INTERNATIONAL DISPUTE RESOLUTION: G.J MERRIL'S BOOK PRT 1

PREFACE

Since the third edition of this book was published in 1998 there have been many developments with a direct bearing on its subject. The ending of the Cold War and the consequent changes in Eastern Europe continue to affect both the evolution of regional organisations in Europe and the work of the United Nations. The World Trade Organization, a relatively newcomer seven years ago, is now firmly established and its arrangements for dispute settlement are widely used. The complex system set up by the 1982 Law of the Sea Convention has also started to function as cases have been taken to the International Tribunal for the Law of the Sea or to arbitration. The International Court of Justice is busier now than at any time in its history, and both regional organisations and the United Nations have shown initiative in addressing disputes at the political level. It must, of course, also be noted that in 2003 Iraq was invaded without Security Council authorisation, thereby demonstrating the limitations of the Charter system of collective security and reminding us, yet again, of the distance to be travelled, if its provisions for dealing with the most serious disputes and situations are to be effective.

The aim of this new edition is to examine the techniques and institu-tions available to states for the peaceful settlement of disputes, taking full account of recent developments. Chapters 1 to 4 examine the so-called ‘diplomatic’ means of settlement: negotiation, where matters are entirely in the hands of the parties, then mediation, inquiry and conciliation, in each of which outside assistance is utilised. Chapters 5 to 7 deal with legal means, namely arbitration and judicial settlement through the Interna-tional Court, where the object is to provide a legally binding decision. To underline the interaction of legal and diplomatic means and to show how they are used in specific contexts, Chapter 8 reviews the arrangements for dispute settlement in the Law of the Sea Convention and Chapter 9 considers the provisions of the World Trade Organization’s very impor-tant Dispute Settlement Understanding. The final part considers the role of political institutions, the United Nations (Chapter 10) and regional

organisations (Chapter 11), while the final chapter reviews the current situation and offers some thoughts for the future.

Those familiar with the previous edition will find significant new ma-terial in every chapter, including references to recent arbitrations, to the developing practice of the International Tribunal for the Law of the Sea, the jurisprudence of the International Court of Justice and practice under the WTO system, as well as new political material relating to peace-keeping and other activities of regional organisations and the UN. In discussing the various techniques and institutions my object has remained to explain what they are, how they work and when they are used. As before, I have sought to include enough references to the relevant literature to enable the reader to follow up any points of particular interest. With a similar objective I have retained and updated the appendices setting out extracts from some of the documents mentioned in the text.

For permission to quote the material in the appendices I am again grateful to the editors of the International Law Reports. My thanks are also due to Julie Prescott at the University of Sheffield for preparing the manuscript, to Finola O’Sullivan and Jane O’Regan at Cambridge Uni-versity Press, and to my wife, Dariel, whose encouragement, as always, was invaluable.

1. Negotiation

A dispute may be defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another. In the broadest sense, an international dispute can be said to exist whenever such a disagree-ment involves governments, institutions, juristic persons (corporations) or private individuals in different parts of the world. However, the dis-putes with which the present work is primarily concerned are those in which the parties are two or more of the nearly 200 or so sovereign states into which the world is currently divided.

Disputes are an inevitable part of international relations, just as disputes between individuals are inevitable in domestic relations. Like individuals, states often want the same thing in a situation where there is not enough of it to go round. Moreover, just as people can disagree about the way to use a river, a piece of land or a sum of money, states frequently want to do different things, but their claims are incompatible. Admittedly, one side may change its position, extra resources may be found, or on looking further into the issue it may turn out that everyone can be satisfied after all. But no one imagines that these possibilities can eliminate all domestic disputes and they certainly cannot be relied on internationally. Disputes, whether between states, neighbours, or brothers and sisters, must there-fore be accepted as a regular part of human relations and the problem is what to do about them.

A basic requirement is a commitment from those who are likely to become involved, that is to say from everyone, that disputes will only be pursued by peaceful means. Within states this principle was established at an early stage and laws and institutions were set up to prohibit self-help and to enable disputes to be settled without disruption of the social order. On the international plane, where initially the matter was regarded as less important, equivalent arrangements have been slower to develop. The emergence of international law, which in its modern form can be dated from the seventeenth century, was accompanied by neither the creation of a world government, nor a renunciation of the use of force by states. In 1945, however, with the consequences of the unbridled pursuit of national objectives still fresh in the memory, the founder members of the United Nations agreed in Article 2(3) of the Charter to ‘settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. What these peaceful means are and how they are used by states are the subject of this book.

A General Assembly Resolution of 1970, after quoting Article 2(3), proclaims:

States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judi-cial settlement, resort to regional agencies or arrangements or other peace-ful means of their choice.¹

In this provision, which is modelled on Article 33(1) of the Charter, the various methods of peaceful settlement are not set out in any order of priority, but the first mentioned, negotiation, is the principal means of handling all international disputes.² In fact in practice, negotiation is employed more frequently than all the other methods put together. Often, indeed, negotiation is the only means employed, not just because it is always the first to be tried and is often successful, but also because states may believe its advantages to be so great as to rule out the use of other methods, even in situations where the chances of a negotiated settlement are slight. On the occasions when another method is used, negotiation is not displaced, but directed towards instrumental issues, the terms of reference for an inquiry or conciliation commission, for example, or the arrangements for implementing an arbitral decision.

Thus in one form or another negotiation has a vital part in interna-tional disputes. But negotiation is more than a possible means of settling differences, it is also a technique for preventing them from arising. Since prevention is always better than cure, this form of negotiation, known as ‘consultation’, is a convenient place to begin.

¹  General Assembly Declaration on Principles of International Law Concerning Friendly Rela-tions and Cooperation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970. The resolution was adopted by the General Assembly without a vote.

²  For discussion of the meaning and significance of negotiation see C. M. H. Waldock (ed.),

International Disputes: The Legal Aspects, London, 1972, Chapter 2A (H. Darwin); F. S. Northedge and M. D. Donelan, International Disputes: The Political Aspects, London, 1971, Chapter 12; P. J. I. M. De Waart, The Element of Negotiation in the Pacific Settlement of Disputes between States, The Hague, 1973; United Nations, Handbook on the Peaceful Settle-ment of Disputes between States, New York, 1992, Chapter 2A; B. Starkey, M. A. Boyer and J. Wilkenfield, Negotiating a Complex World, Lanham, 1999; I. W. Zartman and J. Z. Rubin (eds.), Power and Negotiation, Ann Arbor, 2000; and V. A. Kremenyuk (ed.), International Negotiation (2nd edn), San Francisco, 2002.

3

Consultation

When a government anticipates that a decision or a proposed course of action may harm another state, discussions with the affected party can provide a way of heading off a dispute by creating an opportunity for adjustment and accommodation. Quite minor modifications to its plans, of no importance to the state taking the decision, may be all that is required to avoid trouble, yet may only be recognised if the other side is given a chance to point them out. The particular value of consultation is that it supplies this useful information at the most appropriate time – before anything has been done. For it is far easier to make the necessary modifications at the decision-making stage, rather than later, when exactly the same action may seem like capitulation to foreign pressure, or be seized on by critics as a sacrifice of domestic interests.

A good example of the value of consultation is provided by the practice of the United States and Canada in antitrust proceedings. Writing of the procedure employed in such cases, a commentator has noted that:

While it is true that antitrust officials of one state might flatly refuse to alter a course of action in any way, it has often been the case that officials have been persuaded to modify their plans somewhat. After consultation, it may be agreed to shape an indictment in a less offensive manner, to change the ground rules of an investigation so as to require only ‘voluntary’ testimony from witnesses, or that officials of the government initiating an investigation or action will keep their antitrust counterparts informed of progress in the case and allow them to voice their concerns.³

This policy of co-operation, developed through a series of bilateral understandings, has been incorporated in an agreement providing for coordination with regard to both the competition laws and the deceptive marketing practices laws of the two states.⁴

³   See B. R. Campbell, ‘The Canada–United States antitrust notification and consultation procedure’, (1978) 56 Can. Bar Rev. p. 459 at p. 468. On arrangements with Australia see S. D. Ramsey, ‘The United States–Australian Antitrust Cooperation Agreement: A step in the right direction’, (1983–4) 24 Va. JIL p. 127.

⁴   See Canada–United States, Agreement regarding the Application of their Competition and Deceptive Marketing Practices Laws, 1995. Text in (1996) 35 ILM p. 309. On the role of

  

Consultation should be distinguished from two related ways of taking foreign susceptibilities into account: notification and the obtaining of prior consent. Suppose state A decides to notify state B of imminent action likely to affect B’s interests, or, as will sometimes be the case, is obliged to do so as a legal duty. Such advanced warning gives B time to consider its response, which may be to make representations to A, and in any case avoids the abrasive impact of what might otherwise be regarded as an attempt to present B with a fait accompli. In these ways notification can make a modest contribution to dispute avoidance, though naturally B is likely to regard notification alone as a poor substitute for the chance to negotiate and influence the decision that consultation can provide.

Obtaining the consent of the other state, which again may sometimes be a legal obligation, lies at the opposite pole. Here the affected state enjoys a veto over the proposed action. This is clearly an extremely important power and its exceptional nature was properly emphasised by the tribunal in the Lake Lanoux case:

To admit that jurisdiction in a certain field can no longer be exercised ex-cept on the condition of, or by way of, an agreement between two States, is to place an essential restriction on the sovereignty of a State, and such restriction could only be admitted if there were clear and convincing evi-dence. Without doubt, international practice does reveal some special cases in which this hypothesis has become reality; thus, sometimes two States exercise conjointly jurisdiction over certain territories (joint ownership, co-imperium, or condominium); likewise, in certain international arrange-ments, the representatives of States exercise conjointly a certain jurisdiction in the name of those States or in the name of organizations. But these cases are exceptional, and international judicial decisions are slow to recognize their existence, especially when they impair the territorial sovereignty of a State, as would be the case in the present matter.⁵

In that case Spain argued that under both customary international law and treaties between the two states, France was under an obligation to obtain Spain’s consent to the execution of works for the utilisation of cer-tain waters in the Pyrenees for a hydroelectric scheme. The argument was rejected, but the tribunal went on to hold that France was under a duty to consult with Spain over projects that were likely to affect Spanish inter-ests. Speaking of the nature of such obligatory consultations the tribunal observed that:

one speaks, although often inaccurately, of the ‘obligation of negotiating an agreement’. In reality, the engagements thus undertaken by States take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith.⁶

consultations in the dispute settlement arrangements of the World Trade Organization see Chapter 9.

⁵  Lake Lanoux Arbitration (France v. Spain) (1957) 24 ILR p. 101 at p. 127. For discussion of the significance of the case see J. G. Laylin and R. L. Bianchi, ‘The role of adjudication in international river disputes: The Lake Lanoux case’, (1959) 53 AJIL p. 30.

An example of how the various ways of co-ordinating activities may be constructively combined is provided by the ‘Interim Reciprocal Informa-tion and Consultation System’, established in 1990 to regulate the move-ment of British and Argentine forces in the South Western Atlantic.⁷ The system involved the creation of a direct communication link with the aim of reducing the possibility of incidents and limiting their consequences if they occur. These facilities for consultation are supported by a provision under which at least twenty-five days’ written notice is required about air and naval movements, and exercises of more than a certain size. This is a straightforward arrangement for notification, but two component fea-tures of the system are worth noticing. In the first place the notification provision is very specific as to the areas in which the obligation exists and the units to which it applies, and thereby minimises the possibilities for misunderstanding. Secondly, in relation to the most sensitive areas, those immediately off the parties’ respective coasts, the notifying state must be informed immediately of any movement which ‘might cause political or military difficulty’ and ‘mutual agreement will be necessary to proceed’. Here therefore there is not only a right and a corresponding duty in re-spect of notification, but in some circumstances at least a need to obtain consent.

The advantages of consultation in bilateral relations are equally evident in matters which are of concern to a larger number of states. In a multi-lateral setting consultation usually calls for an institutional structure of some kind. These can vary widely and do not have to be elaborate in order to be useful. The Antarctic Treaty system, for instance, now operates on the basis of annual meetings but until recently had no permanent organs. It nevertheless exemplified the value of what has been called ‘anticipa-tory co-operation’⁸ in addressing environmental and other issues in a special regional context. When closer regulation is needed more complex institutional arrangements may be appropriate. Thus the International Monetary Fund at one time required a member which had decided to change the par value of its currency to obtain the concurrence of the IMF before doing so. It is interesting to note that the term ‘concurrence’ was chosen ‘to convey the idea of a presumption that was to be observed in favour of the member’s proposal’.⁹ Even so, the arrangement meant that extremely sensitive decisions were subject to international scrutiny. As a result, until the par value system was abandoned in 1978, the provision gave rise to considerable difficulties in practice.

Consultation between states is usually an ad hoc process and except where reciprocity provides an incentive, as in the cases considered, has proved difficult to institutionalise. Obligatory consultation is bound to make decisions slower and, depending on how the obligation is defined, may well constrain a government’s options. In the Lake Lanoux case the tribunal noted that it is a ‘delicate matter’ to decide whether such an obligation has been complied with, and held that on the facts, France had done all that was required. If consultation is to be compulsory, however, the circumstances in which the obligation arises, as well as its content, need careful definition, or allegation of failure to carry out the agreed procedure may itself become a disputed issue.

⁶ 24 ILR p. 101 at p. 128. See further C. B. Bourne, ‘Procedure in the development of international drainage basins: The duty to consult and negotiate’, (1972) 10 Can. Yearbook Int. L. p. 212, and F. L. Kirgis, Prior Consultation in International Law, Charlottesville, 1983, Chapter 2.

Text in (1990) 29 ILM p. 1296 and see document A in the appendix below. For discussion see M. Evans, ‘The restoration of diplomatic relations between Argentina and the United Kingdom’, (1991) 40 ICLQ p. 473 at pp. 478–80. For later developments see R. R. Churchill, ‘Falkland Islands: Maritime jurisdiction and co-operative arrangements with Argentina’, (1997) 46 ICLQ p. 463.  

⁸  See C. C. Joyner, ‘The evolving Antarctic legal regime’, (1989) 83 AJIL p. 605 at p. 617. The decision to establish a Permanent Secretariat was taken in 2001: see K. Scott, ‘Institutional developments within the Antarctic Treaty System’, (2003) 52 ICLQ p. 473. For an analogous recent development see E. T. Bloom, ‘Establishment of the Arctic Council’, (1999) 93 AJIL p. 712.

⁹  See J. Gold, ‘Prior consultation in international law’, (1983–4) 24 Va. JIL p. 729 at p. 737.

Whether voluntary or compulsory, consultation is often easier to imple-ment for executive than for legislative decision making, since the former is usually less rigidly structured and more centralised. But legislative ac-tion can also cause international disputes, and so procedures designed to achieve the same effect as consultation can have an equally useful part to play. Where states enjoy close relations it may be possible to establish ma-chinery for negotiating the coordination of legislative and administrative measures on matters of common interest. There are clear advantages in having uniform provisions on such matters as environmental protection, where states share a common frontier, or commerce, if trade is exten-sive. The difficulties of achieving such harmonisation are considerable, as the experience of the European Union has demonstrated, though if uniformity cannot be achieved, compatibility of domestic provisions is a less ambitious alternative. In either case the rewards in terms of dispute avoidance make the effort well worthwhile.

Another approach is to give the foreign state, or interested parties, an opportunity to participate in the domestic legislative process. Whether this is possible depends on the legislative machinery being sufficiently accessible to make it practicable and the parties’ relations being good enough for such participation, which can easily be construed as for-eign interference, to be acceptable. When these conditions are fulfilled the example of North America, where United States gas importers have appeared before Canada’s National Energy Board and Canadian offi-cials have testified before Congressional Committees, shows what can be achieved.¹⁰

Consultation, then, is a valuable way of avoiding international disputes. It is therefore not surprising to find that in an increasingly interdependent world the practice is growing. The record, however, is still very uneven. Although, as we shall see in Chapter 9, consultation is increasingly im-portant in international trade, on other issues with the potential to cause disputes such as access to resources and the protection of the environment, progress in developing procedures for consultation has been slower than would be desirable. Similarly, while there is already consultation on a num-ber of matters between Canada and the United States and in Europe, in other parts of the world the practice is scarcely known. Finally, when such procedures have been developed, there is, as we have noted, an important

¹⁰ See Settlement of International Disputes between Canada and the USA (Report of the American and Canadian Bar Associations’ Joint Working Group, 1979) for a description of this and other aspects of United States–Canadian co-operation.

distinction between consultation as a matter of obligation and voluntary consultation which states prefer.

The author of a comprehensive review of consultation was compelled by the evidence of state practice to conclude that:

Despite the growth of prior consultation norms, it is unlikely that there will be any all-encompassing prior consultation duty in the foreseeable future. Thus, to the extent that formal procedural structures for prior consulta-tion may be desirable, they should be tailored to recurring, relatively well defined, troublesome situations.¹¹

The difficulty of persuading states to accept consultation procedures and the ways in which they operate when established are reminders of the fact that states are not entities, like individuals, but complex groupings of institutions and interests. If this is constantly borne in mind, the salient features of negotiation and the means of settlement discussed in later chapters will be much easier to understand.

Forms of negotiation

Negotiations between states are usually conducted through ‘normal diplo-matic channels’, that is by the respective foreign offices, or by diplomatic representatives, who in the case of complex negotiations may lead del-egations including representatives of several interested departments of the governments concerned. As an alternative, if the subject matter is appropriate, negotiations may be carried out by what are termed the ‘competent authorities’ of each party, that is by representatives of the particular ministry or department responsible for the matter in ques-tion – between trade departments in the case of a commercial agreement, for example, or between defence ministries in negotiations concerning weapons procurement. Where the competent authorities are subordinate bodies, they may be authorised to take negotiations as far as possible and to refer disagreements to a higher governmental level. One of the treaty provisions discussed in the Lake Lanoux dispute, for example, provided that:

The highest administrative authorities of the bordering Departments and Provinces will act in concert in the exercise of their right to make regula-tions for the general interest and to interpret or modify their regulations

¹¹  Kirgis, Prior Consultation, p. 375. See also I. W. Zartman (ed.), Preventive Negotiation, Lanham, 2001.

whenever the respective interests are at stake, and in case they cannot reach agreement, the dispute shall be submitted to the two Governments.¹²

In the case of a recurrent problem or a situation requiring continuous supervision, states may decide to institutionalise negotiation by creat-ing what is termed a mixed or joint commission. Thus neighbouring states commonly employ mixed commissions to deal with boundary de-limitation, or other matters of common concern. The Soviet Union, for instance, concluded treaties with a number of adjoining states, providing for frontier disputes and incidents to be referred to mixed commissions with power to decide minor disputes and to investigate other cases, before referring them for settlement through diplomatic channels.¹³

Mixed commissions usually consist of an equal number of representa-tives of both parties and may be given either a broad brief of indefinite duration, or the task of dealing with a specific problem. An outstanding example of a commission of the first type is provided by the Canadian– United States International Joint Commission, which since its creation in 1909, has dealt with a large number of issues including industrial de-velopment, air pollution and a variety of questions concerning boundary waters.¹⁴

An illustration of the different functions that may be assigned to ad hoc commissions is to be found in the Lake Lanoux dispute. After being considered by the International Commission for the Pyrenees, a mixed commission established as long ago as 1875, the matter was referred to a Franco-Spanish Commission of Engineers, set up in 1949 to examine the technical aspects of the dispute. When the Commission of Engineers was unable to agree, France and Spain created a special mixed commission with the task of formulating proposals for the utilisation of Lake Lanoux and submitting them to the two governments for consideration. It was only when this commission was also unable to agree that the parties decided to refer the case to arbitration, though not before France had put forward (unsuccessfully) the idea of a fourth mixed commission, which would

¹² See the Additional Act to the three Treaties of Bayonne (1866) Art. 16 in (1957) 24 ILR p. 104.

