections and make proposals with a view to reaching an amicable settlement; and the commission will produce a report which shall include the commission’s conclusions or recommendations; this report is not binding on the parties. These tasks indicate that the commission is not meant to remain passive but to play an active role. The strong functions of the conciliation commission are further enhanced by its procedural powers. These are according to Article 4 of Annex v to the Convention: the conciliation commission determines its own procedure unless the parties otherwise agree; the commission is obliged to produce its report within 12 months; according to Article 7 of Annex v, the report of the commission ‘shall record any agreement reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement’ and the report ‘shall be deposited with the Secretary-General of the United Nations and shall immediately be transmitted by him to the parties to the dispute’. Although the report is not binding, unless accepted by the parties, the report may be detrimental or positive for the parties if they decide to have a third party dispute settlement following conciliation. Therefore it is quite relevant that this report is kept secret. This is not clearly spelled out in the procedural report although the secrecy of the proceedings is generally considered essential to the success of conciliation.31 v

Compulsory Conciliation

The background for the establishment of a compulsory conciliation procedure as provided for in Articles 297 and 298 unclos were the complicated negotiations of the Third un Conference on the Law the Sea concerning the exclusive economic zone regime and the regime on the continental shelf. 30 31

Yee (supra note 26) 320. Yee (supra note 26) 320/1.

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The Convention states that coastal States enjoy sovereign rights in respect of their ­continental shelves and – this was accepted later – sovereign rights in respect of the economic use of the resources of their exclusive economic zones. When the regime on the dispute settlement mechanisms was discussed many States felt that the newly won sovereign rights should not be jeopardized by third party dispute settlement mechanisms. Sovereignty and sovereign rights were considered to be more or less immune from binding decision-making by an adjudicative body established in Part xv of the Convention. This understanding of sovereignty or sovereign rights belongs more to the 19th century than to the second part of the 20th when the Convention was adopted. Reflecting these views, which were in particular voiced by the States with long coasts of all geographical regions, resulted in the decision of the Conference to provide for exceptions from the applicability of the rules on dispute settlement under Section 2 of Part xv of the Convention for certain legal disputes and, as a compromise, to require under Articles 297 and 298 some of these excepted matters to be submitted to compulsory conciliation under Annex v, Section 2. The interpretation of the relevant provisions of Article 297 unclos, in particular as far as its scope is concerned, is complicated. It has been attempted in the award in the Mauritius v. United Kingdom32 case. The interpretation of the relevant parts of Article 298 of the Convention played a role in the dispute in Philippines v. China.33 The denomination ‘compulsory conciliation’ – a notion developed in academic writings – is somewhat misleading. This conciliation is compulsory only as a process. A party to a legal dispute, which is a party to the Convention, must accept it when it is invoked by the other party to the dispute. However compulsory conciliation does not result in a binding decision. The proposals presented by the commission are only recommendations that the parties may accept or reject. If they accept them, the dispute may be settled; if not, there is no further obligation to resort to another means of settlement. Still the parties may decide otherwise. Apart from that also in a compulsory conciliation procedure a party (mostly the respondent) may argue that initiating such procedure is inadmissible or that the Conciliation Commission lacks jurisdiction. This is, in general terms, provided for in Article 13 Annex v of the Convention.34 As already indicated, the subject matters that are subject to compulsory conciliation are provided for in Articles 297 and 298 unclos. They contain 32 See supra note 11, p. 86. 33 See supra note 14. 34 Article 13 reads: “A disagreement as to whether a conciliation commission acting under this section has competence shall be decided by the commission”.

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limitations concerning the disputes which are excluded from third party dispute settlement, which of these disputes are to be submitted to compulsory conciliation and where there are limitations on conciliation. Apart from the overall limitation it is necessary that the dispute must concern the interpretation or application of the Convention. To be somewhat more concrete without entering into detail, Article 297 of the Convention provides for ‘automatic exceptions’ from the applicability of Section 2 binding decision-making procedures. They are considered automatic because they are effective without any additional declaration from States Parties. However, the applicability of the exception under Article 297 of the Convention may be waived explicitly or tacitly. The situation in respect of the exceptions under Article 298 of the Convention is different. Article 298 of the Convention provides for optional exceptions from Part xv, Section 2 of the Convention. These are optional in the sense that these exceptions must be expressly claimed and declared by a State Party on ‘signing, ratifying or acceding to this Convention or at any time thereafter’. The words ‘any time thereafter’ may give rise to a misunderstanding. Such declaration has to be made before the initiation of proceedings. If such declaration was made before the initiation of proceedings it may be waived during the proceedings, explicitly or tacitly. Among the subject matters excepted under Articles 297 and 298 of the Convention, only some, not all, are made subject to compulsory conciliation which marks a limitation for the latter. Article 297 of the Convention refers to the interpretation or application of the Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction over marine scientific research and fisheries. Article 298 of the Convention deals with exceptions for disputes relating to the interests of States Parties falling within the following categories: (a) ­delimitation and historic bays or titles; (b) military and government enforcement activities; and (c) un Security Council action. Category (b) and (c) ­disputes, if excluded by a State from Section 2 binding procedures, are completely exempt from any binding procedure as well as from conciliation. However, the State Party concerned has certain flexibility in formulating its exception. It may neither exhaust the scope of the exception fully nor may it exclude all forms of disputes. The situation is different in respect of Article 298(1)(a)(i), disputes of category (a) (relating to delimitation or involving historic bays or titles). These disputes if excluded by declaration from Section 2 binding decision procedures are subject to compulsory conciliation under Annex v Section 2, with the proviso that ‘any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other

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rights over continental or insular land territory shall be excluded from such submission’. This clause, which is the subject of considerable discussion, was addressed in the award in Mauritius v. United Kingdom namely as to whether this means, argumentum e contrario, that in the absence of such a declaration compulsory dispute settlement mechanisms have the jurisdiction to decide on sovereignty issues if connected with a law of the sea dispute.35 The procedural rules concerning the implementation of compulsory conciliation mandated under Articles 297 and 298 of the Convention are contained in Annex v, Section 2 as already indicated. They address, amongst others, the institution of proceedings, failure to reply or to submit to conciliation and the functions of the commission. The latter are identical to the ones already described for the voluntary conciliation procedure. The particularity of the compulsory procedure is that a framework is set up that resembles unilateral recourse to litigation. The institution of proceedings in this context does not depend on a new agreement to resort to conciliation; having ratified or acceded to the Convention covers the assent of the other party to the dispute to accept this procedure. Any dispute on the competence of the commission is to be decided by the commission itself, which is an application of the compétence de la compétence principle. A dispute on the interpretation of Article 297(2)(b), as mentioned above, may well be decided by a commission. In all other procedures under Annex v, Section 2, it is similar to that under Section 1. This applies to composition of the commission, appointment of its members and many aspects of procedure such as the lack of express provision for secrecy of proceedings; the content and treatment of the report of the commission; the parties’ right to modify the procedures; and, most importantly, the nonbinding nature of the report of the commission.36 vi Conclusion Theoretically the Convention provides a flexible framework for voluntary and compulsory conciliation as a means of settling any dispute relating to the interpretation or application of the Convention. Nevertheless only one attempt has been made so far to use this procedure as provided for by the Convention.37 There are few instances where States have resorted to conciliation o­ utside this regime. Belize and Guatemala resorted to conciliation under the auspices of 35 36 37

Mauritius v. United Kingdom (supra note 8) 79 et seq.; see also Treves (supra note 8) 77. See Article 14 of Annex v of the Convention. See note 1.

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the Organization of American States (oas) regarding their ‘territorial differendum’, including maritime component. A successful example of law of the sea conciliation before the Convention was adopted in 1982 was the Jan Mayen (Iceland/Norway) Conciliation from 1980–1981. In that matter, Norway and Iceland agreed to resort to voluntary conciliation regarding the dividing line in the continental shelf area between Iceland and Jan Mayen.38 What are the reasons for conciliation not being used more frequently? As Jean-Pierre Cot stated some of the reasons are inherent in the process itself. The setting up of a conciliation procedure is as complicated as setting up an arbitration body. However, the potential outcome may be considered as not justifying this effort. This is particularly true for voluntary conciliation. However, the reasons for not using the means of conciliation rest in the regime governing adjudication. States resort to adjudication if they cannot reach an agreement with the other side although frequently such negotiations take a long time. The reason for the failure to reach an agreement rests often on the fact that the government does not dare to accept a compromise which may be challenged internally. In such a situation governments may initiate a dispute settlement procedure if they need a decision, probably for economic reasons, but do not want to be blamed if the result is less satisfactory. In such a situation conciliation does not serve the interests of the governments concerned. The situation may, in the future, prove more promising in respect of compulsory submissions to conciliation. Although not that many States have made declarations under article 297 or 298 of the Convention one cannot exclude the possibility of an increasing number of compulsory submissions to conciliation procedures as set out in Section 2 of Annex v of the Convention. It may very much depend on how the outcome in the conciliation procedure initiated by Timor Leste against Australia39 is being assessed. I would like to formulate a caveat. I have argued on the basis of interstate conciliation as provided for under the Convention. This does not mean to exclude that conciliation may play a role in other disputes.40 It is further 38 39 40

See the contribution by Ulf Linderfalk in this book, p. 193. See note 1. According to an agreement reached between the Parties the Permanent Court of Arbitration (pca) will act as a Registrar for the conciliation procedure initiated by Timor Leste against Australia. The Permanent Court of International Arbitration may equally play a role in conciliation on the basis of its 1996 Optional Conciliation Rules which are based on the 1980 uncitral Conciliation Rules. Parties may also resort to 2002 Optional Conciliation Rules of the pca of disputes relating to natural resources and/or the environment. The pca has been involved in five conciliation procedures the two most recent ones having taken place in 2013 and 2014 respectively.

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­ ecessary to point out that in other instruments reference has been made to n the possibility of conciliation. Relevant examples are provided by the Convention on the Protection of Biological Diversity as well as the 2010 Protocol to the asean Charter on Dispute Settlement. The Convention on Biological Diversity of 199241 provides in its Annex ii for the establishment of a conciliation commission following exactly the design of Annex v of the Convention and is therefore not particularly innovative. The Rules of the 2010 Protocol to the asean Charter are in comparison thereto more flexible and therefore may have a better chance of being implemented. In particular, the system of initiating conciliation is less technical than under the Convention. The role of the conciliator or a group thereof is described in Rule 4 of the Annex on Conciliation.42 Together with Rule 643 and Rule 1044 this system has the potential of being used efficiently.

41 42

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44

31 (1992) ilm 818. Rule 4: Role of Conciliator 1. The conciliator shall assist the Parties to the dispute in an independent, neutral and impartial manner in order to resolve the dispute. 2. The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the Parties to the dispute and the circumstances surrounding the dispute, including any previous practices between the Parties to the dispute. 3. The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefore. The conciliator may conduct the conciliation proceedings in such a manner as he or she considers appropriate, taking into account the circumstances of the case, the wishes the Parties to the dispute may express, including any request by a Party to the dispute that the conciliator hear oral statements, and any special need for a speedy settlement of the dispute, as well as the provisions of this Protocol and these Rules. 1. When it appears to the conciliator that there exist elements of a settlement which would be acceptable to the Parties to the dispute, he or she shall formulate the terms of a possible settlement and submit them to the Parties to the dispute for their observations. After receiving the observations of the Parties to the dispute, the conciliator may reformulate the terms of a possible settlement in light of such observations. 2. If the Parties to the dispute reach agreement on a settlement of the dispute, they shall draw up and sign a written settlement agreement. If requested by the Parties to the dispute, the conciliator shall draw up or assist the Parties to the dispute in drawing up the settlement agreement.

Part 4 A Prominent Example of Successful Conciliation

∵

chapter 12

The Jan Mayen Case (Iceland/Norway): An Example of Successful Conciliation Ulf Linderfalk* i Introduction On 28 May 1980, the Governments of Iceland and Norway concluded a bilateral agreement on fishery and continental shelf questions.1 By this Agreement, the two parties assumed the obligation to set up “at the earliest opportunity” a conciliation commission, which was then to be entrusted with the task of proposing a boundary delimiting the continental shelf areas of the two countries between Iceland and the Jan Mayen Island.2 This commission was formally established on 16 August 1980. It concluded its work in June 1981 when submitting its final report to the parties.3 In brief, the report suggested a line of delimitation that would allow Iceland and Norway to exercise jurisdiction over continental shelf areas extending up to 200 and 92 nautical miles (nm) from the respective coasts of Iceland and Jan Mayen. Moreover, in an area straddling the suggested boundary, it proposed the establishment of a 45,000 square kilometre zone, where continental shelf resources would be jointly developed by the two countries. The Icelandic and Norwegian Governments accepted the proposal in its entirety. To give it legal effect, on 22 October 1981 they concluded a second agreement embodying the proposal.4 The agreement entered into force on 2 June 1982.

