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ARBITRAL TRIBUNAL FOR
DISPUTE OVER INTER-ENTITY BOUNDARY IN BRCKO AREA
____________________________________
The Republika Srpska
Arbitration for the Brcko Area
v.
The Federation of Bosnia and Herzegovina
___________________________________
Appearances:
For the Republika
Srpska:
Mr. Nikola Kostich
Styler Kostich LeBell
Dobroski & McGuire
Dr. Delbert D. Smith
Mr. John M. Adams
Reed Smith Shaw & McClay
For the Federation of Bosnia and Herzegovina:
Mr. Frank McCloskey
Mr. Edward O. Delaney
Barnes & Thornburg
Mr. Jay D. Zeiler
Akin, Gump, Strauss, Hauer & Feld
TABLE OF CONTENTS
I.
INTRODUCTION
II. PROCEDURAL
HISTORY
III. PRELIMINARY RULINGS
A. Authority of the Tribunal to Act When One Member Refuses to
Participate
B.
Jurisdiction
IV. FACTUAL
BACKGROUND
A. The Brcko Area Before the
War
B. Effects of the War on the Brcko
Area
C. Brcko Since Dayton
Accords
V. CONTENTIONS OF THE
PARTIES
A. Contentions of the
Federation
B. Contentions of the
RS
VI. REASONS FOR THE
AWARD
A. Legal
Considerations
B. Equitable
Considerations
C. The Tribunal’s Authority to Frame the
Present Award
VII.
AWARD
VIII.AUTHENTICITY
1. On 14 December 1995, after
over three and a half years of war in Bosnia and Herzegovina, the Republic of
Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina ("Federation")
and the Republika Srpska ("RS"), as part of the General Framework Agreement for
Peace in Bosnia and Herzegovina (“GFAP” or “Dayton Accords”), signed Annex 2 of
the GFAP, which entered into force upon signature of the parties1, and provided for the establishment of an
“Inter-Entity Boundary Line” (“IEBL”) between the Federation and the RS
throughout Bosnia and Herzegovina. The parties having failed to reach agreement
during negotiations in Dayton on the allocation of Entity-control in the Brcko
area, Article V of Annex 2, entitled “Arbitration for the Brcko Area”, provided
that the parties “agree to binding arbitration of the disputed portion of the
Inter-Entity Boundary Line in the Brcko Area.”
2. Article V provides for the
selection of a three-member arbitral tribunal. Under Article V(2), the
Federation and the RS agreed that “no later than six months after the entry into
force of this Agreement, the Federation shall appoint one arbitrator, and the
Republika Srpska shall appoint one arbitrator”. Pursuant to this provision, the
Federation appointed professor Cazim Sadikovic and the RS appointed Dr. Vitomir
Popovic as arbitrators. Each party selected its arbitrator without objection or
challenge from the other party.
3. Article V(2) further
provides that
(a) third arbitrator
shall be selected by agreement of the Parties’ appointees within thirty days
thereafter. If they do not agree, the third arbitrator shall be appointed by the
President of the International Court of Justice. The third arbitrator shall
serve as presiding officer of the arbitral tribunal.
After the party-appointed arbitrators failed to appoint a third arbitrator
within the required time, the president of the International Court of Justice,
on 15 July 1996, appointed Roberts B. Owen as third arbitrator and presiding
officer of this Tribunal.
4. Article V also provides
for the substantive and procedural rules under which the arbitration would
proceed. Under Paragraph 3, the parties agreed that unless otherwise agreed by
the parties, the proceedings shall be conducted in accordance with the UNCITRAL
rules. The arbitrators shall apply relevant legal and equitable principles.
5. Although Article 31 of the
UNCITRAL Rules contemplates that in normal circumstances "any award or other
decision of the arbitral tribunal shall be made by a majority of the
arbitrators," the parties can always agree on a different procedure, and in this
case they have so agreed. It was understood at Dayton, as
subsequently confirmed in writing, that if a majority decision of the Tribunal
is not reached, "the decision of the presiding arbitrator will be final and
binding upon both parties."2 It may be observed that such an agreement was in fact a virtual necessity
in this particular case: from the outset the positions of the two parties
on the merits have been polar opposites and each party has explicitly refused to
compromise. These polar positions and accompanying intense animosities,
consistently in evidence from the opening of the Dayton conference onward, made
clear from the outset that any party-appointed arbitrator would encounter
significant difficulties in conducting himself with the usual degree of
detachment and independence. The parties therefore decided to change the rule on
decision-making in view of the substantial likelihood that an arbitral
resolution could be achieved only by the two parties' agreeing that the rulings
of the Presiding Arbitrator will be treated as decisive.
6. Article V(5) of Dayton Annex 2 calls for a
Tribunal decision "no later than one year from the entry into force" of the
agreement — i.e., by 14 December 1996 — but the parties have agreed, with the
consent and approval of the Tribunal, to extend the date until 15 February
1997.3
7. Shortly after his
appointment, the Presiding Arbitrator notified the other arbitrators and the
parties that a preliminary conference would be held in Sarajevo on 7 August 1996
in order to constitute the Tribunal and decide preliminary procedural issues
including scheduling of future proceedings. Thereafter, on 6 August 1996,
having been informed of somehesitation on the part of Republika Srpska as to
whether it would actually participate in the proceedings, the Presiding
Arbitrator visited Pale, conferred with Dr. Popovic and senior RS officials, and
conveyed the message that the RS was bound by its Dayton treaty obligations to
participate and that it was in the best interests of RS to do so in order to
present its side of the dispute to the Tribunal. On 6 August,
however, Dr. Popovic announced his decision not to appear at the conference
scheduled for the next day.
8. On 7 August 1996 the
Tribunal, represented by the Presiding Arbitrator and Professor Sadikovic,
convened and held the preliminary conference in Sarajevo. At the
conference, the Federation was represented by counsel. Neither Dr. Popovic
nor any representative of the RS attended. During the conference, the
Tribunal heard argument from Federation counsel concerning various procedural
issues, including the scheduling of written submissions andoral hearings. At the
conference, Federation counsel also argued that certain UNCITRAL Rules were
inapplicable to the proceedings, and pointed out that the silence of the
UNCITRAL Rules on the question of admissibility of evidence suggested the need
to adopt a set of guiding evidentiary principles.
9. Immediately after the
conclusion of the 7 August conference the Presiding Arbitrator prepared a draft
"Pre-Hearing Order." The draft was sent to counsel for the Federation for
comment, and on 8 August 1996 the Presiding Arbitrator again visited Pale and
delivered to senior RS representatives a copy of the draft "Pre-Hearing
Order." The Presiding Arbitrator described to the RS representatives the
discussions that had occurred the previous day, explained the suggested
provisions of the draft order, invited RS to make any comments it might wish,
but received no immediate response.
10. Six days later, on 14 August 1996, after
receiving comments from Federation counselbut nothing from RS, the Presiding
Arbitrator issued the final version of thePre-Hearing Order. The Order was
served upon counsel for the Federation, upon political officials of the RS, and
upon Dr. Popovic. In that order, the Tribunal ruled that
1. Neither party having voiced any
objection as to any of the three arbitrators asselected by the parties and by
the President of the International Court of Justice, the Tribunal shall be
constituted in accordance with such selections.
* * *
4. Procedurally, the Tribunal will
be guided by the UNCITRAL Rules (except for Rules 3, 18, 19, and 20, which shall
not be applicable). As to the admissibility of evidence, the Tribunal will
be guided by the principles set forth in the Appendix to this Order.4
11. The Pre-Hearing Order further established
deadlines for the submission of, and response to, "First" and "Second" written
statements by each party. As to the First Statement, the Order
provided that
each party shall submit a First Statement (a) describing all essential facts
that the party believes the Tribunal should consider in reaching its decision;
(b) stating, and providing supporting authority (if any) for, all principles of
law and equity that the party believes applicable; and (c) identifying all
witnesses whose testimony the party intends to present and summarizing that
testimony.
12. As to the Second Statement, the Order
provided thateach party shall submit a Second Statement that describes in detail
a proposed plan for the economic and political structure of the Brcko area,
consistent with the Dayton General Framework Agreement and its Annexes. The
Order further provided that the plan should address a number of specific factors
relevant to the dispute.5
13. Pursuant to the 14 August Order,
the Federation timely filed its First and Second Statements.6 Both filings were served upon political
officials of the RS and upon Dr. Popovic.
14. On 17 September 1996, having
received no pleadings from the RS, the Presiding Arbitrator convened a status
conference in Vienna to consider, among other things, the reasons for RS's
non-participation in the arbitration. The arbitrators and both parties
were notified of and invited to the conference, which was attended by the
Presiding Arbitrator and Professor Sadikovic, counsel for the Federation, and a
delegation of political officials representing the RS. Dr. Popovic
did not attend the meeting. At the conference, the RS argued that the
Tribunal was without jurisdiction to proceed because (1) the RS interpreted
Annex 2, Article V(l) as authorizing an arbitration only if the "disputed
portion" of the IEBL was "indicated on [a] map" included in the Appendix to
Annex 2 and (2) there was no map showing the disputed portion of the IEBL in the
Brcko area. Without ruling on the issue, as to which neither side had made
a written presentation, the Presiding Arbitrator indicated that under the
UNCITRAL Rules such jurisdictional rulings could be deferred until the issuance
of a final award, and strongly encouraged the RS to designate legal counsel and
begin to participate in the formal arbitral proceedings. At the conference
the Presiding Arbitrator provided the RS delegation with a Dayton map showing
the IEBL in the Brcko area and indicating (by footnote) that the location of the
line in the Brcko area was subject to arbitration.
