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Published online by Cambridge University Press: 27 February 2017
In the Dayton Accords, signed 14 December 1995, the Federation of Bosnia and Herzegovina (Federation) and the Republika Srpska (RS) agreed to establish an Inter-Entity Boundary Line (IEBL) and agreed to final and binding arbitration on the allocation of control over the Brcko area; composition of arbitral tribunal; application of UNCITRAL rules of procedure and of relevant legal and equitable principles
* [Reproduced from the text provided by the Arbitral Tribunal. The Award is also reproduced in UN Document S/1997/126, February 14, 1997.
[The Award of the Arbitral Tribunal and the Brcko Implementation Conference (an extraordinary meeting of the Steering Board of the Peace Implementation Council), held in Vienna, March 7, 1997, were noted in UN Security Council Resolution 1103 (1997), adopted unanimously on March 31, 1997. All parties to Annex 2 of the Peace Agreement [35 I.L.M. Ill (1996)] were reminded of their obligation to be bound by the decision of the Arbitral Tribunal and to implement it without delay.
[The Brcko Implementation Conference outlined the necessary arrangements for a successful implementation of the Arbitral Award, including appointment of a supervisor and deputies, with the period of supervision to start in the later part of March, and agreement on a strategy for full implementation of the Peace Agreement in the Brcko area. Emphasis will be given to overall international coordination, economic revitalization, establishment of an international police presence, freedom of movement of people, goods and commerce, return of refugees and displaced persons, and the establishment of a locally-elected multi-ethnic administration. The Steering Board of the Peace Implementation Council will keep the progress of implementing the Arbitral Award under review with the first report to be given in May.
[The General Framework Agreement for Peace in Bosnia and Herzegovina, December 14, 1995, with an Introductory Note by Paul C. Szasz, appears at 35 I.L.M. 75 (1996); the 1976 UNCITRAL Arbitration Rules, appear at 15 I.L.M. 701 (1976); and UN Security Council Resolution 780 (1992), establishing a Commission of Experts to evaluate war crimes information, appears at 31 I.L.M. 1476 (1992).]
1 The preamble of Annex 2 defines “Parties” as the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska
2 The Presiding Arbitrator received letters to this effect from the heads of the delegations of both parties to the Dayton talks and has subsequently discussed the matter with counsel without dissent from anyone.
3 The extension was proposed by representatives of Republika Srpska on 1 October 1996; thereafter the Federation indicated its acquiescence in the proposed extension; and it was so ordered by the Tribunal on 27 November 1996.
4 The Appendix to the Order provided as follows: 1 Each party bears the burden of proving its own case. 2 With regard to the proof of individual allegations advanced by the parties in the course of the proceedings, the burden of proof rests on the party alleging the fact.
5 Specifically, the Order provided that the Second Statement should address such factors as the location of the IEBL, economic development, transportation, free movement of goods and services, the right of return of refugees, freedom of movement, military security, and the possibility of an international presence in the area.
6 The Federation requested and received a one-week extension of time in order to file its Second Statement.
7 On the day of receipt of the Klickovic letter, the Presiding Arbitrator received from Dr. Popovic a letter dated 30 November 1996 which commented on a draft order then under consideration by the Tribunal. This letter made no mention of the purported withdrawal by RS of Dr. Popovic's appointment as arbitrator; in fact, the letter, in calling for the convening of a meeting of the arbitrators to discuss the draft order, suggested that Dr. Popovic was preparing to participate more actively in the arbitral process.
8 Other international tribunals have concluded that a truncated tribunal may proceed when a member has unilaterally decided not to participate in whole or in part. See Interpretation of Peace Treaties with Bulgaria. Hungary and Romania (Second Phase), 1950 I.C.J. Rep. 221, 229; see also Mixed Claims Commission, United States and Germany, Opinions and Decisions in Sabotage Cases handed down June 15. 1939 and October 30. 1939. at 20 (cited in Schwebel, International Arbitration at 218, footnote 224)
9 The RS's “Jurisdictional Statement” dated 22 November does not articulate, and in effect thus abandons, the “missing map” argument previously advanced orally on 17 September 1996. See paragraph 14 above. Nor did counsel for the RS raise this theory during oral argument at the Rome hearing.