* Ulf Linderfalk is Professor of International Law, at the Faculty of Law, Lund University, Sweden. He is the Editor in Chief of the Nordic Journal of International Law. 1 Agreement between Norway and Iceland on Fishery and Continental Shelf Questions, concluded in Reykjavik, on 28 May 1980. 2124 unts 226. In this article, references are consistent with the unofficial English translation of the Agreement. 2 Art. 9. 3 Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen: Report and recommendations to the Governments of Iceland and Norway, Decision of June 1981, 27 unriaa 1. 4 Agreement on the Continental Shelf Areas between Iceland and Jan Mayen, concluded in Oslo, on 22 October 1981, 2124 unts 247. In this article, references are consistently to the unofficial English translation of the Agreement.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_013

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Without doubt, the Jan Mayen Case is a good example of successful conciliation.5 In an attempt to figure out the precise reasons for success, this article will conduct an inquiry into the particular context of the case. The inquiry builds on the assumption that conditions for successful conciliation can be stated in the form of general propositions. (It can be argued, for example, that whether conciliation will be successful in a particular case depends partly on the mandate conferred on the conciliator or conciliation commission appointed.) The purpose of this article is to identify contextual elements, which potentially may help to explain in terms of such propositions the conditions for successful conciliation generally. In the Jan Mayen Case – as in the majority of the twenty or so disputes submitted to conciliation throughout history6 – conciliation remained fully optional. At each relevant stage of the process of trying to resolve the dispute, whether it would be brought to a successful completion or not, depended entirely on the shared will and interest of the parties. First, both parties had to be genuinely interested in settling the dispute. Second, both parties had to believe that conciliation was the appropriate method of settlement. Third, both parties had to find the proposal of the Conciliation Commission acceptable. This observation prompts a methodological remark. When trying to resolve a dispute like the one between Iceland and Norway, contextual elements are likely to take on a different importance at different stages of the process. Although obviously some overlap is inevitable, the fact remains that an element may be relevant for explaining why for example the Governments of Iceland and Norway wished to settle the Jan Mayen dispute at all, while at the same time this element may be entirely irrelevant when explaining why those two Governments thought conciliation was the appropriate method of settlement. Consequently, in trying to pinpoint the success factors of the Jan Mayen Case, this article will interpret the context as involving elements of three separate categories.

5 See e.g. Jean-Pierre Cot, ‘Conciliation’, 2 Max Planck Encyclopedia of Public International Law (2012) 576, at 581; J.G. Merrills, ‘The Means of Dispute Settlement’, in: Malcolm D. Evans (ed.), International Law (Oxford: Oxford University Press, 4th ed., 2014) 563, at 570. The Icelandic historian Guðni Th. Jóhannesson gave a presentation at the 2013 Arctic Frontiers Conference at Tromsø, on 21–25 January 2013. He answered in a clear affirmative the question with which he had titled his presentation: “The Jan Mayen Dispute Between Iceland and Norway, 1979–1981 – A Study in Successful Diplomacy?” The paper is available at: http://gudnith.is/ efni/jan_mayen_dispute_24_jan_2013, last visited on 9 October 2015. 6 See J.G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 5th ed. 2011) 79.

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This remark helps to explain the overall organization of this article. Consequently, Section II will outline the factual background of the case. Section IIi will describe briefly the work of the Conciliation Commission, including its final proposals. Sections IV–VI will make an assessment of the context of the Jan Mayen Case and suggest a series of success factors. The questions addressed will be as follows: • What prompted the parties to settle the dispute in the first place? (Section IV). • In choosing between several possible methods of settlement, why did the parties prefer conciliation? (Section V). • What prompted the parties to accept the proposal of the Conciliation Commission? (Section VI). As always when establishing the cause or causes of an agent for taking some action, the inquiry conducted in Sections IV–VI will be based throughout on the assumption that the Governments of Iceland and Norway acted rationally. ii

The Facts of the Case

The Jan Mayen Island is located 290 nm north-northeast of Iceland, 540 nm from the nearest point on the Norwegian mainland. The island borders on the Greenland Sea to the west on the Norwegian Sea to the east. It has a total area of 373 square kilometres, a large part of which – approximately one third – is covered by glaciers. The landscape is dominated by high mountains, including the Beerenberg – the world’s northernmost active volcano. Very little grows on the island. There are no trees or bushes, only low-growing vegetation: a few herbs, lichen and moss. Jan Mayen remained terra nullius up until the early 20th century when Norway established a meteorological station on the Island and then eventually, in 1929 and 1930, respectively, proclaimed sovereignty over the Island and made the Island an integral part of the Kingdom of Norway.7 Jan Mayen has no permanent population. Some 30 people stay on the Island on a regular basis. They are either meteorologists or technical staff manning a coastal radio station; they are all changed at 6–12 month intervals.8

7 See, respectively, Kgl resolusjon av 8 mai 1929, and Lov om Jan Mayen, LOV-1930-02-27-2, available at: https://lovdata.no/register/lover. 8 See Robin R. Churchill, ‘Maritime Delimitation in the Jan Mayen Area’, 9 (1985) Marine Policy 16, at 20.

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Jan Mayen

Greenland

Iceland

Sverige Sweden

Norge

Norway Bergen Oslo

Uppsala

Suomi Finland Sankt Peterburg Helsinki (Санкт-Петербург) Tallinn

Stockholm

In 1963 Norway claimed a continental shelf off all parts of its coast, including Jan Mayen, extending “as far as the depth of the superjacent waters admits of exploitation of natural resources …, but not beyond the median line in relation to other states”.9 In December 1976, the Norwegian Parliament adopted legislation providing for the establishment of a 200 nm exclusive economic zone (eez) “in the sea adjacent to the coast of the Kingdom of Norway”.10 As the Act added, the King of Norway was to determine both the date for the establishment of the economic zone and the precise waters to which it shall apply.11 Interestingly, the Royal Decree of the same day declared an eez in the waters off the Norwegian mainland only; no eez was established around Jan Mayen.12

9

10

11 12

Kgl resolusjon av 31 mai 1963. For an English translation of the decree, see Royal Decree of 31 May 1963 relating to the Sovereignty of Norway over the Sea-Bed and Subsoil outside the Norwegian Coast, available at: http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/index.htm. Lov om Norges økonomiske sone, LOV-1976-12-17-91, available at: https://lovdata.no/ register/lover, para 1. For an English translation of the Act, see Act No 91 of 17 December 1976 relating to the Economic Zone of Norway, ibid. Ibid. Kgl resolusjon av 17 desember 1976. For an English translation of the decree, see Royal Decree of 17 December 1976 relating to the establishment of the Economic Zone of Norway, ibid.

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As for Iceland, it had already in 1975 extended its exclusive fishing zone (efz) to 200 nm by the promulgation of administrative regulations to that effect.13 The regulations carefully provided: Where the distance between base-lines of the Faroe Islands and Greenland on the one hand and Iceland on the other is less than 400 nautical miles, the fishery limits of Iceland shall be demarcated by the equidistance line. These Regulations shall not be enforced for the time being or until further notice in the area outside the equidistance line between the base-lines of Jan Mayen and Iceland.14 In June 1979, the Icelandic Parliament adopted further legislation, substituting a 200 mile eez for the previous 200 mile efz,15 and establishing in the area between Iceland and Jan Mayen a continental shelf corresponding to the definition of the un Law of the Sea Convention then under negotiation.16 Interestingly, when once again adding that the law will not be enforced beyond the equidistance line, the Act limited the application of that caveat to the area between “the Faroe Islands and Greenland on the one hand and of Iceland on the other”.17 In the autumn of 1978, Jan Mayen became the focus of much attention when Norwegian fishermen, conducting fishing operations in the waters southwest of the island, netted sizeable catches of a migrating fish called a capelin.18 Those catches proved experts wrong: contrary to what had earlier been taken for granted, the sea surrounding Jan Mayen was rich in fish. In February 1979 – after some pressure from the Norwegian fishing industry – the Norwegian Government issued a declaration clarifying that, according to what had consistently been its position, Norway had the right to establish an eez around

13

14 15

16 17 18

For an English translation of the Regulations, see Regulations Concerning the Fishery Limits Off Iceland, adopted on 15 July 1975, 14 (1975) International Legal Materials 1282–1284. Art. 1. For an English translation of the Act, see Law No. 41 of 1 June 1979 concerning the Territorial Sea, the Economic Zone and the Continental Shelf, available at: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/index.htm, Art. 3. Art. 5. Art. 7. See Finn Sollie, ‘Jan-Mayen-sonen: forhandlingene med Island’, 3 (1981) Internasjonal Politikk 387.

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Jan Mayen.19 The Government of Iceland, for its part, made it clear at once that it would not accept the establishment by the Norwegians of a full 200 mile zone around Jan Mayen.20 Icelandic fishermen had fished on the capelin stock since the mid 1960s. The Icelanders feared that if the Norwegians also started fishing for capelin in the area, that would soon ruin the stock.21 According to the line of argumentation pursued, Jan Mayen was not an island but a rock. In legal terms, this changed completely the position of the Norwegians, since as confirmed by the crystallizing un Law of the Sea Convention, rocks (contrary to islands) could have no eezs or continental shelves of their own.22 After numerous informal contacts and lengthy negotiations between the two countries, the Governments of Iceland and Norway signed, on 28 May 1980, an Agreement on Fishery and Continental Shelf Questions.23 The Agreement accomplished four things. First, it recognized implicitly the right of Norway to exercise resources jurisdiction in the area around Jan Mayen beyond the outer limit of the territorial sea, thus refuting all suggestion to the effect that Jan Mayen was merely a rock. Second, the Agreement established a boundary delimiting the eez of Iceland and the area around Jan Mayen where Norway would exercise sovereign rights for fishing purposes. As stated in its preamble, “Iceland has established an economic zone of 200 nautical miles”, and “Norway will in the near future establish a fishery zone round Jan Mayen”.24 Third, the Agreement laid down arrangements for the management of fish stocks in the area between Iceland and Jan Mayen. Among other things, it established a Fisheries Commission that would recommend not only total allowable catches for migrating fish stocks, but also the distribution of such catches, paying “reasonable regard” to “Iceland’s dependence on fishing in general”.25 As for the total allowable catch of capelin, the Agreement specially provided that if the parties failed to agree, Iceland – “as the Party with the greatest interest in the capelin stock” – would have the right to stipulate this catch alone; Norway would be bound by the stipulation unless it was “clearly unreasonable”.26 19

As referred to by Sollie (supra note 18) 387; W Østreng, ‘Reaching Agreement on International Exploitation of and Mineral Resources (With Special References to the Joint Development Area between Jan Mayen and Iceland)’, 10 (1985) Energy 555, at 556. 20 See Churchill (supra note 8) 18; Østreng (supra note 19) 556. 21 See Jóhannesson (supra note 5). 22 Comp Art. 121 of unclos as finally adopted. 23 See supra note 1. 24 Ibid., para. 5. 25 Ibid., Art. 6. 26 Ibid., Art. 4.

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Fourth, and most important for the purpose of this article, the Agreement laid down the obligation of the parties to appoint a Conciliation Commission. During the 1979–1980 negotiations, from the beginning, it had been the clear strategy of the Icelanders to link questions of fishing in the Jan Mayen area with the issue of a just division of the continental shelf. Both parties had invoked the theory of natural prolongation. The Government of Iceland argued that from the point of view of geology and geomorphology, the seabed between Iceland and Jan Mayen formed a part of the Icelandic continental shelf, whereas for its part the Government of Norway insisted that it constituted an extension of the Jan Mayen Island.27 The shelf area of interest for possible future exploitation was the Jan Mayen Ridge, described by scientific experts as “a north–south trending feature with water depths between 200 m and 1600 m”.28 The task of the Conciliation Commission was to submit recommendations with regard to the settlement of this part of the Jan Mayen dispute. Article 9 of the 1980 Agreement instructed it to take into particular account, “Iceland’s strong economic interests in these sea areas, the existing geographical and geological factors and other special circumstances”. The Commission was to be composed of three members, of which the parties would each appoint one ­national member; the Chairman of the Commission would be appointed by the parties, jointly.29 Although the recommendations of the Commission would not be binding on the parties, as the Agreement emphasized, “during their further negotiations the Parties will pay reasonable regard to them”.30 The Agreement between Iceland and Norway entered into force on 13 June 1980. Pursuant to what the preamble envisaged, on 23 May 1980 the King of Norway issued a decree establishing an efz around Jan Mayen; the Decree took effect from 29 May. In complying with its obligations under Article 9 of the Agreement, Iceland and Norway appointed Ambassadors Hans G Andersen and Jens Evensen, both Heads of their respective delegations to the Third un Conference on the Law of the Sea, to the Conciliation Commission. The parties agreed to appoint as Chairman of the Commission the Head of the American delegation to the same conference, Ambassador Elliot Richardson.31 The Commission was formally established on 16 August 1980.

27 28 29 30 31

See Elliot L. Richardson, ‘Jan Mayen in Perspective’, 82 (1988) American Journal of International Law 443, at 444. See the Report of the Conciliation Commission (supra note 3) 13. See the 1980 Agreement (supra note 1), Art. 9. Ibid. See the Report of the Conciliation Commission (supra note 3) 8.

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The Work of the Conciliation Commission

The first formal meeting of the Conciliation Commission was convened at Washington d.c. from 27 to 29 October 1980.32 At this meeting the Commission had already decided to make arrangements with a group of independent geologists and geophysicists to inform itself of the geology of the seabed in the Jan Mayen area and the probability of hydrocarbon deposits.33 A workshop was convened for that purpose from 8 to 10 December 1981 at Columbia University, New York. It resulted in an eleven page report to the Conciliation Commission.34 As stated in its introduction, the report had two principal purposes: (1) to examine how the Jan Mayen Ridge … is related morphologically and geologically to the island of Jan Mayen and to Iceland; and (2) to examine existing geological and geophysical data with a view toward obtaining the distribution of possible prospective areas for hydrocarbons in the region lying between Jan Mayen and eastern Iceland.35 The scientists found that, morphologically, the Jan Mayen Ridge could possibly be considered a southward extension from the shelf of Jan Mayen. Geologically, however, the Ridge was not a natural prolongation of either Jan Mayen or Iceland, since it predated both.36 As for the hydrocarbon potential of the area, according to the scientists the northern part of the Jan Mayen Ridge should be regarded as more favourable although – considered in comparison with known oil-producing areas in other parts of the world – there were only slight prospects of finding deposits that would be commercially viable.37 The scientists added that existing data was still fragmentary and that detailed further exploration could possibly change their conclusion on this point.38 After a series of altogether six meetings, the Conciliation Commission submitted its report and recommendations to the parties in May 1981. Noting first the observations of the scientists, the report concluded “that the concept of 32 33 34 35 36 37 38

Ibid., p. 8. See Richardson (supra note 27) 445. The scientific report is reproduced in full in the Report of the Conciliation Commission (supra note 3) 12–21. Ibid., 13. Ibid., 16–17. Ibid., 17–19. Ibid., 19.

