Multi-component interventions to reduce workplace sedentary

73 The principle of self-determination permits disputants to either include or exclude any important issue(s) in the course of negotiation. Thus, they determine what is or what is not discussed.

The principle of voluntariness gives disputants protection against compulsion by anyone in any stage of the process. They could even withdraw at whatever stage based on their judgments.

The principle of empowerment and education ensures that every mediation process should target the empowerment and education of disputants in such a way that they acquire an enhanced capacity to effectively deal with their problems and disputes.

74 From the above, it is evident that the usefulness of enquiry has always found favour among nations.⁷⁹ But in terms of Article 9 of the above, the technique is however limited in that it can only have relevance in cases of international disputes involving neither the honour nor the vital interests of the parties and the conflict centers around a genuine disagreement as to particular facts which can be resolved by recourse to an impartial and conscientious investigation. Note however that where the technique cannot solve the dispute, it may facilitate the collection of additional information which may elucidate the facts that gave rise to the dispute. A commission of enquiry is essentially an impartial third party fact-finding and investigation which albeit customary is not imperative.⁸⁰ The process may be initiated by mutual consent of parties or evolve from the terms of an applicable Treaty. The composition of any commission of enquiry depends on the technical nature of the dispute though legal expertise has always proved to be indispensable.⁸¹ The task of the commission of enquiry is to find and report the facts of the situation without evaluating or drawing conclusions and recommendations, it is not binding and it is still left with the disputants to do with the report as they please. In this wise, Article 14 of the Hague Convention of 1899 is apt. it provides thus:

One of the earliest usages of this method under the 1899 Hague Convention occurred in the Dogger Bank case. In this case during the Russo Japanese war in October 1904, a Squadron of the Russian Fleet in transit from the Baltic to the theatre of war in the pacific while passing

79 Cf. Edwin D Dickinson, Law And Peace, (Philadelphia: University of Pennsylvania Press, 1951) p. 71.

80 I A Akaraiwe, Onyeama: Eagle On The Bench, (Lagos: Touchstone Books, 1999) p. 203.

81 Ibid.

The report of the international commission of enquiry is limited to a statement of facts and has in no way the character of an arbitral award. It leaves the conflicting powers entire freedom as to the facts to give this statement.

75 through the North Sea fired at British Fishing Vessels from Hulk believing that they were Japanese torpedo boats. One trawler was sunk and five damaged and two fishermen were killed and six wounded. A Commission of Enquiry was set up to investigate the circumstances surroundings the incidence and make its reports.⁸² The Report which found the Russian action unwarranted led to the settlement of the dispute as the Russian government apologized and paid substantial indemnity. The U.N. General Assembly seems to have acknowledged the efficacy of this method via the adoption in 1949 of a resolution establishing a panel for enquiry and conciliation.⁸³

This method has a prophylactic function in reducing tension as it combines the benefits of diplomacy and legal techniques to obtain an impartial report on the facts or suggestions for resolving the issue.⁸⁴

Its drawback is that just like most commissions of enquiry in municipal settings, it may be a veritable instrument of time wasting bureaucracy affording a government, a cooling off mechanism.⁸⁵

(B) Conciliation

There is lack of unanimity among writers on the proper locus to be accorded this method vis-à-vis inquiry, mediation and good offices. Thus, while Shaw⁸⁶, Akerhurst⁸⁷ and Levi⁸⁸ see conciliation as a combination of both inquiry and mediation: Gore-Booth⁸⁹ looks at it as an aspect of good offices and Hazel Fox⁹⁰ posits that it is distinguishable from all other methods of peaceful settlement of disputes. Conciliation involves a third party investigation of the

82 Red Crusader case, 35 ILR, p. 485.

83 Article 26 of ILO Treaty.

84 Akaraiwe, loc cit.

85 Oduntan, op. cit, pp. 23-24.

86 M N Shaw, op. cit. p. 1022.

87 M Akerhurst, op. cit. 291.

88 Levi, op. cit, p. 295.

89 Gore-Booth as cited by Oduntan, op. cit. p. 26.

90 Hazel Fox, ―Conciliation‖ in David Davies Memorial Institute of International Studies, op. cit. p. 95.

76 basis of the dispute and based on the findings, the submission of a report embodying suggestions for a settlement. Conciliation reports are only proposals and do not constitute binding decisions. They are in the main advisory. In this wise, Article 15 of the 1957 European Convention for the Peaceful Settlement of Disputes describes the tasks of a conciliation commission as:

There could be cases of binding conciliation as for example where a Treaty provides for compulsory conciliation for resolving a dispute. Conciliation is often regarded as an especially constructive approach to those disputes which are not justiciable in nature but also are not so exclusively political , that is involving delicate questions of national interest and prestige.⁹¹ The conciliation procedure was used in the Iceland-Norway over the Continental Shelf delimitation between Iceland and Jan Mayen Island.⁹² The agreement establishing the conciliation commission stressed that the question was the subject of continuing negotiation and that the commissions had to also take into account Iceland‘s strong economic interest in the area as well as other factors. The solution proposed by the commission was the establishment of a joint development zone (which would not have been possible from a judicial body deciding solely on the legal rights of the parties).⁹³

91 Palmer & Perkins, op. cit. p. 258.

92 21 ILM, 1982, p. 1222.

