The International Law as a Means of Negotiation Settlement
FORDHAM INTERNATIONAL LAW JOURNAL [Vol.
Fordham International Law Journal
Jindal Global University
that the government which professes to have been aggrieved
should have stated its claims and the grounds on which they rest,
and that the other government should have had an opportunity
to reply, and if it rejects the demands, to give its reasons for so
doing." 2 The Mkavromnmatis test for determining whether a
disagreement simpliciter can be regarded as a legally-cognizable
dispute is usually seen as reflecting general international law.
The existence of a dispute, of course, is an absolute prerequisite
for the application of the international law of dispute
Once a disagreement rises to the level of a dispute, then the
international law of dispute settlement will apply. The
cornerstone of this law is that disputes must be settled
peacefully, "in such a manner that international peace and
security, and justice, are not endangered," 4 and in the absence
of the threat or use of force) Like its corresponding articles in
the Covenant of the League of Nations before it,u Article 33 of
the Charter of the United Nations ("Charter") recognizes
various means of dispute settlement. 7 In addition to such
diplomatic means of dispute settlement as negotiation, enquiry,
mediation, and conciliation, Article 33(1) lists arbitration and
judicial settlement, both of which channel the parties, upon
agreement, to resolve their dispute through, ultimately, the
reaching of a legally-binding agreement. 8 Sir Hersch
Lauterpacht captured the essential difference between
diplomatic and legal means of dispute settlement well when,
writing in 1930, he noted that parties that choose a diplomatic
means of dispute settlement over a legal means of dispute
settlement are effectively "substitut[ing] a series of attempts at
settlement for a settlement proper."' Although, as this paper
shows, it would not be correct to say that the law plays no role in
diplomatic means of dispute settlement or that political
considerations do not inform legal means of dispute settlement,
it is true that these dichotomies have classically been put forward
as the key distinguishing factors between diplomatic and legal
means of dispute settlement."o
Drawing upon a number of important recent decisions of
the International Court of Justice ("ICJ") and other dispute
settlement bodies, this paper sets forth what can best be
described as the international law of negotiation. It shows that
although the forms of this diplomatic means of dispute
settlement are varied and diverse, the essential embeddedness of
negotiation within a framework of legal evaluation means that a
party's failure to comply with its obligations can result in an
internationally wrongful act and, in response, countermeasures
and other responses by the victim party. This paper proceeds in
three parts. Firstly, it looks at the relationship between
negotiation and other means of dispute settlement, both
diplomatic and legal. Secondly, it explores the modalities that
govern when it can be said as a matter of law that negotiation
has been tried and has been exhausted. Finally, it looks at the
not uncommon situation of a negotiation that has broken down
due to the commission of an internationally wrongful act by one
of the parties under the law of negotiation and the potential for
8. U.N. Charter art. 33, para. 1. Article 33 also states that the parties to a dispute
can have recourse to "regional agencies or arrangements" and "other peaceful means
of their own choice," though it does so without specifying whether these must be
diplomatic or legal in nature. Id. Presumably, they could be either, appropriately
tailored by the parties to the particularfacts and circumstances of the dispute at issue.
9. Hersch Lauterpacht. The Absence of an InternationalLegislatureand the Compulsory
Jurisdiction ojnternationalTibunals. 11 1BRIT. Y.B. INT'L L. 134, 138 (1930).
10. See D. W. Bowett, Contemporary Developments in Legal Techniques in the Settlement
of Disputes, in 180 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL
lAW 169, 177-78 (1983).
the victim party to adopt countermeasures and other responses
to facilitate compliance with law and vindication of rights.
I. THE RELA TIONSHIPBETHIEENAEGOTIATION\ AND OTHER
Negotiation is undoubtedly the oldest means of dispute
settlement. In their dissenting opinions in Mavrommatis,Judges
Moore and Pess6a referred to it as, respectively, the "legal and
orderly administrative process by which governments, in the
exercise of their unquestionable powers, conduct their relations
one with another and discuss, adjust and settle, their
differences" 11 and as "debate or discussion between the
representatives of rival interests, discussion during which each
puts forward his arguments and contests those of his
Like consultation within the context of the World Trade
Organization's dispute settlement system, negotiation allows the
parties to a dispute to exchange information, assess their
respective cases, and attempt to reach a mutually agreed upon
understanding.3 Negotiation serves to focus disagreements and
make disputes more "concrete," with a view to settlement.'4 It
can involve tactics that are tough and challenging, and it often
does. As such, ICJ Judge Lachs' view that negotiation can "no
longer be viewed as a chess game in which one party steers the
other into a checkmate position"1 seems to overshoot the mark.
Negotiation is most assuredly a "chess game in which one party
steers the other into a checkmate position."I' Although there
are (legal) rules as to how the "chess game" can be played, it
would be a rare party to a dispute that would not seek to
maximize its advantage through negotiation.
In its purest form, negotiation does not involve third party
intervention,1 and it can be relatively informal in nature.1 8 As a
diplomatic means of settling disputes, it has the advantage of,
inter alia, giving notice to the parties as to the existence and
scope of a dispute and providing an opportunity to settle their
dispute by mutual consent.19 It tends to favor parties that can
leverage their greater attributes of power-be these military,
political, economic, or otherwise -to influence the discussions,
though it is also important to point out that the law does not
require the weaker party to come to a legally-binding agreement
with the stronger party. The PCIJ made this clear in 1931, when,
in rejecting Poland's argument that Lithuania was bound to
negotiate with it until a legally-binding agreement had been
reached, it stated that although the law of negotiation requires
that the parties to a negotiation "pursue them [negotiations] as
far as possible, with a view to concluding agreements [, . . . an
obligation to negotiate does not imply an obligation to reach an
agreement."2o To be sure, there is ultimately a procedural and
substantive "floor" to negotiation, but this will vary in each case
and depend upon the particular facts and circumstances of the
dispute at issue.21
17. See Michael Waibel, The Diplomatic Channel, in THE LAw OF INTERNATIONAL
RESPONSIBILITY 1085, 1090 (James Crawford et al, eds., 2010). But see Bowett, supra
note 10, at 177 (articulating a rather broader understanding of negotiation that can
admit third party involvement).