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natural prolongation would not form a suitable basis” for a line delimitating the continental shelf areas between Iceland and Jan Mayen.39 Instead, the Commission recommended that a line be drawn so that the continental shelf areas of the parties coincide exactly with their respective eez and efz.40 For the purpose of any future exploration and exploitation of continental shelf resources, the Commission proposed the creation of a joint development zone (jdz). Having a size of roughly 45,000 km2, this zone would correspond to the area that offered possibilities of future hydrocarbon production.41 Some 72 percent of the jdz (or 32,750 km2) would lie on the Norwegian side of the dividing line; 28 percent (or 12,750 km2) would lie on the Icelandic side. In all parts of the jdz, activities aimed at the exploration and exploitation of oil and gas resources would have their basis in cooperation. At a pre-drilling stage, although seismic surveys would be carried out throughout the entire jdz at the responsibility of Norway, at its own expense, the results and assessments of such surveys would be made equally available to Iceland. On the Norwegian side of the jdz, should any hydrocarbons be found to exist, Iceland would be entitled to participate with a share of 25 percent in their exploitation. N ­ orway

30° W

20° W

10° W

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B 70° N

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D

AY RW ND NO ELA IC

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it

A

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End point of the maritime boundary were not defined in the agreement

D

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65° N

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Maritime Boundary ICELAND-NORWAY (Jay Mayen) Boundary Report 9–4

0

Maritime Boundary Equidistant line Joint zone boundary 100 200

Nautical miles American Society of International Law, 1991

39 40 41

Ibid., 22. Ibid., 32. Ibid.

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would be entitled to a corresponding 25 percent share in the hydrocarbons possibly existing on the Icelandic side.42 All activities on the respective side of the jdz would be governed exclusively by the domestic legislation of each ­party.43 The Conciliation Commission considered also the problems that would possibly arise if any hydrocarbon deposits were to be found in the jdz that extended beyond its limits. It recommended that depending on whether deposits extended into the continental shelf areas of Norway or Iceland, in the former case, those deposits would be regarded as lying wholly within the jdz, while in the latter they would be divided “in accordance with a fair expert assessment and unitized exploitation procedures”.44 In explaining the reasons for its recommendations, the Conciliation Commission referred to several contributing factors: • In legal terms, as indicated by geographical figures, and by the definition laid down in Article 121 of the Draft un Convention on the Law of the Sea,45 Jan Mayen was an island and not a rock. It was entitled, therefore, not only to a territorial sea, but also to an eez and a continental shelf.46 • While geological experts considered the whole area “to be a high geological risk”, as they had also informed the Commission, the area of interest for potential hydrocarbon deposits is the Jan Mayen Ridge extending southwards from Jan Mayen towards Iceland.47 • By agreeing to accept Iceland’s claim to a 200 mile eez, Norway had already given Iceland a considerable area beyond the median line.48

42 43 44 45

46 47 48

Ibid., 33. Ibid. Ibid., 34, with further references to pp. 31–32. As stated in the Report, in the opinion of the Commission, Draft Article 121 “reflects the present status of international law on the subject”. See ibid., p. 10. Draft Article 121 reads: “1. An island is a naturally formed area of land surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own, shall have no exclusive economic zone or continental shelf.” Ibid., 10. As should be emphasised, the 1980 Agreement between Iceland and Norway could be taken to imply that the Icelanders had already accepted this suggestion. Ibid., 24. Ibid.

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• The uncertain resource potential of the area implied a need for further research and exploration.49 • In the 1980 Agreement, Iceland and Norway had confirmed their desire “to further promote cooperation and friendly relations” between the two countries.50 • Iceland was totally dependent on imports of hydrocarbon products.51 • The shelf surrounding Iceland was considered by scientists to have a very low hydrocarbon potential.52 • The water depths overlying the Jan Mayen Ridge were too great to permit exploration using existing technology. The distances from the natural markets for hydrocarbons – especially gas – were great. Consequently, very large hydrocarbon discoveries would be necessary to make them commercially viable.53 The recommendations of the Conciliation Commission were favourably received. Subsequently, when on 22 October 1981 the respective Governments of Iceland and Norway concluded the Agreement on the Continental Shelf between Iceland and Jan Mayen,54 the Agreement embodied all recommendations of the Commission without exception. The Icelandic Parliament ratified the Agreement on 18 December 1981; the Norwegian Parliament ratified it on 19 May 1982. The Agreement entered into force on 2 June 1982. iv

Why This Interest in Settling the Dispute at All?

Several elements of the context provided the parties with a clear reason to try settling the Jan Mayen dispute. This section will highlight some of the more important elements. 1) The Security Concerns of the Parties and of nato Iceland is a member of nato since the founding of the organization in 1949. For many years, as part of the cooperation within nato, the us Navy ran an international air station at Keflavik (naskef) based on an agreement 49 Ibid. 50 Ibid., Comp para. 3 of the 1980 Agreement (supra note 1). 51 See the Report of the Conciliation Commission (supra note 3) 24. 52 Ibid. 53 Ibid., 24–25. 54 See supra note 4.

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with Iceland. The air station was deactivated in 2006, but in the late 1970s and throughout most of the 1980s it retained great strategic importance for nato surveillance of Soviet military activities in Arctic waters and the North Atlantic.55 The Soviet Union, like now Russia, based its northern fleet in harbours along the coast of the Kola Peninsula, including the towns of Murmansk and Severomorsk. A large part of this fleet was dependent for access to the Atlantic on passage through the gap of sea formed between Greenland, Iceland and the uk. During the Cold War, as tension between the East and the West gradually escalated, this gap of sea came to be seen as something of a ‘front line’ – the line where nato member states felt they had to try stopping the gradual southward expansion of the Soviet military.56 Consequently, a sophisticated radar system was set up at Keflavik air station to monitor traffic and to collect information which, in case war broke out, could be used to neutralize Soviet vessels.57 The strategic importance of this radar system provided the Icelanders with an upper hand in the 1979–1980 negotiations with Norway. During the last of the three ‘Cod Wars’ with the uk, in 1975, at one point Iceland threatened to withdraw its nato-membership and to terminate the Keflavik Air Station Agreement unless its claim to a 200 mile efz was accepted.58 From a security perspective, this would have created a situation very much to the disadvantage of both the Icelanders, who have no military of their own, and of nato member states generally. As everyone knows, the Cod Wars never reached the point where Iceland felt it had to proceed from threat to action: Iceland remained a member of nato, and the United States continued all activities hitherto undertaken at Keflavik International Air Station. However, the mere fact of the earlier threat of the Icelandic Government showed in a very clear way its priorities; it indicated that if inter-governmental discussions with Norway stalled, there was a risk the Icelanders would play once again ‘the Keflavik card’.59 Neither party had any interest in such a development. Nor had nato, which allegedly put considerable pressure on the Norwegians to try meeting Icelandic 55

See Østreng, 1985 (supra note 19) 563–564; C. Archer and D. Schivener, ‘Frozen Frontiers and Resources Wrangles: Conflict and Cooperation in Northern Waters’, 59 (1982/83) International Affairs 59, at 60; B. Bjarnason, ‘Déjà-vu at the North Pole: Perspectives on Jurisdiction and Military Presence’, in: K. Skogrand (ed), Emerging from the Frost. Security in the 21st Century Arctic (2008) 23, at 28–29. 56 See ibid. 57 See Østreng, 1985 (supra note 19) 564. 58 See ibid. 59 See Churchill (supra note 8) 18; Østreng, 1985 (supra note 19) 564; Sollie (supra note 18) 401.

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concerns.60 This aspect of the Jan Mayen dispute explains the great willingness of both parties to enter into negotiations. It explains why the Norwegian Government, in the conclusion of the 1980 Agreement, was willing to go such a long way to accommodate the concerns of the Icelanders. Thus, indirectly, the security concerns of the parties provided them with a reason for also settling the issue concerning the delimitation of the continental shelf. The Bargaining Situation Created by Linking the Question of a Just Division of Continental Shelf Areas with Issues of Fishing In the 1979–1980 negotiations, the Icelanders managed to broaden the focus of inter-governmental discussions, which hitherto had concerned fishing exclusively, to address the exercise of resources jurisdiction generally.61 Thus, they created conditions for a package deal. Sources leave the impression that, on the one hand, the Icelanders were more interested than the Norwegians in regulating the future conduct of fishing operations in the Jan Mayen area – for the simple reason that the area is much closer to Iceland than to the Norwegian mainland. Symptomatically, when the 1978 Royal Decree adopted by the King of Norway established no eez in the waters off the Jan Mayen Island, this omission was said to be partly the result of purely practical considerations: Norway simply lacked the necessary resources to enforce an eez at such great distance from mainland Norway.62 On the other hand, since Norway had already fifteen years of experience of offshore drilling in the North Sea, the exploration and exploitation of continental shelf resources must have been more a matter of concern for the Norwegians than the Icelanders. Hence, the linking of the two issues gave the parties room for bargaining.63 In 1980, after the conclusion of the first of the two agreements between Iceland and Norway, Norwegian fishermen claimed that the settlement had been too advantageous to the Icelanders.64 This criticism is fully understandable inasmuch as the Norwegians certainly went a long way to meet the concerns of the Icelanders. However, it is not very far-fetched to think that Norwegian concessions in the 1979–1980

2)

60 See Østreng, 1985 (supra note 19) 565. 61 See ibid., 569–570; Sollie (supra note 18) 396 et seq. 62 See Atle Grahl-Madsen, ‘Økonomisk Sone Rundt Jan Mayen?’ 49 (1980) Nordisk Tidskrift for International Ret 3, at 7–8; Østreng, 1985 (supra note 19) 566; Sollie (supra note 18) 384. 63 Comp Østreng, 1985 (supra note 19): “[T]he example of Jan Mayen shows that an important prerequisite for transforming conflict into cooperation is that there should be mutual dependence between the parties concerned over several of the issues in question. The ability to link the subject under negotiation with other issues of great interest to both parties will increase the probability of finding an agreeable solution” (p. 569). 64 See Østreng, 1985 (supra note 19) 563.

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negotiations were in fact just the result of a clear and deliberate bargaining strategy on the part of the Norwegian Government (although in Norwegian media, it would have had a hard time admitting this). The Norwegians surely felt that in any future settlement on the issue of exploration and exploitation of continental shelf resources, they would be able to use the 1980 settlement to push for a solution this time more in their favour. To put it bluntly, Norway sacrificed a few contemporary capelin for the purpose of securing potential oil reserves.65 3) Concern for the Good Relations of the Parties As shown by the history of Norwegian-Icelandic relations throughout the 20th century up until the present, Norway and Iceland have a sound neighbourly relationship. Since the 1940s, Iceland has had diplomatic representation in Oslo, and Norway has had representation in Reykjavik.66 The two countries have always been important trading partners, especially since 1970, when Iceland became a party to the European Free Trade Agreement. In the late 1970s, Norway was a prominent import partner of Iceland,67 as it still is.68 The two countries cooperate in the Nordic Council, which implemented already in 1954 the idea of passport free travel throughout the territories of its member states – 40 years before the Schengen Agreement came alive.69 Iceland and Norway have often joined forces to resist calls to reduce commercial whaling.70 In 2007, after the decision of the Americans to deactivate Keflavik International Air Station, Norway agreed to take on some of the tasks earlier performed by 65 66

See Jóhannesson (supra note 5). The Icelandic Embassy in Oslo was established in 1947. While the Norwegian Embassy in Reykjavik was established in 1955, the first Norwegian minister to Reykjavik was established already on 30 August 1940. This information, in file with the author, was provided by the Icelandic and Norwegian Embassies in Oslo and Reykjavik, respectively. 67 1980 Yearbook of Nordic Statistics 172. 68 See Landshagir, Statistical Yearbook of Iceland (2014) 324. 69 Convention between Denmark, Finland, Norway and Sweden concerning the waiver of passport control at the intra-Nordic frontiers, 322 unts 249. The Treaty was authenticated in each language of the original four parties. Iceland acceded to the Agreement on 24 September 1965. 70 In 1982, the International Whaling Commission decided that there should be a pause in commercial whaling on all stocks from the 1985/1986 season onwards. Norway objected to the moratorium and has continued to take whales commercially. Iceland, in 1992, withdrew from the 1946 International Convention for the Regulation of Whaling, but then in 2002, re-acceded submitting a reservation to the commercial whaling moratorium. For further information, see the website of the International Whaling Commission: https:// iwc.int.

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naskef personnel, including the surveillance and patrolling of Icelandic air space and the air space above its eez.71 When economic crisis struck Iceland in 2008, the Norwegian Government offered a loan of 500 million Euro to stabilize the Icelandic currency.72 It is not very far-fetched to think that when the Icelandic and Norwegian Governments agreed to appoint a Conciliation Commission to settle the dispute concerning the delimitation of the continental shelf in the Jan Mayen area, this was partly because they did not want to compromise their hitherto very close and stable relations. Symptomatically, when the 1978 Royal Decree adopted by the King of Norway did not declare an eez off the coast of the Jan Mayen Island, according to political scientist and former Norwegian diplomat Finn Sollie, this was because the Norwegians wished to avoid creating trouble spots “in the necessary cooperation and friendly relations between Norway and Iceland”.73 Similarly, when in 1979, the Norwegian Government eventually clarified that as far as it understood international law, it had the right to establish an eez around Jan Mayen, it was quick to qualify this statement: it had no intention of declaring such a zone without first securing acceptance of the Icelanders.74 v

Why Conciliation?