15. On 1 October 1996, at the
request of legal counsel retained by the RS, the Presiding Arbitrator held a
meeting with such counsel in Washington, D.C., and discussed the status of the
proceedings. While RS counsel stressed that they had not yet been
authorized by their client to participate in the proceedings, the Presiding
Arbitrator provided to RS counsel a memorandum describing the procedural history
of the arbitration to that date.
16. On 16 October 1996, the
Presiding Arbitrator, after notifying Professor Sadikovic and the Federation and
hearing no objection from either, held an ex parte conference in
Washington, D.C. with political officials from the RS in order to continue to
seek a solution to RS's continued non-participation in the proceedings. At
this meeting, the RS was also represented for the first time by legal counsel,
who advised the Presiding Arbitrator that, although Dr. Popovic was in
Washington at the time, he had decided not to attend the meeting.
After reiterating their earlier jurisdictional arguments, the RS representatives
indicated that the RS might decide to file papers with the Tribunal.
The RS further indicated that, if it did decide to participate in the
proceedings, it would request that the Tribunal defer its decision from the
prescribed date (14 December 1996) until 15 February 1997.
17. On 31 October 1996, the
Presiding Arbitrator sent a letter to counsel for RS to confirm that any papers
the RS wished to submit to the Tribunal must be presented no later than 14
November, with the possible exception of short additions merely supplementing
points previously presented in writing. Thereafter, at the request of RS
counsel, the deadline for the RS's submission of papers was extended until 22
November.
18. On 22 November 1996, the RS
filed: (1) an "Emergency Request for an Expedited Interim Award,"
and (2) a "Special Appearance and Jurisdictional Statement," including as an
Appendix a "Statement of the Republika Srpska." In the "Emergency Request
for an Expedited Interim Award," the RS requested, pursuant to Article 32(1) of
the UNCITRAL Rules, an Interim Award (i) clarifying the scope of the Tribunal's
jurisdiction; (ii) confirming that the Tribunal had not prejudged the merits of
the case before it; and (iii) ordering that all activities and communications
related to the proceedings be confidential and limited in distribution to the
parties and their counsel.
19. Promptly thereafter, the
Tribunal issued a Memorandum to the Parties which denied the RS request for an
Interim Award clarifying the scope of the Tribunal's jurisdiction. At that
time the Federation had not had an opportunity to respond to the RS's
Jurisdictional Statement. The Memorandum further indicated that the
Tribunal had not prejudged the case before it and would continue, as before, to
observe procedures designed to maintain the confidentiality of the
proceedings.
20. On 27 November 1996, acting on
the 16 October 1996 request of the RS and with the agreement of the Federation,
the Tribunal extended the time for completion of the arbitration to and
including 15 February 1997.
21. On 1 December 1996, Gojko
Klickovic, President of the Government of Republika Srpska, wrote a letter to
the Presiding Arbitrator stating that RS did not intend to participate further
in the arbitration proceedings and purporting to revoke the decision of the RS
to appoint Dr. Popovic as its chosen member of the arbitral tribunal.7 The letter claimed the RS actions were justified
because "guarantees for a fair and just procedure do not exist, and
. . . [the Presiding Arbitrator] intend[s] to use the
arbitration process strictly as a smoke screen for the imposition of a
pre-ordained, unjust decision, all to the harm of the legitimate and vital
interests of Republika Srpska." The letter concluded by stating that the
RS would consider any future Tribunal decisions to be invalid.
22. On 11 December 1996, the
Presiding Arbitrator responded to President Klickovic's letter of 1 December
1996, stating the view that the RS's proposed actions would clearly violate its
treaty obligations under the Dayton Accords and encouraging both the RS and Dr.
Popovic to participate in future proceedings so that the Tribunal, at the time
it rendered its Award, would have the benefit of the views of all concerned.
23. On 12 December 1996, the
Federation submitted three documents in response to the 1 December 1996 letter
from President Klickovic. First, the Federation submitted a formal
"Response" that argued that the RS could not, under the UNCITRAL Rules, withdraw
the appointment of its arbitrator and stated that the purported withdrawal from
the proceedings could not prevent the Tribunal from continuing the
arbitration. Second, the Federation submitted a "Request for a Final
Ruling and Default Judgment" in light of the withdrawal of the RS.
Finally, the Federation offered a "Proposed Final Default Order."
24. In mid-December 1996
theTribunal solicited the parties' views as to the Tribunal's proposal to hold a
hearing commencing in the first week of January 1997. When neitherparty
made any objection, the Tribunal notified the parties that a hearing would take
place in Rome commencing 8 January 1997.
25. On 3 January 1997, the
Federation submitted a "Response to the Republika Srpska's Jurisdictional
Arguments and Arguments on the Merits."
26. The hearing commenced on 8
January 1997 with all three arbitrators in attendance. Despite the previous
"withdrawal," the RS was represented in full: three counsel from two U.S. law
firms appeared for the RS; and various RS political figures, including Minister
Aleksa Buha, also attended throughout. The Federation was also fully
represented by legal counsel and a political delegation headed by Vice President
Ejup Ganic. The hearing, which lasted nine days, included opening
statements by counsel, testimony by 19 witnesses (eight called by the
Federation, nine by the RS, and two by the Tribunal itself), and
closingarguments. In addition, the Tribunal received during the
proceedings various written and evidentiary submissions by both
parties. Most significantly, the Tribunal received from the RS a
written submission entitled "Basic General Principles for the Economic
Integration of Republika Srpska and the Free Movement of Goods, Services and
People Through the Brcko Area." While not timely filed, the submission -
in essence representing the RS's Second Statement -- was accepted in order that
the RS would have on file a complete set of pleadings in accordance with the
Tribunal's 14 August 1996 Order.
27. Following the Rome hearing, the
Tribunal conducted its deliberations in Washington, D.C. All three
arbitrators were present and fully participated in the deliberations.
However, during the last day of deliberations both Professor Sadikovic and Dr.
Popovic refused to sign the Award.
28. An initial inquiry is whether
the Tribunal's authority to render a binding arbitral award is affected by (a)
President Klickovic's letter of 1 December 1996, purporting to effect a
withdrawal from the arbitral proceedings, or (b) Dr. Popovic's refusal to
participate in certain pre-hearing proceedings or to sign the Award, or (c)
Professor Sadikovic's refusal to sign the Award.
29. As to item (a), it is deprived
of any legal significance by the fact that the RS, subsequent to the Klickovic
letter, fully participated in the Rome hearing and, indeed, completed its
submission of written pleadings requested in the 14 August Pre-Hearing
Order. The RS has had a full opportunity to present its case to the
Tribunal, thereby curing any question raised by the Klickovic letter.
30. As to (b) and (c), the Tribunal
notes that Dr. Popovic also has cured any question relating to his early
non-participation by fully participating in the Rome hearing and in the
Tribunal's subsequent deliberations. As to the refusal by both Dr.
Popovic and Professor Sadikovic to sign the Award following full deliberations,
the UNCITRAL Rules do not deal expressly with the question of the legal
significance of such a refusal, but other tribunals have interpreted those Rules
as authorizing the tribunal to proceed to a decision despite the refusal of an
arbitrator to sign. See, e.g., Saghi v. Iran. Award No. ITL
66-298-2, 14 Iran- U.S. C.T.R. at 3-8; see also Stephen Schwebel, International
Arbitration: Three Salient Problems 279 (1987).8 Moreover, as noted in paragraph
5 above, the parties have agreed to modify the UNCITRAL Rules in order to
provide that if a majority decision of the Tribunal is not reached, "the decision of the presiding
arbitrator will be final and binding upon both parties."
31. For these reasons, the Tribunal
concludes that there exists no impediment to the Tribunal's rendering its
Award.
32. The Federation argues that a
basic aspect of the dispute that the parties agreed in Dayton to submit to
arbitration is the question whether the town of Brcko ("the Grad") and the
surrounding municipality ("the Opstina") should be included in the territory of
the RS or in the territory of the Federation. The Federation argues that
the Tribunal has jurisdiction and authority to resolve this basic issue and
related issues as to the future administration of these areas.
33. The RS advances two basic
arguments as to the Tribunal's jurisdiction. It asserts, first, that
the Tribunal has authority only to resolve the final placement of the IEBL in
the Brcko area. Indeed, the RS has argued that the Tribunal has
jurisdiction only to move the IEBL to the south of its present temporary
location. Second, the RS asserts that it never understood at Dayton
that a possible outcome of the arbitration might be a transfer of Brcko Grad
from RS to Federation territory. The RS misunderstood the facts at Dayton,
it asserts, with the alleged result that there has been an error or mistake of
fact that invalidates the arbitration agreement under Article 48(1) of the
Vienna Convention on the Law of Treaties ("Vienna Convention").9
34. In determining whether and to
what extent it may properly exercise jurisdiction in the instant case, the
Tribunal must of course look to the language of GFAP Annex 2. See
Article 31(1), Vienna Convention on the Law of Treaties (a treaty "shall 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 its object and
purpose").10 If the meaning of the terms
are ambiguous or obscure, recourse may be had to supplementary
means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning ... or to
determine the meaning.
Article 32, Vienna Convention on the Law of Treaties.
35. Annex 2 contains two relevant
provisions. First, and most important, Article V -- entitled "Arbitration
for the Brcko Area" ~ provides that the Parties agree to binding arbitration of
the disputed portion of the Inter- Entity Boundary Line in the Brcko area
indicated on the map attached at the Appendix.
Second, the Appendix to Annex 2 provides that
the Appendix to Annex 2 consists of (a) a 1:600,000 scale UNPROFOR road Map
consisting of one map sheet, attached hereto; and (b) a 1:50,000 scale
topographic Line Map, attached hereto.