18. Waibel notes that this informality means that negotiation can take place at,
inter alia, informal meals and in casual conversation. SeeWaibel, supranote 17, at 1087.
19. See Application of International Convention on Elimination of All Forms of
Racial Discrimination (Geor. v. Russ.), Preliminary Objections, I 131 (Apr. 1, 2011),
20. Railway Traffic Betwecn Lithuania and Poland. Advisory Opinion, 1931 P.C.I.J.
(ser. A/B) No. 42, at 12 (Oct. 15).
21. On negotiation generally as a means of disput settlement, see JOHN COTLIER
& VAU(,HAN LOWE. THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW:
INSTITUTIONS AND IROCF)URFS 20-24 (2000); MERRITTLS, INTERNATIONAL DISPUTE
SETTLEMENT, supra note 3, at 1-25; Antonio Cassese, The Israel-PLOAgreement and Self
Determination, 4 EUR. J. INT'L L. 564, 567 n.7 (1993); Waibel, supra note 17. at 1090; see
Manila Declaration on the Peaceiul Settlement of International Disputes, G.A. Res.
37/10, Annex. U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/RES/37/10 (Nov.
15, 1982); Declaration on Principles of Intrinational Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter of the
United Nations, G.A. Res. 26/25. Annex, 25 U.N. GAOR. 25th Sess.. Supp. (No. 28),
U.N. Doc. A/5217, at 121 (Oct. 24, 1970). On the Manila Declaration on the Peacctul
Settlement of International Disputes, see Vladimir-lDjuro Degan, The Value of the Ma ila
The text of Article 33 of the Charter does not as such
indicate whether the parties to a dispute must choose diplomatic
or legal means of dispute settlement, much less does it suggest
that there is a hierarchy of means, that is, whether international
law privileges particular means of dispute settlement over
others. This is because, generally speaking, it does not. Rather,
the general aim of Article 33 is to facilitate the peaceful
settlement of disputes, and the means that the parties can
choose to achieve this can be used either singly or in
combination with each other. The Charter leaves the choice of
means largely to the parties themselves, 2 and they can arrive at
the choice of means ad hoc, that is, as particular disputes arise,
or this can be determined in advance, through a compromissory
clause in a treaty that dictates particular means and modalities
of dispute settlement.2
While it is clear that the Charter does not as such indicate
whether the parties to a dispute must choose diplomatic or legal
means of dispute settlement or suggest a hierarchy of means,
international law can direct that particular disputes be settled
through particular means of dispute settlement, to the exclusion
of others.2 A typical example of this would be when the United
Nations Security Council "recommends" that the parties settle
their dispute through particular means but does so without
adopting a legally-binding enforcement measure under Chapter
VII of the Charter.25 Of course, should the situation require it,
the Security Council can also "decide" to require the parties to
settle their dispute through particular means and can do so
through the adoption of a legally-binding enforcement measure.
This, of course, would then require the parties to settle their
dispute through the mandated means of dispute settlement to
the exclusion of others, pursuant to States' Charter obligation to
Declaration on InternationalDispute Settlement in a Case in Wich the Philippinesis a Party,
11 CHIN.J. INT' L. 5 (2012).
22. See Acrial Incident of 10 August 1999 (Pak. v. India), Preliminary Objections,
2000 I.C.. 12 33 (June 21).
23. See. e.g., United Nations Convention on the Law of the Sea, arts. 279-99,
openedforsignatureDec. 10, 1982, 1833 U.N.T.S. 3.
24. See Merrills, supranote 14. at 366-69, 389-92.
25. See U.N. Charter art. 33, para. 2; id. art.36, para. 1.
"accept and carry out the decisions of the Security Council in
accordance with the present Charter."26
Reference to the ICJ's handling of a dispute in the
mid1970s between Greece and Turkey that involved the delimitation
of the continental shelf in the Aegean Sea is helpful to illustrate
this interplay. In exercise of its "primary responsibility for the
maintenance of international peace and security,"27 the Security
Council adopted Resolution 395, which, inter alia, "[c] all[ed]
upon the Governments of Greece and Turkey to resume direct
negotiations over their differences and appeal[ed] to them to
do everything within their power to ensure that these
negotiations will result in mutually acceptable solutions." 21
Through this Resolution, the Security Council sought to
channel the settlement of this dispute through a particular
means of dispute settlement, negotiation, and when the dispute
reached the ICJ, the ICJ expressed some reluctance to indicate
provisional measures on the basis of this.29 Two years later, in
1978, the ICJ rejected Greece's application on the basis that it
lacked jurisdiction." It did so on technical grounds, however,
grounds that were unrelated to the fact that Resolution 395 had
expressed a preference for a negotiated settlement between
Greece and Turkey. I As the ICJ put it, "the fact that
negotiations are being actively pursued during the present
proceedings is not, legally, any obstacle to the exercise by the
Court of its judicial function."32 The basic idea here seems to be
that international law's overriding concern with facilitating the
peaceful settlement of disputes militates in favor of a
Conceivably, of course, a court with jurisdiction could delay
rendering a judgment or even use its discretion to refuse to
render a judgment tout court when a dispute is being settled, with
whatever measure of success, through a diplomatic means of
dispute settlement such as negotiation. The PCIJ suggested just
such a possibility in its 1929 order in Free Zones of Upper Savoy and
the District of Gex,34 and more recently, Judge Xue and Judge ad
hoc Roucounas showed considerable sensitivity to the wisdom
and prejudicial potential of rendering a judicial decision
alongside an ongoing negotiating process in their respective
dissenting opinions appended to the ICJ's 2011 judgment in
Application of the Interim Accord of 13 September 1995 ("Interim
Accord"). 5Nonetheless, a court with jurisdiction would be under
no such obligation as a matter of law, a point that the ICJ most
recently reiterated in Interim Accord. 36 From the ICJ's
perspective, the question is whether there are "compelling
reasons"37 for it to use its discretion so as to stay proceedings
and to refuse to proceed to the merits despite the presence of
prima facie jurisdiction over a dispute. 8
II. THE LAW OFINEGOTIATION
Prior to its 2011 rejection of Georgia's application against
Russia during the preliminary objections phase of Application of
the International Convention on the Elimination ofAll Forms of Racial
Discrimination (Georgia),39 the ICJ had spoken only generally
about what international law requires for a negotiation to qualify
as such as a means of dispute settlement."1 A notable exception
to this occurred in 1969, when the ICJ rendered judgment in