If Iceland and Norway are both interested in settling the issue concerning a just division of continental shelf areas between Iceland and Jan Mayen, potentially, there are a wide range of different methods of settlement that they can resort to. Examples include inquiry, fact finding, mediation, conciliation, arbitration, and adjudication. Several elements of the context gave Iceland and Norway reason to choose conciliation rather than any other method. This section will highlight some of the more important of those elements. 71

72

73 74

See ‘Iceland and Norway sign MoU on security policy cooperation’, Press release, issued by the Norwegian Ministry of Foreign Affairs, on 26 April 2007. The press release and the MoU are available at: https://www.regjeringen.no/en/aktuelt/mou-2/id464488, last visited on 12 October 2015. See ‘Norway Confirms Loan to Iceland’, 4 November 2008, Iceland Review On Line, available at: http://icelandreview.com/news/2008/11/04/norway-confirms-loan-iceland, last visited on 12 October 2015. Author’s translation. In Norwegian, the passage reads: “[D]ette kunne skape vanskligheter i det nødvendige samliv of vennskap mellom Island og Norge”. Sollie (supra note 18) 385. Ibid., 387.

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1) The State of International Law at the Time Today, after the development of what is now a very extensive case law on the delimitation of maritime zones, it is easily forgotten that in the late 1970s the international law relevant for a resolution of the Jan Mayen dispute was still not very clear. As concerns first the status of islands, Draft Article 121 of the crystallizing unclos regime made a distinction between islands proper and “[r]ocks which cannot sustain human habitation or economic life of their own”: whereas an island was entitled to an eez and a continental shelf, a rock was not.75 However, the customary law status of this provision was still very much in doubt.76 Besides, it left plenty of room for further discussion on whether Jan Mayen fitted the description of the one category or the other. As concerns the applicable principles of delimitation, the North Sea Continental Shelf Cases made it clear that regard would have to be had, not only to the principle of equidistance, but also to relevant circumstances, such as the geology of the shelf and the configuration and relative lengths of coastlines.77 The English Channel Arbitration Award emphasized that the size, barrenness and remoteness of an island from the mainland of a state could be relevant, too.78 Those two dicta did not do very much to help predicting the outcome of a possible settlement of the Jan Mayen dispute in an international court or arbitration tribunal. Although conciliation shares with arbitration many characteristic features, it is often described as a more flexible method of settlement in the sense that it recognizes the relevance of a broader array of considerations, and not just those that would be relevant from the point of view of international law. Paradoxically, in a case like the Jan Mayen dispute, which touches upon a law that is still only emerging, conciliation also increases the foreseeability of the outcome. Iceland and Norway could be fairly sure that their previous agreement on the nature of Jan Mayen as an island would be respected, although possibly this understanding had no basis in international law. Similarly, by framing as they did the mandate of the Conciliation Commission, the parties could be sure that in the delimitation of the continental shelf, regard would be had to the circumstance that most of all concerned them – “Iceland’s strong

75 76 77 78

Draft Article 121 was quoted in note 45. See Churchill (supra note 8) 19–20. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, icj Reports 1969, p. 3. Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Award of 30 June 1977, 18 unriaa 1.

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economic interest in the Jan Mayen area”79 – although probably international law would pay little attention to socio economic factors.80 2) The Wish for a Swift Outcome Since, typically, maritime delimitation disputes are resolved on a bilateral basis, fixing maritime boundaries in a comprehensive sea area such as the North Atlantic Arctic Ocean will often be similar to laying a 500 piece jigsaw puzzle – finding the first two pieces that fit is difficult, but laying the remainder of the puzzle gets gradually easier as more pieces are added. In areas abutting on the sea between Iceland and Jan Mayen, Iceland and Norway each had several outstanding disputes of maritime delimitation that needed to be addressed.81 Norway had not yet fixed with Denmark the boundaries delimiting their respective efzs and continental shelves in the area between Greenland and Jan Mayen. Iceland had to fix with Denmark the boundaries delimiting their respective eez/efzs and continental shelves in the area between Iceland and Greenland. Iceland, furthermore, had to fix with Denmark the boundaries delimiting their respective efzs and continental shelves in the area between Iceland and the Faroe Islands. Last but not least, Iceland and Norway had to both fix with Denmark boundaries delimiting a small triangular area between Iceland, Greenland and Jan Mayen. As the Icelandic and Norwegian Governments were well aware, in every such dispute, negotiations would be facilitated if they could soon come to an arrangement concerning the boundary delimiting their continental shelf areas between Iceland and Jan Mayen.82 Since conciliation is known to be relatively swift – particularly when compared with arbitration or adjudication – reason suggested this method of settlement should be applied. 3) The Wish to Avoid Setting a Precedent Paradoxically, while Iceland and Norway had an interest in securing that the Jan Mayen dispute was resolved sooner rather than later, at the same time they wished to avoid setting a precedent. This would seem to have been a desire of, particularly, the Norwegian Government. In the conclusion of the 1980 Agreement, Norway had surrendered completely from what had earlier always been its position in the negotiation of maritime delimitation disputes – that 79 80

81 82

Comp. Art. 9 of the 1980 Agreement. Comp. e.g. Continental Shelf (Tunisia/Libya), Judgment of 24 February 1982, 1982 icj Reports 18, at 77–78 (paras 106–107); Guinea – Guinea-Bissau Maritime Delimitation, Award of 14 February 1985, 83 International Law Reports 636, at 688–689 (paras. 121–123). Comp. Bjarnason (supra note 55) 25. Ibid., 27–28.

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the principle of equidistance should be respected.83 As the Norwegian Government surely realized, if a third party was appointed to settle the question of a just division of the continental shelf between Iceland and Jan Mayen, it would build on this agreement. The great convenience of having a single line of delimitation of eez/efzs and continental shelves being repeatedly stressed throughout the history of maritime delimitation,84 it would conclude that the dividing line separating the eez/efz’s of the parties be used also for purposes of the delimitation of the continental shelf. By choosing conciliation rather than adjudication or arbitration, Norway wished to prevent other states from arguing that simply because of the remoteness of Jan Mayen from the Norwegian mainland, Norway would never, in any dispute involving this Island, be entitled to a median line. If there were special circumstances that justified renunciation of the idea of a median line in the particular case of the dispute with Iceland – especially the strong dependency of the Icelandic economy on fishing – the Norwegian Government was not prepared to make similar concessions in disputes involving other states. This explains why, in the Jan Mayen dispute, the idea of conciliation attracted at least Norway. Certainly, proposals by conciliation commissions are sometimes cited in the description of international law given by international legal scholars. However, since the task of a conciliation commission is not limited to the application of international law, it would not serve as a precedent in the same way as a judgment delivered by an international court or international arbitration tribunal. 4) The Good Relations of the Parties Generally When, because of some outstanding dispute, two states have broken off all diplomatic and economic relations with each other – they may perhaps even consider resorting to armed action – it is hardly realistic to think that the dispute could be resolved through the use of any diplomatic method of settlement, including conciliation. Diplomatic methods of settlement require that the disputing parties are able to put political prestige aside for a moment. It requires that the parties are willing to accommodate their respective positions, at least to some extent, and engage with each other in a cooperative spirit.85 The conditions for conciliation would seem to be much more favourable when disputing states already have a history of generally good relations and 83 84 85

Comp. Sollie (supra note 18) 388–390. See e.g. Malcolm D. Evans, ‘Delimitation and the Common Maritime Boundary’, 64 (1993) British Yearbook of International Law 283–332. See Ulf Linderfalk, Folkrätten i ett nötskal (2nd ed 2012) 122.

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they are equally anxious that those good relations be maintained. This was clearly the case with Iceland and Norway in the Jan Mayen dispute. Hence, the good relations between the two parties explain not only their willingness to settle the dispute in the first place, but partly also their preference for conciliation. 5) The Nature of the Disputed Issue Depending on the nature of a disputed issue, diplomatic and judicial methods of settlement can be more or less suitable for the resolution of a dispute.86 Some issues are such that the resolution of a dispute leaves only two options. If, for example, Belgium and the Democratic Republic of Congo (drc) request a third party opinion as to whether Belgium, by issuing and circulating an arrest warrant against the Foreign Minister of the drc, had failed to respect his immunity from criminal jurisdiction,87 then in the final analysis that opinion can only be phrased in terms of yes or no. In such cases, judicial methods are generally the more suitable. If there is anything that the law does well, it is the answering of questions that leave only two options, such as whether a particular state has breached a particular obligation or not, or whether a particular state is responsible for a particular action. Other issues, by their very nature, can be resolved adopting any of a wide range of different solutions. If, for example, radioactive debris from a malfunctioning Soviet satellite is scattered along a vast area of Canadian territory and Canada and the Soviet Union have different opinions about the right of Canada to compensation for ensuing damage,88 then potentially at least the resolution of this dispute allows for more flexibility. In such cases, diplomatic methods – because they typically emphasize a fair balancing of the opposite interests of the disputing parties – are more suitable. Quite clearly, the Icelandic-Norwegian dispute concerning the delimitation of continental shelf areas around Jan Mayen had more of the character of the dispute between the Soviet Union and Canada than the dispute between Belgium and the drc. This would seem to be at least part of the reason why the two Governments preferred to settle the dispute by resorting to a method such as conciliation rather than adjudication or arbitration. 86 See Linderfalk (supra note 85) 122; Merrills (supra note 6) 288. 87 Comp. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, 2002 icj Reports 3. 88 Comp. Settlement of Claim between Canada and the Union of Soviet Socialist Republics for Damage Caused by ‘Cosmos 954’ (Released on April 2, 1981), 18 (1979) International Legal Materials 899.

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What Prompted the Parties to Accept the Proposal of the Conciliation Commission?

When a conciliation commission delivers its recommendations, there is never any guarantee that conciliation will be effective in the sense that parties will accept those recommendations, wholly or even partly. In the Jan Mayen Case, Iceland and Norway readily accepted the conciliators’ proposal in its entirety. Several elements of the context provided the parties with a clear reason to do so. This section will highlight some of the more important of those elements. 1) The Political Interests Involved [O]ther things J G Merrills argues, “the difficulty of resolving a dispute depends on what is at stake”89 In purely practical terms, when in the Jan Mayen Case Iceland and Norway considered the proposal of the Conciliation Commission, the values at stake were all tied in with the possibility of capitalizing on the existence of hydrocarbon deposits in the joint development zone. In contrast to the 1980 Agreement on fishing, the proposal concerned a resource which the parties did not know for certain whether it existed or not, and if it existed, whether it would be commercially viable to exploit. Even more importantly, it did not affect the interests of any political pressure group. Politically, the controversial concessions of the Norwegian Government were those that it made in terms of fish when concluding the 1980 Agreement.90 Altogether, this should have facilitated the outright acceptance by the two Governments of the proposal of the Conciliation Commission. 2) The Groundwork Laid by the Earlier Agreement When Iceland and Norway concluded the 1981 Agreement accepting the proposal of the Conciliation Commission, this formed in fact, if not formally, the last stage of a two stage procedure, the first stage represented, of course, by the Agreement concluded one year earlier. Certainly, the two agreements represented the outcome of two separate series of negotiations held on separate occasions. Still, there was a clear functional relationship between the two. As legal philosophers would describe it, the later agreement ‘supervened’ on the earlier.91 In more practical terms, the mere existence of the earlier agreement 89 90 91

See Merrills (supra note 6) 288. See Østreng, 1985 (supra note 19) 562, citing in note 7 the then-Norwegian Foreign Minister Knut Frydenlund. See e.g. Richard Mervyn Hare, Essays in Ethical Theory (Oxford: Clarendon Press, 1993) 66–81.

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facilitated the conclusion of the later agreement. It did so in various ways. First, by the conclusion of the 1980 Agreement, the Icelandic Government had already accepted that Jan Mayen was entitled to an efz and a continental shelf. Given this common understanding of the parties, the Conciliation Commission could hardly have come to any other conclusion. Indeed, Article 9 of the 1980 Agreement could even be interpreted to mean that the Commission was at all times constrained to accept that, in legal terms, Jan Mayen was an island and not a rock, with all that followed. Second, but more subtly, the 1980 Agreement laid the ground for acceptance of the proposal of the Conciliation Commission by establishing a dividing line between the eez and efz of the parties. Many international lawyers and courts alike have stressed the great convenience of having for economic zones and continental shelves a single delimitation line rather than two. Of the thirty-or-so delimitation agreements that existed at the time, in only one case had the parties opted for another solution.92 Given this background, if the Conciliation Commission had delivered anything other than a proposal to accept precisely such a single line of delimitation that would have been rather surprising. Third, the Icelandic and Norwegian Governments had already made arrangements for the joint management of fish stocks in the Jan Mayen area. If the parties were willing to engage in such cooperation for the purpose of fisheries, then there was no reason why they should not be willing to engage in similar cooperation also for the purpose of exploration and exploitation of hydrocarbons. 3) The Great Authority of the Recommendations As sources indicate, the parties attached great authority to the proposal of the Conciliation Commission. This can be explained partly by the great authority of the three members of the Commission, who had been chosen specifically because of their credentials and particular experience as Head of delegations at the Third un Conference on the Law of the Sea.93 An important factor was probably also the decision of the Commission to procure qualified information about the geology and geomorphology of the seabed of the Jan Mayen area. As clearly transpires from the Decision of the Conciliation Commission, the scientific report that it had commissioned not only formed an important point of departure for the work of the Commission; it also served as a crucial basis

92 93

See Churchill (supra note 8) 28. See Churchill (supra note 8) 25; Østreng, 1985 (supra note 19) 570; Sollie (supra note 18) 397.

