Flexibility in International Dispute Settlement : Conciliation Revisited [1 ed.] 9789004433137, 9789004433113

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Flexibility in International Dispute Settlement

Flexibility in International Dispute Settlement Conciliation Revisited Edited by

Christian Tomuschat and Marcelo G. Kohen

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Tomuschat, Christian, editor. | Kohen, Marcelo G. editor. Title: Flexibility in international dispute settlement : conciliation revisited / edited by Christian Tomuschat and Marcelo G. Kohen. Description: Leiden ; Boston : Brill Nijhoff, [2020] | Includes index. | Identifiers: LCCN 2020018343 (print) | LCCN 2020018344 (ebook) | ISBN 9789004433113 (hardback) | ISBN 9789004433137 (ebook) Subjects: LCSH: Arbitration (International law) | Mediation, International. | Dispute resolution (Law) Classification: LCC KZ6078 .F54 2020 (print) | LCC KZ6078 (ebook) | DDC 341.5/22–dc23 LC record available at https://lccn.loc.gov/2020018343 LC ebook record available at https://lccn.loc.gov/2020018344

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. isbn 978-​9 0-​0 4-​4 3311-​3 (hardback) isbn 978-​9 0-​0 4-​4 3313-​7 (e-​book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. 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 ix Notes on Contributors x

1

Introduction: The Paradox of Conciliation 1 Marcelo G. Kohen

part 1 Looking Back to the Past 2

Inter-​State Conciliation between 1931 and 1957. The Cases with Participation of European States. Lessons to Be Drawn from Today’s Viewpoint 11 Heinhard Steiger

part 2 Conciliation in Today’s World 3

Is Conciliation Obsolete or Démodé? Dispute Settlement as a Protracted Process of Interaction between the Parties Concerned 25 Daniel Thürer

part 3 Conciliation in Specific Fields 4

The Potential for Inter-​State Conciliation within the Framework of the UN Treaties for the Protection of Human Rights 39 Emmanuel Decaux

5

The Potential of Inter-​State Conciliation within the Framework of Environmental Treaties 83 Malgosia Fitzmaurice

vi Contents

part 4 Conciliation outside Europe 6

Africa and International Conciliation 113 Makane Moïse Mbengue and Apollin Koagne Zouapet

7

A Foundational Experiment: The Timor Leste-​Australia Conciliation 156 Ginevra Le Moli and Jorge E. Viñuales

part 5 Procedure 8

Confidentiality of Conciliation Proceedings and Their Outcome. A Reflection in Light of the Experience of the Timor-​Leste/​Australia Conciliation Commission 181 Serena Forlati

part 6 The osce Court of Conciliation and Arbitration 9

The Conciliation Procedure of the osce Court: Problems and Prospects 205 Riccardo Pisillo Mazzeschi and Eugenio Carli

10

The Relationship between the osce Court of Conciliation and Arbitration and the Court of Justice of the European Union 220 Pál Sonnevend and Gábor Bazsó

part 7 Concluding Observations 11

Lessons Drawn and Upcoming Challenges 257 Christian Tomuschat

Contents

part 8 Annexes: Speeches on the Occasion of the Transition in the Bureau,Vienna, 6 November 2019

Words of Adieu 275 Christian Tomuschat



Opening Remarks 278 Emmanuel Decaux



Index of Names 285 General Index  287

vii

Preface The present book on Conciliation follows up on the earlier publication on conciliation that appeared in 2017.1 It focuses on the same topic, but it broadens the perspective, examining this method of peaceful settlement of disputes in selected fields of activity of the international community, and encompasses in its scope of research additionally experiences in regions outside Europe. The study looks back, but its gist is future-​oriented. The aim has remained the same, which is to demonstrate how useful flexible methods such as conciliation can be for the promotion of peace and security in international relations. All participants are agreed that the Court of Conciliation and Arbitration within the osce, ideally qualified as an independent neutral body, should no longer be ignored by the osce Participating States. The papers assembled here were originally presented at a Colloquium held in Geneva on 11 and 12 October 2018 in the rooms of the Graduate Institute of International and Development Studies. Support was provided by generous financial assistance from Germany, Italy, Liechtenstein and Switzerland. The editors wish to express their deep gratitude to the Institute and to the Governments of the four countries that have shown, once again, their sincere commitment to the rule of law in international relations. Irene Bodle has taken care of revising the manuscripts written by non-​ native speakers; Paula Baldini Miranda da Cruz established the index. Their important contributions are gratefully acknowledged. Christian Tomuschat and Marcelo G. Kohen Berlin and Geneva, December 2019 1 Conciliation in International Law. The osce Court of Conciliation and Arbitration, ed. by Christian Tomuschat, Riccardo Pisillo Mazzeschi, Daniel Thürer (Leiden/​Boston:  Brill ­Nijhoff, 2017).

Notes on Contributors Gábor Bazsó is a law student at elte Law School in Hungary, class of 2021. In 2018, he participated in the Telders International Law Moot Court Competition, where he was awarded the prize for the runner-​up best oralist. In 2019, he was the member of Hungary’s Jessup team, winning both the European Friendly Rounds in Lisbon and the International Rounds in Washington DC. He also received the prize for the best oralist in the Championship Round. Eugenio Carli holds a Ph.D. in Legal Sciences, curriculum International and European Union Law, from the University of Florence (2016) and a Master’s Degree in International Relations from the University of Siena (2012). He was research fellow at the Amsterdam Center for International Law of the University of Amsterdam (2015) and got a scholarship for the Summer Course on public international law at The Hague Academy of International Law (2016). He is the author of a book on the Common Security and Defence Policy of the EU and related aspects of international responsibility (“La Politica di Sicurezza e di Difesa Comune dell’Unione europea. Profili di responsabilità internazionale”, Giappichelli, 2019) and has been recently writing on the non-​refoulement principle and EU readmission agreements. Emmanuel Decaux is professor emeritus at the University Panthéon-​Assas Paris ii where he directed the ‘Centre de recherche sur les droits de l’homme et le droit humanitaire’ (crdh). His most recent publication is Droit international public (with Olivier de Frouville, 11° ed. (Paris, Dalloz, 2018). A detailed bibliography can be found in the Mélanges en l’honneur d’Emmanuel Decaux, Réciprocité et universalité (Paris, Pedone, Paris, 2017). Emmanuel Decaux was a member of the former Sub-​Commission on Human Rights and of the hrc Advisory Committee before being elected as member of the Committee on Enforced Disappearance (2011–​2019). As president of the ced during five years, he chaired the meeting of the Chairs of Treaty Bodies in 2015. In the framework of the osce Mechanism of Moscow of the Human Dimension, he was nominated rapporteur twice, for Turkmenistan in 2002 and for Belarus in 2011. Malgosia Fitzmaurice holds a chair of public international law at the Department of Law, Queen Mary University of London (qmul). She specialises in international environmental law; the law of treaties; and indigenous peoples. She publishes widely

Notes on Contributors

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on these subjects. Her latest publications are a monograph Whaling and International Law, Cambridge University Press, 2015 and (co-​edited with Dai Tamada) Whaling in Antarctic: Significance and Implications of the icj Judgment, Brill/​Nijhoff, 2016. She has delivered a lecture on the International Protection of the Environment at the The Hague Academy of International Law. Professor Fitzmaurice was invited as a Visiting Professor to and lectured at various universities, such Berkeley Law School; University of Kobe; Panthéon-​Sorbonne (Paris i). During 2013–​2015, she was involved with teaches undergraduate and llm modules in international environmental law and the law of treaties. She is Editor in Chief of International Community Law Review journal and of the book series published by Brill/​Nijhoff Queen Mary Studies in International Law.  IN 2020, she will publish (with Professor Panos Merkouris) a book Treaties in Motion:  From Formulation to Termination (Cambridge University Press). An ­Associate Member of the Institute of International Law (since 2019). Serena Forlati LL.M., Bruges, Ph.D., Rome-​La Sapienza, is Professor of International Law at the Department of Law, University of Ferrara, and Director of the Centre for European Legal Studies on Macro-​Crime (Macrocrimes). She graduated in Law at the University of Florence, she was post doc in Public Law, then research fellow in International Law at the University of Florence, and teaching assistant at the Universities of Venice and Siena before moving to the University of Ferrara. She was External Research Fellow at the Max Planck Institute Luxembourg for Procedural Law and Visiting Professor at the University of Vienna. Her current research interests focus on international dispute settlement, International Human Rights Law and its interaction with International Criminal Law.  Recent publications include:  Redefining Organised Crime: A Challenge for the European Union?, Hart, 2017 (editor, with S.  Carnevale and O.  Giolo); The Gabcikovo-Nagymaros Judgment and its contribution to the Development of International Law, Brill, forthcoming (editor, with M.M. Mbengue and B. McGarry). Apollin Koagne Zouapet holds a Doctorate in Law from the University of Geneva and the Diploma of The Hague Academy of International Law. He is an associate researcher at the International Relations Institute of Cameroon (iric) and is currently a Judicial Fellow at the International Court of Justice. Marcelo G. Kohen is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva. Member of the Institut de Droit International, and its Secretary General since 2015. Counsel and advocate for a number of

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states of four continents before the icj, the itlos and other tribunals. He also acts as an international arbitrator. He has been Rapporteur for the International Law Association, the Council of Europe and the Institut de Droit International. Author of more than hundred publications in the field of international law, in English, French and Spanish. Awarded the Paul Guggenheim Prize in 1997 for his book Possession contestée et souveraineté territoriale. Ginevra Le Moli is Assistant Professor of Public International Law at the Institute of Public Law and the Grotius Centre for International Legal Studies at Leiden University. She was previously a Visiting Fellow at the Lauterpacht Centre for International Law, Cambridge (01-​09/​2019), a Legal Consultant with the UN OHCHR (2015–​ 2018), and a Teaching Assistant for the llm Programme in International Law of the iheid, Geneva (2015–​2019). Between 2016 and 2018, she took part in UN investigation teams for Syria and Yemen, with several field missions in Damascus, Idlib, Aleppo, Homs (Syria) and Sanaʽa and Taiz (Yemen).Dr Le Moli holds a PhD from the Graduate Institute of International Law and Development Studies (iheid), an LL.B. and a Masters in Law cum laude from the University of Roma Tre, an LL.M degree in International Law from the Graduate  Institute (cum laude) and a Diploma in International Law from the lse (UK). Makane Moïse Mbengue is Professor of International Law at the Faculty of Law of the University of Geneva and Director of the Department of International Law and International Organization. He is also an Affiliate Professor at Sciences Po Paris (School of Law). He holds a Ph.D. in Public International Law from the University of Geneva. Since 2017, he is the President of the African Society of International Law (AfSIL). He was the Lead Expert for the negotiations and drafting of the Pan-​African Investment Code (paic) in the context of the African Union. He was also among the Experts who have prepared the Global Pact for the Environment. He has acted and acts as expert for the African Union, the Secretary-​ General of the United Nations, the United Nations Economic Commission for Africa,  the United Nations Environment Programme (unep), the Office of the High Commissioner for Human Rights, the World Health Organization (who), the World Bank, the International Labour Organization (ilo), the Organization of the Islamic Conference (oic) and the International Institute for Sustainable Development (iisd) among others. He also acts as a Professor for courses in International Law organized by the United Nations Office of Legal Affairs (ola) and by the United Nations Institute for Training and Research (unitar). Prof. Mbengue acts as counsel in disputes before international

Notes on Contributors

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courts and tribunals (in particular, before the International Court of Justice and in investment cases) and as advisor for governments. He is involved in the negotiations of several International Investment Agreements in Africa. He is the author of several publications in the field of international law. Riccardo Pisillo Mazzeschi is Professor em. of the Department of International and Political Sciences, University of Siena; and Director of the Interuniversity Centre for Human Rights, Migration and Aliens’ Law. Academic education at the Universities of Siena (J.D. 1971) and Harvard (LL.M. 1973). He taught private international law, international law, human rights law and European Union law at the Universities of Siena, Cagliari and luiss (Rome). He lectured at the Hague Academy of International Law in 2006. He was visiting professor/​scholar at Tulane Law School, University College London, Université Paris ii, Keio University, Lauterpacht Centre of International Law (Cambridge). 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. From 2007 to 2013 he was alternate arbitrator in the Court of Conciliation and Arbitration within the osce and from 2013 to 2019 he was arbitrator and member of the Bureau in the same Court, from 2019 to 2025 he will serve as conciliator in the Bureau of the Court. He is Co-​Director of ‘Diritti umani e diritto internazionale’. He has published four authored books, co-​edited four collective books and written about 90 articles and book chapters on Public International Law, Private International Law and European Union Law. Among his latest publications: Global Justice, Human Rights and the Modernization of International Law (co-​ed., Berlin, Springer, 2018); ‘Coordination of Different Principles and Values in International Law’, 61 German Yearbook of International Law (2018). Pál Sonnevend is a professor of international law at elte Law School Budapest. He graduated at elte Law School and earned his PhD at the Ruprecht-​Karls Universität Heidelberg. From 1997 to 2000 he worked as an adviser to the president of the Constitutional Court of Hungary. Between 2000 and 2010 he was legal adviser and later head of the directorate of constitutional affairs in the Office of the President of the Republic under President Ferenc Mádl and President László Sólyom. From 2013 he has been agent of Hungary before the International Court of Justice in the Gabcikovo-​Nagymaros case and conciliator at the Court of Conciliation and Arbitration within the osce. Between 2016 and 2019 he was visiting professor at Andrássy Gyula Deutschsprachige Universität

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Budapest and from 2016 he has been a visiting professor at the Ruprecht-​Karls Universität Heidelberg. In July 2019 he assumed the role of the Dean of elte Law School Budapest. His latest publications include Armin von Bogdandy/​Pál Sonnevend (eds.) Constitutional Crisis in the European Constitutional Area, Theory, Law and Politics in Hungary and Romania (2015, Oxford, Hart Publishing). Heinhard Steiger † was Professor of Public Law, Public International Law and European Law at the Faculty of Law, Justus Liebig University, Gießen. Academic education at the Universities of Freiburg/​Breisgau, Paris Panthéon, Münster/​Westf, and Harvard (LL.M.). He was a visiting professor in Leuven, Toulouse, Limoges, Rovaniemi, and Madison/​Wisconsin. Among his latest publications are: ‘Die drei Teilungen Polens und die Diskontinuität des Völkerrechts um 1800‘, Archiv des Völkerrechts (2018)’ and ‘Universalität und Partikularität des Völkerrechts’. Aufsätze zur Völkerrechtsgeschichte 2009–​2015 (Baden-​Baden, Nomos, 2015). The presentation on which the current article is based was his last public speech. 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 (internationally composed) Independent 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 Constitutional Law. He was a longstanding Member of the International Committee of the Red Cross and president of its Legal Commission. He is a Member of the osce Court of Conciliation and Arbitration and was, for several years, Member of its presidency. He was the Swiss Member and a Member of 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, Humboldt University Berlin. Academic education at the Universities of Heidelberg and Montpellier. From 1972 to 1995 professor for constitutional and international law at the University of Bonn. He

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lectured at the Hague Academy of International Law in 1993 and 1999 (General Course). Member of the Human Rights Committee under the International Covenant on Civil and Political Rights from 1977 to 1986 and of the International Law Commission from 1985 to 1996 (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 Inter-​American Development Bank (1995–​1997) and on the Administrative Tribunal of the African Development Bank (1999–​2008). Admission to the Institut de droit international in 1997. From September 2013 to October 2019 he discharged the functions of the President of the Court of Conciliation and Arbitration within the osce. He also acted as counsel before the International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Union. He was awarded the degree of Dr. jur. h.c. by the Universities of Zürich and Tartu. Among his latest publications is “Human Rights. Between Idealism and Realism” (3rd ed. Oxford 2014); ‘Enforcement of International Law’, Heidelberg Journal of International Law 79 (2019). Jorge E. Viñuales holds the Harold Samuel Chair of Law and Environmental Policy at the University of Cambridge and is the founder and former Director of the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-​EENRG). He is also a Member (Associé) of the Institut de Droit International, the Chairman of the Compliance Committee of the UN-​ECE/​WHO-​Europe Protocol on Water and Health, the co-​General Editor of the icsid Reports (cup), the General-​Editor of the Cambridge Studies on Environment, Energy and Natural Resources Governance (cup), a member of the Panel of Arbitrators of the Shanghai International Arbitration Centre and the Director-​General of the Latin American Society of International Law.

­c hapter 1

Introduction: The Paradox of Conciliation Marcelo G. Kohen The present volume is a compilation of contributions from authors coming from different perspectives and regions submitted to a colloquium whose title was ‘Effectiveness through Flexible Procedures. International Conciliation in a Wider Context’. Indeed, conciliation is a flexible dispute settlement means and some recent practice has demonstrated its actual and potential effectiveness. Today it remains largely unemployed, underestimated and –​even more regrettably –​simply ignored by many practitioners and policy makers. Perhaps the latter explains the former ascertainment. Conciliation offers the opportunity to combine it with different aspects of other means of dispute settlement, such as mediation, inquiry and arbitration. With mediation it shares the fact that what the conciliators do is just make a proposal to the parties without any binding character; with inquiry the capacity to proceed to an investigation of the relevant facts and elements of the dispute; with arbitration the feature that in general it is the product of a collective body akin to a tribunal, that a pre-​established procedure is followed in which the equality of arms of the parties is guaranteed although, as mentioned, the final product is not a binding award but nevertheless constitutes a reasoned and motivated proposal. In fact, conciliation offers multiple paradoxes. Compared with other means of settlement of international disputes mentioned in Article 33, paragraph 1 of the Charter of the United Nations (negotiation, mediation, arbitration, judicial settlement and enquiry) conciliation is certainly amongst the younger ones, if not the last one. Its first appearance in international instruments occurred in the 1920s through bilateral treaties.1 Practice, however, started earlier. An International Joint Commission set up by the Treaty between the usa and Great Britain concerning the boundary waters between the usa and Canada acted not only as an enquiry organ but also had the power to make 1 Conciliation Convention between Chile and Sweden, 26 March 1920, League of Nations Treaty Series, No. 111; Treaty of Conciliation between the Swiss Confederation and the German Reich, 3 December 1921, League of Nations Treaty Series, No. 320; Convention between Norway and Sweden concerning the establishment of a Conciliation Commission, 27 June 1924, League of Nations Treaty Series No. 717.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_002

2 Kohen recommendations.2 Conciliation received a general impulse with the adoption by the Assembly of the League of Nations of a Resolution in 22 November 1922, encouraging the use of it.3 The first multilateral treaty incorporating conciliation was the 1928 Geneva General Act for the Pacific Settlement of International Disputes.4 At the regional level, the first general treaty exclusively devoted to conciliation was the Convention of Inter-​American Conciliation of 5 January 19295. Later on conciliation was included in the 1948 American Treaty on Pacific Settlement (Pact of Bogota)6, in the 1957 European Convention of the Peaceful Settlement of Disputes7 and in the 1964 Protocol to the oau Charter on the Commission of Mediation, Conciliation and Arbitration.8 The work of the Institut de Droit international has been important in the promotion of conciliation as a means of dispute settlement at the international level, with the adoption of two Resolutions, at the Session of Lausanne in 1927 and at the Session of Salzburg in 19619. If one compares the use of conciliation with that of older means, it appears at first sight that these older ones, such as adjudication or mediation, have continued to be more employed than the newer of conciliation. In this regard, attention must be drawn to the contributions by Heinhard Steiger and Makane Mbengué and Apollin Koagne Zuapet. The former examines the practice involving European States in the early times of conciliation (between 1931 and 1957). Mbengué-​Koagne Zouapet’s chapter explores the important –​although largely ignored in other parts of the world –​experiences in Africa. Both presentations demonstrate that the belief that conciliation has never been a much used means of dispute settlement is not correct.

2 See: Charles Ch. Hyde, ‘The Place of Commissions of Inquiry and Conciliation Treaties in the Peaceful Settlement of International Disputes’, 23 (1929) Proceedings of the American Society of International Law at Its Annual Meeting (1921–​1969) 146. 3 League of Nations, Records of the Third Assembly, Plenary Meetings, 1922, pp. 199–​200, cited also in Ch. Hyde (fn. 2) 147. 4 League of Nations Treaties Series, vol. 93, 343. 5 Entered into force on 15 November 1929 but superseded by the American Treaty of Pacific Settlement (Pact of Bogota) unless both parties to a dispute have ratified the subsequent treaty (see http://​www.oas.org/​Juridico/​english/​sigs/​b-​4.html). 6 Signed on 30 April 1948 and entered into force on 6 May 1949, 30 unts 55. 7 Signed 29 April 1957 and entered into force 30 April 1958, 320 unts 244. 8 Signed on 21 July 1964 3 (1964) ilm 1116. 9 See the Resolution adopted at the Session of Lausanne on 2 September 1927 (Rapporteur Michel Restworowski) and that adopted at the Session of Salzburg on 11 September 1961 (Rapporteur Henri Rolin) respectively, http://​www.idi-​iil.org/​app/​uploads/​2017/​06/​1927_​lau_​06_​ fr.pdf and http://​www.idi-​iil.org/​app/​uploads/​2017/​06/​1961_​salz_​02_​en.pdf.

Introduction: the Paradox of Conciliation

3

Conciliation is frequently chosen in multilateral and bilateral treaties in their final clauses relating to the settlement of disputes concerning their interpretation or application.10 It generally appears as a residual mode of dispute settlement if the parties have not chosen an adjudicative method to settle their disputes. This choice has largely been perceived as a manner to overcome the structural divide between countries favourable to judicial or arbitral settlement and those against. In most of the cases, conciliation appears as the only compulsory means envisaged by those treaties. Yet, the faculty of unilaterally instituting the conciliation procedure remains largely unemployed. 1

Some Examples of Uses and Misuses of Conciliation

In order to assess the potentialities of conciliation, it is useful to remember some concrete cases of uses (and misuses) of this method. For many years, the work of the Conciliation Commission on the continental shelf area between Iceland and Jan Mayen was shown as an isolated example of a successful conciliation.11 If many instruments envisage the possibility of recourse to arbitration or judicial settlement in case of failure of prior diplomatic means, rare are the situations in which the parties provide for procedures that go the other way round: the creation of an impartial body which will perform conciliatory functions first and then, in case of failure, arbitral ones. This was the case between Egypt and Israel with regard to the dispute concerning the establishment of boundary markers in the Taba area. An arbitral tribunal of five members was constituted. According to Article ix of the Special Agreement, 10 Among others, the list includes the 1969 Vienna Convention on the Law of Treaties, the 1969 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, the 1978 Vienna Convention on Succession of States in respect of Treaties, the 1982 United Nations Convention on the Law of the Sea, 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 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, the 1992 Convention on Climate Change, the 1992 Convention on Biological Diversity and the 1997 Convention on the Non-​ Navigational Uses of International Watercourses. 11 See its report to the governments of June 1981, which paradoxically was published in riaa, vol. xxvii, at 1–​34. Comprehensive analysis of the case by Ulf Linderfalk, ‘The Jan Mayen Case (Iceland/​Norway):  An Example of Successful Conciliation’, in:  Christian Tomuschat, Ricardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden/​Boston: Brill, 2017) 193–​216.

4 Kohen after the filing of the counter-​memorials a three-​member chamber comprising of two national arbitrators would have the faculty to make a unanimous recommendation to the parties.12 The two remaining members of the tribunal were kept completely out of these conciliation proceedings, which failed, with the five-​member tribunal ending up fulfilling its task as an arbitral body. This hybrid solution may deserve criticism, particularly in the case in which the arbitral tribunal renders its decision on the exclusive basis of international law and may not decide ex aequo et bono. Conciliation and arbitration are separate and different tasks and it can be an unwise decision to require someone to perform both of them in the same case. In the example at issue, one may be particularly critical in view of the fact that not all of the members of the tribunal were put in an equal position, with some of them knowing the alternatives of conciliation and others not. A mitigated success is that of the oas experience in the dispute between Belize in Guatemala. The success of conducting both States to submit the dispute to the International Court of Justice conceals the prior failure of the ‘facilitating’ procedure to address the merits of the dispute.13 A successful conciliation procedure, whatever its name, essentially rests on the impartiality of the conciliators, which necessarily excludes a priori views on the dispute concerned, as well as political pressure that may be perceived as favouring one side of it. A successful conciliation procedure is that initiated by Timor Leste in relation to its maritime boundary dispute with Australia by virtue of Article 298 (1) (a) (i) and Annex v of the unclos. This was the first time in which this procedure was resorted to. It shows a small country using all available means in order to settle its dispute with a bigger neighbour and particularly an experienced conciliation commission successfully addressing the issue.14 Jorge Viñuales and Ginevra Le Moli examine this example in their chapter. An example of the non-​use of conciliation where it appears to be the most appropriate and available method is the case of Bolivia in its dispute with Chile regarding sovereign access to the Pacific Ocean. Bolivia brought the dispute to the icj by virtue of the Pact of Bogotá. As seen, this instrument also allows its States Parties to use compulsory conciliation.15 Bolivia chose the icj and failed

12 Arbitration Compromise regarding the permanent boundary between Israel and Egypt (with annex), signed at Giza on 11 September 1986. unts, No. 29013. 13 See the Special Agreement of 8 December 2008 and its Protocol of 25 May 2015, including the novelty of the holding of popular referenda in both States in: https://​www.icj-​cij.org/​en/​ case/​177. 14 See https://​pca-​cpa.org/​en/​cases/​132/​. 15 Chapter 3: Procedure of Investigation and Conciliation.

Introduction: the Paradox of Conciliation

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to obtain a judicial acknowledgment of the existence of an obligation by Chile to negotiate with it a sovereign access to the Pacific Ocean. The message of the Court was nevertheless that the parties should continue the dialogue to find a solution to the landlocked situation of Bolivia.16 In his declaration, the President of the Court was explicitly clear as to the limits of the judicial function: There are certain differences or divergence of opinions between States which inherently elude judicial settlement through the application of the law. Even when these divergences have a legal dimension, tackling those legal aspects by judicial means may not necessarily lead to their settlement. This may be due to the fact that the role of the law is often limited by virtue of its instrumental dimension. It is possible, as is the case here, that the Court may reject the relief requested by an applicant because it is not sufficiently founded on law. This may satisfy the judicial function of the Court, but it may not put to an end the issues which divide the Parties or remove all the uncertainties affecting their relations. It is not inappropriate, in such circumstances, for the Court to draw the attention of the Parties to the possibility of exploring or continuing to explore other avenues for the settlement of their dispute in the interest of peace and harmony amongst them.17 The inevitable question that arises in this context is whether it would not have been wiser for Bolivia to resort to conciliation instead of to the icj, since both possibilities were open by the Pact of Bogota. The possibility of conciliation still remains open. 2

Criticism of Conciliation Is Largely Exaggerated

Conciliation allows both legal analysis and considerations of opportunity, political or other to be taken into consideration. By no means is this necessarily a weakening of the role of law. The recent example of the Timor Leste conciliation

16 ‘… the Court’s finding should not be understood as precluding the Parties from continuing their dialogue and exchanges, in a spirit of good neighbourliness, to address the issues relating to the landlocked situation of Bolivia, the solution to which they have both recognized to be a matter of mutual interest. With willingness on the part of the Parties, meaningful negotiations can be undertaken’ (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), merits, judgment, 1 October 2018, para. 176). 17 Declaration of President Yusuf, paras. 7–​8.

6 Kohen demonstrates rather the opposite. There are disputes in which practical considerations cannot be dealt with by a judge or arbitrator exclusively applying the law and this is precisely the type of disputes which are more suitable for conciliation. Conciliation has also been accused by its detractors as having all the inconveniencies of arbitration, in particular the difficulties for the constitution of the tribunal and its heavy procedure, and none of its advantages, in particular the fact that after adversarial proceedings the outcome is not binding. One could contend rather the opposite: it has the advantages of arbitration, that is to say an adversarial procedure, and not the inconveniences of its acceptance by some States –​the binding character of the decision. In conciliation they ultimately remain masters of the decision. Furthermore, conciliation procedures as established in many bilateral and multilateral instruments are subject to precise time limits. The ‘recommendation’ has the strength of a motivated reasoning. As such, if it is well-​reasoned, if it has taken into account the views expressed by the parties and has fairly examined them, at the end of the day it rests somewhere in between a mere recommendation and a binding decision. Its rejection in these circumstances appears difficult. The characteristics of conciliation are well known: 1) an organ, 2) an adversarial procedure, 3) confidentiality and 4) a non-​binding report. Daniel Thürer and Serena Forlati discuss these and other elements in their respective chapters. They convincingly demonstrate the convenience and advantages of these attributes. 3

The Potential of the Conciliation Procedure of the Court of Arbitration and Conciliation of the osce

The 1992 Stockholm Convention on Conciliation and Arbitration adopted within the framework of the osce remains a ‘sleeping beauty’, as President Tomuschat once referred to it.18 The important number of 34 State Parties to the Convention necessarily allows for optimism in its future use. The potential is there. This is all the more true since some disputes located in Central and Eastern Europe in particular, in which law mixes with political, historical, ethnical and strategical considerations, could be excellent candidates for conciliation. Certainly, the fact that some States Parties to these conflicts are not parties to the Stockholm Convention of 1992 must be taken into account. Another 18 osce magazine Security Community, Issue 2, 2014.

Introduction: the Paradox of Conciliation

7

possibility to be considered in order to overcome the eternalizing of these conflicts is the convening of a Pan-​European Conference to address those issues, where the current osce Court of Conciliation and Arbitration could play a role. The case of the so-​called Court of Arbitration of the International Peace Conference for Yugoslavia during the 1990s constitutes an example. The fact that its President, Robert Badinter, also became the first President of the osce Court of Conciliation and Arbitration is a telling symbolism. To conclude this introduction, it is my firm wish that conciliation will soon become again a dispute settlement means to be seriously considered and employed in these particular times in which many legal disputes are intrinsically mixed with political and other realities that make difficult the use of adjudicative or even other so-​called diplomatic means to settle them.

pa rt 1 Looking Back to the Past

∵

­c hapter 2

Inter-​State Conciliation between 1931 and 1957. The Cases with Participation of European States. Lessons to Be Drawn from Today’s Viewpoint Heinhard Steiger i

Introductory Remarks

What can and what should we conclude from a review of the history of conciliation in practice in order to enhance the practice of the Court of Conciliation and Arbitration within the osce? Historia magistra vitae docet? I  am rather sceptical. As put in the memorandum which serves as a basis for this colloquium, my presentation should help ‘to understand better the strengths and weaknesses of the system that has taken shape in the Stockholm Convention’. In addition, it should be asked whether and to which extent conciliation ‘had already some colours of mediation, in the sense that the conciliation body concerned took an active role in trying to settle the dispute submitted to it’. ii

Empirical Background

My presentation is essentially based on an article published by Hans Wehberg, late professor at the Geneva Institut Universitaire des Hautes Études Internationales in 1958.1 Having previously examined Swiss treaties of peaceful dispute settlement2, in this paper Wehberg analysed the only twelve practical proceedings of conciliation regarding thirteen disputes between 1929 and 1958.3 A  list of those cases is included in footnote 3.  I  shall generally refer 1 Hans Wehberg, ‘Die Vergleichskommissionen im modernen Völkerrecht’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 19 (1958) 551–​59. 2 Hans Wehberg, ‘Die Schiedsgerichts  –​und Vergleichsverträge der Schweiz’, Die Friedens-​ Warte 42 (1942) 49–​73. 3 1. German-​Russian Conciliation Commission, annual meeting of two weeks, 1929–​1932, different disputes; legal basis: German-​Russian Agreement of Conciliation, 25 January 1929, Reichsgesetzblatt 1929 ii, No. 20, 179; see Wehberg. ‘Vergleichskommissionen’ (fn. 1) 567. 2. German-​Lithuanian proceeding of 1931 concerning the expulsion of five German nationals from Lithuania, § 1 German-​Lithuanian Treaty on Navigation and Friendship, 30

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_003

12 Steiger to that list. Wehberg used publications by Suzanne Bastid, F. M. van Asbeck and Henri Rolin about proceedings in which they had participated. No proceedings October 1929; legal basis: Treaty of Conciliation, Arbitration and Compulsory Adjudication, 29 January 1928, reprinted in: Max Habicht (ed.), Post-​War Treaties for the Pacific Settlement of International Disputes (Cambridge [Mass], 1931) 670; see Wehberg, ‘Vergleichskommissionen’ (fn. 1); Dietrich Schindler, Die Schiedsgerichtsbarkeit seit 1914. Entwicklung und heutiger Stand (Stuttgart, 1938) 25. 3. Belgian-​Luxembourgian proceeding 1934/​35 concerning a Luxembourgian excise on alcoholic beverages, Treaty on Belgian-​Luxembourgian Economic Union, July 25, 1921, legal basis: Treaty of Conciliation, Arbitration and Compulsory Adjudication, Brussels, October 17, 1927, reprinted in: Habicht, Post-​War Treaties, 628; see Wehberg, ‘Vergleichskommissionen’ (fn. 1) 568 et seq. 4. French-​Portuguese proceeding of 1935 concerning French customs and Portuguese counter-​measures, French-​Portuguese Treaty on Commerce and Navigation, 13 March 1934; legal basis:  Treaty of Conciliation, Arbitration and Compulsory Adjudication, Paris, 7 (or 6) July 1928, reprinted in Habicht, Post-​War Treaties, 793; see Wehberg, ‘Vergleichskommissionen’ (fn. 1) 570 et seq. 5. Danish-​Lithuanian procedure of 1937 concerning remaining claims of a private Danish company against the Lithuanian Government, general international law, legal basis: Treaty of Conciliation, Arbitration and Compulsory Adjudication, Kaunas, 11 December 1926, reprinted in: Habicht, Post-​War Treaties, 513; see Wehberg, ‘Vergleichskommissionen’ (fn. 1) 572 et seq. 6. Romanian-​Swiss proceeding of 1947 concerning the diplomatic immunity of a Romanian national working for the Romanian embassy in Berne, who had been accused of political and economic espionage in Switzerland, international law of diplomats, legal basis: Treaty of Conciliation, Arbitration and Compulsory Adjudication, Berne, 3 February 1926, reprinted in: Habicht, Post-​War Treaties, 373; see Wehberg, ‘Vergleichskommissionen’ (fn. 1), 575 et seq.: Schweizerisches Jahrbuch für Internationales Recht/​Annuaire suisse de droit international 7 (1950) 146–​157 with further references. Wehberg had delivered an expert opinion in this case which nevertheless, like others, was never published, ibid., 147 fn. 5.7. Belgian-​Danish procedure of 1952 concerning a Danish claim against Belgium resulting from the extradition in 1940 of two Danish trading vessels from Antwerp which were sunk and whose crew was interned in France, general international law; legal basis:  Treaty of Conciliation, Arbitration and Compulsory Adjudication, Brussels 3 March 1927, reprinted in: Habicht, Post-​War Treaties, 552; see Wehberg, ‘Vergleichskommissionen’ (fn. 1)  577 et seq.; Henri Rolin, ‘Une conciliation belgo-​danoise’, Revue générale de droit international public 57 (1953) 353–​371.8. French-​Swiss proceeding of 1954 with two disputes concerning a) assumption by France of costs for Polish troops serving in France and entering Switzerland in 1940, where the soldiers were interned during the war, and b) Swiss complaint about the violation of Swiss territorial sovereignty by French customs organs; general international law; both cases were referred by Switzerland to the Joint Permanent Commission on August 24, 1954; legal basis:  Treaty of Conciliation, Arbitration and Compulsory Adjudication, Paris, 6 April 1925, reprinted in:  Habicht, Post-​War Treaties, 226; the proceeding was followed by a unilateral Swiss appeal to the President of the Commission; Schweizerisches Jahrbuch für Internationales Recht/​ Annuaire suisse de droit international 12 (1955) 196; see Wehberg, ‘Vergleichskommissionen’ (fn. 1) 579 et seq; J.M. van Asbeck, ‘La tâche et l’action d’une commission de conciliation’,

Inter-State Conciliation between 1931 and 1957

13

after 1958 have been reported.4 It seems that the conciliation as an instrument of peaceful settlement of disputes has fallen into a kind of coma. iii

Legal Foundations

However, after the First World War, some 200 treaties for peaceful settlement of disputes were concluded between European and American States on the one hand, and between States of both hemispheres on the other hand, most

Nederlands Tijdschrifr voor Internationaal Recht 3 (1956) 1–​9; id., ‘La procédure suivie par la Commission permanente de conciliation franco-​suisse’, ibid., 209–​217; Suzanne Bastid, ‘La Commission de conciliation franco-​suisse’, Annuaire français de droit international 2 (1956) 436–​440.9. Swiss-​Italian procedure of 1953/​56 concerning the exemption of Swiss nationals from an Italian capital levy as nationals of the Allies, most-​favoured nation clause of the Treaty of 1868, legal basis: Treaty of Conciliation and Compulsory Adjudication, Rome, 20 September 1924, reprinted in: Habicht, Post-​War Treaties, 164, extension on 20 September 1934, Schweizerisches Jahrbuch des Internationalen Rechts/​Annuaire suisse de droit international 11 (1954) 202–​203 and 12 (1955) 196; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 582 et seq.10. Greek-​Italian proceeding of 1955 concerning the Greek claim arising from the destruction of a Greek civil steamship by an Italian submarine in 1940 when Greece was still neutral, general international law; legal basis: Treaty of Conciliation, Arbitration and Compulsory Adjudication, Rome, 23 September 1928, reprinted in:  Habicht, Post-​War Treaties, 825; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 583 et seq.11. French-​Siamese proceeding of 1946 concerning the revision of the border between Siam/​Thailand and French Indochina, fixed by an earlier treaty after the war, questions of revision in international law, legal basis: ad-​hoc agreement, November 17, 1946 in conjunction with the Treaty of Friendship, 7 December 1937 and the General Act for the Pacific Settlement of International Disputes of the League of Nations, see fn. 12 below; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 573 et seq; Suzanne Bastid, ‘La Commission de conciliation franco-​siamoise’, in: La technique et les principes du droit public. Études en l’honneur de Georges Scelle, tome 1 (Paris, 1950) 1–​20.12. French-​Moroccan proceeding of 1957 concerning the diversion by French organs of a civil aircraft on its flight from Rabat to Tunis and Algiers over international waters between Mallorca and Italy and the arrest in Algiers of the leader of the Algerian Front de Libération Nationale Ben Bella and four of his companions who were on board the aircraft, Washington Convention on Civil Aviation of 1944, general international law, legal basis: special ad-​ hoc agreement 5 January 1957; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 584; ‘L’affaire du F.oabv’, in: Annuaire français de droit international 4 (1958) 282–​295. 4 Jean-​Pierre Cot, La conciliation internationale, Préface de Mdme. S.  Bastid (Paris  :  Pedone, 1968) cites only the proceedings analyzed by Wehberg, p. 92 et seq. More recent publications, published in 1974 and 2012, likewise only refer to the Wehberg proceedings: 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–​552, at 484; J.G. Merrills, International Disputes Settlement (Cambridge: cup, 5th ed., 2005, online publication 2012) 67.

14 Steiger of them in the 1920s.5 The majority of these treaties were bilateral but some American States also signed multilateral agreements. In addition, the League of Nations adopted the ‘General Act for the Pacific Settlement of International Disputes’ at its Ninth Assembly in 1928, which came into effect in 1929.6 Most of these treaties distinguished between ‘legal’ disputes, which could be submitted to arbitration or adjudication, and other disputes, which entitled the parties to have recourse to conciliation. But as an option, conciliation could also be requested before arbitration or adjudication in cases considered ‘legal’. The conciliation procedure was in fact mainly used in disputes which implied legal aspects, such as the interpretation of a treaty or even matters of general international law. A  rather unique provision is contained in the treaty concluded by Switzerland and Germany in 1921.7 Here, legal questions were to be submitted to arbitration (according to Art. 2) but subject to the proviso that ‘if one of the Parties pleads that the question at issue is one that affects its independence, the integrity of its territory or other vital interests of the highest importance and if the opposing Party admits that the plea is well founded, the dispute shall not be subject to arbitration, but to the procedure of Conciliation’ (Art. 4 § 1). This possibility never became actual practice. In general, the agreements provided for a standing or permanent commission of conciliation whose members were appointed for an unlimited or a limited period of time.8 One exception to the permanent character of the ­commissions can be found in the German-​Soviet Russian treaty of 1929,9 which stipulated that the two parties were to nominate a commission of four members every year. This commission held one annual meeting of about two weeks in which it dealt with all questions or disputes submitted by the two governments.10 However, since details of these proceedings are unknown and cannot be retrieved, I shall only refer to the eleven other proceedings. 5

Habicht, Post-​War Treaties (fn. 3) lists 130 treaties, from the one signed between Colombia and Bolivia on November 13, 1918, to the one signed between Siam and the Netherlands on 27 October 1928. 6 Concluded on September 26, 1928, ratified by 22 states, in force since August 16, 1929, League of Nations Treaty Series (lnts) 93 (1929–​1930) No. 2123, 344–​363; Habicht, Post-​ War Treaties (fn. 3) 936. 7 Treaty of Conciliation, Arbitration and Compulsory Adjudication, Berne December 3, 1921, lnts xii, p. 281–​293, Habicht, Post-​War Treaties (fn. 3) 20. 8 Habicht, Post-​War Treaties (fn. 3) 1011 et seq. 9 Treaty signed on January 25, 1929, Reichsgesetzblatt (rgbl.) ii 1929, 179; extension of June 24, 1931, rgbl. ii 1931. 10 Art. 2 stipulated that the commission, which consisted of four members, two from each side, should not be permanent but nominated in the middle of the year for the regular annual meeting, which was to take place in Berlin and Moscow, alternatively.

Inter-State Conciliation between 1931 and 1957

15

The permanent commissions consisted of three to five members, one of whom was appointed by each party, respectively while the others were appointed by both parties together. The jointly selected members –​and the president or chairman in particular –​had to be nationals of a third State. But also the members appointed by each party had to be independent and impartial; they were neither ‘representatives’ of their State11, nor necessarily nationals of the nominating party. All members were renowned international lawyers, former diplomats or politicians. This composition of the commissions corresponded to their non-​judicial character and to their task of seeking practice-​ oriented solutions, in consideration of the legal framework of the dispute as well as the respective political and practical interests and implications. During the proceedings the two involved States were represented by agents appointed ad hoc, most of whom were also renowned international lawyers. iv

The Proceedings

I shall not enter into the details of each of the eleven proceedings as such, but I shall try to point out some important aspects which may be of general relevance to the procedure of conciliation. Due to the general confidentiality of all proceedings, we do not know very much about their outcomes. But, as I have mentioned, in three cases participants published reports about the proceedings they were involved in.12 a The Legal Basis of the Conciliation Proceedings All of the ten conciliation proceedings between European States were based on the respective treaty or agreement on peaceful settlement of disputes, applicable between the two parties. The commissions convened in ten cases to settle disputes referred to them by prior consent. The two Swiss-​French cases were brought to the French-​Swiss Commission after Swizerland had

11 12

Extraordinary meetings could be convened if necessary. Art. 5 describes the task of the commission to propose to the Governments of the parties ‘a just and for both parties acceptable solution of the question submitted to it’. The disputes could be of legal as well as of a no-​legal character. For the Belgian-​Luxembourgian procedure this was explicitly mentioned in the minutes of the last meeting, Wehberg, Vergleichskommissionen (fn. 1) 569, quotation note 34; v. Asbeck, La tâche et l’action, (fn. 3/​8) 4. Bastid, ‘La Commission’ (fn. 3/​8); van Asbeck, ‘La procédure’ (fn.3/​8); Rolin, ‘Une conciliation belgo-​danoise’ (fn. 3/​7).

16 Steiger unilaterlly appealed to the president of the Commission. Since no general treaties on peaceful settlement of disputes between France and Siam or France and Morocco had been concluded in advance, France and Siam and France and Morocco, respectively, submitted their disputes to a conciliation procedure regulated by ad hoc agreements.13 b The Nature of the Disputes Most of the cases presented and analysed by Professor Wehberg referred to disputes about legal questions: interpretation of treaty clauses, diplomatic law, the most-​favoured nation clause, compensation rights and general questions of international law. Some of the proceedings concerned ordinary problems between neighbouring States as they often emerge. Others were of a wider interest. The Belgian-​Danish dispute, one of the two Swiss-​French disputes, and the Greek-​Italian dispute concerned incidents that had occurred during the Second World War. The dispute between Switzerland and Romania arose during the outbreak of the Cold War. The disputes between France and Siam and France and Morocco, respectively, were of high political importance, not only for the two States involved but also for the general political situation of the time. The dispute of the French-​Siamese case concerned the revision of the French-​Siamese border in Indochina, demanded by Siam.14 The disputed border had been defined in a treaty in 1946 that replaced the border of 1937.15 The decisive involvement of the usa and the United Kingdom in the search for a solution to this dispute shows its general political relevance. This proceeding was part of the general reordering of Asia after the war. The commission established according to the conciliation agreement was asked ‘d’examiner les arguments ethniques, géographiques et économiques des parties en faveur de la révision ou de la confirmation des clauses’ of different treaties concluded between the two parties since 1893.16 Since the conciliation commission was only requested to examine

13 14 15

16

See Note 2; Wehberg, ‘Vergleichskommissionen’ (fn. 1)  573, agreement of 17 November 1946; Bastid, ‘La Commission de conciliation franco-​siamoise’ (fn. 3/​8) 8 et seq. Bastid, ‘La commission de conciliation franco-​siamoise’ (fn. 3/​8). 5. During the war in Asia, France was forced to sign the Treaty of Tokyo, May 9, 1941, ceding large parts of Indochina to Thailand due to pressure from Japan, ally of Siam/​Thailand. But La Libre France and the post-​war French government did not recognize the treaty. A  new treaty was concluded in 1946, mediated by the usa and the United Kingdom, which re-​established the former border of 1937. Citation from Bastid, ‘La Commission de conciliation franco-​siamoise’ (fn. 3/​8) 9; treaties: 3 October 1893, 13 February 1904, 23 Mai 1907, 7 December 1937.

Inter-State Conciliation between 1931 and 1957

17

these arguments, legal arguments being explicitly excluded, it was not able to submit a proposal for a solution, let alone decide.17 The French-​Moroccan dispute concerned an incident which occurred on 22 October 1956. France had ordered a private aircraft, which was on its way from Rabat to Tunis via Mallorca and Italy, flying over international waters of the Mediterranean Sea, to land in Algiers.18 The objective of this order was to get hold of the leader of the Algerian Front de Libération Nationale (fln), Ben Bella, as well as of four of his companions who were on board the aircraft. All of them were French nationals at the time. They were arrested by the French police in Algiers. Morocco demanded an investigation of the circumstances of this event as well as the legality of the French action under international law. The commission was asked to determine whether the Moroccan government ‘était fondé à soutenir que le déroutement le 22 octobre 1956, de l’avion immatriculé F.obv est contraire à une règle du droit international public’.19 After deliberation on the legal issues, the panel was to act as a body of conciliation, too. At first view, this was a dispute about legal aspects, which were indeed discussed by the commission.20 But the case had huge general political implications because the event had occurred against the background of the War of Independence between France and the fln –​ which was at the heart of the worldwide decolonization processes. Morocco itself had become  ­independent from the French Protectorate only months before, in early 1956. c The Course of the Proceedings A core characteristic of the conciliation proceedings was their confidentiality. Not only were the sessions closed to the public, but in most cases the proceedings and other documents, including the final report, were not even officially published.21 It is therefore difficult and in some cases even impossible to trace 17 18

19 20 21

France wanted the commission ‘de statuer’, but Siam did not accept this, Bastid, ‘La Commission de conciliation franco-​siamoise’ (fn. 3/​8) 9. Wehberg, ‘Vergleichskommissionen’ (fn. 1)  584. Two of the legally controversial points where whether the civil aircraft was of French or of Moroccan nationality, and whether it was ‘forced’ to land by a French military aircraft: ‘L’Affaire du F.obv’ (fn. 3/​12) 283 et seq,, 293 et seq.. France claimed that at the time of the order the aircraft was of French nationality and under the sole French jurisdiction of France, 290 et seq. Citation, ‘L’ Affaire du F.obv’ (fn. 3/​12) 282. ‘L’affaire du F.oabv’ (fn. 3/​12). In the Belgian-​Luxembourgian case, the commission held three of its seven meetings secretly in Strasbourg, without even informing the French government, Wehberg, ‘Vergleichskommssionen’ (fn. 1) 569, see: Rolin (fn. 3/​7), v. Asbeck (fn. 3/​8).

18 Steiger their evolvement in detail. Only the aforementioned articles of Suzanne Bastid, van Asbeck and Henri Rolin provide some insights into the course of events. No general common practice of conciliation can be found in the proceedings. They all had their own structures, progressed in their own way and significantly differed in their details. It seems that the proceedings, unlike judicial procedures, were characterized by a high degree of informality.22 In this respect they continued the preceding diplomatic negotiations, but now with the commission as an impartial and independent centre.23 Only the first step was similar each time: as a rule, both governments submitted written pleadings and counter-​pleadings at the beginning.24 In some cases there was a second round of written pleadings,25 in others the first round was followed by oral consultations among the commissioners26 and between the commission and the agents of the parties.27 After hearing the statements of the representatives, questions could be put to them and possibly also to the governments themselves. This was partly done in the form of questionnaires.28 Sometimes interim reports were written and further questions put to the agents for clarification.29 But other evidence, such as witness testimonies, was not taken –​an issue that caused the entire French-​Moroccan procedure to fail.30 The three European members of the respective commission feared that the hearing of witnesses, as requested by the Moroccan member, and in particular the hearing of Ben Bella himself, would make finding a settlement more difficult. So the Moroccan request was turned down by a majority vote of the three European members against the two Arab members. As a consequence these two, a Moroccan and a Lebanese national, left the commission. This boycott ended 22 23 24 25 26 27

28

29 30

v. Asbeck, ‘La procédure) (fn. 3/​8) 212. v. Asbeck, ‘La procédure’ (fn. 3/​8) 218. French-​Moroccan proceedings, Wehberg, ‘Vergleichkommissionen’ (fn. 1) 584. Belgian-​Luxembourgian proceedings, Wehberg, ‘Vergleichskommssionen’ (fn. 1) 569. Belgian-​Danish proceedings, Wehberg, ‘Vergleichskommissionen’ (fn. 1) 577; Rolin, ‘Une conciliation belgo-​danoise’ (fn. 3/​7). German-​Lithuanian proceedings, Wehberg, ‘Vergleichskommissionen’ (fn. 1) 568; Dietrich Schindler, Die Schiedsgerichtsbarkeit seit 1914 (Stuttgart: Kohlhammer, 1938) 25. He states that the dispute was settled on the basis of a recommendation made by the commission but does not provide any details. French-​Siamese proceedings, Wehberg, ‘Vergleichskommissionen’ (fn. 1) 574. The questionnaire was developed by the three neutral members of the commission and submitted to the other members and the agents of the two states for completion and approval. The agents and their experts sent the corresponding answers, a step that was followed by an extensive discussion of the relevant questions. French-​Swiss proceedings, Wehberg, ‘Vergleichskommssionen’ (fn. 1) 580; v. Asbeck, ‘La procédure’ (fn. 3/​8) 217; ‘La Tâche’ (fn. 3/​8) 1–​9. Wehberg, ‘Vergleichskommissionen’ (fn. 1) 584 et seq.

Inter-State Conciliation between 1931 and 1957

19

the proceedings without any result. The commissions did not engage in direct negotiations or even discussions with the respective governments in any of the cases, neither during the proceedings nor after submitting the final report. This significantly distinguishes conciliation from mediation. d The Final Reports Also the French-​Portuguese and the Swiss-​Romanian proceedings ended prematurely and, for different reasons, no final report was written.31 In the first case, the two governments found another solution to their dispute. In the second case, the Romanian side finally boycotted the commission. No information is available on the annual German-​Russian proceedings.32 As already mentioned, official information on the final reports was rarely published, which makes it difficult to present the content of the final reports and especially to make statements about whether the respective commission submitted proposals for solutions.33 In the two French-​Swiss disputes of 1954, the two governments published a joint communiqué on the respective settlement, in which they also reflected the positions of the commission.34 However, as mentioned before, in this case as in the French-​Siamese and the French-​Moroccan procedures, papers published by participants contain relevant details about the methods of decision-​taking and the content of the final reports.35 31

32 33

34

35

The French-​Portuguese proceedings ended even before the commission met for the first time because the parties came to an understanding by direct negotiations, Wehberg, ’Vergleichskommissionen’ (fn. 1)  572. In the Swiss-​Romanian conciliation proceedings neither the Romanian member of the commission nor the Romanian agent showed up at the meetings. The other commissioners therefore refused to continue working, ibid. 576. Wehberg, ’Vergleichskommissionen’ (fn. 1) 568. See for the French-​Swiss proceedings of 1954 v. Asbeck, ‘La pocédure’ (fn. 3/​8) 214, but without giving details about the proposals themselves; Wehberg, ’Vergleichskommissionen’ (fn. 1) 581; Italian-​Swiss proceedings of 1956, ibid. 583; Greek-​Italian proceedings of 1955, ibid. 584. An exception concerns the Belgo-​Danish conciliation. Rolin published in his article as Annexes the procès-​verbal of the deliberations of the Commission, the text of an oral communication by the President in the final meeting and the procès-​verbal of the communication of the Commission to the two governments, Rolin, ‘Une conciliation belgo-​danoise’ (fn. 3/​7) 359. Schweizerisches Jahrbuch für Internationales Recht/​Annuaire suisse de droit international 13 (1956) 168 et seq.; Bastid, ‘La Commission de conciliation franco-​suisse’ (fn.3/​8) 440. In the first case, which dealt with the Polish troops in Switzerland, the commission proposed payments to be made by France, and the two governments came to an agreement on that basis. In the second case the commission did not find evidence for the violation of Swiss sovereignty. Also in this case, nevertheless, the two governments came to a mutual agreement. Belgian-​Danish proceedings of 1952, article publishing the texts by Henri Rolin (fn. 3/​7), Wehberg, ‘Vergleichskommissionen’ (fn. 1) 579.

20 Steiger Two proceedings failed. In the Danish-​Lithuanian case the commission submitted its report, including proposals, but the parties did not follow it.36 In the French-​Siamese dispute the final report of the commission contained a review of the main arguments of the parties, the conclusions drawn by the commission and some proposals.37 France accepted the report but Siam rejected it, intending to take the dispute to the UN Security Council according to Chapter vi of the Charter. But finally the Siamese government was overthrown and Siam stopped pursuing its demands. Six conciliation proceedings were successful. The respective commission sent its conclusions to the parties, and in most cases also proposals, which were then complied with by the parties in one form or another. In the Belgian-​ Luxembourgian case the majorities in the commission differed depending on the questions at hand.38 The final report listed the differing positions but also contained also a conciliation proposal that had been unanimously formulated by the commission and was subsequently accepted by the parties.39 The legal aspects of the cases presented a particular problem. All disputes, except for the French-​Siamese case, required the examination of questions of interpretation of a treaty or other international legal norms.40 But since conciliation commissions –​unlike arbitration organs –​do not decide on legal issues, the learned panels avoided providing definite, court-​like answers.41 Even when a commission had to make a statement on legal questions, this position needed to be couched in a way that on the one hand preserved the specific conciliatory nature of the final report and on the other hand prevented the parties from invoking legal statements made by the commission in any subsequent legal proceedings.42 Law was the framework of the cases. And it played an important role in the argumentations of the parties. But conclusions on legal questions were only one element among others in the final reports. 36 37 38 39 40 41 42

Wehberg, ‘Vergleichskommissionen’ (fn. 1) 573. Wehberg, ‘Vergleichskommissionen’ (fn. 1) 574 et seq.; Bastid, ‘La Commission de conciliation franco-​siamoise’ (fn. 3/​8) 18 et seq. Wehberg, ‘Vergleichskommissionen’ (fn. 1) 570. Rolin, ‘Une conciliation franco-​belge’ (fn. 3/​7) 358.; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 578. For the two franco-​swiss disputes v. Asbeck, ‘La procédure’ (fn. 3/​8) 211 underlines “tous les deux d’ailleurs de différends juridiques” and the parties “se sont placées exclusivement sur le point de vue strictement juridique”. Swiss Federal Council 1921 on the German-​Swiss Treaty. This problem was essential in the Belgian-​Danish proceeding of 1952, Rolin, ‘Une conciliation belgo-​danoise’ (fn. 3/​7) 358, but also in the franco-​swiss proceedings for both disputes, v. Asbeck, ‘La procédure’ (fn. 3/​8) 214; Wehberg, ‘Vergleichskommissionen’ (fn. 1) 578.

Inter-State Conciliation between 1931 and 1957

v

21

Conclusions

The general movement in the 1920s to conclude agreements for the peaceful settlement of disputes, including conciliation procedures, was not transformed into regular and steady practice. The discrepancy between the widespread signing of treaties on conciliation between States in Europe and America on the one hand, and their rare application on the other hand, is difficult, if not ultimately impossible to explain, because in general we cannot find out why something did not happen.43 But even the period in which these treaties were signed already ended in the early 1930s; so the movement seems to have come to an end by that time. The interest of States to use the formal instruments of peaceful dispute settlement may have declined. The fear of losing control of the solution even in minor cases by handing it over to an independent and impartial commission and an open procedure may have become stronger. Some treaties may have expired, as they generally stipulated a limited duration with automatic renewal unless terminated.44 But the core question is: what conclusions can we draw from the failures and successes of the various procedures concerning ‘the strengths and weaknesses of the system’, to quote Christian Tomuschat again? On the basis of the mere eight proceedings that formally ended with a report issued by the respective commission, no continuous practice of international conciliation could possibly have developed, neither between specific States nor, in general, for conciliation in international disputes as such. A coherent system-​forming practice of conciliation procedures has never existed in the past. Thus, we cannot draw any general conclusions.45 The German-​Soviet Russian practice of regular annual meetings of their conciliation commissions may be considered an exception. But this practice ended in 1932. Three proceedings failed because they all had a crucial political dimension. The French-​Siamese dispute concerned border issues of a marked historical and political relevance for the whole Asian region. The French-​Moroccan dispute emerged against the background of the fundamental conflicts between France and its colonial world. The Cold War may have played a role in the failure of the Swiss-​Romanian proceedings of 1948. Romania terminated the 1926 43 44 45

Already van Asbeck complained about what he called: ‘une douche froide’ concerning the application of the treaties, ‘La tâche et l’action’ (fn. 3/​8) 2. For instance: Art. xxiv Treaty between Belgium and Luxemburg (fn. 3/​3), original ten-​ year period and five-​year extensions each. For certain questions, the Franco-​Swiss Commission took into consideration the Belgo-​ Danish example, v. Asbeck, ‘La procédure’ (fn. 3/​8) 214.

22 Steiger Treaty with Switzerland in 1949. These political contexts of the failures suggest that a conciliation procedure might not be the means of choice for cases of such strong political implications. The President of the French-​Swiss Commission, v. Asbeck, emphasized the following strenghts of the system: the confidentiality of the whole procedure, the independence and impartiality of all members of the commission including the national members, the relative informality of the procedure, the non-​ confrontational character of the deliberations with the agents, the openness of the conclusions and the non-​binding character of the proposals of the commission for the parties, the good personal atmosphere of the deliberations between the commissioners during the 26 meetings held internally, as well as between the Commission, and the agents during their eight common meetings around the same table without gown.46 He further underlined the importance ‘de saisir une commission de conciliation par requête unilatérale’.47 But in cases of political importance it will be – to say the least – generally difficult for members and agents to dissociate themselves from their national connections. If possible, decisions should be taken by unanimity.48 In minor cases a majority vote may be innocuous for the final success. But, as the French-​Moroccan case has shown, majority decisions taken by the commission in a case of high political relevance may lead to the disintegration of the commission and thus end the entire conciliation proceeding. Perhaps we should think about the two different models we have seen: the general model of a permanent commission acting only upon specific appeal by the parties and the German-Soviet Russian model of regular annual meetings of a commission which is newly established each time, but may also be permanent. But the principle of a periodic annual meeting of a commission could open the possibility of establishing a certain normality of conciliation, at least for minor cases. I am afraid that my presentation of the few cases of practical application of international conciliation between 1929 and 1958 might not be very encouraging or inspiring for the Court. But I hope you will not punish the messenger for bringing the news. 46 47 48

v. Asbeck, ‘La procédure’ (fn. 3/​8) 212. But concerning the publications of the documents, he was of the opinion that this would be helpful to establish a common practice of conciliation, ibid, 217. v. Asbeck, ibid., 210. v. Asbeck, ibid., 214.

pa rt 2 Conciliation in Today’s World

∵

­c hapter 3

Is Conciliation Obsolete or Démodé? Dispute Settlement as a Protracted Process of Interaction between the Parties Concerned Daniel Thürer Der wahre Weg geht über ein Seil, das knapp über den Boden gespannt ist und das mehr bestimmt erscheint, stolpern zu machen als begangen zu werden. franz kafka1

…

When one is faced with any conflict, we believe it is more useful to think about a good process for handling a flow of problems than to think about “solving” a particular problem once and for all. roger fisher2

∵ i

Introduction

Two years ago, a group of authors, all members of the Bureau of the osce Court of Conciliation and Arbitration, published a book on ‘Conciliation in International Law’.3 This book was based on a colloquium organized by the Court in Vienna some time beforehand (June 2015). I contributed an article to

1 Quoted by Jacques Picard, ‘Versehrung, Versöhnung, Verstrickung’, in:  Achim Kuhn (ed.), Kann ich damit leben? Prominente über Konflikt und Versöhnung (Zürich: Theologischer Verlag, 2017), 157, at 165. 2 Roger Fisher, Elizabeth Kopelman and Andrea Kupfer Schneider, Beyond Machiavelli. Tools for Coping with Conflict (New York et al: Penguin Books, 1996) 4. 3 Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer, Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden/​Boston: Brill Nijhoff, 2017).

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_004

26 Thürer this book with the title ‘Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation’.4 I referred to the opinions of two eminent, rather sceptical experts. Jean-​ Pierre Cot observed that conciliation did not meet ‘the expectations of its founding fathers’ and that it had ‘never successfully operated in situations of major tension’,5 and Lucius Caflisch, after a review of recent practice, came to the conclusion: Pour ce qui est du recours effectif à ce moyen, on doit même parler d’une régression, puisqu’un seul litige … a été acheminé, avec succès, vers cette voie.6 Maybe it was for such scepticism that I was requested to come back to that evaluation and to try to answer the general questions: –​ whether conciliation as such has become obsolete or démodé; and –​ whether this form of dispute settlement should be understood as a protracted process of interaction between the parties concerned. Let me make, in my present contribution, some remarks concerning the following points: What is the value and function of conciliation as such, independent of the osce processes we dealt with at our last colloquium? Could the osce model be transformed in order to better serve its purpose and function, and how could that be done? Could it be expected that my country, Switzerland, makes –​drawing from its own tradition and specific political culture –​a useful contribution to further developing the concept of conciliation? Intellectually and in practice? Are there lessons to be learned from domestic experiences in alternative dispute settlement in various States? After all, the domestic and the international sphere are not neatly separated, but confluence and influence each other mutually; both worlds belong together.

4 Daniel Thürer, ‘Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation’, in: Conciliation in International Law (fn. 3) 40–​53. 5 Jean-​Pierre Cot, ‘Expectations Attached to Conciliation Reconsidered’, in: Conciliation in International Law (fn. 3) 7 et seq. 6 Lucius Caflisch, ‘Cent ans de Règlement pacifique de différends interétatiques’, 228 (2001) Recueil des Cours de Droit international de l’Académie de Droit international de la Haye (RdC) 359.

Is Conciliation Obsolete or Démodé?

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27

Value and Function of Conciliation Independent of the osce Process

Within the osce a most ambitious, carefully crafted system of conciliation has been created. It has, however, so far not fulfilled its promises. But this is not necessarily the end of the story. One could well imagine that, in the long term, the osce model might appear to be more than an isolated phenomenon, an episode in a long history of peaceful settlement of conflicts and of conciliation as such. The idea of the Geneva colloquium was therefore rightly chosen: to widen the horizon today and to perceive conciliation, as it was established in the Stockholm Convention, as part of a broader picture and a longer process. If considered from a wider perspective, things seem to me to look less pessimistic than at our last colloquium in Vienna. Let me explain my position by first trying to give an answer to the basic question of what conciliation means and how it can be described and defined in a more general sense. Generally, conciliation is a method of dealing peacefully with disputes out of court by recourse to a third party: a method, however, according to which the solution of a conflict is not dictated by the third party (such as a judge or arbitrator) but in which this party (conciliator or conciliation commission) might persuade the disputing parties to come together and agree on the terms of the settlement for themselves. Like mediation, conciliation is a voluntary, flexible, confidential and interest-​based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. Conciliation, as an alternative, out-​of-​court method of dispute settlement is closely related to mediation. The main difference between conciliation and mediation, as it is generally understood, is that, at some point during the proceedings the conciliator may be asked by the parties to provide them with a non-​binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such proposals. In any case, the ultimate decision to agree to the settlement remains, in mediation as in conciliation, with the parties. A conciliator does not need to have a specific professional background. He or she may be a private person, a commission or an organ of an institution. It seems natural that conciliators must be and must be seen as independent persons or bodies dealing with the case entrusted to them in a just and fair manner. The profile of a conciliator was, apart from the institutional features of his or her position, characterized by Lucius Caflisch as follows:

28 Thürer Du fait même de son indépendance, il (le conciliateur) ne dispose d’aucun moyen –​autre que son intelligence, son bon sens et ses dons de persuasion –​pour faire agréer ses recommandations.7 A conciliator thus does not need to have a specific professional background. Much depends, for his or her success, on the character, personal credibility, competence and experience of the conciliator. The political and legal culture surrounding the case or situation is also important. Legal and also non-​legal qualities are essential to find, in a dispute, this sort of informal, out-​of-​court solutions. A facilitating element is that in conciliation procedures not only the parties’ legal positions, but also other interests and considerations can be taken into account. A condition for success is also that the parties agree on confidentiality so that the dispute can be settled discretely. iii

Conciliation under the Jurisdiction of the osce Court

Could the osce model be transformed in order to better serve its purpose? Possibilities of transformations of the existing osce model? Let me now turn, from these rather basic general considerations concerning the nature of conciliation, to the osce process and ask the question whether the instruments established in the Stockholm Convention might, by hard law or soft law,8 be re-​considered in their design and whether the competences of the mechanisms or given organs should be enlarged or deepened. After all, no legal institution is here to stay forever and it needs to be readapted permanently to fit changing needs of its environment. A new generation of methods of peaceful settlement of disputes might emerge. In such a view, the question might be put forward whether the institutions as they were chosen and elaborated twenty years ago still prove to be well structured. Our world is becoming more and more diverse and complex. The game played within the osce is no longer an inter-​State game governed exclusively by State representatives and experts in international law. It is also played by newly emerging actors, and new forms of expertise and talents are required for those evaluating, directing and acting in the game. Questions like the following may be allowed: 7 Lucius Caflisch, ‘Cent ans de Règlement pacifique des différends interétatiques’, 228 (2001) RdC 254–​467. 8 See Daniel Thürer, Entry ‘Soft Law’, in: Max Planck Encyclopedia of Public International Law, ed. Rüdiger Wolfrum, Vol. ix (Oxford: oup, 2012) 269 et seq.

Is Conciliation Obsolete or Démodé?

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Should, so it might be explored, the circle of possible actors be enlarged and should, for instance, enterprises or other business actors be included as possible actors? Should ngos have access to the Stockholm institutions and mechanisms? Should a Conciliation Commission embrace, de lege ferenda, side-​by side legal and extra-​legal competences? Should its focus and style of deliberation be placed, to a higher degree, on legitimacy instead of law in a strictly positive sense? How could the potential hidden in the Stockholm scheme be brought to bear in a more effective way? How could awareness in the general public be raised? Is it not the specific chance and task of academia to pave the way and play a pioneering role in reforming and strengthening means and methods of dispute settlement? In short: we should, as lawyers, ask not only what the rules are, understood as given, but also, whether they work well and, if not, how they ought to function. iv

Historical Experiences of Switzerland

May useful contributions be made by a country like Switzerland? Conciliation is deeply rooted in the Swiss tradition. Federalism, direct democracy, cultural pluralism or neutrality as elements of Swiss identity come to mind. Over centuries, agreements could not be concluded at all in Switzerland, be it internally or externally, without at the same time making provisions for the settlement of disputes. A  specific practice emerged which endeavoured primarily to dispose of conflicts ‘by concord’ (‘nach Minne’). Only when this course failed was a conflict to be judged ‘by law’ (‘nach Recht’).9 A specific culture of compromise and trust may have favoured this sort of informal settlement of disputes. Specific persons and events standing for this tradition are recorded and are still remembered today. Many Swiss still associate conciliation today with a historical figure called Niklaus von der Flüe.10 9

10

See the very pertinent reflections of the then Secretary of State Raymond R. Probst, on ‘Good Offices’ in ‘International Relations in the Light of Swiss Practice and Experience’, 201 (1987) RdC 265 et seq. which are quoted in extenso in my article on ‘Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation’ (fn. 4) 40, at 46 et seq. About this legendary figure in Swiss history see, among others, Ernst Walder and Heinrich Stirnimann: ‘Niklaus von Flüe’, in: Historisches Lexikon der Schweiz, version of 28 September 2017, online:  https://​hls-​dhs-​dss.ch/​de/​articles/​010224/​2017-​09-​28/​, last

30 Thürer He was a hermit living apart from his family, alone in a retreat in Obwalden. When meeting in Stans in 1481 the Assembly (‘Tagsatzung’) of delegates from the ‘Orte’ (or ‘cantons’, in today’s language) making up the Swiss Confederation the country was divided by a deep conflict between towns and rural areas. A decision was taken, so it is said, to send a delegate to Niklaus von der Flüe and ask him for advice. It is not recorded what his opinion was. But the tension between towns and rural cantons seems to have lessened thereafter. And forty years later, Niklaus von der Flüe, whose advice was never formally documented, was said to have laid the foundation for Swiss neutrality and the conception of Switzerland as a ‘small State’ (he was told to have warned, in the Swiss-​German language: ‘mached de zuun nit zu wiit’ (‘do not make the fences too wide’) and to stay out of disputes of others and not to interfere in them. Another legend comes to mind when speaking about conciliation: the so-​ called Kappeler Milchsuppe of 1529.11 By that time, Catholics and Protestants were at war with each other. However, this war (Kappeler Krieg) was ended symbolically when, while commanding officers worked out the terms of an armistice (which is not recorded), the soldiers gathered around a large pot of milk soup with pieces of bread floating in it thus emotionally celebrating their will for peace and an end to fighting. The soup was placed right at the border of both camps in Kappel, a place between Zürich and Zug. The story of the Milchsuppe was recently remembered when, in an inter-​ cantonal dispute, the Kulturgüterstreit between St. Gallen and Zürich over the property of cultural goods conquered by Zürich in another religious war (Villmergenkrieg), conciliation proceedings, conducted under the auspices of the Federal Government, were successfully concluded by the Federal Councillor Pascal Couchepin inviting the parties to what he called a modern sort of Milchsuppe. A longstanding dispute originating in the year 1712 had thus found, in an agreement concluded by all the parties concerned on April 27 2006, a definitive solution. The constitutional basis of these proceedings was Article 44 of the Federal Constitution of 1999, which reads as follows:

11

viewed on 10 August 2019. See also Heinrich Stirnimann, Der Gottesgelehrte Niklaus von Flüe (Freiburg, Switzerland: Universitätsverlag, 1981). About the Tagsatzung in Stans see Robert Durrer (ed.), Bruder Klaus. Die ältesten Quellen über den seligen Niklaus von Flüe, sein Leben und seinen Einfluss (Sarnen: Ehrli, 1917–​1921) 158–​163. For more information about the Kappeler Milchsuppe see Helmut Meyer, ‘Kappelerkriege’, in:  Historisches Lexikon der Schweiz (fn. 10), online:  https://​hls-​dhs-​dss.ch/​de/​articles/​ 008903/​2009-​11-​12/​, last viewed on 10 August 2019. See also Georg Kreis, ‘Die Kappeler Milchsuppe’, 44 (1994) Schweizerische Zeitschrift für Geschichte 288–​310.

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1. The Confederation and the Cantons shall support each other in the fulfilment of their duties and shall generally cooperate with each other. 2. They owe each other a duty of consideration and support. They shall provide each other with administrative assistance and mutual judicial assistance. 3. Disputes between Cantons and between Cantons and the Confederation shall wherever possible be resolved by negotiation or mediation. It is legally interesting to consider the specific features of this process. The proceedings developed in the Kulturgüterstreit between Zürich and St. Gallen may be viewed –​so it seems to me –​as prototypes of successful conciliation generally even though, in this case, the dispute at stake only emerged within the framework of a federal, intra-​State system and this on an inter-​cantonal level and was not part of the ‘game of nations’. These were specific structural elements of the case: Legal considerations were taken into account, but not exclusively, because other considerations, some of them not directly connected with the core legal questions, were included, too. The proceedings were kept confidential. No professionally elaborated reasons were given for the decision. The proceedings were cost and time efficient. Other illustrations from Swiss practice may be mentioned which one might find to be more interesting, more relevant and pertinent for our purpose. One may refer, in particular, to the role Swiss diplomats played in various international conflicts. I have in mind, for instance, Ambassador Victor Umbricht who occupied leading positions in the Swiss Federal Department of Finance, in the World Bank and as an advisor to different Secretaries-​General of the United Nations and was then entrusted with the mandate to act as mediator in disputes surrounding the dissolution of the East African Economic Community (consisting of Tanzania, Uganda, and Kenya). He published books on his work, among them a volume at the Hague Academy of International Law, in which he recalled and stressed principles of sound proceedings such as respect for sovereignty and integrity of States, good faith and others.12 Other examples of constructive Swiss peace policy as set out in the Swiss Federal Constitution, marginal or more central as they may be, could be given. I would like to mention here just one more case: the role played by Ambassador

12

Victor H. Umbricht, Multilateral Mediation –​Practical Experiences and Lessons (Dordrecht et al: Martinus Nijhoff, 1989) 222 et seq.

32 Thürer Josef Bucher (who knew Arabic) and Swiss experts in various phases and places of the war in the Sudan (2002) in which two million people lost their lives. Imaginative ideas like the creation of a ‘House of Nationalities’ and highly professional truce negotiations on the Bürgenstock in central Switzerland concerning specific battle zones come to mind as typical contributions of this sort of diplomacy.13 This and other experiences demonstrate how important it is for a successful peace policy of a State to have talented, widely experienced and broadly cultivated men and women at hand, coming from the fields of diplomacy, science, business and others.14 It also demonstrates how essential it is for a State to have at its disposal educational institutions to train needed personnel, to develop their skills, to launch fresh ideas and to develop new ways of thinking, in order to raise public awareness and a sense of common responsibility for shaping the world around us at large. The expression ‘international conciliation’ did not appear before the First World War. The Swiss international lawyer Max Huber seems, according to the article of Jean-​Pierre Cot quoted above, to have given, in a Report to the Federal Council, for the first time a clear definition of international conciliation. Would it not be time for Switzerland to resume its longstanding tradition and engage, for the future, again and in a stronger measure in such undertakings? v

Developments within Modern States

Are there general lessons to be learned from domestic experiences in alternative dispute settlement in various States? Processes developed in the international field might well find parallels within domestic contexts. Practices developed within States might inspire thinking in a nation-​to-​nation system. There is no room here to expand on this topic. I limit myself to refer only to some reflections made by Roger Fisher who taught us, in his fascinating classes, methods of alternative dispute settlement at the Harvard Law School many years ago. 13 14

For detailed information about the forms and methods of Swiss peace engagement in the Sudan cf. Simon A. Mason, ‘Lehren aus den Schweizer Mediations –​und Fazilitationsdiensten im Sudan’, Bulletin 2006 zur Schweizerischen Sicherheitspolitik, 43 et seq. Information should be given and lessons should be taught, in context, for instance about the inner connections of peace engagement and neutrality policy. Some indications are given, for instance, by Daniel Thürer, in an essay on ‘Die Neutralität der Schweiz’ in:  Gerhard Schöpfer (ed.), Die österreichische Neutralität  –​Chimäre oder Wirklichkeit (Graz: Leykam, 2017) 115 et seq.

