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ВЕСТНИК
Казанского юридического института МВД России
№ 1(35) 2019
УДК 341.621
CONCILIATION AS A MEANS FOR THE SETTLEMENT OF INTERNATIONAL DISPUTES
ПРИМИРЕНИЕ КАК СПОСОБ РЕШЕНИЯ международных СПОРОВ
Б. Кривокапич
DOI: 10.24420/KUI.2019.24.12.002
Введение: автор в первой части статьи дает краткий обзор общих характеристик примирения как своего рода дипломатического (политического) пути мирного урегулирования международных споров.
Материалы и методы: во время работы над статьей были использованы эмпирические (изучение, анализ Общего акта о мирном разрешении международных споров 1949 года, сравнение), теоретические методы научного познания.
Результаты исследования: автор указывает на плюсы и минусы дипломатических средств разрешения международных споров, которые, помимо прочего, также относятся к примирению. Вторая часть статьи посвящена конкретным характеристикам примирения. Внимание уделяется определению примирения, отмечается связь (сходства и различия) с наиболее сходными методами мирного разрешения международных споров (расследование, посредничество, арбитраж), а также дается обзор наиболее важных моментов.
Обсуждение и заключения: автор приходит к выводу, что примирительная процедура, по-видимому, продолжает сохранять свое место и значение, поскольку в некоторых случаях она является наиболее подходящим средством либо сама по себе, либо при использовании одновременно с другими средствами. Это особенно касается актуальных вопросов, таких как безопасность, разоружение, совместные предприятия, защита окружающей среды, делимитация, споры о водотоках, космическая деятельность и тому подобное.
Ключевые слова: примирение, международные споры, мирное урегулирование, международное публичное право, дипломатические средства
Для цитирования: Кривокапич Б. Примирение как способ решения международных споров // Вестник Казанского юридического института МВД России. 2019. Т. 10, № 1. С. 14-19. DOI: 10.24420/ KUI.2019.24.12.002
Introduction: the first part of the work gives a brief overview of the general characteristics of conciliation as a sort of diplomatic (political) way of peaceful settlement of international disputes.
Materials and Methods: while working on the article, empirical (study, analysis of the General Act on the Peaceful Settlement of International Disputes of 1949, comparison), theoretical methods of scientific knowledge were used.
Results: the author points to the pros and cons of diplomatic means of resolving international disputes, which, among other things, also apply to reconciliation. The second part of the article is devoted to the specific characteristics of reconciliation. Attention is paid to the definition of conciliation, the connection (similarities and differences) with the most similar methods of peaceful settlement of international disputes (investigation, mediation, arbitration), and also provides an overview of the most important points.
Discussion and Conclusions: the author concludes that the conciliation seems to continue retaining its place and significance, as the most suitable means in some cases either by itself, or when used at the same time with other means. This is especially so for sensitive issues such as those relating to security, disarmament, joint ventures, environmental protection, delimitation, watercourse disputes, outer space activities, and the like. Therefore, we should not be surprised if in the future this institution experiences another youth.
Key words: reconciliation, international disputes, peaceful settlement, international public law, diplomatic means
For citation: Krivokapich B. Conciliation as a means for the settlement of international disputes // Bulletin of the Kazan Law Institute of the Ministry of Internal Affairs of Russia. 2019. V. 10, N 1. P. 14-19. DOI: 10.24420/KUI.2019.24.12.002
Although different classifications of resolving international disputes are possible (depending not only on the personal attitude of their author, but also on the level in the development of international law)1 and although inspection of this issue points out to all of its complexity, the simplest division of all means for peaceful resolving international disputes is on diplomatic (political)2 and judicial (legal)3 means.
Among diplomatic (political) means is conciliation, which is the topic of this paper.
1. General Characteristics of Conciliation as a Diplomatic Tool for Resolving International Disputes
Since it represents only one type of diplomatic (political) means for peaceful resolution of international disputes, conciliation has certain characteristics that are consistent with all such means4.