Such maps are incorporated as an integral part of this Appendix, and the
Parties agree to accept such maps as controlling and definitive for all
purposes.
36. The ordinary meaning of the
language used in Article V(l), read in context and in light of the object and
purpose of the Article, shows that a dispute exists between the RS and the
Federation as to their respective claims for control in the Brcko area (as that
area was indicated on the maps contained in the Appendix to Annex 2), and that
the parties agreed to resolve this dispute by creating an international arbitral
tribunal and submitting the issue to the tribunal for binding arbitration.
The provision, however, contains several ambiguities. The provision does not
explain the nature of the dispute and it makes the somewhat vague reference to
the "Brcko area." The wording of Article V(l) does not precisely define
the area, and the maps attached at the Appendix display, the territory of the
Brcko Opstina, including the town of Brcko itself, with the temporary boundary
line running through the opstina. Finally, the precise segment of
the boundary line that lies within the disputed area is not explicitly
identified either in the Annex or the map.
37. Turning to "supplementary means
of interpretation" to clarify these ambiguities, it is clear that the reason for
the lack of a precise definition of the nature of the dispute was the widely
divergent positions of the parties with respect to the situation that should
exist in the Brcko area after Dayton. During the Dayton negotiations, the
Federation delegation firmly took the position that Brcko Grad must be included
within Federation territory (and the IEBL placed accordingly), while the
delegation representing the Bosnian Serbs steadfastly held to the position that
the RS must control not only the Grad itself but also a "corridor" connecting
the two halves of the RS (and the IEBL placed accordingly). Indeed,
each party indicated during the Dayton negotiations that the possession
and control of Brcko was so important that, absent agreement, it would be
willing to quit Dayton and resume hostilities. Finally, after recognizing
that agreement could not be reached at Dayton, the parties agreed to submitthe
situation to binding arbitration. The fact that the geographic scope and/or
portion of the IEBL in "dispute" was not precisely defined, either in writing or
on the map itself, does not negate the existence of the dispute. Rather, it
underlines the magnitude and complexity of the dispute — and the reason the
parties agreed to submit to binding arbitration as a means to resolve it.
Moreover, the lack of a precise definition presents no impediment to the
Tribunal's work: as in any arbitral matter, the exact contours of the
dispute are defined by the parties' contentions during the arbitral process.
38. As demonstrated in the preceding paragraph,
it is clear that the fundamental nature of the dispute concerns the
mutually-exclusive demand that each Entity exercise sole control of the Brcko
area. It seems clear that the Tribunal's jurisdiction was intended by the
parties to be sufficiently broad to resolve the overall dispute that the parties
placed before it. This might include, inter alia, granting the Federation
exclusive control of Brcko Grad and the surrounding area by moving the IEBL to
the Sava River, or, going to the other extreme, to move the IEBL southward to
widen the corridor and thus enhance RS territory. It must also mean that the
Tribunal has the power to fashion a remedy representing a compromise between the
parties' extreme positions. The Tribunal has taken note of the RS's arguments to
the contrary — the contention being that no action of the Tribunal can properly
affect "the future governance of contiguous areas on either side of the IEBL."
Such an interpretation, however, would render the Tribunal powerless to perform
its central arbitral task. And as to the RS suggestion that the Tribunal was
intended to have power to widen the corridor but in no circumstances to narrow
it11, there is absolutely nothing in either the
language of Annex 2 or the negotiating history to suggest
that the parties intended such an unequal bias in favor of RS interests.
39. The absence of any precise
definition of the scope of the parties' dispute is also atleast partially
explained by the fact that the issue of the parties’ respective claims to
Brckocame to a head only in the closing hours and minutes of the Dayton
Conference. An agreement of some kind on the issue had been urgently sought by
the mediating governments for 21 days. Negotiations on the point finally
broke down, as the Conference was about to end. Under the circumstances
the definition of the exact scope of the dispute was left open, to be resolved
through the process of arbitration.
40. Pursuant to UNCITRAL Rule 21,
the Tribunal decides that Annex 2, Article V(l) gives it jurisdiction to
consider and resolve the dispute as defined within the parameters of the
parties' disagreement at Dayton and the claims they assert here. At Dayton, and
throughout these proceedings, the Federation has consistently argued that the
Brcko area, and in particular Brcko Grad, must fall exclusively within its
territory and that the IEBL should be located accordingly. At Dayton and
subsequently, the RS also argued for exclusive control of a corridor extending
from the Sava River to points as far as twenty kilometers south-west of Brcko
Grad or, at a minimum, for maintaining the IEBL as shown on the Dayton maps
without any political changes of any kind.12 The Tribunal has jurisdiction to resolve these conflicting
claims in light of relevant legal and equitable principles.
41. Further aspects of the
Tribunal's jurisdiction, including the scope of the Tribunal's remedial
authority to fashion an Award in light of relevant legal and equitable
principles, will be discussed later in this decision.
42. A number of factual assertions
concerning the history and demographic make-up of the Brcko area before the war
have not been disputed by the parties. The Brcko area is situated in a
low-lying valley along the Sava River in northern Bosnia and Herzegovina near a
nexus of the current boundary lines of Bosnia and Herzegovina, the Republic of
Croatiaand the Federal Republic of Yugoslavia. Historically, the area has
represented a cross-roads between peoples and empires.13 As a result, the area
for centuries has been home to a rich mix of Serb, Croat, Bosnian and other ethnic groups, the Orthodox
Christian, Catholic, and
Muslim religions, and European and Eastern
cultures.
43. Brcko Grad, located along the
Sava River in the northernmost corner of the area, wasfounded in the fifteenth
century at a time when the area was part of the Ottoman Empire. Brcko Grad has
historically consisted of a multi-ethnic cross-section of the area's population.
The area to the south and west of Brcko Grad has historically consisted of
smaller, ethnically homogenous villages and towns.
44. Over the centuries, the Brcko
area developed as both an agricultural and ~ because of its proximity to the
Sava River — a transportation center. In 1894, a railroad bridge
over the Sava River was constructed in Brcko Grad. This bridge was later
transformed into an automobile bridge when a more modern railway bridge was
constructed. In 1964, a port (the "Luka port") was constructed in
Brcko Grad. Prior to the outbreak of hostilities in 1992, the Brcko
port was one of only two Bosnian ports along the Sava River and was Bosnia's
only multi-modal (rail, road, water) transportation center.
45. As the Brcko area — both the
Grad and the surrounding area —developed,the population increased. The
most dramatic increase in the population occurred in the years following the
Second World War, when the area witnessed significant
economic
development. According to the last census of the area, taken
in 1991, the population of Brcko Grad - which in 1991 covered 5.93 square
kilometers -- was 41,346, of which 23,089 (56%) were Muslims, 8,254 (20%)
were Serbs, 2,869 (7%) were Croats, and 7,134 (17%) designated themselves as
belonging to some "other" ethnic group.14
According to the same census, the total
population of the Brcko Opstina was 87,332, of which 38,771 (44%) were Muslims,
18,133 (21%) were Serbs, 22,163 (25%) were Croats, and 8,265 (10%) designated
themselves as belonging to some "other" ethnic group.
46. Historically, Brcko Grad has
been an important economic center. While there are disputes about certain
statistics, data relating to the performance of various economic sectors in the
Brcko area are both available and largely undisputed. According to data
from the Socialist Federal Republic of Yugoslavia ("SFRY"),15 Brcko was seventh among
Bosnian towns in income generated from traffic and transportation and
communications.16 As arailway center in 1990, it ranked eighth both in terms of freight/cargo
traffic and passenger traffic, and ninth in terms of tonnage unloaded at Bosnian
rail stations. The Brcko Port — the only Bosnian port listed in the
SFRY statistical survey - handled 77,000 tons in 1990. Several large
manufacturing enterprises were located in Brcko Grad and the surrounding
area. These enterprises included the Bimal cooking oil plant, the
Bimeks meat processing
plant, the Tesla battery company, the Interplet
textile company, the Izbor shoe factory, and other smaller factories.
47. According to SFRY data, the
Brcko Opstina's 1989 gross income of 501 million dinar ranked it seventh among
Bosnian opstinas, trailing Sarajevo, Banja Luka, Mostar, Tuzla, Zvornik and
Zenica. Industry and mining generated half of this income, placing Brcko
eighth in this category among Bosnian towns. Its agriculture and
forestry sector accounted for roughly a quarter of its income, placing Brcko a
close fourth among Bosnian towns. Its wheat and corn yields — 4.0
and 4.2 tons per hectare, respectively — placed it among the top ten producers
in Bosnia.
48. In 1991, as the former
Socialist Federal Republic of Yugoslavia dissolved and the former constituent
republics began to declare themselves independent sovereign states, hostilities
erupted between Croatia and Serbia. Brcko Grad, which housed a Yugoslav
National Army (JNA) barrack, immediately found itself near the center of the
conflict. In late 1991 Serb paramilitary troops arrived in Brcko
Grad and began to train local Serb volunteers. At the same time, the JNA
confiscated weapons from the Bosnian Territorial Defense Force in Brcko.
49. By early 1992, the conflict had
spilled into the territory of Bosnia and Herzegovina. On April 7,
following formal recognition of the Republic of Bosnia and Herzegovina by the
European Community, Bosnian Serbs proclaimed an independent Serbian Republic of
Bosnia and Herzegovina and began to set up administrative structures in parts of
the country. On or about April 30, 1992, Serb forces - composed of
regular JNA forces and irregulars - began their assault on Brcko Grad. On
the first day of the assault, Serb forces destroyed the road and rail bridges
over the Sava River. The Serb forces encountered limited resistance in the
Grad, and after six days offighting Serb forces had taken control of the
Grad and an area extending several kilometers south and west of the Grad.