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for its final recommendations.94 Surely, this involvement of scientific expertise helped to convince the parties of the accuracy of the proposal. A last but possibly even more important factor conferring authority on the proposal, was the brilliant solution that it entailed. As several commentators have argued, certainly, the recommendations went beyond what Article 9 of the 1980 Agreement had explicitly mandated the Commission to do –95 to submit recommendations “with regard to the dividing line for the shelf area between Iceland and Jan Mayen”. However, this flexibility of approach of the Commission would seem to have helped in securing the acceptance of the parties, paradoxical though it may seem. To speak with R R Churchill: “[s]imply drawing a line is a once-and-for-all solution: where the fishery and seabed resources of an area are not or are insufficiently known …, drawing a line becomes very much a gamble. If arrangements for sharing the resources of the area are agreed, then lack of knowledge of the resources does not matter as much”.96 As the Chairman of the Commission later commented, the idea of a joint management scheme relegated the establishment of a jurisdictional boundary to a secondary position.97 Norwegian Concern for the Consistency of Its Position in Maritime Delimitation Disputes Generally In the Barents Sea, the Norwegian coast is adjacent and partly opposite to the coast of Russia – the then Soviet Union. To accommodate their respective claims to a continental shelf in this vast area, in the early 1970s the Governments of Norway and the Soviet Union initiated negotiations with a view to concluding a delimitation agreement.98 In 1981, when the Jan Mayen Conciliation Commission submitted its proposal, the hitherto five rounds of negotiations had not been terribly productive.99 The Soviets had insisted on the adoption of a dividing line that departed significantly from the line of equidistance. To justify its position, the Soviet Government had claimed the existence of a number of special circumstances, including, most importantly in this context, the size of the population of the Kola Peninsula and the general

4)

94 95 96 97 98 99

Symptomatically, when delivering its report and recommendations, the Commission decided to reproduce the entire scientific report, word by word. See e.g. Sollie (supra note 18) 397. See Churchill (supra note 8) 27. See Richardson (supra note 27) 458. See Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation. A case Study of the Russian Federation (Dordrecht et al.: Nijhoff, 1994) 237. K Traavik and W Østreng, ‘Security and Ocean Law: Norway and the Soviet Union in the Barents Sea’, 4 (1977) Ocean Development and International Law Journal 343, at 357–360.

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economic interest of the Soviets in the area.100 The Norwegians for their part had maintained the position that they had consistently taken in negotiations of maritime delimitation disputes generally: that the principle of equidistance should be the starting point for all discussions. To the extent that special circumstances were at all relevant, as argued by the Norwegians, they were limited to factors of a strictly geographical nature; they did not allow for references to population and economic interests, contrary to the claims of the Soviets.101 This position did not square well with the mandate of the Jan Mayen Conciliation Commission. As earlier noted, when Article 9 of the 1980 Agreement between Iceland and Norway requested the Commission to recommend a dividing line for the shelf area between Iceland and Jan Mayen, it specifically stated that the recommendation be based on, among other things, “Iceland’s strong economic interests in these sea areas”. In the resolution of the maritime delimitation dispute with Iceland, as it must have appeared to the outside world, Norway accepted the relevance of circumstances that were no more geographical in nature than those that it had earlier rejected in negotiations with the Soviet Union. Given this background, the specific solution eventually recommended by the Conciliation Commission served a crucial political purpose. If the Commission had limited its recommendations to the adoption of a delimitation line – one that conferred upon the Icelanders a continental shelf more than twice the size of that conferred upon Norway – Norwegian acceptance of that recommendation would have invited the criticism that Norway acted inconsistently.102 The establishment of a joint development zone comprising areas on both sides of the line of delimitation took somewhat the edge off that criticism. vii Conclusions For the 2015 Conciliation in the Globalized World of Today Colloquium, I was assigned a very particular task. In his invitation, the President of the osce Court of Conciliation and Arbitration kindly requested me to conduct an analysis of the particular context of the Jan Mayen dispute with a view to establishing the precise reasons that eventually led to its positive outcome. Greatly honoured by the invitation, I took on this task with considerable interest. As a result of careful studies of the Jan Mayen dispute, I have singled out in its particular 100 See Oude Elferink (supra note 98) 244–245. 101 Ibid. 102 Comp. Grahl-Madsen (supra note 62) 11.

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context a series of altogether twelve elements; they were briefly explained in Sections IV–VI. Although those twelve elements may not fully explain the success of conciliation in this particular case, I believe they represent at least the essence of any more comprehensive explanation. This said and done, I wish to emphasize immediately what might possibly be regarded as weak points of my analysis. First, there is the drawback that I am not very well acquainted with political theory. Assessing the success factors of a case, such as the Jan Mayen dispute, presupposes consideration of elements inherent to international law and legal discourse, as well as political elements more generally. What I think I have accomplished with this article, is an analysis at the cross-roads of international law and political science. As a professor of International Law, I may not be fully qualified to conduct an analysis of such a nature. There is a risk that in my assessment I have exaggerated elements that I am used to working with as an international lawyer. Similarly – unknowingly and by simple ignorance of the political universe – I may have downplayed elements that a political scientist would feel more at home with. Second, there is the general complexity of any task that aims to establish the cause or causes of an agent for taking an action. As I think Sections IV–VI already indicated that very few of the contextual elements highlighted in the assessment of the Jan Mayen dispute can be understood in clinical isolation. Insofar as the different elements serve to explain why the disputing parties chose to settle their dispute in the first place, why they preferred conciliation rather than any other method of settlement, and why they accepted the proposal of the Conciliation Commission, the reality is that the elements often caused that effect by interaction. In some cases, elements served as indirect and direct reasons for action. In other cases, elements served as reasons for action in combinations of two, three or even more. A full description of the success factors of the Jan Mayen dispute implies not only a listing of the factors that prompted its settlement. It also implies a description of how different factors interacted. I have a feeling that I could have done more in this regard. Third, the fact that my investigation comprises only one case of conciliation makes it of limited value. I share with the President of the osce Court the assumption that conditions for successful conciliation can be stated in the form of general propositions. Indeed, as indicated in Section I, it is precisely because I am convinced that the particular context of the Jan Mayen dispute may help to verbally frame those general propositions that I started writing this article in the first place. However, if participants in the Colloquium set it to be their purpose to identify the conditions for successful conciliation generally, obviously, a single study of a single case will not be sufficient. Further studies of cases will be necessary.

Annex

∵



Annex 1: Decision on Peaceful Settlement of Disputes, 15 December 1992

1.

At its Stockholm meeting of 14 and 15 December 1992, the csce Council considered the recommendations made by the csce Meeting on Peaceful Settlement of Disputes held in Geneva from 12 to 23 October 1992. 2. The Ministers reaffirmed the vital importance of the commitment of all participating States, under Principle v of the Helsinki Final Act, to settle their disputes by peaceful means. In this connection, they recalled other csce documents relating to the peaceful settlement of disputes, in particular the Concluding Document of the Vienna Follow-up Meeting, the Charter of Paris for a New Europe, the Report on Peaceful Settlement of Disputes adopted at Valletta and endorsed at the Berlin Meeting of 19 and 20 June 1991, and the Helsinki Document of 1992. 3. The Ministers noted the variety of existing dispute settlement procedures, both within and outside the csce. They recalled the important contribution that the potential involvement of an impartial third party can make to the peaceful settlement of disputes and the fact that the Valletta Mechanism enables a participating State, under certain conditions, to seek the mandatory involvement of such a party. 4. The Ministers agreed that in the present circumstances, the principle of the peaceful settlement of disputes assumes particular relevance to problems facing participating States, and that the framework of the csce provides a unique opportunity to give impetus to this central aspect of csce commitments. 5. In order to further and strengthen their commitment to settle disputes exclusively by peaceful means, and in accordance with paragraphs 57 to 62 of Chapter 3 of the Helsinki Decisions of 1992 to develop a comprehensive and coherent set of measures available within the csce for the peaceful settlement of disputes, the Ministers have: (a) Adopted measures to enhance the Valletta Provisions through modification of the procedure for selecting Dispute Settlement Mechanisms. This modification is set forth in Annex 1; (b) Adopted the text of a Convention on Conciliation and Arbitration within the csce providing for general conciliation and for arbitration on the basis of agreements ad hoc or, in advance, on the basis of reciprocal declarations, and declared it open for signature by interested participating States. This text is contained in Annex 2; (c) Adopted a conciliation procedure as an option available to participating States on the basis of agreements ad hoc or, in advance, on the basis of reciprocal declarations. This procedure is set forth in Annex 3;

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004312111_014

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7.

annex (d) Decided that the Council or the Committee of Senior Officials of the csce may direct any two participating States to seek conciliation to assist them in resolving a dispute that they have not been able to settle within a ­reasonable period of time. The provisions relating thereto are set forth in Annex 4. The Ministers recalled that nothing stated in the foregoing will in any way affect the unity of the csce principles, or the right of participating States to raise within the csce process any issue relating to the implementation of any csce commitment concerning the principle of the peaceful settlement of disputes, or relating to any other csce commitment or provision. Procedures for the peaceful settlement of disputes within the csce will be reviewed during the review conference to be held at Budapest in 1994 and periodically thereafter as appropriate.



Annex 2: Convention on Conciliation and Arbitration within the Csce, 15 December 1992

The States parties to this Convention, being States participating in the Conference on Security and Co-operation in Europe, Conscious of their obligation, as provided for in Article 2, paragraph 3, and Article 33 of the Charter of the United Nations, to settle their disputes peacefully; Emphasizing that they do not in any way intend to impair other existing institutions or mechanisms, including the International Court of Justice, the European Court of Human Rights, the Court of Justice of the European Communities and the Permanent Court of Arbitration; Reaffirming their solemn commitment to settle their disputes through peaceful means and their decision to develop mechanisms to settle disputes between participating States; Recalling that full implementation of all csce principles and commitments constitutes in itself an essential element in preventing disputes between the csce participating States; Concerned to further and strengthen the commitments stated, in particular, in the Report of the Meeting of Experts on Peaceful Settlement of Disputes adopted at Valletta and endorsed by the csce Council of Ministers of Foreign Affairs at its meeting in Berlin on 19 and 20 June 1991, Have agreed as follows:



Chapter 1 – General Provisions Article 1: Establishment of the Court

A Court of Conciliation and Arbitration shall be established to settle, by means of conciliation and, where appropriate, arbitration, disputes which are submitted to it in accordance with the provisions of this Convention.



1.

2.

3.

Article 2: Conciliation Commissions and Arbitral Tribunals

Conciliation shall be undertaken by a Conciliation Commission constituted for each dispute. The Commission shall be made up of conciliators drawn from a list established in accordance with the provisions of Article 3. Arbitration shall be undertaken by an Arbitral Tribunal constituted for each dispute. The Tribunal shall be made up of arbitrators drawn from a list established in accordance with the provisions of Article 4. Together, the conciliators and arbitrators shall constitute the Court of ­Conciliation and Arbitration within the csce, hereinafter referred to as “the Court”.

222

1.

2.

3.

4. 5.



1.

2.

3.

4.

annex

Article 3: Appointment of Conciliators

Each State party to this Convention shall appoint, within two months following its entry into force, two conciliators of whom at least one is a national of that State. The other may be a national of another csce ­participating State. A State which becomes party to this Convention after its entry into force shall appoint its conciliators within two months following the entry into force of this Convention for the State concerned. The conciliators must be persons holding or having held senior national or international positions and possessing recognized qualifications in international law, international relations, or the settlement of disputes. Conciliators shall be appointed for a renewable period of six years. Their functions may not be terminated by the appointing State during their term of office. In the event of death, resignation or inability to attend recognized by the Bureau, the State concerned shall appoint a new c­ onciliator; the term of office of the new conciliator shall be the remainder of the term of office of the predecessor. Upon termination of their period of office, conciliators shall continue to hear any cases that they are already dealing with. The names of the conciliators shall be notified to the Registrar, who shall enter them into a list, which shall be communicated to the csce ­Secretariat for transmission to the csce participating States.

Article 4: Appointment of Arbitrators

Each State party to this Convention shall appoint, within two months ­following its entry into force, one arbitrator and one alternate, who may be its nationals or nationals of any other csce participating State. A State which becomes Party to this Convention after its entry into force shall ­appoint its arbitrator and the alternate within two months of the entry into force of this Convention for that State. Arbitrators and their alternates must possess the qualifications required in their respective countries for appointment to the highest judicial ­offices or must be jurisconsults of recognized competence in international law. Arbitrators and their alternates are appointed for a period of six years, which may be renewed once. Their functions may not be terminated by the appointing State party during their term of office. In the event of death, resignation or inability to attend, recognized by the Bureau, the arbitrator shall be replaced by his or her alternate. If an arbitrator and his or her alternate die, resign or are both unable to attend, the fact being recognized by the Bureau, new appointments will be made in

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5. 6. 7.



a­ ccordance with paragraph 1. The new arbitrator and his or her alternate shall complete the term of office of their predecessors. The Rules of the Court may provide for a partial renewal of the arbitrators and their alternates. Upon expiry of their term of office, arbitrators shall continue to hear any cases that they are already dealing with. The names of the arbitrators shall be notified to the Registrar, who shall enter them into a list, which shall be communicated to the csce Secretariat for transmission to the csce participating States.

Article 5: Independence of the Members of the Court and of the Registrar

The conciliators, the arbitrators and the Registrar shall perform their functions in full independence. Before taking up their duties, they shall make a declaration that they will exercise their powers impartially and conscientiously.



Article 6: Privileges and Immunities

The conciliators, the arbitrators, the Registrar and the agents and counsel of the parties to a dispute shall enjoy, while performing their functions in the ­territory of the States parties to this Convention, the privileges and immunities accorded to persons connected with the International Court of Justice.



1. 2. 3. 4.

5.



1.

Article 7: Bureau of the Court

The Bureau of the Court shall consist of a President, a Vice-President and three other members. The President of the Court shall be elected by the members of the Court from among their number. The President presides over the Bureau. The conciliators and the arbitrators shall each elect from among their number two members of the Bureau and their alternates. The Bureau shall elect its Vice-President from among its members. The VicePresident shall be a conciliator if the President is an arbitrator, and an arbitrator if the President is a conciliator. The Rules of the Court shall establish the procedures for the election of the President as well as of the other members of the Bureau and their alternates.