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Roger Fisher wrote: 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.15 But Fisher observed: In today’s world, characterized by flatter organizations …, the pyramids of power are shifting into networks of negotiation. This quiet revolution, which accompanies the better known knowledge revolution, could well be called the ‘negotiation revolution’.16 Are reflections of this sort not also meaningful, to a higher degree, in the context of modern challenges in international relations? vi

Conciliation Not Adapted to Our Time?

1 Is Conciliation démodé? The term ‘conciliation’ may be démodé. It is not part of our day-​to-​day political vocabulary. One hardly hears it mentioned in public debates or talk shows. It does not mobilize masses of people in election campaigns. It is not a fighting or polemic word with which political opponents may be attacked. For this purpose, it is not clear-​cut, energy-​loaded enough. It is too much peace-​oriented, harmony-​seeking, maybe too soft, not suited as a battle cry in the political arena of our noisy democracies which often aim for antagonism and tension more than for consensus building. Conciliation is part of a political culture characterized by a tradition of tolerance, compromise and synergy which is –​ wrongly –​regarded by many people as ‘démodé’. 2 Is Conciliation obsolete? Certainly not. We may look for a moment at the ‘Kulturgüter’ dispute between St. Gallen and Zürich which was mentioned above. The problem did not emerge on the international level, but between units of a federal State. 15 16

Roger Fisher and William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving in, 2nd ed. (New York: Penguin Books, 2001), ix. Ibid.

34 Thürer However, lessons could be learned from it by analogy also for dealings within international contexts. As illustrated in this case, it seems interesting that the parties chose conciliation first and were prepared to approach the Supreme Court only if conciliation should fail. The dispute was dealt with ‘in the shadow of the law’, but it was finally solved out of court. There was also much fresh, imaginative thinking in it combining thoughts which normally are dealt with separately and in looking for shared interests and shared values. As this case demonstrates, conciliation might be, far from being obsolete, a first step on the road to a final binding judicial outcome. Other examples, for instance from the field of peace diplomacy, could be given. 3 Does Conciliation Protract Proceedings? No, not necessarily. Conciliation might rather eliminate unfriendly feelings, create trust and a sense of common understanding. It might rather shorten the proceedings by reducing hostile energies because it has the potential to strengthen ways to live together well or –​even better –​à l’amiable. Conciliation may also have a great potential to focus on the future and to move forward, whereas traditional court proceedings naturally have the tendency to achieve justice for past wrongs and the need for resolution.17 vii

Conclusions

–​ Conciliations might be speedier and cheaper than court proceedings, which drag along from (artificial) complexity to complexity with all the pitfalls used by clever litigators. –​ Conciliation tends to preserve relations and does not leave behind winners and losers; it creates cooperative, win-​win solutions. –​ Conciliation favours, by its very nature, mutual understanding and trust instead of creating confrontation. –​ Conciliation allows for solutions tailored to the case of the parties: special values, traditions, interests and circumstances may be taken into account. Conciliation gives room for imaginative ways of thinking about the handling of difficult problems, maybe by enlarging the frame of reference or by putting it on a higher level of awareness.

17

See Robert Mnookin, Bargaining with the Devil (New  York et  al.:  Simon and Schuster, 2010) 261/​62.

Is Conciliation Obsolete or Démodé?

35

–​ And last but not least: A conciliator may –​as was mentioned at the beginning of this article –​at some point during the proceedings be asked by the parties to provide them with a non-​binding settlement proposal. This in contrast to a mediator who will, in most cases and as a matter of principle, refrain from making such proposals. In this potential of the third party to play an active, formative role for the settlement of disputes lies, as I think, the specific strength and comparative advantage of the osce scheme provided for in the Stockholm Convention. Does conciliation, considered as part of a broad picture of instruments and methods for the settlement of disputes, have promising perspectives in the future? The case of compulsory conciliation between Timor Leste v. Australia,18 commented upon in this book by Jorge Viňuales,19 demonstrates very clearly the rich potential of conciliation if both parties are, in principle, prepared to accept a fair compromise. There are thus signs of hope that have been aptly highlighted by Anais Kedgley Laidlaw and Hao Duy Phan in their observations on the case.20 18 Award. 8 May 2018, https://​pca-​cpa.org/​en/​cases/​132/​. 19 Above xxx. 20 ‘Inter-​State Compulsory Conciliation Procedures and the Maritime Boundary Dispute Between Timor-​Leste and Australia’, 10 (2019) Journal of International Dispute Settlement 126–​159. The article identifies the features of the unclos conciliation procedures that appear to have played a significant role in the success of the case –​including its procedural flexibility, or its ability to take into account non-​legal considerations. The authors conclude by looking at the significance of this case for future disputes –​highlighting that its implications go beyond unclos, as many of the major multilateral environmental treaties, including the United Nations Framework Convention on Climate Change and the Paris Agreement, contain untested compulsory conciliation procedures similar to unclos.

pa rt 3 Conciliation in Specific Fields

∵

­c hapter 4

The Potential for Inter-​State Conciliation within the Framework of the UN Treaties for the Protection of Human Rights Emmanuel Decaux i

Introduction

The Office of the UN High Commissioner for Human Rights (ohchr) as well as the UN General Assembly (unga) are used to speaking of a ‘system’ of basic human rights instruments with dedicated treaty bodies,1 but this notion of a coordinated system is quite new since the various components of the framework of the UN treaties for the protection of human rights are the fruit more of political circumstances than logical necessities.2 In fact the very notion of ‘core instruments’ is related to the creation of ten treaty bodies, and not to a hierarchy of substantive rights, more basic’ than others. But in order to have a full scope of the UN treaties for the protection of human rights we need to keep in mind other treaties enunciated in the Vienna Declaration and Program of Action of 1993 or published in the Compilation of International Instruments, regularly updated by the ohchr.3 From this perspective, there are ‘generations’ of treaties drafted in the same context, with a sort of mimetic practice, and the use of ‘cut and paste’ of legal formulae by diplomats and lawyers as ‘éléments déjà agréés’. Useful comparisons with treaties in other fields could also be made, with a sort of ‘snob effect’ or a form of deterrence, after ‘bad’ experiences for States.4 1 UN GA Res. 68/​268, 9 April 2014, Strengthening and enhancing the effective functioning of the human rights treaty body system; and follow up resolution UN GA Res. 73/​162, 17 December 2018. 2 Emmanuel Decaux and Olivier de Frouville (eds), La dynamique du système des traités de l’ONU en matière de droits de l’homme (Paris  :  Pedone, 2015)  ; Olivier de Frouville (ed), Le système de protection des droits de l’homme des Nations Unies, présent et avenir (Paris : Pedone, 2018). 3 Cf. our final report on the effective implementation of universal human rights instruments as special rapporteur of the Sub-​Commission for the protection and promotion of human rights, A/​HRC/​Sub.1/​58/​5 and A/​HRC/​Sub.1/​58/​5/​Add.1. 4 Guy de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983).

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_005

40 Decaux Furthermore, the ‘time factor’ introduced another ‘décalage’, a gap between the drafting of these instruments and their entry into force within a very different context. Some legal provisions that were the matter of very difficult negotiations were progressively forgotten and stayed ‘lettre morte’ as a form of virtual reality while others, less debated, became very fruitful following the principle of serendipity, specially through the legal interpretation of the treaty bodies in the form of general comments. But those legal provisions, perhaps forgotten by practitioners, diplomats or politicians, are not ‘obsolete’, they are like legal ghosts, ‘sleeping volcanos’, and could be awakened for new political opportunities, today for example in the International Convention on the Elimination of All Forms of Racial Discrimination (cerd).5 Thus, we ought to keep in mind this discrepancy between law and practice, but also take into consideration the effects both in the short term and in the long term of treaty provisions. Finally, we ought to keep in mind previous transitional systems like the first European Convention on Human Rights (echr)6 before Protocol No. 11, with the various functions of the late Commission. Furthermore, there was a close relationship between the echr of 1950 and the European Convention for the Pacific Settlement of Disputes of 1957 that combined judicial adjudication with diplomatic processes.7 With the development of the Strasbourg Court and the primacy of the Luxembourg Court these alternative methods were soon eclipsed. The link is less obvious in the UN system even though the icj competence for disputes about the interpretation and application of human rights treaties is a common element inasmuch as other methods of pacific settlement are less systemic. In this regard, the main weakness of the Stockholm Convention is its legal aloofness, in a political framework, as an abstract mechanism without a substantial background. On the contrary, human rights treaties are like a ‘Swiss army knife’ with several potential uses. Against this European trend towards jurisdictionalization –​according to the common ideal of a rules-​based order –​we ought to recall the old distinction between political disputes and legal disputes, but also between diplomatic methods and contentious remedies. Even the distinction between individual cases and inter-​State cases could be challenged: by the use of diplomatic protection an individual case could become the matter of an inter-​State case while an individual case could be triggered by States acting covertly, with political and legal assistance. 5 International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, 660 unts 195. 6 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 unts 221. 7 European Convention for the Pacific Settlement of Disputes, 29 April 1957, 320 unts 243.

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41

The Inventory of Various Formulae of Inter-​State Dispute

With some variations, the UN Treaties articulate two basic components, the classic element of inter-​State disputes concerning interpretation or application of a convention –​reflecting the same complex evolution as other international treaties, since the Convention against Genocide in 19488 to the Convention of Montego Bay in 1982,9 with a mix of arbitration and permanent jurisdiction –​and a more specific element related to human rights, instituting complaint procedures for individuals as well as inter-​State complaints, with a parallelism reflecting diplomatic methods such as conciliation. If we add that some mechanisms are optional and others compulsory in principle but need to be triggered in a specific case and are always dependent on the good will of the States concerned, it is a difficult task to have a full virtual picture of a global system. When the International Law Commission debated for the last time the ‘settlement of disputes clauses’ in 2011, Sir Michael Wood presented a shopping list of items for further examination, noting inter alia ‘(d) The need to consider methods of dispute settlement other than judicial and arbitral methods, including negotiation, conciliation and mediation’, but also the ‘(i) Examination of the question of the fragmentation of dispute settlement procedures’.10 Neither of these ideas, considered as procedural more than substantive, prospered in the program of work of the Commission. One unresolved issue, for lack of legal practice, is the actual articulation between the internal mechanism, specific to human rights treaty bodies, and the external mechanism, under the supervision of the icj. As we know, Article 33 of the UN Charter set the principle of pacific settlement of disputes, giving only a shopping list without any ‘user’s guide’, even less a hierarchy between the different methods enumerated. Yet conciliation seems to be at the ­crossroads. The example of the Protocol instituting a Conciliation and Good Offices Commission to be responsible for seeking a settlement of any disputes which may arise between States Parties of the Convention against Discrimination in

8 9 10

Convention on the Prevention and the Punishment of the Crime of Genocide, 9 December 1948, 78 unts 277. United Convention on the Law of the Sea, 10 December 1982, 1833 unts 3. Cf. Emmanuel Decaux, ‘La pratique française en matière d’arbitrage’, Annuaire français de droit international 1978, 352. ilc, 63rd session, UN doc. A/​CN.4/​641, 30 March 2011, para. 16. Cf. also the note prepared by the Secretariat for the 62nd session, in 2010, UN doc. A/​CN.4/​623, 15 March 2010.

42 Decaux Education, adopted on 10 December 1962 by the General Conference of unesco, is linked with Article 8 of the Convention of 1960, in ‘seeking the amicable settlement of disputes between States Parties (…) concerning the application and interpretation of the Convention’.11 This precedent is not very encouraging, with only 105 States Parties and no use of the mechanism since its establishment. Nevertheless, having being created within an institutional framework, efforts are being made to keep it alive, with a revision of the rules of procedure in 2005, following two meetings of the Commission in 2003 and 2005. At the last session of the General Conference, there were only three candidates for the eight seats to be filled, and the Nomination Committee had to recall ‘that it is the duty of States Parties to the Protocol to ensure the effective functioning of the body established by it’.12 When considering the legal history of the UN human rights treaties we can see a watering down of conciliation as an institution, with a roster of members, towards a friendly spirit of ‘good offices’ entrusted to treaty bodies, and, at the same time, the highlighting of ‘the now classic’ procedures for consideration of individual and State communications. These procedures under which the question of the international responsibility of the State could be addressed would be a useful complement to the emergency mechanism, as noted in the travaux préparatoires of the international Convention for the Protection of All Persons against Enforced Disappearance, even if some diplomats recalled during the debate, the risk of duplication.13 In order to ascertain the potential of these dubious provisions, it is necessary to have a close look at the variations which occurred during more than forty years of legal history. 1) The Compulsory Model of ‘ad hoc Conciliation Commission’ in cerd As the first new human rights instrument adopted by the General Assembly in 1965 –​ahead of the Vienna Convention of 1969 on the Law of Treaties and the challenges to the status of the icj as ‘principal judicial organ’ of the United Nations  –​the International Convention on the Elimination of All Forms of

11 12

13

Convention against Discrimination in Education, 14 December 1960, 429 unts 93. UNESCO doc. 39/​C/​NOM/​6. When the report was written there was no candidacy. The election took place on 14 November 2017. In 2015, during the 38th General Conference, only two members were elected, one was re-​elected for 6 years, P.M. Eisenmann (France), and the other was elected for the first time, E. Reidel (Germany), but 2 seats remained vacant. Thanks to interim measures, the Commission kept its full composition of 11 members, with prorogation of the mandates until a new election. UN doc. E/​CN.4/​2004/​59, para. 159.

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Racial Discrimination (cerd) is both very innovative and very ‘classic’.14 Judge Cançado Trindade speaks of a ‘pioneering Human Rights Convention’.15 It is not by mere chance that it is the main human rights treaty which has been invoked as the basis of jurisdiction for several cases before the World Court (Article 22) in circumstances when the threshold of the Genocide Convention, according to the case-​law of the icj on ex-​Yugoslavia, was considered too high for the applicant States (cf. infra).16 Article 11 indicates that ‘if a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee’. The word ‘communication’ is mentioned only with reference to the transmission to the State Party concerned, but it must be underlined that it is not an optional system, contrary to the situation with the other treaty bodies.17 According to Article 11, the receiving State has three months to ‘submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State’ (para. 1). At this stage, even if official exchanges are dealt with through the channel of the Committee, other direct contacts between the two States are implied. According to the rules of procedure of the cerd, ‘any action at this stage by the Committee in respect of the communication shall in no way be construed as an expression of its view on the substance of the communication’.18 If this initial period is not a diplomatic success, a new function is attributed to the Committee. Article 11(2) indicates that ‘If the matter is not adjusted to the satisfaction of both Parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of 14 15

16

17

18

Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination, A Commentary (Oxford: Oxford University Press, 2016). icj, Order of 23 July 2018, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.  United Arab Emirates), Request for the Indication of Provisional Measures, Separate Opinion of Judge A.A. Cançado Trindade, para. 66. For the more recent examples: icj, Application of the Convention on the Prevention and the Punishment of the Crime of Genocide, (Croatia v. Serbia), Judgment, 3 February 2015, 2015 icj Reports 3; icj, Application of the Convention on the Prevention and the Punishment of the Crime of Genocide, (Bosnia Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, 2007 icj Reports, 43. On the contrary, article 14 of the cerd stresses that ‘A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention’. CERD/​C/​35/​Rev.3, Rule 69 (1).

44 Decaux the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State’. It is a restart with another unilateral ‘notification’ to ‘refer the matter again’, the Committee becoming proactive in order to ‘deal with [this] matter’. One legal condition appears for the first time, with the determination ‘that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law’ (para. 3). The ‘mere communication’ on a ‘matter’ to be ‘adjusted’ becomes a ‘case’ to be dealt with after the exhaustion of domestic remedies. But the procedure does not amount to compulsory adjudication. The only automaticity concerns the triggering of ‘good offices’ by an ad hoc Conciliation Commission, the procedure aiming at an ‘amicable solution’ without any constraint. We have to note the careful wording of the Convention, using the ‘flou artistique’ of diplomacy seeking to ‘arrondir les angles’ to smooth the relations, and not the chirurgical qualification of lawyers preparing a contentious file with precise complaints. I think that this very specific smell of conciliation is lost when the information sheet of the ohchr presents it on the general umbrella of ‘complaint procedures’ since the procedural component is reduced to exhaustion of domestic remedies and contradictory fact-​finding, leaving open the full range of an ‘amicable solution’. At this new stage, indeed, the functions of the Committee seem broad. It ‘may call upon the States Parties concerned to supply any other relevant information’ (para. 4), providing for a written proceeding within a pre-​determined time limit. Article 11 also implies oral proceedings with the participation of representatives of the States Parties concerned: ‘When any matter arising out of this Article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to take part in the proceedings of the Committee, without voting rights, while the matter is under consideration’ (para. 5). The French version is also quite ambiguous: ‘Lorsque le Comité examine une question en application du présent article, les Etats parties intéressés ont le droit de désigner un représentant qui participera sans droit de vote aux travaux du Comité pendant toute la durée des débats’. What is the role of these representatives? Clearly, they are not a sort of ‘judge ad hoc’, but are they advocates speaking on behalf of the State or mere observers? And what are the ‘concerned States Parties’, if we compare these words with the logic of Article 63 of the icj Statute about multilateral treaties? Keeping in mind the new Addis Ababa guidelines on impartiality and independence of experts19 –​ excluding the participation of an expert from matters concerning his own 19

A/​67/​222.

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country –​it would be difficult to have State representatives in the room during not only the public pleadings but also during the internal ‘debates’. For the sake of independence and efficiency, private meetings should not be ruled out. Rule 71 gives no other answer than a timetable for notification of the ‘meetings’ of the Committee. There is no indication of a possible solution –​‘to the satisfaction of both parties’ –​at this stage, before the step provided for by Article 12, even if it seems implicit that the States Parties have the right to agree to put an end to the procedure. Yet it seems that there exists an automatic effect in the triggering of the conciliation phase. In the English version, Article 12 states that ‘after the Committee has obtained and collated all the information it deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention’ (para.1 (a)). There are careful provisions regulating the designation of the five members without the agreement of the States within three months: ‘the members of the Commission not agreed upon by the States Parties to the dispute shall be elected by secret ballot by a two-​thirds majority vote of the Committee from among its own members’ (para.1 (b)). In both instances ‘The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties to the dispute or of a State not Party to this Convention’ (para. 2). ‘The Commission shall elect its own Chairman and adopt its own rules of procedure’ (para. 3). The Article deals additionally with administrative and financial matters, without further indication on the functioning of the Commission, which seems disconnected from the Committee with only the channel of the Chairman of the Committee performing a ‘dédoublement fonctionnel’ for the other members of the two bodies. There is no time limit on the work of the Commission:  ‘When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute’ (Article 13 (1)). The States have three months to state ‘whether or not they accept the recommendations contained in the report of the Commission’ (para. 2). The only constraint at the end is the communication of the report to the other States Parties to the Convention, with the ‘declarations of the States Parties concerned’. The rules of procedure of the Committee close a gap in indicating that the President

46 Decaux shall communicate these elements ‘as soon as possible’ to the members of the Committee.20 Article 22 refers to an external procedure of ‘disputes’, complementary to the internal procedure of ‘complaints’ and directly connected to the icj: ‘Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement’. With these two branches, the system is well-​articulated and closed, without any unilateral escape clause. There is only a general reference to the whole UN system, within Article 16: ‘The provisions of this Convention concerning the settlements of disputes or complaints in the field of discrimination laid down in the constituent instruments of, or conventions adopted by, the United Nations and its specialized agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special instrument agreements in force between them’. The complex formula of the cerd is still only an abstract model, but with three inter-​State communications submitted to the Committee in 2018 –​for the ‘first time in history’ since its entry into force fifty years ago21 –​and two new cases registered by the icj in 2017 and in 2018, with some overlapping in the last case, it could become a very different reality (cf. infra). 2) The Optional Model, with a Multi-​Level Conciliation: iccpr, cat The International Covenant on Civil and Political Rights (iccpr) established an optional regime of inter-​State communications, on the basis of a unilateral declaration of acceptance (Article 41), while an Optional Protocol deals with individual communications.22 Since the entry into force of the Covenant and its first Protocol in 1976, a quasi-​judicial regime of individual complaints has prospered with an impressive case law, whereas the inter-​State mechanisms have never become operative. Nevertheless, Articles 41 and seq. are fully part of the Covenant. Formally, there is a big difference with the cerd as the acceptance of the inter-​State complaint is only optional and some States could shy away from accepting this new way of litigation after having –​like France –​ just escaped from the compulsory jurisdiction of the icj. However, once the 20 Rule 78. 21 Press Release of 30 August 2018, the cerd information note on inter-​state communications. 22 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171.

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declaration has been made the legal regime is the same, on the basis of reciprocity, for the network of 54 States who have likewise made the declaration, like the United States, Russia, Ukraine and Belarus. The only practical issue would be to explore why a State Party prefers to trigger the cerd rather than the Covenant on a specific case of racial discrimination.23 On the other hand, the Covenant avoids any mention of a potential role of the icj. The only parallel with the cerd is to be found in Article 44 which inscribes the Covenant in the broader context of human rights protection and pacific settlement of disputes: ‘The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them”. Against this background of decline of the jurisdiction of the icj at the end of the 1960s, the functions of the Committee look reinforced. The legal wording of the Covenant seems stronger than in cerd, dealing expressly in Article 41 with ‘the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant’. The great innovation of the Covenant is to combine the new jurisdiction of the Committee with the former procedure of conciliation established by the prototype of cerd24. Article 41 describes the different steps of an inter-​State case with a period of direct negotiations between the two States concerned and the possibility, after six months for one of these States, to ‘refer the matter to the Committee’. The jurisdiction of the Committee is conditioned by the exhaustion of domestic remedies, as indicated by Article 41 (1 (c)), but also by a new principle of lis pendens introduced by its own rules of procedure, Rule 74 mentioning ‘any other procedure of international investigation or settlement resorted to by the States Parties concerned’.25 But the nature of the functions of the Committee in this matter remains one of ‘good offices’: ‘The Committee shall make available its

23

24 25

Significantly, in October 2006 one State from the Caucasus area made a formal attempt to use Article 41 against Russia, but the Secretariat had to remind that State that it had not made the optional declaration. See Markus Schmidt, in Emmanuel Decaux (ed), Le Pacte international relatif aux droits civils et politiques, (Paris : Economica, 2011) 735. Marc Bossuyt, Guide to the ‘travaux préparatoires’ of the International Covenant on Civil and Political Rights, (Dordrecht: Martinus Nijhoff, 1987) 652–​662. CCPR/​C/​3/​Rev.10.

48 Decaux good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognised in the present Covenant’ (para. 1(e)). In a timely manner the Committee has twelve months to submit a ‘report’, after written and oral submissions of the Parties have been examined in closed meetings. The States Parties concerned ‘shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/​or in writing’ (para. 1(g)). This useful clarification is completed by Rule 82 that excludes the presence of representatives of the Parties during the ‘deliberations of the Committee’. There are two options at this stage: ‘(i) if a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; (ii) if a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report’ (para. 1(h)). If no ‘solution’ is reached a new step is provided for by Article 42 ‘with the prior consent of the States Parties concerned’. In other terms, there is a new optional clause within the general optional clause opening the way for an inter-​State dispute. Article 42 prescribes the appointment of an ‘ad hoc Conciliation Commission’ in charge of restarting the efforts, following the same guidelines as under cerd, in spite of some changes of wording. The Committee confers a mandate on a new body of five members ‘acceptable to the States Parties’. If there is no agreement within three months ‘the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-​thirds majority vote of the Committee from among its members’ (para. 1(b)). However, nothing prevents an agreement on ‘members’ from outside. Only if no such agreement is attained will the ‘pool’ of experts be narrower. In any case, ‘The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under Article 41’, which looks quite redundant! The Commission shall adopt ‘its own rules of procedure’. The proceedings, which may be confidential, shall terminate with a report (para. 7). Yet nothing indicates in the Covenant if this report, which is called a ‘commission’s report’, to be submitted to the Chairman of the Committee, is shared with all the other members of the Committee and if it shall be annexed to the annual report of the Committee on its activities submitted to the General Assembly (Article 45).

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The Conciliation Commission is in charge of a new attempt of good offices, as ‘The good offices of the Commission shall be made available to the States Parties with a view to an amicable solution of the matter on the basis of respect for the present Covenant’ (Article 42 para. 1(a)). A  new time frame of twelve months is prescribed for a ‘report’ to be submitted to the Chairman of the Committee and transmitted to the States Parties concerned. Three options are envisaged: if the Commission is ‘unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter’ (para. 7(a)), leaving implicitly open an eventual prolongation if progress is possible. If an ‘amicable solution to the matter’ is provided, ‘a brief statement of the facts and of the solution reached’ is enough (para. 7(b)). But if not, ‘the Commission’s report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned’ (para. 7(c)). The States have three months to say ‘whether or not they accept the contents of the report of the Commission’ (para. 7(d)), but it is unclear if that response concerns the accuracy of the content or the acceptance of the ‘views’.26 Curiously, the following paragraph of Article 42 underlines that ‘the provisions of this Article are without prejudice to the responsibilities of the Committee under Article 41’ (para. 8). Anyway, it is an open-​ended process, with a six month period of direct negotiations, followed by ‘good offices’ of the full Committee during one year, and another potential set of ‘good offices’ performed by an ‘ad hoc conciliation commission’ of five members, during another year, before a last period of reflexion of three months, without any further constraint other than, possibly, bad publicity. Obviously, inter-​State communications are still of a very different nature than individual communications under the Optional Protocol, and States should not be shy to engage in this multilevel conciliation procedure while keeping at each step the first and the last word. Mutatis mutandis, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984,27 offers the same 26

27

The word ‘views’ used being the same as for individual cases, as in French, with ‘constatations’, while Article 13 of the cerd mentioned only ‘recommendations’ in both languages. Cf. Julian Fernandez, in Emmanuel Decaux (ed), Le Pacte international relatif aux droits civils et politiques (fn. 23) 746; and Manfred Nowak. U.N. Covenant on Civil and Political Rights, 2nd ed. (Kehl am Rhein: Engel, 2005). Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 unts 85.

50 Decaux formula with its Article 21 on the basis of an optional declaration dependent on the principle of reciprocity. This network covers 62 States Parties, among them France, Russia, Ukraine and the United States. Subject to the same methodology as within the Covenant but interpreted with more smoothness, ‘the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect of the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission’ (para. 1(e)). However, the cat gives no other indications about the ad hoc mechanism and its relationship with the Committee. It is only the Committee that is tasked with providing a report within one year. In fact, the rules of procedure are a mere paraphrase of Article 21, showing that the whole edifice is only virtual, contrary to the legal niceties provided by the cerd and the Covenant.28 The conciliation procedure still enshrined in its principle in the cat seems to fall away, without a user-​friendly ‘mode d’emploi’. One last avatar of this formula is enshrined in the Convention on the Protection of the Rights of all Migrant Workers and Members of their Family, adopted in 1990.29 Article 76, on the basis of an optional declaration and subject to reciprocity, establishes an inter-​State procedure in which ‘the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the present Convention’ (para. 1(d)). All the provisions of the Article are cut and pasted from the previous treaties, with one big difference, however: there is no opening on the creation of an ‘ad hoc conciliation commission’, not even in respect of one specific instance like in the cat. The good offices function is confined inside the Committee.30 3) The New Trend of Inter-​State Complaints With the International Convention for the Protection of All Persons against Enforced Disappearance adopted in 2006 we have a very innovative instrument, in several respects, which sums up the lessons of good practices and bad experiences in the treaty bodies system.31 While Article 31 dealing with

28 29

CAT/​C/​3/​Rev.6. Convention on the Protection of the Rights of all Migrant Workers and Members of their Family, 18 December 1990, 2220 unts 3. 30 The Committee on the rights of migrant workers postponed the adoption of rules of procedure while waiting for the entry into force of Article 76 after ten declarations. 31 International Convention for the Protection of All Persons against Enforced Disappearance, 20 December 2006, 2716 unts 3.

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individual communications is precise about criteria of admissibility and interim measures, Article 32 about inter-​State complaints is quite short, examining only the jurisdiction of the Committee: ‘A State Party to this Convention may at any time declare that it recognizes the competence of the Committee to receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under this Convention. The Committee shall not receive communications concerning a State Party which has not made such a declaration, nor communications from a State Party which has not made such a declaration’. The wording ‘to receive and consider communications’ is the same as that used for individual communications in Article 31, implying the same quasi-​ jurisdictional competence. But the rules of procedure of the Committee have kept the traditional function of good offices: ‘(…) the Committee shall proceed to make its good offices available to the States Parties concerned with a view to a friendly solution to the matter on the basis of respect for the obligations provided for in the Convention’.32 In the same matter, a written procedure is envisaged in concertation with the States Parties concerned under the headline: ‘request for information’. And finally, the Committee ought to produce a ‘report’: ‘If a solution within the terms of rule 85 of these rules is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; if a solution within the terms of rule 85 of these rules is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them’.33 We can consider that even if the provisions of the treaty were not explicit, Article 32 being added at the last minute to the draft, it creates a quasi-judicial competency;34 in fact, the rules of procedure were adopted by the Committee at its first session on the basis of comparative documentation for the sake of harmonization between the various treaty bodies. At this stage, without any case law to illustrate it, this interpretation looks quite conservative. More recently, two optional protocols try to establish new functions for treaty bodies, systematizing the system of communications in the spirit of the Vienna Declaration and programme of action adopted by the World Conference on Human Rights in 1993. This multiplication of parallel ways created by 32 33 34

CED/​C/​1, rule 85. Ibid., rule 87. E/​CN.4/​2006/​57, para. 64.

52 Decaux ricochet the need to reinforce harmonization and coordination in the whole system. These new steps are very interesting for inter-​State complaints as well as for individual communications. The most expected new instrument was the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly in 2008,35 with a view to restoring the symmetry between the components of the ‘International Bill of Human Rights’.36 The application of Article 10 of the Protocol is subject to a declaration reinforcing the voluntary and reciprocal nature of the procedure of inter-​State communications as an optional mechanism inside an optional protocol. From 24 ratifications, we have only five declarations under Article 10, those of Belgium, El Salvador, Finland, San Marino and Portugal. Anyway, Article 10(1) ought to be quoted as the illustration of the current state of the art for inter-​State procedures: If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter. After six months, ‘either State shall have the right to refer the matter to the Committee’ by a notification which, according to Rule 37(2) of the Provisional Rules of Procedure, shall contain information regarding three items: (a) Steps taken to seek adjustment of the matter in accordance with Article 10, paragraphs 1 (a) and (b), of the Optional Protocol, including the text of the initial communication and of any subsequent written explanations or statements by the States Parties concerned which are pertinent to the matter;

35 36

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008. Emmanuel Decaux, in the colloquium of the Commission nationale consultative des droits de l’homme (cncdh) ‘La Charte internationale des droits de l’homme, cohérence et complémentarité’, in : La Déclaration universelle des droits de l’homme 1948–​2008, Réalité d’un idéal commun  ? Les droits économiques, sociaux et culturels en question (Paris  :  La Documentation française, 2009) 41.

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(b) Steps taken to exhaust domestic remedies; (c) Any other procedure of international investigation or settlement resorted to by the States Parties concerned.37. Subject to exhaustion of domestic remedies, ‘the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Covenant’ (para. 1(d)). Finally:



The Committee shall, with all due expediency after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows: (i) If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; (ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written ­submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them” (para. 1(h)).

While Article 10 of the Protocol never refers to conciliation as such, Rule 43 adds a very interesting element combining good offices by the Committee and conciliation by a new body: 1. (…) the Committee shall proceed to make its good offices available to the States Parties concerned with a view to reaching a friendly solution of the matter on the basis of respect for the obligations provided for in the Covenant. 2. For the purpose indicated in paragraph 1 of this Rule, the Committee may, as appropriate, establish an ad hoc conciliation commission.38 This resurgence of the ad hoc commission is quite strange, as a sort of phantom limb, as since the cat in 1984, this institution seemed to have been largely forgotten in law and practice. On the contrary, the idea of good offices was

37 38

E/​C.12/​49/​3, Provisional Rules of Procedure adopted in 2012. The Committee is currently revising its rules of procedure. Ibid.

54 Decaux extended to individual cases, with an explicit provision about friendly settlement in Article 7 of the Protocol. The Third Protocol to the Convention on the Rights of the Child was adopted in 2011 in order to establish a communication procedure dealing with the provisions of the Convention and its thematic Protocols.39 Its Article 12 on ‘Inter-​State communications’ is subject to a declaration. The provisions are very succinct, paragraph 3 stressing once again ‘good offices’ on the basis of respect for the obligations set forth in the Convention or its Protocols. There are no legal niceties even about admissibility in Article 12, but the rules of procedure, following the same pattern as for the Optional Protocol to the Covenant on Economic, Social and Cultural Rights, contain an express mention in Rule 47(2) of the establishment ‘as appropriate’ of an ad hoc conciliation commission.40 At the end of this inventory, we find everywhere the same mention of ‘good offices’ with ‘a view to a friendly solution of the matter’, in conformity with the obligations inscribed in the treaty, that could look like trying to square the circle. With the recent protocols the very specific formula of inter-​State complaints seems stabilized, whereas the reference to ‘ad hoc conciliation’ either as a rigidly codified step (cerd, icppr) or as an open option for the cat, reappears timidly in the rules of procedure of the two last optional protocols (ipesc and crc). According to the United Nations Model Rules for the Conciliation of Disputes between States adopted in 1996, the ‘fundamental principle’ of conciliation is to establish a commission of 3 or 5 members, in order that ‘the commission, acting independently and impartially, shall endeavour to assist the Parties in reaching an amicable settlement of the dispute’ (Article 7). On this basis, ‘the recommendations of the commission will be submitted to the Parties for consideration in order to facilitate an amicable settlement of the dispute. The Parties undertake to study them in good faith, carefully and objectively’ (Article 21(1)).41 Once again conciliation is not only a friendly method, it is a well-​defined institution. We could conclude that good offices is everywhere, in the spirit of the omnipresent ‘constructive dialogue’ with States Parties, while conciliation as such seems mostly confined to the past. But the past can be awakened.

39 40 41

Third Protocol to the Convention on the Rights of the Child on a communications procedure, 19 December 2011. CRC/​C/​62/​3. GA Res/​50/​50, 11 December 1995, annex.

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55

The Actuality of These Formulae of Inter-​State Dispute

The second part should be shorter than the first. First of all due to lack of practice. The triggering of the various procedures just described is quite recent, with the invocation of cedaw as a basis of jurisdiction of the icj in the rdc v. Rwanda case, which it dismissed in 2006.42 The cerd was invoked by Georgia in its dispute against the Federation of Russia when it requested the indication of provisional measures based on prima facie jurisdiction.43 However, in its judgment of 1 April 2011 on preliminary exceptions the Court dropped the case as inadmissible, while a parallel case was registered by the European Court of Human Rights.44 In its Decision of 13 December 2011 dealing with the case introduced by Georgia against the Russian Federation on 12 August 2008, the European Court had to deal with the ‘similarity’ of the two procedures about the recent military conflict between the two States Parties, on the basis of Article 35 paragraph 2 of the Convention which provides that ‘The Court shall not deal with any application submitted under Article 34 that (…) (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’. From the start, Russia underlined that Georgia ‘had conceded that the applications lodged with those two international courts concerned essentially the same dispute. The respondent Government specified that, in particular, the complaints lodged under Article 14 taken in conjunction with other provisions of the Convention –​concerning alleged discriminatory attacks directed against civilians of Georgian origin –​ were outside the scope of the present application because they were not based on the Convention and were already the subject of examination by the icj. As the Court could not examine those issues, which were important for an understanding of the case as a whole, it should not examine the events related to them. Following the judgment delivered by the icj on 1 April 2011, the respondent Government informed the Court that the procedure before the icj 42 43 44

icj, Judgment of 3 February 2006, Armed Activities on the Territory of Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), icj Reports 2006, 6, at 39, para 87. icj, Order of 15 October 2008, Application of the International Convention against All Forms of Racial Discrimination (Georgia v. Russian Federation), Request for the indication of provisional measures, icj Reports 2008, 353. icj, Judgment of 1 April 2011, Application of the International Convention against All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary objections, icj Reports 2011, 70.

56 Decaux had come to an end and that the case brought before it by the applicant Government would not be examined on the merits’.45 On the other hand, Georgia submitted that Article 35 paragraph 2 (b) did not apply to inter-​State applications. Even if that were not so, the applications lodged with the Court and the icj concerned different issues: whilst the heart of the case before the icj concerned the discriminatory acts of which Georgian nationals were victims on account of their ethnic origin, attacks on civilians on the basis of their Georgian ethnic origin did not at this stage appear among the violations alleged before the Court (paragraph 57 above). Similarly, the period in question was not the same one because the application before the Court essentially concerned violations perpetrated during the war of August 2008 and the immediate aftermath whereas the period concerned by the case before the icj had begun in 1999. Accordingly, each of the two international courts had jurisdiction to hear the dispute brought before it. The applicant Government pointed out that since the judgment of the icj of 1 April 2011, negotiations were under way between the Parties regarding a possible intervention by the cerd regarding the dispute existing between them. That did not in any way invalidate the arguments set out above, however, particularly the fact that the subject of the two disputes was entirely different’.46 It is worth noting this attempt to use the ‘good offices’ of the cerd as there is no indication of these negotiations in the UN reports. Wisely the European Court waited and saw the decision of the World Court, observing ‘that in a judgment of 1 April 2011 the icj held that it did not have jurisdiction to entertain the application lodged with it by Georgia on 12 August 2008 under the icefrd (…). ‘It is undisputed between the Parties that the procedure before that international court has accordingly come to an end. Besides that, it is clear from the explicit wording of Article 35 paragraph 2 of the Convention that it applies only to individual applications’.47 The Court took the decision to dismiss the objection, and, on another ground, to join the issues of admissibility with the merits, taking its time again, but having public hearings on 23 May 2018.48 45 46 47 48

echr, Grand Chamber, Georgia v.  Russian Federation ii (38263/​08), Decision of 13 December 2011, para. 77. Ibid., para 78. Ibid., para 79. Meanwhile the Court dealt with the first case concerning collective expulsion of Georgians, introduced on 26 March 2007 (13255/​07), with a decision on admissibility taken on 30 May 2009, a Judgment about merits of 3 July 2014 ending with a Judgment on just satisfaction on 31 January 2019. A new inter-​State application was introduced by Georgia against Russia on 22 August 2018 (39611/​18) about systemic violations of human rights in

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Two new cases are pending before the icj, adding an element of uncertainty to the issue, with recycled arguments by the lawyers of both sides. The first one was introduced on 16 January 2017, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) and the other on 11 June 2018, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates).49 But the legal strategies of the requesting States are very different since Ukraine bypasses the Committee to go directly to The Hague, while Qatar tries to make a double application, before the Committee and before the Court. In the meantime, the European Court is very busy with the crisis between Ukraine and Russia. Several inter-​States complaints are pending, since March 2014 and the Grand Chamber decided in 2018 to regroup them into two ‘geographical’ cases, one about Crimea and the other about Eastern Ukraine.50 Public hearings about the status of Crimea were held on 11 September 2019. There are also more than 4,000 individual complaints, several cases whose consideration is postponed waiting the adjudication of the inter-​States cases about the issue of the principle of jurisdiction on the basis of Article 1 of the Convention.51 But there are also new individual complaints against Ukraine or Russia, like those from relatives of the victims of the downing of the flight of Malaysian Airlines MH17,52 which is one of the issues pending before the icj with new risks of factual or legal inconsistency (cf. infra). 1) The New Inter-​State Communications before the cerd At the same time, three inter-​State communications were submitted to the Committee against Racial Discrimination under Article 11 of the cerd in 2018. On 8 March 2018, the State of Qatar submitted an inter-​State communication against Saudi Arabia as well as another inter-​State communication against the United Arab Emirates (uae). On 23 April 2018, the State of Palestine submitted an inter-​State communication against Israel. In May 2018, the Committee

49 50 51 52

Abkhazia and South Ossetia. Significantly, Georgia seems to rely on the Strasbourg Court, without wagering at the same time its cause before the International Court of Justice. icj Annual Report 2017–​2018, A/​73/​4. echr, Ukraine v. Russia (re Crimea), 14 March 2014, (20958/​14) and Ukraine v. Russia (re Eastern Ukraine) (8019/​16). Press Release echr 174 (2018), 9 May 2018. There are other inter-​States cases for more recent events. Press Release echr 432 (2018), 17 December 2018. echr, Ioppa and al v. Ukraine (73776/​14) and Ayley and al, v. Russia (25714/​16).

58 Decaux decided to transmit those three communications to the respective States concerned; the deadline for response was set as 7 August 2018.53 This time frame was dictated by the calendar of sessions of the Committee. The uae and Israel submitted their responses within the deadline, and the Committee decided to transmit the responses to the submitting States. The communiqué added: ‘The Committee also granted the request from Saudi Arabia for an extension of 30 days. Once the response from Saudi Arabia is received, the Committee decided that it will then be transmitted to Qatar’.54 After this first formal exchange with the Committee as a go-​between, one Party could trigger the process under Article 11 which gives them six months, ‘to refer the matter again’ according to Article 11(2). ‘Consequently, if one of the States refers the matter again to the Committee before 8 November 2018, the Committee will have to consider the admissibility of the communication. The Committee also has to ascertain that all available domestic remedies have been exhausted. Moreover, the Committee may call upon the States Parties concerned to supply any other relevant information. According to Article 11(5), the States Parties concerned are entitled to send a representative to take part in the proceedings of the Committee, without voting rights. In view of these provisions, the Committee will not be in a position to deal with the preliminary issues such as jurisdiction and admissibility before its 98th session that will take place in April/​May 2019’.55 It looks like a ‘race of slowness’ between the cerd and the icj although the case Qatar v. uae ‘with regard to alleged violations of the same Convention’ is considered ‘noteworthy’ in the information note.56 During its 97th session held at the end of 2018, the Committee made an assessment of the three cases, in similar terms. ‘Being aware that the matter has not been adjusted to the satisfaction of both Parties’, it acknowledges that the demanding State ‘has referred the matter again to the Committee in accordance with Article 11(2) of the Convention’ and decides to request the other Party to ‘supply any relevant information on issues of jurisdiction of the Committee or admissibility of the communication, including the exhaustion of all available domestic remedies’. The Committee decides to ‘examine any preliminary question at its 98th session’, inviting ‘the States Parties concerned to appoint one representative to take part in the proceedings before the Committee without voting rights, while the matter is under consideration’, during 53 54 55 56

cerd information note on inter-​state communications, 30 August 2018. Ibid. Ibid. Ibid.

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two rounds, the first of 45 minutes for each appointed representative and ‘in rebuttal for a further period of 15 minutes’.57 There is no information about the substance of the communications or the follow up of these hearings, which took in May 2019. At the end of its session, a press release indicated that ‘The Committee had examined three inter-​State communications submitted under Article 11 of the Convention: one by Qatar against Saudi Arabia; one by Qatar against the United Arab Emirates; and another by the State of Palestine against Israel. While it had held hearings on these communications, the Committee had decided not to take any decisions, due to the legal complexity of the issues broached and a lack of resources’.58 The ‘consideration of communications under Article 11 was inscribed as an item in the Agenda of the 99th session held in August 201959 but the convocation of the 100th session at the end of the year is put in jeopardy by the ohchr itself, due to the ‘lack of resources’.60 This is not an administrative context very helpful for the strengthening of the political mission of the Committee in the field of good offices. The United Nations Model Rules for the Conciliation of Disputes between States61 insist on confidentiality, and their chapter 9 is related to the ‘preservation of the legal position of the Parties’: ‘Except as the Parties may otherwise agree, neither Party shall be entitled in any other proceedings, whether in a court of law or before arbitrators or before any other body, entity or person, to invoke any views expressed or statements, admissions or proposals made by the other Party in the conciliation proceedings, but not accepted, or the report of the commission, the recommendations submitted by the commission or any proposal made by the commission, unless agreed to by both Parties’ (Article 28(1)). It is one thing to keep confidential the bargaining of States Parties and another to indicate the official attempt at friendly conciliation. Such transparency is even more important with regard to the various procedures which could be involved, in order to avoid overlapping and inconsistency. 57 58 59 60

61

ICERD-​ISC 2018/​1 (Qatar v. Kingdom of Saudi Arabia) ICERD-​ISC 2018/​2 (Qatar v. United Arab Emirates), ICERD-​ISC 2018/​3 (State of Palestine v. State of Israël), 14 December 2018. icerd, Press Release, 5 May 2019. CERD/​C/​99/​1. As the representative of the ohchr said publicly during her opening statement at the 126th session of the hrc, on 1 July 2019: ‘The chairs of the treaty bodies were informed of the possible cancellation of treaty body sessions scheduled for later this year (…). The High Commissioner addressed this issue with the Secretary-​General. They are both doing their utmost to minimize the potential unprecedented impact of the financial cuts on the treaty bodies system, and to ensure that the third sessions of treaty bodies be held this year’. UN GA Res 50/​50, 11 December 1995.

60 Decaux The Committee took important steps with a set of decisions adopted on 30 August 2019. Dealing separately with jurisdiction and admissibility in the two Inter-​State complaints triggered on 8 March 2018 by Qatar against uae62 and Saudi Arabia63, the Committee decided to ‘request its Chairperson to appoint in accordance with article 12 (1) of the Convention, the members of an a hoc Conciliation Commission which shall make its good offices available to the States concerned with a view to an amicable solution of the matter’.64 For the first time these decisions give a clear view of the process, with a timeframe and an ‘inventory of the submissions’. Both decisions on jurisdiction provide a detailed summary of the communications by the applicant State and by the respondent State, before narrowing the scope: ‘Since the issue of jurisdiction of the Committee has to be settled before the Committee can examine the admissibility of the Inter-​State communication, only the arguments developed on that issue will be developed below’.65 The main issues put forward by the UAE were the alleged lack of jurisdiction due to the ‘absence of prohibited treatment based on current nationality’, and accessorily ‘the absence of current violations’. As the first ground invoked ‘raises a question of interpretation of the basic concept of racial discrimination as prohibited by the Convention’, the Committee considers that ‘this question raises the preliminary issue of its competence ratione materiae. It does not affect the jurisdiction of the Committee and has to be examined when dealing with the question of the admissibility of the communication’.66 Dealing with the same issue in the case against Saudi Arabia the Committee is quicker to reach the same conclusion,67 but one wonders whether separability of decisions with such a merry-​go-​round of legal niceties is conceivable. Coming back to the same topic as a preliminary exception concerning the inadmissibility of the communication, the Committee clarified its doctrine. On the basis of ‘its subsequent practice, the Committee has repeatedly called on States Parties to address instances of discrimination against non-​citizens

62 63 64 65 66 67

CERD/​C/​99/​3, (Jurisdiction of the Inter-​State communication submitted by Qatar against the United Arab Emirates); CERD/​C/​99/​4 (Admissibility of the Inter-​State communication submitted by Qatar against the United Arab Emirates). CERD/​C/​99/​5 (Jurisdiction of the Inter-​State communication submitted by Qatar against the Kingdom of Saudi Arabia); CERD/​C/​99/​6 (Admissibility of the Inter-​State communication submitted by Qatar against the Kingdom of Saudi Arabia). CERD/​C/​99/​4, § 65 and CERD/​C/​99/​6, § 23. CERD/​C/​99/​3, § 32. Ibid., §§ 6–​57. CERD/​C/​99/​5, § 52.

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on the basis of their nationality’68 and ‘considers itself competent to examine whether such differences pursue a legitimate aim, are proportional to the achievement of this aim and do not result in a denial of fundamental human rights of non-​citizens’.69 The other grounds of inadmissibility are classical, with the exhaustion of local remedies and the existence of ‘parallel proceedings’. Following the international case law from the icj as well as from the echr, the Committee ‘considers that exhaustion of domestic remedies is not a requirement where a “generalized policy and practice” has been authorized’ and ‘decides that the exception of no-​exhaustion of domestic remedies has to be examined jointly with the examination of the merits of the communication’.70 The ‘existence of concurrent proceedings’ is more challenging but the Committee is very careful to avoid overlapping with the ongoing case between Qatar and uae in front of the icj: ‘Moreover the Committee, an expert monitoring body entitled to adopt non-​binding recommendations is not convinced that a principle of lis pendens or electa une via is applicable which should rule out proceedings concerning the same matter by a judicial body entitled to adopt a legally binding judgment’.71 The cases are now in the hands of the Chairman of the Committee, president Amir, and the Committee shall have to establish two ad hoc Conciliation Commissions during its 100th session of December 2019, in order to ‘fully consider the matter’ and to submit ‘a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute’, according to Article 13 of the Convention. 2) The Case Law of the icj on the Basis of cerd: Georgia v. Russia The dispute between Georgia and Russia introduced after the war of 2008 was the first opportunity to consider the cross-​relationship between Article 11 and Article 22 of cerd. The request of Georgia was filed on 12 August 2008 and followed by a request for the indication of provisional measures presented on 14 August and modified on 25 August 2008. After four hearings in September, the Court adopted an Order on the Application of the International Convention on All Forms of Racial Discrimination (Georgia v. Federation of Russia) case, on 15

68 69 70 71

CERD/​C/​99/​4, § 58. Cf. General Recommendation n°30. Ibid., § 63. Mutatis mutandis, CERD/​C/​99/​6, § 19. Ibid., §§ 40–​41. Ibid., § 49.

62 Decaux October 2008.72 While counsel for Russia, Alain Pellet, argued forcefully ‘that in any event the preconditions for seisin of the Court laid down by Article 22 of the cerd had not been satisfied’,73 the Court did not focus on these arguments at this prima facie examination of its jurisdiction. The Court seemed eager to avoid any proper exegesis of Article 22: ‘Whereas the structure of Article 22 of cerd is not identical to that in certain other instruments which require that a period of time should have elapsed or that arbitration should have been attempted before initiation of any proceedings before the Court’ says the Order in a vague argument a contrario, adding immediately without any logical reasoning: ‘Whereas the phrase “any dispute … which is not settled by negotiation or by the procedure expressly provided for in this Convention” does not, in its plain meaning, suggest that formal negotiations in the framework of the Convention or recourse to the procedure referred to in Article 22 thereof constitute preconditions to be fulfilled before the seisin of the Court; whereas however Article 22 does suggest that some attempt should have been made by the claimant Party to initiate, with the respondent Party, discussions on issues that would fall under cerd’.74 At the same time, the Court does not seem embarrassed by short-​circuiting cerd: ‘whereas the fact that cerd has not been specially mentioned in a bilateral or multilateral context is not an obstacle to the seisin of the Court on the basis of Article 22 of the Convention’.75 In its eagerness to side-​line alternative methods for settlement of disputes, the Court avoids any reference to the conciliation provided for in detail by Articles 11 and seq.: ‘Whereas Article 22 also refers to “the procedures expressly provided for” in the Convention; whereas according to these procedures “if a State Party considers that another State Party is not giving effect to the provisions of this Convention” the matter may properly be brought to the attention of the Committee on the Elimination of Racial Discrimination; whereas the Court notes that neither Party claims that the issues in dispute have been brought to the attention of the Committee’.76 Without any further argument, the Order concludes: ‘Whereas the Court, in view of all the foregoing, considers that, prima facie, it has jurisdiction under Article 22 of cerd to deal with the case to

72 73 74 75 76

icj, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v; Russian Federation), Order, 15 October 2008, icj Reports 2008, 353. CR 2008/​23, para. 24, with reference to the travaux préparatoires. icj Order, para. 114. Ibid., para. 115. Ibid., para.116.

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the extent that the subject-​matter of the disputes relates to the “­interpretation or application” of the Convention’.77 The issue is not the respect of international humanitarian law, but the Court addresses provisional measures to both Parties, even if Russia does not file a demand against Georgia, as observed by judge ad hoc Giorgio Gaja in a declaration.78 The Order adopted by eight judges against seven, with a very embarrassing political divide, was a Pyrrhic victory as the Court had to come back to its jurisdiction after further examination thirty months later. In its judgment delivered on 1 April 2011, the Court had to examine the four preliminary objections presented by the Federation of Russia. After having found the existence of a dispute between the Parties the Court focused on the second objection about the ‘preconditions’ established by Article 22 cerd. For Georgia, Article 22 implied ‘no affirmative obligations’ (positive obligations) for a State Party and, in any event, the conditions were alternative and not cumulative, as indicated by the word ‘or’. For Russia the conditions were preconditions, cumulative and consecutive.79 But the judgment did not have to adjudicate all the arguments presented since the Court concluded, by 10 against 6, that there had been an absence of negotiations. The individual opinion of Judge Greenwood  –​the new English judge who was part of the majority  –​underlined the necessity for a technical negotiation about the ‘application and interpretation’ of the cerd as provided by Article 22, and not only of political negotiations during a bilateral crisis. By contrast, the collective dissenting opinion of the six judges of the minority –​led by president Owada, with Judges Simma, Abraham and Donoghue, and Judge ad hoc Gaja –​regretted the U-​turn of the Court and considered that the conditions ought to be ‘applied realistically and substantially’ and not in a ‘formal manner’. The Court made great efforts to link the Judgment with the Order, insisting on its prima facie character, but its argument on the ‘ordinary meaning’ (‘sens ordinaire’) of Article 22 is presented as so obvious80 that resort to the travaux préparatoires as supplementary means of interpretation would be superfluous and was made only to answer the ‘extensive arguments’ of both Parties. ‘The

77 78 79 80

Ibid., para. 117. Furthermore one could wonder about the usefulness of these provisional measures as the European Court of Human Rights was also dealing with the substantial issue under a broader jurisdiction. icj, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment, 1 April 2011, icj Reports 2011, 70, para 119. Ibid., icj Reports 2011, 70, para. 141.

64 Decaux Court notes that at the time when cerd was being elaborated, the idea of submitting to the compulsory settlement of disputes by the Court was not readily acceptable to a number of States. Whilst States could make reservations to the compulsory dispute settlement provisions of the Convention, it is reasonable to assume that additional limitations to resort to judicial settlement in the form of prior negotiations and other settlement procedures without fixed time-​limits were provided for with a view to facilitating wider acceptance of cerd by States’.81 In its Judgment the Court did not need to settle the issue concerning the nature of the preconditions, limiting its examination to the question of negotiations and leaving open the alternative procedures expressly provided for in cerd, with a further interpretation of Article 11 and seq. But the joint dissenting opinion of the minority provides an interesting analysis of the logical consequences of the conjunction ‘or’, as a key of the debate between alternative or cumulative preconditions: ‘The point of this text cannot be to require a State to go through futile procedures solely for the purpose of delaying or impeding its access to the Court. The end sought is not purely one of form; if we look at it from the perspective taken by the Court, the rule has a reasonable aim, to reserve judicial settlement for those disputes which cannot be settled by an out-​of-​court means based on arguments between the Parties. Still for this condition to be met, the applicant must have made the necessary efforts to attempt to settle the dispute, if it seems reasonably possible, by recourse to means enabling the Parties to reach agreement, leaving the Court to act as the last resort. If the text is understood in these terms, it becomes illogical to consider the two modes referred to in Article 22 as necessarily cumulative. Each mode ultimately depends on an understanding between the Parties and their desire to seek a negotiated solution. This is obvious in the case of ‘negotiation’ and it is equally true for the “procedures expressly provided for” in Part ii of the cerd. The Committee established by the Convention has no power to impose a legally binding solution on the disputing States. It can only encourage the States to negotiate with each other (Art. 11); then, when there have been no negotiations or unsuccessful negotiations, it can appoint a conciliation commission to make recommendations (Art. 13) to be communicated to the Parties, which then make known whether or not they accept them. Ultimately, a favourable outcome depends on the readiness of the Parties to come to an agreement, in other words, on their willingness to negotiate. Consequently where a State has already tried, without success, to negotiate directly with 81

Ibid., para. 147.

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another State against which it has grievances, it would be senseless to require it to follow the special procedures in Part ii, unless a formalism inconsistent with the spirit of the text is to prevail. It would make even less sense to require a State which has unsuccessfully pursued the intricate procedure under Part ii to undertake direct negotiations destined to fail before seising the Court’.82 The argument seems forcefully logical, but it side-​lines the proper role of the Committee as ‘watch dog’ of the Convention, making the jurisdiction of the Court a ‘voie royale’. There is negotiation and negotiation: negotiation within the ‘intricate procedure’ of Part ii, is not the same as direct negotiation in order to frame the legal dispute in front of the Court. It is an oversimplification to affirm that ‘direct negotiation and referral to the Committee are two different ways of doing the same thing’83, without any consideration of the components of Part ii and of the functions of the Committee within an inductive time frame. The missing piece of the Judgment as well as of the ‘Minority Report’ is the interpretation of the Part ii of the cerd, as a previous requisite and not as a sort of afterthought of Article 22. We need to read Article 11 before Article 22. That was clearly expressed by the Memorial of Russia: ‘Not only does Article 22 require that there be a dispute prior to seisin of the Court; it requires that this dispute be crystallized to the extent provided for in Article 11 of cerd’.84 It is important to underline the unique nature of judicial adjudication, with a legally binding decision, but non-​judicial and even non-​quasi-​judicial means of settlement cannot be dismissed as mere impediments. Between direct negotiation and jurisdiction of the Court there are alternative tools such as the channel of the cerd, to be used with imagination and flexibility. 3) The Case Law of the icj on the Basis of the cerd: Ukraine v. Russia More recently, on 16 January 2017, Ukraine filed an application against the Russian Federation on two legal bases, the International Convention for the Suppression of the Financing of Terrorism (icsft) in relation with the shooting of flight MH17 of Malaysian Airlines, and the cerd, requesting the same day provisional measures. The Order of 19 April 2017 on provisional measures, delivered after public hearings from the 6 to 9 of March, had to consider the prima facie competence of the Court, particularly in respect of the existence of a dispute and the ‘procedural preconditions’ of Article 22.85 82 83 84 85

Joint diss. op., icj Reports 2011, 142, para. 43. Ibid., para.44. Memorial, 1 December 2009, 56, para .3.33. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Order, 19 April 2017.

66 Decaux The Russian Federation stressed the importance of Articles 11 to 13 of the cerd as a ‘specific procedure for bringing State to State complaints before this Committee’, invoking also the new development in the form of an ‘urgent action procedure’ established by the Committee.86 Russia recalled the historical context of the cerd: ‘It observes that the Court had recognized in its jurisprudence that, at the time cerd was being elaborated, the idea of submitting to the settlement compulsory of disputes by the Court was not readily acceptable to a number of States, which explains why additional limitations to resort to judicial settlement –​in the form of prior negotiations and other settlement procedures without time-​limits –​were provided for with a view to facilitating wider acceptance of cerd by States’.87 For Russia these two pre-​conditions were cumulative whereas for Ukraine they were alternative. The Order does not give an answer, leaving open the issue at this moment:  ‘Article 22 of cerd also refers to the “procedures expressly provided for” in the Convention. According to Article 11 of the Convention, “[i]‌f a State Party considers that another State Party is not giving effect to the provisions of this Convention’, the matter may be brought to the attention of the cerd Committee”. Neither Party claims that the issues in dispute have been brought to the attention of the cerd Committee. Although both Parties agree that negotiations and recourse to the procedures referred to in Article 22 of cerd constitute preconditions to be fulfilled before the seisin of the Court they disagree as to whether these preconditions are alternative or cumulative. The Court considers that it need not make a pronouncement on the issue at this stage of the proceedings’.88 The issue will be further examined in connection with the admissibility of the case, the Court deciding provisional measures on the basis of its prima facie competence for the cerd, by a vote of 13 against 3. An Order of the President of 12 May 2017 established the time frame for the written proceedings during the next 26 months. Thus, within four years, as calculated by Judge Tomka in his Declaration, we could perhaps know the answer about the nature of the preconditions. Meanwhile a new Order of the President was issued on 17 September 2018 after the transmission of the memorial of the Ukraine, due to preliminary exceptions raised by Russia concerning jurisdiction and admissibility. The proceedings on the merits are suspended and a time limit is fixed for the ‘other Party’ to present within four months, by 14

86 87 88

icj Order, para. 58. Ibid., para. 59. Ibid., para. 60.

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January 2019, a written statement of its observations and submissions on the preliminary objections.89 Public sittings took place in June 2019. The debates turned around the two titles of jurisdiction invoked by the Ukraine. For ambassador Lobach, the Russian agent, ‘Ukraine is seeking to use the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination as a device to bring a wider set of issues before the Court’90, and especially to challenge the annexion of Crimea and intervention in the Donbass. On the contrary, Russia underlines its own attachment to the cerd and the significance of the case ‘for the integrity of the Convention, for the harmonious and depoliticized use of its monitoring mechanisms and ultimately for the attainment of its goals’91 while ‘Ukraine’s attempts to bypass the preconditions are not only inconsistent with the Convention’s provisions but also detrimental for the Convention’s regime and for the rights it is protecting’.92 In end effect, the request of Ukraine would result in the transformation of the icj into a ‘Court of first instance’ and the ‘marginalization of the cerd monitoring system’.93 On a technical level, counsel for Russia, Alain Pellet described again the preconditions enshrined in the cerd, as a ‘procedure à double détente’, the Committee shaping the case for the Court, in order to ease its work.94 For Russia, as already indicated in its memorial, ‘conciliation under cerd cannot be regarded as a simple forum for negotiation. Its function is not only to encourage and structure the Parties dialogue but also to provide factual and legal findings and to recommend a settlement. Third-​party intervention is thus institutionalised here in a way comparable to inquiry or arbitration. The written and oral phases are as well as the general organisation of the proceedings envisaged in Article 12 of the Convention are also reminiscent of arbitration’.95 89

90 91 92 93 94 95

In its Written Statement of Observations, filed on 14 January 2019, Ukraine gave more emphasis to the jurisdiction over claims under the terrorism financing convention (pp.21–​ 140) –​which imply support to illegal armed groups that engage in acts of terrorism as well as the shooting down of Malaysian Airlines Flight MH17 –​than to jurisdiction under the cerd (pp.142–​208) –​with the ‘deliberate campaign of culture erasure beginning with the invasion and referendum’ in Crimea, ‘amid a climate of violence and intimidation against non-​Russian ethnic groups’. Cf. also A/​73/​4, section 13, 38. icj, CR 2019/​09, 15, para 8. icj, CR 2010/​09, 47, para 2. icj, CR 2019/​09, 47, para 3. icj, CR 2019/​09, 48, para 5–​6. icj, CR 2019/​09, 61, para 26; and CR 2019/​11, para 39 et sq. For Alain Pellet ‘le Comité déblaie le terrain’ …. icj, Preliminary Objections submitted by the Russian Federation, 194, para 385.

68 Decaux The agents and counsel for Ukraine on the contrary insisted on the emergency of the crisis, tantamount to ‘massive violations’ of the cerd, with discrimination against the Crimean Tatar and Ukrainian communities,96 leaving no time for lengthy ‘procedural prerequisites’. Mr. Gimblett derides the ‘multistep Committee procedure’ concluding: ‘In Ukraine’s view, the better interpretation of Article 22 is that it contains no preconditions to the Court’s jurisdiction. But if the Court interprets Article 33 as establishing preconditions, these preconditions are alternative, not cumulative’.97 Ukraine invokes a ‘principle of effectiveness’ to challenge a never-​ending ‘three steps dispute resolution’.98 This time, the Court could not escape to the interpretation of Article 22, since there is another case pending, in a very different context of forum shopping. The Court rendered its judgement of 8 November 2019 on preliminary exceptions with a clear majority, leaving sometime the Russian Judge ad hoc, Mr. Skotnikov, alone against 15 members of the Court. The decision brings very useful clarifications about the scope of the dispute in order to escape creeping jurisdiction or non liquet: ‘The fact that a dispute before the Court forms part of a complex situation that includes various matters, however important, over which the States concerned hold opposite views, cannot lead the Court to decline to resolve that dispute, provided that the parties have recognized its jurisdiction to do so and the conditions for the exercise of its jurisdiction are otherwise met’. The case is not about ‘alleged unlawful occupation’ or ‘on any violations of rules of international law other than those contained in the icsft and cerd’.99 The Court framed its judgment on these two conventional bases of jurisdiction, but we need here to focus only on the mirror effect with the cerd. The Court discarded very quickly the arguments about its jurisdiction ratione materiae with the definition of various ethnic or religious groups under the cerd as Crimean Tatars and ethnic Ukrainians in Crimea since these factual elements pertain to the eventual examination of the merits of the case: ‘At the current stage of the proceedings, the court only needs to ascertain whether the measures of which Ukraine complaints fall within the provision of the Convention (…) The Court taking into account the broadly formulated rights and obligations in the Convention, including the obligations under Article 2, 96 97 98 99

ICJ CR 2019/​10, 13, para .9. ICJ CR 2019/​10, 67, para 7. ICJ CR 2019/​10, 70, paras. 20–​22. icj, Judgement, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discriminations, 8 November 2019, paras. 28–​29.

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paragraph 1, and the non-​exhaustive list of rights in Article 5, considers that the measures of which Ukraine complains are capable of having an adverse effect on the enjoyment of certain rights protected under cerd. These measures thus fall within the provision of the convention’.100 This time, the Court could not avoid giving its interpretation of the ‘procedural preconditions under Article 22 of cerd’. The judgment recalls the terms of the legal debate. For the Russian Federation ‘conciliation under the auspices of the cerd Committee cannot be regarded as a kind of negotiation, since, unlike negotiation, it entails third-​party intervention, and that reading Article 22 in its context and in the light of the object and purpose of cerd confirms that the two procedural preconditions are cumulative’.101 On the contrary, for Ukraine, ‘the placement of Article 22 within Part iii of cerd, while the cerd Committee procedures are governed by Part ii, indicates that Article 22 was not intended to make the procedures before the cerd Committee a necessary precondition for seising the Court. According to the Applicant, as the preamble indicates that cerd was intended to be an effective instrument to eliminate racial discrimination promptly, it would be inconsistent with the object and purpose of cerd if Article 22 delayed the settlement of disputes by imposing cumulative procedural preconditions’.102 Cornered, the Court had to give an interpretation of the wording of Article 22 according to ‘the rules of customary international law on treaty interpretation as reflected in Article 31 to 33 of the Vienna Convention’.103 Interpreting Article 22 in its context, the judgment tries to bridge the gap between Articles 12 and 13: ‘The references to the “amicable solution” of the dispute and to the State’s communication of acceptance of the Conciliation Commission’s recommendations indicate, in the Court’s view, that the objective of the cerd Committee procedure is for States concerned to reach an agreed settlement of their dispute. The Court therefore considers that “negotiation” and the “procedures expressly provided for in [the] Convention” are two means to achieve the same objective, namely to settle a dispute by agreement. Both negotiation and the cerd Committee procedure rest on the States parties’ willingness to seek an agree settlement of their dispute’.104 The Court reinforces its argument ‘that

1 00 Ibid., paras. 95–​96. 101 Ibid., para. 99. Cf. also para. 101 for the ‘ three steps’ in the more recent human rights treaties, with negotiation, arbitration and jurisdiction of the icj. Contra para.105. 102 Ibid., para. 103. Ukraine underlines the burden to have first an unlimited negotiation and then a ‘renegotiation’ during six months under the auspices of the cerd. 103 Ibid., para. 106. 104 Ibid., para. 110.

70 Decaux it would not be reasonable to require States parties which have already failed to reach an agreed settlement through negotiations to engage in an additional set of negotiations in accordance with the modalities set out in Articles 11 to 13 of the cerd’, by the ‘light of the object and purpose of the Convention’, which provides to eliminate racial discrimination ‘without delay’.105 With due respect to the Court, we could note that its judgment takes some liberty with the methodology of interpretation, since a direct negotiation between two States is not of the same nature as a negotiation with the good offices of an independent body. As judge ad hoc Skotnikov underlines in his dissenting opinion: ‘the Court conflates negotiation and conciliation which are distinct modes of dispute settlement (…) Additionally, despite the appearance of the word “speedily” in the preamble of the cerd there is no indication from the context of Article 22 that the States parties intended dispute resolution under cerd, rather than the performance of the primary obligation to eliminate racism, to be as quick as possible (…) The Court’s surprising refusal to consider the travaux préparatoires of Article 22 departs from the approach taken in paragraph 142 of the Judgment in Georgia v. Russian Federation (…) This incongruity is best explained by the fact that recourse to the travaux would in this instance, serve to undermine rather than confirm the Court’s conclusion’.106 But the most important thing is that the Court put an end to its hesitation waltz, opening the way for a harmonious sharing of responsibilities with the cerd, not only on procedural matters but on the merits of the parallel cases, for the sake of consistency of international law interpretation. 4) The Case Law of the icj on the Basis of the cerd: Qatar v. uae The actuality of the cerd is not only a European issue in relation with other forums like the European Court of Human Rights, it is a worldwide issue, as illustrated by the ongoing case of Qatar against uae in respect of the application of the cerd, introduced by an application of 11 June 2018. The starting point of the dispute are the sanctions applied by Saudi Arabia and the uae against Qatar, alleging its support of terrorism and propaganda of the Al Jazeera Media Network. Qatar challenges the discriminatory measures directed at Qataris based expressly on their national origin.107 As the agent of the uae put it bluntly during the public sitting ‘the real dispute between the Parties does not relate to interpretation of the icerd. The real dispute between the Parties concerns the decision of the uae in 2017 to terminate its diplomatic 1 05 Ibid., para. 111. 106 Dissenting opinion of Judge ad hoc Skotnikov, para. 13. 107 A/​73/​4, section 18, 47.

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relations with Qatar. The uae took this step as a result of Qatar’s long-​standing support of terrorist groups and the harm this causes to the uae. Qatar has fabricated a dispute that seeks to invoke the interpretation of the cerd Convention to disguise its attempt to force the uae to return to the pre-​existing diplomatic status quo’.108 In this new case, the cerd is the only legal basis invoked in the application, as well as in the request for the indication of provisional measures of protection. The Court delivered its Order on 23 July 2018, after public hearings in June. There was a big difference with this new case since ‘Qatar states that it deposited on 8 March 2018 a communication with the cerd Committee under Article 11 of the Convention. It argues, however, that initiation or completion of that procedure is not a precondition to the Court’s exercise of jurisdiction in the present case. It also points out that it does not rely on this communication for the purposes of showing prima facie jurisdiction’.109 We could wonder about the ‘effet utile’ of these two contradictory proceedings at the stage of provisional measures and later for the respective jurisdiction of the two bodies in the light of Article 16 of the cerd. In the same evasive way, ‘the Applicant finally expressed the view that, in any event, the question whether the two preconditions included in Article 22 have a cumulative and successive character should not be decided by the Court at this stage’.110 The Court followed the same reasoning as in the previous case about its prima facie jurisdiction. Dealing with the ‘second precondition’ contained in Article 22 ‘The Court notes that Qatar deposited, on 8 March 2018, a communication with the cerd Committee under Article 11 of the Convention. It observes, however, that Qatar does not rely on this communication for the purposes of showing prima facie jurisdiction in the present case. Although the Parties disagree as to whether negotiations and recourse to the procedures referred to in Article 22 of cerd constitute alternative or cumulative conditions to be fulfilled before the seisin of the Court, the Court is of the view that it need not make a pronouncement on the issue at this stage of the proceedings (see Application of the International Convention for the Suppression of the Financing of the Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, icj Reports 2016, pp.125–​126, para 60). Nor does it consider 1 08 ICJ CR 2019/​5, 13, para. 4. 109 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for the indication of provisional measures, Order, 23 July 2018, para. 31. 110 Ibid., para. 32.

72 Decaux it necessary, for the present purposes, to decide whether any electa una via principle or lis pendens exception are applicable in the present situation’.111 Yet the decision of the Court was adopted by 8 against 7, with a strong joint declaration of three judges (Tomka, Gaja and Gevordjian) recalling that discrimination based on nationality is not in the ratione materiae jurisdiction of the cerd. Another Order of the President of 25 July 2018 indicating the time span for the written proceedings, with 18 months until 27 January 2020, leaves us, once again, with more questions than answers. But, meanwhile, in March 2019, the uae submitted to the Court a new request for indication of provisional measures in order to preserve ‘the uae’s procedural rights in this case’. In particular, the uae requests the Court to order that ‘Qatar immediately withdraw its Communication submitted to the cerd Committee pursuant to Article 11 of the cerd on 8 March 2018 against the uae and take all necessary measures to terminate consideration thereof by the cerd Committee’.112 The Court was unanimous –​minus judge ad hoc Cot –​to reject the request, confirming its prima facie jurisdiction: ‘The Court recalls that, in its Order of 23 July 2018 indicating provisional measures in the present case, it concluded that “prima facie, it had jurisdiction pursuant Article 22 of cerd to deal with the case to the extent that the dispute between the Parties relates to the ‘interpretation or application’ of the said Convention”. (…) The Court sees no reason to revisit its previous finding in the context of the present Request’.113 More specifically, on the first measure requested by the uae for the sake of ‘procedural fairness’, in relation to the ‘right not to be compelled to defend itself in parallel proceedings before the Court and the cerd Committee’114, the Court considers that it ‘does not concern a plausible right under cerd. This measure rather concerns the interpretation of the compromissory clause in Article 22 and the permissibility of proceedings before the cerd Committee when the Court is seised of the same matter’.115 The Court just reiterates its position, quoting its Order of 23 July 2018, about any via electa principle or lis pendens exception, at para 39 (cf. supra). It is no use at this stage to try to guess the final position of the Court, considering the numerous separate opinions from judges on the occasion of the

1 11 Id., para. 39. 112 icj, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for the indication of provisional measures, Order, 14 June 2019, para.8. 113 Order, para. 16. 114 Order, para. 19. 115 Order, para. 25.

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two Orders. But we already have some key elements deriving from the repeated rounds of oral proceedings in 2018 and in 2019. Alain Pellet, as counsel for the uae, argued that ‘The way in which Qatar has proceeded is incompatible with both the electa una via principle and the lis pendens exception, since the same claim has been submitted in turn to two organs by the same applicant against the same respondent. I would further note that Qatar’s Application before the Court is very clearly based on its communication of 8 March to the Committee. In this regard, it matters little whether the two preconditions set out in Article 22 are alternative or cumulative (…) they cannot, in any event, be simultaneous. It would make no sense and would deprive of effet utile the references to “procedures expressly provided for in [the] Convention”: it can clearly not be determined whether the dispute “is not settled by” those procedures, if the Court makes a ruling before the dispute has even been examined under those procedures’. [According to his view], Qatar can be considered to be estopped from seising this Court, since, in accordance with the provisions of Article 22, it triggered the procedure provided for in Articles 11 to 13 of the Convention (…) It seems to me that simultaneous recourse to two means of settling disputes with the same subject-​matter, contemplated in the same treaty, is hardly compatible with the fundamental principle of good faith’.116 Mr. Donovan responded to these arguments describing them as a ‘pot-​ pourri’. For counsel for Qatar ‘there is no principle in general international law that States cannot simultaneously pursue binding and non-​binding methods of dispute resolution, including proceedings before this Court. Indeed, the opposite is true. In its judgment on Preliminary Objections in Nicaragua v. United States of America, for instance, the fact that the Parties were engaged in regional negotiations through the Contadora process did not constitute a bar to the Court’s jurisdiction. The Court stated: ‘The existence of active negotiations in which both Parties might be involved should not prevent both the Security Council and the Court from exercising their separate functions under the Charter and the Statute of the Court. There is no reason to take a different approach here’.117 Counsel for Qatar added a last argument, recalling that ‘Article 16 of the Convention specifically states that the “provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes (…) Although this provision concerns proceedings outside the ambit of the Convention, it nevertheless does provide ancillary support for the proposition that recourse to one method

1 16 ICJ, CR 2018/​13, (trad) 19, paras. 23 and 24. 117 icj, CR 2018/​14, 15, para. 24.