¹³ For details see N. Bar-Yaacov, The Handling of International Disputes by Means of Inquiry, Oxford, 1974, pp. 117–19.

¹⁴ For an excellent survey of the work of the International Joint Commission see M. Cohen, ‘The regime of boundary waters – The Canadian–United States experience’, (1975) 146 Hague Recueil des Cours p. 219 (with bibliography). For a review of another commission see L. C. Wilson, ‘The settlement of boundary disputes: Mexico, the United States and the International Boundary Commission’, (1980) 29 ICLQ p. 38.

have had the function of supervising execution of the water diversion scheme and monitoring its day-to-day operation.

If negotiation through established machinery proves unproductive, ‘summit discussions’ between heads of state or foreign ministers may be used in an attempt to break the deadlock. Though the value of such conspicuous means of negotiation should not be exaggerated, summit diplomacy may facilitate agreement by enabling official bureaucracies to be by-passed to some extent, while providing an incentive to agree in the form of enhanced prestige for the leaders concerned. It should be noted, however, that summit diplomacy is usually the culmination of a great deal of conventional negotiation and in some cases at least reflects noth-ing more than a desire to make political capital out of an agreement that is already assured.

A disadvantage of summit meetings is that, unlike conventional ne-gotiations, they take place amid a glare of publicity and so generate expectations which may be hard to fulfil. The idea that a meeting be-tween world leaders has failed unless it produces a new agreement of some kind is scarcely realistic yet is epitomised by the mixture of hope and dread with which meetings between the leaders of the United States and the Soviet Union used to be surrounded. In an attempt to change this unhealthy atmosphere, in November 1989 President Bush described his forthcoming meeting with Mr Gorbachev as an ‘interim informal meeting’ and emphasised that there would be no specific agenda.¹⁵ It is doubtful if such attempts to damp down expectations can ever be wholly successful and even less likely that politicians would wish the me-dia to treat their exploits on the international stage with indifference. However, as the solution of international problems is primarily a mat-ter of working patiently with regular contact at all levels, there is much to be said for attempting to remove the unique aura of summit meet-ings and encouraging them to be seen instead as a regular channel of communication.

The public aspect of negotiations which is exemplified in summit diplo-macy is also prominent in the activity of international organisations. In the United Nations General Assembly and similar bodies states can, if they choose, conduct diplomatic exchanges in the full glare of interna-tional attention. This is undoubtedly a useful way of letting off steam and, more constructively, of engaging the attention of outside states which may have something to contribute to the solution of a dispute. It has the

¹⁵  See L. Freedman, ‘Just two men in a boat’, The Independent, 3 November 1989, p. 19.

disadvantage, however, that so visible a performance may encourage the striking of attitudes which are at once both unrealistic and difficult to abandon. It is therefore probable that for states with a serious interest in negotiating a settlement, the many opportunities for informal con-tact which international organisations provide are more useful than the dramatic confrontations of public debate.

Whether discussion of a dispute in an international organisation can be regarded as equivalent to traditional diplomatic negotiation is an issue which may also have legal implications. In the South West Africa cases (1962),¹⁶ one of South Africa’s preliminary objections was that any dis-pute between itself and the applicants, Ethiopia and Liberia, fell out-side the terms of the International Court’s jurisdiction (which rested on Article 7 of the Mandate), because it had not been shown that the dispute was one which could not be settled by negotiation. The Court rejected the objection on the ground that extensive discussions in the United Nations on the question of South West Africa, in which South Africa and the applicants had been involved, constituted negotiations in respect of the dispute and the fact that those discussions had ended in deadlock indicated that the dispute could not be settled by negotia-tion.

In their joint dissenting opinion, Judges Spender and Fitzmaurice dis-agreed. In their view, what had occurred in the United Nations did not amount to negotiation within Article 7. Those discussions, they argued, failed to satisfy the requirements of Article 7 because such discussions had not been directed to the alleged dispute between the applicants and South Africa, merely to points of disagreement between the Assembly and South Africa. Even if this had not been so, proceedings within an inter-national organisation could never be regarded as a substitute for direct negotiations between the parties because:

a ‘negotiation’ confined to the floor of an international Assembly, consisting of allegations of Members, resolutions of the Assembly and actions taken by the Assembly pursuant thereto, denial of allegations, refusal to com-ply with resolutions or to respond to action taken thereunder, cannot be enough to justify the Court in holding that the dispute ‘cannot’ be settled by negotiation, when no direct diplomatic interchanges have ever taken place between the parties, and therefore no attempt at settlement has been made at the statal and diplomatic level.¹⁷

¹⁶ South West Africa, Preliminary Objections, Judgment, [1962] ICJ Rep. p. 319.

¹⁷  Ibid., p. 562.

The Northern Cameroons case¹⁸ raised a very similar issue. Article 19 of the Trusteeship Agreement for the Cameroons, like Article 7 of the Mandate, covered only disputes incapable of settlement by negotiation. The Inter-national Court, which decided the case on other grounds, did not discuss this aspect of Article 19. Fitzmaurice, however, examining the require-ment in the light of his opinion in the South West Africa cases, observed that ‘negotiation’ did not mean ‘a couple of states arguing with each other across the floor of an international assembly, or circulating statements of their complaints or contentions to its member states. That is dispu-tation, not negotiation’¹⁹ and repeated his view that direct negotiations were essential. Finding that the only ‘negotiations’ in the present case had taken the form of proceedings in the General Assembly, Fitzmaurice up-held a British objection that the requirements of Article 19 had not been satisfied.

The issue here is clearly one that is unavoidable. International organ-isations, as already noted, provide an attractive forum for the airing of certain types of international disputes. How far it is appropriate to regard such exchanges as an alternative to conventional negotiation is a question which judicial institutions must expect to resolve as part of the larger process of settling their relationship with their political counterparts.

Substantive aspects of negotiation

For a negotiated settlement to be possible, the parties must believe that the benefits of an agreement outweigh the losses. If their interests are diametrically opposed, an arrangement which would require one side to yield all or most of its position is therefore unlikely to be acceptable. This appears to have been the situation in the Lake Lanoux dispute, where the various attempts at a negotiated settlement encountered an insuperable obstacle in the irreconcilability of Spain’s demand for a veto over works affecting border waters with France’s insistence on its complete freedom of action.

There are a number of ways in which such an impasse may be avoided. If negotiations on the substantive aspects of a dispute are deadlocked, it may be possible for the parties to agree on a procedural solution. This is not an exception to the principle that gains must outweigh losses but an illustration of it, as the Lake Lanoux case demonstrates. For there the parties’ eventual agreement to refer the dispute to arbitration provided

¹⁸  Northern Cameroons, Judgment, [1963] ICJ Rep. p. 15.

¹⁹   Ibid., p. 123.

both states with the benefits of a definitive settlement to a question which had been under discussion for almost forty years, and the removal of a serious irritant in Franco-Spanish affairs.

Another approach is to consider whether the issue at the heart of a dispute can be split in such a way as to enable each side to obtain sat-isfaction. A solution of this kind was devised in 1978 to the problem of maritime delimitation between Australia and Papua New Guinea in the Torres Strait.²⁰ Having identified the different strands of the dispute, the parties succeeded in negotiating an agreement which dealt separately with the interests of the inhabitants of islands in the Strait, the status of the islands, seabed jurisdiction, fisheries jurisdiction, conservation and navigation rights. The virtue of this highly functional approach to the problem is underlined by the fact that earlier attempts to negotiate a single maritime boundary for the area had all ended in failure.

If splitting the dispute is not possible, a procedural agreement may be used to compensate one side for yielding on the substantive issue. In 1961 the United Kingdom and Iceland ended a dispute over the latter’s fishing limits with an agreement which provided for the recognition of Iceland’s claims in return for phasing out arrangements to protect British interests and an undertaking that future disputes could be referred to the International Court. The agreement provided that Iceland:

will continue to work for the implementation of the Althing Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around Iceland, but shall give the United Kingdom Government six months’ notice of such extension and, in the case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice.²¹

Two points are worth noticing about this provision. First, whilst it is phrased in terms which permit recourse to the Court by either party, it is clear from the travaux pr´eparatoires that it was included at Britain’s request. Secondly, the reference to the Althing Resolution shows how a compromise can be agreed without prejudicing what one side regards as an important point of policy or principle.

Agreements like the one just quoted in which the parties are able to bring their negotiations to a successful conclusion, while agreeing to differ on

²⁰ See H. Burmester, ‘The Torres Strait Treaty: Ocean boundary delimitation by agreement’, (1982) 76 AJIL p. 321; also D. Renton, ‘The Torres Strait Treaty after 15 years: Some observations from a Papua New Guinea perspective’, in J. Crawford and D. R. Rothwell (eds.), The Law of the Sea in the Asian Pacific Region, Dordrecht, 1995, p. 171.

²¹ See [1973] ICJ Rep. p. 8.

what may appear to be a major obstacle to agreement, are not uncommon. Like other diplomatic techniques, such ‘without prejudice’ clauses are as useful in multilateral as in bilateral negotiations, where the need to avoid sensitive issues may be even greater. A particularly good example may be seen in the Antarctic Treaty of 1959,²² which succeeded in creating the basis for international administration of the area, while providing in Article 4 that:

1.   Nothing contained in the present treaty shall be interpreted as:

(a)   a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

(b)   a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

(c)   prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.

2.   No acts or activities taking place while the present treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force.

A comparable bilateral example is the informal agreement between the United Kingdom and Argentina in 1989 to the effect that discussions between them would take place relating to various aspects of the Falkland Islands issue, but that the question of sovereignty would not be raised.²³ As in the case of Antarctica, the effect of this was that each side reserved its position on the sovereignty question, in order that negotiations could proceed on other matters.

It is easy to appreciate why such arrangements are popular with nego-tiators and to recognise their value in not so much bridging, as creating a

²²  Antarctic Treaty, 1959. Text in (1960) 54 AJIL p. 477. For discussion of this and other aspects of the treaty see J. Hanessian, ‘The Antarctic Treaty 1959’, (1960) 9 ICLQ p. 436.

²³  The parties agreed to place the sovereignty issue under a so-called ‘umbrella’, while other differences were discussed. See Evans, ‘The restoration of diplomatic relations’, pp. 476–7. For the text of the informal agreement see (1990) 29 ILM p. 1291. The same formula was subsequently employed in the two states’ Joint Declaration on Co-operation over Offshore Activities in the South West Atlantic, 1995; text in (1996) 35 ILM p. 301.

detour around, incompatible positions. It seems improbable that in 1959 the question of Antarctica could have been dealt with in an acceptable way without the ingenious formula of Article 4. Similarly, it is only necessary to recall that in 1984 a previous attempt to discuss the Falkland Islands broke down when Argentina insisted on raising the issue of sovereignty, to appreciate the importance of a ‘without prejudice’ arrangement in that context. Such arrangements are not a panacea however. The issues on which states agree to differ are unlikely to disappear and to the extent that they are really important, far from being forgotten, will remain as a source of future problems. Within ten years of the 1961 Agreement Iceland was extending its fishing limits again and it is scarcely necessary to point out that at present neither the status of Antarctica, nor the future of the Falkland Islands can be regarded as completely settled. ‘Without prejudice’ arrangements should therefore be thought of less as a means of settling disputes by negotiation than as a way of managing them. By al-lowing attention to be focused on those matters which can be negotiated, they allow progress to be made until such time as other more intractable issues can be addressed.

It often happens that the nature of a dispute and the parties’ interests are such that in an agreement one side is bound to gain at the other’s expense. A possible way of providing compensation in such a situation is to give the less-favoured party control of details such as the time and place of the negotiations. The latter in particular can assume considerable symbolic importance and thus constitutes an element which may be used to good effect. A more radical solution is to link two disputes together so that a negotiated settlement can balance gains and losses overall and be capable of acceptance by both sides. Such ‘package deals’ are particularly common in multilateral negotiations such as the Third United Nations Conference on the Law of the Sea, where the large number of states involved and the broad agenda made the trading of issues a conspicuous feature of the proceedings.²⁴

The fact that today the public dimension of diplomacy has much greater importance than in the past is another factor with a bearing on the substance of international negotiations. For if negotiation is a matter of exchanging proposals and counter-proposals in an attempt to arrive at an agreement from which both sides can derive a measure of satisfaction, the parties’ awareness of an audience consisting of the general public in

²⁴ See H. Caminos and M. R. Molitor, ‘Progressive development of international law and the package deal’, (1985) 79 AJIL p. 871.

one or both of the states concerned, and the international community as a whole, can seriously affect the outcome. The element of give and take which is usually an essential part of a successful negotiation is likely to be inhibited if every step is being monitored by interested pressure groups at home, while the suspicion that the other side may simply be interested in eliciting a favourable audience reaction may lead serious proposals to be dismissed as mere propaganda. The difficulty of negotiating arrange-ments for arms limitation and disarmament in the era of the Cold War illustrates both points.

It follows that in sensitive negotiations, precautions may be necessary to ensure that the demands of the media do nothing to jeopardise agree-ment. In 1982 when the British military commander was negotiating the surrender of the Argentine forces in Port Stanley at the end of the conflict over the Falkland Islands, he insisted that the official photographer wait in an adjoining room until agreement had been secured. He explained afterwards that he had taken this step to avoid anything that might inter-fere with the final stages of the negotiations. While these were in progress the British government imposed a news black-out on Port Stanley for the same reason.²⁵

Besides inhibiting possible agreement, the real or supposed need to keep the public informed as to the state of negotiations can itself be a cause of avoidable controversy. In the Aegean Sea Continental Shelf case the International Court was called upon to examine the legal significance of a joint communique´ issued to the press by the Prime Ministers of Greece and Turkey, following a meeting between them in May 1975. The key passage in the Communique´ was the paragraph which stated that:

In the course of their meeting the two Prime Ministers had an opportunity to give consideration to the problems which led to the existing situation as regards relations between their countries. They decided that those problems should be resolved peacefully by means of negotiations and as regards the continental shelf of the Aegean Sea by the International Court at the Hague.²⁶

Greece argued that this constituted an agreement to refer the dispute over the continental shelf to the Court and that it permitted unilateral

²⁵  For an account of the negotiations see L. Freedman and V. Gamba-Stonehouse, Signals of War: The Falklands Conflict of 1982, London, 1990, Chapter 23.

²⁶  [1978] ICJ Rep. pp. 39, 40. For a comprehensive review of this decision see D. H. N. Johnson, ‘The International Court of Justice declines jurisdiction again’, (1976–7) 7 Aust. Year Book Int. L. p. 309.

recourse in the event of a refusal by either side to conclude any subsequent agreement that might be needed to implement the obligation. Turkey denied that the Communique´ had any legal force and argued that in any event it could not be said to contemplate recourse to the Court prior to the negotiation of a special agreement.

In its decision in 1978 the Court held that both the terms of the dis-puted instrument and the circumstances of its conclusion were relevant to its interpretation. The background of the Brussels Communique´ was, the Court found, a situation in which in previous diplomatic exchanges and at an earlier meeting of Foreign Ministers in Rome, the parties had discussed the possibility of a joint submission to adjudication. The Court found no evidence in the terms of the Communique´ to suggest that at the Brussels meeting this situation had changed and that the possibility of a unilateral reference had been in the parties’ contemplation. Indeed, a reference in the Communique´ to a subsequent meeting of the parties’ experts confirmed that only a joint reference of the matter had been en-visaged. Further support for this construction was found in the parties’ subsequent practice. From the first Turkey had insisted that a special agree-ment must be negotiated and even Greece had not sought to argue that the Communique´ alone provided a basis for the Court’s jurisdiction until the initiation of the present proceedings. Thus the Court’s conclusion was that the Communique´ provided no basis for its jurisdiction.

In the Maritime Delimitation and Territorial Questions case²⁷ between Qatar and Bahrain, which raised a rather similar issue, the Court reached the opposite conclusion. The first question in that case was whether the minutes of a meeting of the Cooperation Council of Arab States, held in 1990, constituted an agreement between the two states capable of provid-ing the ICJ with a basis of jurisdiction. The Court decided that they were an agreement, rather than a ‘simple record of negotiations’ as Bahrain maintained, and having established this point, then had to determine the content of the agreement. This called for decisions as to both the subject matter of the dispute and how it should be submitted which presented considerable difficulties. When states discuss submission of a dispute to the Court they therefore need to be clear about the nature and scope of their commitments if subsequent argument on these matters is to be avoided.

²⁷ Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgments of 1 July 1994 and 15 February 1995, [1994] ICJ Rep. p. 112 and [1995] ICJ Rep. p. 6. For comment see M. D. Evans, Note, (1995) 44 ICLQ p. 691.

Negotiation and adjudication

Although negotiation is usually involved at some stage in every inter-national dispute and in that sense is related to all of the other methods of settling disputes we shall be considering, its relation to one of them, adjudication, is particularly significant. Negotiation is a process which allows the parties to retain the maximum amount of control over their dispute; adjudication, in contrast, takes the dispute entirely out of their hands, at least as regards the court’s decision. It is therefore not surprising that defining the point of transition from one to the other, and estab-lishing the relation between them, have been matters to which states and international courts alike have had to give a good deal of attention.

One situation in which the connection is important is when states choose to make the exhaustion of attempts to settle a dispute by nego-tiation a condition of an adjudicator’s jurisdiction. The questions which may arise here are, first, what is to be regarded as negotiation for jurisdic-tional purposes? And then, how is it to be established that the possibilities of a negotiated settlement have been exhausted? We have already seen that the South West Africa cases posed the first question with reference to diplomatic exchanges in the United Nations and the issue can also arise in other contexts. In the Border and Transborder Armed Actions case,²⁸ for instance, where the question was whether negotiations in a dispute between Honduras and Nicaragua were still in progress, the International Court decided that the multilateral diplomacy of the Contadora process constituted mediation rather than negotiation, and accordingly rejected an argument from Honduras to the effect that the Court’s jurisdiction had not yet been established.