10 See also Stephen M. Schwebel, International Arbitration: Three Salient Problems (1987). According to President Schwebel, Arbitration treaties clearly are treaties; their interpretation is governed by the rules of treaty interpretation. Where States have undertaken by treaty to arbitrate, their obligation is binding. It is an obligation they are bound to fulfill. Arbitration treaties, like other international contractual instruments, are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of the treaty's object and purpose.
11 Id at 149
12 Id at 156
13 In 1699, following the conclusion of the Treaty of Karlowitz, the Sava River became the border between the Ottoman and Hapsburg empires. For the next two centuries, Brcko represented the western-most reach of the Ottoman Empire. In 1878, at the Congress of Berlin, Austria-Hungary was allowed to occupy Bosnia and Herzegovina, which, however, stayed under Ottoman sovereignty until 1908, when this too was assumed by Austria-Hungary
14 Census data from the last hundred years also indicates that, while the population of the Brcko Grad has grown dramatically, the relative percentages of the various ethnic groups in the town have been consistent with the 1991 census data
15 See Statistcki Godisniak Jugoslaviie (1991).
16 Linked to the Tuzla Basin, Brcko served as a transportation center for wood, coal, anthracite, agriculture/animal products and chemical industries.
17 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674 (1994).
18 Evidence submitted to the United Nations indicates that, while atrocities were committed by Serb authorities against Muslim and Croat residents in the Brcko area, local Serb populations were also subjected to inhumane treatment, torture and unlawful killing by Muslim-Croat forces in the Brcko area. See, e.g.. Report on Cases of Violation of International War and Humanitarian Law in the Territory of the Former Socialist Republic of Yugoslavia, Seventh Report of the Government of the Federal Republic of Yugoslavia, U.N. Doc. A/51/397 and S/1996/775 (1996).
19 Also known as the “Arizona Road.“
20 Specifically, the Federation asserts that the evidence presented proves: In September 1991, Red Berets acting under the control of the Serbian State Security Organizations in Belgrade arrived in Brcko Grad and began to train local Serb volunteers. In late 1991, the JNA confiscated weapons and material of the Bosnian Territorial Defense Force and, in early 1992, began patrolling Brcko Grad. In late April 1992, detention centers were established at the Luka Port facility, the JNA casern and elsewhere in Brcko Grad. From 30 April through 7 May 1992, the JNA and Bosnian Serb paramilitary units attacked Brcko Grad, destroying the road and rail bridges over the Sava River and detaining large numbers of Muslim citizens in detention centers. During this assault, Serb forces committed random killings of and atrocities against civilians during street fighting and in detention centers. On 19 May 1992, the JNA formally withdrew Yugoslav officers from Brcko and the forces were converted into the Vojska (“Army“) of the Republika Srpska (VRS). Between May and August 1992, the remaining civilian Muslim population was either forced out of Brcko Grad or detained at the Luka Port Camp and smaller detention centers in the area. During this period, a large segment of the detainees, perhaps as many as several thousand, were murdered, raped and beaten by their captors. As a direct result of the RS aggression, the prewar population of Muslims in Brcko Grad was reduced from some 23,000 at the beginning of the war to approximately 500 at the time of the signing of the Dayton Accords.
21 In particular, the Federation points to Security Council Resolution 819 (1993), in which the Security Council, acting under Chapter VII of the U.N. Charter, “Reaffirms that any taking or acquisition of territory by the threat or use of force, including through the practice of ‘ethnic cleansing,’ is unlawful and unacceptable … [and] Condemns and rejects the deliberate actions of the Bosnian Serb party to force the evacuation of the civilian population from Srebrenica and its surrounding areas as well as from other parts of the Republic of Bosnia and Herzegovina as part of its overall abhorrent campaign of ‘ethnic cleansing.'”
22 Specifically, the Federation argues that the RS committed acts which violated the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights.