It runs through diplomatic channels, or through political representatives of states or international organizations. The above-mentioned subjects seek to reconcile the interests of the parties to the dispute. This means they are not necessarily always dedicated to satisfy the full requirements of international law, justice nor fairness, as international court would have tried it, for example.
In addition, unlike the judiciary5, the decisions that are made by this way are not themselves legally binding, except when they enter into an agreement between the parties to the dispute.
Like any other phenomenon, diplomatic means of resolving international disputes, and thus conciliation, have certain advantages, but also certain disadvantages.
The advantage is reflected in the fact that they are flexible and adaptable to various types of disputes and situations. This allows the solution to be found in some sort of compromise, where there are no winning side or defeated party, which is a kind of guarantee that the solution will actually be achieved and respected in practice. One of the advantages is that, as long as they are not accepted by both parties to the dispute, all de-
cisions, recommendations and advice have an optional character. Finally, in this particularly sensitive situation, a solution to the dispute and satisfaction of justice can be achieved, while at the same time avoiding the responsible party being labeled as a guilty party.
High flexibility is at the same time the biggest disadvantage of these mechanisms. They depend on the willingness of the disputing parties to cooperate, implicating the right of each of them to, whenever deemed necessary, waive the already initiated steps. Except in exceptional cases, when their results are reflected in a legally binding document (primarily international treaty), these methods end with acts that have an optional character - various proposals, reports, recommendations, and the like. In practice, this can lead to excessive prolongation and aggravation of the dispute resolution, to the creation of irreparable damage, and to the escalation of tension in relations and eventual growth of the dispute into conflict.
Although they are clearly distinguished in principle, in practice diplomatic and judicial methods of peaceful settlement of international disputes are not usually opposed to each other. On the contrary, they combine, especially in particularly complex situations, in an effort to exploit that asset that can give the best result at a given stage of dispute resolution.
After these introductory remarks, it is time to deal with the specifics of conciliation, as one of the diplomatic ways of peacefully resolving international disputes.
2. Specificity of Conciliation
1. Concept. Conciliation is a method of peaceful settlement of international disputes consisting in the compromise bringing of a dispute before the elected body (a commission, possibly an individual) authorized to examine the matter comprehensively both on the facts and on the legal side, and on the basis of that knowledge, acting objectively and impartial, suggest a satisfactory solution6.
In order to be able to accomplish the role entrusted to him, the conciliator is authorized to receive informa-
1 For example, Grotius in De Jure Belli ac Pacis (1625) lists only three means for peaceful settlement of disputes - direct diplomatic negotiations, arbitration and draw. In fact, he mentions another way - an individual duel, but he notices himself that it is similar to the draw. Grotius Hugo, 2001, VII-X, 235-236.
2 They are called so because of the participation of diplomatic and, possibly, other parties to the dispute, or the involvement of neutral persons, bodies, states or international organizations. The parties in the dispute try to solve it by themselves (for many reasons, the best solution) and, if that is not possible, turn to external out-of-court authority by inviting it to help to establish contact between them, in identifying controversial facts or in finding the final, for both sides of an acceptable solution.
3 On international disputes and ways of solving international disputes: Rhyne, 1971, 181-301; Handbook on the Peaceful Settlement..., 1992; Shaw, 2003, 914-1012; Lauterpacht, 2004, 3-407; Merrills, 2005; Collins, Packer, 2006; Zartman, 2007; Spain, 2010, 1-55; Berco-vitch, Jackson, 2012; Krivokapic, 2017, 250-447.
4 These include direct diplomatic negotiations, good services, mediation, conciliation and inquiry (fact-finding) commissions. In our time, as a separate political (extra-judicial) mechanism, one can distinguish the resolution of international disputes before the United Nations and other international organizations.
