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2 - Mediation
- J. G. Merrills, University of Sheffield
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Summary
When the parties to an international dispute are unable to resolve it by negotiation, the intervention of a third party is a possible means of breaking the impasse and producing an acceptable solution. Such intervention can take a number of different forms. The third party may simply encourage the disputing states to resume negotiations, or do nothing more than provide them with an additional channel of communication. In these situations, the intermediary is said to be contributing ‘good offices’. On the other hand, the assignment may be to investigate the dispute and to present the parties with a set of formal proposals for its solution. As we shall see in Chapter 4, this form of intervention is called ‘conciliation’. Between good offices and conciliation lies the form of third-party activity known as ‘mediation’.
Like good offices, mediation is essentially an adjunct to negotiation, but with the mediator as an active participant, authorised, and indeed expected, to advance fresh proposals and to interpret, as well as to transmit, each party's proposals to the other. What distinguishes this kind of assistance from conciliation is that a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations, although in practice such distinctions tend to be blurred. In a given case, it may therefore be difficult to draw the line between mediation and conciliation, or to say exactly when good offices ended and mediation began.
Mediation may be sought by the parties or offered spontaneously by outsiders. Once under way, it provides the governments in dispute with the possibility of a solution, but without any prior commitment to accept the mediator's suggestions. Consequently, it has the advantage of allowing them to retain control of the dispute, probably an essential requirement if negotiations are deadlocked on a matter of vital interest. On the other hand, if a face-saving compromise is what is needed, it may be politically easier to make the necessary concessions in the course of mediation than in direct negotiation. If a dispute concerns sensitive issues, the fact that the proceedings can be completely confidential is an advantage in any case. As with other means of dispute settlement, however, not every international dispute is suitable for mediation. The first requirement is a willing mediator.
8 - The Law of the Sea Convention
- J. G. Merrills, University of Sheffield
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Summary
The methods of settlement considered so far can be used in all types of disputes and are available to all states. Alongside these general methods are to be found specialised procedures created by particular groups of states for the resolution of disputes in a specific subject area. The machinery available for the settlement of disputes in special fields has been extensively considered elsewhere and will not be described again here. However, to convey an idea of the problems involved in constructing such machinery, and the way in which accepted methods can be adapted and combined to provide solutions, the next chapter examines some recent developments in the area of international trade law, while this chapter provides an outline and review of the arrangements for dispute settlement to be found in the 1982 Law of the Sea Convention.
The Convention and its System
The 1982 Convention contains 307 articles and eleven annexes and was eight years in negotiation. With an instrument of such length and complexity, dealing with matters in which virtually all states have an interest of some kind, certain issues naturally proved more difficult than others. Not surprisingly, dispute settlement was one of the most contentious issues and the provisions which now comprise Part XV of the Convention went through several versions before the text was finally agreed.
The Third United Nations Conference on the Law of the Sea (UNCLOS III) held its first substantive session at Caracas in 1974 and decided that the issue of dispute settlement should be dealt with by each Main Committee to the extent that the matter was relevant to its work. It soon became clear, however, that the three Main Committees were likely to be preoccupied with other issues and would be able to give little time to this question. An informal group was therefore established to consider the issue of dispute settlement, and the working paper which it produced supplied a focus for the Conference's early discussions. At the third session in 1975, the group was reconstituted as the Settlement of Disputes Group, and at the end of that session the Informal Single Negotiating Text, prepared by the President of the Conference, included a set of draft provisions on the subject.
10 - The United Nations
- J. G. Merrills, University of Sheffield
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The reference of disputes to international political institutions has a history as long as that of arbitration. For present purposes, however, it is unnecessary to go further back than 1919, when, with the creation of the League of Nations as a reaction to the First World War, the first attempt was made to establish a universal organisation with broad responsibilities in this area. Following the failure of the League, or more accurately its member states, to take effective action to forestall a second bloodbath, a fresh effort to bring disputes within the field of operations of a world organisation was made with the creation of the United Nations Organization in 1945.
