Ministers’ Deputies

CM Documents

CM(2008)40-add 2        12 June 2008[1]

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1031 Meeting, 2 July 2008
10 Legal questions

10.1 Committee of Legal Advisers on Public International Law

(CAHDI)

d. Draft Recommendation Rec(2008)... of the Committee of Ministers to Member states on the nomination of international arbitrators and conciliators - Explanatory memorandum

Item to be prepared by the GR-J on 1 July 2008

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1.         A considerable number of treaties and other instruments provide for the maintenance of lists of arbitrators or conciliators nominated by States.  The precise status of the lists varies, but typically they are to be drawn upon by an appointing authority (e.g. the President of the International Court of Justice) when called upon to appoint a member of an arbitral tribunal or conciliation commission where a party to the dispute has not made an appointment.  They may also be a useful guide for States when they have to choose an arbitrator or conciliator.  The lists, therefore, have an important role in the dispute settlement system of the instrument.

2.         The present recommendation deals only with the maintenance of such lists of potential arbitrators and conciliators, not with the separate issue of the appointment of persons to be members of an arbitral tribunal or conciliation commission.

3.         It recommends that States maintain a list of instruments that provide for the nomination of arbitrators and conciliators, and that they consider nominating such arbitrators and conciliators and keep such nominations under review.  It thus calls upon States to make the best use of the existing mechanisms. Furthermore, it could contribute to the increasing role of the depositaries: they could play a more active role in alerting States when it comes to nominating arbitrators or conciliators and drawing attention to when the mandate for those who have been nominated is running out.

4.         The present explanatory memorandum contains 4 Appendices.

5.         Appendix 1 comprises a preliminary ‘list of lists’.

6.         Appendices 2 to 4, by way of example, indicate to what extent Council of Europe member States have in practice nominated (and kept up-to-date) arbitrators/conciliators under three important but very different treaties:

- Convention for the Pacific Settlement of International Disputes 1899/1907 (Permanent Court of Arbitration), see Appendix 2;

- United Nations Convention on the Law of the Sea, 1982, annex VII (arbitration), see Appendix 3;

- Vienna Convention on the Law of Treaties (conciliation), see Appendix 4.

Appendix 1

Nomination of arbitrators and conciliators: list of treaties and other provisions

1.         Convention for the Pacific Settlement of International Disputes 1899/1907: Articles 23/44, four Members of the PCA.

2.         Convention on the Settlement of Investment Disputes between States and nationals of Other States, 1965: article 13, four conciliators.

3.         Convention on the Settlement of Investment Disputes between States and nationals of Other States, 1965: article 13, four arbitrators.

4.         Vienna Convention on the Law of Treaties, 1969: annex, paragraph 1, two conciliators.

5.         Vienna Convention on Succession of States in Respect of Treaties, 1978: annex, paragraph 1, two conciliators.

6.         United Nations Convention on the Law of the Sea, 1982: annex V, article 2, four conciliators.

7.         United Nations Convention on the Law of the Sea, 1982: annex VII, article 2, four arbitrators.

8.         United Nations Convention on the Law of the Sea, 1982: annex VIII, article 2, eight experts.

9.         Vienna Convention on Succession of States in Respect of State Property, Archives and Debts,1983: annex, paragraph 1, two conciliators.

10.        Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986: annex, two arbitrators/conciliators.

11.        Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes relating to Natural Resources and /or the Environment: article 8(3), list of arbitrators maintained by the PCA Secretary-General.

12.        Convention on Conciliation and Arbitration within the OSCE, 1992: article 3, two conciliators.

13.        Convention on Conciliation and Arbitration within the OSCE, 1992: article 4, one arbitrator and one alternate.

14.        Protocol on Environmental Protection to the Antarctic Treaty, 1991: article 2 of the Schedule, at least one arbitrator, up to three.

15.        OECD Convention on the Establishment of a Security Control in the Field of Nuclear Energy, 1957: article 12 (a), a list comprising one judge proposed by each Government party to the present Convention.

16.        Convention on International Carriage by Rail, 1980: article 14, two arbitrators, specialists in international transport law, nominated to the panel of arbitrators kept up to date by the Central Office.

17.        Agreement relating to the International Telecommunications Satellite Organization, 1971: Annex C, article 3 (a), not more than two legal experts for the list of nominees to serve as presidents or members of tribunals, prepared by the executive organ.

Appendix 2

Convention for the pacific settlement of international disputes (1907)

Convention for the pacific settlement of international disputes (1899)

(List of members of the Permanent Court of Arbitration)

1.             Article 44 of the Convention for the Pacific Settlement of International Disputes of 1907 provides that:

“Each Contracting Power selects four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrator.

The persons thus elected are inscribed, as Members of the [Permanent] Court [of Arbitration], in a list which shall be notified to all the Contracting Powers by the Bureau.

(…)

(…) The Members of the Court are appointed for a term of six years.  These appointments are renewable.

Should a Member of the Court die or resign, the same procedure is followed for filling the vacancy as was followed for appointing him.  In this case the appointment is made for a fresh period of six years.”

Article 23 of the 1899 Convention is to similar effect. 

2.         Article 45 of the 1907 Convention provides that, when the Contracting Powers wish to have recourse to the Permanent Court of Arbitration (PCA) for the settlement of a difference, ‘the Arbitrators called upon to form the Tribunal with jurisdiction to decide the difference must be chosen from the general list of Members of the Court’.  Article 24 of the 1899 Convention is to the same effect. 

