The infrequent use of conciliation
Conciliation was initially thought to have great potential for being employed in the majority of inter-State disputes. However, for several reasons, conciliation has not lived up to its expectations.
Conciliation is defined in Article 1 of the 1961 Session of the Institut de Droit International as
‘[…] a method for the settlement of international disputes of any nature according to which a Commission set up by the Parties […], proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the Parties, with a view to its settlement, such aid as they may have requested’.
Conciliation was initially welcomed as having immense potential as a form of alternative dispute resolution. It is included as a dispute settlement system in various international treaties and conventions. Thus, it is surprising that conciliation has only been used in a small number of cases compared to the number of treaties and international agreements which include it. This post shall provide an analysis of the reasons behind the infrequent use of conciliation.
Potential Reasons for Infrequent Use
The general consensus is that conciliation has not lived up to the expectations of its founding fathers. While conciliation has proven successful in some cases, e.g. Jan Mayen and the East African Community case, there are several reasons as to why other dispute settlement mechanisms are preferred over conciliation.
The first reason may be that parties have other, more effective, fora for settling disputes available to them. This furthermore depends on the type of conflict present in the dispute. When dealing with a minor dispute for which litigation would prove too costly or diplomatically damaging, conciliation presents itself as a fitting mechanism. However, in those cases it may be that direct bilateral negotiations would be faster, more cost-effective, and more direct. The establishment of a conciliation commission takes time: commissioners need to be appointed, meetings between the parties must be set up, etc. As such, to warrant the complex administrative nature of conciliation, parties would not necessarily see the benefit in seeking conciliation for minor disputes. On the other hand, major disputes between States require political and legal authority in order for them to be settled. Binding decisions and compliance mechanisms are required at most, and political authority must be present at the very least to ensure compliance. Conciliation, however, offers none of these aspects.
At the conclusion of conciliation proceedings, the commission issues non-binding recommendations. Their non-binding nature, coupled with the fact that in most cases conciliation is optional, may be another reason why parties seek other mechanisms. The success of conciliation in the Jan Mayen case is often attributed to the fact that the two parties enjoyed an amicable relationship and desired an expedited outcome without the risk of establishing a precedent that would bind them in the future. The non-binding nature of the recommendation and the optional nature of conciliation were not issues in this case, as non-compliance with the recommendation would have damaged diplomatic relations. Where parties to a dispute do not enjoy a strong diplomatic relationship, binding outcomes are desired in order to ensure compliance and to ensure that the mechanism is effective. Furthermore, non-mandatory procedures of any kind will prove fruitless unless both parties agree to them. As such, the mainly optional nature of conciliation may be a strong reason for its infrequent use.
Further reasons such as a lack of disputes between parties to treaties which contain conciliation or treaties which limit the disputes under which conciliation may arise, may also be valid.
However, while the aforementioned reasons may be indicative of the infrequent employment of conciliation, it is argued that its restricted use is one of its advantages. The frequency of the employment of conciliation is not important as it acts as a preventive mechanism which relies on its mere presence. Sir Ian Sinclair has stated that “[…] paradoxically, the less they are utilised the more effective they will be”. He argued that conciliation need not be used to be effective, as through its incorporation into treaties and conventions it acts as a check on the actions of States. This argument may explain the continuing incorporation of conciliation into modern treaties and conventions.
Conciliation as a system of dispute settlement does boast its own benefits which set it aside from other systems such as mediation, arbitration, and judicial proceedings. However, due to its largely optional nature, its non-binding recommendations, and its lack of an enforcement mechanism, it has failed to become a widely utilised mechanism. While the argument can be made that its mere presence is sufficient, there are tangible reasons to clarify why parties would choose other mechanisms.
Christian Tomuschat et al “Conciliation in International Law: The OSCE Court of Conciliation and Arbitration” (BRILL 2016)
European Convention on Human Rights
Vienna Convention on the Law of Treaties 1969
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States
John Merrills “International Dispute Settlement” (CUP 2017, 6th edn)
“Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen” (1981), Reports of International Arbitral Awards Volume XXVII
Jean-Pierre Cot “Conciliation” Max Planck Encyclopedia of Public International Law (2006)|
I M Sinclair “The Vienna Convention on the Law of Treaties” (Manchester University Press 1973)