The purposes of the United Nations, as set out in Article 1 of the Charter, are to maintain international peace and security; to develop friendly relations among nations; to achieve international co-operation in solving problems of an economic, social, cultural or humanitarian character and in promoting human rights; and to be a centre for harmonising the actions of states in attaining these ends. Of these interrelated purposes, the maintenance of international peace and security occupies the primary place. Here, according to the Charter, the Organization has two distinct responsibilities: to bring about cessation of armed conflict whenever it occurs, and to assist the parties to international disputes to settle their differences by peaceful means. The scope of the Organization's powers in this second area, the ways in which they are exercised in practice and the effectiveness of the United Nations’ contribution are the subject of this chapter.
Machinery of the Organization
There are three organs of the United Nations with principal roles to play in the peaceful settlement of disputes: the Security Council, the General Assembly and the Secretariat.
The Security Council's powers derive from Chapter VI of the Charter, which is wholly concerned with the pacific settlement of disputes. Apart from Article 38, which entitles the Council to make recommendations with a view to the settlement of any dispute if all the parties so request, its competence is limited to disputes ‘the continuance of which is likely to endanger the maintenance of international peace and security’. It is therefore clear that, although Article 2(3) imposes a general obligation on member states to settle disputes by peaceful means, only the more serious disputes, or those which have become serious, are regarded as the Council's concern.
Table of Cases
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9 - International Trade Disputes
- J. G. Merrills, University of Sheffield
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The development of special arrangements to deal with disputes involving international trade began in the middle of the last century and has now produced one of the most effective, as well as one of the most important, systems of international dispute settlement. Thus, in contrast to law of the sea disputes, which we have seen are subject to a system which came into force in 1994, trade disputes can be dealt with through arrangements which have been progressively refined, based on regional as well as general agreements. Since limitations of space preclude examining this complex network in detail, this chapter focuses on the central element and outlines the dispute settlement system of the World Trade Organization (WTO).
From GATT (1947) to the World Trade Organization
As the Second World War drew to a close, governments were forced to consider the shape of the post-war world. First among their considerations was the issue of international peace and security, which led to the creation of the United Nations. However, not far behind came financial and economic issues, including international trade, which also had institutional implications. The 1930s had been an anarchic period in every sense, and to avoid repeating the experience the leaders of the post-war era resolved to establish arrangements which would reflect the realities of economic interdependence. The institutions created in this period, which include the International Monetary Fund, the World Bank and the General Agreement on Tariffs and Trade (GATT), have provided the framework for international economic relations ever since, supplemented, of course, by numerous subsequent instruments and organisations, including regional arrangements, set up for particular purposes.
The 1947 GATT was originally intended as a provisional agreement for the liberalisation of tariffs, pending the establishment of permanent arrangements through a new body to be known as the International Trade Organization (ITO). However, the ITO was never formed owing to domestic opposition within the United States. As a result, the GATT became a permanent system of great complexity, evolving into an institution with organs and decision-making powers, and eventually including more than 200 multilateral trade agreements. The failure of the ITO left a gap which the evolution of the GATT went some way to fill, but numerous problems remained.
International Dispute Settlement
- 6th edition
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The latest edition of this successful textbook on the techniques and institutions used to solve international disputes, how they work and when they are used, looks at diplomatic (negotiation, mediation, inquiry and conciliation) and legal methods (arbitration, judicial settlement). It uses many, often topical, examples of each method in practice to place the theory of how things should work in the context of real-life situations, helping the reader to understand the strengths and weaknesses of different methods when they are used. Fully updated throughout, the sixth edition includes all the latest case law, as well as new sections on investment arbitration and regional trade disputes. It is an essential resource for advanced undergraduate and postgraduate courses on international dispute settlement.