50. Over the
next several months, Serb forces occupying Brcko Grad forcibly expelledvirtually
the entire population of Muslim and Croat residents. During the
first two weeks of May, Muslims were arrested and detained in several locations
in Brcko Grad.17 The primary detention camp was the
Luka Port facility where as many as 5,000 inmates were detained at any given
time from May 1992 through July or August 1992. Up to three thousand
prisoners may have been killed in the Luka Camp, and all inmates were subjected
to inhumane living conditions and brutal treatment. By the end of the Serb
campaign, the demographic contours of the area had been radically shifted as
local populations of Muslims and Croats were forced to flee to areas held by
Muslim and Croat forces, and local Serb populations moved into areas held by
Serb forces.
51. After the
Serb assault on Brcko Grad in the spring of 1992, the Brcko area witnessed some
of the fiercest battles of the continuing war along a battle-line drawn only a
few kilometers south and west of Brcko. While Brcko Grad sustained some
damage, numerous towns and villages only a few kilometers south and west of the
Grad were totally destroyed. Significant civilian casualties were caused both as
an incident to the fighting and by inhuman treatment by occupying forces.18
52. At the time
of the signing of the Dayton Accords, the RS controlled some 48% of the
territory of the Brcko Opstina (representing an area of 225 square kilometers),
including Brcko Grad and the surrounding area, with the Federation controlling
approximately 52% (representing 239 square kilometers).
53. It is
estimated that between 32,000 and 37,000 people currently live in Brcko Grad,
and that of this number between 31,000 and 36,000 of the town's inhabitants are
Serbs. Of the Serb population, approximately 8,000 are pre-war residents
who have remained in Brcko Grad; some 8,000 to 10,000 are former residents of
towns in the Brcko Opstina who moved into the Grad after the Muslim and Croat
population was displaced; and the remainder are displaced persons from the
Krajina, Sarajevo, and a number of Bosnian towns. Approximately 15,000 Serbs
live outside of Brcko Grad on the RS side of the provisional IEBL. The
majority of Muslims displaced from Brcko Grad now live in Rahic Brcko and other
towns in the Brcko Opstina under Federation control. The ethnic Croat
population of the Opstina, numbering approximately 30,000, is now concentrated
in Federation territory to the south-west of Brcko Grad.
54. In Brcko
Grad, there has been, at best, only minimal implementation of the Dayton
provisions relating to the right of the former residents to return and reclaim
their property. Even with UNHCR guidance and coordination, apparently only
fifteen Muslim families have thus far returned to Brcko Grad. Fear is
undoubtedly the major impediment. South of the Grad, where Muslims have
attempted to reconstruct homes, 27 such homes have been destroyed by
bombings. The majority of these bombing cases have not been solved by the
local RS police.
55. There is a
critical need for repairs to damaged housing in Brcko Grad. According to
UNHCR, currently some 12,200 houses are in need of repair. Of this total, 8,500
are homes of Muslims, 2,500 are Croat homes, and 1,200 are Serb homes.
56. Economic
activity in the Brcko area was brought to a virtual standstill by the war, and
none of the principal enterprises in Brcko Grad has resumed operations.
The Port is not operational both because the Sava River is no longer navigable
(and will not again be navigable until the river is dredged) and because of the
damage sustained by the port's facilities. The rail bridge has not yet
been repaired, and rail lines in the Brcko area also need extensive
repairs. While IFOR partially reconstructed the road bridge to allow
single lane traffic to cross, significant further repairs are needed in order to
add a second lane and enable heavy vehicles to use the bridge.
57. Economic
activity in the area is, for the most part, now concentrated in the Arizona
Market, located on the Federation side of the IEBL on the Donja Mahala-Orasje
Road19 to the southwest of Brcko Grad. Here,
under the tacit sponsorship of and with security provided by IFOR (now SFOR),
local authorities have allowed Muslim, Croat and Serb traders to set up a market
for a variety of foodstuffs and household goods.
V.
CONTENTIONS OF THE PARTIES
58. Emphasizing
that Annex 2, Article V(3) provides that "the arbitrators shall apply relevant
legal and equitable principles," the Federation seeks application of treaties to
which Bosnia and Herzegovina and Yugoslavia are parties, as well as principles
of customary international law, and specifically argues that the international
legal doctrine of non-recognition must be applied in the instant case.
According to the Federation, the modern doctrine of non-recognition provides
that, when an act alleged to create a new territorial right was done in
violation of an existing rule of customary or conventional international law,
the act in question is invalid and cannot produce benefits for the wrongdoer in
the form of new legal rights or otherwise.
59. As to the
application of the doctrine of non-recognition, the Federation argues: (1) the
RS conducted a campaign of ethnic cleansing in the Brcko area; (2) this campaign
violated peremptory international norms relating to non-aggression, human
rights, and the laws of war; and (3) the Tribunal is therefore precluded from
legitimizing the results of RS aggression by leaving undisturbed the
consequences of the ethnic cleansing campaign, and in fact must reverse the
effects of such acts by re-establishing the prior demographic identity of the
area and granting the territory to the Federation.
60. In order to
establish factually the nature of RS conduct in the area during the war, the
Federation first cites various factual findings and determinations by the United
Nations that, in the view of the Federation, establish that an ethnic-cleansing
campaign occurred in Brcko — and then asserts that this Tribunal should be bound
by those factual findings. Second, the Federation has presented both
affidavits (from witnesses to the atrocities committed in the area) and, during
the hearings, live testimony (from witnesses who had either seen many of the
events or had interviewed eye-witnesses and victims while compiling reports on
atrocities in the area). Finally, the Federation has drawn the attention
of the Tribunal to numerous public documents that catalogue the atrocities
committed in the Brcko area. The Federation asserts that such evidence
establishes a pattern of RS aggression in the Brcko area designed to expel the
Bosniac and Croat populations from Brcko Grad.20
61. The Federation argues
that the RS aggression in the Brcko area violated a variety of peremptory norms
of international law. Noting that the United Nations Security
Council and other organs have repeatedly found that the acquisition of territory
by the Bosnian and Yugoslav Serbs through ethnic cleansing violated
international law, the Federation argues that this Tribunal should be bound by
such United Nations findings of law.21 The Federation further
argues that the RS campaign in the Brcko area violated a core set of human
rights principles, including prohibitions against genocide and racial
discrimination,22 and a number of additional legal principles
applicable to international and domestic conflicts.23
62. In addition
to the doctrine of non-recognition, the Federation also asserts that historical,
demographic, cultural and other factors may give rise to a legal claim to a
territory even if these ties were originally to a people or entity which did not
constitute an independent state or hold traditional legal title over
territory.24 In effect, the Federation argues
that the Federation's people and cities have stronger historical and
socio-economic ties to Brcko than does the RS, and that the area should
therefore be placed under Federation control.
63. The
Federation also asserts that in applying relevant equitable principles, the
Tribunal may use equity either (1) as a means to temper the operation of strict
legal doctrines with concepts of justice and right dealing or (2) as a general
theory by which gaps in applicable law may be filled by applying concepts of
reasonableness and fairness.
64.
Specifically, the Federation argues that the equities in the case overwhelmingly
favor an award of the Brcko area to the Federation with the possibility of
assistance from an international presence. Since the RS conduct in
the Brcko area allegedly failed to conform to any acceptable ethical and moral
standard, the Federation argues that permitting the Serbs to maintain control
over Brcko, acquired through brute force and horrific violence, would reward
them for their reprehensible conduct and would fly in the face of the most
fundamental human values. It would also be inconsistent with
Dayton's principles, it is said, to leave Brcko in the hands of a regime which
has deprived Brcko of its economic assets, obstructed the right of Bosniacs and
Croats to return to their homes in the area, and conducted a campaign to force
Serbs to register to vote in the Brcko elections. Finally, the Federation
requests this Tribunal to weigh the importance of the Brcko area to the economic
development of the Federation, pointing out, among other factors, that (1) Brcko
represents the Federation's only link to important markets and products in
Europe; and (2) Brcko has the only multi-modal (rail, road, water)
transportation center with the capacity to serve the transportation needs of the
Federation's industrial and trade sectors.
65. On this
basis, the Federation argues that the Tribunal should move the IEBL north to the
Sava River so as to bring Brcko Grad and a large area south of Brcko Grad within
Federation territory. In the alternative, the Federation indicates its
readiness to accept an interim international presence in the area, acknowledging
that international oversight may be the only way to assure citizens of both the
Federation and the RS that a multi-ethnic Opstina can exist in peace and
prosperity.
66. In its
written pleadings and during the Rome hearing, the RS presented several defenses
to the Federation's claims. As to the legal principle of non-
recognition, the RS asserts that it is inapplicable to the case at hand and, in
any event, has been misstated by the Federation.25 In addition,
the RS argues that the principle of non-recognition does not apply to the
present case in which the alleged illegal activities that gave rise to the RS's
possession of territory were "ratified" by the Dayton Accords.26
67. As to
equitable principles, the RS argues that the Federation may not rely on
equitable considerations when it has, itself, engaged in war crimes and acts of
aggression in the area. To prove this charge, the RS produced various
United Nations reports and presented several witnesses during the hearing. In
addition, the RS challenges the Federation's characterization of the importance
of Brcko to the future economic development of the Federation.27
68. Finally,
the RS objects to any international regime on several grounds. A
special international district in Brcko, it says, would violate the constitution
of Bosnia and Herzegovina, which specifically provides that the nation be
composed of two Entities and that "all Governmental functions and powers not
expressly assigned ... to the institutions of Bosnia and Herzegovina shall be
those of the Entities." The RS contends that an international regime could
be authorized only by amendment of the BH Constitution. In addition, the
RS argues that the Federation plan would conflict with Article 68.1, section 1
of the Constitution of Republika Srpska, which states that the RS regulates and
secures the "integrity, Constitutional order and territorial integrity of the
Republika."