93 Shaw, op. cit. p. 1024.

To elucidate the question in dispute, to collect with that object all necessary information by means of enquiry or otherwise and to endeavour to bring the parties to the terms of settlement which seems suitable to it and lay down the period within which they are to make their decision.

77 Thus, flexibility of the conciliation process, seen in the context of continued negotiation between the parties was established. Within the United Nations system, this procedure is also in place. Instances include the conciliation commission for the Palestine under General Assembly Resolution 194 (iii) of 1948. Though, there have been only a small number of conciliation procedures in recent times⁹⁴ as the procedure is less attractive when juxtaposed to arbitration, many private organizations especially those which tend to regard the United Nations as either primarily or almost wholly an agency for peaceful settlement, have urged more general resort to conciliation.⁹⁵ Its advantages include the following:⁹⁶

(a) It offers the parties to the dispute information and knowledge of the opponent‘s case which is invaluable.

(b) It affords an opportunity to the lawyers and politicians involved in the dispute at a national level to refer the matter to a small body of independent and qualified persons for their objective appraisal of the issues and for proposals for their settlement.

(c) It takes full account of the sensitivity, susceptibilities and prestige of governments in that it is easier to accept a third party‘s solution than that offered by the opponent.

(d) It leaves unchallenged the liberty and sovereignty of the parties. There is complete secrecy, no obligation to accept the commission‘s proposals, no loss of rights or abandonment of position. Thus a state retains its sovereign control to the last stage of the proceedings.

Ironically, in this last advantage lies the weakness of conciliation.

94 Ibid. p. 926, Akerhurst, loc. cit Brownlie, op. cit. p. 272.

95 Palmer & Perkins, loc. cit.

96 Hazel Fox, op. cit. p. 100.

78 3.4.4 Arbitration and Judicial Settlement

(A) Arbitration: The International Law Commission defines arbitration as ―a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of undertaking voluntarily accepted.⁹⁷ Thus, from the above definition, international arbitration stricto sensu, only takes place between states. In furtherance of this, Article 15 of the Hague Convention of 1899 states the purpose as follows: ―International arbitration has for its object the settlement of differences between states by Judges of their own choice and on the basis of a respect for law‖

The essence of this clarification is to distinguish international arbitration within the context of our discourse from another form of arbitration conducted within the purview of International Chamber of Commerce.⁹⁸ The submission of disputes to arbitration is a well known and time-honoured practice among states dating back to the medieval times and even among the Greek city states.⁹⁹ Its modern history dates back to the Treaty of Amity, Commerce and Navigation (also called the Jay Treaty) between Britain and U.S.A. of 1794 under which three mixed commissions were appointed in equal numbers by both parties with the power to refer to an umpire in the event of a disagreement. This was later consolidated into a multilateral Treaty instrument via the 1899 Hague Convention for the Pacific Settlement of Disputes. Thus, an agreement to arbitrate under Article XVII implied the legal obligation to accept the terms in good faith.

Two elements underline the arbitration process. The first element is the necessity for consent of the arbitrating parties to every stage in the arbitration. Consent given at the beginning of the arbitration proceedings and continuing throughout the proceedings until the tribunal

97 1953 YBILC II p. 202.

98 For seminal discourse on International Commercial Arbitration, see Greg C Nwakoby: The Law And Practice of Commercial Arbitration In Nigeria, 2^nd edn. (Enugu: Snaap Press Nig. Ltd, 2014) p.172 et.seq.

99 P E Jacob and A L Atherton, The Dynamics of International Organization: The Making of World Order, (Homewood: Dorsy Press, 1965) p. 271.