conjoined cases that involved a dispute about the delimitation of
the continental shelf in the North Sea, the North Sea Continental
Shelf cases. 41In these cases, the ICJ found that both the 1958
Geneva Convention on the Continental Shelf did not apply
against the Federal Republic of Germany because the State was
not a party to the treaty and also that the equidistance principle
did not apply as a matter of customary international law.4 2
Instead, the ICJ held that the States at issue, the Federal
Republic of Germany and Denmark and the Federal Republic of
Germany and the Netherlands, were required to enter into
negotiations to settle their disputes and that these negotiations
had to be purposeful, "with a view to arriving at an agreement,
and not merely to go through a formal process of negotiation as
a sort of prior condition for the automatic application of a
certain method of delimitation in the absence of agreement," 43
as well as "meaningful, which will not be the case when either of
them insists upon its own position without contemplating any
modification of it."44 Although the ICJ articulated these legal
parameters for negotiation as a means of dispute settlement
within the particular context of the delimitation of the
continental shelf, it seemed to have also been articulating the lex
generalis of negotiation.45
The ICJ handed down its judgment rejecting Georgia's
application against Russia during the preliminary objections
phase in April 2011. It had previously, in October 2008, ordered
provisional measures against both States, though it did
acknowledge in its provisional measures order that it "need not
finally satisfy itself, before deciding whether or not to indicate
such [provisional] measures, that it has jurisdiction on the
merits of the case, yet it may not indicate them unless the
provisions invoked by the Applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court might be
founded."4 6 In its 2011 judgment, the ICJ ultimately held that it
did not have jurisdiction to proceed to the merits because,
upholding the second of Russia's four preliminary objections,
the terms of article 22 of the 1965 International Convention on
the Elimination of All Forms of Racial Discrimination ("CERD")
had not been satisfied.47 Thus, the case was dismissed.
Georgia is a key development in the law of negotiation
because the ICJ articulated a three-part understanding for this
means of dispute settlement and, in so doing, spoke not simply
about negotiation within the framework of the CERD, which
would be a lex specialis, but also expanded its discussion to
pronounce upon negotiation under international law
45. See id. at 47-48; see also Application of Interim Accord of 13 September 1995
(Maced. v. Greece), Judgnint, 1[1[ 131-32 (Dec. 5, 2011), available at
http://www.icjcij.org/docket/files/142/16827.pdf; Pulp Mills on River Uruguay (Arg. v. Uru.), 2010
I.C.J. 14, 67 (Apr. 20); Fisheries Jurisdiction (F. R. G. v. Ice.), 1974 IC.J. 175, 201-02
(Iuly 25); Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3, 31-33 (July 25).
46. Application of International Convention on Elimination of All Forms of Racial
Discrimination (Geor. v. Russ.), Provisional Measures, 2008 I.C.J. 353, 377 (Oct. 15).
On the October 2008 order, see Sandy Ghandhi, The InternationalCourt offustice and the
ProvisionalMleasures Order in the Georgia v. Russian Federation Case, in CONFLICT IN THE
CAUCASUS: IMPLICATIONS FOR INTERNATIONAL LEGAL ORDER 80 (James A. Green &
Christopher P. M. Waters eds., 2010).
47. See Geor. v. Russ., 2008 I.CJ. J1[1115-84; International Convention on the
Elimination of All Forms of Racial Discrimination, G.A. Res. 2106, Annex, U.N. GAOR,
20th Sess., Supp. No. 14, U.N. Doc. A/6014. at 47. art. 22 (Dec. 21, 1965) ("Any dispute
between two or more States Parties with respect to the interpreLtation or application of
this Convention, which is not settled by negotiation or by the procedures expressly
provided for in this Convention, shall, at the request of any of the parties to the
dispute, be referred to the International Court of Justice for decision, unlkss the
disputants agree to another mode of settlement.").
generally.48 It set forth the modalities that govern when it can be
said as a matter of law that negotiation has been tried and has
been exhausted. Specifically, the ICJ approached the condition
predicate of negotiations by examining "what constitutes
negotiations; . . . their adequate form and substance; and . . .
to what extent they should be pursued before it can be said that
the precondition has been met."49 It is worth examining the
ICJ's analysis here in some detail.
As to "what constitutes negotiations," the ICJ contrasted
them with "mere protests or disputations." o "[Mlore than the
plain opposition of legal views or interests between two parties,
or the existence of a series of accusations and rebuttals, or even
the exchange of claims and directly opposed counter-claims,"51 a
negotiation requires a "genuine attempt by one of the disputing
parties to engage in discussions with the other disputing party,
with a view to resolving the dispute. "5 A negotiation can be said
as a matter of law to have been tried and to have been exhausted
once the negotiating process experiences "failure . . . or
become[s] futile or deadlocked." 5 Although it may seem
obvious, the ICJ also felt compelled to state that a negotiation
must also relate to the subject matter of the dispute. 4 What is
absolutely clear from this is that, according to the ICJ, when the
parties to a dispute are required to channel the settlement of
their dispute through negotiation, neither can credibly claim
that it need not even attempt to negotiate or that the mere
factual existence of a dispute suffices as a matter of law to show
that negotiation has been tried and has been exhausted.5
As stated above, the ICJ in Georgia upheld Russia's
preliminary objection that the terms of article 22 of the CERD
had not been satisfied and, thus, that there was no jurisdiction
to proceed to the merits. There was not unanimity on this point,
however. A joint dissenting opinion by President Owada, Judges
Simma, Abraham, and Donoghue, and Judge ad hoc Gaja, for
example, contended that the majority had set the "bar" for
negotiation "too high."56 According to this view, negotiation can
be said as a matter of law to have been tried and to have been
exhausted when there is no longer, if there ever was, a
"reasonable possibility of settling the dispute by negotiation."57
Furthermore, this dissent stated that the crux of the majority's
analysis in this regard should have been more firmly rooted in
matters of substance and a realistic assessment of the particular
facts and circumstances of the dispute at issue rather than what
it stated to be a formalistic or procedural perspective.5 8 More
radically, Judge Cantado Trindade's dissenting opinion
dismissed the very relevance of Article 22 of the CERD as a
condition predicate to the ICJ's exercise of jurisdiction in
Georgia, criticizing it for being a "groundless and most
regrettable obstacle to justice.""