3.         An important function of the ‘national groups’ in the PCA (i.e. the Members of the PCA selected by a particular State) is to nominate candidates for election to the International Court of Justice in accordance with Articles 4 to 6 of the Statute of the International Court of Justice.

4.         Of the 47 member States of the Council of Europe, 38 are parties to one or both Conventions.  Five member States – Croatia, Greece, Italy, Montenegro, Turkey – are parties to the 1899 Convention, but not to the 1907 Convention. 

5.         The nine member States of the Council of Europe which are not parties to either Convention are:

 

Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Monaco, San Marino.

  

6.         According to the list of Members of the PCA as of 28 April 2008 (on the PCA website), of the 38 member States of the Council of Europe which are parties to one or both Conventions, 35 have nominated Members of the PCA. The three that have not are:

Iceland, Liechtenstein, Montenegro. 

7.         However, of those that have made nominations, some have nominated less than four Members of the PCA.  And in a number of cases, some or all of the nominations have passed the six-year time-limit.

8.         The five observer States are all parties and have nominated members to the PCA.

Summary of the position  

9.         Nine member States of the Council of Europe are not parties either to the Convention for the Pacific Settlement of International Disputes of 1907 or to the Convention for the Pacific Settlement of International Disputes of 1899.  Three of those that are parties to one or both Conventions have not nominated Members of the PCA.

10.        In some other cases less than four Members have been nominated. Some of the nominations are over the six-year time-limit.

Appendix 3

United Nations Convention on the law of the sea, 1982

(List of arbitrators under Annex VII)

1.         Part XV of the United Nations Convention on the Law of the Sea, 1982, provides inter alia for ad hoc arbitration in accordance with annex VII of the Convention. 

2.         Article 2 of annex VII reads as follows:

“1. A list of arbitrators shall be drawn up and maintained by the Secretary-General of the United Nations.  Every State Party shall be entitled to nominate four arbitrators, each of whom shall be a person experienced in maritime affairs and enjoying the highest reputation for fairness, competence and integrity.  The names of the persons so nominated shall constitute the list.

2. If at any time the arbitrators nominated by a State Party in the list so constituted shall be fewer than four, that State Party shall be entitled to make further nominations as necessary.

3. The name of an arbitrator shall remain on the list until withdrawn by the State Party which made the nomination, provided that such arbitrator shall continue to serve on any arbitral tribunal to which that arbitrator has been appointed until the completion of the proceedings before that arbitral tribunal.”

3.         Under Article 3(b), (c) and (d) of annex VII, the parties to the dispute are to appoint arbitrators ‘preferably’ from the list.  Under Article 3 (e), however, the appointing authority, if called upon to act, must appoint from the list. 

4.         The list is therefore crucial where an appointing authority is involved. Persons remain on the list until they are withdrawn (or die or resign).   But it may nevertheless be thought desirable to review nominations from time to time to ensure the continuing suitability of the persons on the list.

 5.        According to the UN Multilateral Treaties website, as of 28 April 2008, 26 of the 155 States Parties to UNCLOS have nominated arbitrators, in some cases less than the four permitted.  Of the 40 Council of Europe member States which are States Parties to UNCLOS, 15 have nominated arbitrators.  The following have not done so:

Albania, Armenia, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Denmark, Georgia, Greece, Hungary, Iceland, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Romania, Serbia, Slovenia, “the former Yugoslav Republic of Macedonia”, Ukraine. 

Summary of the position

6.         Of the 40 Council of Europe member States that are States Parties to UNCLOS, 25 have not nominated annex VII arbitrators. 

Appendix 4

ViennaConvention on the law of treaties

(List of conciliators under the Annex)

1.         Article 66 (b) of, and the annex to, the Vienna Convention on the Law of Treaties provides for the compulsory conciliation of certain disputes concerning the interpretation or application of the articles of Part V of the Convention (Invalidity, Termination and Suspension of the Operation of Treaties) other than Articles 53 or 64 (jus cogens). 

2.         The annex provides, at paragraph 1, that –

“A list of conciliators consisting of qualified jurists shall be drawn up and maintained by the Secretary-General of the United Nations.  To this end, every State which is a Member of the United Nations or a party to the present Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list.  The term of a conciliator, including that of any conciliator nominated to fill a casual vacancy, shall be five years and may be renewed.  A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraph.”

3.         Under paragraph 2, each party to a dispute is required to appoint two conciliators, one of whom must be from the list.   The conciliators appointed by the parties are required to appoint a conciliator from the list to be chairman.  If the chairman has not been appointed within a certain time, the Secretary-General is required to appoint the chairman either from the list or from the membership of the International Law Commission. 

4.         These provisions contain some unusual features.  First, it is open to all Members of the United Nations to appoint persons to the list, not just parties to the Vienna Convention.  Second, those appointed automatically cease to be on the list when their five-year term ends.

5.         According to the UN Multilateral Treaties website, as of 28 April 2008 ten States (all of which are among the 108 parties to the Convention) currently have persons on the list: 

Austria, Croatia, Denmark, Germany, Paraguay, Slovakia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”.

6.         The website also lists conciliators whose nominations were not renewed after five years.  These include those nominated by:

Cyprus, Finland, Italy, Japan, Mexico, Netherlands, United Kingdom.

 

Summary of the position

7.         Of the 37 members of the Council of Europe that are parties to the Vienna Convention on the Law of Treaties, nine currently have persons on the list of conciliators. (Another five did so in the past, but the nominations have lapsed.)