74 Decaux of dispute resolution poses no bar to the simultaneous recourse to another’.118 In his view, since Article 11 implies previous negotiations, it would be illogical to require both preconditions in Article 22 with a new round of negotiations, even if these negotiations will not be framed on the same issues. In 2019, Michael Reisman came back with a broad picture of the legal and political issues, stressing that ‘the procedures provided in Articles 11 to 13, which are connected to Article 22, create an integrated mechanism for dispute settlement, with the Court as the ultimate contingent decision-​maker. As a precondition to that step, the procedure seeks accommodative resolutions through a sequence of graduated dispute settlement procedures, each manifesting increasing structure’.119 But he underlined the ‘policies at stake’, arguing that ‘the orderly sequence of dispute settlement procedures, whether deemed to be alternative or cumulative, was arranged not merely to set a precondition to resort to the Court but also to avoid concurrent jurisdiction between the cerd institutions and their procedures, on the one hand, and the Court, on the other’.120 Going further Reisman evocated a risk of ‘chaos’ with parallel proceedings ‘that could shatter the expectations of certainty in the assessment of international law, essential in an area as sensible as racial discrimination (…). If the Court is not bound by interpretative statements of the cerd institutions and issues its own decision and the decisions are made about the same time, what is the consequence for the certainty required in this important area of human rights law? The potential for conflicting legal outcomes is one of the reasons why there are no precedents affirming or implying that parallel dispute-​settlement procedures between Sates are permissible, let alone ­desirable’.121 The Agent of Qatar underlined the inconsistency of the uae’s position, ‘at once embarrassing and dismissive’, presenting the Committee as ‘the principal custodian of the Convention’122 but at the same time ‘motivated by a desire to intimidate the Committee or otherwise delay the Committee’s procedures, including the formation of the Conciliation Commission’.123 For Qatar, there is no issue of lis pendens, since the requests are not duplicative and the outcome of the cerd will be ‘a negotiated solution or non-​binding recommendations’.124

1 18 119 120 121 122 123 124

icj, CR 2018/​14, 16, para. 25. icj, CR 2009/​5, 30, para. 10. icj, CR 2009/​5, 32, para. 19. icj, CR 2009/​5, 34, paras. 25–​26. icj, CR 2009/​6, 12, para. 9. icj, CR 2009/​6, 13, para. 11. icj, CR 2009/​6, 38, para. 44.

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During the second round, Reisman, refining the argumentation of the uae, gave a more precise description of the functions of the cerd, underlining ‘the additional risk to the Court of having to deal with an authoritative decision of another adversarial dispute-​resolving institution (…) When it comes to the confusion caused by simultaneous parallel processes, what counts is the function, not the name. What is important is whether an adversarial, international dispute resolution procedure can make an authoritative decision, whether or not the decision is binding’.125 These interrogations put us at the heart of the matter. The issue of non-​ duplication is not only a condition of admissibility, broadly interpreted with quasi-​judicial mechanisms, it is also a matter of principle, for the sake of consistency and legal security, as so forcefully stated by the icj in the Diallo case.126 The answers of the Court in the two pending cases will be very important to clarify the situation of overlapping created by the cerd. iv

The Opportunity for New Perspectives about Conciliation?

The current state of the art, reflected in three claims before the cerd and two pending cases ‘prima facie’ at the icj, with one interesting overlap, invites us to reconsider in full. According to the debate in the Georgia v. Russia case, two understandings confront one another. For Georgia –​as mutatis mutandis in the pending cases for Ukraine and Qatar  –​the specific provisions of the cerd ought to be watered down in undefined negotiations, a mere diplomatic conversation, in order to be able to seize as soon as possible the icj of a dispute about the interpretation and application of the cerd. On the contrary, for Russia or for the uae –​and they share the same teams of lawyers –​the provisions of the cerd describe a roadmap with several stages, to be followed step by step –​like in a game of snakes and ladders –​but this formal approach does not take into account the need for efficiency, also in emergency situations, with an exhaustive check-​list. The written memorial of Russia in 2009 summarizes this spirit, the technicality overshadowing the political challenge:

1 25 icj, CR 2019/​7, 18, paras. 4 and 5. Cf. also 21, para. 16. 126 icj Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Judgment, 30 November 2010, icj Reports 2010, 664, para. 66.

76 Decaux More precisely, the procedures expressly provided for in the Convention which must be followed before the icj can be seised are as follows: –​ first, a State Party alleging that another State Party does not comply with its obligations under the Convention must address a communication to the latter through the Committee on the Elimination of Racial Discrimination; –​ second, the receiving State is given three months to submit written explanations or statements; –​ third, if within six months, the matter is not adjudicated to the satisfaction of both Parties, it is to be referred once more to the Committee; –​ fourth, the Committee ascertains that all domestic remedies have been exhausted at the icj, in conformity with the generally recognized principles of international law; –​ fifth, if this is the case, an ad hoc Conciliation Commission will be appointed; –​ sixth, the Conciliation Commission submits to the Chairman of the Committee a report embodying its findings and containing recommendations for the amicable solution of the dispute; –​ seventh, the States Parties to the dispute inform the Chairman of the Committee whether or not they accept the recommendations of the Conciliation Commission; –​ eight, the report and the declarations of the States Parties concerned are transmitted to the other States Parties to the Convention; –​ ninth, the dispute can be referred to the Court if all the previous stages have proved fruitless.127 Since 2008, the icj is obviously divided in two halves on these respective positions, multiplying the strong dissenting collective opinions against the majority of the moment, but also the individual opinions of judges disagreeing with the majority. Worst, these narrow majorities seem to be only an addition of minorities, leaving open a lot of issues for the sake of compromise and invoking the ‘economy of means’ to keep quiet as long as possible. It is difficult to assess the pending cases even if in each case the Court is challenged in its paradigmatic foundations about the interpretation of Article 22 and the links of this provision with Articles 11 and seq. 127 icj, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.  Federation of Russia), Preliminary Objections of the Russian Federation, 1 December 2009.

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In order to try to clarify the general debate about the future of conciliation within treaty bodies, we will distinguish three sets of considerations. 1) The Legal Issues The first cluster of issues concerns legal niceties. On one hand, the parallels often made between individual communications and inter-​State communications is misleading. We are used to the European system which after Protocol No. 11 systemised the juridical function of the new Court, with communicating vessels between the two types of case law, but there is no such uniformity within the universal treaty bodies system. On the judicial scale, we could say that the treatment of individual complaints by treaty bodies is quasi-​jurisdictional whereas inter-​State complaints are non-​judicial. This distinction is often lost when States Parties are afraid of a form of creeping jurisdiction by the treaty bodies, as in the travaux préparatoires of the Optional Protocol to the icescr. To say it in another way, the jurisdiction of the icj is not of the same nature as the function of the treaty bodies, such as the cerd Committee.128 Furthermore, the scope of jurisdiction of the Court, when derived from human rights treaties, is limited to disputes concerning the ‘interpretation and application’ of these instruments –​as a sort of contentieux de la légalité –​ whereas the functions of the treaty bodies cover the full scope of the obligations subscribed, including the full range of remedies against the violations –​one could speak of contentieux de la responsabilité –​even if their ‘recommendations’ are purely indicative, without the effect of ‘res judicata’. While the Court is strictly confined by preliminary objections to its jurisdiction, the treaty bodies could adopt a more political approach, mixing a victim-​oriented perspective and a global solution, through the so-​called ‘constructive dialogue’, with new methods of early warning and of follow up. The leitmotiv of the provisions concerning inter-​State complaints in core human rights treaties is to provide ‘good offices (…) to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present [instrument]’ (as stated in Article 42 of the Covenant). They open a window of opportunity for diplomatic flexibility when the Parties to a dispute are entrenched in legal argumentation. The aim is crystal-​clear, it is to obtain an ‘amicable solution’ in full conformity with international law, but the method is smooth. It could look quite paradoxical to channel this spirit of flexibility in a form apparently as rigid as conciliation, and even more an ‘ad hoc conciliation 128 A contrario, for the European Court, cf. our comment of Article 55 of the echr, in M. Boumghar (ed), La Convention européenne des droits de l’homme (Paris: Pedone, to be published 2020).

78 Decaux commission’. But a predetermined framework set in a timely manner is also a warrant of impartiality and efficiency since the process does not have to start from nowhere. The main legal challenge is to check the technical prerequisites of the formula of inter-​State complaints, as already identified. The precondition is that the States Parties have made an attempt to adjust the matter ‘to the satisfaction of both Parties, either by bilateral negotiations or by any other procedure open to them, within six months (…)’ (Article 11(2) of the cerd). In this context, negotiation is not a form of never-​ending escapism, but a first step to reach an amicable settlement. The method could be direct, with ‘bilateral negotiations’, or indirect, with third party intervention, but the attempt ought to be conducted in good faith. In other words, negotiations as encompassed in these provisions are not only conducted to frame the dispute but to seek a solution. We could think of it as an ‘obligation of means’ for lack of an ‘obligation of result’. But with alternative methods provided by the cerd mechanism there could be a prolonged deadlock. The necessity for a treaty body to ascertain ‘that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law’ (Article 11(3) of the cerd) mirrors the tradition of diplomatic protection, well established by the icj itself129 and the practice of individual cases before international courts and treaty bodies. But the case-​law of the echr underlines that in respect of massive or systematic violations of human rights it is impossible to seek the exhaustion of all domestic remedies and that an ‘administrative practice’ –​i.e. a pattern of ‘gross violations’ –​is enough to establish the direct jurisdiction of the Court.130 Anyway, the invocation of domestic remedies ought to be a useful way to respect subsidiarity and ‘to permit everyone to sweep before their own door’, but it cannot be an attempt to escape any accountability, either domestically or internationally. The third issue has been more neglected in the recent debates, whereas it is crucial for the consistency of the whole system, it is the via electa. With the multiplication of parallel mechanisms in the UN treaty bodies and at the regional level, the risks of conflicts of jurisdiction and of contradictions on substance are obvious. The political instrumentalization of forum-​shopping is a strong incentive for duplication, as seen already with the mirror cases of Georgia v. Russia before the icj and the echr where the same provisional measures 129 Cf. icj, Elettronica Sicula SpA (elsi), United States v.  Italy, Judgment, 20 July 1989, icj Reports 1989, 15. 130 Contra ECtHR, Cyprus v.Turkey, App. 25781/​94, Judgment (Merits), 10 May 2001, Dissenting Opinion of Judge ad hoc Silvio Marcus-​Helmons.

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were requested from the two Courts in the name of ‘irreparable prejudice and urgency’. The difficulty of combining good offices and judicial redress is of a different nature, but even more complex, with the risks of secret diplomacy.131 In the UN mechanisms, there is often a reference to a broad form of lis pendens: ‘Any other procedure of international investigation or settlement resorted to by the States Parties concerned’. The question is to define precisely what is a ‘procedure of international investigation’ or a ‘procedure of [international] settlement’ and to determine whether or not this procedure is of the ‘same nature’ as the mechanism invoked. Is it possible for a State to make in good faith an attempt to conciliation in order to find a political solution, seeking compromise and amicable solution, and at the same time to keep the pending case as a legal dispute, arguing about principles and rules of international law? Actual litigation couldn’t prevent States Parties from negotiating and finding a friendly settlement before a Court. But, there is a principle estoppel which ought to prevent States from adopting contradictory thesis in different forums. 2) The Practical Challenges The practical challenges of conciliation are simpler but without precedent for treaty bodies, very difficult to deal with, and the rules of procedure are not very helpful. It seems obvious to state that the ‘user guide’ for conciliation is quite complicated and not very user-​friendly. In some human rights treaties it is full of petty details (cerd, Covenant, cat), in others it is an open-​ended denomination (the two protocols) or even a complete legal loophole (ced). The main asset of institutional conciliation is to have ready-​made lists of experts, while within the first treaty bodies we have a multi-​level system: if ad hoc conciliation is impossible to institute, the committee is a sort of roster to pick and choose five members within the full body, excluding any form of collegiality which could have side effects for the functioning of the treaty body and the interaction between independent experts. The method seems to put first ‘negative criteria’ rather than positive qualities. In the more recent mechanisms,

131 Cf. the political mediation of the Organisation of African Unity, involving the president of the icj, Mohammed Bedjaoui, in the litigation between Burkina Faso/​Mali pending before a chamber of the icj, Case concerning the Frontier Dispute (Burkina Faso v. Mali), Judgment, 22 December 1986, icj Reports 1986, 554. The most uncomfortable situation is when some members of an arbitral tribunal are involved in a secret transaction when the others are excluded, as with the first step of conciliation in the Taba arbitration, Case concerning the location of boundary markers in Taba between Egypt and Israel, Award, 29 September 1983, Reports of International Arbitral Awards, vol. xx, 1.

80 Decaux there is no indication of the method to engage in the process which seems a terra incognita. One element of uncertainty is the composition of the treaty body and its appropriateness not only for the constituency of inter-​State disputes but also for the nature of the actual dispute, in order to provide independence, impartiality as well as reactivity and efficiency. With the rotation of membership with elections every two years (and the new trend of a time limit of two mandates, i.e. 8 years), specially for treaty bodies of 10 members, like the cat and the ced, it could be a challenge to have a pool of committed experts to take part in a conciliation commission. A strong leadership of the chairperson is a necessity to create a positive dynamic, whereas the systematic rotation implies sometimes that the geographical criterion prevails over managerial expertise and diplomatic flair. Another constraint is the time frame encompassed in the provisions of the human rights treaties, which could induce paralysis if the chairperson and the secretariat are not eager to push good offices without further delay. The slowness of the due process of law was considered a means to calm down an issue, without political escalation, given time after time in order to find a compromise. However, it seems very difficult to freeze a dispute for the sake of a confidential procedure in the modern world of global information. If treaty bodies are able to order conservatory measures in individual cases, could they not recommend such measures when seised by an inter-​State complaint, as a form of confidence-​building measure during the first step of the process? Nowadays, there is a stronger sense of urgency, with new mechanisms of early warning for the cerd and new mandates, as the Special Representative of the Secretary General for the prevention of genocide or the political good offices of the High Commissioner or even of the Secretary General himself, which could be more efficient and more visible to public opinion. It is the same thing, within the osce area, with the triggering of the Moscow Mechanism of the Human Dimension, which allowed a few weeks for the Rapporteur to present his ­report.132 Related to this double model of conciliation, institutional conciliation by a team of members of a treaty body and external ad hoc conciliation, causes a lot of trivial issues to arise. The biennium budget is always a tiresome confrontation between the 3rd Commission and the 5th Commission of the UN General Assembly, reflecting the schizophrenia of States Parties and the reluctance

132 Cf. Report about the Federation of Russia, delivered by W. Benedek on 20 December 2018, note verbale of the odhir 407/​18.

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regarding accountability, with a gap between resources and expenditures, even for earmarked means and mandatory expenses. Knowing the difficulties to mobilize the actual budgetary lines in order to exercise the mandate of treaty bodies in the form of ‘country visits’, or the financial limitations to ‘special session’, it will necessitate exceptional political will to share the expenses of conciliation according to the provision of Article 12 of the cerd. We quote only this example: 4. The meetings of the Commission shall normally be held at the United Nations headquarters or at any other convenient place as determined by the Commission; 5. The secretariat [of the Committee] shall also service the Commission whenever a dispute among States Parties brings the Commission into being; 6.  The States Parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-​General of the United Nations; 7. The Secretary-​General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties to the dispute in accordance with paragraph 6 of this Article. And it will be worst when the treaty creates no legal obligations, speaking only of the setting up of a subsidiary body, without any budgetary provisions. Anyway, the practical preconditions could easily become serious obstacles if one State Party concerned does not want to ‘play the game’ or if the ohchr does not want to be involved, for administrative or diplomatic reasons. We should not underestimate the dissuasive effect produced, constituted by such financial implications for States Parties, particularly Third World countries. Illustrative parallels are provided by Article 90 of Additional Protocol i to the Geneva humanitarian treaties or even by Protocol No. 16 echr, with obvious dissuasive effects. There is a need to reconstruct the whole system, stressing the link between adjudication by treaty bodies and settlement of disputes according to Article 33 of the UN Charter. They are no parallel systems in different legal ‘regimes’, they are components of the same architecture. One more practical issue is to know if the system ought to be closed ‘on itself’, under a rigid formula without escape clauses, or open to alternatives, with a security net. The paradox is that all details provided by treaties focus on mechanisms, deadlines and formalities, and not on substantive issues and solutions  –​on manners, and not on matters. To say it in other words, all these formalisms aim

82 Decaux to neutralize the process, as an abstract method and an empty form, without precedents and ‘acquis’, without diplomatic leverage and legal legacy. 3) The Political Difficulties But the main challenges are of a political nature. We have to deal with the relative ‘importance’ of the matter for the States involved, either their national interest or their symbolic value, in order to estimate the potential for a compromise within the framework of conciliation. There is a window of opportunity for judicial settlement which was analysed by Michel Virally in a famous article of the rgdip, between the low level of de minimis non curat praetor and the high voltage of entrenched ‘sacred egoism’.133 In some situations a diplomatic solution is feasible, with a good compromise, in splitting the difference, but for the sake of public opinion and face saving it needs to be dressed up as a judicial agreement inspired by common respect for law. If litigation about human rights is just a way to bring a just satisfaction and a financial reparation to the victims, the political prize is not very high for a State, but often, the heart of the matter is an issue of principles, dealing with legal rules or social standards –​the very fabrics of the constitutional identity of the State –​about which it seems impossible for a democratic State to make concessions. Lastly, the key element for conciliation is the political will of the States involved. ‘Good offices’ are not only a form of ultimate diplomacy based on the good will and the good faith of each stakeholder, without political leverage or legal support, they ought to be associated with an institutional framework like conciliation. The ‘catch 22’ situation is to escape politicization of legal disputes, with new forms of forum-​shopping, where the actors just advertise their own ‘national cause’ and sink into legal niceties without any diplomatic vision of an appropriate strategy to deal with political disputes. The great merit of ‘institutional conciliation’ is to provide a third channel at ground level for the sake of justice and equity. States should leave its chance to ‘conciliation’ as a preventive measure, not waiting before it would be too late. Between perilous immobilism of frozen conflicts and risky escalation in judicial duel, conciliation is a good compromise to find a way out. 133 Michel Virally, ‘Le champ opératoire du règlement judiciaire international’, in : Le Droit international en devenir (Paris: puf, 1990).

­c hapter 5

The Potential of Inter-​State Conciliation within the Framework of Environmental Treaties Malgosia Fitzmaurice i

Introduction

This chapter will analyze the possibility of the use of conciliation procedures within the framework of multilateral environmental agreements (mea s). Conciliation is one of the means of peaceful settlement of environmental disputes recognized by those agreements. The chapter will be structured in the following way: the first section will deal with a general overview of peaceful settlement of environmental disputes, including conciliation in selected mea s; the second with non-​compliance procedures which, it may be said, are similar in character and functions to settlement of disputes procedures (in particular conciliation procedures), and lastly concluding comments. The settlement of environmental disputes is still very much an evolving area of international law and, therefore, lacks clearly defined legal contours, with some of the substantive and procedural issues not fully resolved and clearly set out. International environmental law is recognized as a complete and separate system of international law but it cannot be denied that some of its foundational principles, in spite of being in existence for decades, are still to a certain degree somewhat ill-​defined and woolly in character. The example of such a principle is the precautionary principle, which has been included in all contemporary mea s and in national laws and is widely relied on in litigation both before national courts and international courts and tribunals; yet its legal nature both substantively and procedurally is still subject to different views (such as the burden of proof). In the view of the present author, such an uncertain field of international law has an impact on the settlement of environmental disputes. In fact, that was exemplified by the proceedings before the international courts and tribunals in which some of the judges have emphasized the ill-​defined and still developing legal nature of that principle.1 1 See Separate Opinion of Judge Wolfrum in the Mox Plant case before the itlos where he stated as follows: ‘It is still a matter of discussion whether the precautionary principle or the precautionary approach in international environmental law has become part of customary

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84 Fitzmaurice ii

Some Reflections on Peaceful Settlement of Environmental Disputes

This section will present a general overview of the aspects of peaceful settlement of environmental disputes. This is an area of international law fairly well known and a number of publications were written on this subject matter.2 Therefore in this section only the main legal questions relating to this subject matter will be highlighted. 1) The judicial settlement of environmental disputes has been mostly focused on the International Court of Justice (icj) and the International Tribunal for the law of Sea (itlos). It may be said that there have been certain environmental considerations in the jurisprudence of the World Trade Organisation, but essentially analyzed from the point of view of a limitation to the liberalization of trade.3 The European Court of Human Rights (ECtHR) dealt with a number of cases where environmental harm was interfering with private and international law … This principle or approach applied in international environmental law reflects the necessity of making environment-​related decisions in the face of scientific uncertainty about the potential future harm of a particular activity. There is no general agreement as to the consequences which flow from the implementation of this principle other than the fact that the burden of proof concerning the possible impact of a given activity is reversed’, pp. 133–​134, in: itlos, mox Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, p. 95. 2 Tim Stephens, International Courts and Environmental Protection (Cambridge:  Cambridge University Press, 2009); idem, ‘The Settlement of Disputes in International Environmental Law’, in:  Shawkat Alamet et  al. (eds.), Routledge Handbook of International Environmental Law (London/​New York: 2013) 175; idem, ‘International Environmental Disputes: to Sue or not to Sue?’, in: Natalie Klein (ed.), Litigating International Law Disputes: Weighing The Options (Cambridge: Cambridge University Press, 2014) 284; Alan Boyle and James Harrison, ‘Judicial Settlement of International Environmental Disputes’, 4 (2013) Journal of International Dispute Settlement 245; James Harrison, ‘Reflections on the Role of International Courts and Tribunals in the Settlement of Environmental Disputes and the Development of International Environmental Law’, Journal of Environmental Law 29 (2013) 501; Alan Boyle, ‘Environmental Dispute Settlement’, in: Max Planck Encyclopedia of International Law, Vol. iii (2012) 561; Stewart Bruce, ‘The Project for an International Environmental Court’, in: Christian Tomuschat et al. (eds.), Conciliation in International Law (Leiden: Brill/​Nijhoff, 2016) 133; Malgosia Fitzmaurice, ‘The International Court of Justice and International Environmental Law’, in. Christian Tams and James Sloane (eds.), The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013) 353; Duncan D. D. French, ‘Environmental Dispute Settlement: The First (Hesitant) Signs of Spring?’, (2006) 19 Hague Y.B. of International Law 3; Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (Cambridge; Cambridge University Press, 2018) 65. 3 wto, EC Measures Concerning Meat and Meat Products (Hormones) AB-​1997-​4 Report; EC —​ Approval and Marketing of Biotech Products DS291.

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family lives (Article 8 of the European Convention on Human Rights) and endangered the right to life (Article 2 of the Convention). However, the limitations imposed on invoking such a harm in cases essentially involving breaches of human rights and the firm statement of the Court that a right to a clean environment does not exist in the catalogue of the rights protected by the Convention, strictly narrow the jurisdiction of the European Court as a forum for the settlement of environmental disputes. In his numerous publications on a subject of environmental litigation Tim Stephens has shown an enthusiastic support for the view that environmental disputes are amenable to judicial settlement and presents several examples of such a development, partly due to ‘hardening’of the fabric of international environmental law.4 The author of the present chapter would have agreed with this statement until very recently, i.e. 2015, when the cases between Costa Rica v. Nicaragua/​Nicaragua v. Costa were adjudicated.5 Admittedly, in 2018, the Court passed the judgment on compensation in this case between Costa Rica and Nicaragua.6 However, in view of the author of this Chapter, in this very important judgment the Court, unlike in the above-​mentioned cases, has not clarified or developed fundamental principles singular to international environmental law, but rather analyzed a principle of general international law enunciated in the Chorzow Factory case within the framework of international environmental law that a responsible State has to ‘wipe out all consequences of a wrongful act’.7 Thus, it must be an underlying reason that there is no case with a strong environmental component in the docket of pending cases before the icj. The present author is of the view that judgments of the icj, which undoubtedly have dealt with many general underlying principles of international environmental law and even evolved them, cannot even be expected to analyze the in-​depth intricate fabric of international environmental law, which would require a more specialist body to deal with it, such as for example 4 Stephens (fn. 2 in the Handbook) 175–​6. 5 icj, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, 2015 icj Reports 665. See on this case e.g. Justine Bendel and James Harrison, ‘Determining the legal nature and content of EIAs in International Environmental Law: What does the ICJ decision in the joined Costa Rica v Nicaragua/​Nicaragua v Costa Rica cases tell us?’, 42 (2017) Questions of International Law 13. 6 icj, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua). Compensation Owed by the Republic of Nicaragua to the Republic of Cost Rica, Judgment, 2 February 2018, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment 2 February 2018, 2018 ICJ Reports 14. 7 pcij, Case Concerning the Factory at Chorzow (Merits), Judgment, 13 September 1928, pcij (ser. A, No.9) 47.

86 Fitzmaurice a conciliation commission. Moreover, cases before the icj constitute a nexus of general international law and international environmental law. That is not to say that the Court has not made several very significant pronouncements concerning for example environmental impact assessment in the Pulp Mills case8 and the above mentioned Costa Rica and Nicaragua cases. However, the expanding realm of international environmental law requires more in-​depth specialist studies and analysis, which cannot be expected from a general court of international law. For example, some of the critique of the Court’s judgment in the Costa Rica and Nicaragua cases was aimed at the lack of the precision in the risk assessment in relation to the environmental impact assessment (eia): The main conceptual difficulty with the current broad parameters in international law on States’ duties to conduct eia s lies with how much –​if any –​actual empirical or scientific approaches are actually relied upon by the Court, in order to determine the existence of a ‘significant risk of transboundary harm’ that triggers the duty to conduct an eia in the first place. The line between the State’s discretion to conduct an eia and the Court’s demand for a preliminary impact assessment to determine the existence of a ‘significant risk of transboundary harm’ warranting a fuller eia, appears completely subjective and indeterminate … [T]‌o this end, the Court could have furthered the development of international environmental law by clarifying the definition and operational assessment of ‘significant risk of transboundary harm’, looking to authoritative empirical verifiability and the nuances of prevailing and evolving science applicable to such risk assessment.9 8 icj, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, 2010 icj Reports 14. The Court declared that an eia is required ‘where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’ (para. 204) and that ‘… The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken’ (para. 205). The Court also stated that a conduct of the iea is a requirement of customary international law. 9 Diane Desierto, ‘Evidence but not Empiricism? Environmental Impact Assessments at the International Court of Justice in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica)’, EJIL: Talk! 26 February 2016, https://​www.ejiltalk.org/​ evidence-​but-​not- ​empiricism- ​environmental-​impact-​assessments-​at-​the-​international-​ court-​of-​justice-​in-​certain-​activities-​carried-​out-​by-​nicaragua-​in-​the-​border-​area-​costa-​ rica-​v-​nicaragua-​and-​con/​.

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The critique of the lacuna in the judgment is apt but the question arises whether it is justified. We may ask whether the general court of international law is indeed the right place to conduct an in –​depth analysis of such a technical issue. At this juncture, the Whaling in Antarctic case may be reminded.10 This case was an example of the Court tackling technical issues but not all Judges were convinced about the appropriateness of such an approach. Judge Yusuf (the President of the Court at present) stated that It is a pity that instead of such a legal assessment, the Court has engaged in an evaluation of the design and implementation of the programme and their reasonableness in relation to its objectives, a task that normally falls within the competence of the Scientific Committee of the iwc, which is scheduled to undertake an overall review of the jarpa ii programme in 2014.11 There are different views. Bruce asserts that ‘[t[he icj with its unlimited competence over international law matters, is the most obvious forum to hear environmental disputes’.12 However, he admits that the 1993 icj Chamber of Environmental Matters was never used and closed permanently in 2006.13 That would prove the point that the icj ‘s role is to remain the general Court of law, dealing with environmental law as one of the fields of environmental law but not to be expected to develop it in a systematic and in-​depth manner. 3) It was argued persuasively that one of the difficulties of adjudging environmental disputes is the definitional problem of what constitutes such a dispute and the search for finding an adequate jurisdictional basis.14 It was further submitted (this is the obvious point) that most environmental disputes involve many other legal issues, apart from environmental law,15 of which the best example is the Gabcikovo-​Nagymaros case, where the legal questions concerning the environment, the law of treaties and the law of State responsibility were entangled together in a Gordian knot.16 Taking these observations into consideration, it may be suggested, however, that more specialist courts and 10 11 12 13 14 15 16

icj, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, 31 March 2014, 2014 icj Reports 226. Dissenting Opinion of Judge Yusuf, 2014 icj Reports 404, para. 61. Bruce (fn. 2) 137. Idem. Boyle and Harrison (fn. 2) 247–​250; 250–​255. Idem, 249. icj, Gabcikovo-​Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, 1997 1cj Reports 7. See also Boyle and Harrison (fn. 2) 149.

88 Fitzmaurice tribunals whose area of adjudication is somewhat akin to international environmental law have contributed in a more significant way to the development of this field. Such an example may be given in relation to the jurisprudence of the itlos that has crystallized certain fundamental principles of international environmental law, in particular in the Seabed Disputes Chamber of the itlos Advisory Opinion on the Responsibilities of States with Respect to Seabed Mining under Part xi of the 1982 UN Convention on the Law of the Sea (unclos).17 In this Advisory Opinion, the Court has further developed the notions of the precautionary principle; the environmental impact assessment; due diligence and the ensuing responsibilities of States in relation to these principles. 4) Despite the view that for example the icj is a proper forum to hear environmental disputes there is a trend supported by scholars and practitioners advocating the establishment of a specialist International Environmental Disputes Body. This question exceeds the framework of this chapter and was exhaustively analyzed by Bruce.18 This author presents several arguments why there is a need for such an adjudicative body, to wit a few:  the need for an expert body with knowledge of complex scientific and technical issues; harm effected by Non-​State Actors; restricted access to international courts and tribunals; implementation and enforcement limitations. However, there is also a string opposition against the establishment of such a court. Boyle and Harrison state that, apart from the argument that a coherent body of rules of international environmental law with well-​defined contours (including the lack of a uniform definition of what constitutes an environmental dispute) has not yet been formed, a question may be posed: do we need such a court for environmental cases and would it do a better job than the existing eclectic structure whereby interstate environmental disputes can go the icj, the itlos, arbitration or the wto? The reasons for scepticism remain as valid now as they have always been, and despite the problems examined here, the existing structure of international courts has much to commend it, including the expertise and authority of the judges, an established reputation, and the ability to look at the law as a coherent whole.19

17 18 19

itlos, Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, 10. Bruce (fn. 2) 143–​168. Boyle and Harrison (fn. 2) 174.

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International arbitration practice has contributed to a certain extent to the development and consolidation of principles of international environmental law. To start with, it was the famous Trail Smelter arbitration which has put down the foundations of international environmental law.20 The Iron Rhine arbitration21 and the South China Sea arbitration22 have evolved to a certain extent the underlying principles of environmental law such as sustainable development and the precautionary principle, the due diligence principle, as well as the principles of protection of marine species. However, overall, there are very few examples of such arbitrations, and accordingly their input in the evolution of international environmental law is not particularly significant. International arbitration does not deal with international environmental law in a holistic manner; it is a very piecemeal approach, thus its role in the evolution of environmental principles is rather limited. In broad brushstrokes it may be suggested that the icj’s and the itlos’s judgments, which included questions of international environmental law, contributed to a greater degree to the development and understanding of procedural environmental law than substantive law, such as environmental impact assessment, which in itself is a composite obligation, including such obligations as notification, consultation etc. It may be said that the approach adopted by the icj reflects the ilc Articles on Prevention of Transboundary Harm from Hazardous Activities.23 5) Finally, it may be mentioned that the most taxing question is the protection of the community interests by international courts in relation to environmental law. This constitutes a subject matter of international law, which is much debated and exceeds the framework of this chapter.24 It encompasses both procedural law and substantive law. In brief, it goes beyond a traditional way of a broader participation in the protection of environmental interests of the community of States and is conceptually based on the notions of erga omnes and erga omnes partes obligations. The above –​mentioned Whaling in the Antarctic case is an acknowledged example of the practical embodiment of the application of obligations erga omnes partes. The procedural aspect of 20 21 22 23 24

Trail Smelter case (United States v. Canada), Award, 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards, Vol iii, 1905. Iron Rhine Arbitration (Belgium/​Netherlands), Award, 24 May 2005, (pca) icgj 373. South China Sea Arbitration, (the Republic of Philippines v. The People’s Republic of China), Award, 12 July 2016, pca Case No. 2013–​19. Text adopted by the International Law Commission at its fifty-​third session in 2001, yilc (2001), vol. ii, Part Two, p. 146. Bruno Simma, ‘From bilateralism to community interest in international law’, RCADI 250 (1994) 229; Gorgio Gaja, ‘The Protection of General Interests in the International Community’, RCADI 364 (2013) 19.

90 Fitzmaurice environmental interests exceeding the traditional bilateralism in relations between States will be discussed to a certain extent within the context of non –​ compliance procedures. 6) In view of the present author diplomatic means in general appear to be more accessible and suitable for solving environmental disputes. Given the not fully formed and still developing body of environmental law, at times very technical, more flexible means for the settling of disputes appear to more suitable and advantageous to the parties of the dispute. Presumably a conciliation commission would consist of experts in the field of environmental law as well as in general international law, which would be an optimal approach to an environmental dispute. It is the most commonly held view that in relation to environmental disputes non-​legal mechanisms are a preferred method of settling them due the unwillingness of States ‘to concede control over disputes’.25 Other authors mention a host of other of reasons which explain the reluctance of States to have recourse to legal means for the settlement of disputes: bilateral processes are not suitable to bring claims within a multilateral context and in the context of environmental obligations, where harm is of rather general than individual nature, individual States are hesitant to act as a ‘public prosecutor’. The bilateral character of dispute settlement procedures may be mitigated by the possibility of an intervention by other States parties to the mea (in case of the icj based on Article 63(2) of the Statute).26 The advantages of diplomatic means of settlement of environmental disputes have been described as follows: They have two principal advantages over adjudication by courts or arbitration. First, and most importantly, the parties remain in control of the outcome. They can walk away at any time and, until agreement is reached in the form of a treaty, there will be no final or binding determination of rights or obligations. Secondly, there are the added benefits of cheapness, flexibility, privacy, and complete freedom to determine who is involved, what expertise is relevant, and the basis on which any solution will be sought. The solution need not be based on international law.27 25 26 27

Natalie Klein, ‘Settlement of International Environmental Law Disputes’, in:  Malgosia Fitzmaurice et  al (eds.), Research Handbook of Intentional Environmental Law (Cheltenham: Edward Elgar Publishing, 2010) 383. Patrick Szell, ‘Supervising the Observance of MEAs’, (2007) 37 Environmental Policy and Law 80. Boyle (fn. 2) para. 21.

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Negotiations appear to be the means of settlement of disputes to which State have resource most frequently. Negotiations can be conducted at different stages, including the stage when the dispute has not been fully crystallized, as a means of avoiding it.28 The result of negotiations can be quite varied, providing the negotiating States with flexibility as to the factors taken into consideration and also with regard to the range of suggested solutions which may be accepted.29 Mediation, conciliation and good offices are less popular means. mea s include often an obligation to consult (which is also a part of the composite obligation of Environmental Impact Assessment), which is considered by some authors to be coterminous with negotiations.30 However, in some of the agreements ‘consultation’ is listed as a separate form from negotiations, thus indicating that these institutions are not the same.31 The example of the Non-​Navigational Uses Convention indicates that consultations are treated as a first step and if they fail then negotiations should start. It may be noted that ‘consultations’ as a means for peaceful settlement of disputes are not included in Article 33 of the United Nations Charter. The classical case, where consultations were accorded an important role, is the Lac Lanoux case Arbitration.32 The Arbitral Tribunal held that France had an obligation to consult with Spain regarding the hydroelectric project which resulted in change in a flow of water from French to Spanish territory. In 2006, a Commission of Inquiry was established on the basis of the 1991 Espoo Convention on Environmental Impact Assessment to assess the possible risks posed by river works on the

28 29 30 31

32

Klein (fn. 25) 383. Idem. 384. Stephens in: Handbook (fn. 2) 181. E.g. Article 17 of the 1997 Convention on Non-​ Navigational Uses of International Watercourses states as follows:  ‘Consultations and Negotiations Concerning Planned Measures:  1. If a communication is made under article 15 that implementation of the planned measures would be inconsistent with the provisions of articles 5 or 7, the notifying State and the State making the communication shall enter into consultations and, if necessary, negotiations with a view to arriving at an equitable resolution of the situation. 2. The consultations and negotiations shall be conducted on the basis that each State must in good faith pay reasonable regard to the rights and legitimate interests of the other State. 3. During the course of the consultations an negotiations, the notifying State shall, if so requested by the notified State at the time it makes the communication, refrain from implementing or permitting the implementation of the planned measures for a period of six months unless otherwise agreed’. Convention on Non-​Navigational Uses of International Watercourses, adopted by the United Nations General Assembly on 21 May 1997, entered into force 17 August 2014, 36 ilm 700 (1997). Lac Lanoux case (France v. Spain), Arbitral Award, 16 November 1957, 12 riaa 285.

92 Fitzmaurice Romania-​Ukraine Border (the Danube-​Black Sea Deep Water Navigation Canal in the Ukrainian Sector of the Danube Delta).33 7) mea s adopt in relation to the clauses on settlement of disputes a so-​ called ‘integrated approach’ which combines legal means (binding) and diplomatic means (non-​binding), including conciliation. They provide for a range of procedures:  diplomatic means:  negotiation/​consultation; mediation/​good offices; conciliation; legal means: arbitration or judicial settlement –​but depending on common agreement of the parties to the dispute to submit it to a relevant organisation. Mediation and good offices are based on the involvement of a third party, which is differently designed in both of these methods for the settlement of disputes. The third party function in respect of good offices is to bring the parties to a dispute together whilst the role of the third party in mediation is more proactive, suggesting proposals to the parties and evaluating them.34 As it has been explained ‘a key aspect with mediation and good offices is that parties still retain control over the direction of the dispute settlement process. This dynamic permits the relevant states to withdraw from the process as desired or dictate what terms or facts should or should not be discussed’.35 The more formalized procedure may involve the establishment of an inquiry or fact finding commission. It may be sufficient for a third party to establish the relevant facts of the dispute thus facilitating achieving the solution to it, based on this finding of fact.36 Inquiry is mostly devoted to fact-​ finding while conciliation is a more sophisticated procedure, involving both findings on law and fact. However, such findings are only recommendatory and thus lack binding force. The recommendations of a conciliation commission leave the control over the dispute to the parties, including the consent of the parties to such a procedure. The determination by such bodies may be used as tools in undertaking further negotiations or facilitate recourse to other means of settlement of dispute.37 Compulsory conciliation features in many mea s.38 It is argued that the sophisticated structure of this mechanism in mea s is an indicator of States’ willingness to have recourse to this mechanism in a case of dispute. It is a fairly comprehensive procedure but non-​binding. Therefore, it is suggested that States may find this mechanism as a required means of

33 34 35 36 37 38

https://​www.unece.org/​env/​eia/​implementation/​inquiry.html. Klein (fn. 25) 384. Idem. Idem. 385. Idem. Cesare Romano, Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (The Hague: Kluwer Law International, 2000) 62.

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peaceful settlement of disputes in case of a failure to negotiate or to resort to arbitration.39 Some caution is, however, needed in relation to recourse to fact-​ finding in matters of science as it may be subject to different interpretations or conclusions.40 Conciliation procedure is very common in several Multilateral Environmental Agreements (mea s), such as: –​ 1985 Vienna Convention for the Protection of the Ozone Layer,41 Article 11; –​ 1992 United Nations Framework Climate Change Convention,42 Article 14; –​ 1992 Biological Diversity Convention,43 Article 27; –​ 1992 ospar Convention,44 Article 32; –​ 1994 Desertification Convention,45 Article 28; –​ 1997 Convention on Non-​Navigational Uses of International Watercourses,46 Article 33; –​ 1998 Rotterdam Convention on the Prior Informed Consent (pic) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade,47 Article 20; –​ 2001 Stockholm Convention on Persistent Organic Pollutants,48 Article 18. These mea s adopt in relation to the clauses on settlement of disputes a so-​ called ‘integrated approach’ which combines legal (binding) and diplomatic means (non-​binding), including conciliation.49 Conciliation in this structure 39 40 41

Idem. 64. Klein (fn. 25) 385. 1985 Vienna Convention for the Protection of the Ozone Layer, signed   22 March 198; entered into force 22 September 1988, 26 ilm 1529 (1985). 42 1992 Climate Change Convention,  signed 4 June 1992; entered into force 21 March 1994, 31 ilm 849 (1992). 43 1992 Biological Diversity Convention, 5 June 1992; entered into force 29 December 1993, 39 ilm 1027 (2000). 44 1992 ospar Convention, signed 22nd September 1992; entered into force 25 March 1998, 31 ilm 874 (1992). 45 1994 Desertification Convention, signed 14 October 1994; entered into force 26 December 1996, 33 ilm 1328 (1994). 46 1997 Convention on Non-​Navigational Uses of International Watercourses, signed 21 May 1997; entered into force 17 August 2014; 36 ilm 700 (1997). 47 1998 Rotterdam Convention on the Prior Informed Consent (pic) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, signed 10 September 1998; entered into force  24 February 2004, 40 ilm (2001). 48 2001 Stockholm Convention on Persistent Organic Pollutants, signed:  22 May 2001; entered into force 17 May 200, 40 ilm 532 (2001). 49 For example Article 27 of the Convention on Biological Diversity sets the following procedure: Parties seek solution by negotiation; if they cannot reach agreement, parties may jointly seek good offices of, or request mediation by, third party. A  Party may declare that it accepts as compulsory: arbitration (in accordance with Annex ii); submission of

94 Fitzmaurice may follow failed negotiations, along with good offices, inquiry or mediation. Conciliation commissions have an important role within the framework of the cbd. If the parties have not filed a declaration submitting themselves to a legal settlement of disputes, they have to resort to compulsory conciliation, following the failure of negotiations. It is formulated as follows: 5. Subject to the operation of paragraph 2 above, if after twelve months following notification by one Party to another that a dispute exists between them, the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be submitted, at the request of any of the parties to the dispute, to conciliation. 6. A conciliation commission shall be created upon the request of one of the parties to the dispute. The commission shall be composed of an equal number of members appointed by each party concerned and a chairman chosen jointly by the members appointed by each party. The commission shall render a recommendatory award, which the parties shall consider in good faith. In the case of the Convention on Biological Diversity, which is a global Convention (196 States Parties), only five States Parties have made declarations accepting the compulsory binding procedures. This means that the majority of States Parties are subject to compulsory conciliation.50 disputes to icj. If parties to dispute have not accepted the same or any procedure, the dispute shall be submitted to conciliation (Annex ii) unless the Parties otherwise agree. Art. 33 of the 1997 Watercourse Convention states as follows: 1. Negotiation; 2. ‘If the parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the International Court of Justice’. 3 If these means fail, at the request of any party, submission of the dispute to impartial fact-​finding in accordance with paragraphs 4 to 9, unless the parties otherwise agree. 10. Subject to a special declaration in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with paragraph 2, which recognizes as compulsory ipso facto and without special agreement in relation to any party accepting the same obligation:(a) Submission of the dispute to the International Court of Justice; and/​or (b) Arbitration by an arbitral tribunal established and operating, unless the parties to the dispute otherwise agreed, in accordance with the procedure laid down in the annex to the present Convention (para. 10). 50 Anais Kedgley Laidlaw and Hao Duy Phan, ‘Inter-​ State Compulsory Conciliation Procedures and the Maritime Boundary Dispute Between Timor-​Leste and Australia’, (2018) 10 Journal of International Dispute Settlement 1, 13.

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Some of these Conventions provide that their dispute settlement provisions also apply to any related legal instrument, including protocols. The unfccc provides at art 14(8) that: ‘The provisions of this article [on dispute settlement] shall apply to any related legal instrument which the Conference of the Parties may adopt, unless the instrument provides otherwise’. Accordingly, the compulsory conciliation procedure in the unfccc also applies to its related legal instruments, including the 1997 Kyoto Protocol and the 2015 Paris Agreement on Climate Change.51 The mea s procedures on conciliation allow for party appointments. mea s require the Commission to produce a ‘proposal for resolution of the dispute’(cbd, Annex ii, Part 2, art 5.), a ‘recommendatory award’ (unfccc, Article 6.) or a ‘report with recommendations for the resolution of the dispute’ (Stockholm Convention, Annex, Part 2, Article 7), which the parties are obligated to ‘consider in good faith’ (unfccc, Article 6; cbd, Annex ii, Pt 2, Article 5; Rotterdam Convention, Article 20(6), but they do not require the inclusion of any conclusions and they do not require the parties to attempt to negotiate a settlement based on those recommendations.52 In general it may be said that meas conciliation rules do not prescribe an active role for the Commission; they do not require the Commission to produce conclusions on fact and law; they do not require the parties to negotiate a settlement based on the Commission’s report and they do not require the parties to submit the dispute to a binding dispute if they are not able to reach a settlement.53 Thus although the setting up of the Conciliatory Commission is compulsory, its award is recommendatory. In addition to dispute settlement provisions, mea s increasingly provide for non-​compliance procedures that are designed to assist Parties to comply with their obligations (see Section iii). iii

Non-​Compliance Procedures (ncp s)

1) It may be said that general theories of compliance (including those concerning mea s) are within the realms of interests of both international as well as

51 52 53

Ibid. note 44, 12 (fn. 44). Ibid. 15. Ibid. 17.

96 Fitzmaurice international relations theory.54 One of the most influential theories of compliance in the field of international relations and particularly well fitting the general foundations of a non-​compliance regime in mea s was represented by Abram Chayes and Antonia Handler Chayes. The main thrust of their ‘managerial’ theory relies on the premise that States are inclined to comply with their treaty obligations without recourse to the use or threat of use of punishment. They acknowledged that a certain degree of non-​compliance may occur but it is rarely wilful but rather due to other factors, independent from the States’ behaviour. Their managerial approach to compliance is based on ‘soft’ tools, which include a mutual dialogue concerning the treaty regime, as opposed to the enforcement strategy, which relies on sanctions and the adversarial settlement procedures in order to achieve the compliance. Chayes and Chayes include the verification process, reporting mechanisms and financial assistance as the factors assisting the compliance.55 With regard to international environmental law, Wolfrum has provided definitions of compliance, implementation and enforcement. According to this author, ‘compliance means that commitments entered into by a State are fully effectuated in practice’.56 The obligation of compliance involves the ‘effective implementation’ of a treaty, i.e., the adoption of relevant measures both at international and national levels, according to Article 26 of the 1969 Vienna Convention on the Law of Treaties (1969 vclt), which is based on the principle pacta sunt servanda. According to the same author, ‘[a]‌ssessing whether a State has implemented treaty obligations … requires only the assessment of existing laws and regulations of that Stats’57. Compliance exceeds this as the 54

In general on compliance see, Rüdiger Wolfrum, ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’, 272 (1999) RCADI 13. In the unep Guidelines for Strengthening Compliance and with Implementation of mea s in the ece Region, 20 March 2003, thttps://​wedocs.unep.org/​bitstream/​handle/​20.500.11822/​17018/​ UNEP-​guidelines-​compliance-​MEA.pdf?sequence=1&isAllowed=yhe, following definitions were adopted:  ‘(a) “Compliance” means the fulfilment by the contracting parties of their obligations under a mea and any amendments to it; (b) “Implementation” refers to, inter alia, all relevant laws, regulations, policies and other measures and initiatives that contracting parties adopt and/​or take to meet their obligations under a mea and its amendments, if any; (c) “Enforcement” is defined as the range of procedures and actions employed by a State, its competent authorities and agencies to ensure that organizations or persons potentially failing to comply with environmental laws or regulations implementing mea s can be brought into compliance and/​or punished through civil, administrative or criminal action’. 55 Abram Chayes & Antonia Handler Chayes, The New Sovereignty:  Compliance with International Regulatory Agreements (Harvard: Harvard University Press, 1995) 10, 109. 56 Wolfrum (fn. 54) 29. 57 Ibid.

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State, apart from enacting the required laws and regulations, is as well obliged to provide the necessary administrative procedures for the enforcement of the relevant rules. Further, the same author argues that ‘[t]o ensure compliance, it is necessary to establish whether the factual situation of the State actions or policies are commensurate with the international obligation’.58 Wolfrum understands under enforcement ‘all the actions undertaken by States or other entities to induce or compel States to achieve compliance with environmental obligations entered into. Enforcement is the reaction to an identified non-​ compliance’.59 2) Generally, it may be said ncp s were designed to respond to a breach of environmental obligations in a multilateral, not a bilateral context, which is ‘capable of accommodating community interests in a truly satisfactory manner’.60 Environmental obligations, in particular those relating to global issues, are not reciprocal in nature. Therefore the classical settlement of dispute procedures as envisaged Article 33 of the UN Charter, bilateral in nature, are not suitable for addressing non-​compliance within a multilateral context and therefore remedying non-​compliance relating to global issues such as climate change, protection of biodiversity or ozone layer. Classic settlement of dispute procedures were considered too confrontational, thereby capable of undermining the spirit of international cooperation. These procedures have less stringent effects; the decisions of non-​compliance bodies are not final in the form of res judicata, may be ‘seen as less intrusive on State sovereignty’61 and do not apply de facto as settlement of dispute mechanisms, i.e., after damage to the environment was done, thereby emphasizing the preventative character of ncp s, which distinguishes this system from settlement of dispute procedures. This approach, favouring prevention, follows the general trend in international environmental law, relying to a greater degree on such means as reporting or verification processes rather than having recourse to settlement of disputes procedures. In fact, national reporting by States Parties to mea s and their verification form the elements of the ncp s. ncp s procedures are established by decisions of Conferences of the Parties (cops)/​Meetings of the parties (mop s) –​not by amendment to the relevant treaty. The legal basis for such procedure are so called ‘enabling clauses’ 58 59 60 61

Ibid. 30. Ibid. Bruno. Simma, ‘From Bilateralism to Community of Interests’, (1994) 221 RCADI 217. Geir Ulfstein, ‘Dispute Resolution, Compliance Control and Enforcement in International Environmental Law’ in:  Geir Ulfstein et al (eds.), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge: Cambridge University Press, 2007) 10.

98 Fitzmaurice in mea s. which are implemented by decisions of Conferences of the Parties/​ Meetings of the Parties (cop s/​m op s).62 However, at times, as in the case of the Basel Convention, ncp s were enacted by decision of the cop. It was observed that the enabling clauses providing for the establishment of such mechanism may be very succinct although, in some cases, they are more detailed.63 In the case of the Montreal Protocol on Substances that Deplete the Ozone Layer64 the relevant provision is very brief:  ‘[t]‌he Parties […] shall consider and approve procedures and institutional mechanism for determining non-​ compliance with the provisions of this Protocol and for the treatment of parties found in non-​compliance’. According to Treves, the Kyoto Protocol enabling provision (Article 18) is broader. It states that cop/​m op shall establish ‘appropriate and effective procedures and mechanisms to determine and to address cases of non-​compliance with the provisions of this Protocol, including through the development of the indicative list of consequences, taking into account the cause, type, degree and frequency of non-​compliance’.65 According to Article 15, the ncp in the Kyoto Protocol was supposed to be implemented by an amendment to the Protocol but was adopted by a decision of cop/​ mop, which proved to be quite a contentious and controversial method. The Aarhus Convention has a provision which reflects its character as hybrid environmental law and human rights treaty, thus providing in Article 15 for the following; ‘[t]hese arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters relating to this Convention’.66 Although the powers of cop s/​m op s in establishing ncp s are quite controversial, it may be said that it has become commonplace in mea s to leave substantial issues to be decided by the parties in the future, and to set up formal structures within which these decisions can be taken. This involves a continuing process of law –​or at least rule-​making between the parties within the overall structure of the initiating convention. This evolving process operates 62

Tullio Treves, ‘Introduction’, in:  Tullio Treves et  al. (eds.), Non Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (The Hague: T.M.C. Asser Press, 2009) 1, 3. 63 Treves, ibid. 3. 64 Montreal Protocol on Substances that Deplete the Ozone Layer, signed 26 August 1987; entered into force, 26 August 1989, ilm 26 (1987) 1550. Decision IV/​5 on Non-​Compliance Procedure, doc. UNEP/​Ozl.Pro4/​15 (21 November 1992). 65 Treves (fn. 62) 4; Kyoto Protocol, signed: 11 December 1997; entered into force 16 February 2005, 37 ilm 22 (1998); ncp decision 27/​CMP I on Procedures and Mechanisms Relating to Compliance with Kyoto Protocol, doc. FCCCKP/​CMP/​2005/​8./​Add. 3 (30 March 2006), 92. 66 Treves (fn. 62) 4.

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at a number of levels, including actual modifications to the treaty documents in the form of amendments or adjustments, development or refinement of standards and commitments, developing rules procedure, and so on. To carry out this process, mea s create a number of organs, according them certain decision-​making powers. This gives rise to a general issue of the extent and legal nature of those powers and, in particular, whether their decisions can have binding force on the parties and legitimacy of such international law-​ making. The setting up of ncp s within mea s is one of the examples of the growing area of so-​called ‘creative legal engineering’.67 The powers of the organs based on mea s, particular cop s/​m op s, gave rise to varying views as to the nature of the convention organs or bodies concerned in making the decisions. According to one view, they can be seen as free standing entities, involving institutional arrangements or structures, which are independent from the parties, and having, at least to a certain extent, an autonomous character in the sense of having their own law-​making or rule-​making power to generate, or alter, the obligations, as between themselves, of the parties; and to formulate, or operate, mechanisms such as compliance mechanisms, within the treaty regime which may have effects binding on the parties. Churchill and Ulfstein call such institutions ‘autonomous institutional arrangements’ (aia s).68 On the other hand, some of the organs of mea s, particularly the cop s/​m op s, can be seen as no more than a form of diplomatic conferences providing a continuous, or at least regular, context within which decisions can more readily be made than through the calling of ad hoc diplomatic conferences. In fact, it is submitted that cop s/​m op s may partake of the character of either, depending on both the substantive nature of what is being discussed, and on whether or not their decisions will require subsequent validation to become binding on the parties. Essentially, the examples of cop/​ mop decision-​making are examples of delegated authority which fall within existing well-​trodden paths of treaties being either (in the case of the Montreal Protocol on Substances that Deplete Ozone Layer type amendment procedures) subject to traditional subsequent validation means of amendment of a treaty under the 1969 vclt; or (in case of the Montreal Protocol adjustments) the subject of prior mandate or of power by the originating convention or protocol. The second type of method based on the mea and concerning the role of aia s in relation to the modification of States’ obligations under the 67 René Lefeber, ‘Creative Legal Engineering’, (2000) 13 Leiden Journal of International Law 2. 68 Robin Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Known Phenomenon in International Law?’, (2000) 94 AJIL 623.

100 Fitzmaurice convention is derived from ‘enabling clauses’ (see above) which charge cop s/​ mop s (as well as other organs established under the mea s) with the task of elaborating rules in some particular; without expressly providing for actual amendment of the convention they may well result in modifications of the parties’ obligations. The distinguishing characteristic of the enabling clauses, and the decisions made under them, is that they do not provide a detailed guidance for the making of the decision by the cop/​m op and do not, in particular, contain any express provision (like Article 2(9) of the Montreal Protocol) for the decisions made under them to be binding (whether made by consensus or by majority). Despite this, matters decided by cop s/​m op s on the basis of enabling clauses are often claimed to be binding on the parties; or, at least, it is often claimed that ought to be, an issue which still is debated, and these claims are by no means undisputed. They thereby raise in a much more challenging way issues concerning the legal character of mop decisions than was the case with amendment or adjustment procedures. The most extensive (and controversial) use made of enabling clauses can be found in the Kyoto Protocol, to the structure of which they are central. A series of key provisions to the climate change regime, elements which were also highly controversial, were left to be decided at meetings of the cop/​m op under enabling clauses. The most striking examples are the three articles (Articles 6, 12 and 17) which authorize the cop/​m op to elaborate guidelines and set up machinery to regulate the so-​called ‘flexible mechanisms’, and Article 18, which charges the cop/​m op with elaborating and instituting the ncp. Of these, Articles 17 and 18 are by far the most controversial. The provisions of Article 17, which charges the cop with the task of defining ‘the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading’, are among the most pivotal of the whole Protocol. Trading in emissions was one of the most contentious issues during the negotiations of the Protocol, and the regime for emissions trading is a central factor for its success. Equally contentious in its negotiation was the form of the ncp pursuant to Article 18 of the Kyoto Protocol, which differs significantly from that of other ncp s that had been created before it. In particular, the structure of the Kyoto Protocol was more complex than that of earlier ncp s, having two implementation organs called, respectively, the Compliance Branch and the Enforcement Branch. While the function of the Compliance Branch was basically similar to that of the compliance committee under earlier ncp s, that of the Enforcement Branch, in the light of the list of possible ‘consequences’ of non-​compliance contained in Article xv of the Kyoto Compliance Mechanism and in relation to their possible impact on the participation of Parties in the flexible mechanisms, have generally been seen as having, potentially,

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a more stringent, even punitive, character than those of other ncp s. In fact, in anticipation of this possibility, Article 18 of the Kyoto Protocol contained the sentence: ‘[a]‌ny procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol’. 3) In general, it may be said that finding of non-​compliance is not binding, as it does not result in any binding obligations for the non-​complying State. However, as Ulfstein argues, ‘it will establish an internal obligation of the other mea s organs to recognize the non-​compliant status of the relevant party’.69 A view was expressed that international courts and treaty ncp s can serve the same purposes (non-​compliance with treaty obligations) even considering that the processes and mechanisms by which they do so differ radically.70 In very brushstrokes this is a correct description of such procedures, as indeed they are activated when there is a breach of an international obligation; but they can also be resorted to when a potential breach of an international law obligation is imminent. It must be said that the nature of the mechanism of ncp s. and also the possibility of acting before the breach is committed, are very different from legal procedures of settlement of disputes and more akin to diplomatic means. There are already in existence several non-​compliance procedures attached to mea, which may differ in their structure. However, all such mechanisms have one common feature, i.e., they are aimed at furthering the implementation of the relevant mea s and that the nature of the procedures is non-​confrontational.71 The non-​confrontational character of these procedures is one of their features, which obviously are very different from legal means of settlement of disputes. This feature of the ncp s is clearly stated in some of the mea s. For example, the unece Convention on Access to Information, Public Participation in Decision-​making and Access to Justice in Environmental Matters (the Aarhus Convention)72 states that the mechanisms to be established shall be of ‘non-​confrontational, non-​judicial and consultative nature’ (Article 15). The Convention on the Control of Transboundary Movements of

69 Ibid. 128. 70 Boyle and Harrison (supra note 2) 261. 71 Treves (supra note 62) 2. 72 unece Convention on Access to Information, Public Participation in Decision-​making and Access to Justice in Environmental Matters, signed on 25 June 1998; entered into force 30 October 2001, 38 ilm 517 (1999). The decision 1/​7 on Review of Compliance.doc. ECE/​MPPP/​2/​Add. 8(2001); see also Cesare Pitea, ‘The Noncompliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control mechanisms’, 16 (2006) Italian Yearbook of International Law 85.

102 Fitzmaurice Hazardous Wastes and Their Disposal (the Basel Convention)73 defines the ncp in the following way: ‘The mechanism shall be non-​confrontational, transparent, cost-​effective and preventive in nature; simple, flexible, non-​binding and oriented in the direction of helping parties to implement the provisions of the Basel Convention’. Treves observes that although the ncp s procedures exhibit certain similarities they show some significant differences. Similarities include an establishment of a specialist compliance body (such as the Compliance Committee) which works within the framework of cops/​m ops. The mea s Secretariats play an important role in reviewing reports and dealing with reports of noncompliance before passing them to compliance bodies. In the majority of the non-​compliance procedures, the recommendations of the compliance bodies are passed onto the cops/​m ops for the final decision. However, in two of the non-​compliance procedures, under the Kyoto Protocol and the Aarhus Convention, the adopted regulations are significantly different. Under the Kyoto Protocol, the decisions on non-​compliance are adopted directly by the Compliance Committee and the cop/​m op has a very limited function of acting as an appeal body from a decision in which a denial of due process was alleged.74 The ncp under the Aarhus Convention is perceived as an ‘in-​between mechanism’.75 The Final decision is adopted by the cop/​ mop, the Compliance Committee is empowered directly to take measures of a facilitative nature, in consultation with, or with agreement of, the party in non-​compliance, or, lacking such an agreement, in the form of advice.76 There are also marked differences in the composition of the compliance bodies. In some cases, their members should have requisite expertise while in some this is not required. In the majority of ncp s the members of the ncp s bodies are representatives of States Parties (under the Basel Convention they pledge ‘to serve objectively and in the best interest of the Convention’).77 However, in a more limited number of Conventions, ncp s bodies are staffed by independent members, such as under the Kyoto Protocol and the Aarhus Convention. They serve in their personal capacity.78 It is suggested that the structure of the compliance body composed of independent experts minimizes the political 73

74 75 76 77 78

The Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal signed 22 March 1989; entered into force 5 May 1992; Basel Convention ncp (Decision V1/​12 on Establishment of a Mechanism for Promoting Implementation and Compliance, Appendix doc. UNEP.CHW.6/​40 (10 February 2003), 45, para.2. Kyoto Protocol ncp (fn. 65) Section xi; Treves (fn. 62) 4. Treves (fn. 62) 4. The Aarhus Convention ncp (fn. 72) para. 36; Treves (fn. 62) 4. The Basel Convention ncp (fn. 73) para 5; Treves (fn. 62) 4. Treves (fn. 62) 5.

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aspects of non-​compliance procedures and makes them more technical.79 The ncp s mechanisms are activated by so-​called ‘triggering mechanisms’. They are structured in a similar way: a ‘concerned’ party to mea s may trigger it in relation to the other party; it may be ‘self-​triggered’ by a party in non-​compliance or imminent non-​compliance (self-​triggering is the most frequent method). This method is ‘a fundamental element to confirm the non-​judicial, cooperative character of the proceedings in general’.80 In many cases of non-​compliance, Secretariats have the capacity of referring such cases to compliance bodies. Under the Aarhus Convention public (individuals and civil society) can submit communications, which reflects the human rights character of this Convention. Communications from the public trigger off of the majority of cases of non-​compliance under the Aarhus Convention.81 Under this Convention, civil society representatives are observers in the non-​compliance proceedings. States in such proceedings have a number of guarantees, which are extensive. They have access to documents, they can comment on submissions; they are admitted to the meetings of the compliance body (excluded from deliberations stage). The party to a meas which is a ‘concerned’ party (thus outside the self-​triggering mechanism) has much less extensive rights, which are in fact in scope the same as any other party to the mea.82 There is a very extensive selection of possible outcomes in cases of non-​compliance. The purpose of the pressure exerted on a State is to put it back in compliance even before specific measures under ncp s have been adopted. Thus in some mea s there are progressive formulations reflecting dissatisfaction with the State’s performance. Reports use the following formulations: ‘expression of disappointment’; ‘noting with concern’; ‘remain concerned’; ‘urge’ and ‘strongly urge’.83 The adoption of commensurate measures resulting from non-​compliance is preceded by the determination of non-​compliance. The measures under ncp s are usually of the type of incentives (including financial and technical assistance). However, they may also be of a character of sanctions (such as suspension in flexible mechanism of the Kyoto Protocol or suspension in trade relations under the Montreal Protocol).

79 80 81

82 83

Ibid. 5. Ibid. 6. In accordance with paragraphs 18 to 24 of the annex to decision I/​7 of the first session of the Meeting of the Parties to the Aarhus Convention, communications may be brought before the Committee by one or more members of the public concerning any Party’s compliance with the Convention. Treves, (fn. 62) 6. Ibid. 6–​7.

104 Fitzmaurice Treves has expressed the view that ‘this is the aspect in which outcomes of non-​compliance proceedings come closest to the outcome of judicial or arbitral proceeding, as the distinction between non-​compliance and breach of an international obligation –​that a judge of arbitrator could find in its decision-​is difficult to draw’.84 That it not to say that there are significant differences. The determination of non-​compliance by the non-​compliance bodies is specific and functional to particular proceedings within the framework of which it is made and conditioned by possible outcomes, in which adopted measures are usually non-​binding. If, as under the Kyoto Protocol, they are considered to be binding, they are only of that character within the framework of the relevant particular mea. Finally there is no implication that the determination of non-​ compliance is res judicata.85 The legal nature of non-​compliance procedures is very complex and difficult to define. It is suggested that such a mechanism is outside the system of peaceful settlement of disputes also for the reason of the self-​triggering mechanism (or self-​referral), which makes it difficult to see as an object of ncp a ‘dispute’ resolution.86 In such cases, a better description is to categorize it as a ‘multilateral assistance for dispute avoidance’.87 The same author argues that ncp s resemble more ‘diplomatic’ means of settlement, as opposed to ‘judicial’, but also emphasises their ‘quasi-​judicial’ character,88 which (under the Aarhus Convention) is exemplified by … t]he Committee is an independent body; its procedure is highly formalised, based on transparency and due process guarantees; non-​ compliance with the Convention is ascertained on the basis of a factual and legal evaluation, with little room, if any, for conciliation; and the decision itself is based on legal reasoning.89 In general, however, the relationship between ncp s and settlement of disputes procedures is one of the unresolved issues. The ncp under the Montreal Protocol states that such a procedure is without prejudice to Article 11 of the Ozone Convention, which sets out the settlement of disputes procedure. However, the exact nature of this relationship was never clarified. In 1992, Koskenniemi expressed his concern that a State may find itself under both procedures 84 85 86 87 88 89

Ibid. 7. Ibid. 7. Pitea (fn. 72) 114. Ibid. Ibid.115. Ibid.115.

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simultaneously. This author refers to the function of the Implementation Committee, acting as an advisory body to the cop/​m op and proposing certain measures in relation to this State’s non-​compliance, as de facto determining that State’s behaviour, while the dispute is sub judice elsewhere.90 In such cases, he suggested, that proceedings within the Implementation Committee should be suspended, but not terminated. The proceedings should be suspended in cases of non-​compliance which involve suspension of rights. However in cases, where the Implementation Committee acts as facilitator, aimed at bringing about an amicable solution, such a function of this body is not in conflict with a dispute sub judice and even should be encouraged.91 However, when non-​legal means of settlement of disputes are employed, such as negotiations, the parallelisms of proceedings should not matter as such means have no binding effects on the parties. Problems may, however, arise in relation to the findings of a Conciliation Commission under Article 11 of the Ozone Convention, although it issues only a recommendatory award and its implementation depends on its consideration by the Parties in good faith. Any disparity between the findings of the Conciliation Commission and the ncp, at least in theory, should not lead to a legal conflict, although for a Party concerned compliance with an award and with the findings under the ncp may prove to be burdensome. 4) In the unlikely event of a State being subject to a final decision of the International Court of Justice or an arbitral tribunal (res judicata) as to its non-​compliance, and the decision of the cop/​m op on the same subject, the conflict will not arise as decisions on non-​compliance of the cop/​m op (even in relation to e.g. suspension of trade) are only recommendatory (see above). However, under the Kyoto Protocol the ncp, which is much harsher and resembles judicial proceedings (in the event that the decisions of the Enforcement Branch will become binding on the Parties), the parallel binding decisions of the icj or the arbitral tribunal, rendered as a result of proceedings initiated under Article 14(2)(a) and (b) of the Climate Change Convention and which may be different from the ncp under the Kyoto Protocol, might result in a very disadvantageous situation of a Party subject to such simultaneous procedures. It must be borne in mind, however, that, as practice indicates, decisions of cop s/​ mop s in the ncp process are, in contrast to the effects of the legal means of settlement of disputes, non-​binding. It is, therefore, more a question of compatibility of proceedings in international adjudication and quasi-​adjudication 90 Martti Koskenniemi, ‘Breach of Treaty or Non-​ Compliance? Reflections on the Enforcement the Montreal Protocol’, (1992) 3 Y.B. Int’l Env. L. 123. 91 Ibid 158.

106 Fitzmaurice and alleviating the position of the State subject to both procedures. The situation which begs for closer examination is, however, the relationship between the Enforcement Branch of the Kyoto Protocol, which, if so decided, might be able to make binding decisions, and the legal means of settlement of disputes available under the Climate Change Convention. In the event of parallel proceedings, which would both result in finding the Party in breach of an international obligation, a State will be subject to unusually harsh consequences. Even more daunting is the possibility that both binding procedures will lead to different outcomes, leaving thus a State in the most vulnerable position. Parallelism of ncp s and diplomatic means of settlement of disputes is not a cause for concern as both are not binding on States. Finally, it must be observed that ncp s are still evolving and new solutions are being adopted. 5) A  very interesting development regarding the ncp and the settlement of disputes procedure (the inquiry procedure) under the Espoo Convention must be noted. According to paragraph 15 of the ncp of the Espoo Convention:  where a matter is being considered under an inquiry procedure under Article 3, paragraph 7, of the Convention, that matter may not be subject of a ncp submission pending the decision under the inquiry procedure. It does not regulate, however, this relationship between other means of settlement of disputes available under the Espoo Convention and the ncp. The above-​mentioned case of the Bystre deep-​water navigation canal and construction was the subject of an inquiry commission both under the Espoo Convention and the ncp under the Aarhus Convention. Romania brought a case against Ukraine in respect of the provisions on the procedure concerning environmental impact, alleging that Ukraine had failed to notify Romania that the project might have a significant adverse transboundary impact, and had also failed to ensure effective participation in the decision-​making process. Due to the pending procedure under the Commission of Inquiry under the Espoo Convention, its ncp could not be used. Both Romanian and Ukrainian ngo s sent a communication to the Aarhus Convention Compliance Committee alleging Ukrainian non-​compliance with the public participation requirement under the Aarhus Convention. The Aarhus Compliance Committee decided that both submissions were admissible. In 2005, the meeting of the cop/​ mop Aarhus Convention endorsed the recommendation of the Compliance Committee that the decision on the issues under consideration by the Inquiry Commission on the basis of the Espoo Convention, be deferred under the ncp of the Aarhus Convention, pending the decision of the Inquiry Commission. The opinion of the Inquiry Commission rendered in July was unanimous in holding that the Bystre deep-​water navigational canal is likely to have some significant adverse transboundary impact and recommended that a bilateral

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programme start as soon as possible in order to clarify certain consequences of the project, which were inconclusive.92 The Compliance Committee of the Espoo Convention also postponed its decision pending the proceedings before the Inquiry Commission. The proceedings before the Committee of Espoo Convention resumed in 2007 and have relied partly on the findings of the Inquiry Commission. However, there were some unresolved legal issues such as the legal effect of the opinions of the Inquiry Commission.93 Thus, as exemplified by this case, the relationship between means of diplomatic settlement of disputes and the ncp s can coexist together and be mutually supportive. iv

Concluding Observations

It is suggested that States distrustful of existing peaceful settlement procedures and possibilities offered by the law of treaties and the law of State responsibility have preferred to set out the ncp s, based on, as it was understood, ‘combinations of good will, cooperation, political handling of matters, technical expertise and the prudent recourse to incentives and disincentives which include the possibility of declaring non-​compliance’.94 However, the currently existing ncp s are far from perfect. The questions of legal nature can be excluded and, as it is argued, the interpretation of legal texts is one of the most significant aspects of the functions of compliance mechanisms. Thus, whether the combination of all these elements (legal and non-​legal) succeeds has to be evaluated on a case-​by-​case basis. We have to agree with the argument that ‘[t]‌he right combination of good will, political finesse, legal and technical expertise, whatever the provisions to be applied, depends on the political situation of the moment and on the quality of the men and women engaged in the proceedings’.95 It is further argued that the expanding number of ncp s evidences that States perceive that there is a need for such procedures, as a useful complement for other procedures set up under

92

93 94 95

Decision II/​5b, Compliance by Ukraine with Obligations under the Aarhus Convention, adopted at the second meeting of the Parties, Almaty, Kazakhstan, 25–​27 May 2005. available at http://​www.unece.org/​env/​documents/​2005/​pp/​ece/​ece.mp.pp.2005.2.add.8.e.pdf. Jerzy Jendroszka, ‘Practice and Relevant Cases that Emerged in the Context of the Espoo Convention Implementation Committee’, in Treves et al. (eds.) (fn. 62) 319. Jendroszka (fn. 92) 334. Treves (fn. 62) 8. Idem.

108 Fitzmaurice the mea s. However, the processes leading to the setting up of such procedures have evidenced similar if not identical reoccurring questions concerning the membership of the compliance bodies (whether they will be acting in their own personal capacities or as the representatives of States); whether the adoption of the final decisions on non-​compliance should be effected by non-​ compliance bodies or by cops/​m op s; what is the role of ngo s in initiating the proceedings and in the selection of the members of non-​compliance bodies; what are the guarantees accorded to the party in the proceedings. There are no readily available answers to these questions, as evidenced by negotiating processes setting up ncp s under various mea s. ncp s adopted in such agreements follow the general premise underlying ncp s but vary significantly in relation to several important procedures. Thus it may be said that there is no uniform model. There is an ongoing debate on striking a right balance by States ‘… between objective assessment by experts and the measure of control they wish to exercise on the procedure, as members of the compliance bodies, of cop s/​ mop s or as parties whose compliance is in question’.96 The main reasons for the establishment of ncp s was the need to enhance the effectiveness of mea s and the reluctance of States to employ dispute settlement mechanisms.97 However, there is no doubt that the ncp s are non-​ binding, therefore, somewhat ‘toothless’ procedures. Tanzi and Pitea said as follows: Pessimists have made the case that the establishment of weak compliance mechanisms, is aimed at providing a (costly) shield of good intentions behind which States may hide their unwillingness to have their obligations seriously scrutinized.98 Despite many years of functioning of ncp s under various and numerous mea s, there is still a host of unresolved or not fully clarified issues. One the most important and vexing question is the political or legal character of compliance bodies. This issue is two-​fold. It may be argued that ncp s consisting of representatives of States are not an objective body but a political entity. The same may be claimed if ncp s are not independent of cop s/​m op s but treated as their subsidiary bodies, therefore somewhat ‘politicized’. Without doubt the wide participation of civil society in proceeding would contribute to more 96 97 98

Idem. Attila Tanzi and Cesare Pitea, ‘Non Compliance Mechanisms: Lessons Learned and the Way Forward’, in: Treves et al. (eds.) (fn. 62) 571. Ibid.

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independence of such compliance bodies and to transparency. At present it is only the Aarhus Convention which provides for a varied and extensive role of civil society. Therefore ncp s, although to some extent useful, cannot be assessed as an ideal way of resolving compliance issues within mea s. As it has been argued there are several drawbacks which result in less than satisfactory results of the application of these mechanisms. However, they are not without merit and it appears that they could make a useful addition to existing diplomatic means of dispute settlement, as it was exemplified by the case under the Inquiry Commission and the ncp under the Espoo Convention. It is interesting to add that Patricia Wouters considers that the fact-​finding procedure under Article 33 of the UN Watercourses Convention closely resembles a conciliation procedure, since the fact-​finding commission’s task includes providing a ‘recommendation as it deems appropriate for an equitable solution of the dispute which makes it comparable to the conciliation procedure’.99 It may be said that the conciliation procedure should be better suited than ncp s due to its inherent characteristics. The panel is composed of independent personalities, chosen by or with the participation of the parties. It has no independent authority and carries no political clout. It acts strictly within the mandate conferred on it by the parties. The procedure is flexible but relatively formal. The panel examines the facts and the law applicable to the case, then drafts a recommendation which the parties are free to accept or to refuse. The proceedings and their outcome are confidential and without prejudice to ulterior proceedings. They do not affect the legal positions of the parties.100 These rules very well reflect the flexible character of conciliation rules included in mea s. They are friendly and not complicated. The members of the Conciliation Commission are experts in the field, and the Parties have a choice of its members. All these features clearly show that conciliation procedures are more desirable than ncp s which, although in principle friendly, have rather inflexible rules and the composition of the compliance bodies is beyond the parties’ influence. Therefore, parties to mea s should have recourse to conciliation procedures included therein; or at the very least develop mechanisms 99

Patricia Wouters ‘The International Law of Watercourses:  New Dimensions’, (2010) 3 Collected Courses of the Xiamen Academy of international Law 347, 377. 100 Jean-​Pierre Cot, ‘Conciliation’, in Oxford Public International Law, http://​opil.ouplaw. com/​view/​10.1093/​law:epil/​9780199231690/​law-​9780199231690-​e20.

