INTERNATIONAL COMMISSIONS OF INQUIRY

DOCUMENTS

• Convention for the Pacific Settlement of International Disputes (Hague, 29 July 1899)

• Convention for the Pacific Settlement of International Disputes (Hague, 18 October 1907) 

• Permanent Court of Arbitration: Optional Rules for Fact-Finding Commissions of Inquiry (December 15, 1997)

In 1997, upon recommendation of the Steering Committee (est. 1994), International Bureau developed even more detailed set of rules regulating procedure and structure – PCA Optional Rules for Fact-Finding Commissions of Inquiry (effective December 15, 1997). It does not appear to be significant that these rules are not part of any convention, after all, with a few exceptions discussed above, provisions of the conventions are either explicitly or implicitly voluntary, and can be changed at any time. In addition, since the prerequisite to the use of these rules is the agreement of the parties “to have recourse to a Fact-finding Commission of Inquiry … pursuant to the Permanent Court of Arbitration … Optional Rules for Fact-finding Commission of Inquiry” (Art. 1), these rule, in effect, become part of the agreement, even if it is not a multilateral treaty as it was with 1899 & 1907 Conventions. Even brief look at the 1997 Optional Rules shows that they are significantly based on the provisions of the 1907 Convention, yet they provide several considerable changes.

for further information see http://www.pca-cpa.org/ENGLISH/BD/inquiryenglish.htm

Article 9
In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend 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 differences by elucidating the facts by means of an impartial and conscientious investigation.

Article 10
The International Commissions of Inquiry are constituted by special agreement between the parties in conflict.
The Convention for an inquiry defines the facts to be examined and the extent of the Commissioners' powers.
It settles the procedure.
On the inquiry both sides must be heard.
The form and the periods to be observed, if not stated in the inquiry Convention, are decided by the Commission itself.

Article 11
The International Commissions of Inquiry are formed, unless otherwise stipulated, in the manner fixed by Article 32 of the present convention.

Article 32
The duties of Arbitrator may be conferred on one Arbitrator alone or on several Arbitrators selected by the parties as they please, or chosen by them from the members of the permanent Court of Arbitration established by the present Act.
Failing the constitution of the Tribunal by direct agreement between the parties, the following course shall be pursued:
Each party appoints two arbitrators, and these latter together choose an Umpire.
In case of equal voting, the choice of the Umpire is instructed to a third Power, selected by the parties by common accord.
If no agreement is arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected

Article 12
The powers in dispute engage to supply the International Commission of Inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely acquainted with and to accurately understand the facts in question.

Article 13
The International Commission of Inquiry communicates its Report to the conflicting Powers, signed by all the members of the Commission.

Article 14
The report of the International Commission of Inquiry 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 effect to be given to this statement.

 
Article 9
In disputes of an international nature involving neither honour nor vital interests, and arising from a difference of opinion on points of facts, 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.

Article 10
International Commissions of Inquiry are constituted by special agreement between the parties in dispute.
The Inquiry convention defines the facts to be examined; it determines the mode and time in which the Commission is to be formed and the extent of the powers of the Commissioners.
It also determines, if there is need, where the Commission is to sit, and whether it may remove to another place, the language the Commission shall use and the languages the use of which shall be authorized before it, as well as the date on which each party must deposit its statement of facts, and, generally speaking, all the conditions upon which the parties have agreed.
If the parties consider it necessary to appoint Assessors, the Convention of Inquiry shall determine the mode of their selection and the extent of their powers.

Article 11
If the Inquiry Convention has not determined where the Commission is to sit, it will sit at The Hague.
The place of meeting, once fixed, cannot be altered by the Commission except with the assent of the parties.
If the Inquiry Convention has not determined what languages are to be employed, the question shall be decided by the Commission.

Article 12
Unless an undertaking is made to the contrary, Commissions of Inquiry shall be formed in the manner determined by Articles 45 and 57 of the present Convention.

Article 45
When the Contracting Powers wish to have recourse to the Permanent Court for the settlement of a difference which has arisen between them, the Arbitrators called upon to form the Tribunal with jurisdiction to decide this difference must be chosen from the general list of Members of the Court.
Failing the direct agreement of the parties on the composition of the Arbitration Tribunal, the following course shall be pursued:
Each party appoints two Arbitrators, of whom one only can be its national or chosen from among the persons selected by it as Members of the Permanent Court. These Arbitrators together choose an Umpire.
If the votes are equally divided, the choice of the Umpire is intrusted to a third Power, selected by the parties by common accord.
If an agreement is not arrived at on this subject each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected.
If, within two months' time, these two Powers cannot come to an agreement, each of them presents two candidates taken from the list of Members of the Permanent Court, exclusive of the members selected by the parties and not being nationals of either of them. Drawing lots determines which of the candidates thus presented shall be Umpire.

Article 57
The Umpire is President of the Tribunal ex officio.
When the Tribunal does not include an Umpire, it appoints its own President.