23 Here, the Federation argues that the law on crimes against humanity prohibits acts of murder, extermination, enslavement, imprisonment, torture and rape which area directed against civilian population in both international and national armed conflicts. The Federation argues that these principles are accepted as jus cogens and are further found in common Article 3 of and Protocol II to the Geneva Conventions.
24 The Federation argues that this international legal principle has been most recently applied by an international tribunal in Western Sahara (Advisory Opinion). 1975 I.C.J. Rep. 12, in which the International Court of Justice, in determining a dispute between Mauritania and Morocco over control of the Western Sahara territory in the wake of Spanish withdrawal of colonial control, found that it had to determine each claimants ‘legal ties’ to the area in the context of the population's social and political organization.
25 The RS acknowledges that the principle of non recognition holds that title to territory acquired by a state by means of force is not legal and does not merit recognition by other states. The RS argues, however, that die principle has relevance only in circumstances in which a state has unilaterally seized the territory of another state in the course of conflict. That being so, the Federation lacks standing to rely on the concept of non recognition. Additionally, the RS argues that the RS cannot be held responsible for actions of irregular militia and Yugoslav military personnel which took place prior to the RS's own creation and without its control or direction.
26 The RS reasons that since the Dayton Accords represented a comprehensive settlement and resolution by the Entities, and since the accords provide that the RS should exercise control over Brcko Grad and a portion of the Brcko area that would provide a corridor between the two halves of the RS, the RS's legal jurisdiction over the territory at issue in the arbitration did not result from a unilateral act of aggression against die interests of a sovereign state, but was part of the international community's creation of a new political structure in the interest of achieving peace and stability.
27 The RS argues that Brcko was a relatively insignificant transportation center prior to the war. According to the RS, the port and rail facilities were used primarily for transportation of relatively small amounts of anthracite, iron and iron ore to local destinations (such as Tuzla and Zenica) and to other destinations within the former Yugoslavia. With the exception of receiving coal shipments from Russia, the port had no international commercial connections. Finally, the RS argues that the roads in the Brcko area are particularly unsuited for north-south commercial traffic and that roads, railways and port facilities outside the Brcko area will provide the most economical means for shipment of goods within Bosnia and internationally.
28 In support of its assertion, the Federation cites the examples of Katanga and Rhodesia, in which recognition was withheld by the international community due to the illegality of the attempted creation of the state, and the attempted creation of the Turkish Republic of Northern Cyprus and South Africa's “homeland states.“
29 The Tribunal notes that, during the Rome hearing, the RS itself brought to the attention of the Tribunal the fact that it was celebrating the fifth anniversary of its creation, thus placing its creation prior to the hostile events in question.
30 According to the RS, the map attached to Annex 2 depicts the IEBL located immediately to the south of the city of Brcko. The RS concludes that a status quo based upon the existence of a corridor connecting the eastern and western portions of the RS, with Brcko Grad subject to RS control, resulted from the Dayton Accords, and asserts that the Tribunal's decision must therefore be limited to deciding to what extent, if at all, the IEBL is to be moved south from the points currently indicated on the map. And yet at the Rome hearing and later the RS affirmatively disavowed any desire to have the Tribunal expand its territory.
31 According to the RS, Brcko is critical to the regional economic development plan of the RS. The RS asserts that the Brcko corridor is vital to the economic integration of the eastern and western halves of the entity. According to the RS, nearly 65 per cent of its manufacturing capability and commercial enterprises are based in the western half of the entity. Further, more than 60 per cent of the population lives in the western half of the Entity. By contrast, the majority of RS raw materials and resources - energy, mining and timber - are located in the eastern portion of the RS. Under this argument, the Brcko area must remain under the control of the RS to guarantee the transportation routes linking the two halves of the RS.
32 In support of its textual argument, the Federation cites Agreed Principles Article 2.1 which states: “[t]he 51:49 parameter of die territorial proposal of the Contact Group is the basis for settlement. This territorial proposal is open for adjustment by mutual consent.“ According to the Federation, the parties reached just such a mutual agreement at Dayton, where they set the IEBL throughout Bosnia, with the only exception being that the status of die IEBL in Brcko would be determined by arbitration.