Showing that the possibilities of a negotiation have been exhausted might seem to require a demonstration that negotiations of some kind have taken place. Usually this will be so, but if one party to a dispute makes it clear that it is unwilling to negotiate, the absence of negotiations will not be regarded as an obstacle to an international court’s exercising jurisdic-tion. Thus in the Diplomatic Staff in Tehran case,²⁹ one of the instruments relied on by the United States gave the International Court jurisdiction over any dispute ‘not satisfactorily adjusted by diplomacy’, but when the Court found that Iran had refused to discuss the hostages issue with the United States, it had no hesitation in ruling that its jurisdiction was

²⁸  Border and Transborder Armed Actions, Jurisdiction and Admissibility, Judgment, [1988] ICJ Rep. p. 69. The Court’s decision on this point and the significance of the Contadora process are further discussed in Chapter 11.

²⁹  United States Diplomatic and Consular Staff in Tehran, Judgment, [1980] ICJ Rep. p. 3.

established. Subsequently the Court used identical reasoning in the quite different circumstances of the United Nations Headquarters Agreement case.³⁰ The issue there was not whether the Court itself had jurisdiction, but whether a dispute between the United States and the United Nations was subject to compulsory arbitration. This depended on whether the dis-pute in question, which was over the closing of the office of the Palestine Liberation Organization’s Observer Mission in New York, was ‘not settled by negotiation or other agreed mode of settlement’. The Court found that the Secretary-General had exhausted such possibilities as were open to him and, ruling that litigation of the dispute in the United States could not be regarded as an ‘agreed mode of settlement’, decided that the case was ready for arbitration.

The outcome of these cases demonstrates that when the parties to a dispute specify that negotiations are to have priority as a means of settle-ment, it will not be open to either of them to delay legal proceedings by the simple expedient of refusing to negotiate. Whilst it is easy to appreciate that any other view would deprive the parties’ reference to adjudication of its intended force, a more difficult situation arises when negotiations take place but fail to yield a solution. Here the party which wishes to avoid litigation is likely to argue that further efforts at negotiation should be made, while its opponent will seek to persuade the court or tribunal that nothing more is needed to enable it to exercise jurisdiction. To spare the adjudicator the delicate task of deciding whether there is still a chance to reach a negotiated settlement, it is good policy to establish a time-limit for use of the preferred procedure. Thus the 1965 Convention on Transit Trade of Land-Locked Countries provides that:

Any dispute which may arise with respect to the interpretation or applica-tion of the provisions of this Convention which is not settled by negotiation or by other peaceful means of settlement within a period of nine months shall, at the request of either party, be settled by arbitration.³¹

Even if the parties are not required to explore the possibility of a ne-gotiated settlement as a condition of international jurisdiction, diplo-matic exchanges will usually be necessary to focus a disagreement to the point where it can be treated as an international dispute. In relation to adjudication this is particularly important because, as we shall see later, adjudication is a rather specialised way of resolving conflicts, and cannot be regarded as appropriate for every sort of disagreement. One reflection

³⁰ Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Head-quarters Agreement of 26 June 1947, Advisory Opinion, [1988] ICJ Rep. p. 12.

³¹ Article 16(1), 597 UNTS p. 3 (1967).

of their specialised function is that courts, unlike international political institutions, cannot be asked to deal with situations in which there is ten-sion, but no specific questions to be resolved. It follows that one of the functions of negotiation is to bring such situations into focus so that any issues which might be put to a legal tribunal can be identified. Thus, quite apart from its jurisdictional significance, negotiation will often be needed to make the points of disagreement sufficiently concrete for reference to a court or tribunal to be a possibility.

Although this screening or concretising function is another significant facet of the relation between negotiation and adjudication, it would be wrong to see a linkage between the two processes as vital, or to believe that negotiation is indispensable. To prove that a dispute exists it is necessary to show that ‘the claim of one party is positively opposed by the other’.³² Usually this will be done by using the parties’ diplomatic exchanges to demonstrate that official representations have defined the points in issue and that efforts to resolve the matter by negotiation have failed. However, there is no rule of law to the effect that a dispute exists only if it is reflected in a formal exchange of representations. If the subject of a disagreement is perfectly clear, then the International Court has indicated that it will be prepared to hold that a dispute exists, even if there has been no official contact. This was the situation in the Diplomatic Staff in Tehran case, where the actions of Iran had caused a break in relations but the Court had no hesitation in finding that there was a dispute with the United States, arising out of the interpretation or application of the relevant international conventions.

The above principle was reaffirmed in 1985 when the Court dealt with an application from Tunisia for revision and interpretation of its earlier decision in the Tunisia–Libya Continental Shelf case.³³ Rejecting an argu-ment by Libya that the request was premature, the Court recalled that as long ago as 1927 its predecessor had said:

In so far as concerns the word ‘dispute’, the Court observes that, according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed

³²  S. Rosenne, The Law and Practice of the International Court (2nd rev. edn), Dordrecht, 1985, p. 293.

³³  Application for Revision and Interpretation of the Judgment of 4 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, [1985] ICJ Rep. p. 192.

to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court’s view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court.³⁴

In these cases the Court was discussing the concept of a dispute in a special context, but it is clear that both the policy and the principle set out here are of general application. It may be unwise to initiate litigation before trying to settle a matter diplomatically; however, provided a clear difference of opinion on a legal issue is manifest, negotiation is not a prerequisite of adjudication.

Referring a case to a court or tribunal is merely one way of attempting to settle international differences and, as several of the cases we have been considering demonstrate, even when judicial settlement has been agreed on by the parties in advance, there is no guarantee that it will appeal to them equally when a dispute arises. A further question to be considered therefore is whether, as a matter of principle, the competence of an international court is affected if negotiation is also under way. To avoid misunderstanding it should be emphasised that the issue here is not whether it is open to the parties to agree to give negotiation formal priority. For, as we have seen, this can easily be arranged by including an appropriate provision in the instrument establishing jurisdiction. Rather, the question is whether the relation between negotiation and adjudication is such that it is inappropriate or impermissible for the two methods of settlement to be pursued simultaneously; whether in short the judge must be ready to defer to the negotiator.

This issue was one of the preliminary matters considered in the Aegean Sea Continental Shelf case.³⁵ Certain observations by the Turkish govern-ment were interpreted by the International Court as perhaps suggesting that it ought not to proceed while Greece and Turkey continued to nego-tiate, and that the existence of active negotiations was a legal impediment to the exercise of its jurisdiction. All this the Court emphatically rejected. It drew attention to the fact that negotiation and judicial settlement are

³⁴ Ibid., p. 218. The reference is to the Chorz´ow Factory case, PCIJ Series A, No. 13.

³⁵  Aegean Sea Continental Shelf, Judgment, [1978] ICJ Rep. p. 3.

enumerated together in Article 33 of the Charter and pointed out that on several occasions both methods have been pursued simultaneously. Moreover, in some cases judicial proceedings have been discontinued when negotiations resulted in a settlement. In the light of this, said the Court, ‘the fact that negotiations are being actively pursued during the present proceedings, is not, legally, any obstacle to the exercise by the Court of its judicial function’.³⁶

Thus while negotiation is a basic means of attempting to settle disputes, any priority or privileged status which it is to enjoy depends on the parties, and not on considerations of principle bearing on justiciability. This is a sensible approach because it avoids placing unnecessary constraints on the actions of states and recognises that as international disputes are complex, the chances of a peaceful settlement are enhanced by allowing different procedures to be employed simultaneously. Though relevant to the relation between negotiation and adjudication, this point is no less pertinent in other contexts. For as we shall see in later chapters, the approach adopted in the Aegean Sea case has been followed in cases where the relation between adjudication and other political procedures was in issue.

The final aspect of negotiation which needs to be mentioned concerns what may be termed the substantive relation between negotiation and adjudication. When the parties to an international dispute attempt to deal with it by diplomacy, they may say and do things in the course of negotiation which could prejudice their case if the dispute is subsequently referred to adjudication. Although the dangers here should not be exag-gerated and a state’s actions can sometimes have the effect of improving its case, if such a prejudicial link exists (or is thought to exist) it may make a state reluctant to refer a dispute to adjudication. The answer to this type of problem is to insulate the judicial proceedings from the previ-ous negotiations concerning the substance of the dispute. An example of how this can be done is provided by the Special Agreement under which the United States and Canada agreed to refer the Gulf of Maine case³⁷ to a chamber of the International Court. Article 5(1) of the Agreement stated:

³⁶  Ibid., p. 12. Since the Court made this observation several cases have been settled in the course of litigation. See, for example, the settlement of the Iran–United States Aerial Incident case in 1996, noted in (1996) 90 AJIL p. 278.

³⁷  Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, [1984] ICJ Rep. p. 246. This case is discussed in Chapters 6 and 7.

Neither party shall introduce into evidence or argument, or publicly dis-close in any manner, the nature or content of proposals directed to a mar-itime boundaries settlement, or responses thereto, in the course of negoti-ations or discussions between the parties undertaken since 1969.³⁸

This type of provision is rather rare, which perhaps suggests that excluding the evidence of diplomatic exchanges is only likely to be important when negotiations have been prolonged, or when criteria of reasonableness or acceptability are expected to play a significant part at the judicial stage. In the first situation, however, the value of being able to move from profitless negotiation to a definitive settlement is particularly marked; moreover, the tendency to use equitable criteria for certain kinds of decision means, as we shall see, that in some areas of international law, the line between adjudication, based on rules, and conciliation, emphasising accommo-dation, has become somewhat blurred. If, therefore, negotiation is not to be a barrier to adjudication, prohibitions on referring to diplomatic material at the stage when a dispute is being litigated may be increasingly necessary.

Limitations of negotiation

Negotiation is plainly impossible if the parties to a dispute refuse to have any dealings with each other. Serious disputes sometimes lead the states concerned to sever diplomatic relations, a step that is especially common when force has been used. Prominent examples include the severance of relations between the United States and Iran, following the seizure of the embassy in Tehran in 1979, and the breaking of diplomatic relations between Britain and Argentina after the invasion of the Falkland Islands in 1982. Of course, the termination of official relations need not entail the elimination of all contact between the states concerned. It does, however, preclude the use of the various standard arrangements for diplomatic contact, described earlier, and thus places a substantial obstacle in the path of negotiation.

Similar consequences flow from the use of non-recognition to deny standing to the other party to a dispute, or as a general mark of disapproval.

³⁸ Text in (1981) 20 ILM p. 1378. A further reference to negotiations is to be found in Article 7(1) which provided that: ‘Following the decision of the Chamber, either party may request negotiations directed toward reaching agreement on extension of the maritime boundary as far seaward as the Parties may consider desirable.’ 

Here the problem is that official channels are never established. The con-sequences of this are demonstrated by the Arab–Israeli situation, where until quite recently the refusal of the Arab states to recognise Israel and Israel’s refusal to acknowledge the PLO prevented direct negotiations. It is again possible for the absence of official communication to be mitigated by alternative means, as the extensive discussions between United States and Chinese representatives in the years before American recognition of the Peking government demonstrate. But where non-recognition is essentially a reflection of the substantive issues in dispute, as in the case of the Arab states and Israel, there may be little reason for such links to be established.

Negotiation will be ineffective if the parties’ positions are far apart and there are no common interests to bridge the gap. The variety of ways in which an agreement can be constructed so as to satisfy both sides has already been pointed out. But it must be frankly recognised that in many situations no arrangement, however ingenious, is capable of fulfilling this function. In a territorial dispute the party in possession may see no reason to negotiate at all. In any dispute if one party insists on its legal rights, while the other, recognising the weakness of its legal case, seeks a settlement on some other basis, there is little room for agreement on matters of substance, and even a procedural agreement, to refer the dispute to arbitration, for example, may be difficult to negotiate without seeming to prejudice one side or the other.

Disagreement on the agenda for discussion, which may mean that ne-gotiations never get beyond the stage of ‘talks about talks’, is usually a reflection of a wide gulf between the parties on some such substantive matter. For example, the reluctance of the United Kingdom to place the issue of sovereignty on the agenda of its discussions with Spain on the sub-ject of Gibraltar is a clear indication of unwillingness to yield on the crucial issue of legal title. Whilst it is true that relations between states are not static and that concessions which are unthinkable today may be regarded with equanimity tomorrow, in many disputes, including some of the most serious, until the time is ripe, negotiation can have little to offer.

Even when it is obvious that negotiation has only a small chance of success, it is commonly assumed that the parties to a dispute are duty bound to try. Whether this assumption is correct, depends on whether negotiation is ever to be regarded as an inappropriate means of settlement. The answer must be yes. If a different arrangement has already been agreed between the parties, a state which demands negotiation and refuses to use the agreed procedure is in breach of its obligations and has no reason to complain if its demands are refused. This was the position in the 1972

‘Cod War’ when Iceland repudiated the provisions for judicial settlement in the treaty quoted earlier and the United Kingdom referred the dispute to the International Court.³⁹

A more general objection is that the idea that states should always be prepared to negotiate ignores the fact that the terms of any agreement will generally reflect not the merits of each party’s case, but their relative power.⁴⁰ Admittedly, ‘a less powerful party in an international negotia-tion is not necessarily at the mercy of a more powerful party’,⁴¹ and the concept of power itself is a complex one. The fact remains, however, that a state with a completely unjustified claim may well be able to secure a favourable negotiated settlement by bringing superior power to bear. A party which possesses this kind of advantage will naturally tend to demand negotiations and to portray any resistance as unreasonable. But since it is clear that to negotiate in such a situation is to guarantee that the solution will be unjust, the weaker party has excellent grounds for refusing the invitation.

Another drawback appears if we consider the possibility that the at-tempt to resolve a dispute by negotiation may be unsuccessful. For nego-tiations which are unsuccessful do not, as might be thought, invariably leave a dispute where it was to begin with. On the contrary, although they can sometimes improve matters by demonstrating that the parties are slowly moving closer together, they can also have the opposite effect. Indeed, because negotiations involve exploring the possibilities for re-solving a dispute peacefully, lack of progress may encourage the use of force by seeming to eliminate all the alternatives. As a commentator on the Falklands dispute put it:

While negotiations can control a conflict for a certain time while alternatives are being considered, every time an alternative is considered and discarded by mutual agreement, the dispute . . . has less and less room to evolve toward settlement. The successful control of a conflict – not necessarily its resolution – seems to lie in the ability to avoid running short of viable alternatives.⁴²

³⁹ See Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, [1973] ICJ Rep. p. 3.

⁴⁰ See Northedge and Donelan, Political Aspects, p. 282.

⁴¹ J. W. Salacuse, ‘Lessons for practice’, in Zartman and Rubin, Power and Negotiation, p. 255 at p. 257.

⁴² R. de Hoyos, ‘Islas Malvinas or Falkland Islands: The negotiation of a conflict, 1945–1982’, in M. A. Morris and V. Millanˆ (eds.), Controlling Latin American Conflicts, Boulder, 1983, p. 185 at pp. 192–3.

Events in the twenty-year period preceding the war of 1982 appear to bear out this analysis. Initially the United Kingdom denied that there was any dispute with Argentina, then, when this was no longer feasible, de-layed formalising negotiations for as long as possible. The wisdom of this strategy became apparent when negotiations eventually began, because as one alternative after another was discussed and rejected, the prospects of securing a settlement which both sides could accept soon receded to vanishing point. This does not mean that Argentina was justified either legally or morally in attempting to seize the islands by force, nor that the failure of the parties’ negotiations should be thought of as making the war inevitable. It does, however, suggest that the ending of negotiations can sometimes be the signal for a dispute to enter a new and more dangerous phase and, as a corollary, that an awareness of these implications can make governments reluctant to become involved with them.

A state can of course bind itself to negotiate by treaty, or find itself in a situation where an obligation to negotiate arises under the general law. In 1997, for example, the International Court decided that Hungary and Slovakia were under a legal obligation to negotiate in good faith to determine how the objectives of a treaty concerning a project on the Danube could best be carried out.⁴³ In an earlier case it decided that ac-cording to customary international law, the delimitation of continental shelf boundaries between neighbouring states ‘must be effected by agree-ment in accordance with equitable principles’.⁴⁴ Similarly, in 1974 it found that the United Kingdom and Iceland were ‘under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences’,⁴⁵ concerning their respective fishery rights in the waters of Iceland. In all three cases what the Court was saying was that since the rights of more than one state were in issue, the matter in question was not open to unilateral regulation, but had to be negotiated.

In the above situations, like the cases of consultation considered earlier, the duty to negotiate exists even before there is a dispute. Often, however, negotiation is laid down as a requirement when a dispute arises and forms either the exclusive procedure, or, more commonly, a necessary prelimi-nary to the use of other methods. An illustration of this type of obligatory negotiation may be seen in Article 41 of the 1978 Vienna Convention on Succession of States in Respect of Treaties,⁴⁶ which provides:

⁴³  Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, [1997] ICJ Rep. p. 7.

⁴⁴   North Sea Continental Shelf, Judgment, [1969] ICJ Rep. p. 3.

⁴⁵   Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, [1974] ICJ Rep. p. 3.

⁴⁶  See R. Lavalle, ‘Dispute settlement under the Vienna Convention on Succession of States in Respect of Treaties’, (1979) 73 AJIL p. 407.

If a dispute regarding the application or interpretation of the present Con-vention arises between two or more Parties to the Convention, they shall, upon the request of any of them, seek to resolve it by a process of consul-tation and negotiation.

It is clear then that in some situations there is a duty to negotiate. Moreover in others, as we shall see in Chapter 8, the parties to a dispute may have a lesser obligation such as to ‘proceed expeditiously to an exchange of views’⁴⁷ regarding the means of settlement to be adopted. However, it is worth emphasising that just as there is no general duty to consult other states before taking action which may affect them, so there is no general duty to attempt to settle disputes by negotiation. The various means of settlement in Article 33 of the Charter are listed as alternatives, and so in the absence of a specific obligation to negotiate a state is entitled to suggest that another procedure should be used. In a dispute concerning sovereignty over territory, for example, a state which is confident of its legal title may well advocate judicial settlement, as the United Kingdom did in the case of Gibraltar. Naturally the offer is unlikely to be accepted if the other party’s claim is political rather than legal. But that is hardly the point. Negotiation is simply one means of settlement and, in the absence of a legal duty to negotiate, states are entitled to use it or not as they see fit.

None of the above is intended to imply that negotiation is not an ex-tremely important means of dealing with international disputes. In almost all cases diplomatic exchanges will be necessary before a disagreement be-comes sufficiently specific to be called a dispute, and once a dispute has arisen negotiation will often provide the best prospect of a solution. We have seen, however, that although negotiation must be regarded as basic, it may also be impossible, ineffective or inappropriate. As a consequence, use of the methods described in the following chapters may be essential if any progress is to be made.

⁴⁷ United Nations Convention on the Law of the Sea (1982) Article 283. For further examples see S. L. Kass, ‘Obligatory negotiations in international organisations’, (1965) 3 Can. Yearbook Int. L. p. 36.