69. The
Federation has presented several rebuttal arguments to the above RS
defenses. As to the contention that the doctrine of non-recognition
applies in claims involving states, the Federation argues that the doctrine has
been applied where the illegal acts at issue, such as those taken by the Bosnian
Serbs, were taken in a failed attempt to create a new state.28 As to
the RS's contention that the RS may not, as a legal matter, be held responsible
for the actions of irregular units and Yugoslav military personnel that took
place prior to the RS's own creation and without its control or direction, the
Federation asserts that it has provided overwhelming evidence that the RS
leadership was directly involved in the ethnic cleansing campaign in Brcko and
elsewhere.29
70. In response to the RS
argument that a constitutional amendment would be needed to authorize an
international presence, the Federation emphasizes that Annex 2 and Annex 4 (the
Constitution of Bosnia and Herzegovina) are part of the same treaty, signed at
the same time by the parties, and are therefore of co-equal
authority. According to the Federation, Annex 2(V) should be viewed
as the lex specialis of the Dayton Accords dealing
with the disposition of Brcko, and represents an agreement by the parties to
allow the decision of the Tribunal to become part of the structure of
relationships between the Entities and the central government.
Further, the Federation relies upon Article III(5) of the Constitution,
providing that
Bosnia and Herzegovina shall assume responsibility for
such other matters as are ... necessary to preserve the sovereignty, territorial
integrity, political independence and international personality of Bosnia and
Herzegovina, in accordance with the division of responsibilities between the
institutions of Bosnia and Herzegovina. Additional institutions may be
established as necessary to carry out such responsibilities.
Under this language, the Federation argues, the central
government of Bosnia and Herzegovina may take steps appropriate to preserving
the peace and preventing the disintegration of the Bosnian state, including
arrangements that would remove Brcko from the control of the Entities and place
it under the control of a separate institution.
71. According to the RS,
the Dayton Accords not only ratified RS control over the Brcko area and
recognized the concept of continuity of territory, but also recognized the right
of the RS to exercise sovereignty over 49 percent of all of Bosnia
andHerzegovina. It follows, according to the RS, that the Tribunal must
leave the two halves of RS territory connected by a corridor area and, if the
IEBL is to be changed, can only move it south to increase the RS's territory.30 The RS further argues that the Brcko area
is critically needed by the RS for the relocation of Serb refugees and
displaced persons and for the economic health of the RS.31
72. The
Federation presents several answers. As to the RS claim to 49% of
Bosnian territory, the Federation argues that the Agreed Principles of September
8, 1995 (where the 51-49% formulation appears) were not formally incorporated
into the Dayton Accords. The Federation asserts that the preambular
reference in the Dayton Accords in which the parties "affirm their commitment to
the Agreed Basic Principles" does not create a binding obligation in and of
itself, and that there is nothing in the Dayton Accords that relates in any way
to the territorial allocation in the Brcko area except Annex 2, which explicitly
leaves the status undetermined pending a decision by the Arbitral
Tribunal. Further, the Federation argues that the territorial division set
out in the Agreed Principles explicitly provides that the proposal is subject to
revision by the final agreement of the parties.32
73.
In response to the RS assertion that the Dayton Accords recognize the existence
of a corridor connecting the eastern and western portions of the RS, the
Federation argues that such an interpretation is belied by the explicit language
of Annex 2, which specifically places the disputed portion of the IEBL in the
Brcko area under international arbitration, thus leaving the issue of the
existence of a corridor (or not) open for later resolution by this Tribunal.
74. Ever since
the commencement of the Dayton negotiations, and indeed before, the Federation
and the RS have been locked in an intense rivalry, both seeking to protect what
they consider their legitimate interests in the Brcko area. As evidenced
by the public statements of the two parties during the pendency of this arbitral
proceeding (statements that have included actual threats of war), the rivalry
has generated a high level of tension stemming from a host of historical,
economic and psychological factors — factors which were so deep-seated at the
time of the Dayton conference that no agreement on the subject of Brcko could be
reached, despite the intense efforts of the mediators. Among the
tension-generating factors are: periods of ethnic and religious
hostilities between Bosniacs, Croats, and Serbs over the past several hundred
years; evidence of horrifying genocidal atrocities committed, primarily by the
JNA and Serb paramilitary forces, in the Brcko area in 1992, and of
countermeasures taken by Bosniac and Croat forces against Bosnian Serbs,
including harsh treatment in several "concentration camps" in the Brcko area;
the five-year old Serb conviction that a connecting corridor (including Brcko)
between the two halves of Republika Srpska is strategically and economically
vital to the RS; the apparent Serb commitment to a degree of "ethnic separatism"
in the Brcko area (which may or may not be matched by similar separatist
attitudes in some parts of the Federation); and the Federation's conviction
that, unless the Town, with its port and road bridge and railroad, are readily
accessible, allowing Federation businesses to have complete economic freedom of
movement through the corridor to Europe, the economic development of the
Federation will be severely inhibited.
75. Given the
complexities of the factors involved — and having in mind the command of the
arbitration agreement that the Tribunal be guided by "equitable" as well as
legal considerations — it may not be surprising that, particularly in terms of
the "equities" of the situation, this Tribunal is unable (as discussed further
below) to say that either side is 100% right in its position or 100%
wrong. The Tribunal has concluded that any "simple solution" must be
rejected in favor of an approach that is consistent with law and equity and is
designed gradually to relieve the underlying tensions and lead to a stable and
harmonious solution.
76. As
previously noted, the principal legal argument presented by the Federation in
support of its affirmative claim is based upon the international legal doctrine
of non-recognition. According to the Federation, (1) the RS conducted a
campaign of ethnic cleansing in the Brcko area; (2) this campaign violated
peremptory international norms of non-aggression, human rights protection and
the laws of war; and (3) rather than legitimizing the results of RS aggression
by leaving the consequences of the ethnic cleansing campaign uncorrected, the
Tribunal must reverse the effects of such acts by re-establishing the
demographic identity of the area and granting the territory to the
Federation.
77. As developed in modern
times, the non-recognition doctrine ~ providing that an act in violation of a
norm having the character of jus cogens is illegal
and therefore null and void33 — is based in part on the
principle ex injuria jus non oritur, according to
which acts contrary to international law cannot become a source of legal
rights for a wrongdoer.34 The
international community and international tribunals have applied the
non-recognition doctrine in cases where an entity seeks, through aggression in
violation of international law, to acquire territory with the aim of effecting a
change in sovereignty over that territory.35 In
the case of the Republika Srpska, its campaign in the period between 1992
and 1995 had, as its object, the acquisition of territory from the
internationally recognized Republic of Bosnia and Herzegovina, and the United
Nations Security Council applied the doctrine generally to RS aggression in
Bosnia and Herzegovina.36
78. While the Tribunal
believes that the doctrine precludes the RS from asserting a legal right, based
on their conquest, to control — sovereign, administrative or otherwise — of the
disputed area, it does not automatically follow that the Federation is entitled
to control the territory. The purpose of the RS campaign in the
disputed area, as elsewhere, was to wrest sovereignty from the Republic of
Bosnia and Herzegovina, not from the Federation, which did not even come into
existence until well after the RS conquest. Indeed, the
Federation has neither asserted nor sought to prove any antecedent right or
title to the disputed territory, thus failing to establish a required factual
element of its prima facie case. Consequently,
the injured party — to whom, under the terms of the Federation's own argument,
the doctrinewould require restoration of control -- is the Republic of Bosnia
and Herzegovina, not the
Federation. But the
GFAP already has confirmed that the Republic (now renamed) has sovereignty over
the entire territory of the country.37 The particular injury for
which redress is demanded under the non-recognition doctrine has thus
already been remedied.
79. The Federation, in its
other principal legal argument, cites the findings of the International Court of
Justice in the Western Sahara case,38
and asserts that the Federation should be granted control of the Brcko area
because the historical demographic, cultural and political ties of the
Federation to the Brcko area give rise to a legal claim to the territory.
The Tribunal, however, finds that a strict application of the Western Sahara principles
provides no clear answer to the dispute. Most
importantly, in light of the unique demographic diversity of the Brcko area
before the war, it is not clear that either Entity has shown sufficiently
dominant connections with the area to justify an award of exclusive control to
one or the other of the parties.39 Indeed, both Entities
have established extremely close ties to the area based upon these
factors, which suggests not that one party or the other should enjoy exclusive
control of the area, but that both should play a role in the future control of
the area.
80. Having concluded that
the Federation has not established a legal right requiring Federation
administrative control over the area, the Tribunal must now consider whether the
RS — which relies entirely upon principles allegedly derived from the GFAP — has
asserted a legal basis for RS administrative control.40
81. The RS
first contends that the GFAP incorporates the principle that the territory of
Bosnia and Herzegovina should be divided in a ratio of 51:49 between the
Federation and the RS. It then points out that the IEBL as shown on
the Dayton map gives the RS less than 49 percent (by a small margin) and
concludes that the Tribunal is precluded from making any reduction in the RS's
territory. Second, the RS contends that the GFAP created a status quo which has had the effect of ratifying both
the territorial "continuity" provided by the corridor shown on the map and RS
control of Brcko.