33 See John Dugard, Recognition and the United Nations 135 (1987).
34 See 1 Oppenheim's International Law 183-84 (Robert Jennings ' Arthur Watts, eds. 1992).
35 See, discussion of the examples of the application of the doctrine in the cases of Katanga and Rhodesia, cited in John Dugard, Recognition and the United Nations 86-98 (1987).
36 The United Nations Security Council, in invoking Chapter VII of the United Nations Charter as a basis upon which to call upon the international community to impose of variety of sanctions on parties in the former Yugoslavia, explicitly recognized the applicability of the doctrine to actions in the region. See Security Council Resolution 836, U.N. Doc. S/RES/836 (1993), in which the Security Council, acting under Chapter VII of the United Nations Charter, “[reaffirms the unacceptability of the acquisition of territory by the use of force and the need to restore the full sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa). 1971 I.C.J. Rep. 16 (“Namibia Case'“).
37 The Constitution of Bosnia and Herzegovina specifically provides that the “Republic of Bosnia and Herzegovina … shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders.“ Constitution, Article 1(1). The Tribunal notes that the RS's decision to come to the negotiating table at Dayton, and its ultimate agreement to Article 1(1), is due in no small part to the decision on the part of the international community collectively to refuse to allow Serb aggression to be rewarded with a change in sovereignty in the region.
38 Western Sahara (Advisory Opinion). 1975 I.C.J. Rep. 12.
39 Indeed, this determination is in harmony with that reached by the I.C.J. in the Western Sahara case itself. There, the court, after determining that both Morocco and Mauritania had shown the existence of close ties with the nomadic tribes in the area, found that neither claimant had established an absolute right to sovereign control of the area. See Western Sahara (Advisory Opinion). 1975 I.C.J. Rep. at 68.(“[T]he materials and information presented … do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.“)
40 While the Tribunal has found that the RS's aggressive acquisition of the area cannot give rise to a legal basis for exercising administrative control over the area, this does not preclude the RS from asserting a separate legal basis for control over the area.
41 The Tribunal in this sense agrees with the assertion in the Statement of the Republika Srpska that, in reaching its result, “it is incumbent on the Tribunal to recall that the underlying linchpin of the Dayton Accords is to secure long term stability in Bosnia and Herzegovina through establishment of a viable relationship between its two Entities.” The Tribunal agrees that it must devise a solution aimed at establishing long term stability, and believes that only a solution that seeks to achieve full implementation of the GFAP in the Brcko area will do so.
42 The Tribunal is informed that there are international plans to build a river-crossing bridge at Orasje within the next two or three years, but until that time the Arizona route cannot provide an efficient crossing.
43 On 7 February 1997, just as this Award was in the last stages of preparation, the RS submitted an outline of possibly more lenient positions, but with an agreed deadline of 15 February 1997, there has been no opportunity for a true analysis of these last-minute proposals or a response by the Federation.
44 The Tribunal has also considered the application, either directly and by analogy, of other possibly relevant legal principles concerning the acquisition of territorial control. Specifically, the Tribunal has considered the application of such principles as: uti possidetis juris, see, e.g.. Frontier Dispute Case (Burkina Faso v. Republic of Mali. 1986 I.C.J. Rep. 554; see also Conference on Yugoslavia, Arbitration Commission Opinion 3 (Jan. 11, 1992) 31 I.L.M. 1499 (1992); the right to self-determination, see, e.g.. Namibia Case. 1971 I.C.J. Rep. 16; and occupation and prescription, see, e.g.. Minquiers and Ecrehos Case (France v. United Kingdom). 1953 I.C.J. Rep. 47. The Tribunal finds that an application, either directly or by analogy, of these principles to the instant dispute provides no clear basis for a final and binding award.