  

2. Mediation

When the parties to an international dispute are unable to resolve it by negotiation, the intervention of a third party is a possible means of break-ing the impasse and producing an acceptable solution. Such intervention can take a number of different forms. The third party may simply en-courage the disputing states to resume negotiations, or do nothing more than provide them with an additional channel of communication. In these situations the intermediary is said to be contributing ‘good offices’. On the other hand, the assignment may be to investigate the dispute and to present the parties with a set of formal proposals for its solution. As we shall see in Chapter 4, this form of intervention is called ‘conciliation’. Between good offices and conciliation lies the form of third-party activity known as ‘mediation’.¹

Like good offices, mediation is essentially an adjunct of negotiation, but with the mediator as an active participant, authorised, and indeed expected, to advance fresh proposals and to interpret, as well as to trans-mit, each party’s proposals to the other. What distinguishes this kind of assistance from conciliation is that a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations, although in practice such distinctions tend to be blurred. In a given case it may therefore be difficult to draw

¹  Useful discussions of mediation are to be found in F. S. Northedge and M. D. Donelan (eds.),

International Disputes: The Political Aspects, London, 1971, Chapter 13; C. M. H. Waldock (ed.), International Disputes: The Legal Aspects, London, 1972, Chapter 2B; K. V. Raman (ed.), Dispute Settlement through the United Nations, New York, 1977, Chapter 3; S. Touval and I. W. Zartman (eds.), International Mediation in Theory and Practice, Boulder, 1985; United Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, 1992, Chapter 2C; D. J. Bercovitch and J. Z. Rubin (eds.), Mediation in International Rela-tions, London, 1992; J. Bercovitch (ed.), Resolving International Conflicts: The Theory and Practice of Mediation, London, 1996; M. Kleiboer, The Multiple Realities of International Mediation, Boulder, 1998; and M. C. Greenberg, J. H. Barton and M. E. McGuinness (eds.), Words over War, Lanham, 2000.

28 the line between mediation and conciliation, or to say exactly when good offices ended and mediation began.

Mediation may be sought by the parties or offered spontaneously by outsiders. Once under way it provides the governments in dispute with the possibility of a solution, but without any prior commitment to accept the mediator’s suggestions. Consequently it has the advantage of allowing them to retain control of the dispute, probably an essential requirement if negotiations are deadlocked on a matter of vital interest. On the other hand, if a face-saving compromise is what is needed, it may be politically easier to make the necessary concessions in the course of mediation than in direct negotiation. If a dispute concerns sensitive issues, the fact that the proceedings can be completely confidential is an advantage in any case. As with other means of dispute settlement, however, not every in-ternational dispute is suitable for mediation. The first requirement is a willing mediator.

Mediators

Mediation may be performed by international organisations, by states or by individuals. For the United Nations and a number of regional or-ganisations, the settlement of disputes is a basic institutional objective and as a result the Secretary-General and his regional counterparts are often engaged in providing good offices and mediation. In certain sit-uations non-governmental organisations can act as mediators. The In-ternational Committee of the Red Cross (ICRC), for example, avoids involvement in political disputes, but regularly intervenes where armed conflict or the treatment of detainees raise humanitarian issues.² Since it offers the opportunity to become involved in a dispute and to influence its outcome, the role of mediator also has attractions for states concerned to see a dispute resolved peacefully, or with an interest in a particular solution. Thus it is not unusual to find the course of an international dispute punctuated by offers of mediation from one or more outside parties.

In the dispute between Britain and Argentina over the invasion of the Falkland Islands in 1982, first the United States, in the person of Mr Alexander Haig, offered to mediate, then the United Nations

²   See D. P. Forsythe, ‘Humanitarian mediation by the International Committee of the Red Cross’, in Touval and Zartman, International Mediation, p. 233.

Secretary-General, Senor˜ Perez´ de Cuellar,´ tendered his good offices.³ From the American perspective war between a NATO ally and a leading member of the OAS would force a choice between allies which it strongly wished to avoid. The Secretary-General, on the other hand, was involved in the dispute because Argentina’s invasion had already been condemned by the Security Council and almost all members of the United Nations were anxious for a fresh initiative to avert the threat of further bloodshed.

In 1978, when war between Chile and Argentina seemed to be imminent over the implementation of the Beagle Channel award,⁴ the Pope offered the services of Cardinal Antonio Samore´ as mediator, a proposal which both governments accepted. As in the Falklands crisis, the motives for intervention are not hard to identify. For the concern naturally aroused by the prospect of war between two Catholic states was here reinforced by both the promptings of the United States and a tradition of Papal involvement in South American affairs stretching back over five centuries.

In an earlier territorial dispute, the conflict between India and Pakistan over Kashmir in 1965, the mediation of the Soviet Union was instrumental in securing a cease-fire when war had already broken out. The historical and religious connections which inspired the offer of mediation in the previous example were here replaced by a political interest in restoring stability to an area close to the southern borders of the Soviet Union and avoiding the risk of Chinese intervention, while at the same time advancing Soviet influence in the region.⁵

The desire to extend influence is by no means confined to major pow-ers. Indeed, mediation can provide small or middle-rank states with an opportunity to improve relations with larger states, while also safeguard-ing other interests. In 1980, for example, Algeria pursued a combined good offices and mediation role in the diplomatic hostages dispute be-tween the United States and Iran. The dispute, after some very complex negotiations over Iranian assets in the United States, was eventually set-tled. The settlement not only enhanced Algeria’s reputation in the eyes

³  For an excellent account of these initiatives and the attempt by President Belaunde of Peru to develop the results of the Haig mediation see L. Freedman and V. Gamba-Stonehouse, Signals of War: The Falklands Conflict of 1982, London, 1990, Chapters 12 to 18; and Kleiboer,

Multiple Realities, Chapter 5.

⁴  Beagle Channel Award (1977), 52 ILR p. 91. Text also in (1978) 17 ILM p. 634. For discussion of this case see Chapter 5.

⁵  See T. P. Thornton, ‘The Indo-Pakistan conflict: Soviet mediation at Tashkent, 1966’, in Touval and Zartman, International Mediation, p. 141. Similar motives probably lay behind an unsuccessful Soviet attempt to mediate in the Gulf crisis of 1990, see L. Freedman and E. Karsh, The Gulf Conflict 1990–1991, London, 1993, pp. 175–9.

of Americans, but, more importantly, resolved a crisis which could have led to war between a Super-Power and a Moslem state.⁶ In a similar way, Algeria’s constructive intervention in the dangerous tension between Iran and Iraq in 1975 again served to increase the mediator’s prestige and in-fluence in the Moslem world, while also preserving the unity of OPEC, an organisation in which Algeria, as an oil exporter, had a major interest.⁷

In the crisis which accompanied the break-up of Yugoslavia between 1991 and 1995 mediation was attempted by a number of intermediaries, including at various times the European Community (EC), the United Nations, working in conjunction with the EC, and the United States. Incentives for EC involvement were the historical and geographical links of many of the member states with Yugoslavia⁸ and for the UN a combination of humanitarian considerations and the issue of peace and security which led the Security Council to adopt measures under Chapter VII of the Charter. The United States, which became involved in mediation at a relatively late stage, had throughout been closely concerned with the crisis in its capacities as a member of the Security Council and NATO and had witnessed the failure of earlier efforts to deal with a critical threat to regional stability.

The cases just considered indicate the kinds of concerns that may in-duce an offer of mediation. It should be noted, however, that in a signif-icant number of disputes mediation will be out of the question because no mediator is able or willing to act. Third states are unlikely to regard themselves as qualified to act as mediators between Super-Powers, which are moreover rarely willing to entertain the idea of outside intervention in their disputes. In most situations too mediation is an exhausting and often thankless task which requires a correspondingly strong incentive. Shuttling between Buenos Aires and London in an effort to reconcile the governments of General Galtieri and Mrs Thatcher calls for more than patience and an iron constitution. As the Haig mission demonstrated, a

⁶   See G. Sick, ‘The partial negotiator: Algeria and the US hostages in Iran’, in Touval and Zartman, International Mediation, p. 21 and R. M. Slim, ‘Small state mediation in inter-national relations: The Algerian mediation in the hostage crisis’, in Bercovitch and Rubin, Mediation, p. 206. For Algeria’s unsuccessful attempt to mediate when Iraq invaded Kuwait see Freedman and Karsh, The Gulf Conflict, p. 248.

⁷   See D. Lieb, ‘Iran and Iraq at Algiers, 1975’, in Touval and Zartman, International Mediation, p. 67.

⁸   See K. Webb, V. Koutrakou and M. Walters, ‘The Yugoslavian conflict, European mediation, and the contingency model: A critical perspective’, in Bercovitch, Resolving International Conflicts, p. 171; and M. C. Greenberg and M. E. McGuinness, ‘From Liston to Dayton: International mediation and the Bosnia crisis’, in Greenberg et al., Words over War, p. 35.

state which puts itself forward in the role of mediator may antagonise an erstwhile ally, while sacrificing its own freedom of action. Yet there can never be any guarantee that these and other diplomatic costs will be repaid by success of the mission. In such circumstances the calculations that must temper an inclination to mediate and the result – that in some disputes a willing mediator may be hard to find – are not difficult to understand.

Consent to mediation

Mediation cannot be forced on the parties to an international dispute, but only takes place if they consent. So unless they have taken the initiative and appointed a mediator already, their unwillingness to consider this form of assistance may prove a major stumbling block. This is because although a mediator’s proposals are not binding, the very act of mediation has implications which may be unacceptable to either or both of the governments concerned.

By accepting mediation, a government acknowledges that its dispute is a legitimate matter of international concern. If, therefore, a question of international accountability lies at the heart of the controversy, as in the furore over South Africa in the apartheid era, mediation will be out of the question. Moreover, a mediated settlement is always likely to be a com-promise of some kind. So if a government believes either that it can win the dispute, or that the time to make concessions has not yet arrived, there is again unlikely to be room for mediation. The clearest example of the former situation is when a state’s position is effectively unchallengeable, as when the Soviet Union refused to accept the mediation of the United Nations Secretary-General following its intervention in Hungary in 1956. An example of the ‘no-compromise’ situation is provided by Nigeria’s refusal to accept mediation over the secessionist war in Biafra, which it also claimed was a matter of domestic jurisdiction.

The elements that may induce a government to accept mediation may be illustrated from the disputes already considered. In the Falklands cri-sis both Britain and Argentina were anxious to secure and maintain the sympathy of regional allies and to avoid alienating outside states, whose political or economic support might be useful in the event of armed con-flict. Here, then, acceptance of mediation was motivated by a desire to project an image of political reasonableness as much as by any expecta-tion of success. In the Yugoslavia crisis, on the other hand, Serbia was under severe pressure from economic sanctions imposed by the UN, the beleaguered Bosnian Government desperately needed outside support

and neither Croatia, nor the Serbian minority in Bosnia, was in a position to challenge international involvement. These factors made mediation possible from an early stage, although the complexity of the situation and its constantly changing character meant that only the final effort, led by the United States and culminating in the Dayton Peace Agreement of 1995, was successful.

In many disputes, outside opinion is not as important, but other in-ducements may be present. Unlike the Falklands dispute, where the force-fulness of the British response appears to have taken the Argentine govern-ment by surprise, the Beagle Channel controversy concerned a situation in which the use of force by Argentina was certain to lead to war. Since Argentina was ruled by a military junta, war could have radical domestic repercussions. In the light of this, and the fact that by setting up the ill-starred arbitration Chile and Argentina had sought an external resolution of this dispute once already, it is perhaps not too surprising that following the Pope’s timely intervention, they were willing to accede to mediation and try again.⁹

In the Kashmir dispute, on the other hand, war, the product of two decades of hostility between India and Pakistan, had already broken out. What seems to have been the main incentive to accept mediation here was that having used force to make the point that their respective claims would be defended, neither side had the power to go further and impose its own solution unilaterally. Thus if hostilities cannot always be avoided, a military stalemate may provide a convenient opportunity for second thoughts.

Mediation is likely to be particularly relevant when a dispute has pro-gressed to a stage which compels the parties to rethink their policies. A stalemate is clearly one such situation; another is when the parties come to recognise that the risks of continuing a dispute outweigh the costs of trying to end it. In the dispute between Iran and Iraq, for example, Iraq’s determination to crush the Kurds presented Iran with a choice between increasing its support, leading, almost certainly, to war with Iraq, and of-fering to withdraw its support for the Kurds in return for Iraq’s recognition of Iran’s boundary claims. Since Iraq had concluded that the Kurds were

⁹   See M. Laudy, ‘The Vatican mediation of the Beagle Channel dispute: Crisis intervention and forum building’, in Greenberg et al., Words over War, p. 293; T. Princen, ‘International mediation – The view from the Vatican’, (1987) 3 Negotiation Journal, p. 347; T. Princen, ‘Mediation by a transnational organisation: The case of the Vatican’, in Bercovitch and Rubin, Mediation, p. 149; and G. R. Moncayo, ‘La mediation pontificale dans l’affaire du Canal Beagle’, (1993) 242 Hague Recueil des Cours, p. 197.

currently a more pressing issue than the disputed boundary, the way was clear for the two states to accept a fact-finding mission from the United Nations, a diplomatic initiative by Egypt and finally Algeria’s mediation.

In the diplomatic hostages dispute, where Algeria was also involved, there had been deadlock for almost a year when Iran eventually made approaches to the United States. A significant factor here was that the do-mestic turmoil which had accompanied the Islamic revolution, and which was to complicate the dispute throughout, was beginning to subside. If this made a new policy towards the hostages easier to formulate and put into effect, such a move was also becoming increasingly necessary. Po-litically, the hostages had probably served their purpose, a presidential election in the United States was imminent and Iran was suffering from financial and diplomatic isolation. When Iraq seized the opportunity to attack Iran in September 1980, the pressure to seek a deal which would release Iranian assets in the United States was further increased. Much hard bargaining would be needed before a settlement was secured, but the United States and Iran were now both in a frame of mind to accept an offer of mediation.

For mediation to get under way the parties in dispute must do more than accept that it is a good idea. They must also agree upon the mediator. If the governments concerned believe that a would-be mediator has little understanding of their position, is unsympathetic, wholly committed to the other party, or less concerned with their interests than with a selfish agenda, the candidate is unlikely to be acceptable, though if there is no objection to mediation in principle, an offer from a different quarter may be more successful.

An individual’s ability to pose as a prospective mediator depends on relevant personal qualities and reputation; a state’s on the circumstances, including the time and place of the dispute. In the Beagle Channel con-troversy, for example, not only was the Pope a singularly appropriate mediating authority, but his envoy revealed himself as an immaculate ex-ponent of the art of personal diplomacy. Described as,‘tireless, bubbling over with humour and goodwill, a beaming Pickwickian prelate who was also the soul of discretion’,¹⁰ Cardinal Samore´ was clearly a shrewd choice for his exacting role.

It is sometimes suggested that mediation will only be acceptable if the mediator is perceived to be strictly neutral. Neutrality is certainly important for some mediators and in some situations. The ICRC, for example, is always careful to avoid taking sides in political disputes and

¹⁰  The Economist, 13 January 1979, p. 54.

recognises that its standing to act on humanitarian issues depends on preserving its neutrality. The same is true of the wider type of intervention practised by the Secretary-General of the United Nations. As we shall see in Chapter 10, the Secretariat has a power of initiative in dispute situations, as well as a role in carrying out functions assigned by the political organs; in both cases it must act impartially. Elsewhere, however, acceptability is likely to depend more on what a mediator can offer and on being in a position to talk to both sides. Thus Algeria, an uncommitted Moslem state, was in an ideal position to mediate between Iran and Iraq in 1975, and, as the state which had been entrusted with the representation of Iran’s interests in Washington since diplomatic relations were broken off, was also well placed to mediate in the hostages crisis.

In the Kashmir dispute neither the United States nor the United King-dom was in a position to act as mediator. The first was too closely aligned with Pakistan, and though the United Kingdom had successfully mediated in the same parties’ dispute over the Rann of Kutch only a few months before, it had now cut off military aid and was attempting to have India condemned in the United Nations. In contrast, the acceptability of the Soviet Union rested on its interests and influence as a regional power, and the fact that though more attention had been paid to developing relations with India than with Pakistan, this policy had recently been modified. When war broke out the Soviet Union refused to condemn Pakistan and so, despite maintaining its military assistance to India, was able to satisfy Pakistan as to its suitability as a mediator.¹¹

When states offer to mediate it is usually because they see either a settlement in itself, or a settlement on particular terms, as furthering some interest of their own. This is well recognised and is therefore not a disqualification, provided the mediator can offer the parties something which they want, or cannot afford to refuse. Thus the fact that a state has interests of its own and may have close relations with one party to a dispute will not normally be an objection so long as it is on speaking terms with the other party. Indeed, a special relationship with one side may actually be an advantage, for as a leading commentary notes, when a state which is close to one party offers to act as mediator, ‘the closeness that implies a possibility to “deliver” its friend may stimulate the other party’s co-operativeness’.¹²

¹¹ See N. Schwiesow, ‘Mediation’, in E. Luard (ed.), The International Regulation of Frontier Disputes, London, 1970, at pp. 161–2.

¹² Touval and Zartman, International Mediation, p. 257. See also P. J. Carnevale and S. Arad, ‘Bias and impartiality in international mediation’, in Bercovitch, Resolving International Conflicts, p. 39.

The inducements to accept particular mediators are well illustrated by the Falklands crisis. There, neither side could challenge the authority of the Secretary-General, who could explore the possibilities of a settlement on behalf of the United Nations, while the situation of the United States bore some resemblance to the Soviet position in the Kashmir dispute. Allied with Britain through NATO, and a potential source of logistical support for the British task force, the United States had also recently sought to develop closer relations with Argentina. Any doubts the latter may have had as to the objectivity of the United States were outweighed by the influence it was in a position to exercise over its ally¹³ and by another consideration that may have been present in the previous case – the political cost of rejecting mediation, especially when offered by a powerful neighbour.

Functions of mediation

If mediation becomes possible when the parties suspect that a settlement on their own terms may no longer be achievable at an acceptable cost, then the mediator’s task is to devise or promote a solution from which both can devise a measure of satisfaction. This may, of course, be impossible, in which case mediation will fail. But a resourceful mediator has a variety of means at his disposal to avoid this result.