Article 13
Should one of the Commissioners or one of the Assessors, should there be any, either die, or resign, or be unable for any reason whatever to discharge his functions, the same procedure is followed for filling the vacancy as was followed for appointing him.

Article 14
The parties are entitled to appoint special agents to attend the Commission of Inquiry, whose duty it 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.

Article 15
The International Bureau of the Permanent Court of Arbitration acts as registry for the Commissions which sit at The Hague, and shall place its offices and staff at the disposal of the Contracting Powers for the use of the Commission of Inquiry.

Article 16
If the Commission meets elsewhere than at The Hague, it appoints a Secretary-General, whose office serves as registry.
It is the function of the registry, under the control of the President, to make the necessary arrangements for the sittings of the Commission, the preparation of the Minutes, and, while the inquiry lasts, for the charge of the archives, which shall subsequently be transferred to the International Bureau at The Hague.

Article 17
In order to facilitate the constitution and working of Commissions of Inquiry, the Contracting Powers recommend the following rules, which shall be applicable to the inquiry procedure in so far as the parties do not adopt other rules.

Article 18
The Commission shall settle the details of the procedure not covered by the special Inquiry Convention or the present Convention, and shall arrange all the formalities required for dealing with the evidence.

Article 19
On the inquiry both sides must be heard.
At the dates fixed, each party communicates to the Commission and to the other party the statements of facts, if any, and, in all cases, the instruments, papers, and documents which it considers useful for ascertaining the truth, as well as the list of witnesses and experts whose evidence it wishes to be heard.

Article 20
The Commission is entitled, with the assent of the Powers, to move temporarily to any place where it considers it may be useful to have recourse to this means of inquiry or to send one or more of its members. Permission must be obtained from the State on whose territory it is proposed to hold the inquiry.

Article 21
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.

Article 22
The Commission is entitled to ask from either party for such explanations and information as it considers necessary.

Article 23
The parties undertake to supply the Commission of Inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to become completely acquainted with, and to accurately understand, the facts in question.
They undertake to make use of the means at their disposal, under their municipal law, to insure the appearance of the witnesses or experts who are in their territory and have been summoned before the Commission.
If the witnesses or experts are unable to appear before the Commission, the parties will arrange for their evidence to be taken before the qualified officials of their own country.

Article 24
For all notices to be served by the Commission in the territory of a third Contracting Power, the Commission shall apply direct to the Government of the said Power. The same rule applies in the case of steps being taken on the spot to procure evidence.
The requests for this purpose are to be executed so far as the means at the disposal of the Power applied to under its municipal law allow. They cannot be rejected unless the Power in question considers they are calculated to impair its sovereign rights or its safety.
The Commission will equally be always entitled to act through the Power on whose territory it sits.  

Article 25
The witnesses and experts are summoned on the request of the parties or by the Commission of its own motion, and, in every case, through the Government of the State in whose territory they are.
The witnesses are heard in succession and separately in the presence of the agents and counsel, and in the order fixed by the Commission.

Article 26
The examination of witnesses is conducted by the President.
The members of the Commission may however put to each witness questions which they consider likely to throw light on and complete his evidence, or get information on any point concerning the witness within the limits of what is necessary in order to get at the truth.
The agents and counsel of the parties may not interrupt the witness when he is making his statement, nor put any direct question to him, but they may ask the President to put such additional questions to the witness as they think expedient.

Article 27
The witness must give his evidence without being allowed to read any written draft. He may, however, be permitted by the President to consult notes or documents if the nature of the facts referred to necessitates their employment.

Article 28
A Minute of the evidence of the witness is drawn up forthwith and read to the witness. The latter may make such alterations and additions as he thinks necessary, which will be recorded at the end of his statement.
When the whole of his statement has been read to the witness, he is asked to sign it.

Article 29
The agents are authorized, in the course of or at the close of the inquiry, to present in writing to the Commission and to the other party such statements, requisitions, or summaries of the facts as they consider useful for ascertaining the truth.

Article 30
The Commission considers its decisions in private and the proceedings are secret.
All questions are decided by a majority of the members of the Commission.
If a member declines to vote, the fact must be recorded in the Minutes.

Article 31
The sittings of the Commission 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.

Article 32
After the parties have presented all the explanations and evidence, and the witnesses have all been heard, the President declares the inquiry terminated, and the Commission adjourns to deliberate and to draw up its Report.

Article 33
The Report is signed by all the members of the Commission.
If one of the members refuses to sign, the fact is mentioned; but the validity of the Report is not affected.

Article 34
The Report of the Commission is read at a public sitting, the agents and counsel of the parties being present or duly summoned.
A copy of the Report is given to each party.

Article 35
The Report of the Commission is limited to a statement of facts, and has in no way the character of an Award. It leaves to the parties entire freedom as to the effect to be given to the statement.

Article 36
Each party pays its own expenses and an equal share of the expenses incurred by the Commission.