55. Hence, the International Court of justice ("IC") rejected Georgia's argument
in its incinorial that, "under Artice 22 of the 1965 Convention, there is no affirmative
obligation for the Parties to have attempted to resolve the dispute through negotiations
(or through the procedures established by the Convention). All that is required is that,
as a matter of fact, the dispute has not been so resolved." Memorial of Georgia,
Application of International Convention on Elimination of All Forms of Racial
Discrimination (Geor. v. Russ.), vol. 1, I.C.J., at 304 (Sept. 2, 2009).
56. Application of International Convention on Elimination of All Forims of Racial
Discrimination (Geor. v. Russ.), Dissenting Opinion, (Apr. 1, 2011), available at
http://www.icj-cij.org/d(ocktc/files/140/16422.pdf (Owada, J., dissenting).
57. Id. 112
58. See id. 11 48-63. But eJ. South West Africa Cases (Eth. v. S. Air.; Liber. v. S.
Ar.), Preliminary Objections, 1962 I.C.J. 319, 346 (Dec. 21) (de-cemphasizing forin and
focusing on the "attitude and views of the Parties on the substantive issues of the
59. Geor. v. Russ., 2011 I.C.J. 1 208 (Cancado TrindadeJ., dissenting). "The Court
cannot keep on embarking on a literal or granimatical and static interpretation of the
terms of compromissory clauses enshrined in those treaties, drawing 'preconditions'
therefrom for the exercise of its jurisdiction, in an attitude reinndful of traditional
international arbitral practice. When huran rights treatics are at stake there is need,
in mny perception, to overcomne the force of inertia, and to assert and develop the
Implicit in all of this, of course, is the idea that negotiation
must be conducted in good faith.o Although this legal principle
is admittedly one that can seem irredeemably vacuous and
question-begging in abstraco, it is, as the ICJ has noted, " [o]ne
of the basic principles governing the creation and performance
of legal obligations, whatever their source,"' and international
law has consistently reaffirmed the centrality of good faith under
the law of negotiation.62 It is a primary law obligation that
focuses mainly, though not exclusively, on process
considerations, and when a treaty requires that the parties to a
dispute settle their dispute by negotiation, good faith "kicks in"
by virtue of Article 26 of the 1969 Vienna Convention on the
Law of Treaties ("VCLT").> This is, to quote Judge Greenwood
in his separate opinion appended to the ICJ's 2010 judgment in
Pulp Mills on the River Uruguay, "implicit,"64 and the fact that
some treaties qualify a duty to negotiate with the phrase "good
faith" is reaffirmative rather than imposing a "new" obligation
The 1925 arbitral award in the Tacna-Arica Question
(TacnaArica)66 gives some texture to this legal principle of good faith
within the context of negotiation. 67 Tacna-Arica, which US
President Calvin Coolidge decided as arbitrator, involved a
dispute between Chile and Peru over the provinces of Tacna and
Arica.6' After the War of the Pacific in the late-nineteenth
century, Chile and Peru agreed that the former State would
possess Tacna and Arica for ten years, after which time,
according to article 3 of the Treaty of Ancon, a plebiscite would
"decide by popular vote whether the territory of the
abovementioned provinces is to remain definitely under the dominion
and sovereignty of Chile or is to continue to constitute a part of
Peru."' 9 What is relevant for present purposes is the award's view
as to how good faith should operate when a legal framework, in
this case, the Treaty of Ancon, indicates an end result, the
holding of a plebiscite, without stipulating the modalities and
timeframe that should govern the manner in which this end
result should be reached.7 0
Given that the Treaty of Ancon on this point was merely an
"agreement to agree with no time specified and no forfeiture
provided,"7' President Coolidge framed the question as a matter
of good faith. Clearly, Chile and Peru had to negotiate in good
faith, and this was an obligation for both States equally unless
one of the States demonstrated a "wilful refusal [. . .] so to
do."72 In their negotiation, both States were free to propose and
obligation in light of the NPT's negotiating history, see Edwin Brown Firmage, The
Treaty on the Non-ProliferationofNuclear Weapons. 63 AM. J. INT'L L. 711. 732-37 (1969).
See also L)ANiEi H. JOYNER, INTERPRETING THE NUCLEAR NON-PROLIFERATION TREATY
66. Tacna-Arica Question (Chile/Peru), 2 R.I.A.A. 921 (1925).
67. Interim Accord cited Tacna-Arica as reflecting customary international law on
this point. See Maced v. Greece, 2011 I.C.J. 1 132 (Dec. 5).
68. For background to the dispute, see Ronald Bruce St. John, Chile, Peru and the
Treaty ofj1929: The FinalSettlement, 8 IBRU BUNDARY& SEC. BULL. 91 (2000).
69. Tacna-Arica, 2 R.I.A.A. at 926. Artidce 3 of the Trcaty ofAncon also stipulated
that the State that would ultimately annex Tacna and Arica after the plebiscite would
have to pay a sum of money to the other State and that the two States would have to
agree to a special protocol before the plebiscite could be held. See id.
70. See id. at 927-44. President Coolidge also decided on the conditions of the
plebiscite and some questions related to the northern and southern boundaries of
Tacna and Aiica. See id. at 944-57.