Article 8: Decision-Making Procedure

The decisions of the Court shall be taken by a majority of the members participating in the vote. Those abstaining shall not be considered p ­ articipating in the vote.

224 2. 3. 4.



annex The decisions of the Bureau shall be taken by a majority of its members. The decisions of the Conciliation Commissions and the Arbitral Tribunals shall be taken by a majority of their members, who may not abstain from voting. In the event of a tied vote, the vote of the presiding officer shall prevail.

Article 9: Registrar

The Court shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary. The staff regulations of the Registry shall be drawn up by the Bureau and adopted by the States parties to this Convention.



1. 2.



1. 2.

Article 10: Seat

The seat of the Court shall be established in Geneva. At the request of the parties to the dispute and in agreement with the Bureau, a Conciliation Commission or an Arbitral Tribunal may meet at another location.

Article 11: Rules of the Court

The Court shall adopt its own Rules, which shall be subject to approval by States parties to this Convention. The Rules of the Court shall establish, in particular, the rules of ­procedure to be followed by the Conciliation Commissions and Arbitral Tribunals constituted pursuant to this Convention. They shall state which of these rules may not be waived by agreement between the parties to the dispute.



Article 12: Working Languages



Article 13: Financial Protocol



Article 14: Periodic Report

The Rules of the Court shall establish rules on the use of languages.

Subject to the provisions of Article 17, all the costs of the Court shall be met by the States parties to this Convention. The provisions for the calculation of the costs; for the drawing up and approval of the annual budget of the Court; for the distribution of the costs among the States parties to this Convention; for the audit of the accounts of the Court; and for related matters, shall be contained in a Financial Protocol to be adopted by the Committee of Senior Officials. A State becomes bound by the Protocol on becoming a party to this Convention.

The Bureau shall annually present to the csce Council through the Committee of Senior Officials a report on the activities under this Convention.

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Article 15: Notice of Requests for Conciliation or Arbitration

The Registrar of the Court shall give notice to the csce Secretariat of all requests for conciliation or arbitration, for immediate transmission to the csce participating States.



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Article 16: Conduct of Parties – Interim Measures

During the proceedings, the parties to the dispute shall refrain from any action which may aggravate the situation or further impede or prevent the settlement of the dispute. The Conciliation Commission may draw the attention of the parties to the dispute submitted to it to the measures the parties could take in order to prevent the dispute from being aggravated or its settlement made more difficult. The Arbitral Tribunal constituted for a dispute may indicate the interim measures that ought to be taken by the parties to the dispute in accordance with the provisions of Article 26, paragraph 4.

Article 17: Procedural Costs

The parties to a dispute and any intervening party shall each bear their own costs.



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Chapter 2 – Competence Article 18: Competence of the Commission and of the Tribunal

Any State party to this Convention may submit to a Conciliation Commission any dispute with another State party which has not been settled within a reasonable period of time through negotiation. Disputes may be submitted to an Arbitral Tribunal under the conditions stipulated in Article 26.

Article 19: Safeguarding the Existing Means of Settlement

A Conciliation Commission or an Arbitral Tribunal constituted for a dispute shall take no further action in the case: (a) If, prior to being submitted to the Commission or the Tribunal, the dispute has been submitted to a court or tribunal whose ­jurisdiction in respect of the dispute the parties thereto are under a legal ­obligation to accept, or if such a body has already given a decision on the merits of the dispute; (b) If the parties to the dispute have accepted in advance the exclusive jurisdiction of a jurisdictional body other than a Tribunal in accordance with this Convention which has jurisdiction to decide, with binding force, on the dispute submitted to it, or if the parties thereto have agreed to seek to settle the dispute exclusively by other means.

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annex A Conciliation Commission constituted for a dispute shall take no further action if, even after the dispute has been submitted to it, one or all of the parties refer the dispute to a court or tribunal whose jurisdiction in respect of the dispute the parties thereto are under a legal obligation to accept. A Conciliation Commission shall postpone examining a dispute if this dispute has been submitted to another body which has competence to formulate proposals with respect to this dispute. If those prior efforts do not lead to a settlement of the dispute, the Commission shall resume its work at the request of the parties or one of the parties to the dispute, subject to the provisions of Article 26, paragraph 1. A State may, at the time of signing, ratifying or acceding to this Convention, make a reservation in order to ensure the compatibility of the mechanism of dispute settlement that this Convention establishes with other means of dispute settlement resulting from international undertakings applicable to that State. If, at any time, the parties arrive at a settlement of their dispute, the Commission or Tribunal shall remove the dispute from its list, on receiving written confirmation from all the parties thereto that they have reached a settlement of the dispute. In the event of disagreement between the parties to the dispute with regard to the competence of the Commission or the Tribunal, the decision in the matter shall rest with the Commission or the Tribunal.

Chapter 3 – Conciliation Article 20: Request for the Constitution of a Conciliation Commission

Any State party to this Convention may lodge an application with the Registrar requesting the constitution of a Conciliation Commission for a dispute between it and one or more other States parties. Two or more States parties may also jointly lodge an application with the Registrar. The constitution of a Conciliation Commission may also be requested by agreement between two or more States parties or between one or more States parties and one or more other csce participating States. The agreement shall be notified to the Registrar.

Article 21: Constitution of the Conciliation Commission

Each party to the dispute shall appoint, from the list of conciliators established in accordance with Article 3, one conciliator to sit on the Commission. When more than two States are parties to the same dispute, the States asserting the same interest may agree to appoint one single conciliator. If they do not so

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agree, each of the two sides to the dispute shall ­appoint the same number of conciliators up to a maximum decided by the Bureau. Any State which is a party to a dispute submitted to a Conciliation ­Commission and which is not a party to this Convention, may appoint a ­person to sit on the Commission, either from the list of conciliators established in accordance with Article 3, or from among other persons who are nationals of a csce participating State. In this event, for the purpose of examining the dispute, such persons shall have the same rights and the same obligations as the other members of the Commission. They shall perform their functions in full independence and shall make the declaration required by Article 5 before taking their seats on the Commission. As soon as the application or the agreement whereby the parties to a dispute have requested the constitution of a Conciliation Commission is received, the President of the Court shall consult the parties to the dispute as to the composition of the rest of the Commission. The Bureau shall appoint three further conciliators to sit on the Commission. This number can be increased or decreased by the Bureau, provided it is uneven. Members of the Bureau and their alternates, who are on the list of conciliators, shall be eligible for appointment to the Commission. The Commission shall elect its Chairman from among the members a­ ppointed by the Bureau. The Rules of the Court shall stipulate the procedures applicable if an o­ bjection is raised to one of the members appointed to sit on the C ­ ommission or if that member is unable to or refuses to sit at the commencement or in the course of the proceedings. Any question as to the application of this article shall be decided by the Bureau as a preliminary matter.

Article 22: Procedure for the Constitution of a Conciliation Commission

If the constitution of a Conciliation Commission is requested by means of an application, the application shall state the subject of the dispute, the name of the party or parties against which the application is directed, and the name of the conciliator or conciliators appointed by the requesting party or parties to the dispute. The application shall also briefly indicate the means of settlement previously resorted to. As soon as an application has been received, the Registrar shall notify the other party or parties to the dispute mentioned in the application. Within a period of fifteen days from the notification, the other party or parties to the dispute shall

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annex appoint the conciliator or conciliators of their choice to sit on the Commission. If, within this period, one or more parties to the dispute have not appointed the member or members of the Commission whom they are entitled to appoint, the Bureau shall appoint the appropriate number of conciliators. Such appointment shall be made from among the conciliators appointed in accordance with Article 3 by the party or each of the parties involved or, if those parties have not yet appointed conciliators, from among the other conciliators not appointed by the other party or parties to the dispute. If the constitution of a Conciliation Commission is requested by means of an agreement, the agreement shall state the subject of the dispute. If there is no agreement, in whole or in part, concerning the subject of the dispute, each party thereto may formulate its own position in respect of such subject. At the same time as the parties request the constitution of a Conciliation Commission by agreement, each party shall notify the Registrar of the name of the conciliator or conciliators whom it has appointed to sit on the Commission.

Article 23: Conciliation Procedure

The conciliation proceedings shall be confidential and all parties to the dispute shall have the right to be heard. Subject to the provisions of ­Articles 10 and 11 and the Rules of the Court, the Conciliation Commission shall, after consultation with the parties to the dispute, determine the procedure. If the parties to the dispute agree thereon, the Conciliation Commission may invite any State party to this Convention which has an interest in the settlement of the dispute to participate in the proceedings.



Article 24: Objective of Conciliation



Article 25: Result of the Conciliation

The Conciliation Commission shall assist the parties to the dispute in finding a settlement in accordance with international law and their csce commitments.

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If, during the proceedings, the parties to the dispute, with the help of the Conciliation Commission, reach a mutually acceptable settlement, they shall record the terms of this settlement in a summary of conclusions signed by their representatives and by the members of the Commission. The signing of the document shall conclude the proceedings. The csce Council shall be informed through the Committee of Senior Officials of the success of the conciliation. When the Conciliation Commission considers that all the aspects of the dispute and all the possibilities of finding a solution have been explored, it shall draw up a final report.

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The report shall contain the proposals of the Commission for the peaceful settlement of the dispute. The report of the Conciliation Commission shall be notified to the parties to the dispute, which shall have a period of thirty days in which to examine it and inform the Chairman of the Commission whether they are willing to accept the proposed settlement. If a party to the dispute does not accept the proposed settlement, the ­other party or parties are no longer bound by their own acceptance thereof. If, within the period prescribed in paragraph 3, the parties to the dispute have not accepted the proposed settlement, the report shall be forwarded to the csce Council through the Committee of Senior Officials. A report shall also be drawn up which provides immediate notification to the csce Council through the Committee of Senior Officials of circumstances where a party fails to appear for conciliation or leaves a ­procedure after it has begun.

Chapter 4 – Arbitration Article 26: Request for the Constitution of an Arbitral Tribunal

A request for arbitration may be made at any time by agreement between two or more States parties to this Convention or between one or more States parties to this Convention and one or more other csce participating States. The States parties to this Convention may at any time by a notice addressed to the Depositary declare that they recognize as compulsory, ipso facto and without special agreement, the jurisdiction of an Arbitral Tribunal, subject to reciprocity. Such a declaration may be made for an unlimited period or for a specified time. It may cover all disputes or exclude disputes concerning a State’s territorial integrity, national defence, title to sovereignty over land territory, or competing claims with regard to jurisdiction over other areas. A request for arbitration against a State party to this Convention which has made the declaration specified in paragraph 2 may be made by means of an application to the Registrar only after a period of thirty days after the report of the Conciliation Commission which has dealt with the dispute has been transmitted to the csce Council in accordance with the provisions of Article 25, paragraph 5. When a dispute is submitted to an Arbitral Tribunal in accordance with this article, the Tribunal may, on its own authority or at the request of one or all of the parties to the dispute, indicate interim measures that ought to be taken by the parties to the dispute to avoid an aggravation of the dispute, greater difficulty in reaching a solution, or the possibility of a future award of the Tribunal becoming unenforceable owing to the conduct of one or more of the parties to the dispute.

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Article 27: Cases Brought before an Arbitral Tribunal

If a request for arbitration is made by means of an agreement, it shall indicate the subject of the dispute. If there is no agreement, in whole or in part, concerning the subject of the dispute, each party thereto may formulate its own position in respect of such subject. If a request for arbitration is made by means of an application, it shall indicate the subject of the dispute, the States party or parties to this Convention against which it is directed, and the main elements of fact and law on which it is grounded. As soon as the application is received, the Registrar shall notify the other States party or parties mentioned in the application.

Article 28: Constitution of the Arbitral Tribunal

When a request for arbitration is submitted, an Arbitral Tribunal shall be constituted. The arbitrators appointed by the parties to the dispute in accordance with Article 4 are ex officio members of the Tribunal. When more than two States are parties to the same dispute, the States asserting the same interest may agree to appoint one single arbitrator. The Bureau shall appoint, from among the arbitrators, a number of members to sit on the Tribunal so that the members appointed by the Bureau total at least one more than the ex officio members. Members of the Bureau and their alternates, who are on the list of arbitrators, shall be eligible for appointment to the Tribunal. If an ex officio member is unable to attend or has previously taken part in any capacity in the hearings of the case arising from the dispute submitted to the Tribunal, that member shall be replaced by his or her alternate. If the alternate is in the same situation, the State involved shall appoint a member to examine the dispute pursuant to the terms and conditions specified in paragraph 5. In the event of a question arising as to the capacity of a member or of his or her alternate to sit on the Tribunal, the matter shall be decided by the Bureau. Any State, which is a party to a dispute submitted to an Arbitral Tribunal and which is not party to this Convention, may appoint a person of its choice to sit on the Tribunal, either from the list of arbitrators established in accordance with Article 4 or from among other persons who are nationals of a csce participating State. Any person thus appointed must meet the conditions specified in Article 4, paragraph 2, and for the purpose of examining the dispute, shall have the same rights and obligations as the other members of the Tribunal. The person shall perform his or her functions in full independence and shall make the declaration required by Article 5 before sitting on the Tribunal. The Tribunal shall appoint its Chairman from among the members appointed by the Bureau.

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In the event that one of the members of the Tribunal appointed by the Bureau is unable to attend the proceedings, that member shall not be replaced unless the number of members appointed by the Bureau falls below the number of ex officio members, or members appointed by the parties to the dispute in accordance with paragraph 5. In this event, one or more new members shall be appointed by the Bureau pursuant to paragraphs 3 and 4 of this article. A new Chairman will not be elected if one or more new members are appointed, unless the member unable to attend is the Chairman of the Tribunal.



