Inquiry

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Inquiry

Inquiry in the Pacific Settlement of International Disputes: Functions and relation to other peaceful means under the Charter of the United Nations

Based on the UN Handbook on Pacific Settlement of Disputes:

The function of inquiry-investigation or elucidation of a disputed issue of fact-was comprehensively dealt with in the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes.

Article 9 of the 1907 Convention reads as follows: “In disputes of an international nature involving neither honour nor essential interests, and arising from a difference of opinion on
points of fact, the Contracting Powers deem it expedient and desirable that the parties who have not been able to come to an agreement by means of diplomacy should, as far as circumstances allow, institute an international commission of inquiry, to facilitate a solution of these disputes by elucidating the facts by means of an impartial and conscientious
investigation.”

Bilateral and multilateral treaties

Inquiry as a means of settlement of disputes has been provided for in a number of bilateral and multilateral treaties, including the Covenant of the League of Nations, the Charter of the United Nations and the constituent instruments of certain specialized agencies and other international organizations within the United Nations system, and in various instruments by the regional bodies.

Third-party procedure

Inquiry, as an impartial third-party procedure for fact-finding and investigation, may indeed contribute to a reduction of tension and the prevention of an international dispute, as distinct from facilitating the settlement of such a dispute.

The possibility of fact-finding (inquiry) contributing to the prevention of an international dispute was recognized, for example, by the General Assembly in its resolution 1967 (XVIII) of 16 December 1963 on the “Question of methods of fact-finding.” In the resolution, the Assembly
stated its belief “that an important contribution to the peaceful settlement of disputes and to the prevention of such disputes could be made by providing for impartial fact-finding within the framework of international organizations and in bilateral and multinational conventions”.

Register of Experts

On 18 December 1967, the General Assembly adopted resolution 2329 (XXII), in which it requested the Secretary-General to prepare a register of experts in legal and other fields, whose services the States parties to a dispute might, by agreement, use for fact-finding in relation to a dispute. It also requested Member States to nominate up to five of their nationals to be included in such a register. As mentioned in paragraph 144 of the first report of the Secretary-General (A/5094), the role of such fact-finding bodies “as a stabilizing factor in themselves, in situations potentially endangering the maintenance of international peace and security, should not be overlooked, nor the part which they have on occasions played in providing a means of liaison and communication between conflicting parties”.

Prevention of the Aggravation of a Dispute

To a great extent the task of such fact-finding bodies established in accordance with the above-mentioned resolution “in relation to a dispute” may be regarded as seeking the prevention of a dispute or the prevention of the aggravation of a dispute and the adjustment of situations the continuance of which is likely to give rise to a dispute.

Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security

Recognition that fuller use and further improvement of the means for fact-finding of the United Nations could contribute to the strengthening of the role of the Organization in the maintenance of international peace and security and promote the peaceful settlement of disputes as well as the prevention and removal of threats to the peace has developed slowly together with a new willingness on the part of Member States to enhance the role of
the United Nations.

The 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field called for full use of the fact-finding capabilities of the Security Council, the General Assembly
and the Secretary-General in strengthening further the role and effectiveness of the United Nations in maintaining international peace and security for all States.

The Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization had developed further on fact-finding by the United Nations. The Committee elaborated a Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, which was adopted by the General Assembly
at its forty-sixth session. The Declaration aims at enhancing the use of and improving the fact-finding means available to the Security Council, the General Assembly and the Secretary-General in the fulfilment of their functions relating to the maintenance of international peace and security.

“Inquiry”, “Factfinding” and “Investigation”

From the evidence in the above-mentioned treaties and other international instruments, it may be observed that the terms “inquiry” (” enquiry”), “factfinding” and “investigation” have all been used (sometimes interchangeably) for this type of procedure under which parties to an international dispute may call for the establishment of an international commission of inquiry an international fact-finding commission,” or an international investigation commission, with
varying degrees of competence.

The competence conferred upon a commission of inquiry may vary depending on the subject-matter of the inquiry and also whether the machinery is instituted to serve the interest of States directly, as illustrated by a number of cases, both prior to and since the Hague Conventions. It may also depend on whether an inquiry is set in motion to assist an international organization,
such as the United Nations, to fulfil its various obligations under the Charter in the area of the maintenance of international peace and security or whether an inquiry commission is instituted by any of the specialized agencies and the International Atomic Energy Agency to deal with an issue under their respective constitutions and statutes.

Gathering evidence

By virtue of its mandate to investigate the facts and to clarify the questions in dispute under the functions outlined above, inquiry may thus involve the hearing of the parties, the examination of witnesses or visits on the spot. Although inquiry may thus employ the techniques of gathering evidence which are normally used in the arbitral or judicial process, this does
not change its basic status and functions as outlined above. But it does underscore the fact that inquiry is thus capable of combining the benefits of diplomacy and legal techniques to obtain for the parties an impartial report on the issues in dispute, or of suggesting a solution of the problem.

Because of this possibility of being given the mandate of recommending a solution, a
commission of inquiry may thus tend to acquire a status which sometimes makes it difficult to distinguish its function from that of conciliation. This hasresulted in the establishment of a machinery designated as a panel for inquiry and conciliation in the context of the United Nations.

Inquiry Initiation and Methods of Work in the Pacific Settlement of International Disputes

Inquiry may be set in motion by mutual consent of the States concerned on an ad hoc basis, relying upon a treaty in force between them, creating a general obligation to settle disputes by peaceful means. It may also be initiated in accordance with the terms of an applicable treaty, specifically establishing inquiry as the mode of handling a category of disputes and
indicating how the process may be initiated, including its method of work.

