Dr David S Berry Dean of Law
Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
[email protected] 5th Annual Mediation Symposium, Port of Spain, November 24‐26, 2014
OVERVIEW
1. Historical Context: Mediation in International Relations
2. Dispute Settlement in Caribbean Regional Integration Movements
 Dispute Settlement Through Standing Organs
 RTC Chapter 9 and RTB Dispute Settlement Annex
 Good Offices
 Mediation
3. Mediation and Contentious Regional Disputes
4. Conclusions
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HISTORICAL CONTEXT: MEDIATION IN INTERNATIONAL RELATIONS
 Mediation used to promote peace during and after wars  Mediators served as notaries and couriers, during and after hostilities
 Mediators produced and distributed position papers and treaty texts during the formation of post conflict peace treaties
 Mediated peace treaties
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HISTORICAL CONTEXT: MEDIATION IN INTERNATIONAL RELATIONS
Painting of the conclusion of a major international mediation. Any guesses?
Gerard ter Borch (II), The Ratification of the Treaty of Münster, 15 May 1648, available at http://www.geheugenvannederland.nl/?/en/items/RIJK01:SK‐C‐1683
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HISTORICAL CONTEXT: MEDIATION IN INTERNATIONAL RELATIONS
 The Peace of Westphalia (1648) was mediated
 The papal nuncio mediated the Catholic powers at Münster
 Venice mediated between Protestant powers and the vestiges of the empire in Osnabrück
 Significance of Peace:  The two treaties establishing the Peace of Westphalia of 1648 recognised the existence of some three hundred territorially‐
based, legally distinct and equal entities
 Complex mediation
 Mediation played a key role in the origin (or formalisation) of the modern, inter‐state system
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HISTORICAL CONTEXT: MEDIATION IN INTERNATIONAL RELATIONS
 Historical v Modern Mediation
 Some mediators had hidden agendas
 Did not exercise neutrality
 Mediation not always seen as distinct process –
mediators could become judges over a dispute regarding same treaty that they had produced by mediation
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DISPUTE SETTLEMENT IN CARIBBEAN INTEGRATION MOVEMENTS
 Inter‐state Mediation Required in Caribbean?
 Outright wars less likely
 But regional integration frameworks (CARICOM and OECS) impose duties and procedural requirements which may be inconvenient at times.  As a result states may choose not to honour their commitments in order to satisfy short term interests.
 Breaches of international commitments lead to inter‐
state disputes
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DISPUTE SETTLEMENT IN CARIBBEAN INTEGRATION MOVEMENTS
 CARICOM and the OECS provide for inter‐state dispute settlement through a number of mechanisms:
 Organs – both CARICOM and OECS
 ADR mechanisms  CARICOM – Chapter 9 of Revised Treaty of Chaguaramas
(RTC)  OECS –Art 18 of the Revised Treaty of Basseterre (RTB) and the Dispute Settlement Annex (DSA)
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DISPUTE SETTLEMENT THROUGH STANDING ORGANS
 Through Organs – two possibilities:
1. ‘On the sidelines’
 Benefits: informal, confidential, ad hoc
2. ‘During meetings of organs’
 Benefits:  relatively informal (but must follow procedure of organ),  allows compromise  provides the possibility of further rule‐making to resolve existing and future problems
 not limited to law
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DISPUTE SETTLEMENT THROUGH STANDING ORGANS
 Drawbacks
 Not transparent
 Not made in accordance with law – limited precedential value
 Not compulsory
 Not binding
 Highly politicised – persons serving on organs represent their sovereign states (state interests)
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DISPUTE SETTLEMENT: CARICOM
Adjudication (CCJ)
Good Offices
Consultations
Mediation
Arbitration
Conciliation
Non‐binding
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Binding
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DISPUTE SETTLEMENT: OECS
Consultation
3 month waiting period
Consultations
Conciliation
Dispute Settlement Annex
Eastern Caribbean Court of Appeal 11/26/2014
By agreement
Arbitration
If no agreement
Adjudication
Eastern Caribbean Court of Appeal
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Binding Non‐binding
Good offices
GOOD OFFICES
 Under General International Law  A voluntary process of non‐binding conflict resolution relying upon a neutral third party – another state, an organ of an international or regional organization, or an individual of high repute – to help resolve the dispute
 Less formal sub‐category of mediation  Roles
 Channel of communication between parties
 Advice or recommendations
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GOOD OFFICES: CARICOM
 RTC, ARTICLE 191, Good Offices
 1. Member States parties to a dispute may agree to employ the good offices of a third party, including those of the Secretary‐General, to settle the dispute.
 2. Good offices may begin or be terminated at any time. Subject to the procedural rules applicable in respect of arbitration or adjudication, good offices may continue during the course of arbitration or adjudication.
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GOOD OFFICES: OECS
 RTB Dispute Settlement Annex, para [2]
 Similar phrasing to RTC Article 191
 But also allows continuation during other dispute settlement processes, including conciliation:
 ‘(d) subject to the procedural rules applicable in respect of conciliation, arbitration or adjudication, good offices may continue by agreement of the eligible parties during the course of such conciliation, arbitration or adjudication.’