5 Judicial (legal) proceedings shall be brought before a legal authority - by an international court or international arbitration, which shall decide on legally relevant rights and obligations on the basis of the requests and evidence presented. The dispute is resolved in a strictly formal, well-known legal procedure that ensures equality of litigants and a hearing before a court. The decision is based on the norms of international law and for disputing parties it is legally binding. Disadvantage is the fact that the court proceedings can in principle be initiated only on the basis of the consent of the parties to the dispute. In addition, the court procedure, precisely because of its publicity and formalities, is not suitable when the relations between the parties to the dispute are very bad, when the issue is of vital importance to at least one party, when there are no clear legal rules and the like.
6 Jackson, 1958, 508-543; Degan, 1980, 261-286; Reif, 1990, 578-638; Handbook on the Peaceful Settlement between States, 1992, 45-55; Merrills, 2005, 64-90; Susani, 2010, 1099-1105; Krivokapic, 2017, 329-333.
ВЕСТНИК
Казанского юридического института МВД России
№ 1(35) 2019
tion from the parties to the dispute, and, if necessary, conduct an investigation to determine the facts, and may also address legal issues. His work ends with a report formulating a solution that is offered to the parties to the dispute. It is advisory in nature and does not bind the parties to the dispute.
The Conciliation Commission (in practice, the role of a conciliator is most often entrusted to a collective body) can be formed for a given case (ad hoc) but can also be arranged in advance.
2. Relations with other ways of peaceful resolution of disputes. This method of peaceful settlement of disputes has developed in the XX century from the investigation (work of the investigative i.e. fact-finding commissions) and in some ways it is somewhere between the investigation (establishing the actual factual situation)1 and the arbitration (the resolution of the dispute by the decision of the arbitrator)2. Therefore, there are some similarities with these mechanisms, but also clear differences.
In particular, when it believes it is necessary, the conciliation commission will also investigate, as the investigation commission does. It, however, does not stop there, but can go further in terms of dealing with legal issues. In addition, at the end in its final report it does not only state facts established, but on the basis of all the knowledge and analysis proposes the final solution of the dispute.
The fact that an independent body proposes a definitive solution somewhat remarks on arbitration, but the differences are great. The most important thing is that by conciliation all, and not just legal disputes can be settled. Another important difference is the fact that the conciliation commission is not a court, and that, contrary to the verdict of arbitration, its decision is not legally binding on the parties to the dispute. There are other differences, but they are of minor importance here.
Certain resemblance with mediation can be observed3. This is because the third entity seeks to offer a solution that would satisfy both sides in the dispute, and thus settle the dispute, but which is not legally binding. On the other hand, compared to the mediator, the role of conciliator is far stronger. As a matter of fact, unlike the mediator who is trying to help the parties to the dispute to settle it by their own or with his participation, the conciliator, after acquaintance with the case and, if necessary, an independent investigation, offers final solution that the parties can accept or reject.
Yet, essentially the conciliator is only a sort of mediator whose basic characteristics are reflected in the following: 1) He never offers himself, but must be invited;
2) His role is far more active than the role of an ordinary mediator (there is much more space for his own action);
3) In principle, he does not offer various «working», «small» etc. suggestions and advices in order to approach the parties in a dispute step by step, but come up before them with a final solution; 4) Unlike mediators, whose mandate is not limited in time, the conciliator usually has a fixed deadline (usually 6 months) in which he should come out with his final proposal.
3. Practice. The first cases of conciliation are related to contracts which since 1913 United States have begun concluding, with a number of other countries, and which envisaged the formation of a five-member commission for conciliation4. This practice was followed by some other states, as evidenced by the agreements between Chile and Sweden (1920), Germany and Switzerland (1921), etc.
After the League of Nations Assembly recommended in 1922 to the states to entrust their disputes to conciliation commissions, this solution became popular, and by 1940 a large number of bilateral and multilateral agreements were concluded, which envisaged conciliation as a way of peaceful settlement of disputes.
Of particular significance was the year 1925, in which several important agreements were concluded that defined the conciliation and its application more closely.