Article 29: Arbitration Procedure



Article 30: Function of the Arbitral Tribunal

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All the parties to the dispute shall have the right to be heard during the arbitration proceedings, which shall conform to the principles of a fair trial. The proceedings shall consist of a written part and an oral part. 2. The Arbitral Tribunal shall have, in relation to the parties to the dispute, the necessary fact-finding and investigative powers to carry out its tasks. 3. Any csce participating State which considers that it has a particular i­ nterest of a legal nature likely to be affected by the ruling of the Tribunal may, within fifteen days of the transmission of the notification by the csce Secretariat as specified in Article 15, address to the Registrar a request to intervene. This request shall be immediately transmitted to the parties to the dispute and to the Tribunal constituted for the dispute. 4. If the intervening State establishes that it has such an interest, it shall be authorized to participate in the proceedings in so far as may be required for the protection of this interest. The relevant part of the ruling of the Tribunal is binding upon the intervening State. 5. The parties to the dispute have a period of thirty days in which to ­address their observations regarding the request for intervention to the Tribunal. The Tribunal shall render its decision on the admissibility of the request. 6. The hearings in the Tribunal shall be held in camera, unless the Tribunal decides otherwise at the request of the parties to the dispute. 7. In the event that one or more parties to the dispute fail to appear, the other party or parties thereto may request the Tribunal to decide in favour of its or their claims. Before doing so, the Tribunal must satisfy itself that it is competent and that the claims of the party or parties taking part in the proceedings are well-founded.

The function of the Arbitral Tribunal shall be to decide, in accordance with international law, such disputes as are submitted to it. This provision shall not prejudice the power of the Tribunal to decide a case ex aequo et bono, if the parties to the dispute so agree.

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Article 31: Arbitral Award

The award of the Arbitral Tribunal shall state the reasons on which it is based. If it does not represent in whole or in part the unanimous opinion of the members of the Arbitral Tribunal, any member shall be entitled to deliver a separate or dissenting opinion. Subject to Article 29, paragraph 4, the award of the Tribunal shall have binding force only between the parties to the dispute and in respect of the case to which it relates. The award shall be final and not subject to appeal. However, the parties to the dispute or one of them may request that the Tribunal interpret its award as to the meaning or scope. Unless the parties to the dispute agree otherwise, such request shall be made at the latest within six months after the communication of the award. After receiving the observations of the parties to the dispute, the Tribunal shall render its interpretation as soon as possible. An application for revision of the award may be made only when it is based upon the discovery of some fact which is of such a nature as to be a decisive factor and which, when the award was rendered, was unknown to the Tribunal and to the party or parties to the dispute claiming revision. The application for revision must be made at the latest within six months of the discovery of the new fact. No application for revision may be made after the lapse of ten years from the date of the award. As far as possible, the examination of a request for interpretation or an application for revision should be carried out by the Tribunal which made the award in question. If the Bureau should find this to be impossible, another Tribunal shall be constituted in accordance with the provisions of Article 28.

Article 32: Publication of the Arbitral Award

The award shall be published by the Registrar. A certified copy shall be communicated to the parties to the dispute and to the csce Council through the Committee of Senior Officials.



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Chapter 5 – Final Provisions Article 33: Signature and Entry into Force

This Convention shall be open for signature with the Government of Sweden by the csce participating States until 31 March 1993. It shall be subject to ratification. 2. The csce participating States which have not signed this Convention may subsequently accede thereto. 3. This Convention shall enter into force two months after the date of ­deposit of the twelfth instrument of ratification or accession.

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For every State which ratifies or accedes to this Convention after the d­ eposit of the twelfth instrument of ratification or accession, the Convention shall enter into force two months after its instrument of ratification or accession has been deposited. The Government of Sweden shall serve as depositary of this Convention.

Article 34: Reservations

This Convention may not be the subject of any reservation that it does not expressly authorize.



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Article 35: Amendments

Amendments to this Convention must be adopted in accordance with the following paragraphs. Amendments to this Convention may be proposed by any State party thereto, and shall be communicated by the Depositary to the csce Secretariat for transmission to the csce participating States. If the csce Council adopts the proposed text of the amendment, the text shall be forwarded by the Depositary to States parties to this Convention for acceptance in accordance with their respective constitutional requirements. Any such amendment shall come into force on the thirtieth day after all States parties to this Convention have informed the Depositary of their acceptance thereof.

Article 36: Denunciation

Any State party to this Convention may, at any time, denounce this C ­ onvention by means of a notification addressed to the Depositary. Such denunciation shall become effective one year after the date of r­ eceipt of the notification by the Depositary. This Convention shall, however, continue to apply for the denouncing party with respect to proceedings which are under way at the time the denunciation enters into force. Such proceedings shall be pursued to their conclusion.



Article 37: Notifications and Communications



Article 38: Non-parties

The notifications and communications to be made by the Depositary shall be transmitted to the Registrar and to the csce Secretariat for further transmission to the csce participating States.

In conformity with international law, it is confirmed that nothing in this Con­ vention  shall be interpreted to establish any obligations or commitments for csce

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participating States that are not parties to this Convention if not expressly provided for and expressly accepted by such States in writing.



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Article 39: Transitional Provisions

The Court shall proceed, within four months of the entry into force of this Convention, to elect the Bureau, to adopt its rules and to appoint the Registrar in accordance with the provisions of Articles 7, 9 and 11. The host Government of the Court shall, in co-operation with the Depositary, make the arrangements required. Until a Registrar is appointed, the duties of the Registrar under Article 3, paragraph 5, and Article 4, paragraph 7 shall be performed by the Depositary. Done at in the English, French, German, Italian, Russian and Spanish languages, all six language versions being equally authentic, on



Annex 3: Provisions for a csce Conciliation Commission, 15 December 1992

The participating States in the Conference on Security and Co-operation in ­Europe (csce) hereby establish a procedure to complement the Valletta Procedure for the Peaceful Settlement of Disputes endorsed by the Berlin ­Meeting, by the establishment of a Conciliation Commission (“the Commission”) in a­ ccordance with the following provisions.

Section i

A dispute between two csce participating States may be brought before the Commission if the parties to it so agree.

Section ii

A participating State may at any time declare that it will accept, on condition of ­reciprocity, conciliation by the Commission for disputes between it and other participating States. The declaration may not include conditions which would affect the procedures described in Sections iii to xvii below. The declaration will be deposited with the Secretary of the Commission (“the Secretary”) who will transmit copies to all the participating States.

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Where the parties to a dispute have agreed to bring it before the Commission, the procedure will be invoked by a joint written request by the parties to the Secretary. Where both parties to a dispute have made declarations under Section ii which apply to that dispute, the procedure may be invoked by a written request by either party to the other and to the Secretary.

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As soon as the Secretary has received a request made in accordance with Section iii, the Commission will be constituted in accordance with Section v. Any question as to the application of Section ii with respect to the dispute, and in particular as to reciprocity of the declarations made thereunder, will be decided by the Commission as a preliminary question. For this purpose the parties will proceed directly to the appointment of the conciliators.

Section v 1.

The parties to the dispute will, within 20 days of the receipt by the Secretary of a written request under Section iii, appoint one conciliator from the Register

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annex maintained for the purposes of the Valletta Procedure for the Peaceful Settlement of Disputes (“the Valletta Register”). A party which invokes the procedure in accordance with Section iii, paragraph 2, should name its conciliator in its written request. The conciliators will, within 20 days of the date of the second of their own appointments, appoint a third conciliator chosen from the Valletta Register, who will act as Chairman of the Commission. He will not be a national of either of the parties or have been nominated by either of them to the Register. If the appointment of the Chairman, or of any of the other conciliators, has not been made within the prescribed period, it will be made within 20 days of the expiry of the relevant period by the Secretary-­General of the Permanent Court of Arbitration, after consultations with the parties. Any vacancies will be filled in the manner prescribed for the initial appointment.

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The Commission will consult the parties on the procedure to be followed in the exercise of its responsibilities as described herein. The Commission will give effect to any agreement between the parties on procedure. In the absence of agreement on any point, the Commission may decide the matter. Decisions and recommendations of the Commission will be made by a majority vote of the members.

Section vii

The Commission may, with the consent of the parties, invite any participating State to submit its views orally or in writing.

Section viii

The parties will refrain throughout the course of the procedure from any action which may aggravate the situation and make more difficult or impede the peaceful settlement of the dispute. In this connection, the Commission may draw the attention of the parties to any measures which it considers might facilitate an amicable settlement.

Section ix

The Commission will seek to clarify the points in dispute between the parties and endeavour to bring about a resolution of the dispute on mutually agreeable terms.

Section x

If the Commission considers that to do so will facilitate an amicable settlement of the dispute, it may suggest possible terms of settlement and set a time limit within which the parties should inform the Commission whether they accept such recommendations.

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Section xi

Each party will, within the time limit set under Section x, inform the Secretary and the other party whether or not it accepts the proposed terms of settlement. If both parties have not notified such acceptance within such time limit the Secretary will forward a report from the Commission to the Committee of Senior Officials of the csce. The report will not include the matters referred to in Section xii.

Section xii

Any measures recommended under Section viii, and any information and comments provided to the Commission by the parties in confidence, will r­ emain confidential unless the parties agree otherwise.

Section xiii

Each party to the dispute will bear its own costs and the costs of the conciliator appointed by it. The rest of the costs of the Commission will be shared equally by the parties.

Section xiv

A participating State may at any time, whether before or after a dispute has been referred to the Commission, declare, either generally or in relation to a particular dispute, that it will accept as binding, on condition of reciprocity, any terms of settlement proposed by the Commission. Such declaration will be deposited with the Secretary who will transmit copies to all the participating States.

Section xv

A declaration made under Section ii or Section xiv may be withdrawn or modified by written notification to the Secretary who will transmit copies to all the participating States. A declaration made under Section ii or Section xiv may not be withdrawn or modified in relation to a dispute to which it applies once a written request for conciliation of the dispute has been made under Section iii, and the other party to the dispute has already made such a declaration.

Section xvi

The parties may agree to modify the procedure set out in the preceding sections with respect to their particular dispute.

Section xvii

The Director of the Conflict Prevention Centre will act as Secretary of the Commission. In carrying out his functions the Director may consult the Committee of Senior Officials as and when he deems necessary. If the Director is a national of one of the parties to a dispute, his functions in respect of that dispute will be performed by the next most senior official of the Conflict Prevention Centre who is not such a national.



Annex 4: Provisions for Directed Conciliation, 15 December 1992

1.

The Council of Ministers or the Committee of Senior Officials (cso) may direct any two participating States to seek conciliation to assist them in resolving a dispute that they have not been able to settle within a reasonable period of time. In using this authority, the Council or the cso may direct that the parties to the dispute use the provisions for conciliation described in Annex 3, on the same basis as if the parties had made a joint written request to bring the dispute before the Conciliation Commission established by that Annex. However, in such situations: (a) the Council or the cso may decide, in view of the nature of the particular dispute or other relevant factors, either to increase or to decrease any of the twenty-day periods for appointment by the parties of the two members of the Conciliation Commission or for s­ election of the Chairman; and (b) the work of the Commission will not be conducted in public, unless the parties agree otherwise. Moreover, in cases involving disputes between two parties to the Convention on Conciliation and Arbitration within the csce, the Council or the cso may direct that the parties use the provisions for conciliation established under that Convention, once that Convention enters into force. The parties to the dispute may exercise any rights they otherwise have to participate in all discussions within the Council or cso regarding the dispute, but they will not take part in the decision by the Council or the cso directing the parties to conciliation, or in decisions described in ­paragraph 2(a). The Council or the cso will not direct parties to a dispute to seek conciliation under this Annex: (a) if the dispute is being addressed under some other procedure for the peaceful settlement of disputes; (b) if the dispute is covered by any process outside the csce which the parties to the dispute have accepted, including under an agreement in which the parties have undertaken to address certain disputes only through negotiations; or (c) if either party to the dispute considers that, because the dispute raises issues concerning its territorial integrity, or national defence, title to sovereignty over land territory, or competing claims with ­regard to the jurisdiction over other areas, the provisions of this ­Annex should not be applied. The parties to the dispute will bear their own expenses. Except for disputes covered in paragraph 3, any other expenses incurred under the procedure will be shared by all participating States in accordance with the csce scale of distribution, subject to any procedures that the cso may adopt to ensure that expenses

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are limited to those reasonable. With respect to disputes covered by paragraph 3, responsibility for such other ­expenses will be borne in accordance with the provisions of the ­Convention on Conciliation and Arbitration within the csce. In addition to any reports otherwise provided for under the conciliation provisions described in paragraphs 2 and 3, the Council or the cso may request the Commission to report on the results of the conciliation. The report will not reflect matters that are considered confidential under the applicable provisions, unless the parties agree otherwise.