Much can be achieved by simply providing good offices and facilitating communication between the parties. If a dispute is serious enough to call for the services of a mediator, it is possible that events have already had the effect of restricting the parties’ contact, or have made it difficult for them to deal with each other openly. In the diplomatic hostages crisis, for example, formal relations between the United States and Iran were broken off following the seizure of the American embassy in Tehran in November 1979 and a subsequent unsuccessful rescue mission. Moreover, since the revolutionary authorities had presented the United States as the enemy of Iran, and corrupter of its spiritual values, it was impossible for them to deal directly with the United States, even when they had decided that it was in their interests to end the crisis. The elimination of official contact therefore meant that the task of re-establishing communication was performed by a highly diverse group of intermediaries and ultimately

¹³  Indeed, according to a leading study, ‘The Argentines were generally pleased with the idea of American mediation: securing it had been one of the original objectives behind the occupation of the Islands’, Freedman and Gamba-Stonehouse, Signals of War, p. 168.

by the Algerians, whom the parties were prepared to entrust with good offices and mediation.¹⁴

Once the parties are in contact, a mediator can be useful in loosening the tension which may have developed in the course of the dispute, and creating an atmosphere conducive to negotiation.¹⁵ Such an intermedi-ary can also be an effective channel of information. Thus in the hostages crisis Algeria was able to suggest how certain proposals from Washington could be modified to improve their chances of acceptance and in a sub-tle way conveyed the message from Tehran that though Iranian assets in the United States were of great symbolic importance, the financial im-plications of the arrangements for dealing with them were a secondary consideration.¹⁶ It is naive to believe that all international disputes can be solved by the removal of misunderstandings, but since the attitude of a party is determined by its appreciation of its own position in relation to its opponent’s capabilities and intentions, a mediator’s reports may be important in encouraging a realistic assessment of the situation and inducing a conciliatory frame of mind. In the Falklands crisis, for ex-ample, there is good reason to believe that one of Mr Haig’s first tasks was to convince the Argentine government that Britain’s threat to use force to recover the islands was not a bluff, and that the price of intran-sigence on the terms of a possible settlement would be correspondingly high.¹⁷

The value of mediation as a source of information should not be overstated. Mediators are not infallible and, as we have seen, often have interests of their own which may influence what they say and how their messages are received. It is therefore as well to remember that,

Governments generally do not lend absolute credibility to mediators (or to any other sources or channels). Instead, information received is interpreted in light of the assumed motives and interests of the source or the channel, and in terms of its usefulness in furthering the recipient’s own goals.¹⁸

¹⁴ For a vivid account of the unconventional arrangements preceding Algeria’s involvement, see P. Salinger, America Held Hostage, London, 1982.

¹⁵ See H. G. Darwin, ‘Mediation and good offices’, in Waldock, Legal Aspects, p. 83 at p. 85.

¹⁶ Sick, ‘The partial negotiator’, p. 35. For an excellent account of the value of mediation in situations of this type see R. Cohen, ‘Cultural aspects of international mediation’, in Bercovitch, Resolving International Conflicts, p. 107. See also G. O. Faure, ‘International negotiation: The cultural dimension’, in V. A. Kremenyuk (ed.), International Negotiation (2nd edn), San Francisco, 2002, p. 392.

¹⁷ See Freedman and Gamba-Stonehouse, Signals of War, p. 176.

¹⁸  Touval and Zartman, International Mediation, pp. 15, 16.

There is therefore no guarantee that the information brought by a mediator will always be believed; nevertheless its presence will certainly tend to discourage wishful thinking, while sometimes providing critics of official policy (whose pressure may be important in encouraging a settlement) with a source of valuable intelligence.

What of the mediator’s substantive contribution? The aim, as already noted, must be to satisfy both parties. In some situations it will be possible to do this by giving each state all or most of what it wants. This is because the aims of the parties in an international dispute are rarely identical and often quite different. Of course, the fact that there is a dispute indicates that the parties’ aims are not entirely compatible, but unsuccessful negotiations may cause these differences to become the exclusive focus of attention. A mediator who can remind the parties of their essential objectives (or cause them to be redefined) may therefore be in a position to suggest a mutually satisfactory arrangement.

In the Beagle Channel controversy, for example, Argentina’s main in-terest evidently lay in the effect of the controversial award on its marine sovereignty, while Chile’s centred on respect for the decision and the ter-ritorial consequences. The settlement promoted by Cardinal Samore’s´ mediation therefore confirmed Chile’s sovereignty over the disputed is-lands, in return for relinquishing its rights in South Atlantic waters.¹⁹ Similarly in the Iran–Iraq dispute of 1975, Iran’s support for the Kurds was evidently regarded by the Shah as a means to an end, rather than an essential interest. Consequently, when Iraq decided that its main concern was to secure an end to Iranian intervention, Algeria was able to arrange a settlement containing concessions by Iraq on the border issue.

A state in a strong position will naturally expect a settlement to reflect its aims, though acceptance of mediation usually denotes a readiness to make at least some concessions. If both parties regard themselves as rel-atively strong and their aims are truly incompatible, then mediation, if it is possible at all, will generally fail. To reduce this risk the mediator may be able to put extra inducements into the scale of the parties’ cal-culations. In both the Falklands crisis and the Kashmir dispute, the fact that the mediating state was a substantial source of military support for one party was clearly capable of manipulation as an incentive to both sides to make concessions. Moreover, in the Kashmir dispute India re-lied on Soviet influence to protect it from condemnation in the Security

¹⁹  For the Papal Proposal of 1980 and the 1984 Treaty of Peace and Friendship, which settled the dispute, see (1985) 24 ILM p. 7 and p. 10.

Council. The possibility of Soviet protection being withdrawn, whether or not the threat was actually made, accordingly increased the leverage which Mr Kosygin could exercise as mediator.²⁰

One of the reasons why powerful states are so often called upon to act as mediators is this ability to influence the parties’ behaviour by exploiting the strength of their own position. In the negotiations over the future of Namibia, for example, a prominent role was played by a Contact Group consisting of representatives of five Western members of the Security Council.²¹ By acting together the members of the Group were in a position to threaten South Africa with the prospect of economic sanctions, a form of leverage which requires concerted action if it is to be credible. An illustration of the opposite technique, the rewarding of co-operation, is the settlement of the Indus waters dispute through the mediation of the International Bank for Reconstruction and Development in 1960. By providing Pakistan with the resources needed to control its own water supply, the Bank in effect bought one party its objective, while relieving the other, India, of the burden of the dispute: a settlement in which, with the aid of outside intervention, both parties were able to realise their aims.²²

Although a mediated settlement must be a compromise of some kind, it does not follow that the parties must be treated equally. Each must be given something, but need only receive whatever it is ready to settle for as the price of ending the dispute. A state in a relatively weak position may be prepared to sacrifice its original objective and accept some substitute satisfaction as a way of cutting losses and saving face.²³ Thus a party may be content with some symbolic or token recognition of its claims. Here mediation can be useful in improvising such expedients, especially when there are obstacles to direct negotiation. In the Falklands mediation, for example, there was talk of dual flags and a symbolic Argentine presence

²⁰ Thornton, ‘The Indo-Pakistan conflict’, pp. 158–9. The possibility of the Soviet veto being used against Pakistan meant that Mr Kosygin was also in a good position to put pressure on Pakistan. On the value of this type of influence see further Carnevale and Arid, ‘Bias and impartiality’, passim.

²¹ See M. A. Spiegel, ‘The Namibia negotiations and the problem of neutrality’, in Touval and Zartman, International Mediation, p. 111.

²² For an account of the background to the dispute and the details of the Indus Waters Treaty (1960) by which it was resolved, see A. H. Garretson, C. J. Olmstead and R. D. Hayton (eds.), The Law of International Drainage Basins, New York, 1967, Chapter 9. See also S. C. McCaffrey, The Law of International Watercourses, Oxford, 2001, pp. 248–50.

²³ See F. Edmead, ‘Analysis and prediction in international mediation’, in Raman, Dispute Settlement, p. 221 at pp. 260–7.

on the islands, either of which in other circumstances might have been a suitable inducement for withdrawal.

Because the costs of a dispute end with its settlement the fact that a dispute has been settled peacefully can itself be treated as an achievement, regardless of the terms obtained. This is often a key factor in promoting the peaceful settlement of disputes, and a skilful mediator is likely to emphasise the credit which a settlement will reflect on the parties, while reminding them of the serious consequences of any failure. The Iran– Iraq agreement was announced to general acclaim at the closing session of the first OPEC summit in 1975, and shows how a successful outcome can be orchestrated. On the other hand, as the 1938 Munich agreement demonstrated, a desire for peace at any price may enable what is really nothing more than the appeasement of an aggressor to be presented as a diplomatic master-stroke.

Closely related to peaceful settlement as prominent values are obser-vance of international law and the United Nations Charter, and compli-ance with judicial decisions and the resolutions of international organisa-tions. These work best when backed by other pressures and even then may not be enough to produce a settlement. Their force, however, should not be underestimated. The humanitarian mediation practised by the ICRC relies very heavily on the desire of governments to secure the Red Cross ‘good house-keeping seal of approval’²⁴ and the odium which attaches to those who seem to have something to hide. These factors are also relevant to the mediation of political disputes. In the Falklands crisis, for example, if Argentina had wanted to avoid hostilities, Security Council Resolution 502, which called for Argentine forces to leave the islands, would have provided a respectable reason for withdrawal.

In a dispute which neither side can win, both may be looking for such a way out. In the Kashmir dispute the military stalemate meant that both parties were more concerned with cutting their losses than with achieving their initial objectives. There, mediation provided an honourable escape route in the form of a cease-fire and arrangements for continuing dis-cussions between India and Pakistan on issues of outstanding concern. Agreements like this on future procedure are among the most important kinds of substitute satisfaction. They provide the parties with respite and a sense of progress, while postponing the day of reckoning. Such an ar-rangement may lead eventually to the resolution of a dispute, as when the mediation of the United Kingdom inspired a successful arbitration in

²⁴  Forsythe, ‘Humanitarian mediation’, p. 242.

the Rann of Kutch dispute.²⁵ The difficulty, however, is that by failing to grapple with the substance of the dispute, a procedural agreement points the parties in the direction of a solution, while leaving scope for second thoughts.

The limits of mediation

Enough has been said to indicate that as a means of dispute settlement mediation is subject to important limitations. The readiness to mediate and the need for a mediator have already been considered. Once mediation has begun, its prospects of success rest on the parties’ willingness to make the necessary concessions. Although this can be encouraged by a skilful mediator in the ways described, the chances of a successful mediation often hinge on its timing.

In the Falklands crisis the aims of the parties were diametrically op-posed. Argentina’s objective was to rule the islands. Although Britain was not committed to retaining the Falklands indefinitely, it was prepared to relinquish sovereignty only on condition that the wishes of the inhab-itants were respected, which in the circumstances made Argentine rule extremely unlikely. A mediated settlement therefore depended on whether either party was prepared to abandon its original aim and cut its losses. But mediation took place before the battles between the Argentine Air Force and the Royal Navy had established who had the military advan-tage. Thus mediation had to be tried at a time when both sides could still think in terms of a military solution and in that situation had little chance of success.²⁶

In the diplomatic hostages dispute, on the other hand, Algeria was called upon to act when Iran had decided that it was time to end the crisis. Since this was what the United States had been trying to do from the beginning, the mediator’s role was to bring the parties into contact and help them to work out the details of a settlement. The timing of Algeria’s intervention in the Iran–Iraq dispute was equally felicitous. There too the parties were ready for a settlement; moreover, the ground had already been prepared by a diplomatic initiative taken by Egypt and the constructive assistance of a UN fact-finding and mediation mission.

²⁵ Rann of Kutch Arbitration, 50 ILR p. 2. For further discussion see Chapter 5.

²⁶ It has also been suggested that for the Argentine leadership ‘the prospect of defeat in battle was preferable to dishonor. Anglo-Saxon material commonsense, in this instance, did not coincide with the imperative requirements of Argentinean machismo and dignidad’, see Cohen, ‘Cultural aspects’ p. 120.

 

A well-timed offer of mediation will often be able to exploit the efforts of others who may have been involved at earlier stages, or who may still be present in the background. In the Kashmir negotiations, for example, both sides were aware that if they failed to agree the dispute would go to the Security Council. In that event the Soviet attitude would be crucial, which, as we have seen, gave Mr Kosygin considerable leverage as mediator.

Exhaustion or the risks of escalation are other factors which can help the mediator. Thus in the Kashmir and Rann of Kutch disputes military action had been tried and the offer of mediation could be timed to take advantage of the parties’ search for some alternative. These disputes were therefore ripe for mediation. It is worth recalling, however, that despite this critical similarity, the effect of mediation in the two disputes was quite different. In the latter, as already noted, mediation led eventually to a binding arbitration. In the Kashmir dispute, however, following the agreement on a cease-fire, no progress was made in resolving the basic issue. When important interests are at stake, as in Kashmir, it will gener-ally be much easier to negotiate a provisional solution than to achieve a permanent settlement. A cease-fire is better than nothing, of course, but like a temporary filling in a bad tooth may mean even more trouble in the future if steps are not taken to get to the root of the problem.

A related point is that if an agreement concerns future procedures it may be ineffective unless there is someone to see to its implementation. The mediator should therefore recognise that ‘left to their own devices, the parties may fall out of an agreement just as it is being made or imple-mented’²⁷ and to forestall this possibility may seek to extend his role. In the Iran–Iraq dispute Algeria not only supervised the negotiation of the 1975 peace treaty, but also arranged for its representative to be present when the mixed commissions which the parties had agreed upon were created, and subsequently during the commissions’ deliberations.²⁸ At all three stages the presence of a third party helped to maintain the parties’ commitment to the agreement and avoided the stalemate and recrimina-tions which had characterised their earlier negotiations.

Despite the negotiation of the Algiers Accord and the careful arrange-ments for its implementation, in September 1980 Iraq attacked Iran and attempted to recover the territory conceded in the earlier agreement. The war, which lasted for eight years, ended only when both sides were ex-hausted and again ready to accept outside mediation, on this occasion

²⁷  Touval and Zartman, International Mediation, p. 268.

²⁸   Lieb, ‘Iran and Iraq at Algiers’, pp. 83–4.

by the UN Secretary-General. The fact that the war took place is not, of course, a ground for criticising the 1975 settlement, which achieved all that was possible at that time. It is, however, a reminder that there are two types of temporary settlements: those like the Kashmir agreement, which never purport to be anything more than interim arrangements, and those like the Algiers Accord which, though addressed to the basic issues in dispute and intended to be permanent, are unable to withstand the pressure of changing circumstances.

Sometimes, then, mediation may only be able to achieve a partial so-lution. Even that degree of progress will be impossible if the parties cling tenaciously to fundamentally incompatible positions – if, for instance, they are not prepared to acknowledge that a political solution is what is needed, rather than an endorsement of existing rights. In the Beagle Channel dispute Cardinal Samore’s´ proposals would have been still-born if Chile had insisted on implementation of the original Award with all its jurisdictional implications, just as a mediation in the Falklands crisis would have been pointless had Britain refused to discuss the future status of the islands.

In the same way mediation is likely to be ineffective in situations where any solution would require one side to abandon its main objective and receive little in return. This was the position during the crisis which led to the Gulf War of 1991.²⁹ Following Iraq’s invasion of Kuwait in August 1990 and the imposition of sanctions by the UN Security Council, the Secretary-General, France, the Soviet Union and a number of others made several attempts to bring about a peaceful solution. All were unsuccessful, essentially because a key demand was that Iraq should withdraw from Kuwait and not be rewarded for its aggression. This clearly restricted what Iraq could be offered as an inducement and meant that the main incentive for withdrawal was that it would remove the threat of military conflict. It is therefore perhaps not surprising that from the very beginning this was a crisis in which few considered that mediation would produce a solution.

Mediation may also founder if a dispute has become an issue in the domestic politics of one or both of the parties. A government may have adopted a position from which it cannot retreat without attracting accu-sations of betrayal, or the subject matter of a dispute may be so emotive that the very act of negotiating will be contentious. The situation is even more difficult if either of the parties has a government which is unstable or divided. In the former case a government is likely to be particularly

²⁹  See Freedman and Karsh, The Gulf Conflict, pp. 430–2.

sensitive to criticism and in the latter may find it impossible to follow a consistent policy. The fact that an international dispute is a major issue in domestic politics need not preclude effective mediation, as the settlement of the hostages crisis demonstrates. However, it is clear that where there are domestic repercussions, strict confidentiality is essential during the negotiations. Moreover, since mediation is in this respect subject to the same limitations as other means of dispute settlement, in some cases of this type the gulf between the parties’ respective positions will simply be too wide to be bridged.

Thus mediation can only be as effective as the parties wish it to be, and this is governed largely by their immediate situation. Although this is a major limitation on the usefulness of mediation, it is important to retain a sense of perspective. It would be quite wrong to think that a mediator is merely someone who lends authority to an agreement that is already virtually made. On the contrary, by facilitating the parties’ dialogue, pro-viding them with information and suggestions, identifying and exploring their aims and canvassing a range of possible solutions, mediation can play a vital role in moving them towards agreement. Although success will often be incomplete and failure sometimes inevitable, the mediator’s job is to spare no effort for the parties, and trust that they will reciprocate.

3

Inquiry

When a disagreement between states on some issue of fact, law or policy is serious enough to give rise to an international dispute, their views on the matter in question may be difficult or impossible to reconcile. In such a case either or both of the parties may refuse to discuss the matter on the ground that their position is ‘not negotiable’. Alternatively, negotiations may drag on for years until one side abandons its claim or loses patience and attempts to impose a solution by force. It follows that negotiation, even if assisted by good offices or mediation, cannot be regarded as an adequate means of resolving all international disputes.

With states, as with individuals, experience demonstrates that the risks of stalemate are greatly reduced when a disinterested third party is brought into a dispute to provide the parties with an objective assessment. Inter-nationally a number of methods of achieving this have been developed. The method with which this chapter is concerned is called ‘inquiry’.

‘Inquiry’ as a term of art is used in two distinct, but related senses. In the broader sense it refers to the process that is performed when-ever a court or other body endeavours to resolve a disputed issue of fact. Since most international disputes raise such issues, even if legal or po-litical questions are also present, it is clear that inquiry in this opera-tional sense will often be a major component of arbitration, conciliation, action by international organisations and other methods of third-party settlement.

The place of inquiry in the work of the United Nations, the Interna-tional Court and other bodies will be examined in later chapters. Our present concern is with inquiry in another sense, not as a process which any tribunal may be required to perform, but as a specific institutional arrangement which states may select in preference to arbitration or other techniques, because they desire to have some disputed issue independently investigated. In its institutional sense, then, inquiry refers to a particular

45

type of international tribunal, known as the commission of inquiry and introduced by the 1899 Hague Convention.

The 1899 Hague Convention

On 15 February 1898, the United States battleship Maine, at anchor in Havana harbour, was destroyed by an explosion which killed 259 of her officers and crew.¹ Relations between the United States and Spain were already strained and American opinion needed little encouragement to see the Maine disaster as the work of the European power. Although Spain denied liability and held a commission of inquiry which found the explosion to have had an internal cause, American suspicions were confirmed when a rival commission, composed of US naval personnel, decided that the Maine had been destroyed by a submarine mine.

While it would be wrong to suppose that the Maine incident was the fundamental cause of the Spanish–American war which followed, the precipitating effect of what was really no more than a disagreement about the interpretation of evidence, sufficiently impressed the delegates to the Hague Peace Conference of 1899 for them to give serious attention to the issue of fact-finding in international disputes. The focus of debate at the conference was a proposal from the Russian delegation for the replace-ment of national commissions of inquiry of the kind that had proved so unsatisfactory in the Maine episode, with international commissions for the impartial investigation of the facts and circumstances of international disputes.