71. Id. at 928.
72. Id. at 929.
counter-propose conditions that each hoped would ultimately
govern the holding of the plebiscite, and it could not be said
that either State had violated the obligation to negotiate in good
faith provided that it had at all times maintained the required,
so to speak, mens rea. Put differently, neither State could show
an "intent to frustrate the carrying out of the provisions of
Article 3 with respect to the plebiscite; that is, not simply the
refusal of a particular agreement proposed thereunder, because
of its terms, but the purpose to prevent any reasonable
agreement for a plebiscite." 7 A violation of the good faith
obligation "should not be lightly imputed."74 A sustainable case
could, however, be made on the basis of circumstantial evidence,
though not on the basis of "disputable inferences but[, rather,]
by clear and convincing evidence which compels such a
An important point to note in relation to the law of
negotiation is that the duration of the process is not dispositive
when it comes to determining whether it can be said as a matter
of law that negotiation has been tried and has been exhausted.
As the ICJ put it in its 1971 advisory opinion in Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council
Resolution 276 (1970), "[iun practice[,] the actual length of
negotiations is no test of whether the possibilities of agreement
have been exhausted." 76 Similarly, the arbitral tribunal in
Government of Kuwait v. American Independent Oil Company framed
73. Id. at 930.
75. Id.: cf. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 18 (Apr. 9) (permitting a
more liberal recourSe to inferences of fact and circumstatiial evidence" and "indirect
evidence" in another context).
76. Legal Consequences for States of Continued Presence of South Arica in
Namibia (South Wcst Arica) Notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, 1971 I.C.j. 16, 44 (June 21) (continuing by stating that "it may be
sufficient to show that an early deadlock was reached and that one side adamantly
refused to compromise"); see Mavronmmatis Palestine Concessions (Greece v. U.K),
1924 P.C.I.1. (ser. A) No. 2, at 13 (Aug. 30) (stating that "[n]egotiations do not of
necessity always presuppose a more or less lengthy series of notes and despatches; it
may suffice that a discussion should have been commenced, and this discussion may
have been very short; this will be the case if a dead lock is reached, or if finally a point is
reached at which one of thc Parties definitely declares himscf unable, or refuses, to
give way. and there can tIrcfore be no doubt [ha[ the dispute cannot be settled by
diplomatic negotiation" ).
negotiation's temporal dimension as follows: "good faith as
properly to be understood; sustained upkeep of the negotiations
over a period appropriate to the circumstances; awareness of the
interests of the other party; and a persevering quest for an
acceptable compromise."7 7 These are questions that must be
decided by the parties in good faith, on a case-by-case basis, and
with due regard to considerations of reasonableness and
equity.78 The law of negotiation does not focus on temporal
concerns as such; these are secondary. Rather, it looks at good
faith and related considerations. In a word, the focus is on
whether, considering all of the facts and circumstances at issue,
the negotiation is, or can be said to have been, "meaningful."9
The concern is with conduct, not result, on process, not
conclusive resolution.8 " It is a question of due diligence, as
Of course, while the general international law position is
that duration is not dispositive, special rules of law can change
this analysis.8 2A lex specialis within the context of a particular
negotiation can "elevate" the relevance of duration and make it,
if not the sole criterion, certainly a more consequential criterion
than would otherwise be the case under general international
law. The most obvious example of this would be when the
underlying law requires the parties to reach a negotiated
settlement within a fixed period of time." Aiticles 74(
) of the 1982 United Nations Convention on the Law of the
Sea, for instance, would be a less straightforward example.
These articles call for States with opposite or adjacent coasts to
reach agreement with each other as regards the delimitation of,
respectively, the exclusive economic zone and the continental
shelf within a "reasonable period of time."8 4 While there are no
"hard and fast" rules regarding the meaning of a "reasonable
period of time," each case having to be assessed on the basis of
particular facts and circumstances, it is worth noting that the
tribunal in the 2006 arbitral award in Barbados v. Trinidad and
Tobago found that negotiations related to the delimitation of the
exclusive economic zone and the continental shelf over the
course of roughly twenty-five years that failed to result in an
agreement between the States satisfied the criterion of a
"reasonable period of time."85
III. WHEN NEGOTIATION BREAKS DOW
COUNTERMEASURES AND OTHER RESPONSES
Negotiation as a means through which the parties to a
dispute can peacefully settle their differences does not usually
have all of the trappings and formalities of, for example,
arbitration or judicial settlement. As has been shown above,
however, there is nonetheless a framework of legal norms
against which the acts and omissions of the negotiating parties
can be assessed, and a party to a dispute is theoretically no more
(or less) likely to commit (or not) an internationally wrongful
act within the context of a negotiation than it is within the
context of a different means of dispute settlement, be it
diplomatic or legal. With the possibility of an internationally
wrongful act comes the entire panoply of the law of
international responsibility, and within this legal universe are
countermeasures and other responses that a victim party can
compensation within the six-month period oftime that the ICJ had stipulated for them
for a negotiated settlement. The 1(J ended up awarding US$85,000 for Diallo's
nonmaterial injury and US$10,000 for the material injury to his personal property. See
Ahnadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Comrpensation Judgment, 1 61
(June 19, 2012), available at http:'//ww.icj-cij.org/docket/files/103/17044.pdf.
84. United Nations Convention on the Law of the Sea, supra note 23, art. 74, para.
2: id. art. 83, para. 2.