82. The
Tribunal disagrees. First, it is true that the preamble to the GFAP
reaffirms the parties' commitment to certain Pre-Dayton "Agreed Basic
Principles," one of which provides that "the 51:49 parameter of the territorial
proposal of the Contact Group is the basis for a settlement" subject to
"adjustment by mutual agreement." That preambular language, however, did not
itself create a binding obligation; the parties' obligations appear in the text
of the GFAP, which modified the 51:49 parameter (by including a slightly
different distribution) and left unresolved the territorial allocation in the
Brcko corridor area. That lack of resolution is the reason for this
arbitration. In short, the GFAP has ratified neither continued RS control
of the disputed area nor territorial continuity for the RS.
83. On the
other hand, the Tribunal agrees with the RS point that the GFAP provides
relevant law, particularly considering that the Tribunal is itself a creature of
the GFAP. As such the Tribunal must be concerned with such GFAP
principles as the right of all refugees and displaced persons "freely to return
to their homes of origin," their "right to have restored to them property of
which they were deprived . . . and to be compensated for any property that
cannot be restored to them," the "right to liberty of movement and residence,"
and the right of safe and voluntary return for refugees and displaced
persons. In considering how to fashion a solution to the instant dispute
that is consistent with these principles, the Tribunal must review the facts as
to whether these principles are now being honored in the disputed area, and as
to how such compliance might be assured in the future.41
84. At the Rome hearing the
RS made several significant statements as to its attitude toward implementation
of GFAP principles. First, the RS tacitly conceded (in the face of
considerable other evidence) that under RS governance the requirements of Dayton
are not now being honored in the Brcko area. Second, the RS presented to the
Tribunal a written statement of "Basic General Principles" that it intended to
follow in the future, and in that document the RS proposed that if its regime in
the Brcko area were to continue, it would not honor Dayton in at least the
following two respects:
(1) The RS
declared that it "is prepared to permit the free movement of people on the existing Arizona Road, north-to-south through
Republika Srpska territory,"thus allowing north-bound "commercial and passenger"
traffic to cross the corridor "to Orasje," a border town on the Sava River
across from Croatia. The clear implication — as conceded at the
hearing — is that commercial and passenger travel on other roads in the area
would not be permitted. Moreover, as revealed by other hearing evidence,
use of the cross-corridor "Arizona" route to Croatia and elsewhere in Europe is
now less than satisfactory: at Orasje, where the road reaches the Sava
River, there is no bridge across the river, and all Arizona Road traffic
northward must proceed across by ferry — a process requiring commercial vehicles
to wait for as many as two to three days.42 In
addition, while the same statement of "Basic General Principles"
recognizes that there is a road bridge across the Sava "in centrograd Brcko at
the frontier between Croatia and Republika Srpska," the RS plan for the Brcko
road bridge is to allow it to be used only for pedestrian traffic. In short, while Dayton
requires full and free movement for all kinds of traffic, including commercial,
the RS's position in January 1997 was that such commercial traffic would not be
permitted on any efficient north-south route across the corridor to the rest of
Europe.
(2) As to the
Dayton-guaranteed right of former residents of Brcko to return and recover their
homes and other property, the RS "Basic General Principles" take the position
that such persons, even if they could "establish legitimate title to property in
the Brcko municipality now within the territory of Republika Srpska," would be
entitled only to compensation (either in money or in other property), but not
recovery of their property. As emphasized at the Rome hearing, the
fairly obvious purpose -- and the result - of this policy would be to keep Brcko
an "ethnically pure" Serb community in plain violation of Dayton's peace
plan. In economic terms it would also prevent Bosniacs and Croats
from helping to revive Brcko's totally defunct economy, including its
non-functioning Sava River port — a facility whose revitalization (according to
its Serb director) is "essential" to economic development in the area.43
85. The
significance of these statements of intention is highlighted by the testimony of
two disinterested witnesses called by the Tribunal during the Rome
hearings. Specifically, Mr. Santiago Romero Perez of UNHCR and Lt. Col.
Anthony Cucolo of the United States Army (and formerly of IFOR), both with
considerable experience in the Brcko area, opined without contradiction from any
other witness that real peace cannot be achieved in the Brcko area unless former
residents are permitted to exercise their right of return to their former
homes. In Mr. Romero's words, "without people returning to their
homes, there is little hope for peace." Similarly, Lt. Col. Cucolo, after
eleven months of experience in the Brcko area, has become "convinced
. . . that there is this primal need to
return to homes," and
that "unless this need is met
somehow, there will be unrest and discontent." Given that testimony it
would be difficult for the Tribunal to conclude that it would be either
consistent with the legal principles established in the GFAP, or in the general
public interest, to enter an award that permits the RS to achieve its stated
goals of inhibiting freedom of movement in the area and blocking entirely the
right of former residents of Brcko to return to their homes and other
property.
86. One way to
alleviate the effects of the RS's past violations — and to prevent proposed
future violations of the law - would be for the Tribunal to re-locate the IEBL
in such a way as to bring into Federation territory (a) all of the major
commercial roads through the corridor to the rest of Europe and (b) the Brcko
Grad itself, including its river port and its two Sava River bridges (road and
rail). Such a remedy, based directly on "relevant legal principles" drawn
from the GFAP, would clearly be within the Tribunal's explicit authority to
adjust the IEBL in accordance with such principles. On the other hand, as
explainedbelow, considerations of "equity" suggest that there are other less
severe remedial steps that would accomplish the desired objectives.44
87. Having
found that relevant legal principles do not require the award of the area in
dispute to one party or the other, we turn to the question of the applicability
of relevant equitable principles.
88. In
considering the parties' command to "apply relevant legal and equitable principles" (emphasis added) in
resolving the dispute presented, the Tribunal finds that such a clause must
require, at a minimum, that equitable considerations be used to render an award
that gives effect to considerations of fairness, justice and reasonableness.45 In territorialdisputes,
international tribunals have identified as relevant such particular "principles"
as, inter alia: (1) the consideration of the factual context of the dispute — the unique political,
economic, historical and geographical circumstances surrounding the dispute ~
and the balancing of the interests of the disputants in light of these
factors;46 and (2) a set of equitable doctrines
associated with fairness, such as the doctrine of "unclean hands," by which the
inequitable conduct of one of the parties may be taken into account in
thedecision.47 Whatever the cited principles, however,
international tribunals have typically stressed that the importance of
equity in the deliberative process lies not in the formal application of
specific "equitable principles" but in the ultimate achievement of an "equitable
result."48
89. Turning to the facts of
the case, the Federation has demonstrated that it has compelling equitable
interests in the Brcko area. Brcko Grad itself, while multi-ethnic in
composition, was predominantly populated by Muslims and Croats before the war, a
situation radically changed by a brutal campaign of ethnic cleansing. The
Tribunal therefore must agree that the Federation has a fundamental interest in
providing for the safe return of theprevious Muslim and Croat population, and
that the previous residents have a compelling interest in returning safely and
availing themselves of their Dayton guaranteed right to reclaim their
property. Further, Brcko has vital economic significance for the
Federation, both as it attempts to rebuild its infrastructure and as it seeks to
integrate its economy with Europe and the world. For that purpose it
needs an open economic gateway to the north. The Tribunal concludes that in the
circumstances and in light of its responsibilities under the GFAP any solution
must, at minimum, provide that these vital interests are protected.
90. A significant equitable
consideration militating against the maximum remedy described above (i.e., granting absolute control of the entire Brcko
area to the Federation) is Republika Srpska's assertion of a vital interest in
preserving a connecting corridor between its eastern and western
parts. The evidence adduced at the Rome hearing suggests that three
elements enter into the RS's insistence in this respect. First, there are
repeated references to the corridor's "strategic" value. Presumably
this is a reference to a desire to have the ability to move armed forces from
one part of the RS to the other without interference from Federation
authorities, and this would seem to be a legitimate interest provided such
movements are not related to prohibited threats or use of force and any
applicable legal limitations are observed in the process. Second, there was
testimony at the hearing from a
prominent RS economist
that the RS feels a need to create within the connecting corridor "certain
infrastructure facilities" including an east-west highway parallel to the Sava,
a railroad, a pipeline, and telecommunications lines, all in the corridor area
south of Brcko Grad. Again, although economic integration between
the Federation and the RS would, if possible, render some or all of these
facilities superfluous and avoid some investment waste for the country as a
whole, it is understandable that the RS is interested in having the freedom to
plan and create such facilities on its own. Finally, it is undoubtedly the
fact that the preservation of a corridor is of tremendous psychological
significance to the RS. Arguably there is an inconsistency between such a
separatist attitude and the spirit of Dayton, but the tension-creating
psychological factor is not one that can be overlooked by the Tribunal.
91. It can be argued by the
Federation with some force that the alleged need for a corridor is significantly
less substantial than as presented by the RS. Specifically, if the
corridor were interrupted through a shift in the IEBL, the Federation would
nonetheless be obliged under the Dayton Accords to provide complete freedom of
movement over Federation territory between the RS's eastern and western
portions. This argument is offset, however, first by the fact that the
Federation has less than a perfect record in enforcing Dayton's
freedom-of-movement requirements and second by the fact that, even if
perfectfreedom of movement were foreseeable under a Federation regime in the
area, there is no assurance that the Federation's planning authorities would
allow the construction and operation of the infrastructure facilities upon which
the RS places such emphasis.
