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In accordance with Article 10 of the 1899 & 1907
Conventions, the procedure is regulated by the Convention for the inquiry. The
language of the Articles is different: while the 1899 Convention provided
explicitly that the Convention for the inquiry “settles the procedure”, the 1907
Convention holds that the Convention for the inquiry “determines … generally
speaking, all the conditions upon which the parties have agreed.” and further
holds that “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.” (Art. 17). Under the 1907 Convention, the commission is also “entitled
to 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.” (Art. 18).
With the exception of the abovementioned provisions, regulation of the procedure
by the 1899 Convention is very limited, hence the following is based on the 1907
Convention. The parties submit material to the Commission that might assist in
performance of its task. In its turn, the Commission is entitled to request
further materials from the parties and, with the consent of the parties, to move
to another location in order to conduct its investigation. Parties also
undertake to use domestic law, if necessary, in order to enforce summons issued
by the Commission for the purpose of making witnesses and experts available for
its hearing. Any visits or requests made by the Commission, and that concerned
the territory of another state, required a prior approval by that state. In all
cases though, such activities took place through the governments of the states
on which territory witnesses or experts were located. There are two major stages
to the proceedings: oral and written, with the latter being optional. During the
oral proceedings, agents of the parties participate only in so far as they can
listen to the testimonies of witnesses and experts, they cannot cross-examine
them. Any questions parties might have to witnesses can be asked solely through
the President of the commission, who conducts the interviews, with other members
of the Commission also able to ask questions. During the written proceedings,
agents for the parties can submit their statements to the Commission and the
other party. Proceedings are not public and remain confidential. Finally, the
Commission prepares a Report and, after announcing it at the public meeting,
provides copies to both parties.
See 'documents' for general comments on the 1997 Optional Rules.
The 1997 Optional Rules introduced several changes into the procedure of the
Commission. First, the proceedings are now initiated by an ‘invitation’ sent by
one party to another. Lack of response or rejection most obviously means
impossibility of establishing a commission. Second, in contrast to the 1899 &
1907 Conventions, at the beginning of the proceedings parties not only submit
materials related to the factual background, but also their opinions on the
subject. This latter step is still optional, and takes place upon determination
by the Commission (Art. 11). Third, the Commission would also determine “the
method of obtaining oral testimony”, which implies it is in contrast to the
provisions of the 1907 Convention; the representatives of the parties may be
allowed to cross-examine witnesses and experts during the oral hearing.
As a general comment, the 1997 Optional Rules are much more focused on the
actions of the parties than the 1907 Convention. The latter gave a significant
procedural role to the Commission, assigning to parties the role of the ‘source
of information’ rather than participants in the proceedings. |
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