85. See Delimitation of Exclusive Economic Zone and Continental Shelf (Barb. v.
Trin. & Tobago), 27 R.I.A.A. 147, 204 (Perm. Ct. Arb. 2006).
potentially take to facilitate compliance with law and vindication
It might be thought that the absence of third party
intervention in negotiation (in its purest form) and its relatively
informal nature mean that a party to a dispute is left without
recourse if the other party violates its obligations under the law
of negotiation. This, however, is not the case. One of the
responses that a victim party can take is countermeasures, and
these, it must be said, "hover disconsolately on the Stygian
waters which divide the imperfectly held terrain of international
law from the uncontrolled terrain of extralegal anarchy." 86
Within the context of negotiation, countermeasures are meant
to facilitate, and not to obstruct, a negotiated settlement, to
restore equality and symmetry between the parties.87 As the
arbitral tribunal in the 1978 Air Service Agreement of 27 March
1946 Between the United States of America and France ("Air Service
Agreement") defined them, countermeasures are "contrary to
international law but justified by a violation of international law
allegedly committed by the State against which they are
directed." 8 S
The Air Service Agreement arbitral award involved a dispute
between the United States and France concerning
Americandesignated planes undertaking changes of gauge in the United
Kingdom on flights between the West Coast of the United States
and France. The French grounded a Pan American World
Airways (Pan American) flight to Paris Orly Airport and
86. Julius Stone, InternationalConflict Resolution, in INTERNAT oAL ENCYLOPEIA
OF THE SOCIAL SCIENCES (1968); see ELENA KATSELLI PROUKAKI, THE PROBLEM OF
ENFORCEMENT IN INTERNATIONAL LAW: COUNTERMEASURES, THE NON-INJURED STATE
AND THE IDEA OF INTERNATIONAL COMMLNTY 68-76 (2010); Hubert Lesaffre,
Circumstances Precluding 1rongfulness in the ILC Articles on State Responsibility
Countermeasures,in THE LAW OF INTERNATIONAL RESPONSIBILITY, supra note 17, at 469;
Oscar Schachter, International Law in Theory and Practice: General Course in Public
Interatonal Law, in 178 COLLECTED COURSES OF THE -1-AGUE ACADEMY OF
INTERNATIONAL LAW 9, 167-87 (1982); see generally DavidJ. Bederman, Counteintuiting
Countermeasures,96 AM.J. INT'L L. 817 (2002).
87. See Air Service Agreement of 27 March 1946 Between the United States of
America and France, 18 R.I.A.A. 417, 444-45 (Perm. Ct. Arb. 1978).
88. Id. at 444. The corntemporary law related to counterneasure s find its roots in
the notion of reprisals. See Oscar Schachter, Dispute Setlem nt and Countermeaures in the
InternationalLaw Commission, 88 AM. J. INT'L L. 471. 471-72 (1994). For the classic
definition of reprisals, see Responsibility of Germany for Damage Caused in Portuguese
Colonies in South of Africa (Port. v. Ger.), 2 R.I.A.A. 1011, 1025-26 (1928).
suspended future Pan American flights to France. In response,
the US Civil Aeronautics Board required French companies
Union de Transports Ariens and Air France to file with it
existing and future flight schedules related to flights to and
from the United States?' The second of two questions that the
arbitral tribunal had to address was the issue of the lawfulness of
the United States' response to France's actions against Pan
Vhile the arbitral tribunal in Air Serice Agreement ultimately
found in favor of the United States on the countermeasures
issue, what is more broadly interesting than the specific dispute
in that case is the reasoning that was used in assessing the
contours of permissible countermeasures. The arbitral tribunal
noted that, in taking countermeasures, a victim party essentially
"affirm[s] its rights"' and can only do so as a matter of
proportionate response. 0 Obviously, proportionality is not an
exact science, here as elsewhere in the law. According to the
arbitral tribunal, what is involved is "some degree of
equivalence" " and "very approximative appreciation." 9 In
addition to the question of proportionality, the victim party's
"hand" is potentially "strengthened" in that it can also account
for issues of principle arising from the alleged violation of
international law by the other party, not simply the material
injury that may have been caused.95 To this, it might be pointed
out, arbitrator Reuter's dissenting opinion added consideration
of "probable effects."9t It is also crucial to point out that the
arbitral tribunal in Air Service Agreement acknowledged the
permissibility of countermeasures by a victim party within the
context of an ongoing negotiation as long as the dispute at issue
Gabahovo-Nagymaros Project (Gabaihovo-Nagymaros) is the
seminal ICJ case dealing with countermeasures." As its name
suggests, this case involved the Gab~fkovo-Nagymaros Project, a
complex project of locks along the River Danube between
Hungary and Slovakia. Slovakia's purported countermeasure was
a plan that became known as "Variant C," and this involved the
unilateral diversion of the Danube, the construction of an
overflow dam and levee, and some ancillary works." In rejecting
Slovakia's argument that Variant C was a permissible
countermeasure, the ICJ spelled out four criteria that must be
satisfied for any countermeasure to be considered permissible
under international law: (1) it must be responsive and directed
at the wrongdoer; (
) it must have followed an attempt to have
the wrongdoer cease its internationally wrongful act or make
reparation for it; (
) there must be commensurability between
the internationally wrongful act and the injury suffered, all
rights considered; and (
) the countermeasure must be
reversible so as to facilitate what might be regarded as the sine
qua non of any countermeasure, that is, to induce the
wrongdoer to comply with its (violated) international legal
Two of the opinions appended to the majority's judgment
in Gabakovo-Nagymaros are worth examining to fully appreciate
the texture of countermeasures under international law. In his
separate opinion, Judge Bedjaoui agreed with the majority that
Variant C did not qualify as a permissible countermeasure
because it was, inter alia, disproportionate and irreversible.' He
argued, however, that the majority should have made more of
the (illicit) possibility of premeditation and calculated response
by Slovakia as regards to Variant C.102Judge Vereshchetin, in his
Articles on State Responsibi1ity, supra note 82, at 131, art. 50(
) (a) (noting that a State
taking counterneasures renains under an obligation to fulfill its obligations "under
any dispute settlement procedure applicable between it and the responsible State").
98. Gabilkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25).
99. See id. at 25.
100. See id. at 55-57. For affirmation of the Gabhikovo-Nagymaros criteria as
reflective of the customary international law of counlternmasures. see Archer Daniels
Midland Co. and Tate & Lyle Ingredients Americas, Inc. v. Mex., ICSID Case No.
ARB(AF)/04/05,11[ 124-33 (Nov. 21, 2007).
101. See Gabcikovo-Nagvmaros 1997 I.C.J. at 134 (separate opinion of Bedjaoui,J.).
dissenting opinion, accepted much of what the majority had
held as to the black letter law of countermeasures, but he
disagreed with the application of these criteria to Variant C.