First, the treaty between France and Switzerland specified the functions of the permanent conciliation commission, by establishing that its task was to investigate the disputed issue and to collect all necessary information through investigation and in other ways, in order to offer a solution to the parties to the dispute. Unless the disputing parties agreed otherwise, the Commission was obliged to complete the work within 6 months. Its work was to be ended with a report stating that the parties had reached a solution and what were the conditions of it or, in the event of a failure, to concluding that the solution was not reached.
The same year, Germany concluded four bilateral conventions (with Belgium, Czechoslovakia, France and Poland) in Locarno which stipulated that all disputes between contractors that could not be resolved by friendly, regular diplomatic methods would be sub-
1 Handbook on the Peaceful Settlement between States, 1992, 24-33; Merrills, 2005, 45-63; Bergsmo, 2013; Hellestveit, 2015, 368-394; Krivokapic, 2017, 304-316.
2 Sohn, 1963; Gray, Kingsbury, 1992, 97-134; Rubino-Sammartano, 2001; Merrills, 2005, 91-126; Krivokapic, 2017, 421-440.
3 It consists in the fact that an entity that is not involved in the dispute (mediator, third party) takes certain steps (proposals, advice, suggestions, remarks, persuasion, transmission of requests, answers to the other side, negotiation, etc.) in order to achieve reaching an amicable solution, and thus works diligently to bring the parties to the dispute closer and enable the launching and successful course of direct negotiations between them, i.e. reaching a final agreement on the settlement of the dispute. Princen, (1992); Bercovitch, 1996; Greenberg, Barton, McGuinness, 2000; Lanz, Wahlisch, Kirchhoff, Siegfried, 2008; Bercovitch, 2011; Greig, Diehl, 2012; KpHBOKannh, 2015, 33-49.
4 The proposal to conclude such agreements came from US Secretary of State Bryan (William Jennings Bryan), for which these agreements were also known as "Brian's Treaties".
mitted to arbitration or the Permanent International Court of Justice, but prior to addressing the arbitration or the Court, the dispute may, by agreement of the Contracting Parties, be entrusted to a five-member Standing Commission for Conciliation1. The powers of the Commission were defined in an almost identical manner as in the aforementioned French-Swiss agreement. After getting to know the dispute and collecting, through investigation or otherwise, all the necessary information, the Commission was authorized to informing the parties in the dispute about the conditions of its solution which it considered to be the most appropriate, and to set them a time limit to declare their attitude on it. Unless the parties agreed otherwise, the work of the Commission was to be completed within 6 months. In her report, it could, as the case may be, state that the parties to the dispute have reached an agreement and, if necessary, what are the terms of the agreement, or that it was not possible to reach an agreement.
These solutions, which were almost identical to those established by the Franco-Swiss treaty, were then incorporated into the General Act for the Pacific Settlement of International Disputes (1928), adopted within the League of Nations, and then taken over in the Revised General Act for the Pacific Settlement of International Disputes, adopted by UN General Assembly Resolution 269 (III) in 19492.
Briefly, the Revised General Act for the Pacific Settlement of International Disputes provides for (Articles 1-16) that of every kind between two or more members to the Act, which it has not been possible to settle by diplomacy, shall be submitted to the procedure of conciliation, by a permanent or special conciliation commission, constituted by the parties to the dispute. On a request to that effect being made by one of the Contracting Parties to another party, a permanent conciliation commission shall be constituted within a period of six months. Unless the parties concerned agree otherwise, the Conciliation Commission shall be composed of 5 members. The parties shall each nominate 1 commissioner, who may be chosen from among their respective nationals. The three other commissioners shall be appointed by agreement from
among the nationals of third Powers. These three commissioners must be of different nationalities and must not be habitually resident in the territory nor be in the service of the parties. The parties shall appoint the President of the Commission from among them. The commissioners shall be appointed for three years and shall be re-eligible. The commissioners appointed jointly may be replaced during the course of their mandate by agreement between the parties. Either party may, however, at any time replace a commissioner whom it has appointed. Even if replaced, the commissioners shall continue to exercise their functions until the termination of the work in hand.