110 Fitzmaurice combining them with ncp s, as it was described above in case of the Inquiry Commission and the ncp in the Espoo Convention. The dual role of conciliation, i.e. examination of legal issues and the recommendation of a flexible solution101 can be very useful in relation to environmental disputes, where flexibility and balancing of various interests environmental and economic is indispensable. 101 Tanaka (supra note 2) 72.

pa rt 4 Conciliation Outside Europe

∵

­c hapter 6

Africa and International Conciliation Makane Moïse Mbengue and Apollin Koagne Zouapet i

Introductory Remarks

Relatively recent as a method of dispute resolution, conciliation remains little known and studied in legal doctrine. This can be explained firstly by its absence in the early attempts to codify international dispute settlement mechanisms. Conciliation was not included among the methods of the Hague Convention for the Pacific Settlement of International Disputes, 1899, nor was it in the second Hague Convention of 1907. This lack of knowledge is also due to the scarcity of its application, at least as an autonomous method of dispute settlement. Over the years, the enthusiasm for conciliation gradually faded as other alternative dispute resolution methods appeared to produce more concrete results.1 Finally, this lack of knowledge is also due to international lawyers who, accordingly to Koopmans, have traditionally focused on international courts as the centre of international practice.2 The consequence of all the above is that conciliation is a sort of enigma among the methods of settling international disputes. It is a hybrid method of dispute resolution, close to inquiry and mediation, while displaying some of the characteristics of arbitration. This eclectic character of the method is underlined in different proposed definitions. According to one of the most frequently cited definitions, 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 1 For a historical approach to the use of conciliation in the settlement of international disputes, see in particular Ruth Donner, ‘The procedure of international conciliation: some historical aspects’, 1 (1999) Journal of the History of International Law 103–​124; Sven M.G. Koopmans, Diplomatic Dispute Settlement: The Use of Inter-​State Conciliation (The Hague: t.m.c. Asser Press, 2008)  71–​121; John Graham Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2005) 64–​67. See also for a comprehensive analysis of conciliation, Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration  (Leiden/​Boston: Brill Nijhoff, 2017). 2 Koopmans (fn.1) 1.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_007

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being accepted by them, or of affording the parties, with a view to its settlement, such aid as they may have requested’.3 Even if conciliation commissions have the same functions, to investigate the dispute and to suggest the terms of a possible settlement, what a commission does and how it goes about its work depends in the first place on the instrument setting it up. The will of the parties therefore plays a decisive role here: the task of the commission is to encourage and structure the parties’ dialogue, while providing them with any assistance that may be necessary to bring it to successful conclusion.4 This aspect of conciliation brings this method of settlement closer to mediation. Many authors have stated that conciliation differs from mediation not in nature but only in degree. Some distinguish between the two by their state of institutionalization. Others emphasize the more limited mandate of the conciliator, who is in a strict sense not supposed to recommend solutions to the parties. Thus, these two modes share the quality of not having the power to impose solutions, but only to assist the parties in crafting their own. Some authors do not hesitate on this basis to use them interchangeably.5 However, at least theoretically, the two methods of dispute resolution are not confoundable. Conciliation distinguishes itself from mediation essentially in that conciliators investigate the dispute and subsequently propose a solution. Conciliation is considered to be a more formal procedure than mediation. The conciliators assume an independent role and do substantial work away from the parties. By contrast, mediation is more informal, with relatively more time spent in discussions with the parties. Nevertheless, as has rightly been pointed out, these criteria are open to debate, and reasoned opinions may differ.6 Another view is that conciliation is closer to inquiry or arbitration; that the commission’s function is to provide information and advise as to the merits of the parties’ positions and to suggest a settlement that corresponds to what they deserve, not what they claim. However, unlike an inquiry, whose whole raison d’être is to illuminate the dispute, a conciliation commission has as its objective the parties’ conciliation. Its investigative powers are thus simply a means to an end. As a result, if it becomes apparent that the exposure of some matter might make conciliation more difficult, that line of investigation is unlikely to be pursued.7

3 Institut de Droit International, session of Salzburg, 1961, article 1. 4 Merrills (fn. 1) 72. 5 See for example Anne Peters, ‘International dispute settlement: a network of cooperational duties’, 14 (2003) European Journal of International Law 1, at 6. 6 Koopmans (fn. 1) 241. 7 Merrills (fn. 1) 73. See also Leïla Choukroune, ‘La négociation diplomatique dans le cadre du règlement pacifique des différends’, 1 (2001) Hypothèses 151, at 155–​156.

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The United Nations Office of Legal Affairs has highlighted this hybrid nature of conciliation in its work on peaceful means of dispute settlement in 1992. The Handbook published by the Office of Legal Affairs emphasizes that conciliation provides parties ‘with a better understanding of each other’s case by undertaking objective investigation and evaluation of all aspects of the dispute and, on the other hand, provide them with an informal third-​party machinery for the negotiation and non-​judicial appraisal of each other’s legal and others claims, including the opportunity for defining the terms of a solution susceptible of being accepted by them’.8 It should also be noted that both the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, and the 1982 Manila Declaration on the Peaceful Settlement of International Disputes refer to conciliation as one of the means that States would use when seeking an early and equitable settlement for their international disputes. Thus, an analysis of the main international treaties establishing this method of dispute settlement shows that conciliation has two main functions: to investigate and clarify the facts in dispute and to endeavour to bring together the parties to the disputes in order to reach an agreement by suggesting mutually acceptable solutions to the problem.9 It is undoubtedly because of these specific characteristics and hybrid nature that this method of settlement is popular on the African continent. The Charter of the Organization of African Unity (oau) is one of the instruments that, after the Charter of the United Nations, contributed to the recognition of conciliation as an independent method of peaceful settlement of international disputes, distinguishable from fact-​finding or inquiry.10 Indeed, while conciliation generally received renewed international attention in the early 1990s,11 8 9 10

11

UN Office of Legal Affairs, Codification Division OLA/​COD/​2394, 1992, 45, para. 140. See UN Office of Legal Affairs (fn. 7) 47, para.145. The other instruments identified by the United Nations Office of Legal Affairs are the 1948 American Treaty of Pacific Settlement (the Pact of Bogota), the 1957 European Convention for the Peaceful Settlement of Disputes and the 1981 Treaty Establishing the Organization of Eastern Caribbean States. This interest has been demonstrated in several ways. First, within the United Nations, where efforts have been made to adopt a code of rules on the subject. See UN GA Res. A/​50/​50, 11 December 1995, United Nations Model Rules for the Conciliation of Disputes between States. In the same period, the Permanent Court of Arbitration adopted a set of model rules. Lucius Caflisch, however, stresses that there is a need to speak of regression as regards the effective use of this means for the settlement of international disputes. He explained that only one dispute, that is the delimitation of the marine areas of Jan Mayen Island between Iceland and Norway, had been successfully referred to this route. Lucius Caflisch, ‘Cent ans de règlement pacifique des différends interétatiques’, 288 (2001) Recueil des Cours de l’Académie de Droit International 245, at 359. For a detailed study of the case

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African states seem to have been committed to it since the day after independence. The oau thus made conciliation one of the main means of settling disputes between African States.12 Political modes, including mediation and conciliation, appear to be the favoured modes of settlement of international disputes of African States and international organizations. While some studies have been carried out on mediation in Africa,13 very few have been conducted on conciliation. This study aims to explore the use of this method of dispute resolution in Africa. After having researched the reasons that might lead African States to prefer this method of dispute settlement, the article examines the operational deployment of conciliation in Africa as well as possible characteristics of conciliation specific to the African continent. The article concludes by raising some questions about the future of conciliation in Africa. ii

Conciliation, a Method of Settling Disputes in Accordance with the African Conception of Justice

Many arguments have been put forward to justify the preference of African States for political settlement methods, including the use of conciliation, to resolve their disputes. The use of this type of settlement was explained as being due to the ‘spirit of conciliation’ that has always underpinned the traditional litigation system, which would explain the rejection of the use of adjudicative methods. These arguments, in particular that relate to a ‘cultural heritage’ hostile to jurisdictional modes, is not unique to Africa and this argument has been put forward for most non-​Western States, and especially the Asian States.14

12 13 14

see Ulf Linderfalk, ‘The Jan Mayen Case (Iceland/​Norway): An example of successful conciliation’, in: Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden/​ Boston: Brill Nijhoff, 2017) 193–​216. See the 1964 Protocol of the oau Charter on the Commission of Mediation, Conciliation and Arbitration. See, for example, Vincent Zakane, ‘Médiation et règlement pacifique des conflits en Afrique: analyse théorique’, 1 (2017) Revue CAMES/​SJ 243–​268. See, for example, Linda C. Reif, ‘Conciliation as a mechanism for the resolution of international economic and business disputes’, 14 (1990) Fordham International Law Journal 578, at 580; Ronald E.M. Goodman, ‘Conciliation, mediation and dispute resolution’, 90 (1996) Proceedings of the Annual Meeting (American Society of International Law) 75, at 77; Todd Allee, Manfred Elsig, ‘Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements’, 11 (2016) The Review of International Organizations 89, at 99, 114; Gbenga Oduntan, International Law and Boundary Disputes in Africa (London: Routledge, 2015) 291.

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A Settlement Method Similar to the Traditional African Approach to Dispute Resolution The traditional distinction between diplomatic-​political means of dispute settlement and the adjudicatory-​legal means is based on the standards applied and on the binding nature of the process. Diplomatic-​political procedures seek to reconcile interests and their outcome is not in itself binding; an ultimately binding result is reached only in the ideal case that the parties reach an agreement. Legal-​adjudicatory procedures apply international law and determine rights; they culminate in a binding decision which cannot be unilaterally evaded by one party.15 Conciliation, like other political-​diplomatic methods of dispute resolution, has a reputation for being more flexible, more constructive, and avoids the typical adjudicatory winner-​takes-​all solution. It is therefore commonly assumed that in all situations in which the parties want to or have to continue their relationship after the dispute, conciliation is preferable to adjudication because it is less adversarial and creates more win-​win types of solutions.16 This approach is also that found in the traditional approach to dispute resolution in Africa. Indeed, many studies on dispute resolution in traditional Africa have pointed out that the approach is a comprehensive one, aimed at understanding conflict in its social context. Such a perspective is not narrowly focused on a conflict and its resolution. It takes into account the cultural setting and the social context. It looks at the history of preceding events which have led up to the conflict concerned. And while concentrating on the conflict itself and the process of resolving it, it takes possible implications for the future seriously. A wider look is taken than one which just includes the disputing parties. Possible consequences for others in their families and social networks are also taken into consideration. Potential effects on relationships and interests are envisaged.17 Whenever kinship or social relationships are disturbed by a dispute, priority is given to their restoration. When the disputing parties, their supporters and the elders concerned engage in talking a matter through, it is usually the issue of relationships which receives most attention. The relationships of the past are reviewed, the tense relationships of the current conflict are investigated, and a settlement is sought that would improve future relationships. It is not only direct and obvious relationships that are taken into account, but also the more indirect relationships that may have a cross-​stitching potential.18 1)

15 16 17 18

Peters (fn. 5) 4. Ibid. Jannie Malan, Conflict resolution wisdom from Africa (Durban: accord, 1997) 20. See Malan (fn. 17)  21; Adeyinka Theresa Ajayi, Lateef Oluwafemi Buhari, ‘Methods of conflict resolution in African traditional society’, 8 (2014) African Research Review 138,

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The idea behind this approach is that the interests of the culturally or ethnically distant, even the interests of strangers, should be duly considered. Their interests should be safeguarded as far as possible, without contravening justice of course. When such a method is followed from a position of strength and magnanimity, it cannot be interpreted as weakness or meekness.19 It is not only the beginnings of a conflict that are illumined by the social context. The social context can also play its role to improve the end of the conflict resolution process. It can make an important difference if the purpose of the process is formulated in social, relational language. Both short-​term objectives and long-​term aims may benefit from Africa’s concern with relationships. A typical immediate goal is to reach an agreement which includes more than merely solving the problem or rectifying the injustice. What is specifically aimed at in the search for durable peace is genuine reconciliation and, where necessary, restitution and rehabilitation.20 ‘When a conflict resolution process is directed toward short  –​and long-​term goals which really extend into the field of human relations, at least a double advantage can result. Not only will the eventual stages of implementation and follow-​up be more far –​and wide-​ reaching. The whole procedure of resolving the conflict will also be regarded to be what it actually is: an event in the continuum of social life’.21 However, it should not be inferred from the above that traditional Africa did not have judicial dispute settlement. As underlined by Jannie Malan, past and present practices of conflict resolution in Africa include examples of adjudication and arbitration. Some form of court proceedings is usually followed in which an appointed ‘judge’, or perhaps a judicial panel, hears a case and decides about right and wrong, vindication and punishment. When arbitration is used, however, the social environment often plays an important role. After all, an arbitrator has to maintain the support of the community concerned,

19 20

21

at 151–​154; Cathie J.  Witty, Mediation and society:  Conflict management in Lebanon, (New York: Academic Press, 1980) 6. Malan (fn. 17) 22. See Hizkias Assefa, Peace and reconciliation as a paradigm: A philosophy of peace and its implications on conflict, governance and economic growth in Africa (Nairobi: Nairobi Peace Initiative, 1993) 6–​16; Amadou Dieng, ‘ADR in Sub-​Saharan African countries’, in: Arnold Ingen-​Housz (ed.), ADR in business:  practice and issues across countries and cultures, (Alphen aan den Rijn: Kluwer Law International, 2011) 611, at 613; Aranzazu Pagoaga Ruiz de la Illa, ‘International dispute settlement in Africa:  dispute settlement and conflict resolution under the Organization of African Unity, the African Union, and African traditional practices: a critical assessment’, 3 (2006) Yearbook on Humanitarian Action and Human Rights 57, at 83–​87. Malan (fn. 17) 25.

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and therefore has to be more sensitive to the assessment of his/​her decisions by others.22 The purpose is not to render a judgment in law but to reconcile the conflicting parties and their norms. Therefore, conciliation and mediation are not alternative dispute resolution methods but an integral part of institutional justice. In the traditional judiciary system in Yoruba land, for example, fines of damages are not usually awarded in civil cases. Restoration of harmony is what is paramount in the traditional judicial system. Sometimes, however, ‘judges’ award simple fines as a deterrent to the occurrence of particular anti-​social behaviour. This may be demanded in the form of kola nuts or local gin, both of which have ritual significance. If no gin or palm wine is available, ordinary drinking water can be used. Some of the kola nuts are broken and passed around for everyone to eat as a way of celebrating the resolution of the conflict. The drink is also passed around for all to taste. These actions help to reinforce the term of the reconciliation.23 In Senegal, Article 7 of the Civil Code allows a district judge, whether upon his own initiative or the proposal of the opposing parties, to make an attempt at conciliation by any possible means. Such an attempt is an obligation when it comes to family law and, more particularly, divorce settlement. Such requirements are found in the law of many French-​ speaking African countries and in the north of the continent.24 As a consequence of the social approach, the method generally preferred is to work towards consensus. This may develop into an extended search, for which much patience is needed. However, when the goal has been reached, the reward is real satisfaction. Every new consensual outcome confirms the validity and value of the time-​proven tradition of consensus seeking. It gives all who participated the feeling that they have been involved in a thorough and worthwhile process. Moreover, it creates confidence that such a jointly developed decision will prove to be effective and long lasting.25 It is this ‘healing function’ of the conciliation, which is similar to the traditional functions of dispute settlement in Africa, that can explain the preference African countries and international organizations give it. This seemed to be affirmed iteratively by African and oau leaders at the meetings of the Pan-​African Organization on crisis management in the 22 23 24 25

Ibid., 25–​26. Ajayi, and Buhari, (fn. 18) 144–​145. See Dieng (fn. 20) 615; Yazid Ben Hounet, ‘Les rituels judiciaires et parajudiciaires: conciliations et arbitrages dans le Nord de l’Afrique (exemples algérien, soudanais, nigérien)’, 8 (2018) Onati Socio-​Legal Series 386, 386–​399. Malan (fn. 17) 30.

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Continent. Among them, there was a constant concern to prevent conflicts from leaving the African fraternal framework, and above all the desire to find solutions that would make it possible to preserve peaceful relations for their common future.26 There is therefore a clear preference on the part of African States for mediation and conciliation, as it is closest to the palaver tree. This strong preference for these dispute resolution methods is probably due to the common belief that they are the closest to African socio-​cultural realities, but also to their flexibility and the benefits that are often recognized. As in the practice of the palaver tree, conciliation finds its full expression in the virtues of dialogue and discussion. When the parties to a conflict agree to sit at the same negotiating table and discuss their respective grievances with the support of a third party, they generally reach a mutually acceptable solution that will preserve social peace. Due to their complexity, African conflicts that combine historical, sociological, political and demographic aspects do not always seem to be able to be approached strictly from a legal perspective. Through the dialogue it generates, conciliation makes it possible to analyse the root causes of conflicts, to understand their multifaceted dimensions and to take into account the concerns and expectations of all parties.27 This attraction to conciliation, which makes it possible to obtain negotiated solutions and to spare their respective sensitivities, is consolidated by a deep distrust towards jurisdictional methods of settling international disputes, considered to be of Western inspiration. The So-​Called Repulsion of African States to an Adversarial System of Dispute Resolution It is undoubtedly worth highlighting here the kind of “common ground” that exists in legal doctrine on the aversion that African States would have to judicial dispute settlement methods. From our point of view, this prejudice is exaggerated. The repulsion, or more precisely the caution, that African States have towards international jurisdictions is not their only prerogative and is shared by almost all the States of the world. This state of affairs results from 2)

26

27

See Mirlande Manigat, ‘L’Organisation de l’Unité Africaine’, 2 (1971) Revue Française de Science Politique 382, at 387; Oduntan (fn. 14) 282; Victor Umbricht, ‘Principles of international mediation. The case of the East African Community’, 187 (1984) Recueil des Cours de l’Académie de Droit International 306, at 366. Zakane (fn.13) 255; Abdoul Ba, Bruno Koffi and Fethi Sahli, L’Organisation de l’Unité Africaine. De la charte d’Addis-​Abéba à la Convention des droits de l’homme et des peuples (Paris:  Silex Éditions, 1984)  134  ; Abakar Tollimi, La résolution des conflits frontaliers en Afrique (Paris : L’Harmattan, 2010) 209–​210.

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the very nature of jurisdictional methods and is explained, according to Lucius Caflisch, by the fear of losing the trial, the reluctance to submit to ‘foreign judges’, and the more general idea that recourse to the judge or international arbitrator could be perceived as an unfriendly act by the opposing party.28 For the States, a negotiated agreement is always preferable to the uncertainty of a future judgment. Actually, as many authors have pointed out, while the thesis of the ‘dialectic of palaver’ among Africans is historically well founded, the fact remains that the real reasons for the long-​standing mistrust of these States towards judicial dispute settlement procedures were based on the jealous protection of their sovereignty, in the face of procedures with binding solutions. With regard to the International Court of Justice (icj), in particular, this mistrust was heightened by the conviction that the latter had a ‘European-​centric and conservative’ approach.29 African States regarded international institutions, and especially the icj, to be perpetuating the colonial status quo at the expense of African realities and their interest. In particular, two cases –​the Northern Cameroon and South West Africa cases –​demonstrate Africa’s uneasy relationship with the Court in the wake of decolonization process.30 These judgments not only 28

29 30

Caflisch (fn. 11) 321. On the alleged aversion of African States to judicial mechanisms, see, in particular, Makane Moïse Mbengue, ‘African Perspectives on Inter-​state Litigation’, in:  Natalie Klein (ed.), Litigating International Law Disputes:  Weighing the Options (Cambridge, Cambridge University Press, 2014) 166–​189. See Mutoy Mubiala, ‘La contribution des Etats africains à la renaissance de la Cour Internationale de Justice’, 2 (1994) African Yearbook of International Law 173, at 175. icj, Case concerning the Northern Cameroon (Cameroon v. United Kingdom), Preliminary Objections, Judgment, 2 December 1963, 1963 icj Reports 15; icj, South West Africa, Second Phase, Judgment, 18 July 1966, 1966 icj Reports 1966, 6. Reactions were particularly strong after the 1966 Court ruling. President Senghor of Senegal denounced ‘un vrai scandale’. For his Malagasy counterpart, Philibert Tsiranana, it is a question of ‘grossier faux-​fuyant permettant à la Cour d’échapper à ses responsabilités’. The Chadian President stigmatizes the decision because of ‘l’atteinte qu’il risque de porter à la confiance des peoples dans l’organisation internationale’. The Minister of Foreign Affairs of the Côte d’Ivoire expressed his contempt ‘pour des arguties juridiques’ and thinks it’s a ‘coup redoubtable au prestige de la Cour et par là même à celui de l’onu’. The representative of Nigeria denounced the Court’s irresponsibility, while the representative of Liberia shouted: ‘ainsi à la suite d’un décès, d’une incapacité physique et d’une disqualification douteuse apparemment décidée par le Président de la Cour, la justice n’a pu suivre son cours et sept hommes ont fait une moquerie de la justice jetant sur la Cour internationale le pire opprobre de son histoire’. For a presentation of all the reactions to a highly controversial decision, see Georges Fscher, ‘Les réactions devant l’arrêt de la Cour Internationale de Justice concernant le Sud-​Ouest africain’, 12 (1966) Annuaire Français de Droit International 144, 144–​154. See also Makane Moïse Mbengue, Najib Messihi, ‘The South West Africa Case: Fifty Years Later’, 1 (2016) Ethiopian Yearbook of International Law, 11–​33.

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caused consternation among newly independent African countries but also confirmed their belief that the Court was one of the many tools employed by the West to maintain their hegemony over the nascent States in Africa. The option for conciliation therefore results here from a mistrust of legal rules and institutions considered to be Western-​inspired. Conciliation commissions are not required to apply legal rules and norms considered to reflect a non-​African ideology.31 Indeed, after the trauma of the South West Africa and Northern Cameroon cases was overcome, thanks in particular to a more positive attitude on the part of the icj, African States are increasingly resorting to the international courtroom.32 African States have long used courts and tribunals outside Africa to settle inter-​State disputes, most notably the icj, arbitral tribunals and specialized commissions such as the Ethiopia-​Eritrea Claims Commission.33 To date, African States have filed 19 inter-​State disputes with other African States at the icj and 12 disputes between African and non-​African States. Of the 17 cases pending before the icj to date, five involve African States, two of which are between African States. Out of a total of 73 declarations under article 36 paragraph 2 of the Statute of the icj, commonly known as the Optional

31 32

33

See Maria Madgalena Kenig, ‘Le règlement des différends entre Etats africains’, 19 (1986) Verfassung und Recht in Übersee/​Law and politics in Africa, Asia and Latin America 75, at 78. Nor can we ignore the decisive role of legal aid before the icj and the International Tribunal for the Law of the Sea (itlos), which has benefited many African States. See Maurice K. Kamga, ‘L’assistance judiciaire aux fins du règlement pacifique des différends internationaux devant la Cour internationale de justice et le Tribunal international du droit de la mer’, in:  Maurice Kamga and Makane Moïse Mbengue (eds.), L’Afrique et le droit international. Variations sur l’organisation internationale. Liber Amicorum Raymond Ranjeva (Paris: Editions A. Pedone, 2013) 519–​532. On the dynamics of icj-​Africa relations, see Mubiala (fn. 28) 173–​180; Charles Riziki Majinge, ‘Emergence of new States in Africa and territorial dispute resolution: the role of the International Court of Justice’, 13 (2012) Melbourne Journal of International Law 1–​43; Rosalyn Higgins, ‘The International Court of Justice and Africa’, in:  Emile Yakpo, Tahar Boumedra (eds.), Liber Amicorum Judge Mohamed Bedjaoui (The Hague/​London/​Boston:  Kluwer Law International, 1999)  343–​ 369; Ahmed Mahiou, ‘L’Afrique et la cij: un bref apercu de la pratique’, in: Maurice Kamga and Makane Moïse Mbengue (eds.), L’Afrique et le droit international. Variations sur l’organisation internationale. Liber Amicorum Raymond Ranjeva (Paris: Editions A. Pedone, 2013)  191, at 195–​200; Alain Pellet, ‘Remarques cursives sur les contentieux ‘africains’ devant la cij’, in:  Maurice Kamga and Makane Moïse Mbengue (eds.), L’Afrique et le droit international. Variations sur l’organisation internationale. Liber Amicorum Raymond Ranjeva (Paris: Editions A. Pedone, 2013) 277, at 278–​286. Abdulqawi A.Yusuf, ‘The Emergence of Judicial Institutions for Inter-​State Dispute Settlement in Africa: A Brief Survey’, 19 (2011–​2012) African Yearbook of International Law 279, at 285.

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Clause, 21 originate from African States, some 29% of the total. Dame Higgins has demonstrated that, generally speaking, African States have been willing to accept clauses in multilateral treaties which provide for reference to the icj to resolve disputes arising thereunder. There has been no hostility to use of the icj as such. African States are also parties to a variety of bilateral treaties with non-​African States that contain reference clauses to the icj. These are either treaties of amity or specific treaties.34 Another important element that should be highlighted and which shows the ambivalence of the relationship of African States with international justice is undoubtedly the subject of litigation submitted to the international judge. ‘It is noticeable that the vast majority of the disputes involving African states are tied to territorial and boundary questions. It is also noticeable that the Francophone African states have litigated more among themselves than the Anglophone states. It is perhaps too early to tell whether this is as a result of diplomatic pressures from France or the result of a shared legal or diplomatic tradition. The case between Cameroon and Nigeria represents the very first case before the Court between a Francophone and an Anglophone African State’.35 Concerning the World Trade Organization (wto), for example, African countries have hardly made use of the dispute settlement system. To date, African countries which have participated in the dispute settlement process have mainly done so only as third parties and not as complainants. The African countries which are relatively active are Egypt, South Africa, and Morocco, which have so far seen 12 cases brought against them (4 against Egypt, 3 against Morocco and 5 against South Africa). Tunisia is the only African country to have introduced two requests, and in both cases against another African country, Morocco.36 The same applies to investment disputes, where African States prefer to resort to conciliation. 10 of the 12 disputes in which conciliation was used, that is 83% of these procedures within the framework of icsid, concern African States.37 This mistrust of other universal judicial systems, apart from that of the icj, could perhaps be explained by the low presence, or even the virtual absence, of African arbitrators and other adjudicators in these proceedings and mechanisms. Some authors do not hesitate to affirm that ‘there is an institutional bias against developing world arbitrators within the law and practice’ of these 34 35 36

Higgins (fn. 32) 354–​356. Oduntan (fn. 14) 257. See the wto website for complete data, https://​www.wto.org/​english/​tratop_​e/​dispu_​e/​ dispu_​by_​country_​e.htm, last accessed 11 July 2019. 37 See https://​icsid.worldbank.org/​en/​Pages/​cases/​AdvancedSearch.aspx, last accessed 11 July 2019.

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institutions.38 In the face of these mechanisms, this lack of representativeness of Africans among adjudicators rekindles the caution that was already found in the oau towards the icj. The reasons behind the oau’s attempts to exclude non-​Africans from the role in settling African disputes were the belief that African action would be substantively more effective in resolving African disputes and designing stable solutions, and that the intrinsic quality of the resolution was less important than the fact Africans did it themselves. Member States of the nascent oau were convinced that extra-​African intervention in African affairs through dispute settlement proceedings had the potential of deepening the already existing African divisions and would make intra-​African cooperation impossible. The impact of this external interference could go even further, weakening African influence in world politics and thus jeopardizing the global influence of Africa and its component States.39 However, despite the remarks made above around the prejudice that non-​ Western States would suffer in general, it cannot be disputed that African States avoid referring disputes to the international judge, with the notable exception of territorial disputes. This repulsion is even more pronounced in the field of regional integration where community sentiment is closer to the traditional African approach. Despite the existence of legal remedies such as recourse for failure by a State to fulfil its obligations under Community law, States almost never make use of them and prefer to make use of diplomatic channels and negotiation. After a survey on the mandate and jurisprudence of the African regional courts, Yusuf concluded that: ‘[t]‌here is also a manifest reluctance by Member States to have recourse to these courts with regard to disputes arising among them on the interpretation of the treaties or in other areas related to their economic integration. They appear to prefer direct negotiations or mediation to judicial settlement’.40 To date, only one case has been reported of a State’s appeal against another before a regional integration court in Africa, that between Eritrea and Ethiopia before the comesa Court of Justice. Ethiopia sued Eritrea for damages arising from the retention of goods 38

39 40

Oduntan (fn. 14)  274–​275. It was also pointed out as a justification for the absence of African States in the dispute settlement mechanism, particularly the wto dispute settlement system, the limited expertise of these countries and their inability to pay for the services of experts, the high cost of the procedures, or their limited influence in world trade. See Victor Mosoti, ‘Africa in the first decade of WTO dispute settlement’, 9 (2006) Journal of International Economic Law 427, at 428–​429; Olajumoke O.  Oduwole, ‘Revisiting the non-​participation of African countries in the WTO dispute settlement mechanism: does it still matter?’, 20 (2014) African Yearbook of International Law 157, at 164–​182. Ruiz de la Illa (fn. 20) 66. Yusuf (fn. 33) 292.

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arriving at the Eritrean ports of Assab and Massawa, arguing that the retention was contrary to the provisions of the Common Market for Eastern and Southern Africa (comesa) treaty. The case was settled out of court before the Court could render a decision.41 Another element that underlines this reluctance of African States for judicial modes and a preference for conciliation/​mediation is found in the African human and peoples’ rights system. Judge Keba M’Baye explained the absence of a jurisdictional mechanism in the African human and peoples’ rights system by the conciliatory nature of African justice: ‘selon le concept africain du droit, les litiges se règlent par la conciliation et non par les procédures litigieuses. La conciliation s’effectue en général par voie de discussions qui aboutissent à des consensus ne laissant ni gagnants ni perdants. Les procès sont toujours soigneusement évités. Ils engendrent l’animosité. Les gens ont recours à la justice pour contester plutôt que pour résoudre une difficulté juridique. Par conséquent, la législation africaine (…) évite toujours le recours à la justice’.42 Indeed, the amicable settlement of cases brought to its attention by States, through conciliation or mediation, is the only possibility of a solution available to the African Commission on Human and Peoples’ Rights. By providing that, ‘after having tried all appropriate means to reach an amicable solution based on the respect of Human and Peoples’ Rights’, Article 52 of the Charter makes it clear that the Commission must not act as a judge when it is seized by one State of human rights violations by another State party, under Article 49. This approach is reinforced by Article 90(1) of the Commission’s Rules of Procedure, which stipulates that when the Commission is seized under Article 49 of the Charter, it must ‘offer its good offices’ to the States concerned for the amicable settlement of the dispute. The use of judicial proceedings before the African Court on Human and Peoples’ Rights should only be considered as a last resort, after the failure of conciliation/​mediation. Moreover, the Court itself, when it is directly seized of a dispute, may attempt to settle the dispute amicably, in accordance with Article 9 of the Ouagadougou Protocol establishing it. It was also pointed out that through this approach, the drafters of the Ouagadougou Protocol remained faithful to the African conception of justice, which emphasizes conciliation.43 Nonetheless, it cannot be ignored that conciliation within 41 42 43

Yusuf (fn. 33) 281, 286. Keba M’Baye, ‘Le concept africain des droits de l’homme’, 6 (1996) Bulletin Africain des Droits de l’Homme 3. See Grégoire Jiogué, ‘Article 9 Règlement à l’amiable’, in : Maurice Kamto (ed.) La Charte africaine des droits de l’homme et des peuples et le protocole y relatif portant création de la Cour africaine des droits de l’homme. Commentaire article par article (Bruxelles : Editions Bruylant/​Editions de l’Université de Bruxelles, 2011) 1304.

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the framework of human rights protection mechanisms has its own specificities and distinguishes it from conciliation as generally understood.44 There is indeed a difference in the operationalization of conciliation according to the hypotheses. iii

The Operational Deployment of Conciliation in Africa

Traditionally resistant to extra-​continental intervention in the settlement of disputes on the African continent, African international organizations and their Member States have established their own mechanisms for the peaceful settlement of their disputes. In particular, they see conciliation as an appropriate means of settling their disputes both at the continental level and within subregional bodies. However, this method of dispute resolution is not of the same importance to all organizations. 1) The Failure of Institutionalization within the Framework of the oau As part of its mechanism for settling disputes between its members, the oau had set up a permanent conciliation institution. Article xix of the oau Charter lays down the principle of peaceful settlement of disputes and provides for the establishment of a Commission of Mediation, Conciliation and Arbitration (cmca), whose composition and conditions of service shall be defined by a separate protocol to be regarded as an integral part of the Charter. The said Protocol was signed at Cairo on 21 July 1964 and contains detailed provisions on the establishment and organization of the Commission, on general principles and on the procedures to be followed in cases of mediation, conciliation and arbitration. Elected for a five-​year term by the Conference of Heads of State and Government, the twenty-​one members who constituted the cmca were also eligible for dismissal by the same body ‘on the grounds of incapacity to perform their duties or serious misconduct’. A dispute could be referred to the Commission jointly by the parties concerned, by a party to the dispute, by the Council of Ministers or by the Assembly of Heads of State and Government. If a dispute has been referred to the Commission and one or more of the parties have refused to submit to the jurisdiction of the Commission, the Bureau refers the matter to the Council of Ministers for consideration. On the other hand, the consent of the party could be expressed by a prior agreement, by an ad hoc submission of the dispute or 44

See Merrills (fn. 1) 78–​79.

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by the acceptance of the other party’s or the Council or Assembly’s submission of the dispute to the Commission’s jurisdiction. The Commission was endowed with powers of investigation or inquiry with regard to disputes submitted to it (articles xiv and xviii of the 1964 Protocol). In accordance with the Protocol, the parties to a dispute were also to agree to resort to any one of the following modes of settlement: mediation, conciliation or arbitration. These three modes were alternative –​and not necessarily successive –​procedures, and parties were free to use any one or all three in respect of a dispute. The Commission thus offered States the appreciable flexibility to have recourse at their discretion either to mediation without investigation, and solely for the purpose of reconciling points of view, by one or more members appointed by the President of the Commission, or to conciliation with the dual task of investigation and reconciliation by a Council of five members, three of whom are chosen by the President and the others by the parties, or finally to traditional arbitration to decide the merits of the dispute.45 The conciliation procedure was dealt with specifically in Part iv of the Protocol. One or more of the parties to a dispute formally submits a request for conciliation to the Commission by means of a petition addressed to the president. If only one party petitions, the petitioner must show that prior written notice has been transmitted to the other party. The petition shall include a summary explanation of the grounds of the dispute. Next, the president of the Commission forms a board of conciliators, consisting of three persons appointed by the president from among the Commission and one appointee of each party. The president designates one of the members of the Commission as chairperson of the board. During the nominations, all parties attempt to ensure that none of the members of the board are nationals of the same State. The duties of the board are to clarify the issues in contention and to broker an agreement between the parties upon mutually acceptable terms. The board has jurisdiction to consider all questions submitted to it and can undertake any inquiry or hear any person capable of giving any relevant information concerning the dispute. Each board determines its own procedures with the consent of the parties. The parties have a right to be represented before the board by agents who also act as intermediaries between the board and the parties. If the parties wish so, these agents can be assisted by counsel and other experts. The parties can request that all persons with relevant evidence appear before the board. Finally, at the close of the proceedings, the board drafts a

45

Mohammed Bedjaoui, ‘Le règlement pacifique des différends africains’, 18 (1972) Annuaire Français de Droit International 85, at 88.

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report stating either the terms of the agreement between the parties, if there is one, or that it has been impossible to come to a settlement. The report is to be submitted to the president of the Commission as soon as possible and can be published only with the consent of the parties.46 Temporary committee in a permanent framework, the Commission combined the resources of flexibility and practicality. According to Mohammed Bedjaoui it would have been easy to bet for the future of the cmca, especially since its competence was optional and it could be seized both by the parties to the dispute and by the organs of the oau.47 The Commission, which had been laboriously set in motion, was unable to have any active life despite the commendable efforts of its members.48 The Commission’s offers of service were rejected by Malawi and Tanzania in their border disputes; by the four countries concerned in the ‘emigrant conspiracy’ (Guinea, Côte d’Ivoire, Senegal, Mali); by Sierra Leone and Ghana during the Accra coup d’état; and by Nigeria and the countries that recognized Biafra (Gabon, Côte d’Ivoire, Zambia, Tanzania). The only attempt to make use of the Commission was made in 1967 concerning the case of the detention of Guinea officials in retaliation for ‘arbitrary arrest’ by Guinea of several citizens of Côte d’Ivoire and the capture of a fishing trawler suspected that its crew had plotted to kidnap former President of Ghana Kwame Nkrumah living in Guinea. Nevertheless, little could be done by the Commission because one of its Vice-​Presidents, Dr. E. Daniels of Ghana, was detained by the military-​police which deposed Nkrumah. When the Commission finally met, three and half years after its establishment, in December 1967 in Addis Ababa it had already become clear that the oau had embarked on a totally different course for the settlement of disputes than that envisaged by the Charter and the Protocol of the Commission.49

46 47

48 49

See Peter Mweti Munya, ‘The Organization of African Unity and Its Role in Regional Conflict Resolution and Dispute Settlement: A Critical Evaluation’, 19 (1999) Boston college Third World Law Journal 537, at 549–​550. For example, Article 7 of the Niamey Act of 26 October 1963 on Navigation and Economic Cooperation between the States of the Niger Basin, and Article 13 of the Statutes of the African Groundnut Council annexed to the Dakar Convention of 18 June 1964, allowed the referral to the cmca after exhaustion of the appeals lodged respectively before the Niger River Commission and the African Groundnut Council. The Commission could also be seized on the basis of article 7 of the Fort Lamy Convention on the Development of Lake Chad. Bedjaoui (fn. 45) 88–​89. Zdenek Cervenka, ‘The settlement of disputes among members of the Organisation of African Unity’, 7 (1974) Verfassung und Recht in Übersee/​Law and Politics in Africa, Asia and Latin America 117, at 117–​118.

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The many suggestions made to improve the Commission were not successful. It was suggested in turn that the cmca should be given the power to formulate advisory opinions; that it should be given the functions of a human rights commission; that it should be allowed to sit as an administrative tribunal of the oau General Secretariat; that its jurisdiction should be extended to disputes relating to the interpretation and application of the oau Charter; and that this body should study major diplomatic, legal and political issues likely to generate friction in the future.50 In 1977, the Assembly of Heads of States and Governments of the Organization of African Unity, with a view to rendering the Commission more flexible and more apt to respond to the urgencies of intra-​African disputes, decided to suspend the election of the Commission’s members and provisionally appoint an ad hoc Committee composed of nine States plus three other possible members to be appointed by the oau Chairman.51 While the possibility always exists for the oau to reactivate the Commission or the ad hoc Committee discussed above, in practice the oau has had recourse to other procedures in an effort to peacefully resolve a number of other disputed issues in which it has been involved. It has done so through the Council of Ministers and the Assembly of Heads of State and Government and through the creation of special or ad hoc committees other than the cmca. Indeed, oau Member States have always favoured ad hoc conciliation committees, to the detriment of the permanent framework of the cmca. Several examples may be given of ad hoc organs created either by the Council of Ministers or by the Assembly of Heads of States and Governments in their efforts towards the peaceful settlement of disputes among African States.52 Thus, after armed incidents took place in October 1963 between Algeria and Morocco in connection with a disputed area of the Sahara, and following the personal intervention of some heads of State, an extraordinary meeting of the Council of Ministers was convened at which an ad hoc commission was established to examine the questions connected with the frontier dispute and make recommendations for its peaceful settlement. Other cases of mediation/​ conciliation by heads of State include the following: in 1966, President Mobutu of Zaire, at the request of the oau Assembly, mediated in an ethnic conflict between Rwanda and Burundi; in 1972, the President of Somalia and the Administrative Secretary-​General of oau successfully mediated in serious troop clashes and border incidents between the United Republic of Tanzania and Uganda. Furthermore, an ad hoc committee was created by the Assembly in 50 51 52

Ibid. 89. See UN Office of Legal Affairs (fn. 8) 85–​86. Ibid. 95.

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1971 to attempt to conciliate in a conflict involving Guinea and Senegal on the extradition of Guinean exiles alleged to have committed acts of government destabilization in Guinea. This failure to institutionalize a permanent conciliation and mediation body within the oau can probably be explained by the very nature of disputes between States. These were very often disputes deeply marked by the seal of politics for which the solutions offered by the cmca seemed, in the opinion of the Heads of State at least, inadequate. The Protocol establishing the cmca has thus been criticized for being too inspired by UN procedures by ignoring African realities and context.53 The predominantly political character of the organization has been reflected equally strongly in the nature of the disputes and crises between the Member States that were without exception regarded by the parties as ‘highly political’.54 The nature of the political regimes in force on the continent also has an impact on the nature of disputes and the modalities for their resolution. The personification of the State often transforms disputes between States into inter-​individual conflicts, rivalries between regimes and between Heads of State.55 The advantage of ad hoc conciliation commissions was that they made it possible to take into account, in a conflict between two States, the fragmentation of friendships and support registered on both sides.56 African leaders therefore favoured a case-​by-​case approach, very often based on the personality of the actors and the personal relationships that could bind some of them. Their concern was to avoid any formalism, rigidity or mechanical approach to which the routine work of an institutionalized body could have led. Analyzing the oau’s approach to the settlement of African disputes, Mohammed Bedjaoui concluded that: ‘Il n’est donc pas paradoxal d’affirmer que la force de l’oua et de certaines de ses commissions ad hoc est finalement de n’avoir pas usé de tous les pouvoirs, même de ceux dont l’investissaient les parties elles-​mêmes”.57 It is therefore not surprising that the formula has been adopted, with some adjustments within the framework of the African Union and some sub-​regional organizations.

53 54 55 56 57

Cervenka (fn. 49) 121 ; Ruiz de la Illa (fn. 20) 73–​74. Cervenka (fn. 49) 120. Maurice Kamto, ‘Les mutations institutionnelles de l’oua’, in : Maurice Kamto et al. (eds), L’OUA : rétrospective et perspectives africaines (Paris: Economica, 1990) 15, at 37. See Manigat (fn. 26) 396 ; Ruiz de la Illa (fn. 20) 69 ; Mweti Munya (fn. 45) 558 ; Jean-​ Claude Gautron, ‘La Libye et le Tchad devant la Cour internationale de Justice ?’, 35 (1989) Annuaire Français de Droit International 205, at 212. Bedjaoui (fn. 45) 96.

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A More Discreet and Residual Place within the au and Sub-​Regional Organizations The absence of jurisdiction within the oau was explained as not only resulting from the incompatibility of such a body in African culture, but also as counterproductive. Pierre Vellas wrote about this in this way: ‘Il ne paraît donc pas opportun de préconiser la création d’une Cour de Justice régionale. Pas plus que de tribunaux arbitraux qui ne correspondent pas davantage, ni par leur nature juridictionnelle ni par leur procédure, aux possibilités d’expression, diplomatique et juridique, africaines. Surtout quand la conception du droit, traditionnelle en même temps que coutumière, n’attache pas à la règle écrite une valeur incontestée, quand toute la tradition est dans le sens d’une création continue socio-​juridique adaptée à l’évolution des problèmes à régler et des intérêts à satisfaire. Limiter les compétences du juge ou celles de l’arbitre à l’application des règles de droit positif sur lesquelles les décisions devraient être fondées n’est pas, sauf cas exceptionnel, compatible avec la tradition africaine. Le serait davantage la fonction d’amiable compositeur. Mais elle risque d’être peu compatible avec les procédures juridictionnelles qui lui donnent un cadre rigide, peu adapté, à la spontanéité naturelle de la négociation africaine’.58 It seems, however, that the African continent has not remained outside the jurisdictionalization process that affects the international institutional phenomenon. Many international jurisdictions have gradually emerged in the African institutional space, particularly within integration spaces. Africa now even has the highest number of courts, with no fewer than a dozen regional courts listed, even though it is the continent with the highest number of ineffective courts. Nevertheless, this creation of courts within international organizations on the Continent does not mean necessarily a renunciation of the African conception of dispute settlement.59 The creation of these courts responds to many different approaches. One of them, while based on the mimicry and appeal of the European model, corresponds to an incantatory or even totemic approach to international jurisdiction. In regional integration processes, the court thus appears to be the guarantor of the integration process, responsible 2)

58 59

Pierre Vellas, ‘La révision des procédures de règlement des conflits dans le cadre de l’Organisation de l’Unité Africaine’, 14 (1978–​1979) Revue Belge de Droit International 157, at 163. See Apollin Koagne Zouapet, ‘Les instances judiciaires du système africain de protection et de promotion des droits de l’homme’, in : Alain-​Didier Olinga (ed.) La protection internationale des droits de l’homme en Afrique. Dynamique, enjeux et perspectives trente ans après l’adoption de la Charte africaine des droits de l’homme et des peuples (Yaoundé : Editions Clé, 2012) 115, at 119.

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for ensuring, through the application of the law, the effectiveness of deepening economic ties between States parties. It is as if, by multiplying the number of jurisdictional dispute settlement mechanisms, African States are certain to avert fate or prevent conflicts.60 The second, more political logic corresponds to the desire to project both an image of the rule of law and to free oneself from a criticized neo-​colonialism. The establishment of an international court thus corresponds to a desire to create an institution that would make it possible to legitimize political choices, sometimes to the detriment of the function of judging itself.61 This movement to create courts without renouncing the conciliatory nature of African justice leads, within African international organizations, to the maintenance of conciliation as a means of settling disputes between States; a mode that is nevertheless more discreet in the texts of these organizations and that will gradually play a residual role. Succeeding the oau with the ambition of renewing and consolidating the political and economic integration project launched in 1963, the African Union (AU) has established an institutional framework that goes well beyond the diplomatic approach favoured by the oau. However, a distinction must be made between the proclamation of principles and the reality of the functioning of the organization and the devolution of powers. Thus, despite the establishment of an international jurisdiction, the Assembly of the Union and the Executive Council of the AU are in line with the continuity of the Assembly of Heads of State and Government and the oau Council of Ministers. Qualified as a supreme organ by the Constitutive Act of the AU (Article 6 (2)), the Assembly of the Union is composed of the Heads of State and Government of the Member States or their duly accredited representatives. This body is responsible for the entire political aspect of the Union, from overseeing the functioning of the African Union Commission to appointing its key leaders and defining the Organization’s policies. In addition, Article 9 (g) of the Constitution makes a special mention of its mandate for conflict management, war situations and the restoration of peace. Like its predecessor of the oau, the Conference of the Union is dedicated to all issues and plays an important role in conflict resolution, through mediation/​conciliation. For example, meeting in extraordinary session in February 2003 to discuss amendments to the 60 61

Blaise Tchikaya, ‘La juridictionnalisation du règlement des conflits internationaux en Afrique’, 2 (2006) Revue du droit public et de la science politique en France et à l’étranger 459, at 464. See Apollin Koagne Zouapet, ‘L’Union Africaine à la recherche de son introuvable juridiction’, in  :  Guy Mvelle, Laurent Zang (eds.), L’Union Africaine Quinze Ans Après (Paris : L’Harmattan, 2017) 279–​298.

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Constitutive Act proposed by Libya, the Conference did not hesitate to sit as a central body, under the Mechanism for Conflict Prevention, Management and Resolution, to deal with the Ivorian crisis.62 Thus, despite the absence of an express textual consecration, the literature expresses the view that nothing prevents the Assembly of the Union and/​or its President-​in-​Office from using diplomatic means to resolve a dispute between Member States, in particular conciliation.63 Conciliation is clearly mentioned and enshrined as a means by which the Peace and Security Council can settle disputes between Member States. The Peace and Security Council was incorporated in the au through a Protocol adopted the 10 July 2002 in Durban (psc Protocol) and following what established in article 5 of the Constitutive Act regarding the creation of new organs. This Protocol replaces the Cairo Declaration establishing the oau Mechanism for Conflict Prevention, Management and Resolution. The Security Council constitutes a standing decision-​making organ for the prevention, management and resolution of conflicts. This organ is also a collective security and early warning arrangement to facilitate timely and efficient response to conflict and crisis in Africa. According to Article 8 of the psc Protocol, the functions of the Council are the promotion of peace, security and stability; early warning and preventive diplomacy; peace-​making, including the use of good offices, mediation, conciliation and enquiry; intervention operation; peace building and post-​conflict reconstruction; humanitarian action; and any other function decided by the Assembly. To this end, the Peace and Security Council has broad powers and may, under Article 8 (5) of the psc Protocol, set up ad hoc mediation, conciliation or investigation committees. At sub-​regional level, and despite the existence of judicial bodies, particular importance is attached to mediation and conciliation as the preferred means of settling disputes between Member States. Whether it is the Economic Community of West African States (ecowas), the Economic Community of Central African States (eccas), the South African Development Community (sadc), the Intergovernmental Authority on Development (igad), the Arab Maghreb Union (amu), the Common Market for Eastern and Southern Africa (comesa) or the Community of Sahel-​Saharan States (cen-​s ad), all these communities have set up a conflict prevention, management and resolution mechanism that gives mediation/​conciliation a privileged place. Thus, ecowas adopted on 10 December 1999 a Protocol on the Mechanism for Conflict 62 63

See Albert Bourgi, ‘L’Union africaine entre les textes et la réalité’, 5 (2004) Annuaire Français des Relations Internationales 327, at 333. See Ruiz de la Illa (fn. 20) 79 ; Zakane (fn. 13) 251.

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Prevention, Management and Resolution providing for the establishment of a Mediation and Security Council (msc). Composed of nine Member States, the msc is competent under Article 10 of the Protocol to take decisions on all matters of peace and security in the region and to authorize any kind of intervention or decide on civil and military missions. It is supported in its task by the Council of Wise Persons, composed of fifteen eminent persons, which may be entrusted with mediation or conciliation missions. A sui generis approach is carried out by igad through the institutionalization of the ‘Council of elders’ who conciliate the disputes that arise out of the interaction of boundary communities. The Council of elders endeavours to ascertain as quickly as possible the facts of the developing situation or actual crisis. Based on their findings and reports, or evidence supplied to them, they offer solutions and recommendations to bring a situation under control or resolve a conflict and have been successful in doing so on many occasions.64 Concerning the sadc and according to article 11 (b) of the Protocol on politics, defence and security cooperation, State Parties are obliged to manage and seek to resolve all disputes between two or more of them by peaceful means. Article 11 (3) mentions the specific peaceful means that are envisaged: preventive diplomacy, negotiations, conciliation, mediation, good offices, arbitration and adjudication by an international tribunal. In the East African Community, the Dispute Settlement mechanism regulations of the eac Customs Union provides that the Parties to a dispute may request the Chairperson of the Council, the Secretary general or any other person the parties to dispute deem fit to offer good offices, or to mediate or conciliate between or among them with a view to achieving an amicable settlement of the dispute. Other examples include the Convention establishing the International Centre of Bantu Civilizations (ciciba). According to Article 25 of this Convention, any dispute concerning the interpretation or application of the Convention that is not settled by negotiation or consensus shall be referred to the Conference of Ministers Responsible for Cultural Affairs by any party to the dispute. If, after having taken into consideration all relevant information, the Conference of Ministers is unable to settle the dispute, it shall set up a conciliation commission composed of three members, two of whom shall be appointed by each of the parties. The third member appointed by consensus by both parties shall chair the commission. If one of the parties fails to appoint its conciliator, or if there is no consensus on the third member, the current President of the Conference of Ministers shall appoint the missing member or members. The 64

Oduntan (fn. 14) 129–​130.

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Conciliation Commission shall draw up its report and forward it to the Conference of Ministers, which shall rule on the dispute and render a final and unappealable decision. 3) Conciliation in the Settlement of Disputes with Non-​African Partners As might be expected, in their relations with partners in other regions of the world, African States must no longer rely solely on their own cultural references, but must also take into account the desires and choices of these partners. In this context, the African approach to conciliatory justice, which makes conciliation the main means of settling disputes, is very often replaced by jurisdictional and judicial methods. This is probably due to the weight and place of African States in international relations. With the exception of a few of them and in particular cases, they have few means of imposing their choice in dispute resolution on very often more powerful partners. Power constellations and regional differences also shape dispute settlement design. Todd Allee and Manfred Elsig explain it in terms that deserve to be fully reproduced. ‘Although the above logic is sensible, we find several reasons to believe that powerful states might actually support strong, legal dispute settlement –​most of which stem from the general point that powerful states can use international institutions to their advantage (…). First, many dsm s [Dispute Settlement Mechanisms] allow for both ‘diplomatic’ and ‘legal’ dispute settlement, so powerful states can benefit from having a menu of dispute settlement options that allows them to forum-​shop even within treaties. Second, powerful states can select with whom they sign agreements and what is (and is not) contained in the agreement. So the obligations that are subject to powerful dispute settlement are likely to be desirable elements that powerful states want to have enforced. Third, evidence from other studies of international agreements suggests that powerful states have disproportionate influence on the design of dispute settlement mechanisms. Fourth, power still plays a role, even within legal dispute settlement, since any legal dispute settlement ruling must still be implemented, which may depend on a state’s ability to sanction or impose costs on a non –​compliant party’.65 This probably explains the low number of cases of recourse to conciliation in inter-​State disputes between African and non-​African States. In fact, only two cases have been identified, which will be presented here The first case is the International Commission of Inquiry and Conciliation established in 1957 by special agreement between France and Morocco, also 65

Allee and Elsig (supra note 14) 97.

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known as the ‘F. oabv aircraft re-​routing case’.66 On 22 October 1956, in the middle of the Algerian war between France and the Algerian nationalists, a plane carrying Ben Bella and four other leaders of the Algerian rebellion landed in Algiers and the French authorities immediately arrested them. However, this aircraft, registered F. oabv, which flew from Rabat to Tunis was owned by the Compagnie Chérifienne des Transports Aériens (ccta). It was made available to Algerian nationalists at the end of their official stay in Morocco at the invitation of the Cherifian sovereign. This re-​routing of the plane and the arrest of its passengers triggered a conflict between France and Morocco, which the government believed was responsible for the safety of Ben Bella and his companions. At the beginning of 1957, the two parties agreed to set up an ‘International Commission of Inquiry and Conciliation’. The Commission’s mandate included the task of determining whether the Government of Morocco was justified in arguing that the re-​routing of the aircraft registered F. oabv on 22 October 1956 was contrary to a rule of public international law. Due to the confidentiality covering the procedure, little can be said about the conduct of the conciliation itself. However, it was interrupted on 28 February 1958 by the Moroccan government’s decision to withdraw its member from the Conciliation Commission. Mr. Fillali, the Moroccan Commissioner, abandoned the work to protest against the Commission’s refusal to hear a witness called by the Cherifian government.67 The other case of conciliation deserving particular attention is the one between Egypt and Israel in the aftermath of the 1967 war. This example is particular in that there has been a kind of ‘two-​tier conciliation’, allowing, on an exceptional basis, an oau body to become involved in the settlement of a dispute not involving two members of the Organization. Based in particular on the provisions of its Charter relating to the safeguarding and territorial integrity of each of its Member States, the oau has expressed its interest and concern, since September 1967, by the occupation of part of African territory, Sinai, by Israeli forces. By its ahg resolution. 66 (viii) of 23 June 1971, the oau Summit appointed a ‘Ten-​member Commission’ which in turn set up a four-​ member sub-​commission, both composed of Heads of State. The so-​called

66

67

See Nguyen-​Quoc-​Dinh, ‘Les commissions de conciliation sont-​elles aussi des commissions d’enquête ?’, 38 (1967) Revue Générale de Droit International Public 561, at 611–​614 ; ‘L’affaire du F. oabv (Maroc c. France)’, 4 (1958) Annuaire français de droit international 282–​295. On this case see also Heinhard Steiger, ‘Looking Back Again:  Inter-​State Conciliation between 1931 and 1957. The Cases with Participation of European States. Lessons to be Drawn from Today’s Viewpoint’, in this book, 11.

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‘Commission of the Wise’ has set itself the objective of supporting the United Nations action to achieve a peaceful settlement of the conflict based on Security Council Resolution 242 of 22 November 1967. It was therefore in line with the United Nations course of action.68 Taking as a starting point the initiative of the mediator appointed by the United Nations, the ‘Commission of the Wise’ sought by its action to relaunch the mission of the latter and thus help to search for a solution. What has been termed a ‘procédure de médiation au second degré’69 was in fact a sui generis conciliation conducted by African Heads of State. Indeed, the ‘African Wise Persons’ procedure first included ‘exploratory talks’. During these interviews and on the basis of the UN Mediator’s questionnaire, the ‘Wise Men’ sought in the answers of the two parties to know and delimit possible common ground between them, after which they articulated and summarized in different points the respective positions of the protagonists. On this basis, the Commission identified what it considered to be common positions between the two parties, grouped into six suggestions. These were presented to Egypt and Israel and then, together with the responses they provoked on both sides, delivered to all oau Member States and to the Secretary-​General of the United Nations and the Mediator. The procedure was therefore reduced to taking up the United Nations mediator’s questionnaire, left unanswered by Israel, exploring the meeting points directly through a set of questions asked and answers received, identifying from these factors the elements of agreement they contain, then returning to the parties to ‘submit suggestions’ directly inspired by these elements by ‘relying on their acceptance’, to enable the implementation of the mediator’s own mission with a view to implementing the United Nations Security Council Resolution.70 This first ‘informal’ conciliation was followed by another, more substantial one in the mid-​1980s. In accordance with the Camp David Agreements of 17 September 1978 asking them to demarcate their border, Egypt and Israel concluded an agreement to this effect on 11 September 1986. The parties agreed to put the dispute to an arbitration tribunal consisting of five members, including one national of each party. At the same time and in parallel with the work of the arbitral tribunal, the president of the latter was to set up a conciliation chamber composed of three members appointed from among the arbitrators, including the two national arbitrators of the States in conflict. The mandate, the procedure within this conciliation chamber and the relationship with the 68 69 70

See Bedjaoui (fn. 45) 97. Ibid., 98. Ibid.

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arbitral tribunal were defined by Article ix of the Agreement. Under this article, ‘2. After the submission of counter-​memorials, this chamber shall give thorough consideration to the suggestions made by any member of the chamber for a proposed recommendation concerning a settlement of the dispute. Suggestions based upon the memorials, the counter-​memorials, and other relevant submissions shall be presented to the chamber commencing from the month immediately preceding the counter-​memorials. The chamber shall thereafter consider these suggestions, and the counter-​memorials, during the period after submission of the counter-​memorials until the completion of the written pleadings. Any proposed recommendation concerning a settlement of the dispute which obtains the approval of the three members of the chamber will be reported as a recommendation to the parties not later than the completion of the exchange of written pleadings. The parties shall hold the report in strictest confidence. 3. The arbitration process shall terminate in the event the parties jointly inform the Tribunal in writing that they have decided to accept a recommendation of the chamber and that they have decided that the arbitration process should cease. Otherwise, the arbitration process shall continue in accordance with this Compromis. 4. All work pursuant to the above paragraphs absolutely shall not delay the arbitration process or prejudice the arbitral award, and shall be held in the strictest confidence. No position, suggestion, or recommendation, not otherwise part of the presentation of a party’s case on the merits, shall be brought to the attention of the other members of the Tribunal, or be taken into account in any manner by any of the members of the Tribunal in reaching their arbitral decision’. In reality, this Conciliation Chamber would only meet once and at the end of its term of office, its President announcing that it was unable to make recommendations for the settlement of the dispute. Several reasons have been put forward to explain the failure of this Conciliation Chamber. One of the main ones was the confusion of arbitration and conciliation mandates. This was likely to affect the game for both the parties and the adjudicators. This procedure created a de facto inequality between arbitrators. Although arbitrators are bound by the same obligations of independence and participate equally in the decision in the arbitral proceedings, some of them, because of their role as conciliators, had information that was not accessible to others. The confidentiality of the conciliation proceedings prevented them from sharing with the other arbitrators the information to which they had access in the conciliation proceedings. On the other hand, they could not base their decision in the arbitral proceedings on information to which they had access as conciliators. This difficult schizophrenia also had an impact on the parties during the conciliation procedure. They had to decide whether they should bet everything on .

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conciliation, relying on the good faith of the other party and the ability of the arbitrators, in the event of failure of the procedure to ‘forget’ everything they had been able to admit in the conciliation phase.71 For completeness, it is probably appropriate to mention the very rare cases of conciliations at the initiative of the United Nations. Within the framework of the United Nations operation in the Congo, the General Assembly, in its resolution 1474 (ES-​IV) of 20 September 1960, requested the Advisory Committee on the Congo to appoint, in consultation with the Secretary-​General, a conciliation commission for the Congo. The commission, which was composed of representatives of some African and Asian countries, carried out its mission from 1960 to 1961. Again in 1961, the General Assembly, by its resolution 1600 (xv) of 15 April 1961, decided to establish a Commission of Conciliation for the Congo, and therefore the President of the General Assembly appointed the members of the commission. However, the Government of the Congo never called on the commission to perform the function for which it was created.72 iv

Is There a Particular Approach to Conciliation in Africa?

In view of the place of conciliation in Africa and the close link that this method of settling international disputes has with the African conception of justice, it would be interesting to ask whether the African conciliator is inspired by the past practices inherent to the Continent. In other words, to what extent would traditional procedures be operational in the current context, and likely to give rise to an approach to conciliation specific to the African continent? 1) Institutional and Material Aspects of Conciliation in Africa First of all, it should be stressed that there is a lack of rigour in the choice of terminology in African practice relating to dispute settlement mechanisms. There is a confusing use of the terms ‘good offices’, ‘mediation’, ‘conciliation’ or even ‘arbitration’ without necessarily corresponding to the technical and academic content of these expressions. It is therefore necessary to identify the real nature of a dispute resolution mechanism, go beyond its official name, and examine the mandate entrusted to it and the real tasks it performs. Thus, 71

72

For an analysis of the procedure and its criticism, see Koopmans (fn. 1) 63–​66; Marcelo G. Kohen, ‘Interaction between diplomatic and judicial means at the initiation of proceedings’, in: Laurence Boisson de Chazournes et al. (eds), Diplomatic and judicial means of dispute settlement (Leiden/​Boston: Martinus Nijhoff Publishers, 2013) 13, at 18. See UN Office of Legal Affairs (fn. 7) 48, para.148.

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for example, the first commission that the oau referred to as ‘arbitration’ is the one established by the Bamako Agreements on the Algerian-​Moroccan dispute. The task of this commission, according to the Agreements, was to establish the person responsible for the outbreak of hostilities, examine the dispute and finally propose to the parties how it should be resolved. The reading of this mandate suggests that we have to deal more with the establishment of a commission of inquiry and conciliation than with an arbitration body. Similarly, the action of the oau Council of Ministers to settle the dispute between Ghana and the Republic of Guinea over the release of Guinean diplomats held at Accra airport, as well as an intervention by the Zairean President in a dispute between Gabon and Equatorial Guinea, have been described as ‘arbitration’. In reality, neither case corresponded to an arbitration in its legal sense.73 In some cases, determining the nature of the organ can be particularly difficult. This is the case, for example, of the Cameroon-​Nigeria Joint Commission, created at the end of the meeting organized between the Heads of State of the two countries on 10 November 2002 in Geneva. According to the joint statement that defines its mandate, the Joint Commission is not only responsible for ‘considering ways and means of implementing the icj judgment’, but also for ‘considering all the implications of the decision, including the need to protect the rights of the populations concerned in both countries[and] that one of its tasks will be to demarcate the land border between the two countries’. Without being clearly a jurisdictional body, the Joint Commission set up was approaching a conciliation commission, but without actually being one in the opinion of part of the doctrine. According to Mahmoud Mohamed Salah, ‘Par là, leur rôle au sein de la Commission mixte [that of the United Nations] autorise le rapprochement entre celle-​ci et les commissions de conciliation qui ont souvent une composition impaire, incluant à côté des représentants des parties, un ou plusieurs membres neutres par rapport à celles-​ci et qui visent à proposer un règlement soumis, en dernier ressort à l’approbation des parties. (…) Il semble toutefois que la Commission mixte Cameroun-​Nigéria ne puisse pas être qualifiée de commission de conciliation. En effet, quelque soit le rôle que jouent en son sein les Nations Unies, elle n’est pas un organe tout à fait autonome par rapport aux parties. Les décisions ne s’y prennent pas à la majorité simple ou qualifiée, mais par consensus. (…) Il s’agit bien donc d’entretenir une négociation continue jusqu’au règlement définitif de l’ensemble des points litigieux. Par là, le rôle des Nations Unies évoque plus celui d’un médiateur ou 73

Kenig (fn. 31) 83–​84.

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d’un facilitateur que d’un conciliateur’.74 In reality, and on closer examination, the Joint Commission is a sui generis mechanism, which borrows from both mediation and conciliation and therefore refuses to be strictly categorized formally. As Professor Salah noted later in his article, the Joint Commission is a forum for the combined use of several processes for the peaceful settlement of international disputes.75 The same analyses and conclusions are valid, mutatis mutandis, for the High Level Mediation Team on the boundary dispute between Tanzania and Malawi over Lake Nyasa/​Malawi (hlmt), which operates within the Forum for former African Heads of State and Government (The Africa Forum).76 What has been described as ‘nonchalance in using legal terminology’77 is explained by African leaders as a pragmatic attitude towards the problem to be solved. In the words of the Head of State of Niger at the Fourth Ordinary Session of the oau Assembly of Heads of State, ‘le fait que la commission soit de caractère de médiation ou de conciliation importe peu –​il est essentiel, par contre, qu’elle puisse créer des possibilités permettant de mettre fin à l’hostilité entre Etats’.78 Professor Bedjaoui believes that this approach is a kind of remedy to the artificial nature of the distinction between disputes in political and legal disputes. The dispute is considered by African States as a very complex whole in which political and legal matters are intertwined. Such an attitude makes it possible to focus on the effective methods of its settlement, without worrying about their character.79 In the field of human rights, the African Commission on Human and Peoples’ Rights, although its rules of procedure refer to ‘good offices’, when a State refers to violations of the African Charter on Human and Peoples’ Rights by another State Party, tries to obtain an amicable settlement through mediation and conciliation, or even a combination of the two. Only the end counts, regardless of the means. Apart from the fact that diplomatic means of peaceful settlement of disputes may overlap and are sometimes difficult to distinguish,80 the need to 74 75 76 77 78 79 80

Mahmoud Mohamed Salah, ‘La Commission mixte Cameroun/​Nigéria, un mécanisme original de règlement des différends interétatiques’, 51 (2005) Annuaire Français de Droit International 162, at 171–​172. Ibid. 183, note 117. See Oduntan (fn. 14) 207–​208, 214. Kenig (fn. 31) 84. oau Secretariat, Resolutions and declarations adopted by the fourth ordinary session of the Assembly of Heads of State and Government held in Kinshasa, Congo, from 11 to 14 September 1967. Bedjaoui (fn. 45) 94. Caflisch (fn. 11) 284.

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comply with formal and rigorous principles surrounding most procedures would paralyse the initiative of African States. It is therefore natural, in the opinion of some authors, for the African States to choose modes that are more appropriate to the tradition of their political culture, those that are at the origin of African diplomacy, the main characteristic of which is the return to ‘African palaver’ as part of the ‘great African family’.81 It does not matter that the modalities of this palaver do not fall within the frameworks and categories of the ‘classics’ of international law. One of the characteristic features of the conciliation procedure in Africa relates to the modalities of its institution. Very often, and almost systematically in the framework of the oau, the conciliation commission is set up by an integrated body of the international organization, after an initial mediation within it in order to obtain agreement on the principle of conciliation. It is therefore very often the Council of Ministers, exceptionally the Conference of Heads of State, which after consultations and negotiations, sets up a conciliation commission composed not of natural persons but of Member States of the organization. There are many examples in oau practice. In 1966, the oau Council of Ministers established an ad hoc commission called the ‘Special Commission of Good Offices’ for the settlement of the dispute between Ghana and Guinea, composed of representatives of Congo, Kenya and Sierra Leone. The ‘Special Commission’ for the settlement of the dispute between Senegal and Guinea established by the same body in 1971 was composed of Ethiopia, Algeria, Cameroon, Liberia, Mali, Mauritania, Nigeria, Guinea and Senegal. In the context of the dispute between Mali and Haute-​Volta (now Burkina Faso), the ‘Mediation Commission’ was composed, in addition to representatives of the countries in conflict, of representatives of Niger and Togo. The same model was adopted in 1976, in the context of the dispute between Libya and Tunisia, with representatives of these countries on the commission and representatives of Uganda and Mauritania. At its fourteenth session in Libreville in 1977, the Assembly of Heads of State and Government established a Committee for the settlement of the dispute between Ethiopia and Sudan, composed of Zambia, Sierra Leone, Togo, Algeria, Senegal, Zaire, Nigeria, Cameroon and Gabon. At the same session, another ad hoc committee was set up to settle the dispute between Chad and Libya, composed of Senegal, Algeria, Cameroon, Nigeria, Mozambique and Gabon. This designation of countries rather than States is concretely reflected in the mediation/​conciliation of Heads of State and the persons they have 81

Kenig (fn. 31) 88.

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delegated for this purpose and who report directly and personally to them. The conciliation procedure in Africa is thus a ‘top-​down conciliation’, i.e. a conciliation characterized by the intervention of high-​ranking African political figures at the highest level of the conflict.82 It is this involvement of Heads of State that can help to understand the recurring choice of certain countries in conciliation and mediation commissions. Indeed, the methods of setting up and composing conciliation bodies are of very high importance for the effective settlement of inter-​State disputes. It is indeed the procedure chosen and the choice of persons that will often determine the acceptance, by the States parties to a dispute, of a conciliation procedure.83 As in the traditional cities, often referred to as gerontocracies, ‘seniority’ is a decisive factor in the choice of contemporary African mediators. Within traditional settlement of disputes, the issue of confidence and trust in the individuals conducting it is a very important element. In addition, the fact that the elders are the ones enjoying a central role, suggests the existence of a dispute settlement system based on the authority of the wisest and the most experienced and talented.84 For the Heads of State, this also means a kind of deaf competition to arrogate or confirm a ‘wise’ status for themselves on the Continent. There is a need for African leaders to play a conciliatory role, which can also use or increase their political resources, and which results in competition as we have seen, for example, in the dispute between Chad and Libya.85 This also applies to former Heads of State and Government. Nevertheless, the mediator’s ‘wisdom’ or expertise in the conflict, or his desire to stabilize a region, are far from being the only elements that lead to the intervention of the high-​level African mediator/​conciliator. It must also appear to the parties in conflict to be sufficiently impartial and neutral. Like the Beti of Cameroon, where the conciliator must not have an alliance with parties, the third party members of the conciliation commission should remain ‘in the middle’ and maintain a ‘capacity for indifference’ towards the various protagonists. They must be able to be external to the ‘emotion that surrounds’ the conflict. However, it is not uncommon for the African mediator/​conciliator to maintain certain connections with the protagonists within a conflict. In some cases, this may be the very reason for its choice if, in the opinion of the other States or the international organization, it is a positive element that can facilitate contact with one or the other party.86 82 83 84 85 86

Daniel Lopes, ‘Médiations politiques africaines ‘par le haut’ : analyse empirique et essai de théorisation’, 3 (2013) Perspectives internationales 55, at 56. Caflisch (fn. 11) 368. Ruiz de la Illa (fn. 20) 86. See Gautron (fn. 56) 208, 212. Lopes (fn. 82) 64–​65.

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Whether it is the establishment of the Conciliation Commission within the Council of Ministers, or the choice of Heads of State as conciliators, this is a pragmatic approach, guided by a concern for efficiency.87 As one prominent author has explained: ‘[d]‌ans le règlement pacifique, l’Afrique n’a pas eu exactement à effectuer un choix manichéen entre le ‘Sage’ conciliateur mais faible, et le ‘Prince’ médiateur mais puissant. Elle a eu sa manière réaliste de préparer les temps sereins mais encore lointains où la primauté du droit ne serait pas qu’une illusion généreuse et s’est attachée pour l’heure à institutionnaliser le règlement politique par souverains, la justice des pairs, l’arbitrage institutionnel du Conseil des Ministres et le règlement diplomatique du forum constitué par la ‘famille africaine’ ”.88 However, there are exceptions to this approach and there have been cases where African States have not only opted for a single conciliator, and/​or a non-​African conciliator for disputes between African States. Thus, in 1977, Kenya, Uganda and Tanzania asked the experienced Swiss diplomat Victor Umbricht to make proposals for the distribution of the assets of the former East African Community. The dispute had arisen because the partner states, having integrated their economic activities both before and after independence, had decided to go their separate ways. Before this could be done it was necessary for an agreement to be reached on the extent of the eac’s assets and liabilities and, more contentiously, on their allocation; as the three States were unable to resolve these matters by negotiation, they were encouraged by the World Bank to give Dr. Umbricht a wide-​ranging brief to investigate the whole issue and bring forward proposals for its resolution.89 While the initiative for the process very often comes from the organs of an organization to which they belong, OAU/​AU or sub-​regional organizations, the establishment of a conciliation commission is only made with the mutual consent of the parties in conflict. Africa does not have compulsory conciliation. Compulsory conciliation is the one in which jurisdiction is granted in the original agreement, and that therefore a commission can unilaterally be seized. When the relevant commission is not permanent, this implies an obligation on the respondent to appoint its conciliator(s). However, a distinction must be made between compulsory conciliation and the obligation to resort to

87 88 89

See for good illustrations of the use and effectiveness of this approach, Cervenka (fn. 49) 124–​125. Bedjaoui (fn. 45) 86. Although termed by the parties a ‘mediator’, Victor Umbricht was clearly engaged in conciliation. See Merrills (fn. 1) 70–​71; Koopmans (fn. 1) 49, 68. For a detailed study of the conciliation and the methods used, see Umbricht (fn. 26) 306–​389. His work is also appraised in this book by Daniel Thürer, Chapter 3.

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conciliation before other methods of dispute settlement are applied. In the latter case, parties can by common agreement ignore such obligation, and immediately move to binding settlement.90 Conciliation in Africa is almost always optional. This refers to a system in which parties have laid down a conciliation procedure, but reserve the right in each particular case to determine each for themselves whether or not they will use it. In the case of Africa, this option is provided for in the framework of regional and sub-​regional organizations to which the States in conflict are parties. It is an option that is always available, but is never imposed on them. With regard to the working methods of conciliators in Africa, it was stressed that, despite their variety, these methods share the common goal of seeking dialogue between the various protagonists, with the sole objective of reaching a peace agreement that would reflect the reconciliation of the actors and the success of the conciliation. Daniel Lopes wrote that the African mediator/​conciliator was both ‘facilitator’ and ‘formulator’ and, exceptionally, ‘manipulator’. According to Jacques Faget’s classification, which Lopes uses, the ‘facilitator’ only promotes communication between the different parties, while the ‘formulator’ proposes solutions to the protagonists in addition to having a certain influence on the agenda of the discussions. The ‘manipulator’, for his part, not only makes proposals, but is also supposed to possess persuasive capacities linked in particular to his ‘position’ and his ‘power resources’. The African conciliator, like a facilitator, first endeavours to establish contact between the parties. They also formulate remedies. However, it has no real control over the outcome of the conciliation. It is not in a position to impose any vision on the parties, except in the event that one of the protagonists depends, financially or militarily, on the mediator-​manipulator. On this point, African conciliators rely mainly on external pressures exerted by the major powers and/​or the United Nations on the parties to the conflict.91 Between the two conceptions of conciliations proposed by Koopmans, the African approach is rather a political one. The arguments used can include economic, historical, strategic and many other relevant considerations. Legal considerations may be among them, but where they are do not carry any preponderant weight: the value attached to them depends on how important anyone thinks they are. It is important to note, as the author points out, that the types (political or legal conciliation) only relate to the conduct of conciliation, and do not refer to the basis of any eventual settlement between the parties,

90 91

Koopmans (fn. 1) 55–​58. Lopes (fn. 82) 57.

