U.S President Trump could be a mediator?

Bài viết này trả lời 1 câu hỏi rất đơn giản nhưng lại phải đọc lại nhiều kiến thức cũ về công pháp quốc tế để có trích dẫn đúng. Làm mỏi mắt mà thấy hay hay.

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http://foreignpolicy.com/2017/11/14/trump-is-causing-conflict-by-playing-peacemaker-vietnam-china/

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Tài liệu tham khảo: 

·        Charter of the United Nations 1945;

·        United Nations Convention on Law of the Sea 1982;

·        Pact of Bogotá 1948;

·        Handbook on the Peaceful Settlement of Disputes between States;

·        United Nations Guidance for Effective Mediation;

·        The 1907 Hauge Convention for the Pacific Settlement of International Disputes;

·        The 1936 Inter-American Treaty;

·        The 1964 Protocol to Charter of the Organization of African Unity;

·        The Manila Declaration on the Peaceful Settlement of International Disputes.

Whether or not U.S President Trump could be a mediator in a States’ dispute over international seas and sovereignty?

·        Mediation is one of the peaceful means to settle disputes as stated in the Charter of the United Nations 1945 (“UN Charter”)[1] and the United Nations Convention on Law of the Sea 1982 (“UNCLOS”)[2]. According to these UN Conventions, mediation is a method where a third party intervenes to reconcile the claims of the contending parties[3].

·        The primary requirement of the procedure is informality and confidentiality.[4] An offer of mediation may be accepted by a written agreement. It cannot be imposed without parties’ consent. Then, mediation can be undertaken by a single State or within the framework of an international organization such as the United Nations. Within the United Nations, the Security Council might appoint a committee of the Security Council to give advice as the mediator.

·        The mediator is to be chosen by mutual agreement of the parties[5], who are “trained neutral person,”[6] “experience, skills, knowledge and cultural sensitivity for the specific conflict situation.”[7]

·        The function of the mediator is to support both parties in the settlement of the dispute in the simplest and most direct manner[8]. Besides, the mediator should reconcile the opposing claims and appease the feelings of resentment between the States[9]. He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute.  However, his proposals represent nothing more than recommendations. A time-limit for mediation has been established for the work of mediation. The mediator shall determine a period of time for the parties to reach some solutions.[10]

·        The outcome of the process is not binding upon the parties [11]. The final results of the mediation if accepted by the parties may be embodied in an agreement or result in a further negotiation between the parties. In case of failure of the mediation, no legal obligations arise. Parties shall continue to seek another peaceful solution. Should the parties fail to settle by peaceful settlement, they shall refer their dispute to the Security Council in accordance with the UN Charter [12].However, the mediator might take on themselves the rendering of further assistance such as a financing or guaranteeing the implementation of the findings of the mediation[13].

Conclusion:

·        Mediation has both advantages and disadvantages as compared to other methods of dispute settlement.  It is more flexible than arbitration or judicial settlement. It leaves more room open for the wishes of the contending parties and the initiatives of the third party.  The parties remain in control of the outcome.  Their proceedings can be conducted in secret.  However, the proceedings cannot be started and be effective without the consent, cooperation, and goodwill of the parties.  The proposed settlement is no more than a recommendation without any binding force upon the parties.

·        Therefore, provided that U.S President Trump receives acceptance from both Vietnam and China, he could be a mediator in a dispute over international seas and sovereignty between these two States.

[1] Article 33(1) of the UN Charter: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

[2] Article 279, Obligation to settle disputes by peaceful means of UNCLOS 1982: “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33(1), of the Charter.” See also: Supra note 1.

[3] Handbook on the Peaceful Settlement of Disputes between States, p.40: “Mediation is a method of peaceful settlement of an international dispute where a third party intervenes to reconcile the claims of the contending parties and to advance his own proposals aimed at a mutually acceptable compromise solution”.

[4] Article XII of the 1948 Pact of Bogotá.

[5] Handbook on the Peaceful Settlement of Disputes between States, p.42: “Mediation cannot be imposed upon the parties to an international dispute without their consent or their acceptance of the particular mediator”. See also: Article III of the 1936 Inter-American Treaty on Good Offices and Mediation, Article XII of the 1948 Pact of Bogotá and Article XX of the 1964 Protocol to Charter of the Organization of African Unity.

[6] http://www.un.org/en/ombudsman/medservices.shtml

[7] United Nations Guidance for Effective Mediation, p.7: “…mediator with the experience, skills, knowledge and cultural sensitivity for the specific conflict situation. The mediator should be considered objective, impartial and authoritative and be a person of integrity. The mediator needs a level of seniority and gravitas commensurate to the conflict context and must be acceptable to the parties...”

[8] Article XII of the 1948 Pact of Bogotá: “assist the parties in the settlement of controversies in the simplest and most direct manner, avoiding formalities and seeking an acceptable solution”.

[9] Article 4 of the 1907 Hauge Convention for the Pacific Settlement of International Disputes.

[10] Article IV of the 1936 Inter-American Treaty

[11] Article 6 of the 1907 Hauge Convention for the Pacific Settlement of International Disputes.

[12] Article 7, Section I, Manila Declaration on the Peaceful Settlement of International Disputes.

[13] Indus Basin dispute case between India and Pakistan. Signed at Karachi on 19 September 1960, United Nations, Treaty Series, vol. 444, p. 259;ibid., p. 207; ibid., vol. 419, p. 126. See also: Handbook on the Peaceful Settlement of Disputes between States, p.44:”…Through the mediation of the International Bank for Reconstruction and Development, that particular engineering measures should be worked out to increase the water supply in the region. In 1960, then, after intensive negotiations undertaken by the Bank, a treaty was signed by the parties which specifically provided for such a plan, while another agreement concerning the financing of the project was signed by a group of countries and the Bank”.