If, when a dispute arises, no permanent conciliation commission appointed by the parties is in existence, a special commission shall be constituted for the examination of the dispute within a period of three months from the date at which a request to that effect is made by one of the parties to the other party. The necessary appointments shall be made in the manner laid down for the permanent conciliation commission, unless the parties decide otherwise. If the appointment of the commissioners to be designated jointly is not made within the periods provided for in articles 3 and 53, the making of the necessary appointments shall be entrusted to a third Power, chosen by agreement between the parties, or on request of the parties, to the President of the General Assembly, or, if the latter is not in session, to the last President. The work of the commission is confidential (it shall not be conducted in public) unless a decision to that effect is taken by the Commission with the consent of the par-ties4. In Art. 15. the Commission's functions are defined in essentially the same way as in the 1925 treaties.
Practically the same solutions were repeated in Art. 4-18 of the European Convention for the Peaceful Settlement of Disputes (1957)5. A little different, but essentially very similarly such solution was formulated by some other regional agreements, such as, for example, in Art. XV-XXX of the American Treaty on Pacific Settlement (1948)6.
Institution of conciliation is embedded in a number of modern international agreements7. Since their very inception, the United Nations has had, in various ways,
1 The Commission was to be composed of 5 members - one representative of each contracting party and 3 members from third countries, which by their agreement were chosen by contracting parties. Members of the Commission were to be elected for 3 years. See Art. 1-2, 4 of the Arbitration Conventions between Germany and France. Arbitration Convention between Germany and France, 16 October 1925, in: Grenville, Wasserstein, 2013, 147-148.
2 Revised General Act for the Pacific Settlement of International Disputes (1949), United Nations 1949, treaties.un.org/doc/Trea-ties/1950/09/19500920 10-17PM/ChJIJp.pdf 24.1.2019.
3 Meaning 6 months from the request of one Contracting Party to another to constitute permanent or special conciliation commission (Art. 3) or 3 months from the request of one party to another to constitute special conciliation commission when the dispute arises and no permanent conciliation commission is appointed (Art. 5).
4 Revised General Act for the Pacific Settlement of International Disputes (Adopted by the General Assembly at its 199th plenary meeting, on 28 April 1949). Articles 2-6. URL: https://treaties.un.org/doc/Treaties/1950/09/19500920%2010-17%20PM/Ch_II_1p.pdf
5 European Convention for the Peaceful Settlement of Disputes, Strasbourg 29 IV 1957, Council of Europe, https://rm.coe.int/1680064586, 24.1.2019.
6 American Treaty on Pacific Settlement ("Pact of Bogota"), OAS, http://www.oas.org/en/sla/dil/inter_american_treaties_A-42_pacif-ic_settlement_pact_bogota.asp, 24.1.2019.
7 Among other things, it is envisaged as one of the ways of peaceful settlement of international disputes by the UN Charter itself (Article 33/1) and a series of universal international agreements, among which are some by which the related matters are codified at the universal level.
ВЕСТНИК
Казанского юридического института МВД России
№ 1(35) 2019
encouraged the conciliation commissions as a way of resolving disputes1. On a regional level, in our time conciliation, in combination with mediation, is particularly evident in the practice of the Organization for Security and Cooperation in Europe (OSCE), in which the Convention on Conciliation and Arbitration within the OSCE (1992) was adopted2.
Nevertheless, the cases of successful ending of the dispute by mediation in practice are rare. Namely, although the conciliation has been envisaged in more than 200 various multilateral and bilateral agreements, and a large number of permanent conciliation commissions have been established, less than 20 cases have been attempted to resolve the dispute by that way3. There are a few reasons for that.
First of all, in order for conciliation to be tried at all, it is necessary that the parties to the dispute agree on this. In other words, if there is no such agreement, there will be no conciliation4. On the other hand, since the solution offered by the conciliator is not legally binding for the parties to the dispute, this already at the beginning indicates the danger that an attempt at conciliation may in some cases mean unnecessary wasting of time and resources, while at the same time risking meantime the dispute gets out of control.