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for that is beyond the conciliation itself.92 For Maurice Kamto, the preference for the political approach to conciliation is justified by the nature of African disputes. As these disputes are generally political or politicised, they require more political than legal solutions, and consequently the intervention of politicians rather than legal technicians.93 This probably explains why the proposal of the Secretary-​General of the oau to conduct the conciliation from a ‘legal point of view’ was not adopted by the Assembly of Heads of State and Government. Indeed, as part of the reforms aimed at boosting the cmca, he proposed ‘de désigner des hommes qualifiés professionnellement pour mener la médiation, la conciliation ou l’arbitrage dans les différends. Ces derniers exerceront leur travail d’un point de vue juridique pour parvenir ainsi à des décisions et recommandations’.94 Conciliators, especially Heads of State, begin their conciliation by meeting each of the protagonists separately. At this level, it is a question of listening to the different versions as well as the claims of each of the parties. This allows them to judge the determination of the parties to defend their position and, the possibility of proposing solutions from that moment on is not excluded. While the meeting place for this is generally symbolic in the African tradition, the ‘palaver’ in contemporary conciliation is most often held in ‘neutral’ territory, at one of the conciliators’ premises or in another strategic location.95 As Merrills pointed out, what a conciliation commission does and how it goes about its work depends in the first place on the instrument setting it up.96 In the framework of African organizations, it is regarded as a kind of institutionalised negotiation. The task of the commission is then to encourage and structure the parties’ dialogue, while providing them with whatever assistance may be necessary to bring it to a successful conclusion. In the East African Community case, the sole conciliator considered it necessary to have full and exhaustive information on the Community’s assets and financial situation. With the agreement of the parties, one of the conciliator’s first actions was to set up an auditing board composed of experts in accounting, finance and engineering to advise him on the formulation of guidelines and their application. In addition to this body, he also engaged more than forty technical and financial experts for limited periods to assemble and check information. These 92 93 94 95 96

Koopmans (fn. 1) 127–​128. Kamto (fn. 55) 40. CM/​977 (xxxiii), Rapport du Secrétaire général sur le Comité d’experts juridiques sur les amendements au Protocole de la Commission de médiation et d’arbitrage. Lopes (fn. 82) 58. Merrills (fn. 1) 72.

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were organised into working groups and between them prepared draft reports on all eac institutions. The draft reports were passed to the governments for comment and eventually provided the basis both for the preparation of the conciliator’s proposals relating to the distribution of assets and for the parties’ subsequent negotiations.97 While several aspects of the African political conciliator are close to a certain classicism, there is no denying the emergence of an African model of conciliation that constitutes a kind of African solution to African problems. Conceived on the basis of traditional representations of mediation and conciliation, this African model of conciliation is imbued with African socio-​political realities and is based on original African methods and solutions implemented in the various African experiences in this field. This African model of reconciliation thus makes it possible to draw on African cultural and political resources to find original solutions to African problems. Unfortunately, however, just like mediation, conciliation, while establishing itself as a preferred means of conflict prevention and resolution in Africa, suffers from the lack of clear rules. The methods and techniques of conciliation and the applicable rules vary considerably from one conciliation to another. It follows that the success of conciliation in Africa depends more on the talents and personal qualities of conciliators, as well as the circumstances of conflicts, than on the implementation of a proven conflict resolution technique.98 This is a project that should undoubtedly be undertaken by the International Law Commission of the African Union in order to provide Africans and the world with a general framework for settling disputes in accordance with the African approach to conciliatory justice. 2) Link between Conciliation and Jurisdictional Modes in Africa As we know, and the icj has clearly stated, there is no general obligation to negotiate before an international court is seised. The Court clarified the state of positive law in these terms: ‘Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposa1 by the Advisory Committee of Jurists in 1920 (Advisory Committee of Jurists, Procès-​verbaux of the Proceedings of the Committee (16 June-​24 July 1920)  with Annexes,

97 98

See Umbricht (fn. 26) 328–​341; Merrills (fn. 1) 74. Zakane (fn. 13) 266–​067.

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pp. 679, 725–​726). Nor is it to be found in Article 36 of the Statute of this Court. A precondition of this type may be embodied and is often included in compromissory clauses of treaties. It may also be included in a special agreement whose signatories then reserve the right to seise the Court only after a certain lapse of time (cf. Territorial Dispute (Libyan Arab Jamahiriya/​chad), Judgment, I.C.J. Reports 1994, p. 9). Finally, States remain free to insert into their optional declaration accepting the compulsory jurisdiction of the Court a reservation excluding from the latter those disputes for which the parties involved have agreed or subsequently agree to resort to an alternative method of peaceful settlement’.99 The purpose of this section is therefore less to recall what is known than to question African practice. Does the African approach to justice have an impact on their use of both methods of dispute resolution? It could legitimately be that, given the conciliatory nature of traditional African justice, African States would be more inclined to establish a closer link between conciliation and the jurisdictional settlement of their disputes. Here again, African practice oscillates between a classicism common to all States and a desire to preserve relations between neighbours for the future. The same applies to African States as to all other States in the world: in the context of a dispute, pragmatism is central to the relationship between the parties. The pre or post adjudicative initiatives reflect the pragmatic attempt to adjust to actual, as well as potential, changes in the circumstances surrounding a dispute.100 While conciliation and judicial settlement are not mutually exclusive,101 there is an almost systematic tendency to negotiate upstream of judicial settlement and downstream for the concerted implementation of sentences. From this point of view, conciliation seems to be part of the jurisdictional strategy for dispute settlement in Africa. This corresponds once again, in a way, to the philosophy of the palaver tree. According to it, the dispute settlement procedure has a conciliation phase with a real decision, and the questioning of which leads to the second phase,

99

icj, Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, 11 June 1998, 1998 icj Reports 275, 303 para. 56. 100 Laurence Boisson de Chazournes, Antonella Angelini, ‘Between saying and doing : the diplomatic means to implement the International Court of Justice’s iuris dictum’, in: Laurence Boisson de Chazournes et al. (eds), Diplomatic and judicial means of dispute settlement (Leiden/​Boston: Martinus Nijhoff Publishers, 2013) 155, at 160. 1 01 See Kohen (fn. 71) 23. However, an attempt has been made to explain that conciliation would be more appropriate for political disputes and jurisdiction for legal disputes. See Koopmans (fn. 1) 16–​19.

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which is the judgment, with the search for responsibility and the payment of ­damages.102 The decision to bring an action before an international court, and in particular the icj, has often been the result of upstream diplomatic efforts. The conciliation conducted within pan-​African organizations, despite their failure to resolve the dispute between African States, has often resulted in a Compromise to refer the matter to the icj. It was diplomatic efforts within the oau that led to the conclusion on 10 June 1977 of the compromise between the Tunisian Republic and the Socialist People’s Libyan Arab Jamahiriya for the submission to the International Court of Justice of a dispute concerning the delimitation of the continental shelf between the two countries. The Judgment of 22 December 1986 recalls and underlines the previous attempt at conciliation within the oau to resolve the border dispute between Burkina Faso and Mali. This failure of the oau was followed by mediation attempts by other African States individually. Despite their failure, however, these attempts have resulted in convincing the parties to seek a judicial settlement of the dispute between them.103 In the dispute between Chad and Libya, the ‘Framework Agreement (Accord-​Cadre) on the Peaceful Settlement of the Territorial Dispute between the two countries done at Algiers on 31 August 1989, required States to make an attempt at conciliation, which should not exceed one year, before any possible referral to the icj. It was only this prerequisite that was satisfied that the Court could be validly seised by a compromise between the two States.104 In 1992, Botswana and Namibia, in a quest to resolve amicably the dispute between them, entered into negotiations facilitated by Zimbabwe, which resulted in the Kasane Communiqué. Through this agreement the parties committed to resolve the issue peacefully and agreed to submit the determination of the boundary around Kasikili/​Sedudu to a joint team of technical experts. It was only after the experts’ admission of failure in their report published in August 1994 that the two States agreed, during a new meeting in Harare, to submit the dispute to the icj.105 This prior conciliation may raise some difficulties, in particular with regard to confidentiality and the impact of the conciliation procedure on a

1 02 Ba et al. (fn. 27) 142. 103 icj, Frontier Dispute (Burkina Faso/​Republic of Mali), Judgment, 22 December 1986, 1986 icj Reports 554, 571–​573 para. 36–​38. 104 icj, Territorial Dispute (Libyan Arab Jamahiriya/​Chad), Judgment, 3 February 1994, 1994 icj Reports 6, 8–​11 paras. 2–​8. 105 icj, Kasikili/​Sedudu Island (Botswana/​Namibia), Judgrnent, 13 December 1999, 1999 icj Reports 1045, 1049 and 1058 paras. 2, 15–​16.

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subsequent judicial settlement. The icj had to consider the issue in the case of the Frontier Dispute between Burkina Faso and Mali. In the present case, Burkina Faso alleged that the Malian Government had, during the conciliation/​ mediation phase preceding the referral to the Court, acquiesced in the settlement of the dispute proposed by the Commission set up by the oau. Burkina Faso quoted, in support of his point, an interview granted by the Malian Head of State to Agence France-​Presse. In this interview, the Malian President stated that his government would comply with the decision of the Commission set up by the oau, if the latter objectively determined that the border should be drawn through the Malian capital. The icj Chamber rejected Burkina Faso’s argument, emphasizing that both parties recognized that the Commission was not a ‘jurisdictional body’ lacking ‘the power to take legally binding decisions’ and, ‘never actually completing its work’.106 Examining the statements of the Malian President, the Chamber, after recalling its obiter dictum in the nuclear testing case on unilateral acts, stated that a unilateral act is binding on the State only ‘when it is the intention of the State making the declaration that it should become bound according to its terms’ and ‘that intention confers on the declaration the character of a legal undertaking’.107 Having reviewed the circumstances of the case, the Chamber considered that it was not appropriate to interpret the statement of the Malian Head of State as a unilateral act with legal effects in relation to the dispute before it. With regard specifically to the scope of the alleged acquiescence to the delimitation principles adopted at the conciliation, the Chamber affirmed that it was required to settle the dispute in accordance with international law, regardless of whether or not Mali had adopted a particular position during the border negotiations or with regard to the conclusions of the Legal Sub-Commission of the oau Mediation Commission. According to the icj Chamber, ‘[i]‌f these principles and rules are applicable as elements of law in the present case, they remain so whatever Mali’s attitude’.108 The Chamber has thus preserved the integrity of the conciliation by ensuring that the positions and attitudes adopted by a State during the conciliation procedure cannot be invoked against it in any subsequent judicial proceedings.109 As recommended by the Institut de 1 06 107 108 109

Frontier Dispute (fn. 104) 572 para. 38. Ibid., 573 para. 39. Ibid, 575 para. 42. For a critical analysis of the icj Chamber’s position, see Emmanuel Decaux, ‘L’arrêt de la Chambre de la Cour internationale de Justice dans l’affaire du différend frontalier Burkina-​Faso c.  République du Mali, arrêt du 22 décembre 1986’, 32 (1986) Annuaire Français de Droit International 215, at 222–​223  ; Peter Tomka, Vincent-​Joël Proulx, ‘Les affaires africaines devant les chambres de la Cour Internationale de Justice’, in: Maurice

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Droit International, ‘no admission or proposal formulated during the course of the conciliation procedure, either by one of the Parties or by the Commission, can be considered as prejudicing or affecting in any manner the rights or the contentions of either Party in the event of the failure of the procedure; and, similarly, the acceptance by one Party of a proposal of settlement in no way implies any admission by it of the considerations of law or of fact which may have inspired the proposal of settlement’.110 This recommendation was followed and enshrined by the United Nations General Assembly in its United Nations Model Rules for the Conciliation of Disputes between States.111 In many cases, the dispute between Cameroon and Nigeria being undoubtedly the most iconic example, conciliation occurs only after a court decision has been rendered. Schematically, there is therefore a first attempt at conciliation, very often within the framework of a regional organization, which fails but leads at least to the agreement to refer the matter to international jurisdiction, in this case the icj. After the decision of the international judge, the parties accept a new conciliation, aimed at implementing the decision. Alain-​ Didier Olinga explained the role of this intervention by the judge. Clearly, he writes, the relationship between the two States has reached such a degree of distrust and breach of trust before the judicial settlement that it is unrealistic for them to continue to discuss, without clarifying the respective rights of each other in relation to the territory under discussion. The recourse to the judge thus becomes, not the settlement in itself of the case, but the definitive and intangible clarification of the element that is at the heart of the negotiation, the element that makes it possible to determine the objective situation that is that of the two negotiating parties. The law, indicated and explained by the judge, plays the role of a facilitator of negotiation, taking the respective positions of the parties out of the order of dispute, contestation and blurring, and Kamga and Makane Moïse Mbengue (eds.), L’Afrique et le droit international. Variations sur l’organisation internationale. Liber Amicorum Raymond Ranjeva (Paris:  Editions A. Pedone, 2013) 322, at 334–​335. 110 Institut de Droit International (fn. 3) Preamble para.8. 1 11 UN GA Res. 50/​50, 11 December 1995, United Nations Model Rules for the Conciliation of Disputes between States. Under the terms of Article 28, “1. Except as the parties may otherwise agree, neither party shall be entitled in any other proceedings, whether in a court of law or before arbitrators or before any other body, entity or person, to invoke any views expressed or statements, admissions or proposals made by the other party in the conciliation proceedings, but not accepted, or the report of the commission, the recommendations submitted by the commission or any proposal made by the commission, unless agreed to by both parties. 2. 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”.

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projecting light into them. Before the judgment of the international court, a territory is disputed and the conciliation stumbles over the legal elements of the positions of the two States; after the judgment, the title of sovereignty over the territory is clearly established and, if a conciliation is conducted, it is no longer on the basis of a vagueness maintained around the state of law, a vagueness on the legal situation of each of the two protagonists: the law will have drawn the clear lines of the negotiation and conciliation process.112 This conciliation, which takes place after the decision has been rendered, does not call into question the res judicata. ‘Yet, this does not deprive the ‘juridical component’ of any relevance for implementation; rather it calls for reflection on its role in directing the process of dispute resolution. In this vein, the pronouncement first of all offers a sort of authoritative benchmark for measuring the legitimacy of each party’s claim during negotiations on implementation. Additionally, the commitment to abide by the judgment may help justifying certain actions likely to raise discontent domestically, thereby reducing the political costs of dispute resolution. Finally, with regard to implementation efforts going beyond compliance, the pronouncement can also provide a framework for diplomatic initiatives addressing the overall dispute between the parties’.113 The Nigerian and Cameroonian Heads of State also stressed that the conciliation efforts were not intended to call into question the Court’s decision but, on the contrary, it had been the basis of their negotiations and a fundamental element in the final settlement of the dispute.114 Despite its commitment to the law and respect for it, a State may be unwilling to implement a judicial decision if it is anxious on how the implementation would be perceived domestically. This is a reminder of the relevance of Guy de Lacharrière’s analysis: ‘Un gouvernement qui n’arrive pas à triompher peut du moins limiter sa défaite, et à la limite la nier. Sous sa forme la plus achevée, l’ambiguïté fera qu’il n’y aura ni vainqueur, ni vaincu: un match nul ou le ‘pat’ des échecs (…) mais c’est un match nul d’une nature bien particulière en ce 112 Alain Didier Olinga, L’accord de Greentree du 12 juin 2006 relatif à la presqu’île de Bakassi (Paris: L’Harmattan, 2009) 114. 113 Boisson de Chazournes and Angelini (fn. 101) 166. See also the interview of the former United Nations Secretary General, Kofi Annan ‘Two cases in perspective: boundary delimitation in the Bakassi peninsula and criminal accountability in Kenya. Interview of H.E. Kofi Annan conducted by Nicolas Michel’, in: Laurence Boisson de Chazournes et al. (eds), Diplomatic and judicial means of dispute settlement (Leiden/​Boston:  Martinus Nijhoff Publishers, 2013) 281, at 282. 114 United Nations, ‘Nigeria, Cameroon sign agreement ending decades-​old border dispute; sets procedure for Nigerian withdrawal from Bakassi peninsula’, Press release, AFR/​1397, 12 June 2006.

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sens qu’il est proclamé tel par l’observateur qui juge simultanément les résultats obtenus par les deux parties; mais pour celles-​ci, ou plutôt pour chacune d’entre elles, la possibilité existe de chanter victoire, ou du moins de mettre en valeur les résultats obtenus. L’ambiguïté délibérée est donc un compromis, mais très différent de celui qui aurait été consenti sur la substance au bout de concessions faites par les parties et qu’elles auraient incorporé dans un texte qui l’exprimerait d’une manière claire et précise’.115 The use of conciliation after the pronouncement of a court decision thus makes it possible to have a solution in accordance with the philosophy of the palaver tree: one really wins without triumphalism, and the other loses with dignity and without humiliation.116 It is therefore right that the Greentree Agreement was seen as a manifestation of diplomatic realism in the service of the effectiveness of international law as expressed by the icj.117 The use of post-​judgment conciliation by African States embodies an increasingly avoidable approach to combining the methods or operations provided for in international law for the settlement of disputes, in an order of succession that cannot be determined once and for all and for all concrete situations. Diplomacy and jurisdiction mutually reinforce each other in the service of peace between nations, according to the order that the parties concerned are willing to make of them.118 Post-​judgment conciliation thus meets the essence of traditional African conciliatory justice: to preserve and open up new prospects for cooperation between States after decades of difficult relations due to the dispute that has been settled. Furthermore, in the Cameroon/​Nigeria case, the diplomatic initiatives taken in the post-​adjudicative period went beyond compliance, with the aim of resolving certain issues crucial to extinguishing the respective disputes. The mediation/​conciliation conducted within the Joint Commission has thus made it possible to resolve sensitive issues such as the question of nationality of the populations in the quarrelled space, or that of straddling villages and the relocation thereof.

1 15 Guy de Lacharrière, La politique juridique extérieure (Paris: Economica, 1983) 90–​91. 116 See Olinga (fn. 113) 27–​29. 117 Signed on 12 June 2006, the Greentree Agreement refers to the agreement concluded by Cameroon and Nigeria in the presence of the Secretary-​General of the United Nations, in order to set out the modalities for the implementation of the icj judgment of 10 October 2002. In particular, the Agreement establishes a Monitoring Committee, whose mission, like that of the aforementioned Joint Committee, reveals a body of a hybrid nature. See Olinga (fn. 113) 105–​108. 118 Olinga (fn. 113) 20.

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Concluding Remarks

The attractiveness of conciliation and other modes of settling political and diplomatic disputes for African states can be justified for two main reasons. The first is the political tension that can arise from jurisdictional modes. In Africa, as elsewhere in the world, apart from cases of referral by compromise, bringing a State before an international court is considered an act of enmity. At the same time, adjudication involves a loss of political control over a situation. States dislike the loss of control that is entailed over the future of the case, since this will then depend upon legal considerations with which they do not find themselves at home.119 Indeed, because of the way it is conducted, through a dialogue with and between parties, there is no danger of conciliation producing a result that takes the parties completely by surprise, as sometimes happens in legal proceedings. Conciliation offers a procedure adaptable to a variety of needs and demonstrates the advantage to be derived from the structured involvement of outsiders in the settlement of international disputes.120 The second reason, which follows from the first, is related to the African conception of justice. It is a conciliatory approach that aims primarily to preserve future relationships between the parties and within the community. This implies a ‘win-​win’ strategy where any triumphant victory or humiliating defeat is avoided. This explains the use of conciliation even after legal proceedings. The African States thus wish, thanks to the jurisdictional decision taken and based on the law, to find the means to build a lasting solution making it possible to settle the dispute definitively while laying the foundations of a new relationship of trust. In such cases, conciliation, though not a panacea, by allowing for more leeway and avoiding the appearance of complete loss, contributes to peace and security.121 Conciliation in this sense remains an underused but viable means of resolving African disputes, especially boundary disputes. African States would, according to some analysts, benefit from resorting to this method more frequently although care must be taken to ensure that the results and decisions reached at the end of the conciliation are binding and enforceable.122 While it espouses a certain classicism in its main aspects (confidentiality, flexibility, non-​binding decision, etc.), African practice is characterised by a 119 Ian Brownlie, ‘The peaceful settlement of international disputes’, 8 (2009) Chinese Journal of International Law 267, at 281–​282. 120 Merrills (fn. 1) 90. See also Peters (fn. 5) 33. 121 Koopmans (fn. 1) 256. 122 Oduntan (fn. 14) 289.

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preference for ad hoc committees whose nature is difficult to define. They are generally commissions bringing together African leaders and political authorities of the Continent whose activities remain in line with the tradition of the ‘African palaver’. It is a kind of ‘tribunal of African sages’ working based on the principles of equity, justice and the links that emanate from the sense of community.123 It is a pity that so far the procedures implemented in the African framework seem, in the opinion of some, to defy any codification.124 In any case, it would be an interesting project for the African Union International Law Commission, which, without confining African practice to inadequate rigidity and formalism, could identify good practices and develop guidelines for conciliation and mediation in Africa, in accordance with the values and traditions of the peoples of that continent. 1 23 Kenig (fn. 31) 91. 124 Bedjaoui (fn. 45) 98.

­c hapter 7

A Foundational Experiment: The Timor Leste-​Australia Conciliation Ginevra Le Moli and Jorge E. Viñuales i

Introduction

Most professors of international law who have been tasked with introducing the different methods for the peaceful settlement of international disputes to an audience of students or, occasionally, to a party seeking their advice, will likely have faced the dearth of contemporary examples of successful conciliation processes. It is certainly possible to refer to one or more existing mechanisms, dive into the possible operation of rules guiding the process, and emit an opinion on the pros and cons of conciliation as compared to bare negotiation or to the more adversarial arbitral or judicial dispute settlement. But, until recently, we were lacking a truly foundational experiment in which a conciliation process had managed to successfully settle a complex dispute between two distrustful parties on a major question, maritime ­delimitation. The Timor-​Leste/​Australia conciliation process conducted under the rules of the UN Convention on the Law of the Sea has provided such an experiment and, in doing so, it has drawn attention more generally to conciliation as a realistic means of international dispute settlement. Moreover, the Conciliation Commission established to conduct the conciliation process skilfully developed and used a number of practices which will likely set a precedent for future conciliation processes, whether under the unclos or in other contexts. This chapter analyses this foundational experiment, first by looking at the broader context of conciliation procedures, then examining the context of the dispute between Timor-​Leste and Australia, and finally analysing certain salient points of the conciliation process itself. Our conclusion is stated in the title of the chapter. The Timor-​Leste/​Australia is indeed a foundational experiment which illustrates in great detail the potential of conciliation to settle highly complex disputes in contemporary international law.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_008

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Conciliation in International Dispute Settlement

1 The Origins of Conciliation Conciliation represents a classical method of settlement of international disputes,1 characterized by an eclectic nature2 and rooted in more than a century-​ long legal history.3 In July 1899, at the first International Peace Conference in The Hague, a ‘Convention for the Pacific Settlement of International Disputes’ was adopted,4 which established a global institution for international dispute resolution, namely the Permanent Court of Arbitration (‘pca’). This Convention was later superseded and expanded to other signatories  –​particularly from Latin-​America –​in 1907 at the second Hague Convention.5 The Hague Conventions did not specifically provide for conciliation but for ‘commissions of inquiry’. Yet, the two types of processes have much in common, as suggested by the operation of the commission established to settle the 1905 Dogger Bank incident between Russia and Great Britain. The commission of inquiry, set up under Article 9 of the 1899 Hague Convention, made in fact recommendations and ultimately acted as a conciliation commission.6 This was a voluntary

1 See, on the topic, Y.  Tanaka, The Peaceful Settlement of International Disputes (Cambridge: cup, 2018) 65–​72; Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden/​Boston: Brill Nijhoff, 2017); J.G. Merrills, International Dispute Settlement, 5th ed. (Cambridge, cup, 2011) 58–​83; Lucius Caflisch, ‘Cent ans de Règlement pacifique des différends interétatiques’, 288 (2002) Recueil des cours de l’Académie de Droit international de la Haye (RdC) 282. 2 Merrills (fn. 1) 58. 3 See J. Efremoff, ‘La conciliation internationale’, 18 (1927) RdC 5, and ‘L’organisation de la conciliation comme moyen de prévenir les guerres’, 59 (1937) RdC 103. See also C. C. Hyde, ‘The place of commissions of inquiry and conciliation treaties in the peaceful settlement of disputes’, 10 (1929) BYBIL 96. 4 Convention for the Pacific Settlement of International Disputes, July 29, 1899, 32 Stat. 1799 [hereinafter the ‘Hague Convention’]. 5 During the second Hague Peace Conference, held in 1907, the Convention for the Pacific Settlement of International Disputes of 1899 that established the Permanent Court of Arbitration (pca) was expanded and opened to a greater number of signatories, including Latin American states, see the Hague Convention for the Pacific Settlement of International Disputes of 1907, 1 Bevans 577. The latter replaced the earlier Convention and is in force for States that were not signatories to the Convention for the Pacific Settlement of International Disputes of 1899. For an analysis, see S.  Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents (The Hague: T.M.C. Asser Press, 2001); C. Howard-​Ellis, The Origin, Structure & Working of the League of Nations (Boston: Houghton Mifflin Company, 1929) 290. 6 See C. Howard-​Ellis (fn. 5) 290.

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dispute settlement procedure and the commission considered questions of fact and law as well as diplomatic concerns. The first treaty to provide for conciliation as such was instead concluded between Sweden and Chile in 19217 and various others of the time dealt with conciliation, giving it a more or less prominent place.8 The pca was only authorised in the 1930s to use its facilities for conciliation, and for the arbitration of international disputes between States and private parties.9 The League of Nations further promoted conciliation as a mode of dispute resolution in 1922,10 and the 1945 UN Charter, in its Article 33, expressly included conciliation among the list of mechanisms for the peaceful settlement of disputes.11 Conciliation was increasingly included in multilateral treaties from 1945 ­onwards.12 A central feature of a conciliation commission is that it has no power to specifically decide on the terms of the settlement, though it makes recommendations and its position may persuade the parties to accept the settlement.13 Developments of the method are to be found in initiatives adopting conciliation taken by the Organization for Security and Co-​operation in Europe (osce), originally called ‘Conference for Security and Co-​operation in Europe’. The osce has, since its inception, focused on the peaceful settlement

7 8

9

10 11 12

13

Treaty of Conciliation (Chile –​Sweden), 1921. The 1925 treaty between France and Switzerland set the specific functions of permanent conciliation commissions, becoming the model for later treaties, see M. Habicht, Post War Treaties for the Pacific Settlement of International Disputes (Cambridge, MA, 1931) 226. For an overview, see Merrills (fn. 1) 59–​60. The question arose in relation with the arbitration between the Chinese Government and Radio Corporation of America (rca), rca v China, pca, Award 13 April 1935. In February 1962, the International Bureau of the pca elaborated its ‘Rules of Arbitration and Conciliation for settlement of international disputes between two parties of which only one is a State’. Concerning the background of these Rules, see Circular Note of the Secretary General, March 3, 1960, 54 (1960) A.J.I.L. 933, 937. League of Nations, ‘Resolutions and Recommendations Adopted on the Reports of the First Committee’, 9 (1922) League of Nations Official Journal, Special Supplement 9, 9–​11; See ch. 1, 1928 General Act (adopted 26 September 1928), 93 lnts 343. Charter of the United Nations, 24 October 1945, 1 unts xvi. See, for instance, Article 66, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331; UN General Assembly, ‘Peaceful Settlement of Disputes Between States’, Resolution 37/​10, 15 November 1982, Annex: Manila Declaration on the Peaceful Settlement of International Disputes, para 5. See, in particular, Art. 7:  Regulations on the Procedure of International Conciliation, International Law Institute, ii (1961) Annual Report 232; see Thürer, ‘Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation’, in: Tomuschat, Pisillo Mazzeschi and Thürer (fn. 1) 41–​43.

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of international disputes. If the csce had first created the csce Dispute Settlement Mechanism involving a combination of mediation and conciliation,14 complemented by the Valletta Procedure, at the Stockholm Meeting of the Council of the csce in 1992, the participating States decided to also add a formal conciliation procedure.15 Importantly, the States parties concluded the Convention on Conciliation and Arbitration within the osce (‘Stockholm Convention’),16 which referred to Arts. 2(3) and 33 of the Charter and stressed States’ commitment to settle their disputes through peaceful means and to develop mechanisms to settle disputes, without impairing other existing institutions or mechanisms. The Convention set an important contribution for the functioning of conciliation. It provided for the creation of a panel of conciliators and arbitrators, the ‘Court of Conciliation and Arbitration’, and for conciliation for cases which are referred either by agreement or unilaterally by a State party. A  commission is appointed for each case and its function is ‘to assist the parties to the dispute in finding a settlement in accordance with international law and their csce commitments’ (Article 24). In case the dispute is not decided during the proceedings, the Commission prepares a report containing its recommendations, which the parties can accept or reject. In the latter case, the report is forwarded to the osce Council. Importantly, being a party to the Convention entails a commitment to conciliation by the State.17 This brief survey of the origins of conciliation procedures provides the basic background to understand the significance of the Timor-​Leste/​Australia case for the operation of conciliation, particularly when, as in the osce or –​as discussed next –​in the unclos, such procedures are compulsory in certain cases.

14

15

16

17

See K. Oellers-​Frahm, ‘The mandatory component in the CSCE dispute settlement system’, in M.W. Janis (ed.), International Courts for the Twenty-​First Century (Dordrecht: Martinus Nijhoff Publishers, 1992) 195. The text of the csce Procedure for Peaceful Settlement of Disputes can be found ibid., 206, and in 30 (1991) ilm 390. See Annex 1–​3 to the Council’s Decision on Peaceful Settlement of Disputes, text in 32 (1993) ilm 551, 556–​568; Helmut Steinberger, ‘The Conciliation Procedure Established by the Convention on Conciliation and Arbitration within the OSCE’, in: Lucius Caflisch (ed.,), The Peaceful Settlement of Disputes between States:  Universal and European Perspectives (The Hague et al.: Kluwer Law International, 1998) 67 et seq; see also Thürer (fn. 13) 44–​46; Merrills (fn. 1) 76–​77. Text in 32 (1993) ilm 557. The Convention forms Annex 2 to the csce Council’s 1992 Decision on Peaceful Settlement of Disputes. See Jean-​Pierre Cot, entry ‘Conciliation’, in: Rüdiger Wolfrum (ed.), Encyclopedia of Public International Law, Vol. ii (Oxford: oup, 2012) 576–​582. Merrills (fn. 1) 77.

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2 The Institutionalisation of Conciliation Procedures In general terms, two main types of conciliation must be distinguished: voluntary and compulsory conciliation. The former can be established ad hoc by States Parties to an international dispute on the basis of a treaty between them.18 The latter, instead, is set on the basis of a unilateral request by a party to a dispute, through an independent compulsory procedure.19 Both forms of conciliation exercise two main functions: first to investigate the factual issues, and, second, to facilitate the settlement of disputes by suggesting solutions acceptable to the parties.20 In particular, in order to ensure the effectiveness of conciliation, three conditions must be fulfilled: independence and impartiality of the conciliation commission,21 confidentiality22 and non-​aggravation of the situation.23 Normally a conciliation commission is composed of three or five members24 and each party to a dispute normally appoints either one of the three conciliators or two of the five conciliators. The third or the fifth conciliator is then appointed either through a common decision of the two parties to the dispute or of the two or the four conciliators already chosen. The composition of a conciliation commission largely remains in the hands of the parties, whereas the rules to be followed in the process, in most treaties, are set by the commission itself.25 A conciliation commission is expected to issue its recommendations within a 18 19 20

21 22

23 24 25

Article 2(3) of the pca Optional Conciliation Rules, IC-​AR 017 (1996), [hereafter ‘pca Optional Conciliation Rules’]. See, Article 66(b), 1969 Vienna Convention on the Law of Treaties (‘vclt’), 23 May 1969; see also the compulsory conciliation set out in the United Nations Convention on Law of the Sea (‘unclos’), 10 December 1982. See Article 15(1) of the Revised Geneva General Act for the Pacific Settlement of International Disputes, 28 April 1949; United Nations Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992)  46  –​7, paras. 144–​5; see also Tanaka (fn. 1) 72. Article 7, United Nations Model Rules for the Conciliation of Disputes between States, General Assembly Resolution 50/​50, 11 December 1995 [hereinafter ‘the 1995 UN Model Rules]; Article 7(1) of the pca Optional Conciliation Rules. Article 25(1), 1995 UN Model Rules, which however also recognize in Article 26(2) that, on the basis of an agreement, the parties may make available to the public or authorize the publication of all or some documents; Section xii of the 1992 Provisions for a Conference on Security and Cooperation Europe (csce) Conciliation Commission, 15 December 1992. Article 16, American Treaty on Pacific Settlement (‘Pact of Bogotá’), 30 April 1948, oas, Treaty Series, No. 17 and 61; see also Article 27 of the 1995 UN Model Rules. A dispute can be also referred to a sole conciliator, see V. Umbricht, ‘Principle of International Mediation:  The Case of the East African Community’, 187 (1984) RdC 307 –​ 89. See Article 8 of the UN Model Rules, Article 4 of Annex v of unclos. See also United Nations Handbook (fn. 20) 51 –​2, paras. 156 –​ 8.

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reasonable time, which in recent multilateral treaties is set to a twelve-​month period.26 The report of the conciliation commission is not binding upon the parties in dispute;27 however, it has normative force.28 As of today, although some 200 bilateral treaties include clauses on conciliation procedures, the number of the conciliation processes actually undertaken remains overall low,29 and it declined since 1945, due to various legal and political factors.30 If conciliation has rather fallen out of favour in bilateral treaty practice, multilateral treaties present a different trend.31 Various regional agreements, such as those in the Americas, Europe and Southeast Asia, include conciliation as a method of dispute settlement.32 A particularly important example, both because of its relevance for the Timor-​Leste/​Australia dispute and because of its sophistication, is found in the 1982 unclos. unclos provides two forms of conciliation, namely voluntary and compulsory procedures.33 The difference in the nature of the conciliation lies in how a State party can invoke and terminate the conciliation, but it has wider implications, which we shall examine later in this chapter. Voluntary conciliation is set out in Section 1 of Part xv and according to Article 284(1) of the unclos, a State Party which is a party to a dispute concerning 26 27 28

29 30

31 32

33

United Nations Handbook (fn. 20) 52, para. 159. See Annex to the vclt, para 6, first sentence reads: ‘The Commission shall report within twelve months of its constitution’. See Article 7(2) unclos, Annex v establishing Conciliation, Article. 6; the 1969 vclt; and Preamble of the Regulations on the Procedure of International Conciliation adopted by the Institut de droit international. See, for instance, Article 33(3) of the 1949 Revised General Act, 71 unts 102, 20 September 1950. Some treaties also require the parties to consider the commission’s recommendations in good faith, see for instance, Article 11(5) of the 1985 Vienna Convention for the Protection of the Ozone Layer, 1513 unts 324, 22 September 1988; Article 14(6) of the 1992 Framework Convention on Climate Change, 1771 unts 165, 21 March 1994. See also Article 21 of the UN Model Rules. The States Parties may also decide to accept recommendations of conciliation as binding, see, for example, Section xiv of the Provisions for a csce Conciliation Commission. See Tanaka (fn. 1) 69–​70. See Alain Pellet, ‘Peaceful Settlement of International Disputes’, in:  Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Vol. 8 (Oxford: oup, 2012) 201, at 220, para 69; N. Butler, ‘Arbitration and Conciliation Treaties’, ibid., Vol. 1 (2012) 549, at 559, para. 9. See Merrills (fn. 1) 69–​74. See American Treaty on Pacific Settlement (Pact of Bogota) (signed 30 April 1948, entered into force 6 May 1949) 30 unts 55; European Convention of the Peaceful Settlement of Disputes (signed 29 April 1957, entered into force 30 April 1958) European Treaty Series No 23; asean Protocol on Dispute Settlement Mechanisms (adopted 8 April 2010). See S. Yee, ‘ Conciliation and the 1982 UN Convention on the Law of the Sea’, 44 (2013) ODIL 315 –​ 34.

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the interpretation or application of the 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. Voluntary conciliation cannot be unilaterally triggered. It is thus purely voluntary also in that the conciliation cannot proceed if the parties do not agree upon the procedures for the conciliation. The conciliation commission examines the claims and the objections by the parties and subsequently advances proposals to the parties for a possible amicable settlement. Its report is required within twelve months of its constitution and must include any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and recommendations appropriate for an amicable settlement. The report of the commission is not binding upon the parties. It follows that a dispute is still unsettled if one of the disputing parties does not accept the recommendations in the conciliation report. In this case, the dispute is to be moved to the compulsory procedures for the settlement of disputes.34 When compared to voluntary conciliation, one of the main distinctive features of compulsory conciliation is that it can be unilaterally triggered by a State against another. The disputes subject to compulsory conciliation are those carved out from compulsory judicial settlement by Articles 297 and 298 of unclos. Once compulsory conciliation is initiated, it follows the procedures stipulated in Annex v, except if the parties agree otherwise. The process is termed ‘compulsory’, because the parties are bound to participate in the conciliation, until the commission adopts its report or one of the parties refuses the recommendations in the report by written notification. Despite the compulsory character of the procedure, conciliation does not result in a binding decision but only in a non-​binding report containing recommendations, that the commission is required to issue after twelve months. This is procedure that was followed in the Timor-​Leste/​Australia dispute. iii

The Timor-​Leste/​Australia Conciliation

1 The Dispute On 11 April 2016, Timor-​Leste instituted the first of its kind compulsory conciliation proceedings under Article 298 and Annex v of unclos to resolve its maritime boundary dispute with Australia. For an understanding of the

34

Section 2 of Annex v of unclos establishes the compulsory submission to a conciliation procedure pursuant to Section 3 of Part xv.

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implications and importance of this foundational conciliation experiment under unclos, it is necessary to clarify the origins and historical background of the dispute, the challenges and evolving stalemate confronting the concerned parties, and their failure to reach an agreement to delimit the disputed area. These factors prompted the initiation of the conciliation proceedings. Timor-​Leste and Australia are neighbouring States divided by the Timor Sea, at a distance of approximately 300 nautical miles. Timor-​Leste (formerly known as East Timor) was a Portuguese colony from the 16th century until 1975. On 28 November 1975, the people of Timor-​Leste declared their independence from Portugal. Only nine days later, Indonesia occupied Timor-​Leste and shortly thereafter declared it as its 27th province. In 1999, as suggested by then President BJ Habibie of the Republic of Indonesia, the United Nations (UN) supervised a referendum, in which the people of Timor-​Leste voted overwhelmingly for independence. From 1999 to 2002, the territory was administered by the United Nations Transitional Administration in East Timor and, on 20 May 2002, Timor-​Leste emerged as an independent State. The maritime boundary dispute in the Timor Sea was initially drawn before the declaration of independence of Timor-​Leste. In 1945, the United States affirmed rights over its continental shelf in the famous Truman Proclamation, which was followed by several other claims by different States. In the 1950s, Portugal, which had been occupying Timor-​Leste since 1515 and since 1769 had set a local colonial government, and Australia claimed rights over the seabed of the Timor Sea.35 During the 1960s and the 1970s, Australia and Portugal gave their approval to requests by different oil and gas companies for petroleum exploration in the Timor Sea. The explorations undertaken during this time revealed the Timor Sea to be a potentially important source of oil and gas. The concessions granted by Australia extended up to the Timor Trough, which lies over 200 NM from its coast and approximately 50 NM from the southern coast of Timor-​Leste. Portugal had approved concessions up to the median line between the coasts of the two States.36 Arguing that the Timor 35

36

Commonwealth of Australia, ‘Proclamations by His Excellency the Governor General in and over the Commonwealth of Australia’, Commonwealth of Australia Gazette (No 56, 11 September 1953) ; United Nations Legislative Series, ‘Portugal: Act No 2080 Relating to the Continental Shelf, 21 March 1956’ Supplement to Laws and Regulations on the Regime of the High Seas (Volumes I and ii) and Laws Concerning the Nationality of Ships (United Nations Publications 59 v 2, 1959) < http://​legal.un.org/​legislativeseries/​documents/​untlegs0008.pdf >. In 1962, Australia granted permits to a consortium consisting of Arco Australia Ltd, Australian Aquitaine Pty Ltd and Esso, and one year later to another consortium of Woodside Petroleum, Burmah Oil Company and the Anglo-​Dutch Shell Oil Company. In

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Trough was a break separating ‘two distinct shelves’ between Australia and Timor-​Leste, Australia and Portugal favoured distinct criteria to the division of the continental shelf between them, the former relying on the natural prolongation principle and the latter on the median line principle. Australia declined the request by Portugal to negotiate to delimit their maritime boundary and rather chose to pursue negotiations with Indonesia, before entering into negotiations with Portugal.37 On 9 October 1972, Australia and Indonesia signed an agreement on the seabed (1972 Seabed Agreement), establishing a continental shelf boundary in the Timor Sea favourable to Australia’s preferred approach, following the southern edge of the Timor Trough.38 The 1972 Seabed Agreement did not consider the maritime boundary between Australia and ­Portuguese Timor, thus creating an area known as the ‘Timor Gap’.39 Subsequently, in response to a diplomatic note sent by Australia to Portugal ­proposing ­negotiations to close the Timor Gap, Portugal, denied such proposal until the conclusion of the third UN Law of the Sea Conference, due to start in 1973. Following the occupation and subsequent annexation of Timor-​Leste by Indonesia in 1975/​76, Australia focused on this diplomatic route. A controversial step in this context was the conclusion on 9 December 1989 of the so-​called ‘Timor Gap Treaty’ between Australia and Indonesia,40 which organised the joint development of petroleum resources of the Timor Gap in three zones allocated between the two countries, thereby excluding Portugal and the East-​ Timorese people. The treaty entered into force in February 1991 and, within weeks, Portugal instituted proceedings before the International Court of Justice by reference to the right of the Timorese people to self-​determination and

37 38

39 40

1974, Portugal granted permits to Petrotimor, a consortium led by the United States company Oceanic Exploration. See Paul Hallwood, Economics of the Oceans: Rights, Rents, and Resources (Abingdon, NY: Routledge, 2014) 78–​79. Robert J King, ‘The Timor Gap 1972–​2017’ Submission to the Parliament of Australia, Certain Maritime Arrangements Timor-​Leste, Submission 27 (March 2017). Agreement Between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Sea-​Bed Boundaries in the Area of the Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971 (signed 9 October 1972, entered into force 8 November 1973) 974 unts 319 (1975) (1972 Seabed Agreement). Article 3 of the 1972 Seabed Agreement (fn. 12) provides that the two States shall consult to adjust certain points of their seabed boundary, following the conclusion of further delimitation agreement between the concerned states in the Timor Sea. Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia, 9 December 1989, 29 (1990) ilm 469.

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Portugal’s situation as the administering power.41 The Court declined to hear the claim on the grounds that Indonesia was a necessary party to the dispute and it had not consented to the jurisdiction of the Court.42 It noted, however, that Portugal’s assertion that the right to self-​determination generated obligations erga omnes (thus also for Australia and Indonesia) was ‘irreproachable’.43 The principle and right to self-​determination was called to play a major role in subsequent years for the redefinition of the entitlements of Timor-​Leste in the disputed area. On 20 May 2002, immediately after Timor-​Leste formally declared independence, it signed the 2002 Timor Sea Treaty with Australia,44 which largely followed the terms of a previous arrangement concluded in 2001 with the UN transitional administration and replaced the Timor Gap Treaty. Like the Timor Gap Treaty, the 2002 Treaty did not settle the maritime boundary; it only organised the joint development of the resources, this time in a single area, with an allocation of 90% to Timor-​Leste and 10% to Australia. As a follow up to the Timor Sea Treaty, on 6 March 2003, Australia and Timor-​ Leste concluded an agreement on the unitisation of the Greater Sunrise natural gas field (‘2003 Unitisation Agreement’).45 After the 2003 Unitisation Agreement, bilateral discussions started on a development plan for the Greater Sunrise area. One of the key issues under discussion was the direction of a potential petroleum pipeline from Greater Sunrise. After several rounds of negotiations, on 12 January 2006, the two States signed another agreement on ‘Certain Maritime Arrangements in the Timor Sea’ (2006 cmats).46 The 2006 cmats left open the questions of maritime delimitation and focussed on the allocation (50/​50) of the revenues from the Greater Sunrise field.

41 42 43 44 45

46

Application instituting proceedings, 22 February 1991, < https://​www.icj-​cij.org/​files/​case-​ related/​84/​6809.pdf>. East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995, p. 90 [East Timor case]. East Timor case, para. 29. Timor Sea Treaty Between the Government of East Timor and the Government of Australia (signed 20 May 2002, entered into force 2 April 2003) 2258 unts 3 (2005) (2002 Timor Sea Treaty). Agreement Between the Government of Australia and the Government of the Democratic Republic of Timor-​Leste relating to the Unitisation of the Sunrise Troubadour Fields (signed 6 March 2003, entered into force on 23 February 2007)  2483 unts 317 (2007) (2003 Unitisation Agreement). Treaty Between Australia and the Democratic Republic of Timor-​Leste on Certain Maritime Arrangements in the Timor Sea (signed 12 January 2006, entered into force 27 June 2006) 2483 unts 359 (2007) (2006 cmats).

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Timor-​Leste soon requested that negotiations on maritime boundaries be resumed, after understanding that no development plans under the 2003 Unitisation Agreement and the 2006 cmats could be agreed upon in light of diverging views. After Australia declined, on the basis of the moratorium provided in the 2006 cmats, Timor-​Leste initiated various proceedings against Australia. On 23 April 2013, Timor-​Leste instituted arbitral proceedings under the 2002 Timor Sea Treaty against Australia, demanding to have the 2006 cmats declared invalid and affirming that Australia, by engaging in espionage, had not acted in good faith during the 2006 cmats negotiations.47 On 21 October 2013, the Arbitral Tribunal was constituted. On 3 December 2013, two days before the Arbitral Tribunal was about to start its procedural meeting with the parties, the Australian office of Timor-​Leste’s legal counsel in the arbitration was raided by the Australian Security Intelligence Organisation and documents related to the case were seized.48 Timor-​Leste requested the return of documents, but Australia failed to comply, claiming that the raid had been carried out to protect its national interest and security, as the documents seized ‘contained intelligence related to security matters’.49 As a result, on 17 December 2013, Timor-​Leste, requested the icj to order provisional measures in connection with the seizure and detention by Australia of Timor-​Leste’s documents.50 On 3 March 2014, the icj made a first order requesting Australia to keep under seal the seized documents and ensure that the content of the seized materials would not be used to the disadvantage of Timor-​Leste,51 while, on 22 April 2015, the Court made a second order, authorizing the return of all seized documents and data by Australia to Timor-​Leste.52 47 48 49 50 51 52

See Donald Anton, ‘The Timor Sea Treaty Arbitration: Timor-​Leste Challenges Australian Espionage and Seizure of. Documents’, 18 ASIL Insights www.asil.org/​insights/​volume/​18/​ issue/​6/​timor-​sea-​treaty-​arbitration-​timor-​leste-​challenges-​australian-​espionage. Peter Lloyd, ‘ASIO Raided Office of Lawyer Representing East Timor in Spying Case’, ABC News (4 December 2013)  < www.abc.net.au/​news/​2013-​12-​03/​asio-​raided-​lawyer-​representing-​east-​timor-​in-​spying-​case/​5132486 >. ‘Australian PM Defends ‘National Security’ Raids in Timor Spying Case’, Straits Times (4 December 2013)  < www.straitstimes.com/​world/​australian-​pm-​defends-​national-​ security-​raids-​in-​timor-​spying-​case >. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-​ Leste v Australia), Application Instituting Proceedings (17 December 2013) < www.icj-​cij. org/​files/​case-​related/​156/​17962.pdf >. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-​ Leste v Australia) Provisional Measures, Order of 3 March 2014, icj Reports 2014 < www. icj-​cij.org/​files/​case-​related/​156/​156-​20140303-​ORD-​01-​00-​EN.pdf >. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-​ Leste v Australia), Request for the Modification of the Order Indicating Provisional Measures

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On 15 May 2015, the two parties wrote to the icj confirming the return of the seized documents and data.53 On 2 June 2015, Timor-​Leste informed the icj that it had ‘successfully achieved the purpose of its Application to the Court’ and requested the discontinuance of the proceedings.54 On 11 June 2015, the icj ordered the removal of the case from its list.55 Nearly two months later, on 30 July 2015 Timor-​Leste wrote to the Arbitral Tribunal, which had already been constituted under the 2002 Timor Sea Treaty, to request the resumption of the arbitral proceedings, as the ‘attempts to negotiate an amicable settlement of the case have not been successful’.56 On 24 September 2015, Timor-​Leste initiated another arbitration proceeding against Australia under the 2002 Timor Sea Treaty,57 related to a dispute between the two countries concerning the interpretation of Article 8(b) of the Treaty. Australia claimed it would participate in the proceedings to defend its position.58 The above proceedings did not concern the issue of maritime delimitation, which was still an essential priority for Timor-​Leste. Australia continued to rely on the moratorium in the 2006 cmats to decline Timor-​Leste’s request for the establishment of permanent maritime boundaries. Meanwhile, Australia had already made a declaration under Article 298 of unclos to exclude maritime boundary disputes from compulsory procedures entailing binding decisions and amended its acceptance of the icj compulsory jurisdiction, excluding: any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the eez and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.59

53 54 55 56 57

58 59

of 3 March 2014, Order of 22 April 2015, icj Reports 2015  < www.icj-​cij.org/​files/​case-​ related/​156/​156-​20150422-​ORD-​01-​00-​EN.pdf >. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-​ Leste v Australia), (Order of 11 June 2015) icj Reports 2015, 572 < www.icj-​cij.org/​files/​case-​ related/​156/​156-​20150611-​ORD-​01-​00-​EN.pdf > accessed 9 August 2018, 573. Ibid. 6. Ibid. Arbitration Under the Timor Sea Treaty (Timor-​Leste v Australia), Termination Order (20 March 2007) pca 2013–​16 < https://​pcacases.com/​web/​sendAttach/​2110 >. Minister of State and of the Presidency of the Council of Ministers and Official Spokesperson for the Government of Timor-​Leste, ‘Timor-​Leste Initiates Arbitration Proceedings Under the Timor Sea Treaty’ (24 September 2015) < http://​timor-​leste.gov.tl/​ ?p=13421&lang=en >. Minister for Foreign Affairs, ‘Timor-​Leste Arbitration’ (24 September 2015). icj, Declarations Recognizing the Jurisdiction of the Court as Compulsory, Australia (22 March 2002) < www.icj-​cij.org/​en/​declarations/​au >.

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Such is the context of the dispute within which Timor-​Leste decided to resort to compulsory conciliation under the unclos. Given the highly tense atmosphere, mired with allegations of espionage and interference, and the many stakeholders involved, including powerful private actors with a stake in the exploitation of the resources from the disputed area, the success of the conciliation process is all the more remarkable. 2 The Conciliation Process 2.1 Overview On 11 April 2016, Timor-​Leste unilaterally triggered the compulsory maritime boundary conciliation proceedings under unclos to possibly resolve the maritime dispute, ultimately develop its economy60 and to conclude its struggle for full ‘sovereignty’ over land and sea.61 In particular, Timor-​Leste stated that the decision to initiate compulsory conciliation was due to the refusal by Australia to either negotiate a permanent maritime boundary delimitation agreement or settle the dispute through other peaceful means.62 Unlike prior proceedings, the dispute submitted for conciliation related to the interpretation and application of Articles 74 and 83 of unclos for the delimitation of the eez and continental shelf between the two States.63 Beyond the specific dispute between Timor-​Leste and Australia, the case is significant, because it constitutes the first conciliation proceeding under unclos and the first State-​to-​State compulsory conciliation proceeding under a multilateral treaty. Both Australia and Timor-​Leste are parties to the unclos. Australia ratified unclos on 5 October 1994, and Timor-​Leste on 8 January 2013, while the Convention entered into force between Australia and Timor-​Leste on 2 February 2013.64 On 25 June 2016, nearly two months after the initiation by Timor-​Leste of the conciliation proceedings, the Conciliation Commission was constituted. On 19 September 2016, in response to Australia’s objection to its competence, the Commission unanimously decided that it had competence to hear the

60

Conciliation Between the Democratic Republic of Timor-​Leste and the Commonwealth of Australia, Transcript of Opening Session (29 August 2016), pca 2016-​10, 10 < https://​ pcacases.com/​web/​sendAttach/​1889 >. 61 Ibid., 21. 62 Conciliation Between the Democratic Republic of Timor-​Leste and the Commonwealth of Australia, Annex 3 to Report Notice of Conciliation (11 April 2016) pca 2016-​10, para. 3. 63 Ibid., para. 5. 64 See United Nations Treaties Collection, Status of Treaties, Chapter xxi: Law of the Sea < http://​treaties.un.org/​pages/​ParticipationStatus.aspx >.

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dispute.65 Subsequently, thanks to the facilitation efforts of the Commission, Australia and Timor-​Leste agreed a maritime boundary treaty and signed it on 6 March 2018.66 The report of the Commission was released on 9 May 2018. 2.2 Analysis Unlike the decision of a court of law, the analysis of a conciliation process cannot be limited or even focus on the report issued by the conciliation commission and its reasoning. It is the process, its peculiarities and the management of the many complexities arising over time that call for attention. Moreover, given the foundational nature of the Timor-​Leste/​Australia conciliation, it seems useful to compare it with other mechanisms. In this section, we analyse these aspects, paying attention both to the underlying legal framework and to the more practical aspects of the process. One relevant feature is the composition of the conciliation commission. According to Article 3 of Annex v of unclos, unless the parties agree otherwise, the commission shall consist of five conciliators. Each party appoints two conciliators and the four party-​appointed conciliators subsequently appoint the fifth conciliator, who serves as the chairperson. In particular, the two conciliators appointed by each party should be chosen ‘preferably from the [unclos] list’.67 The fifth conciliator should ultimately be chosen from the unclos list of conciliators. Timor-​Leste and Australia followed the rules set forth in Article 3 in appointing their conciliators, but, importantly, none of the chosen and appointed four conciliators were drawn from the list of conciliators. The Commission Report affirms that the Chairman, Ambassador Peter Taksøe-​Jensen of Denmark, who was not included in the list of conciliators, was appointed by the four party-​appointed conciliators from a shortlist of candidates that both parties agreed upon after they had consulted the parties.68

65 66 67 68

Decision on Competence, 19 September 2016, < https://​pcacases.com/​web/​sendAttach/​ 1921>. Maritime Boundary Treaty signed by the Parties on 6 March 2018, Annex 28 to the Commission Report, infra fn. 68. unclos Annex v, Article 3. Article 2 of Annex v states that each party to 1982 unclos is entitled to nominate four conciliators. Conciliation Between the Democratic Republic of Timor-​Leste and the Commonwealth of Australia, Report and Recommendations of the Compulsory Conciliation Commission Between Timor-​Leste and Australia on the Timor Sea (9 May 2018) pca 2016-​10  (Commission Report), para 75; Conciliation Between the Democratic Republic of Timor-​Leste and the Commonwealth of Australia, Decision on Australia’s Objections to Competence (19 September 2016) pca 2016-​10 .

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Article 3 reads that the procedure is to be followed ‘unless the parties otherwise agree’. The fact that the Chairman was appointed by the four party-​ appointed conciliators after consultation with the parties could be expected, considering that it had to be someone both parties were comfortable with. In practice, it is indeed essential that all the conciliators can cooperate well and speak with a unified voice with the disputing parties. In fact, this could be one of the reasons that led to the success of the conciliation process in the case.69 Once constituted, a commission can determine, by majority vote, the procedures to be followed in the conciliation, such as its meetings and how to conduct hearings, if any.70 At least three features of Annex v procedures were fundamental in facilitating the resolution of the maritime boundary delimitation between Timor-​Leste/​Australia. First and foremost, these procedures can be tailored to better suit the specific dispute. Under this perspective, the Rules of Procedure adopted by the Commission were laudable under many aspects. They were designed to facilitate dialogue between the parties and to allow the Commission to be proactive and control the process. The Commission requested Timor-​Leste and Australia to draft comprehensive written statements, which also helped in clarifying their internal positions.71 After receiving both parties’ statements, the Commission then engaged them in open-​ended discussions. The main aim was to ‘sought to confirm its understanding by providing the Parties, first separately and then jointly, with Issues Papers’. These Issues Papers defined ‘the elements of the dispute and the Parties’ respective views’.72 Thus, the Commission, by scheduling separate meetings with the parties and, through their written statements, was able to understand their positions and the related reasons for them. This built confidence in the Commission but also a path towards a solution of the dispute. The Rules of Procedure also ensured that the process was flexible and informal, enabling the Commission members to consult with parties inside and outside the scheduled meetings. Furthermore, another essential characteristic of the Rules of Procedure was the provisions on confidentiality and without prejudice. The Commission guaranteed that the parties could communicate and submit information in confidence, and that any documents or declarations made during the

69 70 71 72

See Annex iii for the full list of members of the Conciliation Commission and the parties. unclos, Annex v, Article 4. Commission Report (fn. 68) para. 290. Ibid.

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proceedings were not going to be used against them in any subsequent legal proceedings. The Commission, with the support of the pca, was able to deal with the press releases related to the case by informing the general public but avoiding exposing any details that could have hindered the conciliation process. Lastly, the Rules of Procedure also allowed the Commission to extend the deadline with the consent of the parties. Without this extension, the parties would not have been able to reach an agreement on a permanent maritime boundary. Secondly, the procedures allowed the Commission to expand the issues at stake beyond the maritime boundary and to consider the parties’ underlying interests. The Commission noted that ‘the ability to calibrate the proceedings to address the elements necessary for an amicable settlement, even where those extend beyond purely legal considerations, is a hallmark advantage of conciliation as compared to adjudication’.73 The Commission thus addressed discussions not only on delimitation of the maritime boundary, but also on the modalities of the joint management of petroleum resources and on the economic effects of seabed gas deposits.74 Thirdly, Annex v procedures favoured the adoption of confidence-​building measures, which turned to be significant for the final success of the conciliation process. The Commission was aware of the possible conflict between building confidence and ensuring that the parties’ discussions were ‘without prejudice’. The Report reads: Inasmuch as the Rules of Procedure sought to enable the Parties to engage without prejudice to their respective legal positions, the Commission’s confidence-​building measures required the opposite: i.e., that the Parties abandon certain stances which constituted an obstacle to moving forward with the conciliation and were intended to preserve leverage against the other for the possibility that the conciliation might fail to produce an agreed outcome.75 Pursuant to Article 6 of Annex v, the conciliation commission must ‘hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement’. In particular, the commission, in exercising these tasks, may ‘draw the attention of the parties to any measures which might facilitate an amicable settlement of the 73 74 75

Ibid., para. 292. Ibid., para. 293. Ibid., para. 289.

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dispute’.76 In the case under analysis, these confidence building measures required the parties to renounce all the pending cases and a range of information and material that would not be allowed to feature in subsequent proceedings. Both parties accepted to be ‘all-​in’. To the extent that the commission took a high risk, leaving very little room for adjudication in the way it organised the conciliation, that risk ultimately paid out. Therefore, in light of the three features above, it seems clear that the Rules of Procedure issued by the Commission, in consultation with the parties, demonstrate the Commission’s acute understanding, from the very start, of what were the ingredients for a successful conciliation of this dispute. Another relevant advantage of conciliation is that the conciliation commission can consider more than just law. International law, politics, economics, or, for example, key issues related to natural resources, extraction or exploitation may have a relevant role, while sometimes they are not fully taken into account by approaches adopted in other contexts. In particular, in the case under analysis, the conciliation commission was led by the context of the dispute to consider principles of international law. The Rules of Procedure did not limit the extent to which the Commission could engage with the parties on questions of international law with respect to the delimitation of maritime boundaries. In its Report, the Commission noted that it would not be inappropriate for it to do so.77 However, the Commission never lost sight of the fact that its function was to assist the parties to reach an amicable settlement, not to make pronouncements on questions of international law.78 It concluded that ‘a conciliation commission need not as a matter of course engage with the parties on their legal positions, but may engage with these matters to the extent that doing so will likely facilitate the achievement of an amicable settlement’.79 This was an important decision, because both Timor-​Leste and Australia had very different positions on how Articles 74 and 83 of unclos could have been applied to the delimitation of their maritime boundary  –​and this was also a deeply rooted source of mistrust ­between them. A further advantage of conciliation is that it can involve a wider range of actors. It is indeed characterised by an openness that marks an important difference with judicial dispute settlement. In particular, in the Timor-​Leste/​Australia conciliation, the participation of the Joint Venture set up for petroleum 76 77 78 79

unclos, Annex v, Article 5. Commission Report (fn. 68) para. 70. Ibid. Ibid.

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exploration purposes in discussions with parties, the direct engagement of the Commission with the Joint Venture, and the engagement by the Commission of an independent expert was not covered by the Rules of Procedure. However, these developments occurred on the basis of a decision taken by the Commission in agreement with the parties. This is a feature that may however carry along also negative effects. Indeed, in the specific case under examination, the conciliation process also included the joined ventures extracting oil and gas. Negotiation with the joint ventures were surprisingly more difficult than between the parties and the Chairperson of the Commission had to engage with them much in the same way as he would have with the parties. As a last consideration, despite some similarities with mediation, one of the main differences between the latter and compulsory conciliation lies in the idea of competence, which possesses a procedural nature and a very much legalised dimension in the initial phase of the conciliation proceedings. Under international law in general and under unclos, the question whether a conciliation commission, tribunal or court has competence or jurisdiction to consider a dispute is not for a state party to the dispute to decide. It is a decision that belongs to the commission, tribunal or court. In contrast to the remainder of the conciliation proceedings, the commission’s decision on competence is characterised by a binding effect. In the case under analysis, in response to Timor-​Leste’s Notice of Conciliation of 11 April 2016, Australia indicated that it would engage in the process in good faith, but upon the constitution of the Commission it would make an immediate challenge to the competence of the Commission. The Commission was constituted on 25 June 2016, pursuant to Article 13 of Annex v of unclos, and it rendered its decision on competence on 19 September 2016. After having convened a hearing on competence from 29 to 31 August 2016, the Commission decided unanimously that it was competent with respect to the compulsory conciliation of the matters set out in Timor-​Leste’s notification of 11 April 2016. It also concluded that there were no issues of admissibility or comity that could prevent the Commission from continuing these proceedings and that the twelve-​month period, in Article 7 of Annex v of unclos, was to start on 19 September 2016. In its subsequent Report, the Commission recorded its view that ‘the early resolution of Australia’s objections to the competence of the Commission proved essential to allowing Australia to engage effectively in the conciliation process thereafter’.80 Under this perspective, several aspects are indeed relevant in the case. It is noteworthy that the decision of the Conciliation Commission was unanimous, 80

Ibid., para. 287.

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considering that two conciliators, appointed by Australia, expressed agreement with the majority. Moreover, Australia’s decided to abide by the final decision and continue to participate in the conciliation, engaging in good faith. In addition, the entire competence proceedings were conducted in a speedy, smooth, efficient and transparent manner. It took less than three months for the Commission to render its decision and only nineteen days after the hearing on competence. Lastly, the decision of the Commission may also have implications for future unclos dispute settlement. Under unclos, disputes related to maritime boundary delimitation that arise subsequent to the date of entry into force of unclos, i.e. 16 November 1994, would be subject to compulsory conciliation if one of the parties to the dispute issues a declaration in accordance with Article 298 of unclos, exempting the dispute from the system of compulsory dispute settlement. In the light of the Commission’s analysis of Australia’s objections, compulsory conciliation would remain applicable as long as the parties to a dispute have not agreed ‘to seek settlement of the dispute by a peaceful means’ of their choice. A clause that excludes third-party settlement (without defining the preferred means of settlement) would not be enough to prevent resort to conciliation (nor, possibly, to other means) under Article 281(1) of the UNCLOS. iv

An Assessment

The Timor-​Leste/​Australia conciliation showed the advantages of using conciliation as a dispute settlement method for maritime boundary disputes. As the Conciliation Commission observed, ‘the Parties came to these proceedings deeply entrenched in their legal positions, something which had frustrated previous efforts to achieve a settlement through negotiation’, and ‘the Parties were frank with the Commission regarding the extent that each distrusted the other’.81 However, within twelve months, the parties successfully negotiated the delimitation of their maritime boundary, which was concluded on 6 March 2018 by the signing of the Maritime Boundaries Treaty. Several aspects of the Timor-​Leste/​Australia conciliation are worth noting. According to the Commission, a positive outcome was facilitated by four fundamental factors, namely:  in primis, efforts to build the parties’ trust in each other, in the Commission, and in the process; the flexibility of expanding the scope of proceedings beyond delimitation to encompass other necessary elements; the Commission’s proactive efforts to advance ideas and direct the course of the proceedings; and sustained, informal contacts with the parties’ 81

Commission Report (fn. 68) para. 284.

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representatives and counsel at a variety of different levels.82 These four aspects would not have been possible to achieve in an adjudicative forum. Other features of conciliation are favourable to the parties engaged in conciliation proceedings. The discretion, confidentiality and the non-​adversarial nature of conciliation favours preserving the goodwill between them, which may instead be more difficult to maintain in an adversarial process. In the words of Ambassador Tommy Koh, the former President of the Third UN Conference on the Law of the Sea, the Timor-​Leste-​Australia conciliation is an important case for ‘countries which have disputes about their sea boundaries or have competing claims about territorial sovereignty’, who should therefore ‘seriously consider using conciliation to solve their disputes’.83 He also noted that it is also important that parties choose ‘wisely’ the conciliators, in order to make sure they work together harmoniously, and that there is political will ‘on both sides to find a just and durable compromise’.84 However, an unexpected aspect of conciliation would merit further reflection. One key element of conciliation, as well as of commercial mediation, is confidentiality. Thus, when a neutral third person –​the conciliator or mediator –​facilitates the resolution of a dispute, communication and disclosure of crucial issues of the case to the third person are essential. This happens in the context of bilateral exchanges between each party and the conciliation commission. The condition for such exchanges to be open and build a relationship of trust between each party and the conciliation commission is the confidentiality of such bilateral exchanges. It is therefore unsurprising that confidentiality and assurance of no subsequent use of certain materials presented in the conciliation process were explicitly stated in the rules of procedure of the Timor-​Leste/​Australia case. Yet, such confidentiality could be tactically misused to create an additional layer of protection for documents that a party wishes to exclude from featuring in litigation. Of course, documents that are in the public domain or otherwise retrievable by a counterparty could not be protected on the basis of a confidentiality requirement owed by a body (the Conciliation Commission) in a previous dispute settlement attempt. But it would possibly shield certain documents from ‘discovery’ or document production requests in subsequent 82 83

84

Ibid., para. 286. Tommy Koh, ‘Maritime Boundary Conciliation Between Timor-​Leste and Australia:  A Success Story’, Tembusu College (19 September 2017). . Ibid.

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litigation proceedings or, at the very least, represent a possible objection to the admissibility of documents made available to the commission, under the seal of confidentiality on the basis of the good faith owed by the other party to the earlier conciliation process, now seeking to introduce the document. Moreover, such possibility calls for clear rules of conflict of interest with respect to the ability of conciliators to subsequently act as counsel/​advisor for one of the parties or even as adjudicator. These problems could arise particularly in dispute settlement mechanisms which combine conciliation and adjudication, as they may arise in commercial practice based on so-​called ‘med/​arb’ (mediation/​arbitration) clauses. The problems they present are not without solution, but they must be kept in mind because conciliation is not likely to be always successful. This aspect is not spelt out in the report of the Conciliation Commission, which limits itself to mentioning that confidentiality and flexibility were major factors in the success of the conciliation. In light of the above analysis and assessment, the latter proposition of the commission can hardly be denied. However, it is only true if we accept that conciliation is but one approach to the settlement of the dispute, which may not always be successful. Otherwise, we would be placing a potentially important part of the record outside of the hands of a subsequent adjudicator, under the seal of confidentiality. The lack of adequate safeguards on such tactical uses of conciliation would risk an increase in resort to it, but for the wrong reasons. That being said, the Timor-​Leste/​Australia conciliation experiment must certainly be celebrated as a major achievement. In the words of UN Secretary-​ General António Guterres, the process was marked by ‘constructive engagement and relentless efforts to achieve an outcome [that is] agreeable to both States’, and is an example to ‘inspire other States to consider conciliation as a viable alternative for dispute settlement’ under unclos.85 There are indeed many good considerations that support a positive scenario of future uses of conciliation to solve disputes. The successful outcome has placed compulsory conciliation among the palette of realistic legal-​diplomatic choices, which is encouraging in light of the fact that several multilateral environmental

85

António Guterres, Remarks at Signing Ceremony of a New Maritime Boundary Agreement Between Australia and Timor Leste (6 March 2018)  < www.un.org/​sg/​en/​content/​sg/​ speeches/​2018-​03-​06/​maritime-​boundary-​agreement-​between-​australiaand-​timor-​leste-​ remarks >. See also the positive assessment by Anais Kedgley Laidlaw and Hao Duy Phan, ‘Inter-​State Compulsory Conciliation Procedures and the Maritime Boundary Dispute between Timor-​Leste and Australia’, 10 (2019) Journal of International Dispute Settlement 126–​159.

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agreements include compulsory conciliation clauses that have never been used.86 Moreover, the conciliation process, as implemented by the cooperative parties, who participated constructively and with good faith, and carried on by a proactive Commission, whose ‘great dedication and professionalism in helping forge an agreement’ was recognized by both Timor-​Leste and Australia,87 has shown to be able to facilitate solutions beyond strict legal determinations favourable to a positive ending of the process. In conclusion, the Timor-​Leste/​Australia conciliation process provides good grounds to consider with cautious optimism the future of conciliation in dispute settlement. Of course, contextual factors will inevitably play a distinct role in each case, but the Timor-​Leste/​Australia process can be seen as a foundational experiment which illustrates in great detail the potential of conciliation to settle highly complex disputes in contemporary international law. 86

87

See, for instance, the Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 unts 293; the Convention on Biological Diversity, 5 June 1992, 1760 unts 79,; the United Nations Framework Convention on Climate Change, 9 May 1992, 1771 unts 107;; the 2001 Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 unts 119. Joint Media Release by the Hon Julie Bishop MP (Minister for Foreign Affairs Australia), HE Agio Pereira (Minister in the Office of the Prime Minister for Delimitation of Borders and Agent of the Conciliation Process, Democratic Republic of Timor-​Leste), and HE Kay Rala Xanana Gusmao (Chief Negotiator for the Council for the final delimitation of maritime boundaries, Democratic Republic of Timor-​Leste), ‘Australia and Timor-​ Leste Sign Historic Maritime Boundary Treaty’ (6 March 2018) < http://​timor-​leste.gov.tl/​ ?p=19577&lang=en >.

pa rt 5 Procedure

∵

­c hapter 8

Confidentiality of Conciliation Proceedings and Their Outcome. A Reflection in Light of the Experience of the Timor-​Leste/​Australia Conciliation Commission Serena Forlati i

Introduction

This contribution addresses the role of confidentiality in conciliation, discussing whether the pull towards transparency that is gradually being developed in international investment arbitration could and should find a parallel in inter-​ State conciliation proceedings of the kind that may be submitted to the Court of Conciliation and Arbitration within the osce.1 Section II considers the notion of transparency at stake, the role of transparency in different dispute-​settlement mechanisms and its relationship to other ‘values’ underlying the international law of dispute settlement. This comparative exercise will consider, firstly, developments in the context of investor-​ State arbitration, which where the starting point of the analysis; secondly, it will focus on the role of transparency in inter-​State arbitral and judicial mechanisms –​which have a higher degree of similarity with conciliation within the osce Court. Section IV addresses the role of transparency in conciliation, and specifically the recent, successful example relating to the Timor Sea between Timor-​Leste and Australia,2 where issues of transparency were dealt with in an

1 See Convention on Conciliation and Arbitration within the osce (osce Convention), adopted by the Council of Ministers at its meeting held on 15 December 1992 in Stockholm, as part of the Decision on Peaceful Settlement of Disputes. 2 pca Case No, 2016-​10, Conciliation Commission Constituted under Annex V to the 1982 United Nations Convention on the Law of the Sea between The Democratic Republic of Timor-​ Leste and The Commonwealth of Australia, Maritime Boundary between Timor-​Leste and Australia (The ‘Timor Sea Conciliation), Decision on Australia’s Objections to Competence, 19 September 2016, and Report and Recommendations, 9 May 2018, available at , last visited 15 September 2019.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_009

182 Forlati extremely careful, expedient and ‘modern’ way. Also in the light of this example, the conclusions seek to reflect on whether the legal framework currently regulating conciliation within the osce Court of Arbitration and Conciliation meets the requirements of ‘modern’ conciliation or whether any adjustment would be desirable, reconsidering the role of confidentiality with reference to, on the one hand, the existence and the development of conciliation proceedings; and, on the other hand, their outcome. ii

The Notion of ‘Transparency’ at Stake

It is first of all important to identify the notion of transparency under discussion. What is at stake is not the possibility for the Parties and/​or the dispute settlement body to withhold from public knowledge specific information for commercial, security or other reasons. This possibility is envisaged in ‘transparent’ investment arbitration3 as well as in inter-​State arbitration.4 Indeed, the possibility (and at times the duty) to withhold from public knowledge specific information seems uncontroversial. Even in international judicial frameworks, where publicity of proceedings is the rule, confidentiality may cover not only deliberations5 but also, on a case-​by-​case basis, sensitive details of the file (such as names of witnesses at risk of retaliation, business secrets or other sensitive information). Thus, for instance, the International Court of Justice (icj) decided to keep the identity of certain witnesses confidential in the Genocide (Croatia v Serbia) case, presumably in order to safeguard their safety, privacy and the 3 See notably Article 7 of the United Nations Commission on International Trade Law Rules on Transparency in Treaty-​based Investor-​State Arbitration and Arbitration Rules (uncitral Transparency Rules), adopted by the United Nations General Assembly through Resolution 68/​109 of 16 December 2013. See also the United Nations Convention on Transparency in Treaty-​based Investor-​State Arbitration, adopted by the General Assembly through Resolution 69/​116 of 10 December 2014 (Mauritius Convention). 4 Thus, for instance, the Arbitral Tribunal in the Ukraine v. Russia arbitration, currently pending before the pca, carefully regulated the issue in its Rules of Procedure: see Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), pca Case No. 2017-​06, Rules of Procedure adopted on 18 May 2017, Article 27 (6) and (7). 5 See the Statute of the International Court of Justice (icj), Article 54; the itlos Rules of Court (ITLOS/​8, 17 March 2009), Article 42(1). Cf. also Convention for the Pacific Settlement of International Disputes, 29 July 1899, Article 51; Convention for the Pacific Settlement of International Disputes, The Hague, 18 October 1907, Article 78; International Law Commission, Model Rules on Arbitral Procedure (ilc Model Rules), Yearbook of the International Law Commission, 1958, vol ii, Article 26.