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MEDIATION: GENERAL  Described in the UN Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes Between States:
 ‘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’.
 Nature
 Informal and confidential
 Voluntary – commenced by agreement and terminated by either party
 No fact‐finding role (provided by parties)
 Mediators may offer inducements (negative and positive) 11/26/2014
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MEDIATION: GENERAL
 Benefits
 Opens lines of communication, offers an honourable way out of a dispute (saves face), and has the potential to resolve it, either finally, or for a period of time
 Challenges
 Mediation requires states to admit:
 that there is a dispute,  that there are two potentially valid positions, and  that that dispute requires some compromise.  For this reason the overall exhaustion of the parties to the dispute or the threat of escalation tend to facilitate mediation.
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MEDIATION: CARICOM
 RTC ARTICLE 192, Mediation
 1. Where Member States parties to a dispute agree to settle the dispute by recourse to mediation, the parties may agree on a mediator or may request the Secretary‐
General to appoint a mediator from the list of conciliators mentioned in Article 196.
 2. Mediation may begin or be terminated at any time. Subject to the procedural rules applicable in respect of arbitration or adjudication, mediation may continue during the course of arbitration or adjudication.
 3. Proceedings involving mediation and, in particular, positions taken by parties during the proceedings, shall be confidential and without prejudice to the rights of the parties in any further proceedings.
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MEDIATION: OECS
 No express provisions on mediation in RTB or DSA
 Would need to rely upon good offices.
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COURT ANNEXED
MEDIATION
 CCJ’s Original Jurisdiction Rules
 Rule 18.1(1)(u)  Sets out the Court’s general powers of case management  Empowers Court to ‘refer any specific issue to mediation’.
 Rule 19.5  Empowers Court to adjourn a case management conference for the purposes of allowing parties to pursue negotiated settlement or ‘a form of ADR procedure.’ [Rule 1.2 expressly includes ‘mediation’ in the definition of ‘ADR’.]
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COURT ANNEXED MEDIATION
 No similar provision for Eastern Caribbean Court of Appeal  No treaty jurisdiction rules (yet)
 Even if future rules empowered ECCA to refer matters to mediation, the eligible parties to such disputes would only include a ‘full Member State, Associate Member State and the Organisation’
 In other words, no mediation of disputes involving persons
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COURT ANNEXED MEDIATION
 CCJ’s power to refer to mediation: key points
 Mediation of disputes involving persons not contemplated in RTC Chapter 9
 But power through Rules to refer matters to mediation includes disputes involving persons (under Article 222)
 Thus RTC + Rules allow mediation in disputes  between states,  between states and CARICOM
 between persons and states and
 between persons and CARICOM
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MEDIATION AND CONTENTIOUS REGIONAL DISPUTES
 Could mediation be used regionally in very contentious cases involving states?
 Hypothetical: dispute about free movement of Community nationals
 Focal Example: Shanique Myrie v Barbados
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MEDIATION AND CONTENTIOUS REGIONAL DISPUTES
 Free Movement Case: Opposing Views
 Individual’s perspective – wide range of potential rights violations, arising from:
 Questioning by immigration authorities
 Search of luggage
 Search of person (not body cavity search – clearly illegal in most circumstances)
 Detention in airport
 Refusal/return (with stamp on passport)
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MEDIATION AND CONTENTIOUS REGIONAL DISPUTES
 Free Movement Case: Opposing Views
 State’s perspective – denial of entry fundamental to national security (exercise of sovereignty)
 Normal exercise of immigration, customs and policing authority
 Exercised to prevent undesirables entering country (drug traffickers, terrorists)
 To prevent persons who may become burdens upon state (insufficient funds)
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MEDIATION AND CONTENTIOUS REGIONAL DISPUTES
 What would free movement dispute be about?
 Following judgment in Shanique Myrie v Barbados the law is fairly clear
 Dispute therefore likely to be about factual
matrix
 But both parties could take completely opposing, irreconcilable positions on the facts
 Also, states could view any challenge to immigration procedures as threat to national security and sovereignty
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MEDIATION AND CONTENTIOUS REGIONAL DISPUTES
 Solutions
 Pre‐hearing on facts, then mediation?
 Conciliation?  Arbitration?
 Continue with original jurisdiction proceeding?
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CONCLUSIONS
 Mediation has solid pedigree in international law
 Good offices formally available in both CARICOM and OECS
 Mediation formally available in CARICOM through RTC Chapter 9 and the Court’s Rules for disputes between 



states, states and CARICOM, states and persons and persons and CARICOM.
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CONCLUSIONS
 Mediation and good offices may become important tools for regional dispute settlement
 The Caribbean needs persons who can effectively deploy these tools
 We need to promote mediation at all levels in the Caribbean – at inter‐personal, community, state, regional and international levels
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CONCLUSIONS
 For the future, suggest promotion of :
 Caribbean mediators – should be considered neutral in international inter‐state disputes, and in regional disputes (where they are not nationals of either of the parties)
 Caribbean countries – can serve as ideal locations for mediation processes (suitable infrastructure in a relaxing and enjoyable environment)
Thank you
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