92. As a matter of equity
the Tribunal must also be mindful of the effect that any award will have on the
current population of the Brcko area. Specifically, while the
Federation calls for a "mandatory penalty" against the Republika Srpska via an
outright transfer of the Brcko area from the RS to the Federation, the Tribunal
must take into account the fact that a very large proportion of the total
present population of Brcko Town consists of Serb refugees who have recently
moved there from the Krajina, Sarajevo, and a number of other Bosnian towns —
and the fact that, judging by recent experience in Sarajevo, a transfer of Brcko
to Federation control would result in a mass exodus of thousands of Serbs out of
Brcko into a state of homelessness for a second time. The result would be
a severe penalty on large
numbers of persons who were not
present in Brcko in the spring of 1992 and who must be presumed innocent of any
specific wrongdoing.49 The international community,
in establishing the Hague Tribunal, has provided an authorized mechanism for
punishing the war criminals who committed and abetted the crimes alleged
in this case, and it is not at all clear that the separate "penalty" being
sought from this Tribunal would fall on those who deserve it.
93. The Tribunal cannot
forebear from commenting that the welfare of the Brcko community (including both
former and present residents) has tended to become obscured by the political
rhetoric of the opposing sides. In a sense the Town of Brcko has been
allowed to become a symbol of victory in the aftermath of an inconclusive war in
which victory was simply not available to either side. Indeed, the parties
have talked of Brcko as though it were a trophy: if this Tribunal "awards"
it to the Federation or the RS, a climax of the late war will finally have been
achieved, with enormous satisfaction to the "winner" — and attendant vengeful
thoughts from the "loser". In the Tribunal's view, however, these arc not
the terms in which the matter should be analyzed: surely a far more
important principle is that this Tribunal, rather than handing a trophy to one
side or the other, should take affirmative steps to provide immediate relief,
both in terms of human rights and in terms ofeconomic revitalization, for the
thousands of poverty-stricken individuals who live in, and want to make their
home in, Brcko. Such steps are important to ease the regional tensions
that have given rise to this dispute, and that is a primary objective of the
Award.
94. Finally,
among the equitable factors to be considered by the Tribunal are the interests
of the international community. Although economic burdens pale in
comparison with the human sacrifices already suffered in Bosnia, it is
nonetheless the fact that the international community has already incurred huge
financial costs in seeking to achieve stability in Bosnia, and significant
additional costs are necessarily going to be incurred.50 Regional
stabilityand the costs being incurred to achieve it are factors that must
play a role in the design of the Tribunal's final order.
95. The Award
in this case (see Section VII below), insofar as its
immediate terms are concerned, calls upon the international community to
establish an interim supervisory regime in the Brcko area designed (primarily
through implementation of the Dayton Accords) to allow former Brcko residents to
return to their homes, to provide freedom of movement and other human rights
throughout the area, to provide proper police protection for all citizens, to
encourage economic revitalization, and to lay the foundation for local
representative democratic government.
96. As to
whether the Tribunal has authority to include such provisions in its Award the
Tribunal finds that the text of Annex 2 does not set limits on the measures the
Tribunal may use in its resolution of this dispute. Rather, Annex 2 is
framed in broad terms that can reasonably be read to authorize the Tribunal to
frame an award that, based upon the facts and the legal and equitable
considerations involved, will effectively ease the tensions from which the
dispute arises and protect the interests of the people of Brcko.
97. This view
is strongly supported by Article V(3)'s specific reference to "equitable
principles," which allows the arbitrators to give effect to considerations of
fairness, justiceand reasonableness in the award. Not being required
to proceed solely on the basis of legal rules, the Tribunal is authorized to
render an award that, in its view, best reflects and protects the overall
interests of the parties and that has the strongest likelihood of promoting a
long-term peaceful solution.
98. The Tribunal is mindful
that the RS has contested this broad view of the Tribunal's authority and has
argued strenuously that all the Tribunal may do is fix the final position of the
IEBL in the Brcko area. In reality, however, as previously noted, that
view seriously understates the scope of this dispute. At Dayton the
parties argued — and are continuing to argue here — about what laws and
political structures are to control the lives of the people of the area, and the
Award must be framed in that context. Under Article 31 of the Vienna
Convention on the Law of Treaties, the Tribunal is to construe the terms of
Annex 2 in good faith in accordance with their ordinary meaning in their context
and in light of the object and purpose of the Dayton Accords. Here,
the context includes the Dayton Accords' elaborate structure of obligations
aimed at attaining peace in Bosnia and Herzegovina. In the Dayton
Accords, the parties to this arbitration accepted many substantial undertakings,
including measures designed to control arms, to provide freedom of movement
throughout Bosnia and Herzegovina, to provide safety and security for
individuals, to promote the return of refugees, and to allow individuals to
reclaim property. In addition, the parties created several institutions
and structures through which the international community is to play important
roles in facilitating and ensuring the observance and implementation of these
obligations.
99. This
context justifies an interpretation of Annex 2, Article V that permits the
Tribunal to frame an Award that calls for international assistance and obligates
the parties to cooperate in the prescribed programs. The Dayton Accords
are replete with provisions of a similar character, the implementation of which
requires involvement by entities not party to the accords. This
interpretation also seems most in harmony with the object and purpose of the
Dayton Accords, which is ultimately to ease existing tensions, restore security
in the region, and thus bring about lasting peace.
100. The Tribunal is
further aware that, while the arbitrators' mandate derives from an agreement
signed by the parties, the Tribunal's work is of broad international interest
and concern. Security Council resolutions and international agreements
concluded after the entry into force of the Dayton Accords offer additional
support for taking a broad view of the Tribunal's mandate and underscore the
parties' obligation to honor this Award.51 Such
statements by the Security Council are authoritative statements of the
will and expectations of the international community regarding implementation of
the Dayton Accords. Since they were adopted under Chapter VII, they have
binding legal force to the extent provided by their terms. They can
appropriately be taken into account by the Tribunal in construing Article V and
in assessing the scope of its mandate.
101. One aspect of
the Award in this case deserves special comment - namely, the provision reciting
the Tribunal's conclusion that at this time it would be inappropriate to make a
final choice as to which of the competing political entities should be given
control of the town and thus become, in a sense, its guardian after the period
of international supervision. The difficulty is that, despite the passage
of time since Dayton, the political institutions competing for guardianship (the
Federation and the RS), as well as the joint institutions of Bosnia and
Herzegovina, are less stable today than was to be expected when the Dayton
Accords were signed. Specifically, the organizational arrangements of the
Federation are still incomplete; the RS's almost total disregard of its Dayton
implementation obligations in the Brcko area has kept the tensions and
instability in the region at a much higher level than was expected; and the
joint institutions of Bosnia and Herzegovina have not yet developed into an
effectively working government. It is the Tribunal's judgment, therefore,
that in these unique circumstances it would be unwise and inequitable to make a
choice among these competing institutions now.
102. Nonetheless, the
Tribunal recognizes that under the Dayton Accords is has an affirmative duty to
make the choice when that can be done consistent with relevant legal and
equitable principles. Accordingly, the Award provides, consistent
with the Tribunal's powers under Article 15 of the UNCITRAL Rules, that after
the interim international supervision has had a chance to operate, either party
may approach the Tribunal to requestfurther action with respect to Brcko and
that any response by the Tribunal shall form a part of the Award.
103. Finally, the Award puts the
parties on notice that, in the event of such a request for further action
affecting the Award, the Tribunal may conclude, depending upon the then- current
circumstances, that the Town of Brcko must become a special district of Bosnia
and Herzegovina so that it will no longer be within the exclusive political
control of either Entity. Whether that will appear to be an appropriate step
when and if such a further request is presented, the Tribunal cannot now
predict, but the possibility of such further action affecting the Award should
be noted.
104. For the foregoing reasons the
Tribunal adopts the following orders and provisions, which shall be final and
binding upon all Parties to GFAP Annex 2, and with which all Parties shall
comply and cooperate in full.
A. Given
ongoing failures to comply with the Dayton Accords in the RS area of the Brcko
Opstina (particularly in terms of freedom of movement and the return of former
Brcko residents to their Brcko homes), and the high levels of tension resulting
therefrom, there is a clear need to establish a program for implementation of
the Dayton Accords in the area, as hereinafter provided.
B. Since
it is essential that the international community undertake a role in devising a
detailed implementation strategy, the Office of the High Representative ("OHR")
is expected, as soon as feasible, to establish an office and staff in Brcko
under the leadership of a Deputy High Representative for Brcko (hereinafter "the
Brcko Supervisor" or "Supervisor") whose functions will be: (a) to supervise
Dayton implementation throughout the Brcko area for a period of not less than
one year, and (b) to strengthen local democratic institutions in the same
area. Given the sensitivity of the issue, it is essential that
implementation begin only after the Brcko Supervisor, in consultation with the
High Representative, the PIC Steering Board, and SFOR, determines that key
elements of an integrated implementation strategy are in place. The
work of the Supervisor is expected to include the following elements:
(1) The
Supervisor will have authority to promulgate binding regulations and orders in
aid of the implementation program and local democratization. Such regulations
and orders shall prevail as against any conflicting law. All relevant
authorities, including courts and police personnel, shall obey and enforce all
Supervisory regulations and orders. The panics shall take all actions
required to cooperate fully with the Supervisor in the implementation of this
provision and the measures hereinafter described.
(2) The
Supervisor should consider assembling an Advisory Council and include within its
membership representatives of OSCE, UNHCR, SFOR, IBRD, IMF, the Institutions of
Bosnia and Herzegovina, local ethnic groups, and such other official and
unofficial groups as the Supervisor may deem appropriate to provide advice and
liaison in implementation of this Award.
(3) The
Supervisor in close liaison with SFOR should coordinate with IPTF and such other
international police mechanisms as may be established in the Brcko area to.