45 See Cayuga Indians (Great Britain) v. United States. 6 R.I.A.A. 173 (1926). In Cayuga Indians). Great Britain and the United States agreed to binding arbitration of a dispute in accordance “with treaty rights and with principles of international law and equity.“ The tribunal, after considering this provision, concluded that [a]n examination of the provisions of the arbitration shows a recognition that something more than the strict law must be used in the grounds of decision of arbitral tribunals in certain cases; that there are cases in which like the courts of the land these tribunals must find the grounds of decision, must find the right and the law, in general considerations of justice, equity and right dealing, guided by legal analogies and by the spirit and received principles of international law. Id at 180. See also Hersh Lauterpacht, 1 International Law 85 (1970). According to Lauterpacht, [e]quity, in its wider sense as connoting ideas of fairness, good faith and moral justice, is a source of international law to the not inconsiderable extent to which it may be regarded as forming part of general principles of law recognized by nations … [w]hile securing moral justice is an essential object of the law, that object cannot always be achieved. It must yield, in particular cases, to requirements of certainty, stability and fulfillment of legitimate expectations - all of which are directly related to moral justice. It is in that sense that there must be understood the various treaties providing for arbitral settlement of disputes … on the basis of ‘law and equity’ …
46 See North Sea Continental Shelf. 1969 I.C.J. Rep. 3; see also Continental Shelf (Libyan Arab Jamahiriva/Malta). 1985 I.C.J. Rep. 13); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States). 1984 I.C.J. Rep. 246; Continental Shelf (Tunisia/Libyan Arab Jamahiriva). 1982 I.C.J. Rep. 18. In the Continental Shelf (Tunisia/Libya) case, Judge Arechaga, in a separate opinion, reasoned that [t]o resort to equity means, in effect, to appreciate and balance the relevant circumstances of the case, so as to render justice, not through the rigid application of general rules and principles and of formal legal concepts, but through the adaption and adjustment of such principles, rules and concepts to the facts, realities and circumstances of each case … [i]n other words, the judicial application of equitable principles means that a court should render justice in the concrete case, by means of a decision shaped by and adjusted to the relevant “factual matrix” of that case. Equity is here nothing more than the taking into account of complex historical and geographical circumstances the consideration of which does not diminish justice but, on the contrary, enriches it. Continental Shelf (Tunisia/Libya). 1982 I.C.J. Rep. 100, 106. (Arechaga, J, Sep. Op.).
47 See, e.g.. Maritime Delimitation in the Area Between Greenland and Jan Maven (Denmark/Norway). 1993 I.C.J. Res. 38, 211 (J. Weeramantry, Sep. Op.). In his separate opinion, Judge [Vice President] Weeramantry suggests that the tribunal may appropriately consider equity as encompassing a series of considerations : equity as a basis for “individualized” justice tempering the rigors of strict law; equity as introducing considerations of fairness, reasonableness and good faith; equity as offering certain specific principles of legal reasoning associated with fairness and reasonableness, to wit, estoppel, unjust enrichment and abuse of rights: equity as furnishing equitable standards for the allocation and sharing of resources and benefits; equity as a broad synonym for distributive justice and to satisfy the demands for economic and social arrangements and redistribution of wealth.Id at 613.
48 See Continental Shelf (Libyan Arab Jamahiriva/MaltaV 1985 I.C.J. Rep. 38-9 (“It is however the goal the equitable result and not the means to achieve it, that must be the primary element“). See also Continental Shelf (Tunisia/Libyan Arab Jamahiriva). 1982 I.C.J. Rep. 18. In the Tunisia/Libya case, the I.C.J. reasoned that [i]t is, however, the result which is predominant; the principles are sub ordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result. It is not every such principle which is in itself equitable; it may acquire this quality by reference to the equitableness of the solution. The principles to be indicated by the Court have to be selected according to their appropriateness for reaching an equitable result. From this consideration it follows that the term “equitable principles” cannot be interpreted in the abstract; it refers back to the principles and rules which may be appropriate in order to achieve an equitable result.
49 Id. at 59.
50 Without attempting a complete listing, some of the costs incurred to date are those of the UNPROFOR operation, the provision of food and humanitarian supplies, the EU administration in Mostar, the 60,000-person IFOR program, and the numerous other post-Dayton implementation efforts including those of the Office of the High Representative, the OSCE voting project, the IPTF, the UNHCR, and the many additional official and unofficial agencies.