According to him, the majority should have been more
searching and critical in looking at the gravity and effect of
Variant C on the particular facts and circumstances of the
dispute at issue.10s Within the context of Variant C, according to
Judge Vereshchetin, these included economic, financial, and
environmental considerations. 104 The respective opinions of
Judges Bedjaoui and Vereshchetin, then, reinforce rather than
undermine the majority's articulation of the lex generalis of
On August 9, 2001, almost four years after the ICJ had
handed down its judgment in Gab(kovo-Nagymaros, the
International Law Commission ("ILC") adopted the Articles on
Responsibility of States for Internationally Wrongful Acts
("Articles on State Responsibility"). 1o1 The Articles on State
Responsibility reflect the inevitability, if not the desirability, of
countermeasures in contemporary international law, and they
build upon the contours of permissible countermeasures as set
forth in Air Service Agreement and Gabahovo-Nagymaros. Given
previous State practice, it is unsurprising that the Articles on
State Responsibility preclude the wrongfulness of a victim party's
conduct when it amounts to a permissible countermeasure in
response to a previous or ongoing internationally wrongful act
by the responsible party, though this is without prejudice to the
possibility of compensation for material loss caused by the
countermeasure.o Articles 49 and 51 mirror the criteria in the
Gabakovo-Nagvmaros test for permissible countermeasures, and
the proportionality calculus, in a nod to Air Service Agreement,
allows the victim party to consider the "purely 'quantitative'
element of the injury suffered . . . [and] also 'qualitative'
factors such as the importance of the interest protected by the
rule infringed and the seriousness of the breach."10 7 Of course,
countermeasures must end when the responsible party's
underlying internationally wrongful act, which triggered the
privilege of countermeasures in the first place, ends.",
The Articles on State Responsibility largely reaffirm the
Gabi/kovo-Nagymaros criteria for permissible countermeasures,
but they also go a step further in that they expressly forbid
countermeasures that "affect" Article 2(
) of the Charter,
obligations that protect "fundamental human rights,"
obligations of a humanitarian nature related to reprisals, and jus
cogens norms. 0 The majority in Gabikovo-Nagvmaroscompletely
avoided referring to these or any other such considerations in its
judgment, though it might be argued that some such
considerations were implied, at least to an extent1."0 Dictated
largely by policy considerations, these are the permissible limits
beyond which countermeasures must not transgress, and the
ILC's final incarnation of them in its 2001 draft is clearer than
the corresponding provisions in its 1996 Draft Articles on State
Responsibility Provisionally Adopted on First Reading.111 Article
50(b) of that draft, for example, sought to prohibit, in
exceedingly vague language, "[e]xtreme economic or political
coercion designed to endanger the territorial integrity or
political independence of the State which has committed the
internationally wrongful act."112
Although the four limits beyond which permissible
countermeasures must not transgress as articulated in the
Articles on State Responsibility arguably improve upon the 1996
107. Id. at 135.
108. See id. at 85, art. 27(a); id. at 135, art.52(
) (a); id. at 137, art. 53.
109. See id. at 131, art. 50(1). In its second paragraph, Artice 50 goes on to note
that a "State taking countermeasures is not relieved from fulfilling its obligations: (a)
under any dispute settlemCent procedure applicable between it and the responsible
State: (b) to respect the inviolability of diplomatic or consular agents, premises.
archives and documents." Id. at 131, art. 50(
110. Only Judge Vercshchetin, in his dissenting opinion, expressly recognized
permissible limits to countermcasures. In his view, they were not at issue with Variant C,
but they were, and are, "the threat or use of force, extreme economic or political
coercion, infringement of the inviolability of diplomatic agents, derogations from basic
human rights or norns of jus cogens." Gabcikovo-Nagynaros Project (Hung. v. Slovk.),
1997 LC. . 7, 222 (Sept. 25) (Vereshchetin,.J., dissenting).
111. See DraftArticles Provisionall Adopted by the Commission on FirstReading, 
2 Y.B. In'l L. Co 1mn 58, 64, art. 50.
112. Id. at 64, art. 50(b).
draft of the State responsibility project, they are still far from
unproblematic. Indeed, they leave much to be desired and
arguably beg more questions than they answer. For example,
countermeasures must not affect, according to article 50 (1) (b)
of the Articles on State Responsibility, "fundamental human
rights," but what is it precisely that makes a human right
"fundamental" as opposed to, one might suppose, a "garden
variety" human right? Do "fundamental human rights" impose
greater obligations upon victim parties with respect to
countermeasures than do, to use the corresponding language in
the 1996 draft of the State responsibility project, "basic human
rights"?'' If so, how, precisely, and in what way?
That countermeasures must not affect jus cogens norms
seems unsurprising as a general principle, but the definition of a
jus cogens norm contained in article 53 of the VCLT surely does
not "interpret itself."" 4 Even if one were to assume agreement
on a definitive list of jus cogens norms, when could it be said that
a countermeasure "affect[s]" such a norm?11 Does "affect"
mean the same as "breach"? One reading might be that the
former would seem to potentially implicate more conduct than
the latter. Are these questions of substance or process? And who,
or what, is to answer them? Most importantly, how is a victim
party reasonably to be expected to answer these questions in a
measured manner without increasing the risk that it will
inadvertently engage in an impermissible countermeasure,
perhaps entailing a violation of a jus cogens norm?
In addition to countermeasures stricto sensu, a party to a
dispute that has suffered an injury under the law of negotiation
can potentially respond on the basis of the classic legal principle
113. Id. at 64, art. 50(d) (emphasis added).
114. VCLT, supra note 63, art. 53 (defining such a norm as one that is "accepted
and recognized by the international community of States as a whole as a norin fron
which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character").