79 retires to make its award is an essential ingredient to the successful completion of any arbitration. Consent of parties to arbitration may be expressed prior to or after the occurrence of a dispute. This consent may be expressed in arbitration treaties in which the contracting parties agree to submit certain kinds of dispute that may arise between them to arbitration or in specific provisions of general treaties which provides for disputes with regard to the treaty itself to be submitted to arbitration. Consent to the reference of a dispute to arbitration with regard to matters that have already arisen is usually expressed by means of a compromis or special agreement. The compromis normally contains the mode of selection of Judges which will comprise the arbitration tribunal as well as the applicable law. Arbitration tribunals may be composed in different ways. There may be a single arbitrator or a collegiate body. In the later case, each party will appoint an equal number of arbitrators with the chairman or umpire being appointed by either parties or arbitrators already nominated. Arbitration tribunals are often ad hoc panels constituted to hear a particular case. They do not as a matter of principle determine their own jurisdiction.¹⁰⁰ The jurisdiction of the tribunal is defined in relation to the provisions of the compromis. Thus they make their awards in accordance with rules especially adopted for that purpose by parties‘ agreement. The decision of the arbitration tribunal is known as an Award. Without a compromis, there can be no arbitration and should any of the provisions of the compromis be breached in the course of the arbitration proceedings, the resultant award is null and void. In the absence of any provision to the contrary, the law to be applied is International Law.¹⁰¹

The second element that underlines the arbitral process going by the afore-mentioned definition is the settlement of the dispute ―on the basis of respect for law.‖ An arbitral award made in accordance with the compromis is final and binding. The legal character of the award

100 CF. Shaw, op. cit. p. 1052.

101 Article 28 of the 1928 General Act for the Pacific Settlement of International Disputes as revised in 1949.

80 inheres in the obligation on parties to accept it as binding. This same character operates to provide limits within which the arbitrators must confine themselves in order to reach an award. Consequently, the arbitral tribunal must observe the rules of natural justice in hearing the parties and pronounce the award on the basis of a respect for the law.¹⁰²

From the foregoing, it is obvious that arbitration as a method of dispute resolution combines both the diplomatic and judicial procedures.¹⁰³ Its success depends on a certain amount of goodwill between the parties in drawing up the compromis and constituting the tribunal as well as enforcement of the award. Its adjudicative nature is evidenced by the fact that the award is binding and final and the arbitrators are required to base their decisions on law. We thus agree with Shoyele that despite its criticisms, arbitration has been a veritable tool in quieting claims after great wars.¹⁰⁴

(B) Judicial Settlement

This refers to the judicial methods for resolution of disputes. This resort to the judicial method is symptomatic of the concept of judicialism which we had earlier discussed.¹⁰⁵ Judicial settlement comprises the activities of all international and regional courts deciding disputes between subjects of International Law in accordance with the rules and principles of International Law.¹⁰⁶

Given the interplay of politics and law in the categorization of a dispute as legal or political for purposes of determining the appropriate settlement mechanism, it needs clarifying at this

102 Note that the phrase, ―on the basis of respect for the law‖ is sometimes used interchangeably with the phrase ―in strict accordance with the law.‖

103 Its main distinguishing features from the judicial procedure includes: (1) The nomination of the arbitrators by the parties concerned. (2) The selection by these parties of the principles upon which the tribunal should base its findings. (3) Its character of voluntary jurisdiction. (4) Its privacy. For more details on these distinguishing features; see I Brownlie, op. cit. pp. 273 and 277, Palmer & Perkins op.

cit. p. 259

104 Shoyele, op. cit. p. 106.

105 Chapter 1 supra pp. 9-15.

106 M N Shaw, International Law, (5^th Edn. Cambridge: Cambridge University Press, 2004) p. 959.

81 juncture that final resort to judicial settlement does not mean the occlusion of the political nature of the process of choosing the mechanism through which the decision is reached.

Rather it represents a political decision that the technique by which the dispute is resolved is based upon the voluntary renunciation by the disputants, in the interest of a settlement of their right to solve the dispute directly in favour of binding third party judicial settlement, coupled with the requirement that the solution shall be based on articulated legal grounds reached through the application of judicial technique.¹⁰⁷ Resort to the judicial method of dispute settlement is epitomized by the establishment and operations of international courts which are permanent and pre-constituted institutions. Details as to their internal workings such as number and choice of the Judges, their agreement to act, the possibility of introducing the proceedings by unilateral application, the law they are to apply, the procedure to be followed, the publicity of proceedings, the competence of the courts both regarding the merits and regarding all pre-adjudicatory and other incidental matters are carefully regulated in the constituent instrument.¹⁰⁸ It is to be emphasized at this juncture that litigation which underpins the judicial process, is, given the plethora of other amicable means of dispute resolution, a last resort. Many factors conspire to make it so, top among which include the possibility of worsened relations by unilateral resort to law, the uncertainty of the outcome of legal proceedings, the embarrassment of a final adverse ruling by a body beyond one‘s control, etc.

107 Shabtai Rosenne, The Law And Practice Of The International Court:1920-2005, (Leiden: Martinus Nijhoff Publishers, 2006) p. 5.

108 Ibid. p. 11.

82 CHAPTER FOUR

JUDICIALISM IN INTERNATIONAL LAW:

PIVOTS OF THE UNITED NATIONS SYSTEM