Water security and peace: a synthesis of studies ... - unesdoc - Unesco

disagreements on the future of the project through bilateral negotiations. The
preliminary agreement of the conflicting states to mediation is not mandatory, but
without their consent mediation will never be successful. It is not unusual for the
mediator not only to facilitate the discussion but also to suggest the terms of
settlement.
The boundaries between good offices, mediation, and conciliation are sometimes
blurred, and one procedure can often lead to another. The World Bank’s role in the
Indus River dispute is a good example of such escalating involvement. In that case
the World Bank’s participation increased until it was actively involved in finding a
solution by providing significant financial assistance to the parties as a condition of
their consent to the terms of settlement. It drafted and brokered the final agreement,
which was signed by the heads of the two states and the President of the World Bank.
4.4.5. Fact-Finding
Many international disputes arise from disagreements over questions of fact. Inquiry
and fact-finding are procedures specifically designed to produce an impartial finding of
disputed facts. The UN International Law Commission (ILC) study of legal issues
concerning dispute prevention and resolution established that fact-finding, as a course
of action, will frequently resolve a dispute before any binding process is necessary.
Fact-finding, or inquiry, allows states to refer questions to a panel of experts for
impartial third-party investigation of factual or technical matters before diplomatic
negotiations. Under the 1907 The Hague Convention for the Pacific Settlement of
International Disputes, a commission of inquiry can be established “to facilitate a
solution . . . by means of impartial and conscientious investigation.” But its role is
limited to providing “a statement of facts,” which should not have the character of an
award. Box 4.2 describes how this was done in the Danube River case.
Box 4.2. Fact-finding in the Danube River case
The Danube River dispute provides another example where the fact-finding
procedure was extensively used to help the conflicting parties. Hungary and
Slovakia agreed in 1992 to establish a fact-finding commission that included the
Commission of the European Communities. The commission was asked to report
on Variant C, a provisional solution proposed by Slovakia. It was to convene an
independent group of experts to report on emergency measures, establish and
implement a temporary water management regime for the Danube, and reach
agreement on the terms to submit the dispute to the International Court of
Justice.
Agreement was reached to establish a tripartite group of experts. The group
included one expert from each party to the dispute and three from the
Commission of European Communities. The group was requested to provide
reliable and undisputed data on the most important effects of the water discharge
and the remedial measures already undertaken as well as to make
recommendations for appropriate measures. Although the experts designated by
the Commission recommended several measures, the parties could not agree on
them. Negotiations continued and eventually the parties reached an agreement
“Concerning Certain Temporary Technical Measures and Discharges in the Danube
and Monsoni Branch of the Danube.” Being unable to resolve their dispute finally
through negotiations and mediation, they agreed to submit the case to the
International Court of Justice.
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