Conciliation Within the Framework of Dispute Settlement Procedures: an East European Perspective

chapter 3 Conciliation within the Framework of Dispute Settlement Procedures: An East European Perspective Lauri Mälksoo i Introduction As is well known to the students of international law, the techniques of conflict resolution in their subject matter fall into two categories: diplomatic and legal procedures. Obviously, such doctrinal distinction comes from legal positivism which aims at the clear separation of law and politics. Diplomatic methods of dispute settlement are negotiation, good offices, mediation, inquiry and conciliation. The key common characteristic of these methods and procedures is that their outcome is not legally binding. At the other end of the spec- trum, binding methods of dispute settlement are arbitration by arbitration tribunals and adjudication by international courts which both issue binding judgments. In reality, the positivist foundation of the dispute settlement procedures, Article 33(1) of the un Charter, does not so neatly separate diplomatic and legal procedures and simply stipulates: The parties to any dispute, the continuance of which is likely to endan- ger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies and arrangements, or other peaceful means of their own choice. Thus, in international law there is a fundamental principle of peaceful settlement of disputes. To contribute to peaceful settlement of disputes is perhaps the highest calling of international law because the alternative to this is violence and war. At least since the late 19th century, if not earlier, international law has been entrusted with reducing violence and war. Conciliation is a dispute settlement procedure that contains elements of inquiry (fact finding) and mediation. Scholars often point out the Janus-like or hybrid nature of conciliation – sometimes conciliation is little more than ‘insti- tutionalised negotiations’ and then at other times it may, at least procedurally, © koninklijke brill nv, leiden, ��7 | doi �0.��63/97890043��_004 <UN> Conciliation within Dispute Settlement Procedures Framework 13 markedly resemble arbitration.1 In conciliation, there is a neutral third party involved – a conciliator – who attempts to establish what the facts are as well as actively to propose solutions to the dispute. The difference with mediation is that although a mediator is also a neutral third party, he or she is not actively expected to offer proposals for solution and instead takes a more passive role of mediation. At the same time, in conciliation the proposed solutions offered by the conciliator are not legally binding on the conflicting parties; they do not constitute an ‘award’ in the sense of arbitration or a ‘judgment’ in the sense of adjudication. All dispute settlement procedures, including conciliation, have their legiti- mate place under the sun. The Latin maxim suum cuique sums up the situation well. For example, Malcolm Shaw praises conciliation as extremely flexible and that by clarifying the facts and discussing proposals this may stimulate negotiations between the parties.2 This is an important point because adjudication is altogether more adversary, final and may promote the mentality of ‘the winner takes it all’. However, considering the practical relevance of ‘lesser’ methods of dispute settlement, international lawyers have been perhaps disproportion- ately fascinated with international arbitration and adjudication. For example, Jan Klabbers writes in his textbook on international law that for the lawyers, ‘the two more interesting methods (…) are arbitration and adjudication’.3 At the same time J.G. Merrills has pointed out that in state practice negotiation is employed more frequently than all the other methods put together.4 Neverthe- less, consciously or less so, the thinking of international lawyers seems to be: let international lawyers deal first of all with the legally binding methods of dispute settlement and politicians, diplomats and academically international relations experts (rather than lawyers) – the likes of Henry Kissinger – focus on non-binding methods. In this spirit, conciliation as method of dispute settlement is formally recognized as part of the doctrine of international law, but for some lawyers it is somehow still not legal enough. There are certain political costs and cultural limitations to this tendency of emphasizing international adjudication and arbitration and neglecting other methods of dispute settlement. Professor Onuma Yasuaki from Meiji Universi- ty in Tokyo has criticized the ‘‘‘domestic model (of Western society) approach” 1 J.G. Merrills, International Dispute Settlement, 5th ed (Cambridge: Cambridge University Press, 2011) 65–66. 2 Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2008) 1023. 3 Jan Klabbers. International Law (Cambridge: Cambridge University Press, 2013) 142. 4 Merrills (supra note 1) 2. <UN>.

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