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integrity of the proceedings;6 the International Tribunal for the Law of the Sea (itlos) treated in a similar way some aspects of the Enrica Lexie (Italy/​India) case out of consideration for the right to privacy of one of the Italian marines involved in the proceedings.7 This approach is even more widespread in the context of jurisdictions where individuals have ius standi, such as international criminal tribunals8 or international human rights courts.9 Issues which may arise as regards this kind of determinations (such as, for instance, the possibility for the dispute settlement body to issue them proprio motu and the role that the parties’ preferences and choices may play in this regard), albeit interesting, will not be specifically addressed. More relevant for the purposes of our discussion is that this practice confirms the possibility (and at times the duty) to withhold from public knowledge specific information that is made available in the framework of judicial and arbitral proceedings. It thus seems reasonable to infer that sensitive information may well remain confidential also in inter-​State conciliation proceedings of the kind that the osce Court could manage in the future, even if an otherwise ‘transparent’ model were to be applied in that context. The notion of ‘transparency’ under discussion is hence not ‘absolute’; rather, it identifies proceedings where only the deliberation phase is kept fully confidential, whereas not only the existence and the outcome of the dispute settlement process, but also the documents and the pleadings are in principle made available to the public (albeit possibly with some delay or upon request) while some form of third party participation in the proceedings is also envisaged.10 In the 6

icj, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, 3, 20, para. 33, 23–​24, para 41. The icj held in camera hearings in the South West Africa cases and in the Namibia advisory proceedings, but the public records were not redacted: see further Malcolm Shaw, Rosenne’s Law and Practice of the International Court:  1920–​2015 (Leiden:  Brill, 2016); R Kolb, The International Court of Justice (Oxford: Hart, 2013) 996. 7 “Enrica Lexie” (Italy v. India), Provisional Measures, Order of 24 August 2015, itlos Reports 2015, 182, 185, para 14, and 187, para 25. Compare, as regards WTO practice and the treatment of business confidential information, Graham Cook, ‘Confidentiality and Transparency in the WTO’s Party-Centric Dispute Settlement System’, in Marco Tulio Molina Tejeda, Practical Aspects of WTO Litigation (Kluwer, in press), available at https://ssrn.com/abstract=3301863. 8 See e.g. Article 68, paras (5) and (6), of the Rome Statute of the International Criminal Court. 9 See, for instance, on the possibility to keep documents submitted to the European Court of Human Rights (ECtHR) confidential and of granting anonymity of applications, Rules 33 and 47(4) of the ECtHR Rules of Court; see also the Practice Directions concerning requests for anonymity, available at (last visited on 30 July 2019). 10 The possibility for non-​disputing parties to take an active part in the proceedings as amici curiae or otherwise, which is envisaged in the Transparency Rules, raises a number of specific issues: see Marc Bungenberg and August Reinisch, From Bilateral Arbitral

184 Forlati context of investment arbitration, notably the uncitral Transparency Rules11 seek to implement such a model:  they prescribe publicity of the main documents submitted by the parties and any orders or awards issued by the tribunal, including through a repository of information (Articles 2, 3, 8) as well as publicity of arbitral hearings (Article 6). Arbitral tribunals should exercise their judicial discretion to favour transparency (Article 1); the possibility for third parties and non-​disputing parties to file submissions is also envisaged (Articles 4, 5).12 This model may be opposed to situations where no information at all is provided or only ‘unofficial’ or partial accounts of the proceedings and their outcomes are made available, through press releases or personal statements of those directly involved in the proceedings (as is frequent in investment arbitration13 and is still mostly the case in commercial arbitration14). It should also be distinguished from situations where some circulation is formally envisaged only within the international organization under the auspices of which a given dispute settlement mechanism is set up (as for Reports of Conciliation commissions under Article 25 osce Convention or Article 7 of Annex v unclos, on which more will be said later). I will not attempt here to verify whether the model proposed by the ­u ncitral Transparency Rules is successful and is becoming the standard in investment arbitration.15 For the purposes of this paper, it is more important Tribunals and Investment Courts to a Multilateral Investment Court (Cham:  Springer, 2018) 49 ff; Maria Beatrice Deli, ‘Transparency in the Arbitral Procedure’, in Andrea Gattini, Attila Tanzi, Filippo Fontanelli, General Principles of Law and International Investment Arbitration (Leiden/​Boston: Brill, 2018) 45, 47. See also Luigi Crema, “Testing Amici Curiae in International Law: Rules and Practice”, 22 (2012) Italian Yearbook of International Law, 91. 11 Above (fn. 3). 12 Compare e.g. Article 37(2) icsid Arbitration Rules. 13 Bungenberg and Reinisch, From Bilateral Arbitral Tribunals (fn. 10), 128, note that ‘Transparency is dealt with differently in the various investment dispute settlement mechanisms: on the one hand, there are divergences regarding the definition of a general obligation, either of confidentiality or transparency. On the other hand, there are differences in the implementation of presumed transparency’ (footnotes omitted). 14 Margaret L Moses, Principles and Practice of International Commercial Arbitration (Cambridge: Cambridge University Press, 2017) 179. 15 The Rules came into effect on 1 April 2014 and apply to disputes arising out of treaties concluded on or after 1 April 2014, when investor-​State arbitration is initiated under the uncitral Arbitration Rules, unless the parties otherwise agree. For a list of investment treaties concluded after that date, some of which provide for the application of the Rules, see , last visited on 30 August 2019. The Mauritius Convention, stipulating the application of the Rules to investment treaties concluded before that date, is currently in force for five Parties:  see , last visited 30 August 2019.

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to highlight the rationale underlying the shift from confidentiality or –​at any rate –​opaqueness, towards full transparency that is currently being promoted in the framework of investment arbitration. This rationale was expressly stated by the UN General Assembly when adopting the uncitral Transparency Rules: on the one hand, the Preamble to Resolution 68/​109 recognizes that there is a ‘need for provisions on transparency in the settlement of such treaty-​ based investor-​State disputes to take account of the public interest involved in such [investment] arbitrations’.16 On the other hand, the implementation of the Rules ‘would contribute significantly to the establishment of a harmonized legal framework for a fair and efficient settlement of international investment disputes, increase transparency and accountability and promote good governance’.17 Particularly the former element (i.e., the fact that the operation of a dispute-​settlement mechanism may affect public interest) is also present in the context of inter-​State conciliation –​with stakes that are possibly higher than the public financial resources which respondent States may have to pay in order to comply with investor-​State awards.18 Before addressing this issue, it may be useful to briefly discuss the role of transparency in other inter-​State dispute settlement mechanisms, notably adjudication and arbitration. III

Transparency in International Adjudication and Arbitration

Transparency of the kind just described is typical of international adjudication, notably inter-​State adjudication in the context of the icj and the itlos, where it serves various purposes –​such as protecting the rights of third parties and enhancing the ‘systemic’ function of the relevant judicial body in the development of international law, through the formation of a coherent body of case law. Thus, Article 46 icj Statute stipulates: ‘The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted’.19 As regards the written phase, Article 53 of the Rules reads: 16

17 18 19

Resolution 68/​109, Preamble. See also the Preamble to the Mauritius Convention. Cf. Markus Gehring and Dimitrij Euler, ‘Public Interest in Investment Arbitration’, in: Dimitrij Euler, Markus Gehring, Maxi Scherer (eds), Transparency in International Investment Arbitration: A Guide to the uncitral Rules on Transparency in Treaty-​Based Investor-​State Arbitration (Cambridge: Cambridge University Press, 2015). Resolution 68/​109, Preamble. Whether the need to build a coherent legal framework through a system of precedents exists in the field of conciliation is, in this author’s view, a more open question, which will not be discussed specifically. Cf. also Article 59 of the Rules of Court.

186 Forlati 1. The Court, or the President if the Court is not sitting, may at any time decide, after ascertaining the views of the parties, that copies of the pleadings and documents annexed shall be made available to a State entitled to appear before it which has asked to be furnished with such copies. 2. The Court may, after ascertaining the views of the parties, decide that copies of the pleadings and documents annexed shall be made accessible to the public on or after the opening of the oral proceedings’. Third States have opportunities to intervene in contentious proceedings (although the relevant provisions of the Statute have been interpreted restrictively20 and participation in the form of amicus curiae is not currently envisaged). A similar framework applies within the itlos: Article 26(2) of its Statute provides for publicity of hearings,21 while according to Article 67(2) of the itlos Rules of Court Copies of the pleadings and documents annexed thereto shall be made accessible to the public on the opening of the oral proceedings, or earlier if the Tribunal or the President if the Tribunal is not sitting so decides after ascertaining the views of the parties.22 Beyond the letter of the governing texts, the practice of these courts testifies to the importance they attach to transparency: on the one hand, the possibility to withhold specific information from public scrutiny has been applied very sparingly;23 on the other hand, IT greatly facilitates swift availability of information on the development of specific cases. On the contrary, this model is not typical of inter-​State arbitration, where there is a presumption for confidentiality and it is for the parties and/​or the Tribunal to decide which degree of publicity should be given to any proceedings: as Robert Kolb observes, ‘[a]‌n arbitrator, who is simply the agent of the disputing parties and has no responsibility to any wider collectivity, normally

20 21 22 23

Serena Forlati, The International Court of Justice –​An Arbitral Tribunal or a Judicial Body? (Cham: Springer, 2014). See also Article 74 of the Rules of the Tribunal, doc ITLOS/​8, 17 March 2009. Article 67(3) sets forth: ‘However, the Tribunal, or the President if the Tribunal is not sitting, may, at the request of a party, and after ascertaining the views of the other party, decide otherwise than as set out in this article’. See Rosalyn Higgins, ‘Respecting sovereign States and running a tight courtroom’, in 50 (2001) International and Comparative Law Quarterly 121, at 124. On developments within the WTO see again Cook, ‘Confidentiality’ (fn. 7).

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operates by excluding the public’.24 This stance accurately reflects the traditional perception of the distinction between arbitration and adjudication. Arbitral procedure is in principle regulated by the Parties or by the arbitral tribunals themselves,25 including as regards issues of transparency. Information about the existence and outcome of inter-​State arbitral proceedings may be officially made available through institutions such as the pca, but any decision in this regard usually lies with the parties, directly or indirectly.26 Moreover, confidentiality is traditionally the default rule as regards the management of the proceedings: pleadings are not published, hearings may be open to the public only with the Parties’ consent,27 and even provisions such as Article 32 osce Convention, stipulating the publication of any award by the Registrar, are not to be given for granted in other contexts.28 Third-​Party participation (either through intervention or in the form of an amicus curiae) is usually not envisaged, although this pattern is sometimes not followed in the framework of multilateral instruments: notably, in the framework of unclos Annex vii Arbitration arbitral tribunals have discussed –​albeit without admitting –​third party participation in the form of intervention (by a State party to the unclos)29 or amicus curiae (by an ngo).30 The osce Convention is more open in this regard, as Article 29, paras (3) and (4), envisages intervention along the lines of Article 62 icj Statute and Article 31 itlos Statute.31

24 Kolb, The International Court of Justice (fn. 6) 994. 25 See e.g. United Nations Convention on the Law of the Sea (unclos), Annex vii, Article 5. 26 See e.g. pca Arbitration Rules 2012, Article 34(5). 27 See e.g. Article 16 of the ilc Model Rules (fn. 5), Article 28(3) pca Arbitration Rules 2012. 28 See e.g. Article 34(5), pca Arbitration Rules 2012. 29 Viet Nam ‘reserved its right’ to intervene in The Matter of the South China Sea Arbitration pca Case No. 2013–​19 (para. 36 of the merits Award (fn. 34)); the Arbitral Tribunal ‘stated that it would address the permissibility of intervention in these proceedings ’only in the event that Viet Nam in fact makes a formal application for such intervention’ (ibid. para. 43). See Sienho Yee, ‘Intervention in an Arbitral Proceeding under Annex VII to the UNCLOS?’, 14 (2o15) Chinese Journal of International Law 79, 85 ff. 30 See Arctic Sunrise Arbitration, Award on Jurisdiction, para 33 ff. 31 Article 17(6) pca Arbitration Rules 2012 regulates joinder of other parties to the arbitration agreement, whereas under Article 4 of the Annex to the Vienna Convention on the Law of Treaties Concluded between States and International Organizations or between International Organizations (Vienna Convention 1986), the Parties to the Convention may be admitted to present their views in arbitration proceedings (doc A/​CONF.129/​15, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations (Documents of the Conference), vol. ii 95, 109).

188 Forlati At any rate, that recent practice shows a trend towards increased transparency in inter-​State arbitration. Although there can be no certainty about the exact number of unpublished awards, there seems to be a broad acceptance of the principle that, once inter-​State arbitral awards are adopted, they should be published, including in official collections32 and repositories which are now swiftly updated online.33 Even as regards transparency of the proceedings as such, recent practice features significant innovations. For instance, the Rules of Procedure in the Enrica Lexie (Italy/​India) and Black Sea (Ukraine/​Russia) Arbitration (that is, in two out of three inter-​State arbitral proceedings currently pending at the pca) envisage the publication of pleadings once the oral phase begins,34 the partial publicity of the hearings and the publication of all the transcripts ‘after the publication of a final award’.35 In The Matter of the South China Sea Arbitration the Arbitral Tribunal could direct publication of ‘information and documents, including procedural orders, rules of procedure, written pleadings and transcripts of oral hearings’.36 The Rules of Procedure for the Arctic Sunrise case also considered the opening of the hearings to the public.37 In another recent 32 33

34

35

36 37

One may only recall the United Nations Reports of International Arbitral Awards, which are available online. This is the case notably with the website of the pca (pca-​cpa.org), which often also provides information and other documentation on pending proceedings. In the recent past, the pca has acted as administering authority for a growing number of inter-​State arbitrations and other dispute settlement mechanisms (including the Timor Sea Conciliation to which we will revert later). According to Article 25(2) and Article 27(2) of the respective Rules of Procedure, ‘The pleadings of the Parties shall be confidential until the opening of the hearing to which they relate, save that any confidential information shall remain confidential at all times. On the opening of the hearing, the Registry shall publish the Parties’ pleadings as well as any non-​confidential documentary evidence submitted with the pleadings on the pca Case Repository. The Parties shall refrain from publishing their pleadings prior to their publication by the Registry’ (available at ). See paras (3) and (4) of respectively Article 25 and Article 27. Procedural orders are public, albeit subject to redaction (para 5), whereas ‘Any award of the Arbitral Tribunal shall be public and made publicly available on the pca Case Repository unless both Parties agree otherwise’. The The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), which is the oldest of the three cases (currently pending for the reparations phase), reflects the traditional pattern: its rules of procedure are not published, but the merits award of 5 September 2016 is available on the pca website. See Article 16 of the Rules of Procedure, adopted on 27 August 2013, available at http://​ pca-​cpa.org (see also the merits Award, of 12 July 2016, para 15; Viet Nam could access procedural orders issued by the Arbitral Tribunal: see again ibid., fn. 8 and and para 43). Arctic Sunrise, fn. 30, Article 16 of the Rules of Procedure adopted on 17 March 2014: ‘1. The existence of this arbitration shall be public. The Registry will identify on its website

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arbitration proceeding, the Arbitration under the Timor Sea Treaty (Timor-​ Leste v. Australia) case, the Rules of procedure provided for the publication of the award and envisaged the publication of pleadings –​albeit subject to the parties’ consent.38 Moreover, intervention and third-​Party participation are still sensitive issues, but some multilateral instruments provide for ample rights of participation for non-​disputing parties. An apt example in this regard is the Central American Free Trade Agreement (cafta),39 which is of interest also because of the role it envisages for non-​governmental entities. Notably, Article 20:10 stipulates publicity of documents and hearings (albeit with possible limitations) and the possibility that ‘non-​governmental entities in the disputing Parties’ territories (…) provide written views regarding the dispute that may assist the panel in evaluating the submissions and arguments of the disputing Parties’.40 While the role of non-​disputing Parties may be explained in light of the multilateral nature of the cafta and reflects a model used by other trade agreements41 the latter development, which builds on wto practice, may be an indication that the traditional conception of arbitration should be revisited today in light of the role non-​State actors have acquired in contemporary international law. The idea that even a non-​institutional, purely bilateral arbitrator ‘has no responsibility to any wider collectivity’ should be tested against this development: although international dispute settlement bodies are set up (mainly) by States and remain their ‘creatures’, non-​State actors have become

38 39

40 41

the names of the Parties, the Arbitral Tribunal, and the agents and counsel for the Parties, and will publish such further information and documents, including procedural orders, rules of procedure, written pleadings and transcripts of oral hearings, as may be directed by the Arbitral Tribunal. 2. The Arbitral Tribunal may, from time to time, direct the Registry to issue press releases concerning the status of the proceedings. 3.  The Arbitral Tribunal, in consultation with the Parties and having regard to all relevant circumstances, may decide to open any hearings to the public, including the webcasting of such proceedings’. Article 22 of the Rules of Procedure:  see http://​pca-​cpa.org. The procedure was discontinued upon recommendation of the Conciliation Commission:  see Report and Recommendations (fn. 3) paras 48, 106. Article 20:11 cafta envisages that any non-​disputing Party ‘(…) shall be entitled to attend all hearings, to make written and oral submissions to the panel, and to receive written submissions of the disputing Parties in accordance with the Model Rules of Procedure. Those submissions shall be reflected in the final report of the panel’. Cf. already the North American Free Trade Agreement, Articles 1127–​1129. Article 20:10 cafta. See Article 10 wto Dispute Settlement Understanding; Article 2013 nafta.

190 Forlati ‘constituencies’42 whose positions may have to be taken into account in order to achieve fair solutions. IV

Transparency in Conciliation

Traditional Approaches to Transparency in Conciliation and the osce Convention It is well known that conciliation has a multifarious nature, oscillating between a ‘bilateral’ model akin to mediation and institutionalized contexts where it is more similar to arbitration (at least from the procedural point of view).43 Moreover, international practice offers examples of hybrid mechanisms, and elements of conciliation are present in several contexts where the outcome of the dispute settlement proceedings is, as a final step, binding.44 The traditional approach to issues of transparency in inter-​State conciliation, particularly of ‘bilateral’ conciliation, is possibly even more restrictive than the one characterizing arbitration. Model rules usually reflect the nature of conciliation as a diplomatic means of dispute settlement, identifying confidentiality as a feature of conciliation proceedings as regards both the proceedings as such and their outcome. This is the case not only in the context of older models, such as those envisaged by the Resolutions on Conciliation 1)

42

On this concept see Yuval Shany, Assessing the Effectiveness of International Courts:  A Goal-​based Approach (Oxford: Oxford University Press, 2014). 43 As Jean-​Pierre Cot observed in 1968, ‘Il faut (…) se résigner à abandonner les déinitions nettes’ (Jean-​Pierre Cot, La conciliation internationale [Paris:  Pedone,  1968] 10); cf. Giovanni Maria Ubertazzi, Contributo alla teoria della conciliazione delle controversie internazionali davanti al Consiglio di sicurezza (Milan: Giuffré, 1958), 8 ss., note 12. Several decades years later, conciliation is still perceived as an hybrid form of dispute settlement: see Sienho Yee, ‘Conciliation and the 1982 UN Convention on the Law of the Sea’, 44 (2013) Ocean Development and International Law 315, 316 (quoting Cot on this point and characterizing conciliation as a ‘half-​breed’); John G Merrills, International Dispute Settlement5 (Cambridge: Cambridge University Press, 2011) 65–​66; Giuseppe Palmisano, ‘Diplomatic and Jurisdictional Aspects in Conciliation Procedures: Conciliation Between Dispute Settlement and Conflict Prevention’, in:  Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law–​The OSCE Court of Conciliation and Arbitration (Leiden/​Boston: Brill, 2016) 26, 27. 44 See Case Concerning Boundary Markers in Taba between Egypt and Israel, Decision Article ix of the compromis,, xx United Nations Reports of International Arbitral Awards, 1. Cf further August Reinisch, ‘Elements of Conciliation in Dispute Settlement Proceedings Relating to International Economic Law’, in: Tomuschat, Pisillo Mazzeschi, Thürer (eds.), Conciliation in International Law (fn. 43) 116; Emmanuel Decaux, ‘The Potential for Inter-​ State Conciliation within the Framework of the UN Treaties for the Protection of Human Rights’, above in this volume.

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adopted by the Institut de droit international in 192745 and 1961.46 More recent examples of the same approach include the 1995 United Nations Model Rules for the Conciliation of Disputes between States,47 while the pca Optional Conciliation Rules,48 which are modelled on the uncitral ones,49 have a more nuanced approach. Notably, Article 14 of the pca Rules states: Unless the parties agree otherwise, or the disclosure is required in connection with judicial proceedings pursuant to article 16 hereof, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality extends also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.50 The situation is slightly different whenever conciliation takes place in the framework of an international organization. Leaving aside the numerous examples where international organizations provide the framework for conciliation outside any formalized settings,51 some formal communication to the 45 Article v of the Resolution, adopted at the Lausanne Session (available on the Institute’s website, , last visited on 30 August 2019). 46 Articles 10–​14 of the Resolution, adopted at the Salzburg Session. The text is available at , last visited on 30 August 2019. 47 Cf. uncitral Rules on conciliation of 1980, A/​ RES/​ 50/​ 50. See Articles 25(1), 26. According to Article 28, moreover, neither party is in principle allowed to rely on ‘any views expressed or statements, admissions or proposals made by the other party in the conciliation proceedings, but not accepted, or the report of the commission, the recommendations submitted by the commission or any proposal made by the commission unless agreed by both parties’. This kind of rule is deemed as crucial to the effectiveness of conciliation proceedings (see Cot, La conciliation (fn. 43 167, 169)) notwithstanding the risks of abuse. 48 Effective 1 July 1996, available at . For further examples see Palmisano, ‘Diplomatic and Jurisdictional Aspects’ (fn. 43) 28, note 3. 49 Article 9. 50 Cf. Article 14 of the uncitral Conciliation Rules, General Assembly Resolution 35/​52 of 4 December 1980: ‘The conciliator and the parties must keep confidential all matters relating to the conciliation proceedings. Confidentiality extends also the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement’. See also icsid Conciliation Rules, Articles 27, 33(3). 51 See e.g. Ubertazzi, La funzione (fn. 43) 4, on Conciliation within the UN. On the osce framework, see Riccardo Pisillo Mazzeschi, ‘Prevention and Resolution of Conflicts in the OSCE and the Role of the Court of Conciliation and Arbitration’, in Tomuschat, Pisillo Mazzeschi, Thürer (eds), Conciliation in International Law (fn. 43) 57.

192 Forlati relevant organization as to the outcome of conciliation proceedings is usually envisaged. As was noted, ‘where a multilateral framework for 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’.52 However, this does not necessarily imply that the procedure is ‘transparent’ in the sense described above, and the relevant regulatory texts may in any case be open to different interpretations. Notably the obligation to notify any conciliation report to the Secretary General of the United Nations under both the Annex to the Vienna Convention 198653 and Annex v unclos54 has been read as in substance ensuring publicity to the report55 or, on the contrary, as implying an obligation of confidentiality for the UN organ.56 The legal framework shaped by the osce Convention also offers a nuanced picture. Article 23(1) reflects the traditional model as it stipulates that ‘[t]‌he conciliation proceedings shall be confidential’. However, publicity as regards the initiation of proceedings is ensured at least vis-​à-​vis Participating States: both the osce Convention (Article 15) and the Rules of Court (Article 4) set forth that ‘all requests for conciliation or arbitration addressed to the Court shall be communicated by the Registrar to the Secretariat of the osce, which shall transmit them forthwith to the States participating in the osce’. This means that Member States formally know about the existence of the conciliation proceedings.

52 Christian Tomuschat, ‘Conciliation Within the Framework of the OSCE Court of Arbitration and Conciliation: An Assessment from the Point of View of Legal Policy’, in Pisillo Mazzeschi, Tomuschat, Thürer, Conciliation (fn. 43) 79, 102. 53 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 21 March 1986, Annex, Article 13, in Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations (Documents of the Conference), vol. ii, 95. See also the Convention on Succession of States in respect of Treaties, Vienna on 23 August 1978, Article 6 Annex, Article 6, United Nations Treaty Series, vol. 1946, 3. 54 Article 7, on which see further below. According to Article 297(3)(d) unclos conciliation commissions’ reports on disputes relating to fisheries are to be formally transmitted to ‘the appropriate international organizations’. 55 Cf. Ugo Villani, La conciliazione nelle Controversie internazionali (Napoli: Jovene, 1972) 288. 56 Yee, Conciliation (fn. 43) 320, does not take a clear-​cut stance but seems to favour a reading of the provision in light of the principle of confidentiality (compare ibid., 326). Cf. Rüdiger Wolfrum, ‘Conciliation under the UN Convention on the Law of the Sea’, in Pisillo Mazzeschi, Tomuschat, Thürer, Conciliation in International Law (fn. 43) 171, 185.

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As regards the conduct of the proceedings, the default rule is confidentiality under article 23(1), but publicity (at least vis-​à-​vis the participating States) is envisaged under Article 25(6) osce Convention: A report shall also be drawn up which provides immediate notification to the csce Council [now, Ministerial 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.57 Beyond this form of pressure towards States which do not respect their obligation to participate in the conciliation procedure, moreover, the requirement that proceedings should remain confidential may be eased insofar as the Parties to the proceedings consent. More specifically, third Parties may take part in the proceedings, with the original Parties’ agreement, under Article 23(2); arguably, an interpretation of Article 23 in light of the principle of party autonomy may lead to some forms of publicity/​transparency as regards the course of the proceedings (including publication of verbatim records and publicity of hearings) should the Parties agree. The situation is somehow more complex as regards the outcome of the proceedings. According to Article 25(1) osce Convention, ‘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’. This implies that there may be no adoption of a formal report by the Commission: what matters is the agreement of the parties as to the settlement of their dispute, whereas the osce political organs are automatically informed of ‘the success of the conciliation’.58 At least according to the black letter of the osce Convention, not even the circulation of the agreement as such is formally required (although one or all the Parties to the dispute may have to publish its text in order to respect their respective domestic law).59 57 58

59

On the institutional framework of the osce and its development see Pisillo Mazzeschi, ‘Prevention and Resolution of Conflicts’ (fn. 51) 58. The last part of Article 25(1) reads:  ‘The csce Council shall be informed through the Committee of Senior Officials of the success of the conciliation’. Compare e.g. the different wording of the icsid Conciliation Rules, in icsid Convention, Regulations and Rules (Washington: International Centre for Settlement of Investment Disputes, ICSID/​ 15, 2006), Article 30. Thus, for instance, international agreements concluded by Italy should be published in the Gazzetta Ufficiale della Repubblica italiana even when prior approval by Parliament

194 Forlati When conciliation reports are issued,60 they are transmitted to the Ministerial Council under Article 25(5).61 The collective and political nature of the Council clearly distinguishes its role from the one of the Secretary General in the unclos conciliation; an obligation of confidentiality (which is doubtful even as regards Annex v conciliation) seems difficult to construe in the context of the osce. Indeed, President Tomuschat argued that the transmission of a report to the Council automatically implies publicity of the outcome of the proceedings;62 and such a stance is difficult to disregard, although it was given in a personal capacity. At the same time, the transmission to the Ministerial Council does not amount to official publication and some indications in the legal framework currently regulating conciliation within the osce Court would seem to be at odds with the ‘transparency paradigm’ discussed above. Besides the situations in which no report is issued both Parties’ agreement is required in order for the Court to publish any final report of conciliation commissions under Article 7(3) of the Rules of Court;63 some information about conciliation proceedings could surely be included in the Court’s periodic reports,64 but once again this would not amount to ensuring truly ‘public’ knowledge, namely, transparency, on the outcome of the proceedings. Therefore the question arises: is this legal framework suitable to regulate international conciliation, specifically within the osce? Should the participating

60 61 62 63 64

is not needed for its conclusion (see Law 11 December 1984, n. 839, Article 4, in Gazzetta Ufficiale della Repubblica italiana, Serie generale, n 345 of 17 December 1984).  Should any dispute involving this country ever be brought before an osce Conciliation Commission, it is not unlikely that it would fall ratione materiae under the scope of Article 80 of the Constitution, which requires such a prior approval for specific classes of treaties. This in turn could make it difficult for Italy to formally accept a settlement suggested by the Conciliation Commission within the 30-​day deadline envisaged by Article 25(3); similar difficulties may arise also for other States. However, it could also be expected that the Conciliation Commission would grant sufficient leeway to Governments seeking in good faith the approval of competent domestic authorities. According to Article 25(2), reports have to be adopted when ‘the Conciliation Commission considers that all the aspects of the dispute and all the possibilities of finding a solution have been explored’. This text stipulates:  ‘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’. Tomuschat, ‘Conciliation within the osce’ (fn. 52) 102. According to Article 7(3), ‘The Court shall not publish the final reports of conciliation commissions established within it, unless the parties so agree’. For the 2013–​2016 Report, see https://​www.osce.org/​cca/​293571?download=true (visited on 10 September 2019).

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States consider amending the osce Convention in order to achieve a higher level of transparency as a way to meet the needs of ‘modern’ conciliation? Would this make the osce Court more attractive as a forum for inter-​State dispute settlement? The analysis of the treatment of issues of transparency in a recent, successful conciliation exercise may help shedding some light on these matters. Lessons Learned from the Timor Sea Conciliation between Timor-​Leste and Australia The reference is to the Timor Sea Conciliation, which was recently concluded under Annex v unclos, and in which transparency was ensured to an extent hitherto unusual in the framework of conciliation: the pca acknowledged early on the existence of the proceedings, as provided by Article 16(1) of the Rules of procedure;65 the hearings’ opening session was public;66 press releases on the progress of the conciliation were regularly made available;67 the Commission’s Decision on competence and other relevant materials were published upon adoption.68 A wealth of further materials was published on the pca website together with the Commissions’ Final Report and Recommendations69 2)

65

66

67

68 69

Article 16(1) reads: ‘The existence of this conciliation shall be public. The Registry shall identify on its website the names of the Parties, the Commission, and the agents and counsel for the Parties, and will publish such further information and documents as provided in these Rules or as may be directed by the Commission’. Article 16(2) of the Rules of Procedure: ‘The Commission may, in consultation with the Parties, designate any hearing, or any portion thereof, as a public hearing or meeting. The Registry shall make appropriate arrangements for any public hearing or meeting as directed by the Commission’. The webcast and the transcripts of the hearing are available on the pca website. Cf. Article 16(3) of the Rules of Procedure: ‘The Commission may, from time to time, at its own initiative or upon request of a Party, direct the Registry to issue press releases concerning the status of the proceedings. The Commission may, in its discretion and in consultation with the Parties, attach summaries or statements made by the Parties, transcripts of proceedings, and other documents forming part of the record of the proceedings to press releases issued by the Registry. In deciding when and whether to make public information or documents concerning the proceedings, the Commission shall bear in mind the purpose of the proceedings to assist the Parties in reaching an amicable settlement’. Article 16(4) of the Rules of Procedure expressly sets forth:  ‘Any decision of the Commission on whether it has competence shall be made public’. pca Case No, 2016-​10, Conciliation Commission Constituted under Annex v to the 1982 United Nations Convention on the Law of the Sea, Maritime Boundary between Timor-​ Leste and Australia (The ‘Timor Sea Conciliation) The Democratic Republic of Timor-​Leste and The Commonwealth of Australia, Report and Recommendations of the Compulsory

196 Forlati (for which the Rules did not envisage automatic publicity),70 after the Parties reached an agreement as to the delimitation of their maritime border. Specific stakeholders, notably the Greater Sunrise Joint Venture, were actively consulted in key phases of the procedure.71 The conciliation proceedings were thus in keeping the indications set forth by the uncitral Transparency Rules, thus apparently confirming, at least at first sight, that the trend emerged in arbitration is also finding its way in the framework of conciliation. Precisely this example of conciliation shows, however, that the possibility to transpose the solutions envisaged by the uncitral Transparency Rules to inter-​State conciliation should not be lightly assumed. The reason for this need for caution lies in the nature of conciliation as a means of dispute settlement –​which remains fundamentally different from arbitration although under specific circumstances it functions pretty much as a judicial or arbitral proceeding. While it may be true that the Timor Sea Conciliation Commission ‘acted as an adjudicative body’ at least in the context of its Decision on competence,72 the Commission itself emphasized that the dispute between the parties was not settled by its report, since ‘the Parties’ Treaty stands on its own as the legal resolution of the dispute over their maritime boundaries’.73 This was repeatedly highlighted during the case, thus confirming that, according to the Conciliation Commission between Timor-​Leste and Australia on the Timor Sea, 9 May 2018, available at , last visited 15 September 2019. 70 Article 16(5) sets forth: ‘the Commission shall decide, in consultation with the Parties, whether to make the Commission’s Report or any portion thereof public’. 71 See Report and Recommendations (n 2)  para 144:  ‘During that same session, the Commission, at the request of both Parties, wrote to the Greater Sunrise Joint Venture, the licence holder to Greater Sunrise, to invite the Joint Venture “to provide the governments and the Conciliation Commission with a comparative analysis of the Timor lng and Darwin lng development concepts, showing the Joint Venture’s views as to costs, revenue and likely timing of each concept, as well as any additional information that you think the governments, and the Conciliation Commission, may find useful to know’. 72 See Jianjun Gao, ‘The Timor Sea Conciliation (Timor-​Leste v. Australia): A Note on the Commission’s Decision on Competence’, 49(2018) Ocean Development & International Law 208, 210. 73 Report and Recommendations (n 2) para 6, where the Commission explained that ‘that the purpose of this Report is to provide background and context to the process through which the Parties’ agreement was reached (…) [. B]oth governments, as well as the peoples of Timor-​Leste and Australia, will benefit from a neutral elaboration by the Commission of the manner in which this agreement was reached’. See also the stance reported in the Conciliation Commission’s Decision on Australia’s Objections to Competence (n 2) para 23: ‘Timor does not consider the conciliation procedure as a dispute settlement mechanism’.

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Commission, its role could not be equated to that of an international court or tribunal.74 The awareness of the distinct nature of conciliation, as opposed to arbitration or judicial settlement, resulted in procedural steps that would be scarcely conceivable in the context of judicial or arbitral proceedings (notably the fact that the Conciliation Commission, or some of its members, met separately with each party on several occasions, in order to discuss their respective positions).75 Other elements in the conciliation procedure, including decisions on transparency, arguably also reflect this difference. Notably, the Rules of procedure adopted by the Commission for the specific case were carefully balanced. Article 16(7) set forth a general obligation whereby the Commission, the Parties and the Registry should ensure confidentiality ‘except as otherwise provided in this Article or agreed by the Parties, or except to the extent that the disclosure is required in connection with arbitral or judicial proceedings’. At the same time, the existence of the proceedings was to be made public (Article 16(1)) together with any ‘decision of the Commission on whether it has competence’ (Article 16(4)). Moreover, while the Parties were entitled to designate specific information or documents as confidential,76 Article 16 of the Rules of 74

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Cf Report and Recommendations (n 2)  para 51:  ‘Compulsory conciliation proceedings are governed by Annex v to the Convention. In such proceedings, a neutral commission is established to hear the parties, examine their claims and objections, make proposals to the parties, and otherwise assist the parties in reaching an amicable settlement. Conciliation is not an adjudicatory proceeding, nor does a conciliation commission have the power to impose a legally binding solution on the parties; instead, a conciliation commission may make recommendations to the parties’ (emphasis added). See also ibid, para 70, on the competence of the Commission make determinations on issues of law, and para 124, on the issuance of a Commission ‘non-​Paper’ as a basis for discussion with the Parties. See notably Report and Recommendations (n 2)  para 57:  ‘In preparing the Rules of Procedure, the Commission and the Parties sought to maintain a flexible and informal approach to enable the Commission to follow the path that it considered most likely to lead to an amicable settlement. In particular, the Parties agreed that the Commission should not hesitate to meet with the Parties separately. In practice, most of the Commission’s meetings with the Parties were held separately, and the Commission considers that its most important discussions with each Party would not have occurred in a joint setting’. This is a rather typical feature of conciliation procedures (see eg 1961 idi Rules, Article 7; icsid Convention, Article 35; pca Optional Conciliation Rules, Effective July 1 1996, Article 9(1), available at ), and one of the procedural aspects for which they may be more clearly distinguished from arbitration and adjudication. See Article 16(6) of the Rules of Procedure: ‘Either Party may designate certain information or materials it submits to the Commission as confidential. Information or materials so designated shall not be made public or referred to in press releases issued by the Registry or in any other documents made public by the Commission except with the

198 Forlati procedure ultimately entrusted the Commission with deciding, after simply consulting the parties, on issues such as the publicity of hearings, publication of documents relevant to the procedure and of any final report.77 The approach vis-​à-​vis third Parties was also very interesting: the Commission stressed that it ‘was acutely conscious that the delimitation of maritime boundaries has an impact on others than the Parties to the dispute’.78 The Commission and its President thus took great care in encouraging the Parties to provide information to interested stakeholders, both during the proceedings and on its outcome: more generally, one of their openly declared objectives was to ‘manage the process for all stakeholders in the Timor Sea, including other governments and private actors with interests in the area’.79 This notwithstanding, every step aimed at ensuring transparency was agreed upon with the Parties to the case, so as to reflect the stated aim of the proceedings –​namely, ‘to assist the Parties in reaching an amicable settlement’.80 In the Commission’s words, ‘[i]‌n order to enable an open discussion with each Party, the Commission sought to ensure that the Parties’ legal positions would not be jeopardized by their participation in the proceedings and that the Parties would have complete control over the further disclosure, either to the other Party or to the public, of anything they revealed in the course of the conciliation’.81 The

77

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agreement of the Parties. Insofar as necessary, the Commission shall make appropriate arrangements in consultation with the Parties for the redaction of confidential information from any document made public’. On the last point the Commission notes that, ‘in adopting its Rules of Procedure, the Commission declined to decide at the outset whether this Report should be issued publicly, leaving this to be decided in consultation with the Parties in the course of the proceedings. Indeed, the Rules of Procedure also contemplated the possibility of supplementing its official report with supplemental reports to be provided confidentially to each side’: see Report and Recommendations (n 2) para 69. Report and Recommendations (n 2) para 60. Ibid., para 89(b). Cf. also the letter the President of the Commission wrote to the Parties (reproduced ibid., para 90), whereby the Commission invited them ‘in the interest of managing the process for all stakeholders, (…) to consider the possibility of issuing a joint public statement after the October meetings. If helpful, the Commission would be available to confer with the Parties’. More generally, the Report and Recommendations (n 2) highlights that, while respecting confidentiality, ‘the Commission itself has sought to ensure that the public of both Timor-​Leste and Australia, as well as other stakeholders with interests in the Timor Sea, have been kept informed of progress in the proceedings, including through the public opening session conducted in August 2016 that was webcast on the website of the Permanent Court of Arbitration (the “pca”) and through the issuance of regular press releases by the Registry’ (ibid., para 61). Rules of Procedure, Article 16(3). Report and Recommendations (fn. 2) para 59.

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Commission also considered the ‘option of confidentiality (…) to have been essential to the conduct of the proceedings’.82 This flexible approach was no doubt favoured by the fact that, at least in principle, Annex v unclos entrusts the conciliation Commission with the task of determining its rules of procedure, including as regards issues of transparency:83 Neither Party would have been in a position to impose absolute confidentiality (except for the notification to the UN Secretary General) unless the other Party agreed. At the same time, the discretion granted to the Timor Sea Conciliation Commission was instrumental for the success of those proceedings precisely because it was used in a most cautious way: considerations of transparency had an important role in the management of the proceedings, but not to the point of hindering a positive outcome of the conciliation –​as emerges very clearly also from the account of the way in which the Commission drafted the Rules of Procedure.84 V

Conclusions

The discussion above seems to confirm that the problem of transparency in conciliation should not be addressed through a one-​fits-​all solution. Neither should all conciliation proceedings be completely transparent as regards the existence of the proceedings, the proceeding itself and, possibly more importantly, its outcome; nor would it always be satisfactory to provide for absolute confidentiality unless both parties agree otherwise, although this is the solution that is envisaged by several conciliation rules (including Article 23 osce Convention as regards the proceedings).

82

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Ibid. para 230. See further ibid., para. 59, on the importance of leaving the parties ‘complete control’ over their disclosures, and para. 94, on the decision to keep ‘no written record’ of the separate meetings between the Commission and each of the Parties, to ‘encourage the Parties to speak freely in their discussions with the Commission and explore avenues for settlement without fear of commitment’. This is in line with the more general perception that, as regards conciliation, ‘confidentiality of proceedings is essential to its prospects of success’ (Merrills, International Dispute Settlement [fn. 43] 68). Article 4 reads: ‘The conciliation commission shall, unless the parties otherwise agree, determine its own procedure. The commission may, with the consent of the parties to the dispute, invite any State Party to submit to it its views orally or in writing. Decisions of the commission regarding procedural matters, the report and recommendations shall be made by a majority vote of its members’. See again Report and Recommendations (fn. 2) para 60.

200 Forlati On the one hand, there is little doubt that the values underlying the shift towards transparency in investment arbitration and in other contexts, such as inter-State arbitration, could be at stake in an equally (if not more) cogent way in inter-​State conciliation. Indeed, the latter form of dispute settlement almost inevitably involves a strong public interest, touching upon interests of other parties –​including specific non-​State actors or, indeed, general interests of the international society. Moreover, transparency could contribute to fair and effective settlement of disputes and enhance the role of conciliation in the development of specific treaty regimes and the international legal system more generally. This is especially true when, as in the case of the osce Court, conciliation is part of a broader, multilateral treaty framework which may involve other forms of ‘transparent’ dispute settlement. At the same time, conciliation remains a diplomatic means which, even when it follows a judicial-​like procedural pattern, may not, per se, settle international disputes. This radical difference as compared to arbitration and adjudication implies that any proposal leading to fuller transparency should be assessed with care. The successful experience of the Timor-​Leste v Australia conciliation under Annex V unclos offers some insight on this issue: the aim to ensure full transparency towards the wider public, albeit important, was not considered as an aim to be achieved at all costs. That example actually confirms that, as also the title of this book hints, flexibility suits well the ‘art’ of conciliation85 and is likely to enhance its role as a means of dispute settlement. It would hence be important that the procedural rules regulating conciliation favour flexibility –​although this would not in itself give any guarantee as to the success of an exercise which inevitably depends on a combination of factors, including the nature of the dispute, the actual willingness of the parties to find a compromise and, last but not least, the conciliators’ personal skills. The legal framework specifically regulating transparency under the osce Convention is not as flexible as the one established under Annex v UNCLOS. On the one hand, the default rule for the conduct of proceedings is confidentiality, which would not leave any Conciliation commission much leeway to put pressure on the Parties to enhance transparency, even if the circumstances so warrant: entrusting the last word on the issue to the Conciliation Commission 85 Cot, La conciliation internationale (fns. 43, 176). Cf. the Introduction to the pca Optional Rules on Conciliation, ‘Flexibility is [a]‌fundamental characteristic of these Rules. (…) The approach of the conciliator under these Rules is to bring the parties to agreement by a variety of means, rather than to focus primarily on influencing the parties by a recommendation’.

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could be a more adequate solution.86 However, some forms of publicity vis-​à-​ vis the Organization and the Participating States are already envisaged under the current framework: notably, as to the existence of the proceedings, the lack of cooperation by one party, the successful outcome of the proceedings and any final report.87 On a second level, the lesson drawn from the Timor Sea Conciliation is to the effect that publicity as regards the outcome of proceedings is in principle desirable but should probably not be conceived as a rigid rule (especially as the aim of any amendment would be to increase the attractiveness of conciliation before the osce Court, while enhanced transparency may rather be an obstacle in this respect). Although transparency with regard to the report and recommendations is not automatic under the osce Convention, provisions such as its Article 25 would probably enable a Conciliation Commission to suggest that the parties allow publication under Article 7(3) of the Rules of Court. Moreover, it is to be expected that the Commission would specifically encourage the Parties to respect any domestic law obligation, notably in terms of involvement of parliamentary bodies (which normally implies publicity), before accepting its report and recommendations. De lege ferenda, an amendment to Article 7(3) of the Rules of Court could provide for publicity of reports as the default rule, thus replacing the current regime of ‘quasi-​publicity’ with a regime of formal transparency as to the outcome of the conciliation p ­ roceedings.88 86 87 88

The excessive rigidity of the conciliation mechanism is highlighted by Pisillo Mazzeschi, ‘Addressing Conflicts’ (fn. 51) 76 (also noting, however, that ‘[r]‌evision of the Stockholm Convention (…) does not seem easy to achieve’. See above, para 3.1. While requiring the approval of States parties to the Stockholm Convention, this amendment could be proposed by the Court under Article 11 of the Convention; it might therefore be easier to achieve than an amendment of the Convention as such.

pa rt 6 The osce Court of Conciliation and Arbitration

∵

­c hapter 9

The Conciliation Procedure of the osce Court: Problems and Prospects Riccardo Pisillo Mazzeschi and Eugenio Carli 1 Introduction1 The osce Court of Conciliation and Arbitration, based in Geneva, was established by the Convention on Conciliation and Arbitration within the osce (Stockholm Convention), concluded in Stockholm on 15 December 1992 and entered into in force on 5 December 1994.2 The Court is an international body that has the task of settling, through conciliation and arbitration procedures, ‘any dispute’3 between States parties. These may relate to issues of territorial integrity, maritime delimitation, environment and economy and, more generally, all areas in which the osce performs its functions.4 To this end, the Court may create Conciliation Commissions and Arbitral Tribunals on an ad hoc basis, as envisaged by the aforementioned Convention (Art. 2). The Court was formally established and became operational on 29 May 1995, with the aim of representing one of the symbols of the rule of law in Europe. On the occasion of the second summit of Heads of State and Government of the osce countries, held in Paris in November 1990, it was solemnly declared, in fact, the opening of a new era of democracy, peace and unity in the European continent, which had to be characterized by the promotion of human rights and fundamental liberties, economic freedom, social justice and an equal level of security for all participating States. Furthermore, the commitment by the osce countries to settle any disputes by peaceful means was underlined, through the development of prevention and resolution mechanisms for that 1 Sections 2, 2.1, 3.1 and 4 were written by Riccardo Pisillo Mazzeschi. Sections 1, 2.2, 3, 3.2 and 3.3 were written by Eugenio Carli. 2 Convention on Conciliation and Arbitration within the csce (as from 1 January 1995: Organization for Security and Co-​operation in Europe, osce), adopted by the Council of Ministers at its meeting held on 15 December 1992 in Stockholm. 3 Ibidem, Art. 18, para. 1. 4 E.g., arms control, borders management, migration, public security, gender equality, rule of law, etc. For more information on osce competences and objectives, visit https://​www.osce. org/​.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_010

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purpose.5 There were, accordingly, great expectations around the pacifying and dissuasive role that the Court would play. The achievement, within a short time, of the number of ratifications necessary for the entry into force of the Stockholm Convention (twelve) seemed to confirm the enthusiasm placed around this body. These expectations, however, have been largely disillusioned over time. As is known, as yet no case has indeed been submitted to the osce Court in its twenty-​five years of life. There are many reasons for this failure, but perhaps four are noteworthy. First of all, there is the fact that, despite the good number of accessions in the initial phase, few States have accepted the Stockholm Convention, which is open to the accession of all the osce participating countries.6 To date there are only 34 States parties, including Italy, France, Germany, Poland and Sweden. However, many economically and politically relevant osce participating countries, such as Canada, Russia, the United Kingdom, the United States and Turkey, have not ratified the Convention. Secondly, the Court found itself facing competition from other international courts, born previously and therefore undoubtedly better known, as well as presumably endowed with greater ‘prestige’, such as the International Court of Justice as well as the two European courts in Luxembourg and in Strasbourg. Thirdly, we believe that the problems of the osce Court are also due to a lack of knowledge of this institution on the part of Governments, Foreign Ministers and Heads of the legal departments of the Foreign Ministries. Also other actors that are part of the international community  –​such as international organizations, non-​governmental organizations, associations for the promotion of human rights, etc. –​seem not to know well the functioning, or the very existence, of this organism. This may also be due to the low level of connection between the Court, on the one hand, and the other osce institutions, on the other, given that the former seems to constitute almost a detached and disconnected body with respect to the Organization’s structure. In this sense, scientific divulgation works, like the present one, are of fundamental importance to allow this institution to acquire greater appeal and notoriety. Finally, on a more general level, the deplorable inactivity of the osce Court could be linked to the fact that recourse to conciliation at international level as a means for the peaceful settlement of disputes is less and less frequent. 5 The decisions reached at the Meeting were transposed into the so called Charter of Paris for a New Europe, Paris, 19–​20 November 1990. 6 Ibidem, Art. 33, para. 1. As of today, the osce has 57 participating States and 11 States Partners for Co-​operation.

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After a period of great activity, configurable indicatively between the fifties and the nineties of the last century, conciliation has gradually lost ground in favour of binding procedures for settlement of disputes, such as arbitration and jurisdiction. While, in fact, in a first historical phase, States were reluctant to submit disputes to legally binding mechanisms, we are currently witnessing the opposite phenomenon, with the proliferation of judgments and decisions issued by international courts and tribunals. Despite the manifestation of disinterest on the part of States towards conciliation, we think it cannot be said that this procedure is definitively overcome today, but rather that it requires a ‘rediscovery’ and a new enhancement. In this contribution, we intend to focus exclusively on the conciliatory function carried out by the Court, governed by Articles 20–​25 of the Stockholm Convention and Articles 14–​21 of the Rules of the Court. The general aim is to understand whether the conciliatory mechanism provided for by the Convention is substantially in the wake of a ‘classic model’ of conciliation or whether it constitutes a ‘hybrid model’ and, in this case, with which features. By ‘classic model’ we intend to refer to a procedure in which two or more States, by mutual agreement, decide to submit their dispute to a third party, namely a conciliation commission. Its function is, traditionally, to proceed to an impartial examination of the dispute and to promote its solution, defining the terms of a non-​binding agreement, susceptible of being accepted by the parties.7 To pursue this goal, we will dwell first on the aspects relating to the conciliation procedure which, in our opinion, raise the greatest problems. Later, the potential and the most innovative elements of this mechanism will be highlighted. Finally, some concluding remarks will follow. 2

Problematic Aspects

The conciliation procedure envisaged within the osce Court presents some critical points which undoubtedly contributed to the failure of this institution. Here we want to focus in particular on two factors: on the one hand, on a more general level, the multiplicity of dispute settlement mechanisms existing within the osce framework, which has contributed to weakening and making the Court’s conciliatory role even less incisive. On the other, the safeguard clause 7 See Art. 1 of the Regulations on the Procedure of International Conciliation adopted by the Institut de Droit International at the Session of Salzburg of 1961, 49 (1961 ii) Annuaire de l’Institut de Droit International 375 et seq. See also, inter alia, Ugo Villani, La conciliazione nelle controversie internazionali (Naples: Jovene, 1979) 102–​103.

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envisaged by Article 19 of the Stockholm Convention, which significantly reduces the possibility for this body to carry out its functions. 2.1 Plurality of Dispute Settlement Mechanisms within the osce One of the first problematic aspects, with reference to the conciliatory function carried out in the osce framework, is the presence of several peaceful dispute resolution procedures, with not well defined contours. They have accumulated over time without a clear hierarchy and often competing with each other, creating a confusing and ineffective overlap of mechanisms.8 The development of these procedures took place through a series of initiatives, starting with the Helsinki Final Act,9 which represents the constitutive document of the osce (then csce), and, in particular, with its Principle v (‘ Peaceful settlement of disputes’), later included also in the 1989 Vienna Concluding Document10 and in the 1990 Paris Charter.11 The Principle in question emphasizes the need to regulate disputes between participating States by resorting to means ‘on the basis of international law’ in order not to endanger international peace, security and justice, configuring a series of instruments to this purpose. The first of these is the so called ‘Valletta Mechanism’, conceived in the ‘Report of the csce Meeting of Experts on Peaceful Settlement of Disputes, Valletta 1991’. In this document, it is stressed that participating States ‘will seek to prevent disputes and to develop, utilize, and improve mechanisms designed to prevent disputes from occurring, including, as appropriate, arrangements and procedures for prior notification and consultation regarding actions by one State likely to affect significantly the interests of another State’.12 Should disputes arise, the Report provides that participating States may use means such as ‘negotiation, inquiry, good offices, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice, including 8

9 10 11 12

On the various procedures for the settlement of disputes within the osce see, inter alia, Torsten Lohmann, ‘Dispute Settlement Procedures in the OSCE –​Genesis and Overview’ 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-London-Boston: Kluwer Law International, 1997) 343–365. Conference on Security and Co-​Operation in Europe, Final Act, Helsinki, 1975. Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Co-​Operation in Europe, held on the basis of the Provisions of the Final Act Relating to the Follow-​Up to the Conference, Vienna, 1989. Charter of Paris for a New Europe (fn. 5). Report of the csce Meeting of Experts on Peaceful Settlement of Disputes (Valletta, 8 February 1991), § 4.

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any settlement procedure agreed to in advance of disputes to which they are ­parties’.13 In the part concerning the provisions for a csce procedure for peaceful settlement of disputes, Section i of the Report provides that, should a dispute arise between participating States, they must try to resolve it through a process of consultation and direct negotiations or through an appropriate alternative procedure. Only when the parties have not reached a settlement within a reasonable period of time, the Valletta Mechanism is set in motion, as stipulated in Section iv, whereby the parties may request the establishment of a csce Dispute Settlement Mechanism by notification to the other party or to the other parties involved. This mechanism provides for the intervention of independent third parties (selected from a predefined register composed of up to a maximum of four people per participating State), chosen by the parties involved. If no agreement is reached on the composition of the independent body within three months, ‘the Senior Official of the nominating institution will, in consultation with the parties to the dispute, select from the register a number of names less than six’.14 The Valletta Mechanism has wide powers. Its main purpose is to help stakeholders finding an appropriate procedure for settling a dispute, by offering comments or opinions.15 This gives it great versatility as it can make the parties agree on the merits of the dispute or decide to use a peaceful means of settlement, such as good offices, mediation, conciliation, arbitration or jurisdiction.16 To this end, the Mechanism has ample room for maneuver, being free to contact the parties separately and give confidential opinions of a special or general nature, or to provide assistance and support to the parties, provided that this function is performed within the limits ratione materiae laid down in the Report, which excludes disputes concerning territorial integrity, national defense, title to sovereignty over land territory or competing claims with regard to the jurisdiction over other areas.17 In conclusion, the Valletta Mechanism is a flexible tool, both in form and in content, which is placed at the service of the participating States and which can also be used merely to facilitate negotiations for the settlement of disputes.18 However, this Mechanism has not yet been applied.

13 14 15 16 17 18

Ibidem, § 6. Ibidem, ‘Provisions for a csce procedure for peaceful settlement of disputes’, Section v, § 2. Ibidem, Section vii. Ibidem, Section viii. Ibidem, Section xii. See Riccardo Pisillo Mazzeschi, ‘Prevention and Resolution of Conflicts in the OSCE and the Role of the Court of Conciliation and Arbitration’, in: Christian Tomuschat et al.

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The process of formalizing the various dispute settlement procedures within the osce, inaugurated with the Valletta Mechanism, was further expanded following two Council meetings held in Geneva and Stockholm in 1992. In particular, on the occasion of the Stockholm meeting,19 it was decided: a) to adopt some procedural changes to the Valletta Mechanism;20 b) to adopt and open for signature the text of the Stockholm Convention;21 c) to establish a ‘Conciliation Commission’ as a separate body from the Court;22 d) to adopt rules for the so called ‘Directed Conciliation’23. Thus, two other conciliation tools were added to the Valletta Mechanism and the osce Court. The procedure before the Conciliation Commission is based on the agreement of the parties, and the members of the Commission come in principle from the lists previously prepared under the Valletta Mechanism. However, the Conciliation Commission is not a permanent body and it is bound to consult the parties on the procedure to be followed in the performance of its duties and to give effect to any agreement between the parties on the procedure. Only in the absence of agreement on any point, will the Commission decide the issue. Instead, the ‘Directed Conciliation’ provides that the Council of Ministers or the Committee of Senior Officials (today, the Permanent Council), in disputes between osce participating States, may require these States to use conciliation when they are unable to settle the dispute within a reasonable period of time.24 In this case, therefore, conciliation becomes almost mandatory, since the parties can be required to take part in a conciliation procedure, without their consent being necessary for this purpose. The ‘direction’ given by the Council of Ministers or by the Permanent Council is, in any case, only politically, and not also legally, binding.25 Yet the provisions for the establishment of a Conciliation Commission and those for Conciliation under Direction have never been activated to date. In conclusion, it should be noted that the three mechanisms described above originate from agreements of a political nature and therefore have the merit of (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden-Boston: Brill Nijhoff, 2017) 68. 19 See csce, ‘Third Meeting of the Council –​Summary of Conclusions. Decision on Peaceful Settlement of Disputes’. 20 Ibidem, Annex I. 21 Ibidem, Annex ii. 22 Ibidem, Annex iii. 23 Ibidem, Annex iv. 24 Ibidem, Annex iv, § 1. 25 Michael Bothe, ‘The Various Dispute Settlement Procedures –​General International Law and OSCE Practice’, in: Michael Bothe et al. (fn. 8) 377.

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being able to be established more rapidly and enter into force immediately after their adoption by consensus at an international conference.26 However, the conciliatory mechanism envisaged by the Stockholm Convention, while presenting some gaps, has a more solid and a better defined structure than the previous ones, and, being treaty-​based, has a legally binding character. 2.2 The Safeguard Clause of Pre-​existent Means of Settlement Another obstacle to the functioning of the Court, of a more technical nature than the one examined above, is represented by the safeguard clause envisaged by Art. 19 of the Stockholm Convention. This provision is extremely broad and articulated. Its purpose is, essentially, to preclude recourse to the Court or, if already activated, to interrupt any action before it, in numerous instances which can be summarized as follows: a) if, before being submitted to the Conciliation Commission, or even following the activation of the latter, the dispute has been submitted to a court of which the parties to the dispute have the legal obligation to accept the jurisdiction for what concerns the dispute, or if this body has already ruled on the merits of the dispute;27 b) if the parties to the dispute have previously accepted the exclusive jurisdiction of a court with jurisdiction to decide, with binding force, on the dispute before it, or if the parties in dispute have decided to seek to settle the dispute exclusively through other means;28 c) if another body has been seized with competence to formulate proposals on the same dispute (in this case, if a settlement of the dispute is not reached, the Commission will resume work at the request of the parties or of one of them);29 d) if, at any time, the parties reach a settlement of the dispute and send written confirmation to this effect to the Conciliation Commission.30 The rules enshrined in Art. 19 correspond to three principles. First, that of lis pendens, according to which, if a case is pending before another body, the Court must refuse to take jurisdiction. Second, the principle of the autonomy of parties’ will, according to which the parties can freely decide to entrust their dispute to a body other than the Court. Third, the principle of effectiveness, so that the solution deemed most effective in terms of results must prevail. The provision, however, goes, if possible, beyond these principles, especially when

26 27 28 29 30

Ibidem, at 376. Stockholm Convention, Art. 19, para. 1, lett. a) and para. 2. Ibidem, Art. 19, para. 1, lett. b). Ibidem, Art. 19, para. 3. Ibidem, Art. 19, para. 5.

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it provides that the jurisdiction of the Court must withdraw if any other competent body has been seized to settle the dispute. In light of the general tenor of the article and the scope of the rules therein expressed, the safeguard clause ends up giving the Court a subsidiary role, which we could even define as subordinate, with respect to other international tribunals, both as regards the arbitral function and the conciliatory one that interests us here.31 Art. 19 is, in fact, excessively rigid and broad, and sometimes, as in the case envisaged by letter c), amounts to a cumbersome mechanism, by virtue of which the Court can begin its work, interrupt it if another body has jurisdiction over the case and, finally, take it back if the latter body does not find a solution to the dispute. Furthermore, the complexity characterizing the structure of Art. 19 may produce a deterrent effect for States,32 which can be discouraged in resorting to conciliation precisely because of the numerous conditions to which this procedure is subjected. For these reasons, we believe that the safeguard clause should be modified, both to give greater importance to the role of the Court and to allow an easier recourse to this means of settling international disputes. It should be noted that the principle of subsidiarity that pervades the function of the Court under the Stockholm Convention is also expressed in the Preamble of this act, where it is emphasized that the participating States ‘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’. Although it is not included in the legislative body, the text of the Preamble is undoubtedly part and parcel of the relevant context. It follows that, since it expresses the will of the participating States not to hinder the work, among others, of the International Court of Justice, the agreements aimed at accepting as mandatory the jurisdiction of this last court, pursuant to Art. 36, para. 2 of its Statute, will prevail over the means set up by the Stockholm Convention.33 The subsidiary role of the Court, which emerges from the provisions just mentioned, seems somewhat mitigated by the scope of Art. 19, para. 4. This

31 32 33

In this respect see Christian Tomuschat, ‘Conciliation within the Framework of the OSCE Court of Conciliation and Arbitration: An Assessment from the Viewpoint of Legal Policy’, in: Tomuschat et al. (fn. 18) 103. Susanne Jacobi, ‘Subsidiarity and Other Obstacles to the Use of the OSCE Dispute Settlement Procedure’, in: Bothe et al. (fn. 8) 440. See Lucius Caflisch, ‘The OSCE Court of Conciliation and Arbitration: Some Facts and Issues’, in: Bothe et al. (fn. 8) 386.

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indeed specifies that ‘[a]‌State may, at the time of signing, ratifying or acceding to [the] Convention, make a reservation in order to ensure the compatibility of the mechanism of dispute settlement that [the] Convention establishes with other means of dispute settlement resulting from international undertakings applicable to that State’. According to an authoritative opinion,34 from the tenor of the text, which uses the expression ‘reservation’ (and not, for example, ‘declaration’), one should conclude that the State which makes a reservation wants to deviate from the procedure foreseen by the Convention and give priority to already existing or future procedures, different from those of the Convention. From this it should be inferred that the priority of the mechanisms provided for by the Convention is the general rule. Therefore, if no reservation is made at the time of the signing, ratification or accession to the 1992 Convention, the latter should prevail over any other commitments undertaken by the States.35 In this regard, it can be noted that some States have made reservations pursuant to Art. 19, para. 4, of the Convention.36 Almost all of these concern the right to resort to dispute resolution mechanisms other than those provided for by the Stockholm Convention. In conclusion, the safeguard clause established by Article 19 of the Convention not only produces negative effects on the Court’s jurisdiction, but it also poses problems of difficult interpretation. As stated above, this provision should be modified or, at least, made the subject of an interpretive clarification by the States Parties to the Convention or the osce political bodies. 3

Potential of the Court: A ‘Jurisdictional’ Model of Conciliation

We will now examine what are, in our opinion, the greatest strengths, or potentialities, of the osce Court. In particular, we will focus on two aspects of a different nature. On the one hand, the ‘law’ applicable by the Conciliation Commission, which appears to be far-​reaching. On the other, the model of conciliation configured by the 1992 Convention, which has some typical characteristics of the jurisdictional one37 and, for this reason, is potentially 34 Ibidem, at 388. 35 Unless the case in point is regulated by paras. 1 and 2 of Art. 19. 36 See the reservations made by Germany, Austria, Denmark, Liechtenstein, Poland, Romania and Switzerland, in: Bothe et al. (fn. 8) 402–403. 37 On the concept of ‘jurisdictional’ model of conciliation see Giuseppe Palmisano, ‘Diplomatic and Jurisdictional Aspects in Conciliation Procedures:  Conciliation

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endowed with great authority and decision-​making power over the disputes dealt with. 3.1 The ‘Law’ Applicable in the Conciliation Procedure According to Art. 24 of the Stockholm Convention (‘Objective of Conciliation’), ‘[the] Conciliation Commission shall assist the parties to the dispute in finding a settlement in accordance with international law and their [osce] commitments’.38 This provision has an extremely wide scope, inasmuch as, on the one hand, it refers to international law tout court, therefore comprising both general and treaty law39 and, on the other –​and this is the most important aspect –​stipulates that the solution proposed shall also comply with the osce commitments of the participating States. In this way, the Convention significantly extends the body of provisions and rules applicable by the conciliators, facilitating their work to reach a settlement to the dispute.40 However, the exact scope of the provision is not, in our opinion, entirely clear. Indeed, it does not expressly state that international law and osce commitments constitute the legal and political standards that the Conciliation Commission is due to apply in order to reach a solution (especially since the article does not concern, and its heading does not refer to, the applicable law). Instead, it uses a more vague and perhaps deliberately inaccurate wording. This could also be interpreted as meaning that the solution adopted by the conciliators must comply with international law and the osce commitments, regardless of the means used (for example, the Conciliation Commission could reach a solution resorting only to the principle of equity, provided that this complies with international law and the osce commitments of the States in dispute). However, this interpretation would blur the innovative nature of Article 24 of the Convention. As is known, the osce commitments concern numerous fields in which the Organization has competence, such as, for example, economy and environment,41 between Dispute Settlement and Conflict Prevention’, in: Tomuschat et al. (fn. 18) 26–39. 38 Emphasis added. 39 However, according to one author, the term must be interpreted strictly, in the sense of excluding the rules of international law that are merely dispositive, on pain of the loss of the very nature of conciliation. See Caflisch (fn. 33) 394. 40 It should be noted that the Stockholm Convention, with reference to the function of the Arbitral Tribunal, is more restrictive, since it provides that this body shall settle disputes in accordance with international law, without mentioning the osce commitments of the States Parties. See Stockholm Convention, Art. 30. 41 See, e.g., osce, OSCE Economic and Environmental Dimension Commitments –​Reference Manual, 2018.

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fight against terrorism,42 human rights,43 politics,44 etc. As stated also in the Preamble of the Helsinki Final Act, the Participating States wished to reaffirm ‘their commitment to peace, security and justice and the continuing development of friendly relations and co-​operation’, thus equipping themselves with rules aimed at achieving several goals in those areas. Actually, the importance of the osce commitments within the Organization is significant and has been increasing over time. Consider, for example, the field of human rights, where osce commitments have contributed to creating and developing the notion of ‘human dimension’.45 This notion has now become independent and broader than that of human rights and has its own guarantee mechanism.46 Furthermore, it should be pointed out that issues relating to the human dimension are not part of the ‘domestic jurisdiction’ of the States.47 This characteristic ends up bringing the human dimension of the osce very close to the international legal regime of human rights. A difficult problem, which is relevant to the interpretation of Art. 24 of the Convention, is to establish whether the nature of osce commitments is legal or more properly political. We believe that the second solution is, in principle, the one to be accepted, since these commitments have their origins in meetings and conferences of osce political bodies (in most cases the Council of Ministers and the Permanent Council), are typically included in non-​binding documents or acts, such as decisions or declarations, and are mostly of an exhortative and programmatic nature, inviting States to work with actions and initiatives to achieve certain objectives.48 Furthermore, they are consistent with the nature of conciliation which, as mentioned above, has a predominantly political character. However, the fact that Art. 24 authorizes the Conciliation Commission to use osce commitments ‘in finding a settlement’ to the dispute cannot be overlooked. Therefore, in our opinion, if the Commission uses the osce commitments in the proposals contained in its final report, and especially if this report 42 See, e.g., osce, Overview of osce Counter-​Terrorism Related Commitments, SEC.GAL/​69/​ 1819, 19 April 2018. 43 See, e.g., osce, osce Human Dimension Commitments, Warsaw, 2011. 44 See, e.g., osce, Existing Commitments for Democratic Elections in OSCE Participating States, Warsaw, 2003. 45 See, inter alia, Merja Pentikäinen, ‘The Role of the Human Dimension of the OSCE in Conflict Prevention and Crisis Management’, in Bothe et al. (fn. 8) 83-122. 46 See Natalino Ronzitti, Introduzione al diritto internazionale (Turin: Giappichelli, 2016) 344–345. 47 See the Preamble of the Document of the Moscow Meeting of the Conference on the Human Dimension of the csce. 48 The language used in these documents, in fact, includes words such as ‘encourages’, ‘urges’, ‘invites’, which denote the merely exhortative character of the act.

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is accepted by the States parties to the dispute, these osce commitments end up acquiring a concrete value that goes beyond their political nature. One could speak of their ‘quasi-​legal’ value. The reference in Art. 24 to international law obviously does not pose similar problems. It intends to include, as previously mentioned, both the treaty obligations of the States parties to a dispute, and the customary rules, the principles of international law and the general principles of law recognized in foro domestico. The reference to international law appears, at first sight, to go against the very nature of conciliation which, unlike arbitration, deals with disputes more in political than in legal terms, and proposes solutions that do not necessarily reflect the legal status quo.49 However, the juxtaposition of international law with osce commitments creates a very special situation which, in our opinion, constitutes a strength point for the effectiveness of the conciliation mechanism, as gives it greater flexibility, as well as equipping it with ‘legal elements’ which contribute to corroborating the solution it reaches. It is not clear, however, to what extent the Conciliation Commission should resort to international law, on the one hand, and to osce commitments, on the other, and whether there is a hierarchy in this regard between the two. We assume that the obligations deriving from international law, as legally binding, must prevail over any conflicting osce commitments. On the other hand, the latter may have a dual function: a) a reinforcing role, when they reaffirm principles and values already enshrined in international law; and b) a subsidiary task, when there are gaps in international law that hinder the settlement of the dispute, but that can be filled through the use of osce commitments. 3.2 The Possibility of Unilateral Resort to Conciliation There is a second element which, in our opinion, contributes to strengthening the conciliatory mechanism provided for by the Stockholm Convention. We refer, in particular, to the possibility for any State party to unilaterally request the constitution of a Conciliation Commission for the resolution of any dispute with another State party (Art. 20, para. 1), if this has not been settled within a reasonable period of time through negotiation (Art. 18, para. 1). Furthermore, the respondent State cannot refuse to take part in the proceedings, so that the conciliation becomes substantially mandatory for all States parties to the Stockholm Convention.50 Although there is no provision on the constitution 49 50

Rudolf L. Bindschedler, ‘Conciliation and Mediation’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (Amsterdam-New York-Oxford: North-Holland, 1981) 47 ff. Tomuschat (fn. 31) 90.

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of a conciliation commission on a permanent basis,51 the possibility of unilateral activation of the procedure is still an innovative element in the context of conciliation, which traditionally requires the consent of both parties for the procedure to be established. It also confers further agility to the mechanism, allowing for easier activation. Once the procedure is put in place, each party must appoint a conciliator who will be part of the Commission. If the respondent State does not comply with this obligation, the Court’s Bureau (composed of the President, the Vice President and three other members52) chooses an expert from the list of conciliators who, together with the arbitrators, constitute ‘the Court’ (Art. 2, para. 3 of the Convention). The Bureau will appoint three other members53 who will be part of the Conciliation Commission, which normally consists of five conciliators. The formation process of the Commission is conducted in consultation with the parties in dispute, in order to guarantee the fairness and correctness of the procedure. Moreover, the supervision of the Bureau in this phase makes it possible to eliminate any problem regarding a composition of the Commission that might not be appreciated by a State; so that the risk that the conciliation procedure will lead to unexpected results is reduced to a ­minimum.54 As for the rest, the conciliation procedure envisaged by the 1992 Convention does not differ much from the traditional model of conciliation, since it is, inter alia, confidential and carried out in a contradictory manner. 3.3 The Intervention by the Council of Ministers A third major asset of the conciliation procedure of the osce Court is represented by the outcome of the conciliation, regulated in detail by Art. 25 of the Stockholm Convention. The most interesting aspect concerns the possibility, if the solution proposed in the final report drawn up by the Conciliation Commission is not accepted by the States parties or by one of them, to transmit this report to the Council of Ministers, through the Permanent Council.

51

52 53 54

When there is a permanent commission, or one that is already established at the time the dispute arises, each party normally has the power to unilaterally refer the dispute to the commission. On this point and the related concept of mandatory conciliation see Villani (fn. 7) 175 ff. Rules of Procedure of the Court of Conciliation and Arbitration within the osce, 1° February 1997, Art. 8, para. 1. ‘This number can be increased or decreased by the Bureau, provided it is uneven’. Stockholm Convention, Art. 21, para. 5. Tomuschat (fn. 31) 92.

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The purpose of the provision is to facilitate a smooth resolution of the dispute. In particular, the involvement of the main political body of the osce as a ‘mediator’ in the conciliation procedure can be considered a form of political pressure towards the parties in dispute so that they reconsider their positions and accept the proposed solution. In other words, when, due to the conduct of a State, the conciliation proceedings established to settle a dispute risk failing, that State is, in substance, obliged to publicly expose its reasons before the other osce States, meeting within the Council. This intervention by the political organs of the osce in the final phase of the conciliation procedure is important, because it can ‘recover’ and bring to success a procedure that seemed destined for failure. Moreover, it can prevent certain disputes, for which it is difficult to reach a solution accepted by all parties, degenerating and becoming a threat to international peace and ­security. 4

Concluding Remarks

The conciliatory function carried out by the osce Court has some weaknesses, but also some potentialities and prospects, that are capable of making this mechanism attractive to States. On the one hand, we have seen that the plurality of dispute settlement mechanisms that have overlapped over time within the Organization does not help to clearly define the role and content of the conciliation procedure envisaged by the Stockholm Convention, which however, unlike the other conciliatory mechanisms, is based on a treaty and therefore has a higher degree of institutionalization. Moreover, from a procedural point of view, the safeguard clause enshrined in Art. 19 confers on the osce conciliatory procedure an excessively marginal role, too dependent on other procedures, and configuring a sort of unjustified ‘subordination’. Faced with these problematic aspects, we still believe that the strengths of conciliation as envisaged by the Stockholm Convention are numerous and prevalent. In the first place, the procedure goes beyond the classic conciliatory model of political nature, configuring international law as a benchmark to which the Commission’s report must conform and, therefore, acquires a legal dimension. At the same time, the obligation to take the osce commitments into account widens the applicable standards for the report and contributes to giving greater credibility and authority to the proposed solution. Secondly, the possibility for a State party to appeal unilaterally to the Conciliation Commission (under Art. 20, para. 1, of the Convention) and the

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consequent mandatory character of the procedure, are equally innovative elements, which facilitate the access to conciliation and allow a faster settlement. Finally, the possibility of intervention by the Council of Ministers for ‘conciliatory’ purposes, if the settlement proposed by the Conciliation Commission is not accepted by the parties in dispute, is another aspect that contributes to strengthening the procedure. It produces, in fact, a sort of political pressure on the State in question, which allows the mechanism not to get stuck and to be able to reach a solution that is unanimously accepted, thus avoiding that the situation may further escalate. In our view, the three elements analyzed, together with others, make this conciliation procedure a ‘hybrid model’55 in the context of traditional conciliation. It maintains the merits of ‘classic’ conciliation, such as respect for autonomy of the parties, flexibility and ease of use. However, it differs in some important aspects, making it rather resemble a ‘jurisdictional’ (or ‘quasi-​arbitral’)56 model of conciliation. These peculiar characters lend themselves to different evaluations. Some could interpret them negatively, as elements of rigidity and as a source of complexity of the procedure. Instead, we assume that these characteristics constitute strengths, since they allow an easier recourse to the procedure and raise the nature of the proposed solution to a nearly binding level. In other words, the conciliatory mechanism enshrined in the Stockholm Convention provides States with a valid and more convenient alternative to that of submitting a dispute to arbitration or jurisdictional procedures, which are certainly longer and more complex. Furthermore, this mechanism succeeds, with a rather novel and unique formula, in including and coordinating both legal and political elements. We believe that this particular combination is a potential, on which the Court should rely and focus more in the future. 55 See supra, Section 1. 56 See Palmisano (fn. 37) esp. 30–35.