Permanent commission

Some treaties have thus provided for the establishment of a permanent commission of inquiry, fact-finding or investigation, whose jurisdiction is to be accepted in advance by the States parties to the treaty in question.

The jurisdiction of such institutionalized commission of inquiry either may be invoked without further agreement between States parties to a dispute, or may be made subject to a special agreement between the parties to a dispute.

A treaty may also indicate the conditions under which the jurisdiction of the established commission may be invoked by one party unilaterally and those under which the jurisdiction may only be invoked by mutual consent. A provision may also be made in a treaty requiring that parties, invoking the jurisdiction of the commission, draw up a protocol in which they state the
question or questions which they desire the commission to elucidate. Alternatively, in another treaty, the commission of inquiry may itself define the facts to be examined.

Methods of work of a commission of inquiry

The methods of work of a commission of inquiry are those aimed at enabling the commission, in accordance with the competence conferred upon it, to acquire all necessary facts in order to become fully informed of the issues giving rise to a dispute. Thus a commission of inquiry may hear the parties to a dispute, examine witnesses and experts, carry out investigations on the spot with consent of the parties and receive and review documentary evidence. The parties are, both in practice and under the relevant treaties, entitled to be represented during the
proceedings by agents and counsel. Such is the case, for example, within commissions of inquiry instituted under article 26 of the Constitution of the International Labour Organisation (ILO).

Similarly, under article 14 of the 1907 Hague Convention, the parties are entitled to appoint special agents to attend the commission of inquiry, whose duty is to represent them and to act
as intermediaries between them and the commission. They are further authorized to engage counsel or advocates, appointed by themselves, to state their case and uphold their interests before the commission. Under article 21 of the Convention, “every investigation, and every examination of a locality, must be made in the presence of the agents and counsel of the parties or after they have been duly summoned”.

Whether or not the commission is to hold such hearings in public is also another question. In this connection, it may be noted that article 31 of the 1907 Hague Convention stipulated that “the sittings of the commission [of inquiry] are not public, nor the minutes and documents
connected with the inquiry published, except in virtue of a decision of the commission taken with the consent of the parties”.

Extent of Use

The extent to which these techniques of acquiring evidence may be used by a commission of inquiry will depend upon the function assigned to it: whether merely to elucidate the facts in dispute and to submit a written report thereon for further use of the parties to a dispute, or to prepare a report in which it also recommends a solution to the dispute. In both instances, a
written report is to be prepared and submitted by the commission either to the States parties to the dispute or to the organ of the international organization which initiated it.

Outcome of the Inquiry Process in the Pacific Settlement of International Disputes

The outcome of an inquiry is a report which is prepared and submitted to the parties or bodies that instituted it. The value of the report would however vary in accordance with the function and competence given to the particular inquiry. Thus, under article 35 of the 1907 Hague Convention establishing an inquiry only for elucidating the facts, the report of the inquiry
limits itself to the statement of facts as established and the parties to the dispute retain their complete freedom of action with respect to the dispute.

The report is thus non-binding. In contrast, paragraph 27, article 5, of annex VIII to the 1982 United Nations Convention on the Law of the Sea recognizes an inquiry procedure whose results (findings of fact), unless the parties otherwise agree, are to be considered conclusive by the parties to the dispute, subject to the special procedure under the article.

Commission’s report

With respect to the commissions given the competence to make recommendations on the settlement of the dispute, there are also variations of the value of the commission’s report. Thus in one of the cases the parties to the dispute agreed in advance to accept the recommendations of the commission as binding. In another case, the acceptance by the parties of the legal conclusions reached in the commission’s report also enabled the inquiry
process to play a significant role in the settlement of that dispute.

The Montevideo Agreement of 1915 between Chile and Uruguay, for example, provides in its article IV that “after receiving the report of the Commission the two Governments shall allow a period of six months in order to endeavour to obtain a new settlement of the dispute based on the conclusions of the Commission; and if during this fresh extension the two Governments shall not be able to arrive at a friendly solution, the dispute shall be referred to the Permanent Court of Arbitration at The Hague.

Under article 29 of the International Labor Organization Constitution, each party has three months to inform the Director General of ILO whether it accepts the recommendations contained in the report of the commission

More about Inquiry in the Pacific Settlement of International Disputes

Inquiry in general

In an international dispute involving in particular a difference of opinion on points of fact, the States concerned may agree to initiate an inquiry to investigate a disputed issue of fact, as well as other aspects of the dispute, to determine any violations of relevant treaties or other international commitments alleged by the parties and to suggest appropriate remedies and adjustments.

Inquiry may also be resorted to when parties to a dispute agree on some other means of settlement (arbitration, conciliation, regional arrangements, etc.) and there arises a need for collecting all necessary information in order to ascertain or elucidate the facts giving rise to the dispute.

Inquiry by an individual

Inquiry by an organ of an international organization of a regional character

Inquiry by an organ of an international organization of a universal character

Inquiry: relation to arbitration

See International Arbitration.

Inquiry under Additional Protocol I of 1977 to the 1949 Geneva Conventions for the Protection of
War Victims

Inquiry under American Treaty on Pacific Settlement (Pact of Bogotá)

Inquiry under 1899 and 1907 Hague Conventions for the Pacific Settlement of International
Disputes

Inquiry under 1982 United Nations Convention on the Law of the Sea

Resources

See Also

Conference on Security and Cooperation in Europe
Organization of American States
African Charter on Human and Peoples’ Rights
Convention for the Pacific Settlement of International Disputes
Institutionalization of the Peaceful Means of Settlement
Organization of African Unity
Conciliation

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