Therefore, if it is a matter of leaving the proposal of a dispute resolution to an impartial body, it is better to see a mediator in that role (who is anyways already in contact with both parties and familiar with all elements of the dispute, and who certainly can do among matters propose a final resolution of the dispute) or an arbitration (whose decision has a legally binding force). In reality, there are no principled reasons for entrusting a body (conciliating commission) just to propose a solution without taking part in previous actions (as the mediator does) or with no authority to make a final binding decision (as the arbitration is empowered).
For the sake of the truth, conciliation has certain advantages, precisely because it essentially appears as
a sort of medium solution between mediation and arbitration. By the fact that the solution proposed by the commission is binding only if it is accepted by both sides it is achieved that nobody feels to be at a disadvantage. On the contrary, it creates the impression that it is a joint solution, a sort of reconciliation (hence the name). In this respect, it is noted that the conciliation is most appropriate for legal disputes of minor importance and where the parties to the dispute want a fair solution and at the same time want to retain one kind of control over the decision, that is, to avoid that it (as in the case of arbitration) surprise them5.
All this leads us to the conclusion that although in pure form it rarely occurs in practice, the concessions will in all likelihood continue to in some cases retain its place and importance, as the most suitable means, either by itself, or used simultaneously with other means.
Although, as mentioned above, there is an opinion that it is suitable for resolving, first of all, legal disputes of minor importance, it seems to us that it is not entirely so. The benefits of conciliation can also be utilized in addressing sensitive issues such as those relating to security, disarmament, economic and business, environmental protection, delimitation, disputes related to the status of watercourses, outer space activities, and the like. That is the reason why we should not be surprised if in the future this institute experiences another youth.
This especially in our era of globalization, when there are more and more non-state actors of international relations. In some cases, their disputes already have international character or may threaten to grow into interstate disputes. In particular, since some of these entities have a more and more developed international legal subjectivity, conciliation may prove to be a suitable means especially for some of these disputes (for example, between a state and a transnational company, and even in some cases between the state and the individual)6.
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3 Merrills, 2005, 66, 87. For example, between the two World Wars by conciliation it was attempted solution of disputes between Bolivia and Paraguay (1929), Germany and Lithuania (1931), Belgium and Luxembourg (1934), Denmark and Lithuania (1938). After the Second World War, by conciliation disputes were settled between France and Siam (1947), Belgium and Denmark (1952), France and Switzerland (1955), Italy and Switzerland (1956), France and Morocco (1958), Kenya, Uganda and Tanzania 1977), Iceland and Norway (1981). There were also unsuccessful attempts at conciliation, as in the disputes between Romania and Switzerland (1949) or Morocco and France (1957). Handbook on the Peaceful Settlement., 1992, 48-49; Merrills, 2005, 67-74; Hamilton, Requena, van Scheltinga, Shifman, 1999, 285-295.
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Об авторе: Кривокапич Борис, доктор юридических наук, профессор, академик РАЕН, ординарный профессор факультета права и бизнеса Университета Унион - Никола Тесла (Белград); профессор юридического факультета Самарского национального исследовательского университета имени академика С.П. Королёва e-mail: [email protected] © Кривокапич Б., 2019.
Статья получена: 28.01.2019. Статья принята к публикации: 20.03.2019. Статья опубликована онлайн: 25.03.2019.
About the author: Krivokapich Boris, Dr. of Sciences (Law), Professor Member of the Russian Academy of Natural Sciences, Full Professor of Business and Law Faculty of Union Nikola Tesla University (Belgrade); Full Professor of Law Faculty at Samara National Research University named after academician S.P. Korolev, Samara (Russia) e-mail: [email protected]
Автор прочитал и одобрил окончательный вариант рукописи. The author has read and approved the final version of the manuscript.
