In 1961, theInstitut de droit international defined conciliation 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 settlement, such aid as they may have requested.”119
Conciliation combines the distinctive characteristics of inquiry and media- tion.120 The conciliator is appointed by agreement between the parties. The
conciliator then investigates the facts of the dispute and suggests the terms of a settlement. Conciliation is however more formal and less flexible than me- diation. A mediator whose proposals are rejected may go on formulating new proposals, whereas a conciliator generally only issues one report. Typically however, the conciliator has separate confidential discussions with each of the parties, aiming to find a sphere of agreement between them before issuing the report. Parties have no obligation to accept the terms of settlement issued by the conciliator. Otherwise, conciliation often resembles arbitration, especially
118see Article 2,Convention on Registration of Objects Launched into Outer Space (1974),
adopted on 12 November 1974, opened for signature on 14 January 1975, entered into force on 15 September 1976, (1976) 1023 UNTS 15, 28 UST 895, TIAS 8480, [hereinafter “Registration Convention”]
119Article 1, Regulation on the Procedure of International Conciliation, (1961) 49-II Ann.
IDI 385
when the dispute involves points of law and is not be settledex aequo et bono. Parties are generally required to use more moderate language to frame their arguments, as they would before an arbitrator.
Under the Conciliation Rules of the International Chamber of Commerce (ICC),121 the distinction between “mediation” and “conciliation” makes no practical difference. This is because the Conciliation Rules leave it to the conciliator whether or not to make settlement proposals.122
The evolution of conciliation as a separate method of dispute settlement in international law began with the 1913 Bryan Treaties. These Treaties granted the established permanent commissions only the competence to make non- binding decisions. Today, the inclusion of clauses stipulating conciliation as a dispute settlement mechanism in multilateral treaties has become habitual.
There is a patent dissimilarity between good offices and mediation on the one hand and conciliation on the other. Reminiscent of good offices and medi- ation, conciliation also involve third parties, usually formal commissions, that provide non-binding reports on questions of law or fact.123 When confined to
fact-finding, the commission is usually called a “fact-finding commission”, and takes the form of inquiry and fact-finding as a dispute settlement mechanism instead.
Conciliation as a methods of dispute settlement has gained recent popularity with prominent commissions investigating, for example, the violence accompa- nying East Timor’s independence referendum,124 NATO’s bombing campaign in the former Yugoslavia,125 and the spate of violence in the Middle East.126 Israel and Egypt also turned to conciliation in the Taba dispute. The peace agreement called for a boundary commission to demarcate the boundary. When the attempt failed, the parties went to arbitration.127 In 2000, Ethiopia and
Eritrea initially considered conciliation of their boundary dispute, with the Commission’s jurisdiction limited to “pertinent colonial treaties (1900, 1902 and 1908) and applicable international law”. It did not have powers to make
121The International Chamber of Commerce deals with commercial disputes and not with
inter-State disputes.
122Schwartz, E.A., “International Conciliation and the ICC”, (1995) 10 ICSID Rev. 98 at
100
123Fox, H., “Conciliation in International Disputes”, in Waldock, C.M.H., (ed,),Interna-
tional Disputes: The Legal Aspects, (1972)
124“UN Investigator Names Indonesia Army Officers in Violence Probe”, Agence Francais-
Press, (20 April 2001)
125Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia, available online at http://www.un.org/icty/pressreal/nato061300.htm, Last accessed: 04 January 2006
126Sharm El-Sheikh Fact-Finding Committee, Mitchell Panel Report, available online at
http://usinfo.state.gov/regional/nea/mitchell.htm, (Last accessed: 04 January 2006).
127Agreement to Arbitrate the Boundary Dispute Concerning the Taba Beachfront, Egypt-
decisions ex aequo et bono.128 Subsequently, the parties chose arbitration to
settle the dispute. The Organization for Security and Cooperation in Europe (OSCE) has formed a permanent court of conciliation and arbitration,129 and
the WTO Dispute Settlement Understanding incorporates conciliation among the dispute settlement options open to members,130as does the UN Convention
on the Law of the Sea.131
Third parties cannot take their own initiative in conciliation proceedings. Conciliators are appointed on the basis of their official functions or as individu- als in their personal capacity. The common practice in establishing commissions is for disputing parties to nominate one or two of their own conciliators and agree on a certain number of impartial and independent conciliators in order to provide a neutral majority. Most commissions are composed of several mem- bers. This is the usual arrangement under bilateral or multilateral treaties. Occasionally parties may prefer a single conciliator, as in the case of the 1977 distribution of assets of the former East African Community.132
Often the conciliation procedure is kept flexible so as to deal with the precise nature of the dispute. Confidentiality of the proceedings has been a cornerstone to success in dealing with parties. The parties are generally given a specified time to consider the proposals of the conciliation commission. Once the parties accept the proposals, the commission prepare a proc`es-verbal that records the conciliation and the agreed terms of settlement. If the proposal is not accepted, the commission’s work ends and the parties are under no further obligations. Findings of fact or law by the commission are not to be used by the parties in subsequent arbitral or judicial proceedings, unless they otherwise agree.
