Article 22 – Settlement of Disputes
The obligation of States to settle disputes in a peaceful manner is well established in international law, and is enshrined in Article 33 of the United Nations Charter. Article 33 sets out a menu of dispute settlement mechanisms that are available to States including “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, report to regional agencies or arrangements, or other peaceful means of their own choice.” The mechanisms provided for in the Treaty draw on that list. They are fairly standard provisions and reflect virtually word for word the dispute settlement procedures set out in Article 27 of the CBD.
As noted above, a distinction should be drawn between the compliance procedures provided for in Article 21 and the dispute settlement procedures of Article 22. While the compliance procedures deal with ways of discussing and dealing with issues of non-compliance in general, the provisions of Article 22 apply when there is an actual dispute between two or more Contracting Parties concerning the interpretation or application of the Treaty. Any dispute that arises under the Treaty must be settled according to its provisions. The Treaty adopts a progressive process that facilitates dispute resolution by subjecting the dispute to gradually more intrusive and formal mechanisms. Negotiation requirements give the Parties the opportunity to resolve a dispute among themselves in a mutually satisfactory way. Non-binding thirdparty mechanisms, such as the use of good offices or mediation, allow disputing Parties to obtain an impartial perspective on the dispute. Finally, if all else fails, the Parties may submit the dispute to binding procedures such as arbitration or judicial settlement. The potential for subsequent binding arbitration or judicial settlement also puts pressure on the Parties to settle their dispute before they lose some measure of control over the process.
It should be noted that the dispute settlement procedures set out in Article 22 deal only with disputes between Contracting Parties to the Treaty. Separate dispute settlement procedures may need to be set out in the agreements between the IARCs and the Governing Body for disputes arising out of the interpretation or application of those agreements. Disputes arising out of the interpretation or application of the standard MTAs will apparently be settled under national law, in accordance with the procedures set out in those MTAs.
When a dispute arises and throughout the life of the dispute, the disputing Parties are often in the best position to reach an accommodation. It is for this reason that Article 22.1 states that the first step in resolving a dispute is through negotiation. This is a fundamental and traditional rule of conflict resolution.
The Treaty does not define “dispute”. The term apparently refers to any situation among the Parties that they care to treat as a dispute. In particular, disputes are not limited to legal differences but may involve any combination of law, facts and policies.
When the Parties fail to settle their differences by negotiation between themselves, the Treaty calls for the introduction of a third party. The intervening third party does not decide the matter, but advises the parties. The difference between good offices and mediation, therefore, is largely a matter of the degree of initiative taken by the intervenor to secure a settlement.
Good offices: The provision of good offices has often been referred to as “quiet diplomacy” since the process often involves entrusting the dispute to personalities with special qualification on whom both parties agree. This might involve, for example, heads of State or the Secretary-General of the United Nations, or their designees.
Mediation: like good offices, mediation is an adjunct of negotiation, but with the mediator as an active participant, authorized, and even expected, to advance his own proposals and to interpret, as well as to transmit, each party's proposals to each other.
In both cases, the third party could be another Treaty Party, one of the bodies created under the Treaty, an external body or organization, or even a professional mediator.
22.3 When ratifying, accepting, approving or acceding to this Treaty, or at any time thereafter, a Contracting Party may declare in writing to the Depositary that for a dispute not resolved in accordance with Article 22.1 or Article 22.2 above, it accepts one or both of the following means of dispute settlement as compulsory:
As in Article 27(3) of the CBD, a Party can make, at any time, a written declaration to the Treaty's Depositary accepting a compulsory dispute resolution by arbitration (Paragraph (a)), by the International Court of Justice (ICJ) (Paragraph (b)), or both when negotiation, mediation, or good offices have failed.
In turning to arbitration, a line is crossed between diplomatic methods of settling disputes and adjudication. The contrast is sharpened by the fact that an arbitral award is a binding decision. In choosing arbitration, the parties to a dispute invite another entity to resolve it for them. However, arbitration allows the parties to constitute and to operate their own court. Consequently, it has the attraction for States in disputes that they can select individuals as arbitrators in whom they have confidence and thus can at least influence the procedure that will be employed to resolve their conflict.
The arbitration process, as set out in Part 1 of Annex II, is composed of the following elements:
Notification to the Secretary (Article 1);
The scope of decision-making (Article 4);
Obligations of the Parties to provide information (Article 7)
Confidentiality (Article 8);
Costs (Article 9);
Intervention (Article 10);
Counterclaims (Article 11);
Decision process (Article 12);
Absence of a Party (Article 13);
Deadline for decision (Article 14);
Scope of decision (Article 15);
Finality of decision (Article 16); and
Controversy regarding the decision (Article 17).
(b) Submission of the dispute to the International Court of Justice.
Reference to the ICJ is a common provision of last resort in many international agreements. The procedures to be applied in cases before the ICJ are laid down in the Statute of the International Court of Justice.
Reliance on the ICJ is problematic, however, as ICJ jurisdiction will depend on agreement of the parties since relatively few countries have accepted compulsory ICJ jurisdiction. In addition, reference to the ICJ is likely to be costly and time consuming, and thus not suited to expeditious resolution of the dispute.
It is to be noted that submission to the ICJ is not an option when one of the parties to the dispute is an Organization, i.e. potentially the European Community in respect of the Treaty, because the Court is open only to States. Disputes involving the EC would therefore need to be submitted to arbitration as a procedure of last resort.
22.4 If the parties to the dispute have not, in accordance with Article 22.3 above, accepted the same or any procedure, the dispute shall be submitted to conciliation in accordance with Part 2 of Annex II to this Treaty unless the parties otherwise agree.
In those cases in which Contracting Parties have not accepted any of the judicial procedures set out in Article 22.3 (arbitration and/or ICJ) and negotiation and mediation or good offices have failed, the dispute must be submitted to conciliation. Submitting the dispute to conciliation is an obligation, unless the Parties agree otherwise.
Conciliation has been defined by the Institute of International Law as:
A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or an ad hoc basis to deal with a dispute, 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. 128
Whereas mediation is an extension of negotiation, conciliation puts third party intervention on an formal legal footing and institutionalizes it in a way comparable, but not identical, to arbitration.
Conciliation is essentially institutionalized negotiation. One of the distinctive features of conciliation is that a commission's report takes the form of a set of proposals, not a decision. Thus, even in cases where law has been a major consideration, the report is quite different from an arbitral award and not binding on the parties.
Part 2 of Annex II provides the following mechanism:
Creation and composition of a conciliation commission (Article 1);
Decision process (Article 5); and
Competence issues (Article 6).
While not provided for in Part 2 of Annex II, it is usual practice for the commission to give the parties a specified period of a few months in which to indicate their response. If its proposals are accepted the commission draws up an agreement recording the fact of conciliation and setting out the terms of the settlement. If the proposed terms are rejected, then conciliation has failed and the parties are under no further obligation.
128Regulation on the Procedure of International Conciliation, Art. 1., at 385-91, Ann. IDI 49-II (1961).
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