After discussion had revealed, amongst other sources of doubt, a fear on the part of some of the smaller states that inquiry commissions might be used as a cloak for foreign intervention, the conference eventually agreed that such commissions were acceptable, provided a number of important conditions were fulfilled. These were that inquiry commissions should only be used for disputes ‘involving neither honour nor essential interests’, that they should handle only questions of fact and not questions of law, and finally that neither the creation of a commission, nor the implementation of its findings should be regarded as obligatory. With these qualifications, arrangements for the creation and operation of inquiry commissions were outlined in six articles of the 1899 Hague Convention.² Their value was soon to be demonstrated.

¹  For details of the Maine incident see Annual Register, 1898, pp. 362–3.

²  Hague Convention for the Pacific Settlement of Disputes, 1899, Articles 9–14. See also A. Eyffinger, The 1899 Hague Peace Conference, The Hague, 1999, Chapter 10.

The Dogger Bank inquiry

In the early hours of 9 October 1904, a squadron of Russian warships, on their way from the Baltic to the Far East to take part in the Russo-Japanese war, unwittingly steamed into the Hull fishing fleet near the Dogger Bank. In the ensuing confusion the Russian admiral formed the erroneous impression that he was being attacked by Japanese torpedo boats which were rumoured to be in the area, and opened fire. The firing, which lasted about ten minutes, caused considerable damage. One of the trawlers was sunk and five others were damaged; and two crew members were killed and six wounded.³

When news of the incident reached England, feelings ran high and preparations were made to intercept the Russian fleet which, in ignorance of its error, was by now approaching Gibraltar. Before matters could dete-riorate any further, intense diplomatic activity by France, which strongly desired to avoid a rupture of Anglo-Russian relations, persuaded the two states to establish a commission of inquiry in accordance with the Hague Convention.

The Commission, which was set up in November 1904, was composed of an admiral from each of the parties, together with one each from France, Austro-Hungary and the United States. Its terms of reference were to:

inquire into and report on all the circumstances relative to the North Sea Incident, and particularly on the question as to where the responsibility lies and the degree of blame attaching to the subjects of the two High Contracting Parties, or to the subjects of other countries, in the event of their responsibility being established by the inquiry.⁴

The Commission spent two months hearing witnesses and preparing its report, which was delivered in February 1905. In it the Commission found that there had been no torpedo boats either among the trawlers or any-where nearby and concluded that the Russian admiral had therefore had no justification for opening fire. It added, however, that these findings were not, in the Commissioners’ opinion, ‘of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky, or

³ For an account of the incident and the subsequent fate of Admiral Rojdestvensky see R. Hough, The Fleet that had to Die, London, 1975.

⁴ Declaration between Great Britain and Russia, relating to the constitution of an in-ternational commission of inquiry on the subject of the North Sea incident, signed at St Petersburg, 12/25 November 1904, Article 2. See J. B. Scott, The Hague Court Reports, New York, 1916, p. 411. The original French text is ibid., p. 614.

the personnel of his squadron’.⁵ Following acceptance of the report by both parties, Russia made a payment to Britain by way of damages of some £65,000 and the incident was closed.

The Dogger Bank episode furnishes a striking example of the value of the international inquiry commission as an instrument of dispute settlement. Had the issue been investigated by two national inquiries, it is almost certain that, as in the Maine case, they would have exacerbated matters by coming to opposite conclusions. Although it may be doubted whether such an outcome would necessarily have resulted in war, since neither Britain nor Russia had previously contemplated such a step, their decision to establish a commission of inquiry effectively removed the risk that a dispute involving issues of considerable sensitivity might get out of hand.

In this respect the inquiry also demonstrated that provided no actual clash of policy was involved, even disputes involving ‘honour’ and ‘es-sential interests’ might be amenable to the inquiry process. Indeed, it is evident that it was the very sensitivity of the issue that prompted the setting up of the inquiry as a way of relaxing the tension.

In another way, too, the inquiry departed from the pattern envisaged by the Hague Convention. The duty to apportion ‘blame’ appeared to assign the Commission an arbitral as well as a fact-finding function. The admirals who made up the Commission, no doubt wisely, sought to underplay this aspect of their work and in a decision of somewhat ambiguous legal import,⁶ demonstrated what later experience was to confirm, that in the interests of dispute settlement, legal and factual issues need not always be sharply distinguished.

There was one further respect in which the Dogger Bank episode was significant. Before it could begin its investigation, the Commission had to spend precious time deciding upon its rules of procedure. With a view to expediting the work of future commissions, the Hague Convention of 1907 expanded the somewhat skeletal provisions of the 1899 Convention with a series of articles devoted to organisation and procedure.⁷ As a result, it was these new arrangements that were followed when the next international inquiry commission was convened.

⁵  Ibid., p. 410.

⁶   For an excellent summary and analysis of scholarly responses to the case see N. Bar-Yaacov,

The Handling of International Disputes by Means of Inquiry, Oxford, 1974, pp. 72–81. See also R. N. Lebow, ‘Accidents and crises: The Dogger Bank Affair’, (1978) 31 Naval War College Review, p. 66.

⁷  Hague Convention for the Pacific Settlement of International Disputes, 1907, Articles 9–35. For commentary see Bar-Yaacov, Inquiry, Chapter 4.

Inquiries under the 1907 Hague Convention

The first case under the new Convention concerned a series of incidents off the Tunisian coast during the Turco-Italian war of 1911–12. Although France was neutral in that war, the Italian government strongly suspected that French vessels were involved in the shipment of Turkish contraband. The interception of French ships by the Italian navy had already led to two disputes which had been referred to arbitration⁸ and when, on 25 January 1912, the French mail steamer Tavignano was arrested and two other vessels were fired on, according to Italy on the high seas, but according to France in Tunisian territorial waters, it was agreed to refer the matter to a commission of inquiry in accordance with the 1907 Convention.

The main question for the Commission, which consisted of a French, an Italian and a British naval officer, was to determine exactly where the controversial incidents had occurred. In an attempt to resolve the serious conflict of evidence on this point the Commission did not confine itself to an examination of witnesses and documents, but also visited the scene of the incident. In its unanimous report, however, it concluded that it could do no more than indicate the areas in which the incidents had taken place.⁹ From the Commission’s findings it was clear that though the arrest of the Tavignano may or may not have been in Tunisian waters, the firing incidents certainly were.

The decision to establish the commission of inquiry had been accom-panied by an agreement which envisaged that the next step might be a reference of the legal aspects of the dispute to arbitration. Following re-ceipt of the Commission’s report, a decision to this effect was taken; but before the case could be heard, the issue was settled out of court when the Italian government agreed to pay 5,000 francs in satisfaction of the claim. If the Dogger Bank case had demonstrated the value of inquiry in defusing an explosive situation, the Tavignano case showed how in other circumstances it could be used to provide the basis for subsequent arbitration.

By assigning the disputed issues of fact to a commission of inquiry, the parties ensured that the evidence was reviewed at the earliest opportunity by a tribunal with the requisite expertise. The Tavignano Commission, like its predecessor, was ideally constituted for the work in hand and, relieved by the provisions of the 1907 Convention of the need to settle

⁸   The Franco-Italian disputes referred to arbitration were the Carthage and Manouba cases. For the Awards of 6 May 1913, see Scott, Hague Court Reports, p. 330 and p. 342.

⁹   See Scott, Hague Court Reports, p. 413.

procedural issues, it was able to complete its investigation in less than a month. Although, as we have seen, the Commission was compelled to leave a crucial issue unresolved, the French and Italian governments were sufficiently satisfied with its work to include in their arbitral agreement a provision requiring the use of its report.

Paradoxically, the fact that the dispute was not in the end resolved by arbitration is also significant. For it indicates that though fact-finding may be envisaged as a preliminary to arbitration, and can certainly function in that way, in practice, as the sponsors of the Hague Convention foresaw, an elucidation of the facts, or even only some of them, may be all that is needed to induce a negotiated settlement.

The next inquiry to be held under the 1907 Convention concerned a situation not unlike the previous case. On 7 May 1917, during the First World War, a German submarine pursued and sank a Norwegian ship, the Tiger, off the northern coast of Spain. As in the Tavignano incident, the justification advanced was that the vessel was a neutral carrying con-traband and the crucial question was the vessel’s location. Spain, also a neutral, alleged that the arrest had taken place in her territorial waters; Germany maintained that it had taken place on the high seas.

Following lengthy diplomatic exchanges, Spain and Germany agreed to set up a commission of inquiry under the 1907 Convention, charged with the task of deciding where the crucial events had occurred. The Tiger Commission, like its predecessor, was made up of naval officers from the parties in dispute, with a neutral (here Danish) chairman. Once again the evidence concerning the vessel’s navigation sharply conflicted and the Commission experienced great difficulty in coming to a decision as to exactly what had occurred. In the end, however, it concluded that the pursuit and arrest had occurred in Spanish waters.¹⁰

Although similar in many respects to the previous case, the Tiger in-quiry contains several points of interest. This was the first case in which the parties to an international inquiry agreed in advance to accept the report of the commission as binding. This departure from the Hague Conventions underlined the determination of the states concerned to use the fact-finding process to achieve a settlement of the dispute, and, like the inclusion of a legal question in the terms of reference of the Dogger Bank Commission, showed how in appropriate circumstances the inquiry procedure was flexible enough to act as a substitute for arbitration.

¹⁰  See Bar-Yaacov, Inquiry, pp. 156–71. The Commission’s Report was not published; the documents are in the Library of the Permanent Court of Arbitration at The Hague.

But if the binding nature of the decision brought the Tiger proceed-ings close to arbitration in one respect, the Commission’s treatment of the evidence served to emphasise the distinctive character of the inquiry procedure. The evidence concerning the location of the submarine and its victim at the material time proved exceptionally difficult to interpret. In part this was because, as the Tavignano case had already shown, the location of a ship at sea is often difficult to determine with great precision and after the event; in part it was because, unlike the earlier case, the lapse of time between the incident and the inquiry had resulted in the destruc-tion of much important evidence including the submarine with its crew and vital log book, all of which had been lost on a subsequent operation. An arbitration in this situation might have been expected to generate a major argument over the burden of proof. The fact that the commission of inquiry was not a court of arbitration enabled it to assess the evidence and ultimately settle the dispute without addressing this notoriously thorny legal issue.¹¹

The last case also involved a German submarine. On 16 March 1916 the Dutch steamer Tubantia was sunk by a torpedo on the high seas. The Dutch government claimed that the sinking was the work of a U-boat and that, since Holland was neutral, Germany must pay compensation. Germany, on the other hand, though unable to deny that the sinking had been caused by a German torpedo, since identifiable fragments of the missile had been recovered, maintained that the torpedo in question had actually been fired at a British destroyer, which it had missed, and must have remained afloat to claim the Tubantia some ten days later.

When the war was over the two governments established a commission of inquiry with the aim of establishing the cause of the sinking. The Commission, consisting of naval officers from Denmark, Sweden, the Netherlands and Germany, together with a Swiss jurist as chairman, heard a variety of witnesses and experts and delivered its report in February 1922.¹² In it the Commission decided that the Tubantia had indeed been the victim of a submarine attack. This was a clear finding of German responsibility, though the Commission was careful to add that it was not in a position to determine whether the torpedoing had taken place

¹¹ The importance which the burden of proof argument might have assumed is clear from the separate opinion of the German commissioner who examined the issue in some detail. On the general significance of such evidential factors in the work of inquiry commissions, see the comments of H. Darwin in C. M. H. Waldock (ed.), International Disputes: The Legal Aspects, London, 1972, at p. 169.

¹² See J. B. Scott, The Hague Court Reports (Second series), New York, 1932, p. 135.

A well-timed offer of mediation will often be able to exploit the efforts of others who may have been involved at earlier stages, or who may still be present in the background. In the Kashmir negotiations, for example, both sides were aware that if they failed to agree the dispute would go to the Security Council. In that event the Soviet attitude would be crucial, which, as we have seen, gave Mr Kosygin considerable leverage as mediator.

Exhaustion or the risks of escalation are other factors which can help the mediator. Thus in the Kashmir and Rann of Kutch disputes military action had been tried and the offer of mediation could be timed to take advantage of the parties’ search for some alternative. These disputes were therefore ripe for mediation. It is worth recalling, however, that despite this critical similarity, the effect of mediation in the two disputes was quite different. In the latter, as already noted, mediation led eventually to a binding arbitration. In the Kashmir dispute, however, following the agreement on a cease-fire, no progress was made in resolving the basic issue. When important interests are at stake, as in Kashmir, it will gener-ally be much easier to negotiate a provisional solution than to achieve a permanent settlement. A cease-fire is better than nothing, of course, but like a temporary filling in a bad tooth may mean even more trouble in the future if steps are not taken to get to the root of the problem.

A related point is that if an agreement concerns future procedures it may be ineffective unless there is someone to see to its implementation. The mediator should therefore recognise that ‘left to their own devices, the parties may fall out of an agreement just as it is being made or imple-mented’²⁷ and to forestall this possibility may seek to extend his role. In the Iran–Iraq dispute Algeria not only supervised the negotiation of the 1975 peace treaty, but also arranged for its representative to be present when the mixed commissions which the parties had agreed upon were created, and subsequently during the commissions’ deliberations.²⁸ At all three stages the presence of a third party helped to maintain the parties’ commitment to the agreement and avoided the stalemate and recrimina-tions which had characterised their earlier negotiations.

Despite the negotiation of the Algiers Accord and the careful arrange-ments for its implementation, in September 1980 Iraq attacked Iran and attempted to recover the territory conceded in the earlier agreement. The war, which lasted for eight years, ended only when both sides were ex-hausted and again ready to accept outside mediation, on this occasion

²⁷  Touval and Zartman, International Mediation, p. 268.

²⁸   Lieb, ‘Iran and Iraq at Algiers’, pp. 83–4.

by the UN Secretary-General. The fact that the war took place is not, of course, a ground for criticising the 1975 settlement, which achieved all that was possible at that time. It is, however, a reminder that there are two types of temporary settlements: those like the Kashmir agreement, which never purport to be anything more than interim arrangements, and those like the Algiers Accord which, though addressed to the basic issues in dispute and intended to be permanent, are unable to withstand the pressure of changing circumstances.

Sometimes, then, mediation may only be able to achieve a partial so-lution. Even that degree of progress will be impossible if the parties cling tenaciously to fundamentally incompatible positions – if, for instance, they are not prepared to acknowledge that a political solution is what is needed, rather than an endorsement of existing rights. In the Beagle Channel dispute Cardinal Samore’s´ proposals would have been still-born if Chile had insisted on implementation of the original Award with all its jurisdictional implications, just as a mediation in the Falklands crisis would have been pointless had Britain refused to discuss the future status of the islands.

In the same way mediation is likely to be ineffective in situations where any solution would require one side to abandon its main objective and receive little in return. This was the position during the crisis which led to the Gulf War of 1991.²⁹ Following Iraq’s invasion of Kuwait in August 1990 and the imposition of sanctions by the UN Security Council, the Secretary-General, France, the Soviet Union and a number of others made several attempts to bring about a peaceful solution. All were unsuccessful, essentially because a key demand was that Iraq should withdraw from Kuwait and not be rewarded for its aggression. This clearly restricted what Iraq could be offered as an inducement and meant that the main incentive for withdrawal was that it would remove the threat of military conflict. It is therefore perhaps not surprising that from the very beginning this was a crisis in which few considered that mediation would produce a solution.

Mediation may also founder if a dispute has become an issue in the domestic politics of one or both of the parties. A government may have adopted a position from which it cannot retreat without attracting accu-sations of betrayal, or the subject matter of a dispute may be so emotive that the very act of negotiating will be contentious. The situation is even more difficult if either of the parties has a government which is unstable or divided. In the former case a government is likely to be particularly

²⁹  See Freedman and Karsh, The Gulf Conflict, pp. 430–2.

sensitive to criticism and in the latter may find it impossible to follow a consistent policy. The fact that an international dispute is a major issue in domestic politics need not preclude effective mediation, as the settlement of the hostages crisis demonstrates. However, it is clear that where there are domestic repercussions, strict confidentiality is essential during the negotiations. Moreover, since mediation is in this respect subject to the same limitations as other means of dispute settlement, in some cases of this type the gulf between the parties’ respective positions will simply be too wide to be bridged.

Thus mediation can only be as effective as the parties wish it to be, and this is governed largely by their immediate situation. Although this is a major limitation on the usefulness of mediation, it is important to retain a sense of perspective. It would be quite wrong to think that a mediator is merely someone who lends authority to an agreement that is already virtually made. On the contrary, by facilitating the parties’ dialogue, pro-viding them with information and suggestions, identifying and exploring their aims and canvassing a range of possible solutions, mediation can play a vital role in moving them towards agreement. Although success will often be incomplete and failure sometimes inevitable, the mediator’s job is to spare no effort for the parties, and trust that they will reciprocate.

3. Inquiry

When a disagreement between states on some issue of fact, law or policy is serious enough to give rise to an international dispute, their views on the matter in question may be difficult or impossible to reconcile. In such a case either or both of the parties may refuse to discuss the matter on the ground that their position is ‘not negotiable’. Alternatively, negotiations may drag on for years until one side abandons its claim or loses patience and attempts to impose a solution by force. It follows that negotiation, even if assisted by good offices or mediation, cannot be regarded as an adequate means of resolving all international disputes.

With states, as with individuals, experience demonstrates that the risks of stalemate are greatly reduced when a disinterested third party is brought into a dispute to provide the parties with an objective assessment. Inter-nationally a number of methods of achieving this have been developed. The method with which this chapter is concerned is called ‘inquiry’.

‘Inquiry’ as a term of art is used in two distinct, but related senses. In the broader sense it refers to the process that is performed when-ever a court or other body endeavours to resolve a disputed issue of fact. Since most international disputes raise such issues, even if legal or po-litical questions are also present, it is clear that inquiry in this opera-tional sense will often be a major component of arbitration, conciliation, action by international organisations and other methods of third-party settlement.

The place of inquiry in the work of the United Nations, the Interna-tional Court and other bodies will be examined in later chapters. Our present concern is with inquiry in another sense, not as a process which any tribunal may be required to perform, but as a specific institutional arrangement which states may select in preference to arbitration or other techniques, because they desire to have some disputed issue independently investigated. In its institutional sense, then, inquiry refers to a particular

45 type of international tribunal, known as the commission of inquiry and introduced by the 1899 Hague Convention.

The 1899 Hague Convention

On 15 February 1898, the United States battleship Maine, at anchor in Havana harbour, was destroyed by an explosion which killed 259 of her officers and crew.¹ Relations between the United States and Spain were already strained and American opinion needed little encouragement to see the Maine disaster as the work of the European power. Although Spain denied liability and held a commission of inquiry which found the explosion to have had an internal cause, American suspicions were confirmed when a rival commission, composed of US naval personnel, decided that the Maine had been destroyed by a submarine mine.