Appendices
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Agreement between Argentina and the United Kingdom establishing an Interim Reciprocal Information and Consultation System, 1990
Both parties agree to establish an Interim Reciprocal Information and Consultation System for movements of units of their Armed Forces in areas of the South West Atlantic. The aims of this system are to increase confidence between Argentina and the United Kingdom and to contribute to achieving a more normal situation in the region without unnecessary delay. The system consists of the following provisions:
I. Direct Communication Link
A. A direct communication link will be established between the respective military authorities – under the supervision of both Foreign Ministries – in order to:
– reduce the possibility of incidents and limit their consequences if they should occur;
– increase common knowledge of activities in the South West Atlantic.
B. The respective military authorities will be:
British Authority: Commander British Forces Falkland Islands (Malvinas).
Argentine Naval Authority: Commandante del Area Naval Austral (Ushuaia).
Argentine Air Authority: Jefe de la Novena Brigada Aérea (Comodoro Rivadavia).
C. It is agreed to establish a direct radio link between the respective authorities which will include voice and/or telex transmissions. The link will be manned on a 24 hour basis and will be tested at least once a week. Technical information relating to equipment, frequencies and modalities of use will be exchanged through diplomatic channels.
D. It is agreed to establish a communications plan for radio links between units and stations of the parties. Technical information will be exchanged through diplomatic channels.
II. Definition of Units
A. Ship:
Any ship belonging to the naval forces of the parties bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the governments and whose name appears in the naval list, and manned by a crew who are under regular naval discipline, and British Fleet Auxiliaries.
B. Aircraft:
Any aircraft belonging to the Armed Forces of the parties, manned by a military crew who are under regular Armed Forces discipline.
C. Combatant Units:
Any ship or aircraft equipped with weapons systems or means of offensive power or offensive projection capabilities (naval examples: aircraft carriers, cruisers, destroyers, frigates, corvettes, submarines, fast patrol boats, amphibious ships or ships carrying troops: aircraft examples: strike aircraft, fighters, bombers, missile or troop-carrying aircraft).
Preface
- J. G. Merrills, University of Sheffield
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Since the fifth edition of this book was published in 2011 there have been several developments with a direct bearing on its subject. Instability in the Middle East, the growing influence of China in the world and political developments in Africa and Europe all have a significant impact on the activity of both the United Nations and regional organisations. The World Trade Organization, already an established player in 2011, has maintained its prominence, and its arrangements for dispute settlement continue to be widely used. The complex system set up by the 1982 Law of the Sea Convention has been consolidated as cases have been taken to the International Tribunal for the Law of the Sea or to arbitration, while the International Court of Justice is busier now than at any previous time in its history. It must, of course, also be noted that solutions to such long-standing international problems as Cyprus, Kashmir and Israel/Palestine seem as far away as ever, reminding us, yet again, of the distance to be travelled if institutional provisions for dealing with the most serious disputes and situations are to be effective.
The aim of this new edition is to examine the techniques and institutions available to states for the peaceful settlement of disputes, taking full account of recent developments. Chapters 1 to 4 examine the so-called ‘diplomatic’ means of settlement: negotiation, where matters are entirely in the hands of the parties, then mediation, inquiry and conciliation, in each of which outside assistance is utilised. Chapters 5 to 7 deal with legal means, namely, arbitration and judicial settlement through the International Court of Justice, where the object is to provide a legally binding decision. To underline the interaction of legal and diplomatic means and to show how they are used in specific contexts, Chapter 8 reviews the arrangements for dispute settlement in the Law of the Sea Convention and Chapter 9 considers the provisions of the World Trade Organization's remarkable Dispute Settlement Understanding. The final part of the book considers the role of political institutions, the United Nations (Chapter 10) and regional organisations (Chapter 11), while the final chapter reviews the current situation and offers some thoughts for the future.
