Interview with the President of the OSCE Court of Conciliation and Arbitration Emmanuel Decaux
Did you know that there is an OSCE Court of Conciliation and Arbitration to support States with the peaceful resolution of conflicts? We spoke to the new President of the Court, Professor Emmanuel Decaux, to learn more about its work.
The OSCE Court of Conciliation and Arbitration was established in 1995 by the Convention on Conciliation and Arbitration as a mechanism for the peaceful settlement of disputes in accordance with international law and the OSCE commitments of the parties. Can you tell us a bit more about its objectives?
The Convention on Conciliation and Arbitration within the OSCE, which was adopted in Stockholm in 1992, is in line with the efforts of all the OSCE participating States to implement the principle of peaceful settlement of disputes enshrined in Article 33 of the Charter of the United Nations. The idea of a multilateral treaty rooted in an international organization, like the OSCE, was not self-evident – you could say it is not in the DNA of such an organization. However, it marks a considerable step forward, both diplomatically and legally, at the turning point of the 1990s, thanks to the vision of our Founding Fathers, and our first President Robert Badinter.
In my opinion, the Court is at the crossroads of law and diplomacy: it is a Court; it is a jurisdiction, offering its good offices to settle pragmatically, quickly and efficiently, disputes that poison bilateral relations. More concretely, the Court offers two paths at the same time. The advantage of the OSCE Court is that it can very quickly set up a conciliation commission, composed of five members - 3 members appointed by the Bureau of the Court and 1 member by each party to the dispute - in order to propose solutions in a dispute between two States. Confidentiality is a guarantee of the efficiency of the procedure. The States parties to the dispute remain free to refuse the recommended solution. The other path is that of arbitration to settle the dispute, based on international law, with an imposed award to the States concerned. In other words, one path under soft law, the other under hard law, but the two procedures can be linked if the States wish.
But since its founding, the Court has not heard any cases. Why do you think that is?
Obviously a question on my mind; although I am not sure it is up to me to answer it. The question should above all be asked to participating States. State disputes are quite rare. Either their relations are friendly and they manage to find amicable solutions within the framework of bilateral negotiations, or the international crisis reaches a political, even military, intensity such that a de-escalation is very difficult to be considered within the framework of simple good offices.
We often talk about the Court behaving like "sleeping beauty" but it is perhaps too poetic an image. For my part, I prefer to be more pragmatic and talk about a car in the garage: we have to turn on the ignition, run it, and then take it out for its initial spin. The Court is now in working order, it is ready to operate and we made the initial feasibility and operability assessments to quickly set up the various procedures.
Not all OSCE participating States are States Parties to the Convention. Do you encourage the other OSCE participating States to sign up? What are the benefits for them?
Currently 34 States Parties have ratified the Convention. Only these States are fully committed because of the treaty and subject to the conciliation procedure based on a unilateral request. With regard to arbitration, on the contrary, a prior declaration by each state concerned or an ad hoc agreement is required. However, the Convention expressly specifies that the mechanisms offered remain accessible to all the participating States of the OSCE on an ad hoc basis. It is a pragmatic opportunity that States should not neglect, with functional mechanisms already in place, which seem preferable to improvisations, which sometimes prove to be counterproductive, as shown by some disputed arbitrations.
But of course, from an institutional point of view, it is very important to increase the number of States Parties, which shows a sign of confidence in the Convention and strengthens its potential to complete the lists of arbitrators and conciliators available to the parties to a dispute. In this regard, I would like to emphasize that in their diversity of professional backgrounds and international experiences, the members of the Court constitute a very rich potential which is worthy of the confidence of States.
Prof. Decaux, you have extensive experience working for various international organizations with varying roles in the international community. What inspired you to take on the role as the President of the OSCE Court of Conciliation and Arbitration?
I have been fortunate to have had varied experiences, notably within the framework of the United Nations, by participating in collegial bodies like the Sub-Commission on Human Rights, which I find fascinating for its human dynamics, with experts and diplomats from all over the world. This was particularly the case for the past eight years, with the start of the Enforced Disappearance Committee in Geneva and New York, but also Addis Ababa and San José in Costa Rica. I am happy to find the same team spirit in the Bureau of the Court. My experience of the OSCE is also varied, first with meetings of the human dimension and then the two-fold implementation of the Moscow mechanism. And I have always remained attached to the "spirit of Helsinki". It is therefore with seriousness, awareness of the difficulties to be faced, and with enthusiasm, that I approach this new responsibility.
How do you see the Court’s work developing during your term?
Even if we are judges, we cannot lock ourselves in splendid isolation while waiting for a magic wand. The Court needs to be better known to a wide variety of audiences.
My predecessor, President Christian Tomuschat, developed the scientific aspect of this awareness campaign with a series of books on conciliation, the last volume of which is due out later this year. We intend to present it, when the time comes, among legal experts, on the margins of the Ad Hoc Committee on International Law, which meets in Strasbourg, and the Geneva International Law Commission. At the same time, I would like to disseminate practical leaflets serving as a “guide to the use” of the Convention, to make our basic documents accessible in all the official languages, and above all to make the Court's website more accessible and interactive, in a word more user-friendly.
However, obviously this awareness-raising work mainly concerns states and international organizations. In this area, we must implement judicial diplomacy to make the potential of the Court more visible in all European bodies. In this respect, the 30th anniversary of the Paris Charter for a new Europe should not be missed.
What are the advantages of States pursuing conciliation and arbitration through a court? Do you think the Court could hear a case in the near future?
It is better to stabilize situations in the context of mutual trust and mutual respect than to impose solutions by force or by fait accompli. On the contrary, the whole meaning of conciliation is to work for the reconciliation of peoples. It is a question of going from detente, to entente and co-operation, to using a formula from General de Gaulle, which retains all its meaning for our greater Europe. Since the 20th century, we went from bilateral arbitration and conciliation treaties during the inter-war period to multilateral dispute settlement treaties, such as the Revised General Act of 1949 and the European Convention for the Settlement of Disputes of 1957. The 1992 Stockholm Convention marks a new step with the institutionalization of a Court with a pan-European vocation, offering not only abstract mechanisms but a framework of principles and commitments. With this in mind, the law can be very effective, with fair trial guarantees for all parties, and rules that apply to all. It remains for States to have the wisdom and patience to seek solutions, and implement confidence-building measures. In any case, the OSCE Court will do everything to be ready. If it takes two to tango, it takes three to complete conciliation or arbitration.