While it would be wrong to suppose that the Maine incident was the fundamental cause of the Spanish–American war which followed, the precipitating effect of what was really no more than a disagreement about the interpretation of evidence, sufficiently impressed the delegates to the Hague Peace Conference of 1899 for them to give serious attention to the issue of fact-finding in international disputes. The focus of debate at the conference was a proposal from the Russian delegation for the replace-ment of national commissions of inquiry of the kind that had proved so unsatisfactory in the Maine episode, with international commissions for the impartial investigation of the facts and circumstances of international disputes.

After discussion had revealed, amongst other sources of doubt, a fear on the part of some of the smaller states that inquiry commissions might be used as a cloak for foreign intervention, the conference eventually agreed that such commissions were acceptable, provided a number of important conditions were fulfilled. These were that inquiry commissions should only be used for disputes ‘involving neither honour nor essential interests’, that they should handle only questions of fact and not questions of law, and finally that neither the creation of a commission, nor the implementation of its findings should be regarded as obligatory. With these qualifications, arrangements for the creation and operation of inquiry commissions were outlined in six articles of the 1899 Hague Convention.² Their value was soon to be demonstrated.

¹  For details of the Maine incident see Annual Register, 1898, pp. 362–3.

²  Hague Convention for the Pacific Settlement of Disputes, 1899, Articles 9–14. See also A. Eyffinger, The 1899 Hague Peace Conference, The Hague, 1999, Chapter 10.

The Dogger Bank inquiry

In the early hours of 9 October 1904, a squadron of Russian warships, on their way from the Baltic to the Far East to take part in the Russo-Japanese war, unwittingly steamed into the Hull fishing fleet near the Dogger Bank. In the ensuing confusion the Russian admiral formed the erroneous impression that he was being attacked by Japanese torpedo boats which were rumoured to be in the area, and opened fire. The firing, which lasted about ten minutes, caused considerable damage. One of the trawlers was sunk and five others were damaged; and two crew members were killed and six wounded.³

When news of the incident reached England, feelings ran high and preparations were made to intercept the Russian fleet which, in ignorance of its error, was by now approaching Gibraltar. Before matters could dete-riorate any further, intense diplomatic activity by France, which strongly desired to avoid a rupture of Anglo-Russian relations, persuaded the two states to establish a commission of inquiry in accordance with the Hague Convention.

The Commission, which was set up in November 1904, was composed of an admiral from each of the parties, together with one each from France, Austro-Hungary and the United States. Its terms of reference were to:

inquire into and report on all the circumstances relative to the North Sea Incident, and particularly on the question as to where the responsibility lies and the degree of blame attaching to the subjects of the two High Contracting Parties, or to the subjects of other countries, in the event of their responsibility being established by the inquiry.⁴

The Commission spent two months hearing witnesses and preparing its report, which was delivered in February 1905. In it the Commission found that there had been no torpedo boats either among the trawlers or any-where nearby and concluded that the Russian admiral had therefore had no justification for opening fire. It added, however, that these findings were not, in the Commissioners’ opinion, ‘of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky, or

³ For an account of the incident and the subsequent fate of Admiral Rojdestvensky see R. Hough, The Fleet that had to Die, London, 1975.

⁴ Declaration between Great Britain and Russia, relating to the constitution of an in-ternational commission of inquiry on the subject of the North Sea incident, signed at St Petersburg, 12/25 November 1904, Article 2. See J. B. Scott, The Hague Court Reports, New York, 1916, p. 411. The original French text is ibid., p. 614.

the personnel of his squadron’.⁵ Following acceptance of the report by both parties, Russia made a payment to Britain by way of damages of some £65,000 and the incident was closed.

The Dogger Bank episode furnishes a striking example of the value of the international inquiry commission as an instrument of dispute settlement. Had the issue been investigated by two national inquiries, it is almost certain that, as in the Maine case, they would have exacerbated matters by coming to opposite conclusions. Although it may be doubted whether such an outcome would necessarily have resulted in war, since neither Britain nor Russia had previously contemplated such a step, their decision to establish a commission of inquiry effectively removed the risk that a dispute involving issues of considerable sensitivity might get out of hand.

In this respect the inquiry also demonstrated that provided no actual clash of policy was involved, even disputes involving ‘honour’ and ‘es-sential interests’ might be amenable to the inquiry process. Indeed, it is evident that it was the very sensitivity of the issue that prompted the setting up of the inquiry as a way of relaxing the tension.

In another way, too, the inquiry departed from the pattern envisaged by the Hague Convention. The duty to apportion ‘blame’ appeared to assign the Commission an arbitral as well as a fact-finding function. The admirals who made up the Commission, no doubt wisely, sought to underplay this aspect of their work and in a decision of somewhat ambiguous legal import,⁶ demonstrated what later experience was to confirm, that in the interests of dispute settlement, legal and factual issues need not always be sharply distinguished.

There was one further respect in which the Dogger Bank episode was significant. Before it could begin its investigation, the Commission had to spend precious time deciding upon its rules of procedure. With a view to expediting the work of future commissions, the Hague Convention of 1907 expanded the somewhat skeletal provisions of the 1899 Convention with a series of articles devoted to organisation and procedure.⁷ As a result, it was these new arrangements that were followed when the next international inquiry commission was convened.

⁵  Ibid., p. 410.

⁶   For an excellent summary and analysis of scholarly responses to the case see N. Bar-Yaacov,

The Handling of International Disputes by Means of Inquiry, Oxford, 1974, pp. 72–81. See also R. N. Lebow, ‘Accidents and crises: The Dogger Bank Affair’, (1978) 31 Naval War College Review, p. 66.

⁷  Hague Convention for the Pacific Settlement of International Disputes, 1907, Articles 9–35. For commentary see Bar-Yaacov, Inquiry, Chapter 4.

Inquiries under the 1907 Hague Convention

The first case under the new Convention concerned a series of incidents off the Tunisian coast during the Turco-Italian war of 1911–12. Although France was neutral in that war, the Italian government strongly suspected that French vessels were involved in the shipment of Turkish contraband. The interception of French ships by the Italian navy had already led to two disputes which had been referred to arbitration⁸ and when, on 25 January 1912, the French mail steamer Tavignano was arrested and two other vessels were fired on, according to Italy on the high seas, but according to France in Tunisian territorial waters, it was agreed to refer the matter to a commission of inquiry in accordance with the 1907 Convention.

The main question for the Commission, which consisted of a French, an Italian and a British naval officer, was to determine exactly where the controversial incidents had occurred. In an attempt to resolve the serious conflict of evidence on this point the Commission did not confine itself to an examination of witnesses and documents, but also visited the scene of the incident. In its unanimous report, however, it concluded that it could do no more than indicate the areas in which the incidents had taken place.⁹ From the Commission’s findings it was clear that though the arrest of the Tavignano may or may not have been in Tunisian waters, the firing incidents certainly were.

The decision to establish the commission of inquiry had been accom-panied by an agreement which envisaged that the next step might be a reference of the legal aspects of the dispute to arbitration. Following re-ceipt of the Commission’s report, a decision to this effect was taken; but before the case could be heard, the issue was settled out of court when the Italian government agreed to pay 5,000 francs in satisfaction of the claim. If the Dogger Bank case had demonstrated the value of inquiry in defusing an explosive situation, the Tavignano case showed how in other circumstances it could be used to provide the basis for subsequent arbitration.

By assigning the disputed issues of fact to a commission of inquiry, the parties ensured that the evidence was reviewed at the earliest opportunity by a tribunal with the requisite expertise. The Tavignano Commission, like its predecessor, was ideally constituted for the work in hand and, relieved by the provisions of the 1907 Convention of the need to settle

⁸   The Franco-Italian disputes referred to arbitration were the Carthage and Manouba cases. For the Awards of 6 May 1913, see Scott, Hague Court Reports, p. 330 and p. 342.

⁹   See Scott, Hague Court Reports, p. 413.

procedural issues, it was able to complete its investigation in less than a month. Although, as we have seen, the Commission was compelled to leave a crucial issue unresolved, the French and Italian governments were sufficiently satisfied with its work to include in their arbitral agreement a provision requiring the use of its report.

Paradoxically, the fact that the dispute was not in the end resolved by arbitration is also significant. For it indicates that though fact-finding may be envisaged as a preliminary to arbitration, and can certainly function in that way, in practice, as the sponsors of the Hague Convention foresaw, an elucidation of the facts, or even only some of them, may be all that is needed to induce a negotiated settlement.

The next inquiry to be held under the 1907 Convention concerned a situation not unlike the previous case. On 7 May 1917, during the First World War, a German submarine pursued and sank a Norwegian ship, the Tiger, off the northern coast of Spain. As in the Tavignano incident, the justification advanced was that the vessel was a neutral carrying con-traband and the crucial question was the vessel’s location. Spain, also a neutral, alleged that the arrest had taken place in her territorial waters; Germany maintained that it had taken place on the high seas.

Following lengthy diplomatic exchanges, Spain and Germany agreed to set up a commission of inquiry under the 1907 Convention, charged with the task of deciding where the crucial events had occurred. The Tiger Commission, like its predecessor, was made up of naval officers from the parties in dispute, with a neutral (here Danish) chairman. Once again the evidence concerning the vessel’s navigation sharply conflicted and the Commission experienced great difficulty in coming to a decision as to exactly what had occurred. In the end, however, it concluded that the pursuit and arrest had occurred in Spanish waters.¹⁰

Although similar in many respects to the previous case, the Tiger in-quiry contains several points of interest. This was the first case in which the parties to an international inquiry agreed in advance to accept the report of the commission as binding. This departure from the Hague Conventions underlined the determination of the states concerned to use the fact-finding process to achieve a settlement of the dispute, and, like the inclusion of a legal question in the terms of reference of the Dogger Bank Commission, showed how in appropriate circumstances the inquiry procedure was flexible enough to act as a substitute for arbitration.

¹⁰  See Bar-Yaacov, Inquiry, pp. 156–71. The Commission’s Report was not published; the documents are in the Library of the Permanent Court of Arbitration at The Hague.

But if the binding nature of the decision brought the Tiger proceed-ings close to arbitration in one respect, the Commission’s treatment of the evidence served to emphasise the distinctive character of the inquiry procedure. The evidence concerning the location of the submarine and its victim at the material time proved exceptionally difficult to interpret. In part this was because, as the Tavignano case had already shown, the location of a ship at sea is often difficult to determine with great precision and after the event; in part it was because, unlike the earlier case, the lapse of time between the incident and the inquiry had resulted in the destruc-tion of much important evidence including the submarine with its crew and vital log book, all of which had been lost on a subsequent operation. An arbitration in this situation might have been expected to generate a major argument over the burden of proof. The fact that the commission of inquiry was not a court of arbitration enabled it to assess the evidence and ultimately settle the dispute without addressing this notoriously thorny legal issue.¹¹

The last case also involved a German submarine. On 16 March 1916 the Dutch steamer Tubantia was sunk by a torpedo on the high seas. The Dutch government claimed that the sinking was the work of a U-boat and that, since Holland was neutral, Germany must pay compensation. Germany, on the other hand, though unable to deny that the sinking had been caused by a German torpedo, since identifiable fragments of the missile had been recovered, maintained that the torpedo in question had actually been fired at a British destroyer, which it had missed, and must have remained afloat to claim the Tubantia some ten days later.

When the war was over the two governments established a commission of inquiry with the aim of establishing the cause of the sinking. The Commission, consisting of naval officers from Denmark, Sweden, the Netherlands and Germany, together with a Swiss jurist as chairman, heard a variety of witnesses and experts and delivered its report in February 1922.¹² In it the Commission decided that the Tubantia had indeed been the victim of a submarine attack. This was a clear finding of German responsibility, though the Commission was careful to add that it was not in a position to determine whether the torpedoing had taken place

knowingly or as a result of error. The German government accepted the conclusions of the report and paid an indemnity of 6.5 million florins to the Dutch government in satisfaction of the claim.

This was the first case in which a commission of inquiry had included a lawyer among its members. Although the Commission’s interpretation of its mandate was broad enough to include questions of knowledge and motive among the ‘facts’ to be investigated, it is clear that there were no specifically legal issues to be decided in this case. The inclusion of a jurist has been seen therefore as a reflection of the seriousness of the matter under investigation – virtually a criminal charge – and an indication that in view of the exceptional quantity of very diverse technical evidence, the parties regarded a legally qualified chairman as essential.¹³

The Tubantia inquiry is also notable for the extent to which the pro-ceedings resembled arbitration. For although, as we have seen, no legal issue was in dispute and in contrast to the Tiger inquiry, the parties had not undertaken to accept the Commission’s report in advance, the ex-change of memorials and the handling of the oral evidence were both more reminiscent of a judicial proceeding than of the inquiry provisions of the Hague Conventions.

Treaty practice 1911–1940

The desire of states to make a departure from the pattern of the Hague Conventions, which was so evident in the Tubantia, had already inspired a number of important developments on the other side of the Atlantic. In 1911 the United States negotiated treaties with France and Great Britain which provided that all differences or controversies between the parties must be submitted either to arbitration or to a Joint High Commission of Inquiry. These treaties, known as the Taft (or Knox) treaties of arbitration, laid down that the organisation and procedure of the commissions were in general to be governed by the relevant provisions of the 1907 Hague Convention. However, in a series of significant departures from the latter, the new treaties contained no limitations as to the kinds of disputes which could be investigated, authorised the commissions to make recommenda-tions as well as findings of fact and went so far as to lay down that decisions by a commission as to whether a dispute was subject to arbitration were binding on the parties.

Between 1913 and 1940 the United States concluded a further se-ries of treaties, known as the Bryan treaties, again based on the Hague

¹³  Bar-Yaacov, Inquiry, p. 178.

Convention. Though unrestricted as to subject matter, these treaties con-ferred no power to make recommendations, but contained another in-novation in that the commissions provided for by the treaties were to be permanent rather than ad hoc bodies. Inspired by the early Bryan treaties, Argentina, Brazil and Chile concluded the so-called ABC Treaty in 1915, Great Britain made rather similar agreements with Brazil and Chile in 1919, and in 1923 sixteen American states concluded the Gondra Treaty with arrangements for inquiry along the same lines.¹⁴

Though quite extensive, the treaty practice just described did not pro-duce a series of inquiries like those generated by the Hague Conventions.¹⁵ But if its significance in that sense is negligible, it represents an important step in the development of dispute settlement. For these treaties were an early recognition of the three principles essential to further progress: that permanent or standing commissions offer significant advantages over ad hoc bodies like the Dogger Bank Commission; that the types of disputes which can be investigated should be unrestricted; and that the ability of commissions to contribute to the settlement of disputes could be in-creased by authorising them to make recommendations. As we shall see in the next chapter, when these elements were finally brought together the product was the institutional technique known as conciliation.

The Red Crusader inquiry

After the Tavignano inquiry in 1922 almost forty years passed before the next international commission was appointed. This was the inquiry set up by Britain and Denmark to investigate the Red Crusader incident in 1961.

As in the other cases we have considered, the incident arose out of events at sea. On 29 May 1961, the Danish fisheries protection vessel Niels Ebbesen encountered the British trawler Red Crusader close to the Faroe Islands and with its fishing gear in the water. Accusing the trawler of illegal fishing, the Danish commander forced it to stop and effected an arrest by putting two members of his crew on board. While en route for a port in the Faroes, the crew of the Red Crusader succeeded in incapacitating their guards and reversed course. Pursued by the Danish vessel, the trawler was fired at with solid shot and suffered damage to its prow, masts, wireless aerials and radar installation. A British frigate came on the scene, and

¹⁴ See D. V. B. Galeano, ‘The Gondra Treaty’, (1929) 15 Grotius Soc. Trans. p. 1.

¹⁵ The Taft treaties never came into force and the procedures laid down by the Bryan treaties have so far been used only once – in the Letelier and Moffitt case (1992), discussed below. For further discussion of these treaties and their significance see Bar-Yaacov, Inquiry, pp. 113–17 and J.-P. Cot, International Conciliation, London, 1972, pp. 66–74.

after the abducted Danes had been returned to their ship, all three vessels headed for Aberdeen.

In the diplomatic exchanges which followed it was clear that the Danish government took a serious view of the incident, not least because the Danish boarding party had been unarmed in accordance with a previous request from the British government that this step would reduce tension when British trawlers had to be arrested. With a view to settling the dis-pute Britain and Denmark, after some negotiation, eventually agreed to establish a commission of inquiry to investigate the incident.

The three-member Commission was composed of distinguished inter-national lawyers from Belgium and France and the Netherlands Inspector-General of Shipping. Its terms of reference were:

. . . to investigate and report to the two Governments:

(i)     the facts leading up to the arrest of the British trawler Red Crusader on the night of the 29th of May, 1961, including the question whether the Red Crusader was fishing, or with her fishing gear not stowed, inside the blue line on the map annexed to the Agreement be-tween the two Governments concerning the regulation of fishing around the Faroe Islands constituted by the Exchange of Notes of the 27th April, 1959;

(ii)     the circumstances of the arrest, and

(iii)     the facts and incidents that occurred thereafter before the Red Crusader reached Aberdeen.¹⁶

The Commission received written submissions from Britain and Denmark and held oral hearings at The Hague. Its sizeable report was delivered to the parties in March 1962. In it the Commission set out a detailed description of the events which comprised the incident and drew the following main conclusions:¹⁷

1.   There was no proof that the Red Crusader had been fishing within the forbidden area, although the vessel was within the area with her gear not stowed.

2.   The Red Crusader was arrested, but the skipper having changed his mind ‘attempted to escape and to evade the jurisdiction of an authority which he had at first, rightly, accepted’.

¹⁶  Exchange of Notes of 15 November 1961, para. (b), UKTS No. 118 (1961 Cmnd. No. 1575), also in Bar-Yaacov, Inquiry, p. 185.

¹⁷  See 35 ILR p. 485 and document B in the appendix below.

3.   In opening fire after the escape the Danish commander ‘exceeded le-gitimate use of armed force’ because the circumstances did not ‘justify such violent action’.

4.   The British naval officers ‘made every effort to avoid any recourse to vi-olence’ between the Danish vessel and the Red Crusader, and exhibited an attitude and conduct that were ‘impeccable’.

As in the cases already considered, the report of the commission of inquiry facilitated the settlement of the dispute, though on this occasion only after some delay since it was nearly a year from the delivery of the Commission’s report to the announcement that Britain and Denmark had agreed to settle the issue by a mutual waiver of their claims.

