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International Treaties and Dispute Resolution
From: Cambridge University Press
| By:
Anthony Aust |
EDITOR'S INTRODUCTION |
The desire to avoid international conflict in everything from trade to government relations has led to a plethora of treaties and agreements. But treaties in turn can give rise to problems of interpretation. In this extract from his book Modern Treaty Law and Practice, Anthony Aust considers some of the legal issues surrounding dispute resolution, using examples from the real world of business and politics. |
 reaties give rise to numerous disputes about their interpretation or application. Although the two terms are usually mentioned in the same breath, strictly speaking when the meaning is clear, the text is applied; when it is not clear, it has to be interpreted. The methods are no different to those used for other disputes in international law, except that many treaties prescribe how disputes about them may be settled. Many disputes are settled quickly and informally; others can take many years to resolve; some are never resolved; and some it is better to manage rather than attempt a resolution. There is no one method by which disputes of a certain kind are dealt with; not even one generally used method. The means used for disputes under a multilateral treaty are essentially the same as for a bilateral treaty, since the dispute is usually between only two of the parties. Nor is the method necessarily dictated either by the importance or magnitude of the dispute or how long it has lasted. There are treaty disputes which are never settled even when a method is specified in the treaty (it will now be obvious that 'settle' is here being used in the more general sense of 'resolve', and not in its narrow meaning of agreeing terms upon which pending litigation will be ended). |
 Article 33 of the United Nations Charter elaborates on the basic principle enunciated in Article 2(3) of the Charter, that all Members shall settle their international disputes by peaceful means, and lists the most usual means: negotiation, mediation, conciliation, arbitration and judicial settlement. The methods can be broadly divided into voluntary and compulsory, depending on whether or not the parties to a dispute are under a treaty obligation to enter into a particular means of settlement. But this does not mean that under a voluntary process the parties will never be bound by the result; nor that under a compulsory process the result will always be binding: it depends entirely on the terms agreed. |
Voluntary settlement
Negotiations and consultations
There is of course nothing to prevent the parties to a dispute seeking to resolve it by direct negotiations. In fact, this is normally the first step in any dispute, and even if the dispute is to be referred to arbitration or judicial settlement it is desirable that the point at issue should be defined by negotiation. Since negotiations can be held in decent privacy, it may be easier to reach a settlement. Once a dispute is elevated to a more formal or public level, it may be more difficult, at least politically, to settle it; positions become entrenched and public 'face' requires that neither side is seen to compromise. |
Negotiating procedures are infinitely flexible, the process being completely under the control of the parties. Once a third party is brought in to help reach a settlement, negotiations may gain a momentum of their own which the parties (at least individually) may not be able to stop or influence effectively. This may be one reason why most disputes are settled by negotiation; though it may also be true that most disputes are not so intractable that the parties have to resort to more formal methods. One should treat with caution proposals for still further general treaties on dispute settlement. There are already sufficient for those states which wish to use them. And, although formal methods of dispute settlement have an important role to play, they are generally no substitute for a carefully negotiated settlement. |
There is no significant difference between consultations and negotiations, though consultations are often made a formal pre-condition for moving to a third-party settlement procedure. The settlement of disputes provision in the UK-US Air Services Agreement 1977 ('Bermuda 2') provides for a dispute to be the subject of a 'first round of consultations' before it can be submitted by either party to third-party settlement, and 'first round' is generally understood to mean at least two meetings with a gap in between. |
Some treaties require the parties to a dispute to do no more than enter into consultations or negotiations with a view to reaching a settlement or to agreeing on another method of settlement. These have to be implemented in good faith (Article 26). Thus, the negotiations must be conducted purposefully. |
Negotiations can last as long as the parties wish, and may be stopped and resumed at any time. Some dispute settlement clauses, however, prescribe a time limit after which either party is free to invoke whatever third-party means of settlement is provided for in the treaty. |