Conciliation has both advantages and disadvantages, as compared with other methods of international dispute settlement. Advantages include
1. Conciliation is more flexible than other binding third party dispute settle- ment mechanisms such as arbitration or adjudication. This leaves more latitude for the parties’ wishes and for the initiatives of third parties. This factor is especially important for disputes relating to outer space as parties may have made huge investments and would wish to retain con- trol of the dispute settlement process. Also, solution of the dispute might require creative initiatives on the side of the third party conciliator. 2. Conciliation allows compromises to be made more easily. This is be-
cause the procedures of conciliation allow the brokerage of package deals,
128Peace Agreement between Ethiopia and Eritrea, (12 December 2000), (2001) 40 ILM 260 129Principles for Dispute Settlement and Provisions for a CSCE Procedure for Peaceful
Settlement of Disputes, text to be found at (1991) 30 ILM 382
130seeinfra Chapter 4. 131seesupra note 29
whereby parties give ground on their demands in return for a recipro- cal compromise from the other party. This is pertinent to space disputes. Given the complexity of space activities, it is likely that disputes will con- tain a range of issues, some of which parties may be willing to concede ground for in return for other concessions.
3. Conciliation allows parties to avoid losing face and prestige by voluntarily accepting the proposal of the third party. As many space programs are rooted in national and State prestige, and because a huge amount of public spending goes into the space industry, parties to a dispute may be politically challenged to compromise. Private entities operating in outer space are also responsible to their shareholders and board of directors. If the settlement is however proposed by a third party conciliator, parties are able to accept the settlement and still avoid losing the confidence of their constituencies.
4. Conciliation allows parties to remain in control of the outcome. Parties may decide that the proposed solution is not acceptable, and they may move on to other methods of dispute settlement. This is useful in set- tling disputes relating to outer space as it allows parties to accept only a solution that is in their interests, and in the pursuit of efficiency, choose another form of dispute settlement if conciliation fails to settle the issue. 5. Conciliation does not create a legal precedent for the future. The third party does not have to give reasons and the proceedings can be conducted in secret. The whole matter thus tends to focus on the practical issues. This would be attractive to parties involved in space activities as there is no precedent created, and by accepting the solution in one case, they need not worry about being bound by the same principle in a separate factual matrix. The focus on practical, rather than legal, issues also takes the parties’ interests into consideration above all else.
The disadvantages are also obvious:
1. Conciliation procedures are difficult to start without the opponent’s con- sent and also require the goodwill of the opponent. Where the stakes in the dispute are high, such as in space activities, it is questionable whether these two requirements are present.
2. The contribution to the development of the law is also much more reduced than in the case of arbitration or adjudication. While this is an abstract systemic consideration, it is significant in the field of international space law. As it is a young field still in the throes of development, the settlement of disputes without reflecting the substantive law could be deleterious for the legal framework in general.
3. Conciliation suffers from a historical lack of usage. Generally, it appears that less than 20 cases have been heard in seventy years of the modern history of conciliation. Nearly all of them have involved legal questions, the majority of which were submitted under a prior general undertaking to conciliate. The relatively small number of cases reported may find some explanation in the confidentiality of the proceedings. The value still being attached to conciliation as can be seen from the 1990 UN Draft Rules on Conciliation of Disputes between States133 and the 1992 CSCE Convention on Conciliation and Arbitration.134 However, this also points to the fact that conciliation does not have a proven track record as a efficacious method of dispute settlement. This may not be acceptable to parties in disputes relating to space activities, as they are likely to look for a rapid and practicable means of dispute settlement. As such, they are likely to be more confident with a method that has been tried and tested, and proven successful.
4. An ironic phenomenon associated with conciliation is that it generally needs a subsequent binding third party dispute settlement mechanism in the event of its failure, for it to succeed. Eight of the twenty cases sub- mitted to conciliation were settled on the basis of recommendations of the respective conciliation commissions. In all but one case, failing con- ciliation, compulsory arbitration had been provided for.135 This seems
to indicate that the existence of a default procedure leading to a legally binding decision in the next stage, if no result is achieved through con- ciliation, is conducive to a settlement. This however also leads to the conclusion that conciliation itself is a time-consuming means with no im- petus on parties to settle the dispute. This may be off-putting to parties in space disputes that need a swift resolution of the dispute at hand.
133(1991) 30 ILM 231
134The 1992 CSCE Convention was created by the Conference (now Organization) on Se-
curity and Co-Operation in Europe (OSCE). The process was initiated at the Helsinki Con- ference in 1975. In Valletta in 1991, the Member States adopted the Principles for Dispute Settlement and Provisions for a CSCE Procedure for Peaceful Settlement of Disputes, text to be found at (1991) 30 ILM 382. These were modified at the 1992 Stockholm meeting. [For the applicable text, see (1993) 32 ILM 55] At the Stockholm meeting, the OSCE opened for signature a Convention on Conciliation and Arbitration within the OSCE and made provision for an OSCE Conciliation Commission to complement the Valletta Principles. The text of the Convention, the Conciliation Commission Provisions and those for Directed Conciliation can be found in Annexes 2, 3 and 4 to the OSCE Stockholm decision, see (1993) 32 ILM 557, 568 and 570 respectively.