­c hapter 10

The Relationship between the osce Court of Conciliation and Arbitration and the Court of Justice of the European Union Pál Sonnevend and Gábor Bazsó i

Introduction

The osce Court of Conciliation and Arbitration (osce Court) was conceived with the clear mission of creating a pan-​European dispute settlement mechanism.1 The preamble of the Convention on Conciliation and Arbitration within the osce (the Stockholm Convention) solidifies this and provides that: The States parties to this Convention […] 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.2 The osce Court distinguishes itself from other international dispute settlement fora by inter alia providing procedures with ‘minimum limitations and maximal flexibility’.3 This modern approach is conspicuous from the rather broad subject matter of the osce Court’s jurisdiction. The Stockholm Convention specifies that the Contracting Parties may submit to an osce Conciliation Commission or to an Arbitral Tribunal any dispute between them which they were unable to settle through negotiation.4 Such a dispute may be either legal or political in nature,5 and shall be examined on the basis of international law and csce commitments.6 There are no limits to the jurisdiction ratione

1 Patricia Schneider, Tim J. Aristide Müller-​Wolf, ‘The Court of Conciliation and Arbitration within the OSCE’ 16 (2007) CORE Working Paper (Hamburg) 27. 2 Convention on Conciliation and Arbitration within the osce, 15 December 1992, Stockholm [Stockholm Convention], Preamble. 3 Schneider (fn. 3) 27. 4 Convention (fn. 4) Article 18(1). 5 Mirjam Skrk, ‘Court of Conciliation and Arbitration within the OSCE and Its Prospects for the Future’, 51 (2001) Zbornik PFZ 915. 6 Stockholm Convention (fn. 4), Articles 24, 30.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_011

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materiae of the osce Court. In this regard, it resembles the International Court of Justice (icj). Such all-​embracing procedures are undoubtedly why the osce Court stands out in a time of proliferation of international courts and tribunals.7 On the flipside, its implications might create an irreconcilable conflict between the osce Court and the Court of Justice of the European Union (cjeu). The main source of threat to the osce Court lies in a foundational principle of the European Union’s (EU) legal order: the autonomy of EU law as conceived by the cjeu. As it will be demonstrated, the cjeu will go to great lengths to safeguard the autonomy of EU law and with it, its exclusive jurisdiction. This broad interpretation of autonomy was showcased in the well-​known Achmea judgment of the cjeu.8 In Achmea, the cjeu ruled, in a particularly straightforward manner, that EU law precludes investor-​State arbitration clauses in intra-​EU bilateral investment treaties (bit s).9 The cjeu held that if an arbitral tribunal, not part of the judicial system of the EU, has jurisdiction to interpret or apply EU law, the bit’s provision bestowing jurisdiction upon that tribunal is in contravention of EU law.10 The crux of the cjeu’s reasoning was that intra-​EU BITs have an adverse effect on the autonomy of EU law.11 The ramifications of Achmea cannot be overstated. 22 out of the 28 Member States of the EU have declared that in light of Achmea, EU law takes precedence over intra-​EU BITs,12 thus all investor-​State arbitration clauses contained in those bit s violate EU law and are consequently inapplicable.13 As an immediate response, the signatories to the declaration offered to terminate all their intra-​EU BITs until 6 December 2019.14 Besides the approximately 130 7 8 9 10 11 12

13 14

For an overview of the proliferation of international courts and tribunals see Roger P. Alford, ‘The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance’, 94 (2000) Am. Soc’y Int’l L. Proc. 160. Judgment of 3 March 2018, Achmea, C-​284/​16, ecli:EU:C:2018:158. Achmea (fn. 10) para. 60. Achmea (fn. 10) para. 58. Achmea (fn.10) para. 59. Declaration of the Member States of 15 January 2019 on the legal consequences of the Achmea judgment and on investment protection, available at: https://​ec.europa.eu/​info/​ sites/​info/​files/​business_​economy_​euro/​banking_​and_​finance/​documents/​190117-​bilateral-​investment-​treaties_​en.pdf. Member States rightly pointed out that this principle is reflected in both the jurisprudence of the cjeu and in general international law. See for ex. Judgment of the Court of 27 September 1988, Matteucci, C-​235/​87, ECLI:EU:C:1988:460, para. 22; Judgment of the Court of 27 February 1962, Commission v Italy, C-​10/​62, ECLI:EU:C:1962:2, 10. Declaration of the Member States of 15 January 2019 (fn. 14) 1. Ibid, 4.

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intra-​EU BITs, the Energy Charter Treaty, a mixed agreement containing substantively identical arbitration clauses might also fall victim to the sharp teeth of autonomy.15 It is not difficult to imagine how the cjeu’s reasoning in Achmea could also affect the prospects of the osce Court. 19 of the 28 EU Member States are parties to the Stockholm Convention.16 In spite of the fact that the osce Court can only settle disputes under international law, osce commitments, or ex aequo et bono, the osce Court might easily be asked to settle a dispute between EU Member States arising from EU law. As EU law forms an integral part of Member States’ domestic law due to its direct effect,17 the osce Court could also be asked to consider EU law in its decisions. If the osce Court would find such claims admissible, it would inevitably violate the autonomy of EU law. This consequence could lead to a conflict with the cjeu, which, in turn, would inevitably reduce the chances of EU Member States making use of the osce Court. In the following, we shall first give a general overview of the principle of autonomy within the EU. The second section will discuss the autonomy of EU law in the case law of the cjeu. In the third section, the authors will demonstrate that the mechanisms of the osce Court allow for avoiding any future conflict with EU law. The final section will provide some concluding remarks. ii

Autonomy as a Foundational Principle of the EU Legal Order

Among international organizations, autonomy  –​in a general sense of the word –​is not unique to the EU. The icj paved the way for the acceptance of international organizations as an integral part of the international community early in its jurisprudence.18 In its 1949 Advisory Opinion, the icj stated that the United Nations, being the ‘supreme type of international organization […] could not carry out the intentions of its founders if it was devoid of international personality.’19 The icj certainly did not mean that such international 15 16 17 18 19

See Steffen Hindelang, ‘Conceptualisation and Application of the Principle of Autonomy of EU Law –​The CJEU’s Judgment in Achmea Put in Perspective’, 44 (2019) 44 E.L. Rev. 2, 9. See the list showing signatures and ratifications or accessions with respect to the Convention on Conciliation and Arbitration within the osce, May 2019, available at: https://​www.osce.org/​cca/​40119. Judgment of 5 February 1963, van Gend & Loos, C-​26/​62, ECLI:EU:C:1963:1, para. 3. See Richard Collins, Nigel D. White, International Organizations and the Idea of Autonomy, Institutional Independence in the International Legal Order (1st edition, Routledge, 2011). Reparation for injuries in the service of the United Nations, Advisory Opinion: I.C.J. Reports 1949, 174, at 179.

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personality was comparable to the sovereignty of nation States; only that international organizations can possess international rights and duties and could institute international proceedings on their own behalf.20 As it was pointed out by the International Law Commission (ilc), the indicator of an international organization’s autonomy is exactly its ability to hold rights and obligations under international law.21 Therefore, this Advisory Opinion ushered in a more progressive outlook on international organizations.22 This blooming concept was later fully realized by the icj more than two decades later in its 1996 Advisory Opinion on the Legality of use by a State of nuclear weapons in armed conflict, where the icj opined that: […] the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.23 Article 47 of the Treaty on the European Union (teu) establishes the EU’s legal personality.24 As to the precise nature of the EU within international law, there is an ongoing debate among academics on whether the EU was originally founded as an international organization, and if so, has it not already surpassed that state?25

20 21 22 23 24 25

Ibid. Yearbook of International Law Commission, 1963, vol. I, 302. Also see Collins and Nigel (fn. 20) 200. It is important to mention, however, that this is only an indicator of positive external autonomy, which is only a derivative of the concept of autonomy accepted today. For further elaboration, see below. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, 66, at 74, para. 19. Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/​01, Article 47. See for ex. Bruno de Witte, ‘European Union Law: How Autonomous is its Legal Order?’, 31 (2010) Zeitschrift für öffentliches Recht 146. It is beyond this paper’s goals to substantively contribute to this discussion. Suffice it to mention that as the cjeu is silent on this question. The authors echo the sentiments of the International Law Commission, according to which the EU is a highly specified subsystem of international law, one of many international organizations. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/​CN 4/​ L 682, 13 April 2006. This view is also supported by legal scholars alike. See Jan Klabbers, ‘The Changing Image of International Organizations’, in: Coicaud/​Heiskanen (eds), The Legitimacy of International Organizations (Tokyo: United Nations University Press, 2001).

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Whatever stance we take, the autonomous nature of the EU’s legal order is axiomatic. However, autonomy is not a term one can find in the founding treaties of the EU. It is a direct product of the cjeu’s jurisprudence, a clear example of the cjeu’s judicial activism. Its first mention can be tied to Advocate General Lagrange’s 1956 Opinion in Mirrosevich v High Authority, where the Advocate General described the nature of the law of the European Economic Community (eec) as possessing an autonomous character.26 While the original French version used the term ‘autonome’, it was translated into English as ‘independent’, taking the edge out of the term.27 The cjeu did not adopt this term in the final judgment, but it did not fade away. In Van Gend en Loos, to preface its conclusion as to the direct effect of Community (now EU) law, the cjeu famously stated that the eec constituted a new legal order of international law.28 One year later, in 1964, it followed up in the benchmark case of Costa v enel, which marks the inception of the principle of autonomy. The cjeu observed in Costa v enel that the founding treaties of the eec emanate from an ‘independent source’.29 The authoritative French version of the judgment goes as follows: ‘attendu qu’il résulte de l’ensemble de ces éléments, qu’issu d’une source autonome, [emphasis added] le droit né du traité […]’ The same textual discrepancy can be seen in the 1970 Internationale Handelsgesellschaft case.30 It is apparent that the term ‘autonome’ was lost in translation on both occasions. However, the cjeu clears all confusion by pointing to this seminal case in its subsequent jurisprudence as the first mention of the concept of ­autonomy.31 It is evident from these judgments that autonomy is inseparably tied to the EU’s founding treaties. As these constitutional documents are all international agreements, signed and ratified by States and constituted through the mechanisms of international law, the EU’s claim for autonomy emanates from and thus is dependent on both the domestic law of its Member States and international law. This means that the EU’s autonomy is relative as opposed to 26 27 28 29 30 31

Conclusions de l’Avocat général, 12 December 1956, Mirossevich v High Authority, Affaire No. 10–​55, ECLI:EU:C:1956:9, 399. Opinion of Advocate General Lagrange, 12 December 1956, Mirossevich v High Authority, C-​10/​55, ECLI:EU:C:1956:9, 344. Van Gend & Loos, Judgment, 26/​62, 5 February 1963, ECLI:EU:C:1963:1. para. 3. Costa v E.N.E.L, Judgment, C-​6/​64, 15 July 1964, ECLI:EU:C:1964:66, 594. Internationale Handelsgesellschaft, Judgment, 17 December 1970, C-​11/​70, ECLI:EU:C:1970:114, para. 3. The French version uses the term ‘autonome’, which is translated as ‘independent’. Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion 2/​13, 18 December 2014, ECLI:EU:C:2014:2454, paras. 157, 166.

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absolute, as the autonomy of States.32 In Costa v enel and Internationale Handelsgesellschaft, the cjeu addressed autonomy in the context of EU law’s primacy over domestic law, where autonomy is exerted vis-​à-​vis the domestic law of Member States. This original category of autonomy has been called internal autonomy.33 The EU’s autonomy is not exhausted in its relation to domestic law, as the EU’s legal order is also autonomous externally, vis-​à-​vis international law. This certainly does not mean that the EU has cut all ties with international law.34 The EU legal order’s external autonomy has been the core issue in a number of benchmark cases before the cjeu.35 The relationship between EU law and international law is vaguely mentioned in EU primary law. Article 3 teu provides that the EU shall ‘contribute to the strict observance and the development of international law […]’. Advocate General Maduro also famously stated that the autonomous nature of EU law does not mean that the EU’s legal order and international law ‘[…] pass by each other like ships in the night.’36 The exact nature and dimensions of autonomy cannot be easily pinpointed.37 In its autonomy-​related jurisprudence, the cjeu has repeatedly stated that EU law is autonomous both in relation to Member States and international law and proceeds to deal with the different manifestations of autonomy in this context.38 It is an ever-​growing concept, which can be interpreted both 32

33 34

35 36 37

38

De Witte (fn. 27)  142; Tamás Molnár, ’The Concept of Autonomy of EU Law from the Comparative Perspective of International Law and the Legal Systems of Member States’, in: Hungarian Yearbook of International Law and European Law 2015, 2016, Eleven International Publishing, 433–​459, at 451; For a contrasting opinion see José E. Alvarez, International Organizations as Law-​makers (Oxford: oup, 2005) 129, who argues that relative autonomy only applies to those international organizations, which do not possess international legal personality. See for ex. Jan Williem van Rossem, ’The Autonomy of EU Law: More is Less?’, in: R. Wessel and SF Blockmans (eds), Between Autonomy and Dependence (The Hague: t.m.c. Asser Press, 2013) 16–​17. See for ex. De Witte (fn. 27) 151. While De Witte recognizes that the autonomy of the EU legal order is higher than that of other international organizations, he argues that the ‘[…] umbilical cord linking EU law to general international law is not severed by any of its autonomous characteristics.’. See the second section on the cjeu’s jurisprudence on autonomy. Opinion of Advocate General Poiares Maduro, 16 January 2008, Kadi, C-​402/​05 P and C-​ 415/​05 P, ECLI:EU:C:2008:11, para. 22. It is to be noted that other categories of autonomy have also been identified by academia, such as jurisdictional or institutional autonomy. Jurisdictional autonomy basically suggests the cjeu’s authoritative interpretation of EU law, while institutional autonomy safeguards the allocation of powers and responsibilities within the EU. See Christopher Vajda, ’Achmea and the Autonomy of the EU legal Order’, LAwTTIP Working Papers, 2019/​1, 10–​12. See for ex. Achmea (fn. 10) para. 33.

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in a restrictive or extensive manner,39 by those who conceptualized it. An extensive approach to autonomy leaves the cjeu enough leeway to exploit this principle in order to solidify its judicial hegemony. On the other hand, a more restrictive approach would suggest that autonomy is but a necessary feature of international organizations, without which such entities could neither function effectively towards their members, nor could they exert their unified will under international law. The cjeu tends to favour the former and applies it as the ultimate foundational principle of EU law from which other principles such as direct effect or primacy emanate.40 It should be acknowledged that the autonomy of international organizations is ab ovo beneficial for the development of international law, serving the whole international community as opposed to the often self-​serving agenda of States.41 Nevertheless, autonomy within the EU legal order is a double-​edged sword and it can easily turn against its master in the pursuit of strengthening European integration by hindering its influence on the rest of the international community.42 In its jurisprudence, the cjeu has repeatedly pointed to the need for safeguarding the EU’s legal order from unwanted external influence as the main reason for delaying the EU’s accession to international agreements.43 However, acceding to such international agreements could have established the EU as a more prominent member of the international community and thus solidified its positive external autonomy. Be that as is may, the threat of autonomy becoming a fancy buzzword for the cjeu to abolish other alternative dispute settlement mechanisms is not unfounded. This threat arose gradually, autonomy has come a long way since Costa v enel. In the following, we shall take a closer look at this development in order to identify the turning points and their impact on the current situation.

39 40 41

42 43

Jed Odermatt, ‘A Giant Step Backwards? Opinion 2/​13 on the EU’s Accession to the European Convention on Human Rights’, Working Paper No. 150 (2015) 12. See the section on Opinion 1/​91 or Molnár (fn. 34) 433. Jed Odermatt, ‘When a Fence Becomes a Cage:  ‘The Principle of Autonomy in EU External Relations Law’, eui mwp; 2016/​07, at 3–​4; Richard Collins and Nigel D. White, ‘Introduction and Overview’, in:  id. (eds.), International Organizations and the Idea of Autonomy (London: Routledge, 2011) 2. See Odermatt (fn. 43); van Rossem (fn. 35). Opinion 1/​91 on the EU’s failed accession to the European Economic Agreement and Opinion 2/​13, where the cjeu has side lined the EU’s goal to join the European Convention on Human Rights showcases this point perfectly. These cases will be analysed in the following section.

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The Autonomy of European Union Law in the Case Law of the cjeu

External Autonomy Emerges: from the eea Court in Opinion 1/​91 to the efta Court in Opinion 1/​92. Opinion 1/​91 addressed the first draft of the agreement relating to the establishment of the European Economic Area (eea), which aimed at extending the rules on competition and the free movement of goods, persons, services, and capital to the States of the European Free Trade Agreement (efta).44 This would have extended certain parts of Community law to 7 States, which –​considering that the eec only had 12 Member States at the time –​was an ambitious goal. The agreement would have included approximately 1700 acts of the EC in the eea Agreement through its annexes45 and would have contained several textually identical provisions to the eec and ecsc Treaties.46 The drafters of the eea Agreement sought to establish judicial oversight within the eea Agreement by establishing an eea Court47 and an eea Court of First Instance,48 for the settling of disputes between efta States and between the Contracting Parties, which included both the eec and its Member States.49 These courts would have been both independent, however functionally integrated within the court system of the eec. The eea Court was to be composed of five judges delegated from the cjeu and three judges nominated by efta States, and the eea Court of First Instance would have included two judges of the cjeu and three from efta States.50 Although in the Commission’s view, the safeguards implemented by the eea Agreement were sufficient to avoid conflict with Community law, it acquired the cjeu’s opinion on several possible issues.51 In a surprising turn of events, the cjeu ruled that the judicial system envisioned by the eea Agreement was incompatible with Community law for inter alia violating the principle of autonomy. The point of departure was the fact that the eea Agreement was a so-​called mixed agreement. Mixed agreements are those to which both the eec and its Member States are parties. The mixed nature of the eea Agreement was 1)

44 45

eea Agreement, Opinion 1/​91, 14 December 1991, ECLI:EU:C:1991:490. Mary Frances Dominick, ‘The European Economic Area Agreement:  Its Compatibility with the Community Legal Order’, 16 (1993) Hastings Int’l & Comp. L. Rev. 467, at 473. 46 Opinion 1/​91 (fn. 46) para. 4. 47 Draft eea Agreement, Article 95(1). 48 Ibid., Article 101(1). 49 Opinion 1/​91 (fn. 46) para. 33. Draft eea Agreement, Article 2(c). 50 For the structure of the eea Court see Draft eea Agreement, Article 95(2). For the eea Court of First Instance see eea Agreement Article 101(2). 51 The Commission asked four questions which can be read in full in Opinion 1/​91 (fn. 46) 1.

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problematic for two main reasons. Firstly, disputes under the eea Agreement were possible both between efta States and Member States and between the eec and efta States.52 Who the appropriate party to the dispute was, would have been decided by the eea Court by interpreting the term ‘Contracting Party’. Doing so, the eea Court would have de facto ruled on the division of powers between the eec and its Member States where either of them were potential parties to a dispute under the eea Agreement.53 This potential dent on the institutional autonomy of Community law was unacceptable to the cjeu, rendering such jurisdictional competence incompatible with Community law. Secondly, the decisions of the eea Court would have been binding on the eec and its institutions under international law due to the eea Agreement’s position in the legal hierarchy of Community law.54 The cjeu did not find this inherently at odds with Community law as long as autonomy was not adversely affected.55 This required the homogenous interpretation of the eea Agreement with corresponding rules of Community law. The eea Agreement’s provisions resembled Community law exactly in order to fulfil this requirement. However, this was not sufficient in itself. Earlier in its jurisprudence, the cjeu has already ruled that identically worded provisions in international agreements do not ensure their identical application with Community law.56 The cjeu reverted to the customary rules of interpretation codified in the Vienna Convention on the Law of Treaties and observed that when interpreting treaties, not only the ordinary meaning of the words, but also the object and purpose of the relevant treaty must be taken into account.57 Against this background, it was relevant that unlike the limited scope of free trade agreements, such as the eea Agreement, the founding treaties of the eec are constitutional documents, seeking to establish all-​around European unity for which Member

52 Draft eea Agreement (fn. 49) Article 2(c). 53 Opinion 1/​91 (fn. 46) paras. 33–​36. 54 Haegeman, C-​181–​73, Judgment, 30 April 1974, ECLI:EU:C:1974:41, para. 5; Demirel, C-​12/​86, Judgment, 30 September 1987, ECLI:EU:C:1987:232, para. 7. For a more detailed discussion see Barbara Brandtner, ‘The “Drama” of the EEA. Comments on Opinions 1/​91 and 1/​92’, 3 (1992) European Journal of International Law, 300–​328, at 309–​319. Brandtner points out that while the Court did not specify, it probably referred to binding force under international law only, as the eea Court’s interpretations of primary EC law, or interpretations that would not be compatible with primary EC law, could not be binding on the Court under EC law. 55 Opinion 1/​91 (fn. 46) para. 40. 56 Kupferberg, Judgment, C-​104/​81, 26 October 1982, ECLI:EU:C:1982:362. 57 Opinion 1/​91 supra note 47, para. 14; United Nations,  Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, Article 31(1).

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States have limited their sovereignty.58 It is in this context that the cjeu highlighted the importance of Community law being a new legal order, and the principles stemming therefrom, namely direct effect and primacy.59 The cjeu also scrutinized Article 6 of the eea Agreement. Article 6 prescribed that eea provisions, substantively identical60 to Community law, must be interpreted and applied in conformity with the corresponding case law of the cjeu. However, this requirement only concerned those cases that were rendered prior to the date of signature of the agreement and did not clearly extend to the cjeu’s case law on direct effect and supremacy, which are –​as it was pointed out earlier –​essential elements of Community law. Therefore, homogeneity could not be preserved by Article 6. In reality, these fears were not realized, as the efta Court, the current judicial body of the eea Agreement, continuously relies on the cjeu’s subsequent case law, even if it is under no concrete obligation to do so61 and irrespective of the differing objectives of the treaties.62 As the principle of homogeneity could not be preserved by any of the structural and systemic safeguards of the draft eea Agreement, the eea Court’s establishment was incompatible with the autonomous nature of Community law. However, the cjeu did not stop there; it added that this conflict would accordingly violate ‘the very foundations of the Community’.63 This was the first time the cjeu stated that autonomy lay at the heart of Community law, as its foundational principle. Compared to direct effect and primacy, which are ‘essential elements’, autonomy is clearly something bigger, the mother of other principles.64 It is also telling that the cjeu did not go so far as to rule that autonomy would per se be violated, it only observed that is was threatened.65 58 59 60

61 62 63 64

65

Opinion 1/​91 (fn. 46) paras. 16–​20. Ibid, para. 21. The term ‘identical in substance’ allowed for including provisions with minor textual differences in the homogeneity requirement of the eea Agreement. See Carl Baudenbacher, ‘Between Homogeneity and Independence: The Legal Position of the efta Court in the European Economic Area’, 3 (1997).Colum. J. Eur. L. 169, at 193. Halvard Haukeland Fredriksen, ‘The EEA and the Case-​Law of the CJEU: Incorporation without Participation?’, in: Erik O. Eriksen and John Erik Fossum, The European Union’s Non-​Member –​Independence under hegemony? (London: Routledge, 2015) 183–​184. Halvard Haukeland Fredriksen, ‘The EFTA Court 15 Years on’, 59 (2010) ICQL 731–​760, at 743. Opinion 1/​91 (fn. 46) para. 46. See van Rossem (fn. 35) 18. For a different view, arguing that autonomy is only one element in the ‘mixed bag’ of essential elements of EU law, see Nikos Lavranos, ‘Protecting European law from international law’, 15 European Foreign Affairs Review 15:(2010) 265–​ 282, at 271. Opinion 1/​91 (fn. 46) paras. 47, 48.

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With this, the cjeu laid down quite a high threshold: not only a direct violation but also a threat to the autonomy of Community law results in an incompatibility with the very foundations of the Community. The cjeu did not shy away from stating that autonomy could only be preserved if it had exclusive jurisdiction over the interpretation and application of Community law.66 This interpretative monopoly was conferred onto the cjeu by Article 164 of the eec Treaty (now Article 19(1) teu)67 and Article 219 of the eec Treaty (now Article 344 tfeu).68 Without the cjeu having the last say, Community law would be exposed to the elements of both inside and outside influence, the former coming from domestic courts of Member States, the latter coming from international courts and tribunals. However, as discussed in the previous section, autonomy as a concept goes beyond mere interpretative monopoly. Nevertheless, the cjeu appointed itself as the guardian of autonomy and with it, the entire Community legal order. Some commentators go as far as to suggest that the cjeu is hiding behind the principle of autonomy to solidify its supreme role in the legal order of the EU.69 It is at least not crystal clear whether the cjeu has been using its powers only to preserve autonomy, or it is autonomy that the Court pulls out its pocket every time it fears its hegemony is being questioned. Moreover, the eea Agreement would have allowed the cjeu to ‘express itself’ on the interpretation of the Agreement after a request from a court or tribunal of an efta State, which aimed at copying the preliminary ruling procedure under Community law.70 However, as the cjeu’s decisions must always be binding, giving mere advisory opinions would undermine the effectivity of the preliminary ruling procedure, making it incompatible with Community law.71 Notably, the cjeu did not connect the proper functioning 66 67

Ibid, para. 35. Article 19(1) teu provides that:  ’[The cjeu] shall ensure that in the interpretation and application of the Treaties the law is observed.’. A restrictive interpretation of Article 164 does not necessarily imply that the interpretation of mixed agreements falls under the exclusive jurisdiction of the cjeu, but the cjeu’s clear stance leaves no room for further guessing. See Brandtner (fn. 57) 315. 68 Article 344 tfeu provides that: ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ 69 De Witte (fn. 27)  150; Jan Klabbers, ‘Treaty Conflict and the European Union’ (Cambridge: cup, 2009). 70 See Protocol 34 to the Draft eea Agreement, which provides that courts and tribunals of efta States may ‘[…] ask the Court of Justice of the European Communities to express itself on such a question.’ 71 Opinion 1/​91 (fn. 46) para. 61.

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of the preliminary ruling procedure to the preservation of autonomy, as it addressed this issue in a separate section after it had already ruled on the eea Agreement’s dire effects on autonomy. Considering that the cjeu has created a close relationship between autonomy and its exclusive jurisdiction on the interpretation and application of Community law, not including the preliminary ruling procedure –​an important bastion of its exclusive jurisdiction –​ in the discussion about autonomy shows that this principle was still in statu nascendi. After the renegotiation process of the eea Agreement, the cjeu was once again asked to deliver its opinion on the modifications implemented which led to Opinion 1/​92.72 The drafters made several integral changes, which mainly focused on strengthening the cjeu’s judicial oversight in an attempt to eliminate any outside influence able to jeopardize autonomy. As a result, The eea Court did not come to fruition; instead, the efta Court was created, only having jurisdiction to decide disputes between efta States. efta States were adamant that they would not accept the cjeu’s future jurisprudence as binding on themselves. Therefore the Agreement created a form of de facto homogeneity by obliging the eea Joint Committee to review the development of the cjeu’s case-​law and ‘[…] act as to preserve the homogenous interpretation of the Agreement.’73 For the full realization of autonomy, this procedure seems too vague, as neither the agreement, nor its protocols concretized what powers the Joint Committee has in acting to preserve homogeneity.74 Nevertheless, the cjeu eventually gave the green light to this solution, but only because an Agreed Minute provided that the Joint Committee’s conduct is not to affect the case law of the cjeu.75 After Opinion 1/​91, it would seem that relying on an Agreed Minute as an adequate preventive measure was not in the cjeu’s dna, especially because it was the Joint Committee itself which was entrusted with the task of deciding what would and would not affect the case-​law of the cjeu.76 The binding nature of the cjeu’s preliminary ruling procedure was also insured by the eea Agreement, empowering the cjeu to ‘give a ruling’ as opposed to ‘express itself’ on the interpretation of relevant eea provisions.77 This time, the umbrella under which the cjeu made all of its observations was

72 eea Agreement, Opinion 1/​92, 10 April 1992, ECLI:EU:C:1992:189, para. 23. 73  Agreement on the European Economic Area, 1992, Article 105. 74 Baudenbacher (fn. 62)  220–​221. Baudenbacher writes that ‘it is unclear what the Joint Committee can do after it has confronted divergences between ecj and efta Court case law’. 75 eea Agreement, Opinion 1/​92, 10 April 1992, ECLI:EU:C:1992:189, para. 23. 76 See Dominick (fn. 47) 486. Dominick also finds this ‘somewhat surprising’. 77 Opinion 1/​92 (fn. 77) para. 34.

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that of autonomy.78 Hence, the cjeu finally tied the preliminary ruling procedure directly to the preservation of autonomy, unlike in Opinion 1/​91.79 The opinions on the eea Agreement showcased for the first time that it was not such a straightforward task to reconcile autonomy with the functioning of other international courts and tribunals; nevertheless, the institutional and procedural adjustments made the eea Agreement viable. Most importantly, the efta Court could only interpret provisions corresponding to EC law in relation to efta Member States, and the precedence of the preliminary ruling procedure was preserved. 2) Introducing What is Today Article 344 tfeu: Opinion 1/​00 The cjeu has also dealt with another treaty draft, which –​similar to the eea Agreement –​aimed at extending the acquis communautaire to non-​Member States: the Agreement on the Establishment of the European Common Aviation Area (ecaa Agreement).80 As the ecaa Agreement had its own dispute settlement mechanism, the focus was again on the preservation of autonomy. In Opinion 1/​00, the cjeu utilized Opinion 1/​91 and Opinion 1/​92 as a yardstick, due to the similarities between the proposed agreement and the eea Agreement. The Joint Committee within the ecaa Agreement is comparable to that of the eea Agreement81 and the preliminary ruling procedure was also identically put in place.82 Therefore, the cjeu’s conclusion did not come as a surprise: the ecaa Agreement was compatible with Community law. It is thus not necessary to provide a detailed analysis of the cjeu’s reasoning. However, Opinion 1/​00 must be highlighted for two reasons. Firstly, the cjeu named the two basic requirements an autonomy-​friendly dispute resolution mechanism must meet: 1) The essential character of the powers of the EC and its institutions must be preserved.83 2) Uniform interpretation of Community law and substantively identical provisions in international agreements must likewise be preserved, coupled with the requirement that a certain interpretation of the international agreement cannot bind the cjeu in its jurisprudence.84

78 79 80 81 82 83 84

Ibid, para. 18. Ibid, para. 36. European Common Aviation Area, Opinion 1/​00, 18 April 2002, ECLI:EU:C:2002:231. Ibid, paras. 37–​38. Ibid, para. 33. Opinion 1/​00 (fn. 82) para. 12. Ibid, para. 13.

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Secondly, in examining the first constituent requirement of autonomy, whether the allocation of the powers between the EC and Member States would be affected, the cjeu took a closer look at Article 292 tec (formerly 219 of the eec Treaty, currently 344 tfeu).85 This Article was also mentioned by the cjeu in Opinion 1/​91, although not substantively. The ecaa Agreement did not conflict with 292 tec, but only because Member States were not parties to it, only the EC.86 Therefore, no dispute between Member States and the other Contracting Parties to the ecaa Agreement was conceivable. With this reference, the cjeu had foreshadowed its reasoning in mox Plant. External Autonomy and Article 344 tfeu Enhanced: the mox Plant Case Much has been written about the mox Plant dispute,87 and we do not attempt to repeat all details. It should suffice to state that the dispute arose between Ireland and the UK out of the construction of a plant producing mixed oxide fuel (mox) on the coast of the Irish Sea. Due to concerns about the harmful emissions of the mox Plant, Ireland initiated several proceedings against the UK in 2001. Firstly, Ireland demanded data from the UK on the operation of the mox Plant under the Convention for the Protection of the Marine Environment of the North-​East Atlantic (ospar Convention). This arbitration was 3)

85 86 87

Both Articles 292 tec and 344 tfeu provide that: ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ Opinion 1/​00 (fn. 82) para. 17. See for ex. Cesare P.R. Romano, ’Case C-​459/​03 Commission v. Ireland, Loyola-​LA Legal Studies Paper No. 2007–​19, 101 (2007) ajil; Patrick T.  Eicher, ‘International Forum Shopping: The Mox Plant Case and the ECJ’, 30 (2008) Dublin University Law Journal 367; Bernhard Hofstötter, ’Can She Excuse My Wrongs? The European Court of Justice and International Courts and Tribunals’, (2007) CYELP 391–​419, at 400; Paul James Cardwell, ‘Who Decides? The ECJ’s Judgment on Jurisdiction in the MOX Plant Dispute’, 19 (2007) Journal of Environmental Law 121–​129; Ronan Long, Law of the Sea Dispute Settlement and the European Union (London:  British Institute of International and Comparative Law, 2016); Nikos Lavranos, ‘The Epilogue in the MOX Plant Dispute:  An End Without Findings’, (2009) European Energy and Environmental Law Review. For the proceedings under unclos and the ospar Convention see for ex. Victoria Hallum, ‘International Tribunal for the Law of the Sea: the MOX Nuclear Plant Case’, 11 (2002) Review of European Community & International Environmental Law 372–​375 J.C. Forster, Malcolm, ‘The Mox Plant Case –​Provisional Measures in the International Tribunal for the Law of the Sea’, 16 (20003) Leiden Journal of International Law 611 –​619; Maki Tanaka, ‘Lessons from the Protracted Mox Plant Dispute:  A Proposed Protocol on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea, 25 (2004) Mich. J. Int’l L. 337 (2004).

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decided in favour of the UK.88 Secondly, Ireland claimed that the UK violated its environmental obligations under the United Nations Convention on the Law of the Sea (unclos), a mixed agreement. The UK argued extensively that the tribunal set up under Annex vii unclos did not have jurisdiction to decide on the matter, as the claims raised by Ireland were based on areas of environmental law that were governed by Community law.89 According to the UK, such transfer of powers gave rise to the Community’s exclusive competence to adjudicate this dispute.90 The unclos tribunal showed a great degree of cooperation with the EC and decided that in light of the ‘[…] mutual respect and comity which should prevail between judicial institutions […]’ it would suspend proceedings until the cjeu had given its decision on jurisdiction.91 The Commission of the EC (Commission) instituted an infringement proceeding against Ireland for the violation of Articles 10 and 292 tec and Article 192 tea. The cjeu upheld all of the Commission’s requests.92 Under Article 292 tec (Article 344 tfeu), the Commission’s submissions were twofold. Firstly, the Commission argued that Ireland violated Article 292 tec (Article 344 tfeu) by bringing claims relating to the EC’s external competences before the unclos Tribunal.93 Secondly, Ireland had infringed Article 292 tec (Article 344 tfeu) by submitting Community law for interpretation and application to the unclos tribunal.94 As outlined above, Article 292 tec (Article 344 tfeu), establishing the cjeu’s exclusive jurisdiction on the interpretation and application of EC law had already been addressed in Opinions 1/​ 91 and 1/​00. However, in mox Plant the cjeu clarified substantive elements of the connection between Article 292 tec (Article 344 tfeu) and autonomy. Firstly, the cjeu had to decide on the question whether the rules under unclos relied on by Ireland came within Community competence.95 Based on Article 176 tec, the rules governing the protection of the environment were part of the EC’s and Member States’ shared competences, which sufficed for the cjeu.96 Secondly, the cjeu had to adjudge whether the level of harmonization 88 89 90 91 92 93 94 95 96

Dispute concerning Article 9 of the ospar Convention (Ireland/​UK), final award of 2 July 2003, para. 185. The mox Plant Case (Ireland v. UK), Rejoinder of the United Kingdom, 24 April 2003, 49–​73. Ibid. The mox Plant Case (Ireland v. UK), Procedural Order No. 3, 24 June 2003, para. 28. Where? mox Plant, C-​459/​03, Judgment, Grand Chamber, 30 May 2006, ECLI:EU:C:2006:345. mox Plant (fn. 94) paras. 60–​139. Ibid, paras. 140–​157. Ibid, para. 86. This was sufficient, as according to the cjeu, a particular policy area comes within the EC’s competence irrespective of the fact of whether it is exclusive or shared between

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required by the relevant EC instruments made a difference in its exclusive jurisdiction on their interpretation and application. Even though the relevant EC provisions only established minimum rules, the cjeu found that the only relevant criterion was the very existence of such provisions, not their scope.97 Following this rationale, Member States are precluded from invoking unclos against other Contracting Parties, even if the level of protection provided by it is higher than under Community law. By refusing to apply a case-​by-​case analysis, the cjeu has essentially expanded its judicial hegemony by a large extent,98 while allowing its battle against external influence to prevail over Member States’ environmental obligations.99 Importantly, the cjeu highlighted that unclos as an international agreement poses no threat to autonomy. Article 282 unclos (Article 344 tfeu) allows dispute settlement mechanisms specially agreed upon by the parties to a dispute to take precedence over those under unclos.100 Article 282 unclos thus makes it possible to preserve autonomy.101 However, it is not the arbitral tribunal under unclos and definitely not Member States that have the power to decide on the appropriate international forum: it is the cjeu. This type of compétence de la compétence further widens the cjeu’s adjudicative power.102 However, on the other side of the coin, placing the cjeu between the parties to a dispute and the chosen dispute resolution forum considerably slows down the flexible arbitration procedures of unclos.103 Secondly, with regard to the application of EC law by the arbitral tribunal, Ireland conceded the invocation of several pieces of EC legislation during the arbitral proceedings. However, Ireland argued that it only referred to those instruments as ‘non-​binding elements of fact’ to help with the interpretation of certain terms in unclos, by way of ‘renvoi’.104 The cjeu did not find this convincing since Ireland was seeking a declaration from the arbitral tribunal

97 98 99 1 00 101 102 1 03 104

the EC and Member States, as it is rather a question of attribution. See mox Plant (fn. 94) paras. 92–​93. Ibid, para. 108. See also Cesare P.R. Romano, ’Case C-​459/​03 Commission v.  Ireland, Loyola-​LA Legal Studies Paper No. 2007–​19, American Journal of International Law, 101 (2007) 12. Patrick T.  Eicher, ‘International Forum Shopping:  The Mox Plant Case and the ECJ’, 30 (2008) Dublin University Law Journal 367, at 394. Convention on the Law of the Sea, 10 December 1982, 1833 unts 397, Article 282. mox Plan (fn. 94) para. 124. Bernhard Hofstötter, ’Can She Excuse My Wrongs?’ The European Court of Justice and International Courts and Tribunals’, 3 (2007) CYELP 391–​419, at 400; Cardwell (fn. 89) 124. Hofstötter (fn. 104) 401. mox Plant (fn. 94) paras. 144–​145.

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that the UK breached several EC directives.105 As unclos allows for the interpretation and application of inter alia ‘[…] other rules of international law not incompatible with this Convention’,106 the cjeu concluded that Ireland’s reliance on Community law ipso facto involved a manifest risk to autonomy, irrespective of the fashion in which Ireland did so.107 In pointing to a ‘manifest risk’ to autonomy as the threshold for incompatibility, the cjeu –​not departing from Opinion 1/​91 –​found even the possibility of infringing upon the fragile principle of autonomy sufficient for striking down unclos.108 Lastly, the Commission’s complaints under Article 10 tec and Article 192 tea were examined, relating to the principle of close cooperation (or sincere cooperation, as in Article 4(3) teu). These articles have matured gradually, from simply circumscribing the way in which Member States must fulfil their obligations under Community law, into a self-​standing obligation.109 Pursuant to the principle of sincere cooperation, Member States are obliged to cooperate with each other and Community institutions.110 Accordingly, Ireland was under an obligation to inform and consult the competent Community institutions before resorting to arbitration under unclos.111 As Ireland failed to do so, it violated the principle and with it, Article 10 tec and 192 tea.112 On top of that, the cjeu asserted that the principle of close cooperation can also be violated if a Member State infringes upon Article 292 EC (Article 344 tfeu).113 Thereby, an inherent connection was created between Article 292 tec and the principle of sincere cooperation. By interpreting its exclusive jurisdiction in an even more extensive manner than in prevision decisions, the cjeu has arguably contributed to the fragmentation of international law with its mox Plant judgment.114 But the real loser of mox Plant is not international law, but the environment. Sadly, what were not addressed by the cjeu in mox Plant are the substantive questions: whether the 1 05 Ibid, para. 151. 106 That of course presupposes that EU law is international law. See Constanze Semmelmann, ‘Forum Shopping Between Unclos Arbitration and EC Adjudication –​And the Winner –​ Should Be  –​the ecj! (Commission of the European Communities versus Ireland, ECJ Judgment of 30th May 2006, C-​459/​03)’, 5 (2006) European Law Reporter 234–​241, at 239; Ronan Long (fn. 89) 442. 107 mox Plant (fn. 94) paras. 154–​156. 108 Hofstötter (fn. 104) 401. 109 Cardwell (fn. 89) 124. 110 mox Plant (fn. 94) para. 175. 111 Ibid, para. 179. 112 Ibid, para. 183. 113 Ibid, para. 170. 114 Eicher (fn. 101) 368; Hofstötter (fn. 104) 392.

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mox Plant had actually emitted radioactive waste into the environment and whether the uk violated its due diligence obligations to prevent such harm.115 Therefore, paradoxically, the mox Plant decision has been called both a grand constitutional ruling116 and a ‘stunning case [that] falls squarely on the oldest and most conservative trajectory of European thinking’.117 Article 267 tfeu Takes Centre Stage: Opinion 1/​09 on the European and Community Patents Court Opinion 1/​09 concerned the establishment of the European and Community Patents Court (PC). The establishment of the PC aimed at creating a faster, more effective way for providing intellectual property protection within Europe.118 This did not deter the cjeu from finding it an intolerable threat to autonomy and more generally, the ‘[…] very nature of European Union law’.119 The PC would have settled disputes between individuals, not States, therefore Article 344 tfeu was not where the PC had fallen short.120 Instead, the cjeu focused on Article 267 tfeu and the preliminary ruling procedure. In Opinion 1/​09, the principle of sincere cooperation, now enshrined in Article 4(3) tfeu, was given a new dimension. The cjeu stated that sincere cooperation obliges the courts and tribunals of Member States as well as itself to ensure the full effectiveness of EU law.121 It follows that sincere cooperation creates an obligation for courts and tribunals of Member States to refer questions relating to the interpretation of EU law to the cjeu.122 Autonomy is thus connected to the preliminary ruling procedure through an intermediary, sincere cooperation. The PC’s jurisdiction ratione materiae would have included the interpretation and application of EU law.123 Therefore, Member States’ obligation of sincere cooperation could only have been discharged if the PC had access to the 4)

115 See Nikos Lavranos, ‘The Epilogue in the MOX Plant Dispute: An End Without Findings’, European Energy and Environmental Law Review, 18 (2009) 180–​184, at 183–​184. 116 Hofstötter (fn. 104) 405. 117 Martti Koskenniemi, ‘Constitutionalism, Managerialism and the Ethos of Legal Education’, 1 (2007) European Journal of Legal Studies 1. 118 See Matthew Parker, ‘Giving Teeth to European Patent Reform: Overcoming Recent legal Challenges’, 26 (2012) Emory Int’l L. Rev. 1079. 119 European and Community Patents Court, Opinion 1/​ 09, Full Court, 8 March 2011) ECLI:EU:C:2011:123, para. 89. 120 Opinion 1/​09 (fn. 121) para. 63. 121 Ibid, para. 68. 122 Ibid, para. 68. 123 Ibid, para. 72.

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preliminary ruling procedure. Pursuant to Article 267 tfeu, only courts and tribunals of a Member State have such access. A judicial body must fulfil several criteria to be considered a court or a tribunal: it must be established by law, be independent and permanent, have compulsory jurisdiction and inter partes procedures and apply rules of law.124 The PC met all these requirements. However, the PC was situated outside the EU’s judicial system.125 Therefore, even though it was in fact a court, the cjeu did not consider it a court of a Member State. Most likely, the cjeu drew that conclusion as the PC would have had jurisdiction to rule on disputes between Member States and third States. In doing so the PC would have basically had one foot out the door.126 Although the agreement establishing the PC contained provisions conferring upon both third States and the PC the right to refer questions for a preliminary ruling to the cjeu, this did not solve the crux of the issue.127 As the EU would not have become a party, the agreement would not have become an integral part of the EU legal order (unlike the eea Agreement or the ecaa Agreement).128 Therefore, it could not have empowered the cjeu to answer questions referred to it by the PC or third States.129 Thus, the PC would have deprived Member States’ courts of their power to request preliminary rulings in the jurisdiction ratione materiae of the PC.130 As a last blow, the cjeu stated that as the PC was outside the EU’s judicial system, Member States could not be held responsible, had the PC infringed upon EU law in its jurisprudence131 even though this could theoretically have been circumvented by holding Member States collectively responsible for the PC’s possible violation of EU law.132 124 Judgment of the Court of 17 September 1997, Dorsch Consult, Judgment, 17 September 1997, C-​54/​96, ECLI:EU:C:1997:413, para.  23; Judgment of the Court (Grand Chamber) of 31 May 2005, Syfait and Others, C-​53/​03, ECLI:EU:C:2005:333, para. 29; Judgment of the Court (Third Chamber) of 14 June 2007, Häupl, Judgment, 14 June 2007, C-​246/​05, ECLI:EU:C:2007:340, para. 16. 125 Opinion 1/​09 (fn. 121) para. 71. 126 Erika Ellyne, ‘European Patent Law: A Foreseeable Future in the Wake of the European Court of Justice Opinion 1/​09 on the Compatibility of the Draft Agreement Creating a Unified Litigation Patent System with the Founding European Treaties’, 2 (2012) Queen Mary J. Intell. Prop. 343 at 349. 127 For an opposing view see Matthew Parker, ‘Giving Teeth to European Patent Reform: Overcoming Recent legal Challenges’, 26 (2012) Emory Int’l L. Rev. 1079, at 1100. 128 Opinion 1/​09 (fn. 121) para 76. 129 Steve Peers, ‘The Constitutional Implications of the EU Patent’, 7 (2011) EuConst 229, at 246. 130 Opinion 1/​09 (fn. 121) para. 79. 131 Ibid, paras. 87–​88. 132 Peers (fn. 131) 247.

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5) Expanding Autonomy to Preserve Hegemony: Opinion 2/​13 The EU’s strive to accede to the European Convention on Human Rights (echr) has been a struggle, to say the least. The cjeu delivered its first opinion on accession in 1996, where it did not deal with the nitty-​gritty, but concluded that the EC had currently no competence to accede under Article 235 tec.133 Only after the clear and unambiguous obligation to accede to the echr was introduced in Article 6(2) teu did the EU try for a second time to accomplish its initial goal. Advocate General Kokott, all Member States and EU institutions were onboard with the compatibility of the Draft Accession Agreement (daa). All, but one of course: the cjeu. The cjeu’s ‘Christmas bombshell’134, Opinion 2/​13 struck down the daa from all angles possible. As expected, the opinion boiled down to one major issue: the daa posed a threat to the autonomy of the EU legal order. This paper will only address three of the cjeu’s five main arguments, which best represent how the cjeu’s general perception of autonomy has expanded even more.135 First, the cjeu introduced a new element into its reading of autonomy. Relying on Article 2 teu, which pronounces the foundational values of the EU common to all Member States, the cjeu invoked the principle of mutual trust. According to this much cited principle, Member States must mutually trust each other that the EU rules implementing those values will be respected by all Members.136 Under the area of freedom, security and justice, mutual trust requires Member States not to question each other’s compliance with EU law, especially the fundamental rights therein.137 The principle of mutual trust had been mentioned before in previous cases, but not in the context of autonomy.138 In Opinion 2/​13, the cjeu recognized that mutual trust is a fundamental principle of EU law and its violation unquestionably undermines autonomy.139 Member States are only exempt from that rule under exceptional circumstances.140 However, the echr regime explicitly requires all Contracting Parties to 1 33 Accession to the echr, Opinion 2/​94, 28 March 1996, ECLI:EU:C:1996:140, paras. 35–​36. 134 Sionaidh Douglas-​Scott, ‘Opinion 2/​13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice’, VerfBlog, (2014), https://​verfassungsblog.de/​ opinion-​213-​eu-​accession-​echr-​christmas-​bombshell-​european-​court-​justice-​2/​. 135 For a summary of all five arguments, see Accession to the echr, Opinion 2/​13, Full Court, 18 December 2014, ECLI:EU:C:2014:2454 para 258. 136 Opinion 2/​13 (fn. 137) para. 168. 137 Opinion 2/​13 (fn. 137) para. 191. 138 See Melloni, Judgment (Grand Chamber), C-​399/​11, 26 February 2013, ECLI:EU:C:2013:107; N. S., Judgment (Grand Chamber), C-​411/​10, 21 December 2011, ECLI:EU:C:2011:865. 139 Opinion 2/​13 (fn. 137) paras. 191, 194. 140 See N. S. (fn. 140).

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check each other’s compliance with fundamental rights covered by the echr. Where the relevant provisions correspond to those under the Charter of Fundamental Rights within EU law, this exercise would create a discrepancy between Member States’ obligations under the echr and under EU law according to the cjeu.141 Therefore, the cjeu ruled that the daa was not compatible with the principle of mutual trust.142 Secondly, the cjeu also found the daa problematic in relation to Article 344 tfeu. One must remember that Article 344 tfeu (Article 292 tec at the time) was under extensive scrutiny in mox Plant. As referred to above, the cjeu found unclos in essence compatible with EU law, even though Ireland was in violation of EU law for adhering to arbitration in the specific case.143 It is no surprise that the cjeu relied on Article 282 unclos as a golden standard for a treaty compatible with Article 344 tfeu.144 Even though the echr would have become an integral part of EU law, a similar express provision, allowing the echr to give precedence to the cjeu in the interpretation and application of EU law was lacking thereunder. According to the cjeu, this would have opened a Pandora’s box. Under Article 33 echr, the European Court of Human Rights (ECtHR) could have been seized of a dispute between Member States inter se or between them and the EU over which the cjeu should have had jurisdiction.145 Hence, the cjeu bluntly concluded that only the express exclusion of the ECtHR’s jurisdiction over such disputes would be compatible with EU law.146 This shows how the cjeu’s conception of Article 344 tfeu has changed compared to mox Plant. In mox Plant, the fact that Article 282 unclos made

1 41 Opinion 2/​13 (fn. 137) para. 194. 142 The cjeu’s reasoning on the principle of mutual trust has been widely criticized for not being overly rigid and not giving due regard to human rights protection of individuals. See for ex. Jörg Polakiewicz and Lucia Brieskova,‘It’s about Human Rights, Stupid!’, VerfBlog,  2015/​3/​12, available at:  https://​verfassungsblog.de/​its-​about-​human-​rights-​stupid/​, 3; Steve Peers, ‘The CJEU and the EU’s accession to the echr: a clear and present danger to human rights protection’ (2014), available at:  http://​eulawanalysis.blogspot. com/​2014/​12/​the-​cjeu-​and-​eus-​accession-​to-​echr.html; Benedikt H.  Pirker and Stefan Reitemeyer, ‘Between Discursive and Exclusive Autonomy –​Opinion 2/​13, the Protection of Fundamental Rights and the Autonomy of EU Law’, 17 (2015) Cambridge Y.B. Eur. Legal Stud. 1, at. 8. For an opposing view see Daniel Halberstam, “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/​13 on EU Accession to the ECHR, and the Way Forward’, 16 (2015) German Law Journal 105; U. of Michigan Public Law Research Paper No. 439, available at ssrn: https://​ssrn.com/​abstract=2567591 or http://​dx.doi.org/​10.2139/​ssrn.2567591. 143 mox Plant (fn. 94) para. 125. 144 Opinion 2/​13 (fn. 137) para. 205. 145 Opinion 2/​13 (fn. 137) para. 209. 146 Ibid, para. 213.

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it possible to comply with EU law was in itself sufficient for the preservation of autonomy.147 However, in Opinion 2/​13, the cjeu found that ‘the very existence of […] a possibility’ that Member States could circumvent the Court’s exclusive jurisdiction was ipso facto in contradiction with Article 344 tfeu.148 It seems as if the cjeu has carefully broadened the scope of Article 344 tfeu under the guise of mox Plant. As Advocate General Kokott and commentators warned, this could endanger all mixed agreements lacking a similar provision.149 One must wonder about the effectiveness and necessity of this ultimatum. The drafters of the daa held that a provision resembling Article 282 unclos was unnecessary, as Article 344 tfeu was an appropriate safeguard.150 Just as in mox Plant, if a judicial body infringes upon the cjeu’s exclusive jurisdiction, the Commission could very well initiate infringement proceedings for the violation of Article 344 tfeu against the Member State submitting the dispute.151 Advocate General Kokott was also in support of this compromise.152 In terms of necessity, the cjeu’s jarring approach to call for the amendment of the echr is also questionable. As Advocate General Kokott argued, if the already operational EU safeguards are not sufficient, Member States could make a binding unilateral declaration to the effect that they would not submit cases dealing with EU law to the ECtHR.153 Let us 147 Stian Øby Johansen, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/​13 and Its Potential Consequences’, 16 (2015) German Law Journal 169–​178, at 174. 148 Opinion 2/​13 (fn. 137) para. 208. 149 View of Advocate General Kokott delivered on 13 June 2014, Accession to the echr, Opinion 2/​13, ECLI:EU:C:2014:2475, para. 118; Benedikt H. Pirker and Stefan Reitemeyer, ‘Between Discursive and Exclusive Autonomy  –​Opinion 2/​ 13, the Protection of Fundamental Rights and the Autonomy of EU Law’, 17 (2015) Cambridge Y.B. Eur. Legal Stud. 1, at 12; Johansen (fn. 149)  177. Criticism also by Christian Tomuschat, ‘Der Streit um die Auslegungshoheit: Die Autonomie der EU als Heiliger Gral/​Das EuGH-​Gutachten gegen den Beitritt der EU zur EMRK’, 42 (2015) Europäische Grundrechte-​Zeitschrift 42 (2015) 133–​139. 150 Fifth negotiation between the cdhh ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, 5 April 2013, 47+1(2013)008rev2, available at:  https://​www.echr.coe.int/​ Documents/​UE_​Report_​CDDH_​ENG.pdf, 28. Also see Polakiewicz and Brieskova (fn. 144) 4. 151 Jed Odermatt (fn. 41)  7; Tobias Lock, ‘Autonomy now?! A  brief response to Daniel Halberstam’, VerfBlog  2015/​3/​12, available at:  https://​verfassungsblog.de/​autonomy-​now-​ a-​brief-​response-​to-​daniel-​halberstam-​2, 2; Tobias Lock, ‘The future of EU accession to the ECHR after Opinion 2/​13: is it still possible and is it still desirable?’, 11 (2015) European Constitutional Law Review 239–​273. 152 Opinion 2/​13, view of Advocate General Kokott (fn. 151) para. 117. 153 Opinion 2/​13, view of Advocate General Kokott (fn. 151)  para. 120.; Odermatt (fn. 41)  7; Pirker and Reitemeyer (fn. 151) 12.

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not forget that in Opinion 1/​91, the cjeu held that a declaration made in an Agreed Minute was an adequate safeguard under similar circumstances.154 If it was enough in relation to the eaa Agreement, it is unclear why it did not suffice for the echr. Lastly, the most controversial section of Opinion 2/​13 concerned the ECtHR’s potential jurisdiction to apply those provisions of echr that are covered by the EU’s Common Foreign and Security Policy (cfsp). cfsp is the only area where the cjeu, as a general rule, does not have jurisdiction. The EU Treaties contain an exhaustive list of exceptions to that rule under Article 40 teu and Article 263 tfeu, but the adjudication of cfsp matters is mostly in the hands of domestic courts. With the EU’s accession to the echr, the ECtHR could rule on cfsp matters that fall outside the cjeu’s jurisdiction.155 Although the ECtHR could only review cfsp matters within the scope ratione materiae of the echr, the cjeu held that even such a limited judicial review would be detrimental to autonomy.156 There is no other way to put it: excluding the ECtHR’s jurisdiction on cfsp matters brings the cjeu’s exclusive jurisdiction to new heights. The compatibility of a dispute resolution forum with EU law had hitherto been examined only through the glasses of autonomy when that forum had or would have had conflicting jurisdiction with the cjeu or the domestic courts of Member States.157 In Opinion 2/​13, the cjeu suggested that the jurisdiction of a court or tribunal conflicts with autonomy –​and thus with the exclusive jurisdiction of the cjeu –​even in areas where the cjeu itself does not have exclusive jurisdiction. This paradox requires some imagination to take in. The cjeu basically took the view that if it cannot have jurisdiction in relation to cfsp, no one else can have it either.158 As a result of Opinion 2/​13, no international dispute settlement body is able to invoke the EU’s responsibility for violating human rights. As a disappointed commentator put it: ‘Quite frankly, EU accession to the Convention, in the terms defined today by the cjeu, could only appeal to those who don’t like human rights very much.’159

1 54 155 156 157 158

See note 78. Opinion 2/​13 (fn. 137) para. 254. Ibid, para. 256. Opinion 2/​13, view of Advocate General Kokott (fn. 151) para. 190. Adam Łazowski and Ramses A. Wessel, ‘When Caveats Turn into Locks: Opinion 2/​13 on the Accession of the European Union to the ECHR’, 1 (2015) 15; Peers (fn. 145) 146; Pirker and Reitemeyer (fn. 151) 18. 159 Peers (fn. 144).

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Bringing Together the Different Threads of Autonomy: The Achmea Judgment The seminal Achmea judgment grew out of an arbitral award, rendered on the basis of the Slovak-​Dutch bit in relation to the renationalization of the private health insurance market in Slovakia.160 The arbitral tribunal composed under the umbrella of the Permanent Court of Arbitration and acting in accordance with the uncitral Arbitration Rules chose to sit in Frankfurt am Main, Germany. This allowed the Slovak Republic to challenge the arbitral tribunal’s jurisdiction in an annulment proceeding in front of Germany’s Higher Regional Court in Frankfurt am Main, arguing that Articles 18, 267 and 344 tfeu precluded the tribunal from hearing the case.161 That proceeding being unsuccessful, the Slovak Republic appealed to Germany’s Federal Court of Justice. The Federal Court of Justice shared the views of the Higher Regional Court; however, for the sake of certainty, it referred its questions to the cjeu for a preliminary ruling. Although the cjeu did not rule that the entirety of the Slovak-​Dutch bit was in contravention with the autonomy of EU law, only its provision listing the applicable law, Achmea was enough to send shock waves across Member States.162 When assessing the bit’s compatibility with Article 267 tfeu, the cjeu applied a three-​pronged test.163 Firstly, it looked at whether arbitral tribunals could interpret or apply EU law. Article 8 of the bit, listing the applicable law, included inter alia domestic law of the Contracting Parties and other relevant agreements between them.164 Similar to mox Plant, where unclos allowed for the interpretation and application of EU law as being a relevant agreement between the parties, the cjeu held that arbitral tribunals settling disputes under the bit could, in fact, interpret and apply EU law.165 Therefore, autonomy 6)

160 Achmea B.V. v. The Slovak Republic, uncitral, pca Case No. 2008–​13 (formerly Eureko B.V. v. The Slovak Republic), 7 December 2012, Final Award, para. 352. 161 Achmea (fn. 10) para. 12. 162 See the introduction to this paper. 163 Steffen Hindelang, ‘Conceptualisation and Application of the Principle of Autonomy of EU Law –​The CJEU’s Judgment in Achmea Put in Perspective’, 44 (2019) E.L. Rev. 8. 164 Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic, 29 April 1991, Article 8(6) provides: ‘The arbitral tribunal shall decide on the basis of the law, taking into account in particular though not exclusively: the law in force of the Contracting Party concerned; the provisions of this Agreement, and other relevant Agreements between the Contracting Parties; the provisions of special agreements relating to the investment; the general principles of international law.’ 165 Achmea (fn. 10) para. 42.

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could only be preserved if such arbitral tribunals would either have access to the preliminary ruling procedure directly, or indirectly through the ex post facto review of Member States’ courts. Hence, the cjeu secondly analysed whether the arbitral tribunal could submit questions for preliminary rulings, for which it had to qualify as a tribunal of a Member State. Here came the first peculiar finding. Based on previous case law,166 the cjeu examined whether the creation of the arbitral tribunal was provided for by domestic law: it was not. However, as AG Wathelet pointed out, a judicial body can also qualify as a court or tribunal of a Member State if it was created by an international treaty, like the Benelux Court, which the cjeu has previously used as a reference in Opinion 1/​09.167 However, the Benelux Court is more deeply embedded in the judicial system of the Benelux States, and unlike an investment tribunal, its task is the uniform interpretation of domestic law. Thus, the cjeu could not accept the similarities and ruled that the arbitral tribunal was not a tribunal of a Member State.168 Thirdly, the cjeu concluded that effective judicial review of the tribunal’s award was impossible. Even in a lucky situation, where the arbitral tribunal chooses as its seat a Member State where domestic courts can review its awards, such review is most often limited. For example, German courts could only have annulled the award based on public policy grounds or the bit’s invalidity under domestic law.169 The Court did not assess whether the arbitral tribunal had actually relied on EU law in its award. Commentators found this regrettable and argued that a case-​by-​case analysis would have better suited the gravity of the judgment.170 However, the cjeu cannot be criticized for not staying consistent with its previous jurisprudence according to which even a threat or a possibility of a threat to its exclusive jurisdiction will result in a finding in favour of ­autonomy.171 166 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta, Judgment, C-​377/​13, 12 June 2014, EU:C:2014:1754, paras. 25–​26. 167 View of Advocate General Wathelet delivered on 19 September 2017, Achmea, C-​284/​16, ECLI:EU:C:2017:699, paras. 126–​130. 168 Achmea (fn. 10) para. 48. 169 Ibid, para. 53. 170 Csongor Istvan Nagy, ‘Intra-​ EU Bilateral Investment Treaties and EU Law after Achmea: Know Well What Leads You Forward and What Holds You Back’, 19 (2018) German Law.Journal 981, at 1006; Burkhard Hess, ‘The Fate of Investment Dispute Resolution after the Achmea Decision of the European Court of Justice’, (2018) MPILux Research Paper Series 2018 (3), 12. 171 See Angelos Dimopoulos, ’Achmea: The principle of autonomy and its implications for intra and extra-​EU BITs’, (2018), available at:  https://​www.ejiltalk.org/​achmea-​the-​principle-​of-​autonomy-​and-​its-​implications-​for-​intra-​and-​extra-​eu-​bits/​, 5; Janice Lee, ‘The

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The second unexpected finding concerned the applicability of Article 344 tfeu to the case at hand. Article 344 tfeu was thought to apply only between States.172 This did not deter the cjeu from applying Article 344 tfeu in Achmea to a dispute between an individual and a State, although its reasoning for doing so is quite laconic. The bit was also deemed incompatible with the principle of mutual trust and sincere cooperation.173 Unlike in mox Plant, Opinion 1/​91 and Opinion 2/​13, the cjeu does not give any detailed reasoning as to the underlying reasons.174 The cjeu concluded that the trajectory of all the above-​ mentioned incompatibilities was identical, resulting in an adverse effect on the autonomy of EU law.175 7) Minor Corrections: Opinion 1/​17 on ceta The cjeu’s most recent autonomy related opinion concerns the Comprehensive Economic and Trade Agreement (ceta) between Canada and the EU. ceta sets up a tribunal and an appellate tribunal for the judicial resolution of investor-​State disputes between the Contracting Parties. After Belgium’s request for an opinion on inter alia ceta’s compatibility with the autonomy of EU law, the cjeu decided to give ceta the green light. As opposed to the daa, addressed in Opinion 2/​13, ceta does not empower its tribunals to submit questions to the cjeu for a preliminary ruling. This was not a deal breaker for the cjeu as long as the ceta Tribunals did not interpret or apply EU law. Surprisingly, what convinced the cjeu was that the ceta Tribunal can only examine domestic law as a matter of fact, pursuant to Article 8.31.2 ceta.176 Additionally, such examination of domestic law must conform to the prevailing interpretation of Member States’ domestic courts and does not bind the EU’s judicial bodies in their future interpretation.177 Moreover, ceta prescribes that the ceta Appellate Tribunal may identify ‘manifest errors’ in the Tribunal’s de facto examination of domestic law.178 This was not an

172 1 73 174 1 75 176 177 178

Empire Strikes Back: Case Note on The CJEU Decision in Slovak Republic c. ACHMEA BV, March 6, 2018’, 11 (2018) Contemp. Asia Arb. J. 137, at 145. Achmea, opinion of Advocate General Wathelet (fn. 169) para. 146. Also see Hindenlang (fn. 165) 4. Achmea (fn. 10) para. 58. This could mean that these principles are violated by default when autonomy is threatened. Achmea (fn. 10) para. 59. ceta, Opinion 1/​17, Full Court, 30 April 2019, ECLI:EU:C:2019:341, para. 130. Ibid, para. 130. Ibid, para. 133.

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issue, as according to the cjeu ‘[…] it was in no way the intention of the Parties to confer on the Appellate Tribunal the jurisdiction to interpret domestic law.’179 This clears up the question raised since mox Plant: Member States can de facto rely upon EU law, without disturbing autonomy. However, the cjeu’s line of reasoning is quite peculiar. Firstly, arbitrators might push the boundaries between the examination of EU law as a matter of fact and its interpretation as a matter of law. This could be the case where a domestic court is yet to rule on a question before the ceta Tribunal. In this case, the ceta Tribunal can proceed in one of two ways. It could either avoid examining domestic law in any form, or it would have to second guess the EU’s court system. Neither possibility sounds very promising. The former would be prejudicial to the functioning of the ceta Tribunal if a dispute could not be resolved without relying on domestic law. Therefore, it is unlikely that the ceta Tribunal would take that route. The latter could endanger the cjeu’s broad concept of autonomy as even if the ceta Tribunal’s interpretation would not be binding on domestic courts they would still be binding on the parties to the dispute.180 Hence, Member States would possibly be forced to pay compensation based on an erroneous interpretation of EU law. It is true that the ceta Appellate Tribunal can identify manifest errors in the ceta Tribunal’s examination of domestic law to avoid this from happening. However, this presupposes that the ceta Appellate Tribunal will always get it right. A possibility to violate autonomy was always sufficient for incompatibility with EU law, and it would be quite difficult not to find even the slightest possibility for that happening under ceta’s court system. Moreover, looking at the intention of the parties to be satisfied with ceta’s compatibility with autonomy is also unlike the cjeu.181 Previously, it had always exclusively examined the effect as opposed to the underlying intention. Further, Belgium questioned whether the ceta Tribunal, while examining EU law as a matter of fact, can indirectly decide upon its lawfulness.

1 79 Opinion C-​1/​17 (fn. 178) para. 133. 180 Szilárd Gáspár-​Szilágyi, ‘Advocate General Bot in Opinion 1/​17. The Autonomy of the EU Legal Order V.  The Reasons Why the CETA ICS Might Be Needed (2019)’, available at:  http://​europeanlawblog.eu/​2019/​02/​06/​ag-​bot-​in-​opinion-​1-​17-​the-​autonomy-​of-​the-​ eu-​legal-​order-​v-​the-​reasons-​why-​the-​ceta-​ics-​might-​be-​needed/​. 181 Franicso de Abreu Duarte, ’Autonomy and Opinion 1/​17 –​a Matter of Coherence? (2019) available at:  https://​europeanlawblog.eu/​2019/​05/​31/​autonomy-​and-​opinion-​1-​17-​a-​matter-​of-​coherence/​.

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This can occur when a Member State or the EU adopts a measure for the protection of public interest based on primary EU law. If that measure violated ceta –​for example, its provisions on fair and equitable treatment –​ the ceta Tribunal could de facto deem an EU measure unlawful given that such a dispute was brought before it.182 However, as a safeguard, ceta allows its Contracting Parties to adopt the necessary measures in the protection of public security, public morals, public order and plant, animal or human life or health.183 According to the cjeu, this encompasses EU measures adopted for public interest, thus a clash between EU law and ceta is avoided.184 This might be a bold statement as the cjeu presupposes that the ceta Tribunal will interpret the exception provisions of ceta in conformity with EU law. In line with Opinion 1/​91, this could only be the case if the object and purpose of ceta would be identical to that of EU primary law, or if ceta contained similar safeguarding measures for homogenous interpretation to the eea Agreement. The former is clearly not the case, the latter the cjeu did not address. The cjeu seems much less concerned about homogenous interpretation than in Opinion 1/​91 and Opinion 1/​92. In Opinion 1/​17, the cjeu showed more openness to a competing judicial forum and more willingness to compromise its exclusive jurisdiction than ever before.185 One explanation for this laissez-​faire attitude is that the principle of autonomy reached its peak in Achmea, and it could not be pushed further without causing irreparable damage to the EU’s legal order. Another possibility is that the cjeu relies on autonomy as a useful tool for the benefit of everyday EU politics. With a hint of humour, while the cjeu had previously used autonomy as a sledgehammer until it had found the smallest leak, in Opinion 1/​17, the cjeu used it to carefully tap the surface of ceta and eventually conclude: ‘Yeah, this seems about right’.

1 82 Opinion 1/​17 (fn. 178) para. 137. 183 Ibid, para. 152. Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (ceta), article 28.3.3. 184 Opinion 1/​17 (fn. 178) para. 156. 185 Several commentators also share this view. See Steve Peers, ‘’We *aren’t* the world’: the CJEU reconciles EU law with international (investment) law’ (2019), available at: http://​ eulawanalysis.blogspot.com/​2019/​05/​we-​arent-​world- ​cjeu-​reconciles- ​eu-​law.html; Duarte (fn. 183).

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Strategies for the osce Court to Avoid Incompatibility with the Autonomy of EU Law

In spite of recurring arguments to the contrary, EU law cannot have the final say about the validity of the international law obligations of the Member States. As the arbitration tribunal in Cube Infrastructure Fund Sicav and others v. Kingdom of Spain rightly noted, ‘[w]‌ithin the system of international law, EU law does not have supremacy, and has no hierarchical priority over the laws of non-​Member States, or over rules of international law’.186 Intra EU mechanisms can naturally compel Member States to denounce incompatible international treaties, but before such denunciation occurs, the relevant international obligations stay in place. This opens the question of strategy for courts entrusted with the enforcement of international treaties that seem to contradict EU law. One possible strategy is what we may describe as open confrontation by ignoring the Achmea ruling or by partially distinguishing the pertinent case from the circumstances of the Achmea setting.187 This strategy of open confrontation –​however strong arguments are, put forward to support it –​is not advisable for the osce Court for two reasons. Firstly, international investment arbitration has gathered a considerable impetus in the past two decades, and this impetus will not be jeopardized by an open conflict with the cjeu, also in view of the interests of the stakeholders. The position of the osce Court is not as advantageous. Secondly and more importantly, the mechanisms of the osce Court offer sufficient room for manoeuvre to operate without a conflict with the autonomy of EU law. In the following we shall submit that a judicial forum outside of the EU must conform to five specific requirements to be compatible with the autonomy of EU law, and that the osce Court can meet these criteria. The five requirements are the following: 1. The court or tribunal cannot make a binding decision on the distribution of competences between the EU and its Member States.188 186 Cube Infrastructure Fund Sicav and others v. Kingdom of Spain, icsid Case No. ARB/​15/​ 20, Decision on jurisdiction, liability and Partial Decision on quantum, 19 February 2019, para 130. 187 Cube Infrastructure Fund Sicav and others v. Kingdom of Spain (fn. 188) occurs to be an example for both. 188 This essentially means that the said court or tribunal will not be empowered to decide whether the appropriate party to a dispute before it is either the EU or Member States. This requirement was one of the reasons why the EU’s accession to the first draft of the eea Agreement (see Opinion 1/​91, fn. 46) and the echr (see Opinion 2/​13, fn. 137) did not come to fruition.

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The court or tribunal must be compatible with Article 344 tfeu.189 The court or tribunal must be compatible with Article 267 tfeu.190 The court or tribunal must respect the principle of sincere cooperation.191 The court or tribunal must respect the principle of mutual trust.192

No Binding Decision on the Division of Competences between the EU and Member States Turning to the first requirement, the decisive factor in this regard is that the Stockholm Convention is not a mixed agreement, as the EU is not a party to it. Therefore, unlike the first draft of the eaa Agreement addressed in Opinion 1/​91 or the daa addressed in Opinion 2/​13, the osce Court cannot decide whether the EU or the Member States are the appropriate parties to a dispute. Consequently, the osce Court cannot make binding decisions on the competences between the EU and its Member States. 1)

2) Compatibility with Article 344 tfeu The osce Tribunal must decide cases based on international law, or ex aequo et bono, comparable to, for example the icj.193 Similarly, an osce Conciliation Commission shall assist the parties to the dispute in accordance with international law and osce commitments.194 The cjeu has emphasized in mox Plant and Achmea that eu law forms a part of international law.195 Hence, an osce Tribunal or a Conciliation Commission would be able to interpret and apply EU law if they were seized of a dispute over which the cjeu had exclusive jurisdiction. This would be a blatant violation of Article 344 tfeu. However, it is clear from mox Plant that even if the applicable law before a court or tribunal outside the judicial system of the EU possibly encompasses EU law, autonomy 189 Article 344 tfeu prohibits Member States to submit disputes on the interpretation or application of EU law to a judicial body outside the EU’s judicial system. See for ex. mox Plant (fn. 94); Opinion 2/​13 (fn. Xx); Achmea, supra note 11. 190 Article 267 tfeu obliges the courts and tribunals of Member States to refer questions to the cjeu on inter alia the interpretation of EU law, if such a question arises before them. See for ex. Opinions 1/​91 (fn. 46) and Achmea (fn. 10). 191 The principle of sincere cooperation, enshrined in Article 4(3) teu, obliges Member States to strive for their own and each other’s fulfillment of EU law and refrain from jeopardizing the EU’s objectives. See for ex. mox Plant (fn. 96); Achmea (fn. 10). 192 The principle of mutual trust requires Member States to mutually trust each other that the EU law implementing the foundational values of the EU, enshrined in Article 2 teu, will be respected by all Member States. See for ex. Opinion 2/​13 (fn. 33); Achmea (fn. 10). 193 Stockholm Convention (fn. 4), Article 30. 194 Stockholm Convention (fn.4), Article 24. 195 mox Plant (fn. 94) paras. 148–​149; Achmea (fn. 10) para. 41.

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can still be preserved.196 That is if the convention under which the court or tribunal operates excludes its jurisdiction from disputes falling under the cjeu’s exclusive jurisdiction. The Stockholm Convention achieves exactly that. Pursuant to Article 19(1)(b) of the Stockholm Convention: 1. A  Conciliation Commission or an Arbitral Tribunal constituted for a dispute shall take no further action in the case: […] (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. We have previously argued that the cjeu’s approach to similar provisions has slightly shifted between Mox Plant and Opinion 2/​13.197 Therefore, it must be examined whether Article 19 of the Stockholm Convention reaches the higher threshold of Opinion 2/​13.198 We suggest that there is a substantive difference between Article 282 unclos, addressed in mox Plant, and Article 19 of the Stockholm Convention, which makes the latter more friendly towards EU law. unclos only makes it possible for courts and tribunals to refer cases to the cjeu over which it has exclusive jurisdiction.199 In accordance with Article 282 unclos, the dispute settlement bodies under unclos can only exercise their compétence de la compétence ‘[…] unless the parties to the dispute otherwise agree.’ In contrast, there is no such provision under Article 19 of the Stockholm Convention. Therefore, the parties to a dispute cannot overwrite Article 19, thus they cannot mutually agree to settle their EU law related disputes outside the judicial system of the EU. Consequently, the Stockholm Convention not only makes it possible for its Contracting Parties to comply with Article 344 tfeu, but expressly excludes the osce Court’s jurisdiction over disputes that

1 96 mox Plant (fn. 94) paras. 124–​125. 197 See the subsection on Opinion 2/​13 and Johansen (fn. 149). 198 In Opinion 2/​13 (fn. 33) para. 213 the cjeu stated: ’In those circumstances, only the express exclusion of the ECtHR’s jurisdiction [emphasis added] under Article 33 of the echr over disputes between Member States or between Member States and the EU in relation to the application of the echr within the scope ratione materiae of EU law would be compatible with Article 344 tfeu.’ 199 mox Plant (fn. 94) para. 124.