If the negotiations are successful it is essential for the parties to record what they have agreed. The form will depend on the circumstances. It may involve an amendment to the treaty or a public statement. If the parties do not want publicity they may record the terms of settlement in an unpublished memorandum of understanding (MOU). For the reasons already given, the MOU, though not itself legally binding, may nevertheless have legal consequences, as was demonstrated in the award in the UK-US User Charges Arbitration. |
If the negotiations are not successful, one of the parties may decide to terminate the treaty. This could be described as the other way of settling a dispute. Since 1945 the United Kingdom has, because of unresolved disputes, terminated at least four air services agreements: with the Philippines (1953 and 1984), the United States (1976) and Lebanon (1981). Sometimes a dispute becomes so bad that termination and starting afresh is the only way out of the impasse. It does not, of course, mean that the dispute may not still be settled by reference to a third party if the treaty provides for this (a disputes clause may remain in force in relation to matters occurring before termination of the treaty), or if the parties agree to this course. But termination can have the advantage of drawing a line under the dispute and enabling the parties to negotiate a new treaty to their mutual satisfaction. |
Involvement of third parties
If it is not possible to settle a dispute by negotiation, it may be necessary to seek the help of a third party. Whether this will be successful--and even whether it will be possible--will depend on various factors. One will be the degree of co-operation between the parties. Despite the existence of several general treaties on the settlement of disputes, in many cases there will be no agreement binding the parties to any means of third-party settlement for the particular dispute. It will then be necessary to negotiate--probably in unfavourable circumstances--an ad hoc agreement on a means of settlement. If the method is mediation or conciliation, unless the agreement provides for the parties to accept the recommendations of the third party (which is not usual), neither party will be bound by them. |
Conciliation
Conciliation may be provided for in the treaty itself or in a general treaty on the settlement of disputes to which the parties in dispute are both bound, or it may be agreed ad hoc. The nature of conciliation is neatly expressed in the Annex to the Vienna Convention itself, which provides for the conciliation of disputes between parties to the Convention in certain limited circumstances. Part of it provides that: |
(4) The [Conciliation] Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement. |
(5) The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute. |
This formula became a model for multilateral treaties, in particular for the United Nations Convention on the Law of the Sea 1982. |
A conciliation commission is usually composed of three to five members, one (or two) members being appointed by each party and a third member chosen by the appointed members to serve as chairman. If a party fails to appoint its member (or members), or there is no agreement on the choice of the third member, it is customary to provide for the necessary appointments to be made by an eminent independent person, such as the President of the International Court of Justice or the UN Secretary-General. It is therefore essential to set time limits for all appointments so as to avoid one party obstructing the process. The Annex to the Convention itself provides a useful model for multilateral treaties, and was a model for provisions which, by providing for a permanent list of conciliators, avoid the problem of leaving the appointments of conciliators solely in the hands of the parties in dispute. |
Conciliation is inevitably more expensive than negotiation, since each party will not only have to pay its own expenses, including the fees of any outside lawyers or experts it engages, but it will normally have to pay half of the costs of the conciliators, their accommodation and staff. |
The results of a conciliation are almost invariably non-binding. Once again the matter is well expressed in the Annex to the Convention: |
(6) ... The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute. |
Thus, conciliation is, from one point of view, usually less effective than arbitration or judicial settlement, the results of which are binding, yet it can be as expensive and time-consuming. If conciliation has not led to a settlement, unless the parties can then agree to take the dispute to arbitration or judicial settlement (further expense), there may be no practicable means for settling it. |
Mediation and good offices
Mediation is usually an ad hoc method involving the intervention of a third person in an attempt to reconcile the claims of the parties by advancing ideas of his own for a compromise. It is more of a political process and, as such, it may not be suitable for the resolution of a dispute about the interpretation or application of a treaty. Good offices are very similar in nature (indeed, the terms are almost interchangeable) and consist in a third person (these days often the UN Secretary-General, or rather his special representative) giving his impartial assistance in an effort to help resolve the dispute. The process therefore suffers from the same weaknesses as mediation, at least as far as treaty disputes are concerned. |
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