7 - The International Court II: The Work of the Court
- J. G. Merrills, University of Sheffield
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The institutional features of the International Court, as we have just seen, exercise a major influence on both the readiness of states to employ international adjudication and the ability of the Court to respond to their requests. However, the judgments which the Court hands down show how it deals with disputes when given the opportunity, and are no less important. This is not the place to describe the Court's jurisprudence in detail, nor to consider its contribution to the development of international law. What is needed therefore is not a survey of the Court's case law, but rather an indication of what its day-to-day work reveals about the relation between the settlement of disputes and adjudication. The decision itself is a good place to start.
Establishing the Facts
Proving a case at the international level is primarily a matter of finding and presenting suitable documentary evidence. This material, which is relevant to both fact and law, includes treaty texts, official records of international organisations and national parliaments, diplomatic correspondence, archive material, maps, films, photographs and affidavits. The quantity of such evidence may be extremely large and as there are virtually no exclusionary rules, states can and do bring forward everything which might assist their case. Although the facility is little used, documentary evidence may be augmented by the oral testimony of witnesses and experts, or even by the Court itself visiting the scene. In the Gabcikovo-Nagymaros case, for example, which concerned the construction of a barrage system on a boundary river between Hungary and Slovakia, the Court decided in 1997 to visit the relevant area at the parties’ request.
Evaluating the evidence is a task for the Court and, since the factual matrix is always the key to the application of the law, this can be a long and elaborate process. In some cases, much of the parties’ material can be dismissed as inconclusive or irrelevant to the issues to be decided. In disputes over maritime delimitation, for example, the Court has tended to ignore elaborate evidence relating to ecology or geomorphology in favour of less contentious material relating to geography. In some disputes, however, narrowing the focus in this way is impossible and there is no alternative to grappling with the facts.
5 - Arbitration
- J. G. Merrills, University of Sheffield
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The means available for the settlement of international disputes are commonly divided into two groups. Those considered so far, namely, negotiation, mediation, inquiry and conciliation, are termed diplomatic means, because the parties retain control of the dispute and may accept or reject a proposed settlement as they see fit. Arbitration and judicial settlement, on the other hand, are employed when what is wanted is a binding decision, usually on the basis of international law, and hence these are known as legal means of settlement.
Judicial settlement involves the reference of a dispute to the International Court or some other standing tribunal, such as the International Tribunal for the Law of the Sea or the European Court of Human Rights. Arbitration, in contrast, requires the parties themselves to set up the machinery to handle a dispute, or series of disputes, between them. Historically, arbitration was the first to develop and provided the inspiration for the creation of permanent judicial institutions. The focus of this chapter will therefore be on the earlier institution.
Forms of Arbitration
Arbitration may be prescribed in a treaty providing for its use in the event of a dispute relating to the interpretation or application of the agreement, or arranged by the parties when a dispute arises. In the former situation, as we shall see in Chapter 8, the treaty usually establishes the procedural framework for the arbitration. In the latter, on the other hand, this is a matter for the parties. But whether states are drafting a general undertaking to refer future disputes to arbitration, or negotiating a compromis (agreement) for the submission of a dispute that has already arisen, the first step is to decide the kind of tribunal to be appointed.
One possibility is to set up a commission consisting of equal numbers of national arbitrators, appointed by the parties, and a neutral member (or umpire) to whom cases are referred if the national members cannot agree. The origins of this form of tribunal, frequently used to deal with claims arising out of injury to aliens, can be traced back almost 200 years. In the Treaty of Ghent (1814), the United States and the United Kingdom agreed that certain disputes between them should be arbitrated by national commissioners with reference to a disinterested third party in the event of disagreement.
11 - Regional Organisations
- J. G. Merrills, University of Sheffield
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The growth and development of the United Nations as the major universal organisation has been accompanied by a no less dramatic increase in the number and range of organisations with membership drawn from the states of a particular region. Such regional organisations frequently become involved in the resolution of disputes. Sometimes this is because dispute settlement has been defined as a goal of the organisation. Article 4(e) of the Constitutive Act of the African Union, for example, lays down as one of its aims the peaceful resolution of conflicts between member states, and similar provisions can be found in the constitutions of other organisations. But even organisations whose primary concern is with matters of no present relevance may find themselves involved in some form of settlement activity. For bringing states together in an institutional setting provides the parties to a dispute with an opportunity to settle their differences and regional neighbours with the chance to add their encouragement, assistance and pressure as an incentive.