If inquiries under the Hague Conventions had shown how the desire of states for highly specific types of third-party settlement could be accom-modated by investing the procedure of pure inquiry with overtones of arbitration, the Red Crusader inquiry displays the process of assimilation taken a good deal further. For in respect of its composition, its procedure and its findings the Red Crusader Commission was a fundamentally ju-dicial operation.¹⁸ A majority of the Commission were jurists and had the tribunal been a court of arbitration its blend of legal and non-legal expertise would have been in no way unusual. Moreover, like many arbi-tral tribunals, but unlike any of the previous commissions of inquiry, no member of the tribunal was a national of either of the parties to the dispute.

As in the Tubantia inquiry, the Red Crusader proceedings were divided into a written and an oral stage. But an important innovation in the latter was that, as in an arbitration, the principal examination of the witnesses was conducted by the representatives of the parties instead of by the mem-bers of the Commission. Scarcely less significant was the parties’ decision that the report of the Commission should not be published automatically, as had been the case with the reports of previous commissions of inquiry, but, like an arbitral award, should be published only with the consent of the two governments.

The findings of the Commission, though mainly devoted to the facts of the incident, clearly included important legal rulings. The Commission’s findings that Danish authority had been ‘rightly’ accepted by the skipper of the Red Crusader and that the subsequent firing ‘exceeded legitimate use of armed force’ are, as has been pointed out,¹⁹ legal judgments which, like other features of the case, suggest arbitration rather than inquiry.

¹⁸ Bar-Yaacov, Inquiry, p. 192.

¹⁹ E. Lauterpacht, The Contemporary Practice of the UK in the Field of International Law 1962 (I), London, 1962, p. 53.

What, then, was the difference between the Red Crusader inquiry and an arbitration? Two important distinctions can be identified and may well explain the parties’ preference for this mode of settlement.

First, by creating a tribunal whose primary concern was to establish the facts, the parties were able to avoid debating the full legal implica-tions of the case. Of course legal issues of immediate significance, such as the lawfulness of the shooting, had to be considered. Had the matter been dealt with by arbitration, however, it is likely that the legality of the Faroese fishery limits would also have been the subject of argument, be-cause this issue was currently the subject of a clear difference of opinion between Britain and Denmark.²⁰ Thus by handling the matter by means of a commission of inquiry rather than by arbitration, the two states were able to obtain a solution to the immediate problem without the delay and precedential implications of a more broadly based adjudication.

Secondly, because the proceedings were in the form of an inquiry the outcome was a report rather than an award. Despite the Commission’s findings of fault on both sides, the question of the effect to be given to the report remained in the hands of the parties. The fact that it then took them almost a year to agree upon a settlement suggests that in this respect a binding arbitration award, specifying damages or some other remedy, might have provided a more expeditious solution. The delay is, however, also a reminder of the importance which governments attach to freedom of action even in relatively minor disputes, and as a corollary, the usefulness of the inquiry procedure as a means of accommodating this demand.

The Letelier and Moffitt case

The Red Crusader inquiry was followed almost thirty years later by the decision in the Letelier and Moffitt case, the first, and so far the only, investigation by a commission established under one of the Bryan treaties.

The circumstances which gave rise to the case were unusual and account for a number of features which distinguish the work of this commission

²⁰  The ‘blue line’ mentioned in the terms of reference of the Commission was the six-mile fishery line which Britain had recognised in the 1959 Agreement in return for Denmark’s recognition of the British right to fish beyond the limit. By 1961, however, Denmark was seeking revision of this arrangement and following the termination of the earlier agreement in 1962, unilaterally imposed a twelve-mile limit in March 1964. For a review of this episode and contemporaneous developments see D. H. N. Johnson, ‘European fishery limits’, in Developments in the Law of the Sea 1958–1964, British Institute of International and Comparative Law Special Publication No. 6, London, 1965, pp. 48–92.

from that of its predecessors. The dispute had its origin in the murder in 1976 of Mr Orlando Letelier, a former Foreign Minister of Chile, who was killed in Washington DC when a bomb which had been placed in his car exploded. The explosion also killed an American lady, Mrs Moffitt, and seriously injured her husband, both of whom were also travelling in the car. Mr Moffitt, Mr Letelier’s estate and relatives of the deceased then brought proceedings against the Republic of Chile in the United States, alleging that the state was responsible for the explosion. Following the rejection of a plea of sovereign immunity, the claim was successful and the plaintiffs were awarded approximately 5 million dollars in damages.²¹ However, the judgment was not satisfied and the US courts then rejected an attempt to obtain execution against the assets of the Chilean national airline.²²

In 1988 the United States made an international claim against Chile in respect of the deaths and injuries, subsequently invoking the provisions of the Bryan–Suarez´ Mujica Treaty of 1914 between the two states.²³ Al-though Chile denied responsibility for the incident, it indicated that it was prepared to make an ex gratia payment to the US, on behalf of the families of the victims. In view of this concession the United States and Chile were able to conclude an Agreement in 1990 under which Chile agreed to make an ex gratia payment corresponding to the sum payable if liability had been established.²⁴ The Agreement went on to provide that the amount of this payment was to be determined by a Commission established under the 1914 treaty and that this was to be the sole question decided.

The five-member Commission, appointed in a Compromis appended to the Agreement, was composed of Judge Aguilar Mawdsley of the Interna-tional Court of Justice, from Guyana, as president, Sir John Freeland, the British member of the European Court of Human Rights, and Professor F. Orrego Vicuna,˜ a distinguished Latin American jurist, together with a national from each of the parties. The Commission received written submissions from the United States and Chile and at the parties’ request had the benefit of facilities provided by the Inter-American Commission on Human Rights. In its decision, which was delivered in January 1992, the Commission reviewed the numerous legal and factual issues pertain-ing to the question of compensation, and after considering the various

²¹ See 63 ILR p. 378; also the note in 88 ILR p. 747.

²²  See 79 ILR p. 561.

²³ Treaty for the Settlement of Disputes that May Occur Between the United States and Chile, 1914, US Treaty Series No. 621.

²⁴ Chile–United States: Agreement to Settle Dispute Concerning Compensation for the Deaths of Letelier and Moffitt, 1990, (1991) 30 ILM p. 422.

individual claims, unanimously awarded sums amounting in total to just over 2.5 million dollars.²⁵

In accordance with the parties’ original intentions, the decision effec-tively settled the dispute. It will be recalled that the parties had already undertaken to treat the Commission’s decision as binding and within a month of the ruling Chile agreed to pay the total sum awarded, to be divided amongst the relatives of those killed.

As in the Red Crusader, the task given to the Commission in this case was essentially judicial and this was reflected in all stages of its work. Its membership, as mentioned, included three prominent international lawyers, and though the nature of the issues made examination of wit-nesses unnecessary, the parties filed what in effect were written pleadings and could comment in writing on the other’s observations. No arrange-ments for publication of the decision were made, although in the event it was not treated as confidential.

The Commission’s decision, like the report in the Red Crusader, in-cluded several important legal rulings, as well as numerous findings of fact. Indeed, the former were much more important here than in the earlier case, because where compensation is in issue the principles gov-erning assessment supply the framework for identifying the relevant facts. In this respect it is notable that the Compromis specifically required the Commission to give its decision ‘in accordance with applicable princi-ples of international law’, which led it to refer inter alia to the decision of the Permanent Court of International Justice in the Chorz´ow Factory case,²⁶ and to the practice of judicial and arbitral tribunals with regard to non-pecuniary loss, as well as to questions such as remoteness and compensation for special expenses. The significance of the decision as a contribution to international law was further explored in Professor Orrego Vicuna’s˜ concurring opinion.

The Commission did not, of course, decide that Chile was responsible for the act of terrorism, but the fact that the sum involved was paid ex gratia affects neither the legal basis of the decision, nor the genuine nature of the argumentation. As Professor Orrego Vicuna˜ observed, the parties argued their cases with professional skill and ‘every relevant point of law and fact [was] controverted by the parties with precision during the proceedings’.²⁷ Thus although the United States originally invoked

²⁵  See 88 ILR p. 727; also in (1992) 31 ILM p. 1.

²⁶   Chorz´ow Factory case, PCIJ Series A, No. 17.

²⁷   Orrego Vicuna,˜ concurring opinion, section 5, 88 ILR p. 741.

the 1914 treaty ‘to investigate and report upon the facts’ surrounding the victims’ deaths, the Commission which was eventually set up functioned less as an inquiry commission of the traditional type and more like a court of arbitration, producing a binding decision and deciding issues of law as well as fact. The Letelier and Moffitt case thus confirms a general point made earlier that commissions of inquiry can sometimes be used in unexpected ways, and a specific point we shall encounter again in Chapter 5, that when a face-saving solution is wanted, procedures such as inquiry and arbitration can help by enabling certain issues to be resolved authoritatively, while leaving others, such as responsibility, undecided.

The value of inquiry

It is clear from the cases we have considered that from its inception in the Dogger Bank case to its latest use in the Letelier and Moffitt case the inter-national commission of inquiry has compiled a worthwhile yet curiously ambivalent record. Envisaged by the Hague Conventions as an institution for the management of a relatively narrow range of disputes, inquiry has been employed in cases in which ‘honour’ and ‘essential interests’ were unquestionably involved, for the determination of legal as well as factual issues, and by tribunals whose composition and proceedings more closely resembled courts than commissions of inquiry as originally conceived. On the other hand, this lateral extension of the commission’s role has not, as might have been expected, generated a corresponding increase in busi-ness. On the contrary, the four inquiries between 1905 and 1922 were followed by a forty-year gap until the Red Crusader in 1962, and despite the elaborate provisions of various treaties and a General Assembly res-olution²⁸ urging the use of fact-finding procedures, there has been only one case since. These apparently contradictory tendencies tell us a good deal about the settlement of international disputes in the modern world.

The utilisation of inquiry for disputes as varied as the Dogger Bank and Tavignano cases is a reminder that where sovereign states are concerned, form is subordinate to function. Since international disputes are infinitely various in their circumstances and subject matter, it is not surprising that in their search for acceptable procedures states have adapted the inquiry technique to provide a range of institutional solutions, from the ‘pure’

²⁸ Resolution 2329 (XXII), 18 December 1967. Text in Waldock, Legal Aspects, p. 175. See also United Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, 1992, Chapter 2B.

fact-finding of the Tiger inquiry, to the near arbitration of the Red Crusader and Letelier and Moffitt inquiries.

Why, then, if the inquiry procedure is so flexible, is it not more widely used? Here the answer is more complex.

First – and the point is so obvious it may easily be overlooked – it is sometimes unnecessary to set up an inquiry because a situation in which the facts are open to different interpretations proves amenable to negotiation. In May 1999, for example, during the eleven-week NATO air campaign against the Federal Republic of Yugoslavia, a US aircraft bombed the Chinese embassy in Belgrade, killing three Chinese nationals and wounding twenty others. The attack was evidently a mistake as those who planned the raid were under the impression that the building was a Yugoslav arms agency, having relied on incorrect intelligence information from the US authorities. As the attack was highly controversial and the circumstances initially unclear, the matter could in principle have been investigated through an international inquiry. In the event, however, it was resolved through discussions involving an explanation and apology and the payment of compensation by the United States.²⁹

A second point is that when an inquiry is needed there are a number of ways in which it can be carried out without recourse to the machinery of the Hague Conventions. The League of Nations set up its own com-

˚

missions of inquiry in seven cases, including the Aland Islands dispute between Finland and Sweden in 1921 and the Mosul dispute between Britain and Turkey in 1925.³⁰ These commissions, which did not include representatives of the parties, examined the circumstances of each dispute in considerable detail and in some cases also attempted conciliation. The United Nations has used inquiry in a similar way. In 1982, for example, the Security Council established a fact-finding commission to investigate an attempted coup led by foreign mercenaries in the Seychelles, and when chemical weapons were used in the Iran–Iraq war in 1984, Secretary-General Perez´ de Cuellar´ sent a commission of Swiss, Swedish, Spanish and Australian experts to study the situation at the front and report back.³¹

²⁹  See (2000) 94 AJIL p. 127, and for another episode involving these states (2001) 95 AJIL p. 630. See also the acceptance by the United States in March 1989 of an offer of compen-sation by Iraq for the attack on the USS Stark while on station in the Persian Gulf in 1987. See (1989) 83 AJIL p. 561.

³⁰  See Cot, International Conciliation, p. 250.

³¹  See R. R. Probst, “‘Good offices” in international relations in the light of Swiss practice and experience’, (1987) 201 Hague Recueil des Cours, p. 211 at p. 372.

An unusual procedure similar in some respects to inquiry is the process established by the Security Council to deal with claims arising from the invasion of Kuwait by Iraq in 1990. Using a body called the UN Com-pensation Commission,³² the process enables governments, companies and international organisations to have claims for compensation assessed by expert panels and to receive payment from a special fund financed from a levy on Iraqi oil sales. A very large number of such claims have now been reviewed, resulting in the payment of several billion dollars of compensation. Contrary to what might be thought, the process involved here is not arbitration or adjudication, but administrative in nature as the broad issue of Iraq’s liability was settled by Security Council Res-olution 687 in 1991, and the proceedings before the Commission are not adversarial and are usually conducted through written submissions. Thus, in the words of the Secretary-General the Commission ‘performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims.’³³

The Specialised Agencies can also conduct inquiries in certain situ-ations. Thus the ILO has on several occasions created commissions of inquiry to deal with complaints relating to labour conventions, and in September 1983 the ICAO instructed its Secretary-General to investigate the KE 007 incident, which involved the shooting down of a South Korean jumbo jet over Soviet territory. The inquiry report,³⁴ which was ready by the end of the year, complained of the lack of Soviet co-operation and was unable to shed light on all aspects of the incident. It did, however, serve to establish many of the facts and provided the basis for a resolution in which the ICAO Council condemned the Soviet attack. The resolution in turn facilitated the adoption in May 1984 of an amendment to the Chicago Convention on Civil Aviation, designed to reduce the risk of such inci-dents in the future. Here, then, an inquiry by an organisation was possible without the consent of one of the states involved, and, though the report cannot be said to have settled the dispute, had an important bearing on its consequences.

³² For a description of the Commission see J. R. Crook, ‘The United Nations Compensation Commission – A new structure to enforce state responsibility’, (1993) 87 AJIL p. 144; and for an account of some of its recent work, see M. Kazazi, ‘Environmental damage in the work of the UN Compensation Commission’, in M. Bowman and A. E. Boyle (eds.),

Environmental Damage in International and Comparative Law, Oxford, 2002, p. 111.

³³ UN Doc S/2259, 2 May 1991, para. 20, quoted in J. Collier and V. Lowe, The Settlement of Disputes in International Law, Oxford, 1999, p. 42.

³⁴ Destruction of Korean Air Lines Boeing 747 over Sea of Japan 31 August 1983 Report of ICAO Fact-Finding Investigation, (1983) ICAO Doc. C-WP/7764, Attachment p. 1, reproduced in part in (1984) 23 ILM p. 864.

In 1993, the World Bank created a kind of standing inquiry procedure when it established an Inspection Panel³⁵ to receive and review requests from communities, organisations or groups who believe they may be ad-versely affected by a project funded by the Bank and claim the project may contravene the Bank’s operational policies and practices. The Panel’s task is first to recommend to the Executive Directors whether the matter should be investigated and then, if asked to do so, to carry out an inspec-tion. The findings of the Panel are not binding, but based as they are on impartial investigation, utilising visits and consultations, carry consider-able weight. As evaluation has a quasi-judicial aspect, Panel reports go beyond inquiry in the strict sense, but clearly incorporate a significant fact-finding element. The World Bank’s Panel has already started to de-velop a useful practice³⁶ and both the Inter-American Development Bank and the Asian Development Bank now have similar mechanisms.

Regional organisations also set up inquiry commissions from time to time and, as we shall see in Chapter 8, the 1982 Law of the Sea Convention has provision for inquiry in its articles on ‘special arbitration’. It was noted earlier that inquiry in the operational sense is a frequent component of judicial settlement. Presumably, therefore, with the creation of standing judicial tribunals in the form of the Permanent Court and its successor the present International Court, litigation has been employed in a number of disputes which might otherwise have provided subjects for inquiry. Like-wise, we shall see in the next chapter that the early inquiry commissions were followed in the inter-war period and afterwards by commissions of conciliation, which suggests that the blending of inquiry with conciliation in the League of Nations era also had a diversionary effect.

The fact that there are now many alternatives to the traditional inquiry commission is therefore another reason for the relatively small number of cases. There is, however, a third and more fundamental explanation. All forms of third-party settlement have proved less popular than was once anticipated. States have no compelling reason to regard inquiry as more

³⁵  For comment on the Panel and its significance, see C. Chinkin, ‘Alternative dispute resolu-tion under international law’, in M. D. Evans, Remedies in International Law: The Institu-tional Dilemma, Oxford, 1998, p. 123 at pp. 134–7; and P. Sands, Principles of International Environmental Law (2nd edn), Cambridge, 2003, pp. 210–11.

³⁶  See R. E. Bissell, ‘Recent practice of the Inspection Panel of the World Bank’, (1997) 91 AJIL p. 741; and A. N. Gowlland Gualtieri, ‘The environmental accountability of the World Bank to non-state actors: Insights from the Inspection Panel’, (2001) 72 BYBIL p. 213.

attractive than, say, judicial settlement, and, as will be seen later, they are prepared to refer disputes to international courts and tribunals only in somewhat exceptional circumstances. The fact of the matter is that states are often less interested in settling a dispute than in having their view prevail. The KE 007 incident illustrates the point perfectly. This incident, in some ways reminiscent of the Dogger Bank affair, might be thought well suited to an inquiry commission of the traditional type. It is true that a dispute involving security interests, accusations of spying and perhaps questions about the Soviet chain of command, is not the kind of dispute which those who drew up the Hague Conventions had in mind. Yet, as we have seen, the commission of inquiry can be, and has been, adapted to deal with just this type of case. From the technical point of view there would therefore have been no difficulty in establishing an international commission of inquiry to investigate the incident. What prevented this from being done was not any lack of flexibility in the procedures available for dispute settlement, but an unwillingness on the part of the Soviet Union to have its account of the incident or its actions challenged in an international forum. Although this could not prevent the matter from being investigated by the ICAO, it clearly ruled out any possibility of a consensual inquiry commission of the type we have been considering.

It is therefore only in situations in which certain special conditions are satisfied that there is scope for setting up an inquiry commission. As already indicated, these are that the disputed issue is largely one of fact, rather than law or policy, that no other procedure is being employed and, most important of all, that the parties are willing to accept that their version of events may be shown to be wrong. Such a combination of circumstances evidently does not occur very often. When it does, the highly satisfactory outcome of the two most recent cases demonstrates that as a means of dispute settlement the international commission of inquiry can still produce useful results.

¹¹ The importance which the burden of proof argument might have assumed is clear from the separate opinion of the German commissioner who examined the issue in some detail. On the general significance of such evidential factors in the work of inquiry commissions, see the comments of H. Darwin in C. M. H. Waldock (ed.), International Disputes: The Legal Aspects, London, 1972, at p. 169.

¹² See J. B. Scott, The Hague Court Reports (Second series), New York, 1932, p. 135.