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In
accordance with Article 10 of the 1899 & 1907 Conventions, the
procedure is regulated by the Convention for the inquiry. The
language of the Articles is different: while the 1899 Convention
provided explicitly that the Convention for the inquiry “settles
the procedure”, the 1907 Convention holds that the Convention for
the inquiry “determines … generally speaking, all the conditions
upon which the parties have agreed.” and further holds that “the
Contracting Powers recommend the following rules, which shall be
applicable to the inquiry procedure in so far as the parties do not
adopt other rules.” (Art. 17). Under the 1907 Convention, the
commission is also “entitled to settle the details of the
procedure not covered by the special Inquiry Convention or the
present Convention, and shall arrange all the formalities required
for dealing with the evidence.” (Art. 18).
With
the exception of the abovementioned provisions, regulation of the
procedure by the 1899 Convention is very limited, hence the
following is based on the 1907 Convention. The parties submit
material to the Commission that might assist in performance of its
task. In its turn, the Commission is entitled to request further
materials from the parties and, with the consent of the parties, to
move to another location in order to conduct its investigation.
Parties also undertake to use domestic law, if necessary, in order
to enforce summons issued by the Commission for the purpose of
making witnesses and experts available for its hearing. Any visits
or requests made by the Commission, and that concerned the territory
of another state, required a prior approval by that state. In all
cases though, such activities took place through the governments of
the states on which territory witnesses or experts were located.
There are two major stages to the proceedings: oral and written,
with the latter being optional. During the oral proceedings, agents
of the parties participate only in so far as they can listen to the
testimonies of witnesses and experts, they cannot cross-examine
them. Any questions parties might have to witnesses can be asked
solely through the President of the commission, who conducts the
interviews, with other members of the Commission also able to ask
questions. During the written proceedings, agents for the parties
can submit their statements to the Commission and the other party.
Proceedings are not public and remain confidential. Finally, the
Commission prepares a Report and, after announcing it at the public
meeting, provides copies to both parties.
See
'documents' for general comments on the 1997 Optional Rules.
The
1997 Optional Rules introduced several changes into the procedure of
the Commission. First, the proceedings are now initiated by an
‘invitation’ sent by one party to another. Lack of response or
rejection most obviously means impossibility of establishing a
commission. Second, in contrast to the 1899 & 1907 Conventions,
at the beginning of the proceedings parties not only submit
materials related to the factual background, but also their opinions
on the subject. This latter step is still optional, and takes place
upon determination by the Commission (Art. 11). Third, the
Commission would also determine “the method of obtaining oral
testimony”, which implies it is in contrast to the provisions of
the 1907 Convention; the representatives of the parties may be
allowed to cross-examine witnesses and experts during the oral
hearing.
As
a general comment, the 1997 Optional Rules are much more focused on
the actions of the parties than the 1907 Convention. The latter gave
a significant procedural role to the Commission, assigning to
parties the role of the ‘source of information’ rather than
participants in the proceedings.
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