Provide services with two principal objectives in mind:
(a) To ensure
freedom of movement, through highway patrols and otherwise, for all vehicles and
pedestrians on all significant roads, bridges and port facilities in the
relevant area from (and including) the Donja Mahala-Orasje Road (the so-called
"Arizona Road") on the west to the eastern boundary of the Brcko Opstina.
(b) To ensure
that the relevant authorities will undertake normal democratic policing
functions and services for the protection of all citizens of Bosnia and
Herzegovina within the relevant area.
(4) The
Supervisor should establish, with advice and assistance from UNHCR, the
Commission for Displaced Persons and Refugees, and other appropriate agencies, a
program (which may incorporate previously established procedures) to govern the
phased and orderly return of former residents of the relevant area to their
homes of origin and for the restoration, construction, and allocation of housing
as necessary to accommodate old and new residents.
(5) The
Supervisor should: (a) work with OSCE and other concerned international
organizations to ensure that free and fair local elections are conducted under
international supervision in the relevant area before the end of the
international supervision; and (b) following such elections, issue such
regulations and orders as may be appropriate to enhance democratic government
and a multi-ethnic administration in the Town of Brcko. The parties will fully
implement the results of the municipal elections according to the rules and
regulations of the PEC.
(6) Given the
significance of economic revitalization (particularly in terms of easing ethnic
and other tensions in the area), a concerted effort at economic reconstruction
is considered essential to the reduction of such tensions. The Supervisor
therefore should assist the various international development agencies to
develop and implement a targeted economic revitalization program for the Brcko
area.
(7) Since
revitalization of the Sava River port in Brcko is of paramount interest to both
parties, all land now publicly or socially owned within the port area shall be
placed under the exclusive control of the Bosnia and Herzegovina Transportation
Corporation (an entity established under GFAP Annex 9, Article
II(1)). Both parties are directed to use their best efforts — and
the Supervisor is invited and encouraged to guide such efforts — to, attract
public and private investment (e.g., through leasing space) to revive the port
through physical reconstruction, river dredging, and other appropriate
measures.
(8) The
Supervisor should, in the interests of fostering commerce and international
economic development, assemble a group of international customs monitors to work
with appropriate authorities of the parties (including Bosnia and Herzegovina)
toward the establishment of efficient customs procedures and controls in the
relevant area.
(9) In the
interests of maximizing economic growth in the area, the State of Bosnia and
Herzegovina, acting through its Foreign Ministry, is directed as soon as
possible to open negotiations with the Republic of Croatia to arrive at mutually
agreeable arrangements for customs procedures and border crossings between
Bosnia and Herzegovina and Croatia in the Brcko area.
A. Although the
Tribunal anticipates, pursuant to Annex 2, Article V(5), that the parties will
implement without delay the foregoing provisions, thereby lowering existing
tensions in the area, nevertheless, the Tribunal has concluded that it would be
inappropriate to make a judgment at this time as to what final allocation of
political responsibilities as among the parties following the period of interim
international supervision will best achieve implementation of the Dayton Accords
and develop representative democratic local government in the relevant
area. Absent further action by the Tribunal, the IEBL in the region will
remain unchanged, and the Tribunal shall continue to monitor the situation in
the area during the period of interim international supervision. Pursuant
to its powers under Article 15 of the UNCITRAL Rules, the Tribunal will
entertain from either party requests for further action affecting the Award with
respect to the allocation of political responsibilities in the area, provided
that any such requests must be received between 1 December 1997 and 15 January
1998. The Tribunal shall render any further decision by15 March 1998, and any
such further decision shall form a part of this Award.
B. The
Tribunal hereby gives notice (1) of its concern that matters in the relevant
area may be so controlled as to prevent satisfactory compliance with the Dayton
Accords and the development of representative democratic local government, and
(2) that in the event of a request for modification of this Award, the Tribunal
may at that point conclude, in light of the then-current situation, that to
correct the situation the Town of Brcko must become a special district of Bosnia
and Herzegovina in which district the laws of Bosnia and Herzegovina and those
promulgated by local authorities will be exclusively applicable.
C. To assist its
inquiry into the foregoing matters the Tribunal requests, and expects to
receive, the following:
(1) Regular
reports from the Supervisor, submitted through the Office of the High
Representative, appraising current conditions in the relevant area as they may
bear on the need (or not) for further actions from the Tribunal, through the
"special district" approach or otherwise; and
(2) Such
written requests and submissions as the parties may choose to present on the
same issues.
105. The English language text of this Award shall be the
authentic text for all purposes. The Tribunal shall issue at the earliest
possible time authorized translations of the authentic text into the Bosnian and
Serbian languages.
Roberts B. Owen
Presiding
Arbitrator
Cazim
Sadikovic
Vitomir Popovic
Arbitrator
Arbitrator
Rome, 14 February 1997
Pursuant to Article 32(4) of the UNCITRAL Rules, the
Tribunal notes that, for the reasons stated in Paragraph 27 of this Award, the
party-appointed arbitrators have failed to sign the Award.
1 The preamble of the Annex 3
defines “Parties” as the Republic of Bosnia and Herzegovina, the Federation of
Bosnia and Herzegovina and the Republika Srpska.
2The 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.
3The 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:
PRINCIPLES APPLICABLE TO ADMISSIBILITY OF
EVIDENCE
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.
3. A party
having the burden of proof must not only bring evidence in support of its
allegations, but must also convince the Tribunal of their truth.
Otherwise, they shall be disregarded for insufficiency of evidence.
4. The
international responsibility of a state or entity is not to be presumed. The
party alleginga violation of international law giving rise to international
responsibility has the burden of proving the assertion.
5. The Tribunal
is not bound to adhere to strict judicial rules of evidence. The probative force
of evidence is for the Tribunal to determine.
6. When a party
produces prima facie evidence in support of an allegation, the burden of proof
shifts to the other party or parties.
7. In instances
where proof of a fact presents extreme difficulty, the Tribunal may be satisfied
with less conclusive, i.e., prima facie,
evidence.
8.
The Tribunal's decision shall be based on the strength of the evidence produced
by both parties.
5Specifically, 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.
6The Federation requested and
received a one-week extension of time in order to file its Second Statement.
7On 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.
8Other 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).
9The 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.
10See 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.
Id. at 149.
11See RS Jurisdictional
Statement at 11.
12At the Rome hearing, the RS
explicitly disavowed any claim that the IEBL should be moved in such a way as to
increase RS territory, limiting its arguments instead to complete preservation
of the status quo.
13In 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.
14Census 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 Godisnjak Jugoslavije (1991).
16 Linked to the Tuzla Basin,
Brcko served as a transportation center for wood, coal, anthracite,
agriculture/animal products and chemical industries.
17See Final Report of the
Commission of Experts Established Pursuant to Security Council Resolution 780
(1992), U.N. Doc. S/1994/674 (1994).
18Evidence 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).
19Also known as the "Arizona
Road”.
20Specifically, the
Federation asserts that the evidence presented proves:
1. 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.
2. In late
1991, the JNA confiscated weapons and material of the Bosnian Territorial
Defense Force and, in early 1992, began patrolling Brcko Grad.
3.
In late April 1992, detention centers were established at the Luka Port
facility, the JNA casern and elsewhere in Brcko Grad.
4. 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.
5. 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).
6. 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.
7.
As a direct result of the RS aggression, the pre-war 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 controlof 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 the 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 rmilitia 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 the 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.
30According 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
Gradsubject 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: "the
51:49 parameter of the 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 the 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, e.g.. 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, e.g.,
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. ("The materials and information presented ... do not establish any
tie of territorial sovereignty between the territory of Western Sahara and me
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 or 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:
1.
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);
2.
the right to self-determination, see, e.g.. Namibia Case. 1971 I.C.J. Rep. 16; and
3.
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
an 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,
equity, 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 . . . while 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
Jamahiriya/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 Jamahiriya). 1982 I.C.J. Rep. 18.
In the Continental Shelf (Tunisia/Libya) case, Judge Arechaga, in a separate
opinion, reasoned that
to 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 . . .
in 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 Mayen (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.
48See Continental Shelf (Libyan Arab Jamahiriya/Malta). 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 Jamahiriya). 1982 I.C.J. Rep. 18. In the
Tunisia/Libya case, the I.C.J. reasoned that
it is, however, the result which is predominant; the
principles are subordinate 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.
Id. at 59.
49The Tribunal recognizes
that there is evidence tending to show that certain RS authorities may have
deliberately herded Serb refugees from Sarajevo and the Krajina toward Brcko,
encouraging them to settle there precisely in order to dissuade this Tribunal
from transferring Brcko from the RS to the Federation. Whether such
reprehensible behavior occurred or not, the plight of innocent Serb refugees and
displaced persons in Brcko is an equitable factor that cannot simply be
ignored.
50Without 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.
51Specifically, acting under
Chapter VII of the Charter of the United Nations, the Security Council has
adopted post-Dayton resolutions stressing the need for a peaceful settlement of
the conflict in Bosnia and Herzegovina and calling for full implementation of
all commitments undertaken at Dayton. Security Council Resolution 1031 (1995),
which created IFOR, reaffirms the Security Council's commitment to a negotiated
political settlement, calls upon the parties to fulfill their commitments in
good faith, and affirms the need for implementation of the Dayton Accords in
their entirety. Resolution 1088 (1996), which authorized SFOR and renewed
IPTF, used even stronger terms. It reaffirmed support for the Dayton Accords and
called upon the parties "to comply strictly" with their Dayton
obligations. It also reminded the parties to cooperate fully with all
entities involved in the implementation of the peace settlement, presumably
including this
Tribunal.
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