Range of Regional Organisations
The role played by a particular regional organisation depends very much on the characteristics of the organisation concerned: where it is located, how it is structured and what resources it commands. For this reason, though detailed treatment must be sought elsewhere, a glance at some of the leading regional organisations may be useful. Europe, which contains an exceptional number and variety of organisations, is an instructive place to begin.
The Council of Europe was founded in 1949 for the discussion of matters of common interest, to promote conventions on such matters and with the specific aim of promoting and protecting human rights. The Council is in no sense a supranational organisation, but has achieved a great deal by way of consultation and co-operation. In the field of dispute settlement, the Council's major achievement has been the European Convention on Human Rights, an agreement by the states of democratic Europe to respect the rights defined in the Convention and to submit disputes concerning its application and interpretation to international supervisory machinery.
The European Community (EC) represents a radically different approach. In 1952, the European Coal and Steel Community was created as an instrument of economic integration and later expanded with the addition of the European Economic Community and the European Atomic Energy Community in 1957.
Contents
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12 - Trends and Prospects
- J. G. Merrills, University of Sheffield
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Having reviewed the various ways of attempting to resolve international disputes individually, we are now in a position to consider what this survey as a whole demonstrates about the possibilities open to a state when confronted with a dispute, the factors which influence decisions on whether to use a particular procedure and the prospects for improving this situation in the future. To deal with these issues it will be necessary to consider separately some of the legal and political factors which form the context in which decisions relating to the conduct of disputes are taken, and then to suggest some ways of modifying or developing current methods of settlement with a view to making them more effective and easier to use. First, however, it may be useful to recall in brief outline what our study has revealed about the present situation.
Dispute Settlement Today
The idea that international disputes should be settled by peaceful means rather than by the use of force has a long history. From the survey in the preceding pages, however, it is clear that the attempt to devise techniques and institutions with this objective is a more recent phenomenon, much of what exists today having been created in a period of little more than 100 years. What has all the interest which states have shown in this subject succeeded in producing?
In one respect, at least, remarkably little. It was explained at the beginning of this book that the basic means of resolving disputes peacefully is still negotiation. Noteworthy developments here, however, are the increasing use of consultation and related techniques as a means of avoiding disputes and new forms of diplomacy associated with the growth of international organisations. All disputes are likely to involve negotiation at some stage, but as a method of settlement it is evidently subject to serious limitations. To some extent these can be overcome by good offices and mediation, yet these in turn are circumscribed in various ways and, like negotiation, wholly dependent on the readiness of the parties to agree.
With the introduction of inquiry and conciliation we find third-party assistance institutionalised, in the shape of permanent or ad hoc commissions, and objectified, in the sense that the necessary findings or recommendations are arrived at independently and passed to the parties for assimilation.
4 - Conciliation
- J. G. Merrills, University of Sheffield
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Summary
Conciliation has been defined as:
A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them or of affording the Parties, with a view to its settlement, such aid as they may have requested.
The eclectic character of the method is at once apparent. If mediation is essentially an extension of negotiation, conciliation puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration. For the fact-finding exercise that is the essence of inquiry may or may not be an important element in conciliation, while the search for terms ‘susceptible of being accepted’ by the parties, but not binding on them, provides a sharp contrast with arbitration and a reminder of the link between conciliation and mediation.