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would violate Article 344 tfeu, which was the threshold set by the cjeu in Opinion 2/​13.200 In light of the cjeu’s prior jurisprudence, Article 19 of the Stockholm Convention must be interpreted broadly. Article 19 should not only include disputes where the osce Court would have to interpret EU law directly. In line with Opinion 1/​91, Article 19 should include disputes where the applicable law is substantively identical to EU law.201 Moreover, following the cjeu’s rationale in Opinion 1/​17, Article 19 should also include cases where the osce Court could indirectly rule on the lawfulness of certain EU measures. Admittedly, examining EU law as a matter of fact is still a grey area. While the cjeu accepted the ceta Tribunal’s ability to examine EU law as a matter of fact, it only did so after acknowledging some additional safeguards implemented by ceta. Firstly, such examination will only bind the parties to the dispute, secondly, it must conform to the prevailing interpretation of domestic courts.202 Additionally, the cjeu also looked at the intention of the Contracting Parties not to interpret EU law.203 The decisions of an osce Arbitral Tribunal are indeed only binding on the parties to the dispute according to Article 31(2) of the Stockholm Convention.204 It is also clear from Article 19 of the Stockholm Convention that the intention of the parties is to avoid the interpretation of EU law. However, the Stockholm Convention lacks a provision obliging an osce Arbitral Tribunal to follow the interpretation of either the courts of EU Member States or the cjeu. Therefore, for the sake of certainty, Article 19 of the Stockholm Convention should –​at least for the meantime –​include disputes where EU law could be examined as a matter of fact. Consequently, the Stockholm Convention is in conformity with Article 344 tfeu. It should be borne in mind, however, that an osce Tribunal must carry out a case-​by-​case analysis with extreme caution when exercising its compétence de la compétence under Article 19(6) of the Stockholm Convention to recognize any potential EU law related application.205

2 00 201 202 203 204

Opinion 2/​13 (fn. 33) para. 213. See the subsection on Opinion 1/​91. Opinion 1/​17 (fn. 179) para. 130. Ibid, para. 133. Article 31(2) of the Stockholm Convention (fn. 4) provides that:‘[s]‌ubject 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.’ 205 Stockholm Convention (fn. 4), Article 19(6).

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3) Compatibility with Article 267 tfeu The osce Court is situated outside the judicial system of the EU, similar to the arbitral tribunals under intra-​EU BITs, or the ceta Tribunal. Therefore, it does not qualify as a court or a tribunal of a Member State and it cannot refer questions to the cjeu for a preliminary ruling under Article 267 tfeu. Additionally, the Stockholm Convention lacks a provision which would otherwise make it possible to have access to the preliminary ruling procedure, similar to the eaa Agreement addressed in Opinion 1/​92206 or the ecaa Agreement addressed in Opinion 1/​00.207 In Achmea, the cjeu stated that the effectiveness of EU law could also be preserved by the ex post facto review of tribunals’ awards.208 However, the decisions of an osce Tribunal are final and binding in accordance with Article 31(3) of the Stockholm Convention. Therefore, domestic courts cannot review the awards rendered by an osce Tribunal. Thankfully, pursuant to Opinion 1/​17, the capacity to have access to the preliminary ruling procedure is unnecessary if the court or tribunal in question cannot interpret or apply EU law in the first place.209 As argued before, an osce Arbitral Tribunal does not have jurisdiction to interpret or apply EU law due to the subsidiarity of its jurisdiction. Therefore, the Stockholm Convention is in conformity with Article 267 tfeu. 4) Compatibility with the Principle of Sincere Cooperation In relation to autonomy, the principle of sincere cooperation has three different applications. Firstly, the principle of sincere cooperation requires compliance with Article 344 tfeu as the cjeu ruled in mox Plant.210 Secondly, Article 267 tfeu and the principle of sincere cooperation also come hand in hand in accordance with Opinion 1/​09, Opinion 2/​13 and Achmea.211 As the osce Court’s arbitral jurisprudence poses no threat to either Article 344 tfeu or Article 267 tfeu, the principle of sincere cooperation also remains untouched in this ­aspect. The third application of this principle was examined in mox Plant. In that judgement, the cjeu explained that sincere cooperation requires Member States to inform and consult the competent EU institutions before initiating 2 06 207 208 209 210 211

Opinion 1/​92 (fn. 78) para. 34. Opinion 1/​00 (fn. 83) para. 33. Achmea (fn. 10) para. 50. Opinion 1/​17 (fn. 178) para. 134. mox Plant (fn. 94) para. 170. Opinion 2/​13 (fn. 33) paras. 174–​176; Achmea (fn. 10) para. 58.

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proceedings under unclos.212 However, the cjeu itself restricted the applicability of this principle by stating that:213 The Court has also emphasised that the Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement […]. Therefore, the obligation of ex ante information and consultation with EU institutions only binds Member States when they submit their disputes to a dispute settlement body of a mixed agreement for claims arising from that mixed agreement. However, the Stockholm Convention is not a mixed agreement. Therefore, this obligation does not apply to proceedings before the osce Court. 5) Compatibility with the Principle of Mutual Trust As the cjeu stated in Opinion 1/​17, the principle of mutual trust is not applicable in disputes between a Member State and a non-​Member State.214 As several non-​Member States are parties to the Stockholm Convention, the osce Court is empowered to settle disputes involving them with no negative effect on mutual trust. With respect to Member States, the principle of mutual trust requires them not to question each other’s compliance with EU law protecting the foundational values of the EU.215 Therefore, the principle of mutual trust works similar to Article 344 tfeu, only in a narrower sense, limited by the EU’s foundational values enshrined in Article 2 teu. Thus, following an argument a maiore ad minus, compliance with Article 344 tfeu will always yield compliance with the principle of mutual trust. As the dispute resolution mechanism of the osce Court complies with Article 344 tfeu, the principle of mutual trust is left unscathed. An Additional Safeguard: The Non-​Binding Nature of Conciliation under the Stockholm Convention Besides the subsidiary nature of the osce Court’s jurisdiction, the functioning of the osce Conciliation Commission inherently provides for an additional safeguard to prevent incompatibility with the autonomy of EU law. Pursuant to Article 344 tfeu, the exclusive jurisdiction of the cjeu, thus the autonomy 6)

2 12 213 214 215

mox Plant (fn. 94) para. 179. Ibid, para. 175. Opinion 1/​17 (fn. 178) para. 129. Opinion 2/​13 (fn. 33) para. 191.

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of EU law can only be threatened by an alternative ‘method of settlement’. This term was interpreted in mox Plant as referring to judicial proceedings where a final and binding decision can be rendered at the end.216 That decisive factor is lacking in respect of conciliation under the Stockholm Convention. By its very nature, the outcome of proceedings before an osce Conciliation Commission is not binding. Article 25 of the Stockholm Convention provides that the parties to a dispute before the osce Conciliation Commission can either reach a mutually acceptable settlement during conciliation217 or accept the final report drawn up by the Commission.218 Otherwise, they are not bound by the proposed settlement.219 Even if conciliation was successful, all mechanisms within the EU’s judicial system would still be available to both the Member States and the EU. Therefore, conciliation under the Stockholm Convention falls outside the scope of a ‘method of dispute settlement’ under EU law, thus it poses no threat to the autonomy of EU law. v

Conclusions

Taking the dicta of Opinion 1/​91, Mox Plant, Opinion 2/​2013 and Achmea literally, no dispute settlement mechanism even potentially and indirectly involving EU law may be compatible with EU law. Such consequences cannot be intended by the cjeu. A case by case analyses must remain possible. Opinion 1/​17 may be a sign that the cjeu might be in general ready to show more openness to a competing judicial forum and more willingness to compromise its exclusive jurisdiction. Notwithstanding these considerations, even in case of a broad interpretation of the case law of the cjeu, the flexible and subsidiary nature of the osce mechanisms allow for avoiding any conflict.

2 16 mox Plant (fn. 94) para. 129. 217 Stockholm Convention (fn. 4), Article 25(1):  ‘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.’ 218 Ibid, Article 25(3):  ‘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.’ 219 Ibid, Article 25(4):‘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.’

pa rt 7 Concluding Observations

∵

­c hapter 11

Lessons Drawn and Upcoming Challenges Christian Tomuschat This is a second book on conciliation. A first treatise on the topic1 had been published in 2017 by a group of authors most of whom were related to the Court of Conciliation and Arbitration within the osce (osce Court), brought into being by the Stockholm Convention of 15 December 1992.2 This time the setting is the same again. At the center of this study stands the osce Court, and some of the authors that have provided contributions again discharge key functions within the organizational structure of the Court. Why should the focus be directed anew on an institution that has already been analyzed with great care? Obviously, no exhaustive answer can be given already on the first page of this attempt to formulate a synthesis. However, all those who have participated in this exercise are convinced that indeed conciliation constitutes a precious instrument in the arsenal available for the peaceful settlement of international disputes. It is not by accident that it is mentioned as one of the main methods for that purpose in Article 33 of the UN Charter.3 i

The Objectives of This Study

Obviously, this study is devoted to conciliation. Arbitration, the second window of the Court, was left aside. This omission is not meant to signal that the editors 1 Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law. The OSCE Court of Conciliation and Arbitration (Leiden/​Boston: Brill Nijhoff, 2017). 2 32 (1993) ilm 557. 3 Cf. David Caron/​Christian Tomuschat, Comments on Article 33 UN Charter, in:  Andreas Zimmermann/​Christian Tams (eds.), The Statute of the International Court of Justice. A Commentary (Oxford:  oup, third ed. 2019)  166, at 172, marginal note 20; John Collier/​Vaughan Lowe, The Settlement of Disputes in International Law (Oxford: oup, 1999) 29–​31; J.G. Merrills, International Dispute Settlement (Cambridge: cup, 6th ed. 2017) 62–​87; Helmut Steinberger, ‘The Conciliation Procedure Established by the Convention on Conciliation and Arbitration within the OSCE’, in: Lucius Caflisch (ed.), The Peaceful Settlement of Disputes between States. Universal and European Perspectives (The Hague et al.: Kluwer Law International, 1998) 67–​ 77; Yoshifushi Tanaka, The Peaceful Settlement of International Disputes (Cambridge:  cup, 2018) 65–​71.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_012

258 Tomuschat are denying the importance of arbitration. Arbitration is a well-​known device in the field of settlement of disputes since the famous Alabama dispute between Great Britain and the United States in the late 19th century.4 It has maintained its position during the entire 20th century and has recently come to fruition again primarily through the growing number of investor-​State disputes, yet suffering an abysmal defeat when the Chinese Government refused to honour the award rendered in 2016 on the South China Sea.5 Yet for more than 100 years the main characteristics and intricacies of arbitration have come under close scrutiny in innumerous academic and political studies. No fundamentally new issues of principle can be discovered notwithstanding the great impact of many arbitral awards. By contrast, conciliation has many aspects that remain to be explored above all because it has largely remained unused in the past years, having almost fallen into oblivion before being resuscitated more recently.6 The question therefore arises whether conciliation in the traditional sense fits still into the world of today with its rapid growth of international mechanisms and its general acceleration of all political developments. Indeed, conciliation embodies a belief in the wisdom of a body of experts who, on the basis of their knowledge and their broad experience, are singularly capacitated to propose solutions that may satisfy both litigant parties as well as the general interest of the international community in just and well-​balanced outcomes. Hence, one of the great questions arising today is whether it is necessary to adapt the model of conciliation, as it has also been laid down in the Stockholm Convention, to those fast-​changing external circumstances. Legal systems do not lead a secluded existence away from the vibrant developments in international relations. In order to keep their relevancy, they must follow suit, showing that they are able to fulfil their mandates also in an environment that has undergone deep changes. Obviously, this faculty must be put to the test. For an institution that is ignored by its constituency, the States parties to the Stockholm Convention, that proof cannot be furnished for the time being. For this reason alone, it is regrettable that hitherto the osce Court has not been given the opportunity to demonstrate its conflict-​resolving capacity. ii

The osce Court in the Landscape of European Judicial Bodies

Not all of the participating States of the osce have ratified the 1992 Stockholm Convention. The osce counts currently 57 participating States while the 4 Award of 14 September 1872, Martens, nrg, Vol. 20, 767–​725. 5 PCA Case No. 2013–​19 (Philippines v. People’s Republic of China), 12 July 2016. 6 See, in particular, the article by Jorge Vinuales in this book, above 156.

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Stockholm Convention has attracted only 34 of these States. Is it justified to use the word ‘only’ as the yardstick for this less than complete status of ratification? One should clearly reply in the negative although in particular the most powerful ones of the States assembled under the roof of the osce have seen fit to stay away from the Stockholm instrument (Russia and usa, together with Canada), and it does not seem that major changes can be expected in the near future. But the approval given to the Stockholm Convention by no less than 34 States may still be deemed to be an encouraging sign. Or was it only a short-​ lived burst of unreflected euphoria when in November 1990, after the adoption of the Charter of Paris for a New Europe,7 the sentiment prevailed that the great bulk of ideological differences between East and West, to put it in simple terms, had been overcome? Indeed, the hopes that the new Court, which came into operation in 1995, would soon play a significant role in inner-​European relations have not materialized as yet. Not a single case has hitherto been submitted to the Court, neither for the purposes of conciliation, nor for arbitration. After 25 years, one may today feel some kind of disillusionment or even frustration. French President Robert Badinter vainly attempted for 18 years to arouse some tangible interest in the remedies available under the Stockholm Convention. Voices can be heard that the Court is ‘dead’. Yet such judgment seems to be largely premature as also confirmed by the Colloquium held in October 2018 in Geneva. Many reasons may be found to explain why the Court remains stalled, not being able to leave its point of departure. In fact, that Colloquium had as its main objective to undertake such research, reminding the osce States at the same time of its existence and of the useful services which it may provide. Europe is the continent characterized by the largest density of active international courts in the world.8 The oldest one of these judicial institutions is the Court of Justice of the European Union (cjeu), whose origins go back to 1951 when it was founded as the Court of Justice of the European Coal and Steel Community. It holds currently jurisdiction over 27 European States within a broad field of subject matters; accordingly, its agenda is permanently loaded

7 Of 21 November 1990, 30 (1990) ilm 193. 8 However, one should not underestimate the international courts that have sprung up in Africa in the recent past: Charles Jalloh and Others (eds.), The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge: cup, 2019); Emile-​ Derlin Kemfouet Kengny, Les juridictions des organisations d’intégration économique en Afrique (Issy-​les Moulineaux: Librairie Générale de Droit et de Jurisprudence, 2018); Theresa Reinold, ‘When is More More? The Proliferation of International Courts and Their Impact on the Rule of Law in Africa’, 23 (2019) International Journal of Human Rights 1337–​1355.

260 Tomuschat to an impressive degree. In chronological order, the second most important international judicial body in Europe is the European Court of Human Rights (ECtHR) in Strasbourg. Today, it finds itself under enormous pressure since its jurisdiction is sought by tens of thousands of persons every year –​in 2018 the number of individual applications received stood at more than 43,000. Indeed, these figures are a direct reflection of the large number of States parties to the European Convention on Human Rights (echr), no less than 47, including all the members of the Council of Europe. All of these States are automatically subject to the jurisdiction of the Strasbourg Court, from the Norwegian North Cape down to the southern tip of Sicily, from Portugal in the West to Wladiwostok in the Far East. Notwithstanding the impressive record of these courts, there is no European court with jurisdiction in respect of issues of general international law –​except the osce Court, the main subject of this study, which regarding its output looks fairly poor compared to its regional neighbours. The Luxembourg Court as well as the Strasbourg Court are specialized judicial institutions, not mandated to look into issues lying outside the process of European integration9 or not connected essentially with human rights issues, the caveat being that all of the definitions of subject-​matter jurisdiction can be, if deemed necessary, interpreted in a broad sense to establish a connection to general international law. Obviously, on the other hand, European States are not prevented from taking their disputes to the International Court of Justice (icj) in The Hague. Apparently, however, they are not eager to do so. In fact, during the last 25 years just one controversial case between EU members was brought to the icj, namely the immunity dispute relating to proceedings before Italian civil courts where Italian citizens sought and had to some extent obtained compensation for damages caused to them during World War ii.10 One may assume that as a rule the continual chain of meetings of the Council of Ministers of the EU provides rich opportunities to raise any disputed issues that have remained unresolved for some time. Diplomatic negotiation seems to prevail over formal proceedings. Nonetheless, there seems to be ample room for the procedures which the Stockholm Convention places at the disposal of States seeking remedies in instances where political compromise between the parties concerned does not seem easily to yield concrete outcomes. Reference may be made to just a few issues that are intrinsically determined by legal factors but which, on the other 9 See cjeu, Case C-​457/​18, Slovenia v. Croatia, Judgment, 31 January 2020. 10 icj, Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening), 3 February 2012, icj Reports 2012, 99.

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hand, inevitably have considerable political implications. Border disputes rank prominently among them. The same is true, in particular, of environmental issues at least to the extent that relations between non-​EU States or between EU States and non-​EU States are concerned. Likewise, issues of diplomatic and consular intercourse do not fall under the jurisdiction of either one of the two other European courts. The list could be extended easily since the jurisdiction ratione materiae of the osce Court has no limits. In legal terms it is truly comprehensive with regard to any issues governed by international law and additionally any osce commitments. Yet all this seems to come within the class of abstract reasoning, far away from daily realities. The hard fact is that up to the present time the osce Court sits idle, high and dry. It has been described as a sleeping beauty. But one day that beauty must be discovered and animated to enter into full life. iii

A Sleeping Beauty –​ Why?

What are the reasons for the reluctance to request the services of the osce Court? One of the reasons is apparently a formal one. The Stockholm Convention (Article 19) relegates the osce Court to a subsidiary place in respect of the other European courts or any other judicial bodies at universal level so that in some cases those other courts might insist on their superiority, encouraging parties in proceedings to raise procedural objections. Pál Sonnevend has studied that problématique which has recently arisen, in slightly different terms, in arbitral proceedings concerning investment protection.11 It is true that priority should be enjoyed by procedures that lead to a binding decision. Such decisions alone are suited to produce legal certainty and reliability. However, Article 19 ranges conciliation procedures even second to other bodies that on their part hold likewise only powers of recommendation (Article 19(3)). This excessive degree of caution downgrades the osce Court additionally as an institution that comes in last and can even be displaced after it has begun discharging its responsibilities. Obviously, Article 19 reflects the reluctance of some governments that view with mistrust any kind of structured dispute settlement mechanism –​governments that later may have stayed away from the Convention. Essentially, however, there seems to exist some kind of deep-​seated fear to submit to judicial decision-​making or other forms of assistance from third 11

See above 220.

262 Tomuschat parties, notwithstanding the favour which judicial or other formalized settlement enjoys in Europe not only at international, but also at national level. After the collapse of the Nazi dictatorship it was one of the main concerns of the leading statesmen in the second half of the 20th century to establish mechanisms for the protection of individual rights. Nations that for more than a decade had been deprived of judicial protection, by a dictatorial regime with no hesitations to abuse its powers, came to the conclusion that in order to secure the rule of law to every person affected by a State act injuring his or her rights should enjoy a legal right to pursue legal action seeking a remedy. This fundamental belief is embodied in the Universal Declaration of Human Rights (Article 8), the International Covenant on Civil and Political Rights (Articles 2(3) and 14) and the European Convention on Human Rights (Articles 6, 13).12 The claim for legal remedies, however, has never reached the inter-​State level where States oppose one another in terms that affect the collective interests of their peoples. World Peace through Law and eventually through legal proceedings has remained a philosophical ideal, supported only by small groups of lawyers and politicians who believe in justice and fairness but are rarely able to persuade their governments that their foreign policies must be based entirely on entrenched legal and altruistic principles and that all non-​political disputes should be decided by an international judge.13 Although with some resignation, it must be acknowledged that political leaders understandably shy away from any risk where a potential judicial decision or even a simple recommendation could eventually lead to significant losses in respect of elements of national identity and power. Lastly, one must be aware of the fact that most international disputes are characterized by a high degree of complexity. Border disputes pertain to the group of single-​issue controversies. However, at a time when the implications of human rights pervade societal activities in their entirety, most tensions and divergencies between States comprise a wide range of aspects which it is not easy to resolve in one stroke by an arbitral award or the recommendation of a conciliation commission. Protracted, long-​lasting negotiations may then provide the only realistic wayout, rather than turning to a body that comes up with a single succinct answer. What is going on at the United Nations in assisted talks and rounds of continual mediation has shown its attractiveness as an alternative which, obviously, sometimes may end up in complete frustration. 12 13

Today, one also has to add Article 47 of the Charter of Fundamental Rights of the European Union. Clark, Grenville and Louis B. Sohn, World Peace through Law (Cambridge, Masss.: Harvard University Press, 1958).

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Nonetheless, the UN machinery and also the European machinery of Brussels and Strasbourg as an alternative does exist and has become generally known, much better that the procedures established within the osce. It is the great advantage of the osce Court that it relies on the firm foundation of a genuine international treaty, but at the same time also its weakness. Its conventional firmness may deny it the flexibility that may be required for a settlement satisfying all the parties concerned. iv

The Institutional Advantages and Shortcomings of Conciliation

Is not conciliation the appropriate legal device that on the one hand may advance the cause of law and which, on the other hand, promises satisfactory outcomes to any dispute? Conciliation ends with pronouncements that are not binding. Bodies of conciliation are not entrusted with imposing their views on the litigant parties, no matter how well-​balanced such views may be. The Stockholm Convention (Article 25) characterizes the outcome of a conciliation proceeding as a ‘proposal’, i.e. an opinion which the parties concerned may accept or reject. The fact that the osce Council shall in any event be informed of the outcome of the proceedings does not constitute a sanction proper. Thus, conciliation cannot become an overwhelming force. Its implementation depends on the good will of the parties concerned. This simple truth constitutes the strength and at the same time the weakness of conciliation. On the positive side one may note the unbound discretion of States who remain free in their substantive decision. National sovereignty regarding values considered untouchable may be safeguarded. After a conciliatory recommendation has been made, ample time remains to assess its pros and cons. Every single element of the suggested settlement may be scrutinized as to its direct and remote consequences. Reversing the table of assessment, one may also take the view that such sovereign freedom relegates conciliation to little else than a lottery. In fact, conciliation invariably carries the risk that its fruits get lost, perhaps at the very last moment when everything seemed beautifully settled. This element of contingency cannot lead to conducting conciliation proceedings ‘à la légère’. Although not binding in strict legal terms, recommendations emerging from conciliation may acquire a heavy moral and political weight on account of the wisdom embodied in them. Thus, conciliation proceedings require almost the same kind of intellectual and financial expenditure as judicial proceedings, notwithstanding the threatening alternative that at the end the compromise suggested by a conciliation commission disappears through the simple ‘No’ of one of the parties.

264 Tomuschat v

Highlights of the Individual Contributions

Purely theoretical reasoning cannot deliver the key to a better architecture of conciliation proceedings. Therefore, the Geneva Colloquium, following the steps of the earlier colloquium held in Vienna in 2015, has attempted to canvass sources from many different backgrounds, appreciably expanding its scope ratione materiae as well as ratione territorii. First of all, a fresh look at conciliation during its high-​time during the 30s, 40s and 50s of the last century was taken by Heinhard Steiger.14 Those early cases, going back more than half a century, provide essential indicia even today because they considerably impacted the drafting of the relevant provisions in the Stockholm Convention. Did the drafters fully comprehend their functional importance? Steiger has formulated a well-​balanced answer. No grounds for enthusiasm are presented to us, but as shown by him some of the pronouncements did indeed prove useful. One conclusion, in any event, has emerged from Steiger’s consideration of the practice: conciliation was never used in respect of great dramatic issues. In all known instances only disputes of a kind of medium gravity –​avoiding the term ‘petty’ –​were handled. Conciliation in the active form of mediation will often be present in great political disputes –​but then the procedural ways and means are normally handled by diplomats and politicians, not by a group of ‘wise’ men or women. The basis of factual experience was also enlarged by focusing for the first time on situations outside Europe. Unfortunately, it was impossible, contrary to original expectations, to obtain detailed information about the territorial dispute between Guatemala and Belize which, at its first stage, was pending for conciliation before the Organization of American States and which the two sides have now brought before the icj in order to obtain a judgment that would put a definitive end to the controversy.15 However, Jorge Viňuales enlightens us about the case between Timor Leste and Australia under the Law of the Sea Convention, which has become the greatest success for conciliation in the contemporary world, called by him a ‘foundational experiment’.16 The process was concluded early in 2018 to the satisfaction of both sides.17 When the planning for the Geneva Colloquium started, no account could be taken of that controversy since the proceedings were still pending. Fortunately, a 14 Above, 11. 15 icj Press Release No. 2019/​25, 25 June 2019. 16 Above, 156. 17 Compulsory Conciliation Commission between Timor-​Leste and Australia on the Timor Sea, Report and Recommendations, 9 May 2018, https://​pca-​cpa.org/​en/​cases/​132/​.

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compromise solution could be attained by the two States, a solution which does away with any remaining traces of discrimination against a small new State, thanks particularly to the generosity of Australia. In their section of the book, Makane Moïse Mbengue and Apollin Koagne Zouapet inform us, on the basis of a broad empirical research, about relevant developments in Africa.18 According to their view, which reflects the African mainstream, conciliation is superior to adjudication in solving disputes because it permits a broader approach to any case. Conciliators are able to take into account the general environment of a controversy by considering also the interests of third parties and the general interest of the community. Although the establishment of a Permanent Conciliation Commission inside the Organization of African Unity may be called a failure, recourse has been had many times to specialized ad hoc conciliation committees that can boast of fabulous achievements. It may well be that the art of palaver that traditionally served to iron out differences between ethnic communities has significantly contributed to this positive record. Readers can learn from the authors’ accurate description and analysis of the situation as it has evolved in Africa over the years that that that art has not dried up but has seen some invigoration in recent years. In the euphoria about authoritative decision-​making in the fields of human rights and environmental issues, it has often been overlooked that within the relevant architecture as it has emerged under the auspices of the UN conciliation is by no means absent. The inter-​State communication that had lain dormant for many decades has all of a sudden been woken up within the framework of the International Convention on the Elimination of All Forms of Racial Discrimination. In 2018, three inter-​State communications were filed against three different States.19 It is of course too early to forecast their outcomes in particular because the cerd Committee keeps absolute confidentiality about their substance. In any event, as demonstrated by Emmanuel Decaux, all the pessimistic predictions about the failure of the inter-​State communication have been refuted by this unexpected turn of events.20 It may well be that in respect of many States the individual communication may deploy its full effect so that other States parties as guardians of the common interest do not have to feel called upon to initiate proceedings in order to stop manifest breaches of firmly entrenched human rights. However, where individual communication procedures have not been accepted by the State concerned or 18 Above, 113. 19 Qatar v. Saudi Arabia and Qatar v. United Arab Emirates, 8 March 2018; Palestine v. Israel, 22 April 2018. 20 Above 39.

266 Tomuschat where individuals introducing remedies against their own State are threatened by those authorities themselves, the inter-​State complaint, which is officially characterized as ‘communication’, fills in a glaring gap and will certainly be processed with the utmost care by the Committee against Racial Discrimination. Although the procedure under Article 11 cerd is not labelled ‘Conciliation’, it boils down to nothing else. The States involved are required to appear before the Committee to justify their respective positions. The aim is to provide appropriate remedies to the affected persons and at the same time to restructure the relevant domestic mechanisms in view of all similar future disputes. The recent cases, as pointed out by Malgosia Fitzmaurice,21 will also become a model for handling similar proceedings in the field of environmental protection where processes of non-​compliance have largely displaced the traditional dispute settlement mechanisms. Finally issues of procedure must attract the interest of every scholar interested in conciliation and additionally of any practitioner who has to face up to any such proceeding. Transparency and publicity are generally presented as general principles of procedural law. However, conciliation is a special type of procedure where the element of negotiation has a very strong position so that institutional purity is more often than not set aside in order to reach an equitable result. Is the logic of conciliation incompatible with total openness? In some instances such openness would certainly destroy any prospect of reaching a settlement. Many times, in a negotiating process governments are de facto obligated to act secretly when trying to satisfy the opposite party. Transparency as from the very first day would render any compromise solution illusory. On the other hand, if a government makes concessions to another State, is there not, under general democratic principles, a duty of information so that it can be held accountable if its position appears to involve serious sacrifices that a majority of the population considers unbearable? This is a clear dilemma where no clear answer emerges. Serena Forlati presents to us the complexity of the issue by examining the formulae which different codifications of procedural law have found for a fair balance. As demonstrated by her, international law provides no clear and unambiguous guidelines.22 Lastly, the question arises whether the system of conciliation, as it is embodied in the Stockholm Convention, is in a way démodé, not corresponding any longer to the needs of our time. Daniel Thürer has tried to find responses to this intricate question that goes right to the heart of the osce Court.23 When 21 Above 83. 22 Above 181. 23 Above 25.

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reading the text of the Stockholm Convention, one gets the impression that a Conciliation Commission operates not unlike a judicial or arbitral body. The Commission listens to the arguments of the parties, studies the materials as well as the invoked legal arguments and, at a final stage, withdraws to elaborate its opinion in discussions among the members of the Commission. Articles 23 and 24 say very little about any active involvement of the Commission with the parties concerned. But it seems that Article 24 contains elements that may be developed and expanded. In any event, at a time when at the United Nations active involvement by the Secretary-​General and also the political bodies has become the rule, it would seem counterproductive to debar a Conciliation Commission under the auspices of the osce from moving forward in the direction of a body of mediation that seeks to bring the parties’ positions closer to one another. vi

Conclusions

After this general oversight of the contents of this book it seems appropriate to formulate a number of general conclusions. 1) The first conclusion is that it was worthwhile returning to conciliation although this modality of settlement had already been studied at the preceding colloquium held in Vienna in 2015. The empirical basis has been considerably enlarged. The area that has been explored is much broader both ratione materiae and ratione territorii. Thus, the conclusions drawn have solid empirical foundations. We know better now in what political context conciliation may usefully operate. 2) Coming back to the essence of conciliation, it may be stated once again that conceptually it constitutes a strange animal within a legal framework. Lawyers are normally used to thinking within the binary scheme of yes or no, right or wrong. Thus, they proceed from the premise that for most problems just one correct answer can be found. Conciliation leaves this straightjacket. It is based on the assumption that a satisfactory outcome of a controversy or dispute may have to take into account other criteria than strictly legal ones. In many statutory provisions on conciliation it is explicitly said that the conciliators enjoy a broad discretion. It may even be said that, exceptionally, legal rules ‘may be taken into account’. Thus, conciliators are relieved from the rigidity of a bilateral relationship between a claimant and a respondent, being authorized to look beyond the fences of that relationship and to take into account, to an

268 Tomuschat appropriate extent, the interests of the environment in which the dispute is ­embedded. 3) This premise entails appropriate consequences for the organization and conduct of proceedings. In particular the Timor Leste –​Australia case has shown that in order to reach a positive outcome in a complex situation an extra-​ordinary proactive engagement of the conciliation body and its members is necessary. Many rounds of open dialogue and private meetings were necessary in that case to provide the proceedings with the requisite effective momentum. The Stockholm Convention and the Rules of the osce Court seem to permit sufficient flexibility for a better structural connection with litigant parties and the attendant financial ­consequences. 4) The Timor-​Leste –​ Australia conciliation process, in particular, has also made clear that in specific circumstances absolute confidentiality may be necessary in order to keep the process on good course. Wide publicity may stir up public emotions in the nations concerned. It is undeniable that as a consequence frictions between an efficiency-​oriented approach and the requirement of democratic transparency may arise. 5) This means that for the handling of complex issues a conciliation commission needs a strong logistical background. The United Nations is in a position to provide the required support in particular in financial terms. It must appear doubtful whether under the present conditions the osce Court with its minimal budget would be able to satisfy the financial requirements in a major case brought before it. Currently it even lacks a Registrar. Its functions are performed by an Executive Secretary together with the President. 6) Conciliation has the great advantage of being forward-​looking. It is not confined to looking to the past. It can build bridges to the future to the extent that the parties, which at any time remain masters of the proceedings, are willing to accept constructive solutions. 7) Generally, and in particular in complex situations, conciliation avoids the pitfalls of the winner-​takes-​all outcome. There is neither a winner nor a loser. A conciliation body will normally attempt to satisfy both sides to the extent possible. It may therefore prevent feelings of disillusionment, frustration and bitterness that are likely to be caused by unexpected ­outcomes. 8) An additional number of objective reasons may be identified that speak in favour of having recourse to conciliation. One of these grounds is in a given case the lack of clarity both concerning the legal position and the factual evidence available for a formal judicial proceeding. In such instances, where the outcome cannot be forecast with any degree of reliable

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9) 10)

11)

12)

13)

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certainty, governments are well-​advised to opt for conciliation instead of a protracted and expensive judicial or other formal proceeding. Conciliation will also be preferable in instances where it can be foreseen that the initiation of another formal proceeding would cause heavy damage in the relationship between the parties concerned. The fact that the outcome of conciliation, a proposal or recommendation, is not binding should not lead to rejecting conciliation as useless. Its greatest advantage is that the parties involved are compelled to talk to one another and to openly present the arguments justifying their positions in some kind of constructive dialogue. Conciliation tempers emotions and decreases tensions. Lastly, however, conciliation is normally just one stage in a process of long duration which is embedded in the general political climate between the nations concerned. Conciliation needs a climate of understanding and compromise. It cannot of its own dynamic rebuild a relationship of open enmity and hatred. The positive features of conciliation, their lack of bindingness, constitute at the same time their weakness. Governments seriously attempting to find a constructive outcome for a dispute with a neighbour may ask themselves whether it is worth engaging in a proceeding, investing a considerable amount of intellectual and financial resources, if the end result in any event can be dismissed easily by the party that sees itself as the loser. This rather unclear perspective constitutes without any doubt a deterrent for conciliation. Obviously, such rejection comes necessarily at a certain cost. If after a protracted proceeding the recommendations elaborated by a qualified third party are dismissed the tensions between the parties involved may increase, worsening the situation as it had existed beforehand. Yet, the final decision remains entirely in the hands of the national governments concerned. Nobody can speak of a ‘Diktat’ imposed from outside, violating national sovereignty. To date no reliable empirical observations can be adduced to ascertain whether compulsory conciliation, as it is provided for under unclos (Section 2 of Annex v) and in the Stockholm Convention (Articles 19, 20), carries with it any sizable advantages for the success of the relevant proceedings. It may be assumed that the drafters were of the view that if the parties involved talk to one another under the authority of a conciliation commission they have to act reasonably and need to give their claims a justifiable appearance. Thus, a rationalization of the dispute may be expected. Hence, a framework of plausibility must be put forward by both sides.

270 Tomuschat 14) The studies assembled under the cover of this book conclude in fairly identical terms that conciliation operates best where there exists between the parties concerned a fair amount of mutual confidence. Conciliation does not work where the parties are deeply divided and regard themselves even as true enemies. Conciliation presupposes that both sides in a dispute are able to speak openly to one another 15) Conciliation and judicial or arbitral settlement should be conceived of in different terms. Judges and to some extent also arbitrators are neatly separated from the parties. Judges are neutral, impartial and objective and should be seen as acting under these premises. They have to follow the logic of the law even when encouraging the litigant parties to conclude a compromise solution. By contrast, conciliators, in order to succeed in their efforts to bring about a settlement, should also be led by empathy with the litigating parties, trying to mobilize also emotional and political factors suitable to promote a peaceful and durable settlement. Generally speaking, conciliation should be handled more as a cooperative process where the parties and the conciliators work together in pursuing the same aim. In fact, the wall of separation that in judicial proceedings establishes a line of demarcation between the judges and the parties has no valid raison d’être in conciliation proceedings where at the end the parties remain free to embrace the recommendations made to them or to reject them if they feel that no equitable equilibrium has taken shape therein. 16) The last conclusion raises again the suitability of conciliation for the needs of our time. Conciliation is hitherto, and particularly in the Stockholm Convention, seen an instrument for the resolution of bilateral disputes. This concept derives from an epoch where indeed States were generally conceived of as individual entities with equal rights, not enshrined in an overarching international organization. This notion does not reflect any longer the realities of our time. Almost all States, at least in the Western world, form part of complex organizational mechanisms all of which are entrusted with functions for the settlement of disputes. Thus, collective responsibilities are generally involved. The parties to a dispute are not left alone. Rare are the situations where indeed one State is individually confronted to another one. 17) Indeed, most current global problems have a truly universal dimension affecting every State, but to different degrees. Problems of this kind together with the conflicts arising therefrom like: –​ pollution of the seas; –​ protection of the world climate;

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–​ migration; –​ securing world food reserves; –​ ensuring provision of water, cannot be resolved by a small body of wise people. All those actually or potentially affected must be included, through appropriate representative mechanisms, in the processes geared to find and implement appropriate solutions. The international community is called upon to establish appropriate problem-​ solving institutions to address such problems of a global nature. Non-​compliance procedures, as they have emerged within numerous systems for the protection of the environment, constitute generally a more suitable type of mechanism inasmuch as, although resembling conciliation in many respects, they are founded on multilateral consensus-​seeking processes. Although the osce Court was designed more than a quarter of a century ago within a traditional intellectual framework that was largely dominated by the concept of the sovereign State, still outside the present-​day impact of globalization, the relevant rules of the Stockholm Convention are flexible enough to permit the progressive adaptation of the Court to the needs of our time. One may safely assume that at the appropriate time governments will become conscious of the usefulness of the services offered to them without any significant hindrance.

pa rt 8 Annexes: Speeches on the Occasion of the Transition in the Bureau, Vienna, 6 November 2019

∵

Words of Adieu Christian Tomuschat This is an important moment in the history of the Court of Conciliation and Arbitration within the osce. After a carefully organized election process, a new Presidency, called “Bureau” in the terminology of the Stockholm Convention, assumes the responsibilities for the discharge of the tasks entrusted to the Court. Obviously, the former members of the Presidency have to look back to the six years of their mandate, trying to establish a balance sheet of achievements and shortcomings. Pisillo Mazzeschi and me, are here today. When we met for the first time in September 2013, the Court was new to all of us. The preceding members of the Presidency had not established any contact with us beforehand. None of them was present at that time in Geneva, on fully legitimate grounds. The only link to the past was embodied in the person of Christa Allot, our Executive Secretary, who provided us with a full basket of useful information for the start. The election of the Vice-​President went ahead fairly fast, and then we had to sit down to reflect on a possible course of action. The situation was unambiguously clear. No case was pending before the Court, and no proceeding was in sight. Yet the new members were not in the mood to accept this situation of stalemate as an unchangeable fact of life determining the fate of the Court forever. They noted that from 1995 to 2013 President Badinter had engaged his best efforts with a view to gaining the confidence of the States parties to the Stockholm Convention for the Court as a new institution ideally suited to serve the common interest of the European States, unfortunately without success. Several conclusions were drawn from these findings. First of all, all members agreed that all of the Participating States of the osce should be reminded of the existence of the Court and of the invaluable services it could render. They felt that, on whatever grounds, the Court had nearly fallen into oblivion. There continued to exist a considerable number of divergences and tensions between European States that called for clarification or settlement. Europe was free from armed hostilities but it had not turned into a human paradise where just everything fell into place. Thus, it was decided to write an article for the osce magazine and to make a presentation to the Council of the osce, starting at the same time a dialogue with national delegations willing to engage in such an exercise. This was in fact done. The second question that arose was whether the Court should seek active contacts with the governments of the States parties to the Stockholm Convention in respect of actual disputes with their neighbours in order to describe for them the role the Court in its different articulations could possibly play. After a lengthy debate, such an active

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_013

276 Tomuschat role for the Court with regard to specific situations was rejected by a large majority. The members of the Presidency considered that the Court, a neutral and impartial body, should not imperil its authority by getting too close to any government. As a ground rule, courts do not hunt for cases, they sit and wait –​however frustrating that may be. Of course, this determination did not prevent the members of the Presidency to raise, from time to time as appropriate, specific contentious issues in strictly informal conversations with representatives of governments. Lastly, the members concluded that for the time being the best solution would be to pursue a number of academic studies, highlighting in particular conciliation as an activity that is less well-​known in the whole array of methods of international dispute settlement but could experience a renouveau under the aegis of the Court. In fact, a first colloquium was organized in May 2015 in Vienna, the materials of which were published in a volume under the care of Brill publishers in early 2017. A second colloquium took place in October 2018 in Geneva, and the publication process is close to its final stage, thanks to the endeavours of some members of the Court but also of other eminent jurists who have shared with us their experiences from other forums where all of a sudden, almost miraculously, conciliation took center stage. The book collecting the materials of the 2015 Colloquium was sent to all osce delegation in Vienna and additionally to their legal departments in the capitals. Let me emphasize that the colloquia were financed by additional financial resources, not from the regular budget of the Court. We are thankful in particular to Austria, Finland, Germany, Italy, Liechtenstein and Switzerland for that invaluable financial support. Furthermore, generous logistic support was given by the osce Secretariat in Vienna and by the Graduate Institute of International and Development Studies in Geneva. One may say that this is a meager result of six years of activity. Yes and no. At least we can say that we did not sit idle. The Court has gained a specific profile thanks to the activities which were detailed a moment ago. It has escaped from the shadows and the dust of diplomatic archives, being available as an instrument that can be put into operation at any moment. Obviously, however, governments make the necessary determinations. They should realize that conciliation or arbitration under the Stockholm Convention constitutes an option to their advantage and not a threat that should avoided at any cost. Let me, last not least, thank all the members of the Bureau who worked with me for six years. Riccardo Pisillo Mazzeschi is here as a visible element of continuity while the other principal members of the Bureau –​Päivi Hirvelä, Kimmo Kiljunen and Daniel Thürer –​were prevented by earlier urgent commitments to join us. I should also mention and thank the alternate members of the Bureau –​Oskaras Jusys, Vanda Lamm and Anna Wyrozumska –​, who also participated in our activities from time to time. We demonstrated, as it is usual in the osce, that cooperation is possible, practicable

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and fruitful in particular beyond national borders. I am sure that the new team will eagerly continue its efforts in the same spirit, and I hope and trust that they will soon be acknowledged as partners in the common quest for peace, security and cooperation in Europe. All my best wishes for their start into a future which does not yet reveal its secrets but which should be bright and successful. Steady efforts will generate substantial results. The Court is ready to confront any challenges.

Opening Remarks Emmanuel Decaux 1

President of the Court of Conciliation and Arbitration within the osce

I wish to thank President Christian Tomuschat very warmly for passing over the baton in this way. I am touched by the goodwill shown; in some ways, it’s symbolic of the new Europe of which we are now the custodians. I’d like to express the gratitude of all of us for what he has accomplished over the last six years, and I look forward to his presence in the new Bureau which has just been set up. It’s a great honour, and a great responsibility, to have been elected President of the osce Court of Conciliation and Arbitration, alongside distinguished diplomats and jurists, and following a tradition which now goes back over a quarter of a century … I thank the members of the Court for this mark of confidence and I wish to assure them of my personal commitment to fulfilling this unanticipated mission of whose difficulties, as well as of whose potential, I am aware. I will undertake the mission in the spirit of teamwork and in the search for consensus; the hallmarks of “the spirit of Helsinki”. I hope that strong working links will be established between all the members of the office, and I am delighted to note outgoing members in the new team as this testifies to the collective will for change within continuity which must be our guide. I also want to thank our registrar, who has always been on hand to ensure an effective transition. We also owe an immense debt of gratitude to the Court’s founding fathers, by which I mean President Robert Badinter and Professor Lucius Caflisch in particular, whose advice will always be very valuable to us. I intend to listen to all members of the Court —​conciliators and arbitrators —​who, by combining expertise and know-​how, represent a very useful pool of expertise for collective reflection on the ways and means of raising awareness of the Court. Because it must be recognized that, in spite of all our predecessors’ efforts, the Court is not just little known, it’s still unknown; it’s not just neglected, it seems to be forgotten! We must, twenty-​five years after the Stockholm Convention came into force on 5 December 1994, demonstrate coherence, moderation and determination and regain the initial inspiration. We need to take stock, ask ourselves what the Court of Conciliation and Arbitration represents in today’s Europe and, above all, ask ourselves what we can do actually do in concrete terms.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004433137_014

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279

What the Court Is

Rather than the major political and legal texts, practical arrangements and technical mechanisms which constitute the framework for our work, I would like to emphasize some simple convictions today, in order to underline the Court’s ‘strengths’. The system in place is very original, in that it combines a solid institutional framework, and thus a guarantee of legal certainty, with flexible methods, in the interests of quiet diplomacy.

3

A Legal Base

The first conviction is that the Court of Conciliation and Arbitration must be at the heart of the osce. It extends the now multi-​century European dream of arbitration and conciliation and is wholly in keeping with meetings about peaceful dispute settlements, notably the 1991 meeting in Valetta and the 1992 meeting in Geneva. However, these mechanisms are not an ‘empty shell’; they reflect the principles of international law and osce’s commitments. It’s the purpose of conciliation, as stated in Article 24 of the Treaty: ‘The Conciliation Commission’ shall assist the parties to the dispute in finding a settlement in accordance with international law and their csce commitments’. As for an arbitral tribunal, its role is defined in Article 30 as ‘to decide, in accordance with international law, such disputes as are submitted to it’, without excluding the ability, ‘to decide a case ex aequo et bono, if the parties to the dispute so agree’. The Court is thus based on strong principles: it’s firmly anchored in public international law, notably the respect for States’ sovereignty, while at the same time it’s inspired by osce standards, principles and commitments.

4

A Solid Framework

The Court is also a solid legal framework because it’s an institution both desired and created by the States parties. It has the enormous advantage, in comparison to improvisation and bargaining in a crisis in a sort of heedless, headlong rush, of being pre-​established, with a legal regime and ‘mode of operation’ established ‘coolly’ in advance. There is no risk of one party benefiting to the detriment of another. It can thus be operational immediately and in comparison to other ad hoc procedures, it guarantees speed, confidentiality, efficiency and, I would add, simplicity and likewise economy. Moreover, its institutional nature guarantees its pluralism, independence and impartiality. In this respect, we need to better highlight the wealth of experience and expertise, and the diversity of backgrounds and skills, which the members of the

280 Decaux Court, arbitrators and conciliators, together provide. It’s a very valuable, collective asset, just like our Europe, and it has exceptional potential for concrete, balanced, workable solutions.

5

A Flexible System

However, it seems to me that the Court’s main added value is the great flexibility of the mechanisms for implementing the Stockholm Convention. We are the ‘Swiss army knife’ of conciliation and arbitration! There’s no single way, no single operating mode, no mandatory menu. It’s worth remembering that there are multiple formulas: –​ Conciliation between States parties at the request of one or more States party to the Convention (Art. 20, paragraph 1). –​ Conciliation on the basis of an agreement between the parties to the dispute. Conciliation is thus open —​on a voluntary basis —​to all osce participating States (Art. 20, paragraph 2). –​ It’s useful for this conciliation phase to focus on the establishment of the facts, on fact-​ finding, thus acting as a commission of inquiry, as specified in the rules of procedure. –​ Arbitration may also be initiated by a special agreement between the parties to a dispute, and this option is open to all participating States (Art. 26, paragraph 1). –​ The arbitration may be compulsory arbitration for States parties who have made a unilateral declaration to this effect, subject to reciprocity (Art. 26, paragraph 2). –​ Lastly, it can be enlarged to a procedure ex aequo et bono, if the parties to the dispute so agree (Art. 30). This great flexibility also allows conciliation or arbitration to be offered to third States to the Convention, with all the guarantees of a fair procedure that the link between compulsory conciliation and compulsory arbitration offers the States parties, in conjunction with the osce Permanent Council (Art. 26, paragraph 3). Other advisory functions in matters of legal assistance have been mentioned in the past, notably by Robert Badinter, and all these doors are still open, in the interests of quiet diplomacy, ranging from crisis prevention to dispute resolution.

6

An Original Way

The last key idea which I’d like to stress is the Court’s originality. It should be understood as being complementary to other osce institutions, but also being separate from them, as the Convention’s Preamble expressly remind us when it mentions the major international and European courts. When faced with the stalemate of bilateral, often

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confrontational, negotiations over a legal dispute, the original formula of conciliation, whether spontaneous or ‘directed’, may be an honourable way out of a crisis for all interested parties. In some ways it constitutes a ‘middle way’, between the excessive haste of diplomacy on the edge of the chasm, and the inexorable slowness of jurisdictional litigation. It offers a healthy phase of de-​escalation in which all the protagonists save face. In this sense, conciliation or arbitration should be thought of as being complementary to, rather than in opposition to, other methods of peaceful settlement; as being opportunities, steps or way stations working towards shared responsibility. It should also be repeated that recourse to the Court’s mechanisms, whether unilaterally or on through compromise, would not be considered an ‘unfriendly’ act but rather as a mark of confidence in justice. In this respect, some important anniversaries in the next few years will remind us of our peoples’ commitment to a ‘Europe whole and free’. The osce Court of Conciliation and Arbitration must play a full part in the ongoing reflections on the significance of the 30th anniversary of the Paris Charter for a New Europe, signed by our heads of State and government on 21 November 1990. Similarly, the 30th anniversary of the adoption of the Stockholm Convention on 15 December 1992 must be an o­ ccasion not only for us all to take stock but, more especially, the occasion for a new impetus.

7

What We Can Do

Our generation’s collective challenge, having directly witnessed the rapid transformations in European and likewise in the world at the turn of the nineties, is to be equal to this new challenge with history: rather than utopia or giving up, we must rediscover the European virtue that the great British historian Theodor Zeldin calls ‘the art of disagreement’ in a more modest fashion. With brutality and unilateralism seemingly marking international relations as a result of ‘an ever more violent world’, it’s my deeply-​ held conviction that it’s essential for our continent’s States to be offered institutional spaces for negotiation, conciliation and arbitration. Paradoxically, the time of crises, confrontations and break-​ups that we are facing makes an institution anchored in law, such as the Court of Conciliation and Arbitration, more necessary than ever. In its unique position, the Court of Conciliation and Arbitration can promote ‘confidence-​building measures’ and strengthen the spirit of ‘good neighbourliness’ between States parties, and likewise between participating States, through its ‘good offices’ and in accordance with osce’s principles. The Court must be ready to face this existential challenge for Europe by being alert, responsive, and even proactive, at all times. We must be vigilant and attentive to the ‘slightest

282 Decaux signals’. Together, we must mobilize our efforts, drawing inspiration from William of Orange: ‘One need not hope in order to undertake, nor succeed in order to persevere’.

8

A Roadmap for Readiness

I believe in a strategy of small, cautious, reasoned yet dynamic steps. We will have to identify good practice through consultations, and I hope that these will be as open and inclusive as possible. However, right now, I’d like to highlight four areas of work. –​ It seems to me desirable for us to improve internal communication within the Court, in order to strengthen the sense of belonging of all our members, and to make better use of our entire institution’s potential. This will undoubtedly happen through more regular and more fluid exchanges between us thanks to new technology, in a way which is both simple yet secure. Each member of the Court should therefore feel like an ‘ambassador-​at-​large’, charged with making the Court known in the outside world, through articles, debates or conferences. –​ We must extend the scientific work carried out over the last few years on the initiative of Christian Tomuschat, with two significant symposia, that of Vienna in 2015 and that of Geneva in 2018. The publication of this new collective work, which is planned for 2020, will be an opportunity to raise awareness among specialists in the peaceful settlement of disputes, but I hope also among universities, diplomatic academies, think tanks and international relations research centres. A network of partners could be set up for case simulations illustrating the ‘added value’ of institutional conciliation. –​ At the same time, we must develop external communication, by diversifying our objectives. In addition to these high-​level publications, it would be useful to also address a wider audience with simple tools, such as a “practical kit”, an information brochure with all the relevant documents and useful information. A redesign of the website would also serve to highlight our history and our potential, with testimonials and messages, if only by presenting the members of the Court, conciliators and arbitrators more vividly. There should also be greater diversification as regards languages on the website, to reflect the cultural and geographical diversity of the osce area. –​ Finally, it would seem appropriate to strengthen the Court’s visibility among all European institutions and international jurisdictions, in particular ‘within the osce’. The option of ‘judicial diplomacy’ dates back, I believe, to President Jean-​Paul Costa. While fully complying with our obligation for independence, neutrality and impartiality, and without giving up any of our dignity —​of our gravitas, you might say —​and being aware of the limitations on our skills and of our responsibilities under the Stockholm Treaty, we should make our presence more felt in judicial

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discussions in order to overcome competition or indifference. In addition to the diplomats whom we have been asked meet with in Vienna, when we present the reports of the Court’s activities to the osce Permanent Council, should we not also raise the awareness of jurists and of legal advisers by making use of their meetings in Strasbourg on the occasion of the cahdi [Committee of Legal Advisers on Public International Law], or in conjunction with the International Law Commission sessions in Geneva? These are just a few of the avenues which we’ll be able to explore together at future Bureau meetings. Once again, I  thank you very warmly for your presence and your availability, and I hope that these six years will be fruitful in serving a cause which is greater than us, that of a Europe based on the rule of law. When passing on to me a cordial message of encouragement, President Robert Badinter reiterated that ‘The Court has housed the Sleeping Beauty since its creation’. We should none of us be content to just watch over her; we should make every effort to try and wake her up.

Index of Names Allee, Todd 116, 135 Allot, Christa 275 Anton, Donald 166 Badinter, Robert 7, 278, 280, 283 Bastid, Suzanne 12–​13, 15–​20 Baudenbacher, Carl 229, 231 Bedjaoui, Mohammed 79, 127–​28, 130, 137, 141, 144, 155 Boisson de Chazournes, Laurence 139, 148, 152 Bossuyt, Marc 47 Boyle, Alan 84, 87–​88, 90, 101 Brandtner, Barbara 228, 230 Brieskova, Lucia 240–​41 Brownlie, Ian 154 Bruce, Stewart 84, 87–​88 Bucher, Josef 32 Bungenberg, Marc 183–​84 Caflisch, Lucius 26–​28, 115, 121, 141, 143, 157, 159, 212, 214, 257, 278 Chayes, Abram 96 Chayes, Antonia Handler 96 Churchill, Robin 99 Collins, Richard 222–​23, 226 Crema, Luigi 184 Decaux, Emmanuel 39–​42, 44, 46–​50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 76 Deli, Maria Beatrice 184 Desierto, Diane 86 Donner, Ruth 113 Durrer, Robert 30 Eicher, Patrick T. 233, 235–​36 Ellyne, Erika 238 Eriksen, Erik O. 229 Fernandez, Julian 49 Fisher, Roger 25, 32–​33 Forlati, Serena 6, 181–​82, 184, 186, 188, 190, 192, 194, 196, 198, 200, 266 Gattini, Andrea 184 Gautron, Claude 130, 143

Habicht, Max 12–​14, 158 Harrison, James 84–​85, 87–​88, 101 Higgins, Rosalyn 122–​23, 186 Hindelang, Steffen 222, 243 Ingen-​Housz, Arnold 118 Jalloh, Charles 259 Kamga, Maurice K. 122, 151 Kamto, Maurice 125, 130, 146 Kenig, Maria Madgalena 122, 140–​42, 155 Klabbers, Jan 223, 230 Klein, Natalie 84, 90–​93, 121 Koh, Tommy 175 Kolb, Robert 183, 186–​87 Kopelman, Elizabeth 25 Lock, Tobias 241 Long, Ronan 233, 236 Lopes, Daniel 143, 145–​46 Mahiou, Ahmed 122 Malan, Jannie 117–​19 Mason, Simon A. 32 Merrills, John Graham 13, 113–​14, 126, 144, 146–​47, 154, 157–​59, 161, 190, 199, 257 Moses, Margaret L 184 Müller-​Wolf, Tim J. Aristide 220 Odermatt, Jed 226, 241 Palmisano, Giuseppe 190–​91, 213, 219 Parker, Matthew 237–​38 Peers, Steve 238, 240, 242, 247 Peters, Anne 114, 117, 154 Phan, Hao Duy 35, 94, 176 Probst, Raymond R. 29 Reif, Linda C. 116 Reinisch, August 183–​84, 190 Reinold, Theresa 259 Reisman, Michael 74–​75 Reitemeyer, Stefan 240–​42 Restworowski, Michel 2 Rolin, Henri 2, 12, 15, 17–​20

286  Salah, Mahmoud Mohamed 140–​41 Schmidt, Markus 47 Schneider, Patricia 220 Shaw, Malcom 183 Simma, Bruno 89, 97 Sloane, James 84 Sohn, Louis B. 262 Stephens, Tim 84–​85, 91 Sven M.G 113 Szell, Patrick 90 Thornberry, Patrick 43 Thürer, Daniel 3, 6, 25–​26, 28, 30, 32, 34, 113, 116, 157–​59, 190–​92, 210, 212, 214, 257 Tomka, Peter 72, 150 Tomuschat, Christian 158, 190–​92, 194, 209, 212, 214, 216–​17, 257–​58, 260, 262, 264, 266, 268, 270, 276 Umbricht, Victor H. 31, 120, 144, 147, 160 Ury, William 33

Index of Names Vajda, Christopher 225 Van Rossem, Jan Williem 225 Vellas, Pierre 131 Villani, Ugo 192, 207, 217 Viñuales, Jorge E. 4, 35, 156, 158, 160, 162, 164, 166, 168, 170, 172, 174, 176, 258, 264 Virally, Michel 82 Walder, Ernst 29 White, Nigel D. 222, 226 Wood, Michael 41 Wouters, Patricia 109 Wyrozumska, Anna 276 Yakpo, Emile 122 Yusuf, Abdulqawi Ahmed 5, 87, 124–​25 Zakane, Vincent 116, 120, 133, 147 Zang, Laurent 132

General Index Aarhus Convention 98, 101–​4, 106–​7, 109 compliance committee 106 Accountability 78, 80, 100, 152, 185 Achmea case 221–​22, 225, 243–​45, 247–​49, 252, 254 Actors 29, 82, 130, 145, 172, 206 Addis Ababa Guidelines 44, 128 Ad-​hoc agreements 13, 16 Adjudication  international 105, 185 inter-​state 185 Admissibility 51, 54, 56, 58, 60, 66, 75, 173, 176 Africa 2, 116–​22, 124–​26, 128, 130–​33, 135, 137, 139, 141–​48, 154–​55, 259, 265 African conciliators 139, 145 African diplomacy 120, 124, 142, 154–​55 African disputes 124, 130, 146 African model of conciliation 117–​18, 143, 145, 147 African human rights system 125, 141, 259 African Union 79, 115, 118, 128–​30, 132, 147, 155, 265 Agents 15, 18, 22, 68, 127, 186, 189, 195 Algerian-​Moroccan dispute 140 Algiers 13, 17, 136, 149 American Treaty on Pacific Settlement 2, 160–​61 Amicable solution 42, 44–​45, 49, 54, 60–​61, 69, 76–​79, 125, 134, 141, 162, 167, 171–​72, 195, 197–​98 Arbitral procedure 182, 184, 187 Arbitration 1, 3–​4, 6–​7, 14, 67, 88–​90, 92–​94, 139–​40, 185, 187, 189–​90, 196–​97, 207–​9, 257–​59, 280–​81 arbitrators 6, 27, 59, 104, 118, 137–​39, 151, 159, 186, 217, 246, 270, 278, 280, 282 compulsory 280 and conciliation 6, 138, 158, 192, 279 proceedings 138, 182, 187, 205, 235 Arbitrators  bilateral 189 developing world 123 Asia 16, 21, 116, 122, 128, 139 Authority 88, 96, 109, 143, 188, 214, 218, 266, 269, 276

delegated 99 domestic 194 Autonomy 211, 219, 221–​37, 239–​49, 252–​54 Basel Convention 98, 102 Belgium 12, 15–​21, 52, 246 Bilateralism 90, 97, 183–​84 Binding character of awards 6, 64–​65, 92–​93, 99–​101, 104–​6, 117, 150, 161–​62, 210–​11, 228, 230–​31, 246, 248–​52, 254, 263 Biological Diversity Convention 3, 93–​94, 177 Bolivia 4–​5, 14 Border area 1, 3–​4, 79, 85, 129, 150, 152, 164, 170, 175, 277 Cameroon/​Nigeria case 123, 140–​43, 148, 151–​53 Canada 1, 89, 206, 259 Climate Change Convention (Paris Agreement) 2–​3, 5, 35, 93, 95, 97, 105–​6, 161, 177 Community Law 124, 227–​32, 234–​37 Competence 28–​29, 43, 47, 51, 87, 128, 131, 168–​69, 173–​74, 195–​97, 211, 214, 234–​35, 248–​51, 253 Compliance 95–​98, 103, 105, 108–​9, 152–​53, 239–​40, 252–​53 bodies 100, 102–​3, 106–​9 non-​compliance 96–​97, 101–​4, 108 non-​compliance procedures 83, 95–​98, 100–​105, 107–​8, 266, 271 Comprehensive Economic and Trade Agreement (ceta) 245–​47, 251 tribunals 245–​47, 251–​52 Confidentiality 15, 17, 22, 28, 136, 138, 149, 154, 160, 170, 175–​76, 181–​82, 184–​87, 190–​93, 197–​200 absolute 199, 265, 268 obligation of 192, 194 Congo, Democratic Republic of 55, 75, 139, 142 Consensus 33, 100, 119, 125, 134, 140, 211, 278 Consent 15, 45, 48, 92, 126–​28, 144, 171, 189, 199, 210, 217 Consistency 70, 75, 78

288 General Index Consultations 18, 89, 91, 102, 139, 142, 170, 172, 189, 195–​96, 198, 208–​9, 217, 253, 282 Entry Convention for the Protection of All Persons against Enforced Disappearance 42, 50 Convention for the Suppression of the Financing of Terrorism 57, 65, 67–​68, 70–​71, 215 Convention on Biological Diversity 3, 93–​94, 177 Convention on the Elimination of All Forms of Racial Discrimination (cerd) 40, 42–​43, 46–​50, 54–​58, 61–​72, 74–​81, 265–​66 Convention on the Non-​Navigational Uses of International Watercourses 3, 91, 93 Cooperation 97, 107, 114, 124, 153, 158, 160, 164, 201, 205–​6, 215, 234, 236, 253, 276–​77 Costs 12, 31, 135, 196 Counsel 62, 68, 127, 175–​76, 189, 195 Court of Justice of the European Union 212, 221–​54, 259 Christmas bombshell 239 Crisis 57, 68, 130, 133–​34, 279, 281 Damages 119, 124, 149, 260 Declarations 5, 45, 47–​48, 51, 76, 94, 150, 167, 171, 174, 213, 215, 221, 235, 242 Democratic Republic of Congo 55, 75, 139, 142 Dialogue 5, 54, 77, 96, 114, 120, 145–​46, 154, 170, 268–​69, 275 Diplomacy 32, 44, 79, 99, 113, 117, 124, 153, 276, 279–​82 diplomatic negotiation 18, 147, 260 diplomats 12, 15, 31, 39–​40, 42, 264, 278, 282 preventive 133–​34 Diplomatic Protection 40, 78 Disclosure 175, 191, 197–​99 Discretion 127, 175, 184, 195, 199, 263, 267 Dispute settlement 1–​3, 26–​27, 29, 92, 95, 113–​17, 119–​20, 139, 148, 175–​77, 181, 183, 190, 200, 213 adversarial settlement procedures 41, 74–​75, 83, 90, 96–​97, 104, 106, 117, 148, 156, 158, 210 alternative 26, 32

judicial 118, 156, 172 political disputes 40, 82, 148 Domestic remedies, exhaustion of 44, 47, 53, 58, 61, 76, 78 Due diligence 89, 237 Effectiveness 68, 108, 132, 144, 153, 160, 191, 211, 216, 237, 241, 252 Egypt-​Israel border 3–​4, 57, 59, 79, 123, 136–​37, 190, 265 Camp David Agreements 137 Energy Charter Treaty 222 Environment 28, 86–​87, 97, 106, 172, 205, 214, 234, 236–​37, 258, 265–​66, 268, 271 Environmental disputes 83–​85, 87–​88, 90, 110 Environmental law, international 83–​90, 92, 96–​98, 233–​35 Equity 82, 155, 214 Espoo Convention on Environmental Impact Assessment 91, 106–​7, 109–​10 Europe 2, 11, 15, 21, 111, 205, 226, 228, 237, 259–​60, 262, 275, 277–​78, 280–​83 Council of Europe 260 European Coal and Steel Community 224, 227, 259 European Economic Area, Agreement  226–​32, 238, 247–​48 European Economic Area, Court 227–​28, 231 European Free Trade Association, Court 227, 229, 231–​32 European human rights system 40, 55–​57, 61, 63, 77–​78, 81, 84–​85, 183, 224, 226, 239–​42, 248, 250, 260, 262–​63 European Union 221, 223–​24, 227, 230, 233, 237 Court of Justice of the European Union 206, 212, 221–​54, 259–​261, 280 tfeu 230, 232–​38, 240–​43, 245, 249–​53 Fact-​finding 44, 92–​94, 109, 115, 280 Flexibility 65, 77, 90–​91, 110, 120, 127–​28, 154, 174, 176, 200, 216, 219, 263 Formalism 65, 81, 130, 155 Forum shopping 68, 78, 82 Fragmentation 41, 236 France 12, 16–​17, 19–​21, 42, 46, 50, 91, 123, 132, 135–​36, 158, 206 Frontier Dispute case 79, 129, 142, 149–​50

289

General Index Gabon 128, 140, 142 Genocide 41, 43, 80, 182–​83 Georgia/​Russia cases 55–​57, 61–​63, 70, 75–​76, 78 Germany ix, 14, 206, 213, 260, 276 Ghana 128, 140, 142 Good faith 31, 54, 73, 78–​79, 82, 91, 95, 105, 139, 161, 166, 173–​74, 176–​77, 194 Good offices 41–​42, 44–​45, 47–​51, 53–​54, 56, 59–​60, 70, 77, 79–​80, 82, 91–​94, 133–​34, 139, 141–​42, 208–​9 Greece 13, 16, 19, 260 Guatemala 4, 264 Guinea 75, 128, 130, 140, 142 Hague Convention for the Pacific Settlement of International Disputes 113, 157 Hague Peace Conferences 157 Heads of state 129–​30, 132, 136, 140–​44, 146, 205–​6, 281 Hearings 18, 59, 61, 173–​74, 184–​85, 187–​89, 195, 243 oral 188–​89 publicity of 186, 193, 195, 198 Helsinki Final Act 208, 215 Homogeneity 229, 231 Human rights 39, 41, 47–​48, 51–​52, 61, 78, 82, 85, 103, 141, 215, 242, 260, 262, 265 protection 39, 47, 205–​6, 240 treaties of 40, 42, 77, 79–​80, 98 icsid 123, 193 Conciliation Rules 191, 193 Impartiality 4, 22, 44, 78, 80, 160, 279, 282 Independence 14, 17, 22, 44–​45, 80, 109, 116, 138, 144, 160, 163, 165, 229, 279, 282 Individual complaints 46, 57, 77 Indonesia 163–​65 Inquiry, commissions of 1, 67, 91–​92, 94, 106–​7, 109–​10, 113–​15, 127, 135–​36, 140, 157, 208, 280 International community 89, 206, 222, 226, 258, 271 International Court of Justice 4–​5, 41–​43, 46–​47, 55–​58, 61, 69–​70, 75–​79, 83–​90, 94, 121–​24, 147–​54, 166–​67, 182, 221–​23, 259–​60 International courts and tribunals 83, 88, 207, 221, 230, 232

International Covenant on Civil and Political Rights 46, 262 International Covenant on Economic, Social and Cultural rights 52, 54 International law, general 12–​14, 73, 85–​86, 90, 221, 225, 260 International Law Commission 41, 147, 223 model rules on arbitral procedure  160–​61, 182, 187, 189 International organizations 3, 116, 119, 131, 142–​43, 184, 187, 191–​92, 206, 222–​23, 226, 270 International relations 33, 96, 135, 258, 281–​82 International Tribunal for the Law of the Sea 83–​84, 88, 122, 183, 185–​87 Interpretation 3, 14, 16, 20, 40–​42, 46, 51, 60, 63–​65, 70–​71, 192–​93, 232, 235–​37, 246, 251 homogenous 228, 231, 247 Intervention 90, 124, 126, 134, 140, 143, 146, 151, 189, 209, 218–​19 Investigation, international 47, 53, 55, 79 Investment arbitration 123, 181–​82, 184–​85, 193, 200, 221, 245, 248, 258 Italy ix, 13, 17, 78, 183, 193–​94, 206, 221, 260, 276 Jan Mayen Case 3, 115–​16 Judicial Review 242, 244 Jurisdiction 47, 58, 60, 62–​63, 65, 68, 77–​78, 126–​27, 129, 131–​32, 211–​12, 221, 242, 250, 252 compulsory 148, 167, 238 domestic 215 exclusive jurisdiction 211, 221, 230–​31, 236, 241–​42, 244, 247, 249–​50, 253 prima facie 55, 71–​72 Jurisprudence 231–​32, 244 Kasikili/​Sedudu case 149 Kenya 31, 142, 144 Kyoto Protocol 95, 98, 100–​106 Latin America 122, 128, 157 League of Nations 2, 14, 158 Liberia 142 Libya 142–​43, 148–​49 Liechtenstein ix Lithuania 12

290 General Index Malaysian Airlines Flight MH17 57, 65, 67 Mali 79, 128, 142, 149–​50 Manila Declaration 115 Maritime boundary disputes 4, 94, 148, 162–​67, 171–​72, 174–​77, 196 Mauritius Convention 182, 184–​85 Mediation 1–​2, 27, 92, 114, 116, 119, 124–​27, 129–​30, 133–​34, 139, 141–​42, 147, 150, 173, 175–​76 mediators 27, 35, 137, 143, 145, 175, 218 Morocco 16–​18, 123, 129, 135–​36 mox nuclear plant case 83–​84, 233–​37, 240–​41, 243, 245–​46, 249–​50, 252–​54 Mutual trust 239–​40, 245, 249, 253 Namibia 149, 183 Negotiations, direct 19, 47, 49, 65, 70, 124, 209 Neutrality 29, 282 ngo s 29, 108, 187 Nicaragua 73, 85–​86 Niger 142 Nigeria 121, 123, 128, 142, 151–​53 Non-​State Actors 189, 200 Northern Cameroon case 121–​22 Office of the United Nations High Commissioner for Human Rights (ohchr) 39, 44, 59, 81 Organization for Security and Co-​operation in Europe 6, 26–​28, 158–​59, 194, 208, 210, 215, 217, 257, 263 commitments 214–​16, 222, 249, 261, 279 conciliation commissions 194, 220, 249, 253–​54 Court of Conciliation and Arbitration ix, 3, 7, 116, 182–​83, 190, 192, 194–​95, 200–​201, 205–​7, 212–​13, 220–​22, 248–​49, 251–​53, 260–​61, 268 Stockholm Convention 6, 27–​29, 93, 95, 159, 201, 205–​8, 210–​14, 216–​20, 249–​54, 257–​61, 263–​64, 266–​71, 275–​76, 280–​82 Organization of African Unity 115–​16, 118–​19, 124, 126, 128–​33, 136–​37, 140–​42, 144, 146, 149–​50, 265 Assembly of Heads of States and Governments 126, 129, 132, 141–​42, 146 Charter 126, 129

Commission of Mediation, Conciliation and Arbitration (cmca) 126, 128–​30, 142, 146 Organization of American States 264 Organization of Eastern Caribbean States 115 Pacta sunt servanda 96 Paris Agreement (Climate Change Convention) 2–​3, 5, 35, 93, 95, 97, 105–​6, 161, 177 Palestine 57, 59, 265 Permanent Court of Arbitration 115, 157–​58, 169, 171, 195, 212 Precaution 83, 88–​89 Preliminary rulings 58, 60, 77, 162, 176, 230–​32, 237–​38, 244, 252 Principles  autonomy 211, 219, 221–​37, 239–​49, 252–​54 effectiveness 68, 108, 132, 144, 153, 160, 191, 211, 216, 237, 241, 252 estoppel 79 general democratic 126, 216, 243, 266 impartiality 4, 22, 44, 78, 80, 160, 279, 282 independence 14, 17, 22, 44–​45, 80, 109, 116, 138, 144, 160, 163, 165, 229, 279, 282 mutual trust 239–​40, 245, 249, 253 pacta sunt servanda 96 precaution 83, 88–​89 sincere cooperation 236–​37, 249, 252 transparency 59, 104, 109, 181–​88, 190, 194–​95, 197–​201, 266, 268 Private actors 27, 158, 168, 198 Procedure 4, 6, 41, 44, 46, 64, 67, 80, 83, 92, 97–​100, 209, 218, 221, 280 compulsory 161–​62, 167 oral 44 parallel 61, 72, 74, 106 procedural preconditions 65, 68–​69 Provisional measures 55, 61, 63, 66, 71–​72, 166 Public international law 136, 279 Pulp Mills case 86 Punishment 41, 43, 49, 96, 118, 183 Qatar 43, 57–​61, 70–​75, 265 Racial discrimination 40, 57, 60, 69–​70, 74, 266 Res judicata 77, 97, 104–​5, 152

291

General Index Romania 16, 19, 21, 106 Russia 47, 50, 55, 57, 61–​63, 65–​67, 69, 76, 80, 157, 259 Rwanda 55, 129 Safeguard clauses 176, 182, 207, 211–​13, 218 Sanctions 96, 103, 135, 263 Saudi Arabia 57–​60, 70, 265 Security 133–​34, 154, 166, 182, 205, 208, 215, 218, 239, 247, 277 Senegal 119, 121, 128, 130, 142 Sincere cooperation 236–​37, 249, 252 South Africa 123 South China Sea case 89, 188, 258 South West Africa cases 121–​22, 183 Sovereignty 121, 168, 223, 229, 263, 269 Spain 91, 248 Stockholm Convention 6, 27–​29, 93, 95, 159, 201, 205–​8, 210–​14, 216–​20, 249–​54, 257–​61, 263–​64, 266–​71, 275–​76, 280–​82 Sweden 1, 158, 206 Switzerland, ix 12, 15–​16, 22, 26, 29–​32, 144, 158, 276 Taba boundary delimitation 3, 79, 190 Tanzania 31, 128–​29, 141, 144 Territorial Dispute (Libya/​Chad) 121, 128, 142–​43, 149 Territory 14, 136, 146, 151–​52, 163, 205, 209 Third parties 15, 27, 35, 92–​94, 120, 123, 175, 184–​86, 193, 198, 207, 238, 265, 269, 280 participation 67, 69, 78, 183, 187, 189 Timor Leste and Australia cases 163–​64, 166, 168–​69, 176, 181, 195, 200, 268 Trade Law, international 93, 116, 182, 189, 228, 245, 247 Transparency 59, 104, 109, 181–​88, 190, 194–​95, 197–​201, 266, 268

Travaux préparatoires 63, 70, 77 Treaty of Conciliation (Chile-​Sweden) 1, 158 Uganda 31, 129, 142, 144 Ukraine 47, 50, 57, 66–​69, 71, 75, 92, 106–​7, 182, 188 uncitral 191, 243 arbitration rules 243 conciliation rules 191 transparency rules 182, 184–​85, 196 United Arab Emirates 57–​61, 70–​73, 75, 265 United Kingdom 1, 16, 157 United Nations 1, 31, 137, 139–​40, 145, 163, 192, 220, 222, 262, 267–​68 General Assembly 39, 42, 48, 52, 80, 91, 139, 151, 158 High Commissioner for Human Rights  39, 59, 80 Model Rules for the Conciliation of Disputes between States 54, 59, 115, 151, 191 United Nations Convention on the Law of the Sea 3–​4, 35, 88, 156, 161–​64, 167–​69, 172–​76, 181–​82, 187, 192, 195, 199–​200, 234–​36, 240–​41, 250 United Nations Framework Climate Change Convention 93 United States of America 47, 50, 89, 163, 206, 258 Vienna Convention on the Law of Treaties 3, 42, 69, 93, 96, 99, 187, 192, 228 Watercourses Convention 94, 109 World Conference on Human Rights 51 World Trade Organization 84, 123 Zaire 129, 140, 142 Zambia 128, 142