Index Aarhus Convention see United Nations African Union 35 Constitutive Act of the African Union 35 Agreement for the Implementation of the Provisions of the un Convention on the Law of the Sea 179 Alabama Claims between the us and Britain 24, 47 f. Al-Khasawneh, Awn Shawkat 145 Andersen, Hans G. 199 Annexation of Crimea 20 ff. Applicable law 27, 44, 91, 94 ff., 108, 122, 134, 147, 160 ff., 173 f., 183 Austin, John 15 Award 13 f., 48, 74 f., 79, 119, 129, 131, 140, 142, 159, 167, 178, 182, 186, 188, 208 Badinter, Robert 82, 96 n.40 Belgo-Luxembourg Economic Union/ Venezuela Bilateral Investment Treaty 125 Bindschedler, Rudolf 40, 82 Bingham, Thomas 162 Brierly, J. L. 42 Bryan Treaties 8, 35 n.12 Caflisch, Lucius 43, 49 Charter of Paris for a New Europe 58, 67, 80 ff. Churchill, Robin R. 214 Cold War 17, 20, 39, 204 Comprehensive Economic and Trade Agreement (ceta) 126 f., 156 Conciliation commission 8 ff., 17 f., 26 ff., 43, 45, 49, 69 ff., 96 f., 88 ff., 167 f., 171, 182 ff., 188 ff., 193 ff., 199 ff., 207 ff., 210, 212 f., 215 f. Appointment 9, 10, 28, 32 f., 90 f., 98, 103, 199, 207, 210 Conciliation between Iceland and Norway 17, 189, 193 ff. Gorm and Svava case 10 Chaco commission 17 German-Lithuanian conciliation 17

Franco-Siamese Conciliation Commission 17 Franco-Swiss commission 17 Rules of Procedure 26 ff., 50, 71 f., 98 ff. Confidentiality 9, 28 f., 65, 68, 82, 99, 101 f., 109, 111, 118, 122, 129, 168 ‘Consensus-minus-one’ 57 ‘Consensus-minus-two’ 36 Constitutional Court of the Russian Federation 24 Convention on Biological Diversity 31, 190 Convention on the Representation of States in their Relations with International Organizations of a Universal Character 31 Convention on the Settlement of Investment Disputes between States and Nationals of Other States 120 Costs of international proceedings 13, 49, 75, 102 ff., 128, 131, 155, 157, 161, 168 Council of Europe 25, 50 Court of Conciliation and Arbitration within the osce (cca) 3, 7, 19, 45f., 68 ff.,  79 ff., 168 Lack of cases 2, 75, 83, 86 Rules of Procedure 71 f., 87, 98 ff. Court of Justice of the European Union (cjeu) 2, 91 De Vattel, Emer 16, 46, 48 ‘Directed’ Conciliation 35 ff., 68ff., 89 ff. Document of Budapest 58, 61 Dogger Bank incident 8 East African Community 17 English Channel Arbitration Award 208 erga omnes, see obligations erga omnes European Convention for the Peaceful Settlement of Disputes 29 European Court of Human Rights (ECtHR) 2, 17, 21, 22, 24, 25, 148, 166 Grand Chamber 21, 22 Judges 91 European Court of Justice (ecj) 91, 141 European Free Trade Agreement 206 Evensen, Jens 199

242 Exclusive economic zone (eez) 172, 174, 185 f., 196 ff., 201 f., 205 ff. Exclusive fishing zone (efz) 197, 199, 201 f., 204, 207, 209 f., 213 Fact-finding or inquiry 8 f., 12 f., 22 f., 26, 30, 32, 43, 60, 65, 68, 75, 79, 85, 87, 94, 98 f., 102, 139, 161, 185, 194, 207 Final Document of Vienna 67 Fisher, Roger 52f. Framework Convention on Climate Change 31 French Constitutional Council 82 General Act for the Pacific Settlement of International Disputes 9 f. 16, 29, 84, 94, 98 General Agreement on Tariffs and Trade (gatt) 118, 140 General Assembly resolution 50/50 85, 99 German-Swiss Convention on Arbitration and Conciliation 80, 84, 94, 98 Grotius, Hugo 16 Hague Conferences of 1899 and 1907 8, 20 Hart, H.L.A. 15 Helsinki Final Act 2, 20, 21, 58, 81, 89 Principle V 67 ff., 81 f., 89 Hey, Ellen 163 Hockman, Stephen 154 Huber, Max 8, 9, 46 Human Rights Committee 101 Individual rights 17, 93, 114, 147 ff., 162, 166 Institut de droit international 7, 9, 10, 26 n.1, 84, 94, 98 f. Count Rostworowski 7, 9, 10 Lausanne session 7 Salzburg session or Resolution on International Conciliation 26 n.1, 84f., 94 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (icprcp) 108 ff. International Bar Association (iba) 123 f. Climate Change Justice and Human Rights Task Force 154 f.

Index International Centre for Settlement of Investment Disputes (icsid) 120 f., 141 f. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (icsid Convention) 19, 120 ff., 125, 129, 131, 159, 167 Parenco (France) v. Ecuador 141 f. Peter Allard (Canada) v. Barbados 142 International Chamber of Commerce (icc) 121 International Convention on the Elimination of All Forms of Racial Discrimination 21 International Council of Museums (icom) 112 f. International Court for the Environment (ice) 133 ff., 143 f., 152 ff. International Court for the Environment Coalition (ice Coalition) 154 International Court of Environmental Arbitration and Conciliation (iceac) 154 International Court of Justice (icj) 1, 17, 21, 22, 24, 136 ff., 173, 175 f., 182 Barcelona Traction 122 f. Certain Phosphate Lands in Nauru 137 Construction of a Road in Costa Rica 139 Diallo 123 elsi 123 Gabčikovo-Nagymaros dam case (Hungary/Slovakia) 24, 138 Germany v. Italy 97 icj Statute 19, 21, 102, 159, 167, 173 Nicaragua case 2 North Sea Continental Shelf Cases 208 Nuclear Tests I 137 Nuclear Weapons Advisory Opinion 138 Pulp Mills 138 f., 145 Whaling in the Antarctic case 138 f. International Court of the Environment Foundation (icef) 153 f. International Criminal Court (icc) 17, 22, 148, 160, 166 International Law Association 7 International Law Institute 43 International peace and security or World peace and security 9, 12, 34f., 36, 38, 42,  73, 81, 93 International Seabed Authority 179 International Tribunal for the Environment (ite) 134 ff., 143 f., 152 ff.

Index International Tribunal for the Law of the Sea (itlos) 136, 139 f., 144, 149, 172 ff., 183 Arctic Sunrise case 179 f. Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) 174, 178,  182, 186, 188 Guyana/Suriname dispute 174 M/V Louisa case (Saint Vincent and the Grenadines v. Kingdom of Spain) 174 Philippines v. People’s Republic of China 178, 186 Southern Bluefin Tuna cases (Australia v. Japan; New Zealand v. Japan) 178 Statute of the International Tribunal for the Law of the Sea 171 Timor Leste against Australia (conciliation procedure initiated) 171 n.1, 189 International Criminal Police Organization (interpol) 113 Investor-state dispute settlement (isds)  118 ff., 126, 132 Italian Court of Cassation 152 Jan Mayen (Iceland/Norway) Conciliation 189, 193 ff. Jennings, Robert 136 Jessup, Philip 165 Joint Consultative Group 65 f. Judicial Review 160, 163 jus cogens 96 f. Kaufmann-Kohler, Gabrielle 51 Kellogg-Briand Pact 20 Kissinger, Henry 13 Klabbers, Jan 13 Kyoto Protocol 151 f., 158 Lac Lanoux 133 Lauterpacht, Hersch 9, 79 League of Nations 8, 20, 46 Locarno Treaties or Locarno Agreements  9, 28 f. Malmström, Cecilia 156 Mediation 8, 12 f., 26, 34, 36, 42, 63, 66 ff., 76, 87, 95, 107 ff., 115 ff., 120 f., 123 ff., 151, 154, 207 Merrills, John G. 13, 16, 17, 33, 212 Minsk Group 60

243 Mnookin, Robert 53 ‘Model’ treaty between France and Switzerland 16 Montego Bay Convention on the Law of the Sea 7, 30 f. Montreal Protocol 151 Nagorno-Karabakh dispute 60 f. National Cultural Heritage Laws 114 Naval Air Station Keflavik (naskef) 203 f. 206 f. Nordic Council 206 North American Agreement on Environmental Cooperation 140 North American Free Trade Agreement 140 North Atlantic Treaty Organization (nato) 203 f. Obligations erga omnes 96, 149, 165 Onuma Yasuaki 13 Open Skies Consultative Commission 66 Oppenheim 79 Optional Protocol to the International Covenant on Civil and Political Rights 101 Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources 155, 158, 168 Optional Rules for Conciliation of Disputes Relating to the Environment and/or Natural Resources 155, 158 Organization for Security and Co-operation in Europe 2 f., 7, 15 f., 19 f., 25, 35 ff., 44ff.,  57ff., 79 ff. Chairmanship 60 ff., 66, 72 Common Regulatory Management System 62 Court, see Court of Conciliation and Arbitration within the osce Forum for Security Co-operation 60 ff., 66, 78 High Commissioner on National Minorities 58 f., 65 f., 78 Ministerial Council or Council of Ministers (formerly Council of the csce)  36,  58 f., 68 ff., 89, 93 Office for Democratic Institutions and Human Rights (odihr) 63 f. Parliamentary Assembly 61f.

244 Organization for Security and Co-operation in Europe (cont.) Permanent Council 59 f., 65 f., 70, 72 Representative on Freedom of the Media 64 f. Secretariat 62f. Senior Council or Council (or Committee of Senior Officials) 36 f., 59, 68 ff., 75, 87,  89, 102 Summits 58 Troika 61 Organization of African Unity (oau) 35, 37 Organization of American States (oas) 188 f. Pacific Fur Seal Arbitration 133 Pellet, Alain 90 Permanent Court of Arbitration (pca) 30, 92, 121, 139, 155, 158 Indus Waters Kishenganga arbitration 139 Iron Rhine arbitration 139 Petitpierre, Max 48 Pinker, Steven 44 Positive Law or Legal Positivism 12, 14, 33, 89, 103 Postiglione, Amedeo 152 f. Probst, Raymond R. 46f. Protocol to the asean Charter on Dispute Settlement 190 Provisional measures or interim measures 74, 101, 155, 166 f. Recommendation 30, 43, 59, 62, 64 f., 79, 85, 90, 92, 94, 97 f., 101, 112, 127, 154, 159, 169, 185 f., 199, 200, 202 f., 212 ff. Restitution of Cultural Property 107 ff. Richardson, Elliot 199 Rio Declaration on Environment and Development 150, 165, 169 Rolin, Henry 7, 10 Rule of Law 9, 13, 27, 32 f., 40, 47 f., 82, 93, 95, 146, 162 Russian State Duma 25 Saavedra Lamas Treaties 9 Sarkozy, Nicolas 21 Schengen Agreement 206 Shaw, Malcolm 13 Simma, Bruno 145

Index Sinclair, Ian 33 ‘Soft Law’ 45, 51 Sohn, Louis B. 7 Sollie, Finn 207 Sovereignty 1, 18, 23, 33, 50, 68, 74, 93, 96, 126, 136, 143, 160, 172, 174 f., 186 ff., 195, 198 Standing 147 ff., 150, 153, 162, 165 f. Steinberger, Helmut 42f. Stockholm Chamber of Commerce 121 Stockholm Convention or Convention on Conciliation and Arbitration within the osce 2 f., 19, 20, 32 f., 35 ff., 44, 70 ff.,  88ff. Art. 2(3) 44, 91 Art. 3 (Appointment of Conciliators) 71, 91 Art. 5 (Independence of the Members of the Court and the Registrar) 71 Art. 11 (Rules of the Court) 71 Art. 16(2) (Interim measures) 101 Art. 18 (Competence) 71 f., 90 Art. 19 (Safeguarding the Existing Means of Settlement) 69 ff., 75f., 93, 99, 103 f. Art. 20 (Request for the Constitution of a Conciliation Commission) 36, 71 f.,  90, 93 Art. 21 (Constitution of the Conciliation Commission) 72, 91 f., 98 Art. 22 (Procedure for the Constitution of a Conciliation Commission) 72 Art. 23 (Conciliation Procedure) 99 Art. 24 (Objective of Conciliation) 73, 95 f. Art. 25 (Result of the Conciliation) 36, 73, 102 Art. 26 (Request for the Constitution of an Arbitral Tribunal) 71, 74 Art. 30 (Function of the Arbitral Tribunal) 74 Arts. 31–32 (Arbitral Award and its Publication) 74 f. Art. 33 (Signature and Entry into Force) 44, 83, 89 Swiss Federal Council 8, 46 Tagliavini, Heidi 22 Tagliavini report 22 Tagliavini-led Mission 22

Index Trail Smelter case 133 Transatlantic Trade and Investment Partnership (ttip) 125 f., 156 Treaty on Conventional Armed Forces in Europe 65 f. Ukrainian conflict 20, 22 f., 24 Ulbricht 17 unesco 107 ff. International Code of Ethics for Dealers in Cultural Property 114 Unilateral Initiation 2 f., 32, 36, 71 f. Dutch-initiated investigation commission due to shooting down of the Malaysian Airliner 23 Georgian government initiating the icj case against Russia 21 Georgian initiated state-to-state cases in the ECtHR 21, 22, 24 Third party enquiry initiated by the eu concerning the 2008 Georgia-Russia war 22 Ukraine initiated cases against Russia in the ECtHR 22, 24 United Nations (un) Aarhus Convention (or unece Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) 150, 165 Commission on International Trade Law (un-citral) 121 Compensation Commission 141 Conference on Sustainable Development 150 Convention on the Law of the Sea (unclos) 171 ff., 197 f. Convention against Racial Discrimination 21

245 Fish Stocks Agreement 175 General Assembly 30, 85 Model Rules for the Conciliation of Disputes between States (adopted by General Assembly Resolution 50/50) 30, 94 Secretary General 37 Security Council 23, 37ff., 42, 82, 89, 114, 175 un Charter or Charter of the United Nations Article 2(1) 1 Article 2(3) 1, 41, 172, 177 Article 2(4) 1, 20 Article 33 1, 10, 12, 42, 79, 172, 177, 184 Article 36(1) 37 Article 37(2) 37 Art. 39 38 Preamble, para. 1 1, 80 Umbricht, Victor 50 ‘Valetta Mechanism’ 67 ff., 87f., 95 Vienna Convention for the Protection of the Ozone Layer 31 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts 31 Vienna Convention on the Law of Treaties 7, 30, 33f. Weeramantry, Christopher 149 World Bank Inspection Panel 141, 163 World Customs Organizations (wco) 113 World Heritage Commission 141 World Investment Court System 156 World Trade Organization (wto) 117 ff., 130, 132, 136 Dispute Settlement Understanding (dsu) 117 ff., 130, 140