Emergence of Conciliation
The first treaty to provide for conciliation was concluded between Sweden and Chile in 1920. Its emphasis, however, was on inquiry and the only reference to conciliation is in an article putting it forward as an optional procedure. A number of treaties at about this time dealt with conciliation in a similar way, though in others it was given a more prominent place. In 1921, for example, conciliation and arbitration were laid down as alternative means of settlement in a treaty between Germany and Switzerland. If conciliation were chosen, a Permanent Board of Conciliation would be charged with the twofold task of investigating the facts and the law and formulating proposals for a solution. In 1922, the Assembly of the League of Nations, after some debate, adopted a resolution in which it recommended member states to conclude agreements providing for the submission of disputes to conciliation commissions, and with this encouragement more than twenty treaties providing for some form of conciliation were signed in the first five years of the decade.
Index
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1 - Negotiation
- J. G. Merrills, University of Sheffield
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A dispute may be defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another. In the broadest sense, an international dispute can be said to exist whenever such a disagreement involves governments, institutions, juristic persons (corporations) or private individuals in different parts of the world. However, the disputes with which the present work is primarily concerned are those in which the parties are two or more of the nearly 200 or so sovereign states into which the world is currently divided.
Disputes are an inevitable part of international relations, just as disputes between individuals are inevitable in domestic relations. Like individuals, states often want the same thing in a situation where there is not enough of it to go round. Moreover, just as people can disagree about the way to use a river, a piece of land or a sum of money, states frequently want to do different things, but their claims are incompatible. Admittedly, one side may change its position, extra resources may be found, or on looking further into the issue it may turn out that everyone can be satisfied after all. But no one imagines that these possibilities can eliminate all domestic disputes and they certainly cannot be relied on internationally. Disputes, whether between states, neighbours, or brothers and sisters, must therefore be accepted as a regular part of human relations and the problem is what to do about them.
A basic requirement is a commitment from those who are likely to become involved, that is to say, from everyone, that disputes will only be pursued by peaceful means. Within states this principle was established at an early stage and laws and institutions were set up to prohibit self-help and to enable disputes to be settled without disruption of the social order. On the international plane, where initially the matter was regarded as less important, equivalent arrangements have been slower to develop. The emergence of international law, which in its modern form can be dated from the seventeenth century, was accompanied by neither the creation of a world government, nor a renunciation of the use of force by states.
List of Abbreviations
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Table of Treaties and Agreements
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3 - Inquiry
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When a disagreement between states on some issue of fact, law or policy is serious enough to give rise to an international dispute, their views on the matter in question may be difficult or impossible to reconcile. In such a case, either or both of the parties may refuse to discuss the matter on the ground that their position is ‘not negotiable’. Alternatively, negotiations may drag on for years until one side abandons its claim or loses patience and attempts to impose a solution by force. It follows that negotiation, even if assisted by good offices or mediation, cannot be regarded as an adequate means of resolving all international disputes.
With states, as with individuals, experience demonstrates that the risks of stalemate are greatly reduced when a disinterested third party is brought into a dispute to provide the parties with an objective assessment. Internationally, a number of methods of achieving this have been developed. The method with which this chapter is concerned is called ‘inquiry’.
‘Inquiry’ as a term of art is used in two distinct, but related, senses. In the broader sense, it refers to the process that is performed whenever a court or other body endeavours to resolve a disputed issue of fact. Since most international disputes raise such issues, even if legal or political questions are also present, it is clear that inquiry in this operational sense will often be a major component of arbitration, conciliation, action by international organisations and other methods of third-party settlement.
The place of inquiry in the work of the United Nations, the International Court and other bodies will be examined in later chapters. Our present concern is with inquiry in another sense, not as a process which any tribunal may be required to perform as part of its work, but as a specific institutional arrangement which states may select in preference to arbitration or other techniques, because they desire to have some disputed issue independently investigated. In its institutional sense, then, inquiry refers to a particular type of international tribunal, known as the commission of inquiry and introduced by the 1899 Hague Convention.
1899 Hague Convention
On 15 February 1898, the United States battleship Maine, at anchor in Havana harbour, was destroyed by an explosion which killed 259 of her officers and crew.
Frontmatter
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