115. Cf Legal Consequences of Construction of a Wall in Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. 136. 214 (July 9) (separate opinion of Higgins,
J.) (critiquing the majorityjudgment for concluding that the separation barrier, rather
than the reaching of a negotiated settlement between Israelis and Palestinians, is what
has complicated, or, one Imight say in the context of Countermi easres, "affcC[[cd]," the
exercise of the right to self-determination).
exceptio non adimpleti contractus.116Exceptio non adimpleti contractus
can best be understood within the context of reciprocal legal
obligation. In his separate opinion appended to Interim Accord,
Judge Simma, though presuming to have presided over the
funeral of the principle and to have "declared [it] dead,"" 7
nicely captured this notion of reciprocity. "Reciprocity,"
according to him, "constitutes a basic phenomenon of social
interaction and consequently a decisive factor also behind the
growth and application of law."1 18 It is Janus headed, both
constructive and destructive, reinforcing stability and licensing
instability, both, according to Judge Simma, "a propelling force
in the making and keeping of the law and . . . a trigger in the
breakdown of legal order."11' One can scarcely think of a means
of dispute settlement in which reciprocity plays a more
pronounced role than negotiation. Under the law of
negotiation, the obligations of the parties to the dispute are
often innately (inter)dependent. Indeed, without the "give and
i)16. As the UK Supreme Court put it in 2010, "'[w] here a plaintiff sues to enforce
performance of an obligation which is conditional upon performance by himself of a
reciprocal obligation owed to the defendant, then the performance by him of this latter
obligation (or, in cases where they are not consecutive, the tender of such
performance) is a necessary prerequisite of his right to sue and should be pleaded by
him. Conversely in such a case the defendant may raise as a defence. known as the
exeptio non adimplet contractas, the fact that the plaintiff has failed to perform, or in the
appropriate case, tender performance of, his own reciprocal obligation."' Inveresk PLC
v. Tullis Russell Paperinakers Ltd.  UKSC 106. 122 (quoting ESE Fin. Servs. Ltd.
v. Cramer, 1973(
) SA 805, 809). SeeJames Crawford & Simon Olleson, The Exieption oj
Non-Perfornance: Links Between the Law of Treaties and the Law of State Responsibity, 21
ALSTL. Y.B. INT'L L. 55, 56 (2000) (casting a definition of exceptio non adimpleti
contractusin general terms as the "principle that performance of an obligation may be
withheld if the other party has itsclf failed to perform the same or a related
117. See Application of Interim Accord of 13 September 1995 (Maced. v. Greece),
Separate Opinion, 1 26 (Dec. 5. 2011). available at http://ww.icj
cij.org/dockct/files/142/16829.pdf (separate opinion of Simina, J.): Uf Joe
Verhoeven, The Law oj Responsibility and the Law of Treaties, in THE LAW OF
INTERNATIONAL RESPONSIBILITY, supra note 17, at 105, 108 (stating that the "material
breach" regime of Artile 60 of the Vienna Convention on the Law of Treaties
("VCLT") incorporates exceptio non adimpleti contractus); Comm'n on Human Rights
Subcoinn'n on the Promotion and Prot. of Human Rights, Suinmary Record of the
14th Meeting, 56th Sess., at 4, U.N. Doc. E/CN.4/ Sub.2/2004/SR.14 (2004)
(statement by Mr. Bossuyt) (conflating exceptio non adimpleti contractas with the
material breach" regime of article 60 of the VCLT).
118. Alaced. v. Greece. 2011 I.C.J. [ 10 (Dec. 5) (separate opinion of Shima J.).
take" that negotiation requires, few negotiated settlements
could be reached.
The ICJ most recently had a chance to clarify the contours
of exceptio non adimpleti contractus in December 2011, in Interim
Accord, but it only dealt with it arguendo and expressly refused to
even acknowledge the existence of the principle in
contemporary international law.12o Of course, this is far from
fatal for the existence of this subsidiary means of redress, and
this is so for a number of reasons. Firstly, the ICJ only refused to
comment upon the status of exceptio non adimpleti contractus
within the context of treaty law, specifically, in that case, the
Interim Accord of 13 September 1995. Thus, it left wholly
untouched the principle's status in contexts other than or only in
treaty law, that is, in contexts in which the legal obligation said
to have been violated roots itself other than or only in straight
application of a treaty norm. Secondly, it could be said that
the fact that the ICJ even dealt with the principle arguendo lends
credence to it, and not simply within the context of treaty law.
To exaggerate the argument within the context of Interim Accord,
if Greece had sought to justify its conduct on a clearly
prohibited normative basis, such as a "need" to engage in
genocide, the ICJ would clearly have condemned this
justification as having no place in contemporary international
law. That it refused to do so vis-a-vis exceptio non adimpleti
contractus in Interim Accord reflects, at the very least, a colorable
claim within the context of treaty law, and again, this is to say
nothing of the principle's operation in contexts in which the
legal obligation said to have been violated roots itself other than
or only in straight application of a treaty norm. Finally, to
grapple with the question of exceptio non adimpleti contractus'
existence in contemporary international law as if this were a
"yes" or "no" proposition, that is, that the principle must either
"exist" or "not exist," may itself be an unduly simplistic
approach. Indeed, it may be more appropriate to inquire as to
120. Seeid. 114-65.
121. Cf Crawford & Olleson, supra note 116, at 62-63 (articulating an
undersLaniding of exceptio non adimpleti contractusthat could conceivably exist outside of
international treaty law).
the "scope" of the principle rather than whether or not it is
"recognized" as such.122
Some of the opinions appended to Interim Accord provide
further support for the existence of exceptio non adimpleti
contractus in contemporary international law, in particular the
declaration and dissenting opinion of, respectively, Judge
Bennouna and Judge ad hoc Roucounas. Judge Bennouna cast
the principle within the broader context of reciprocity and went
on to positively affirm its existence "under a strict construction
of reciprocity in the implementation of certain international
obligations, where the implementation of one is inconceivable
without the other. These are obligations of a strictly
interdependent nature." 123 One senses here an
acknowledgement by Judge Bennouna that exceptio non adimpleti
contractusexists in international law generally, irrespective of the
particular source of law at issue. In his dissenting opinion, Judge
ad hoc Roucounas rejected judge Simma's view that article 60 of
the VCLT had somehow "displaced" exceptio non adimpleti
contractus.124 Indeed, for Judge ad hoc Roucounas, the nature of
the principle and the constant overlap that exists between
general international law and international treaty law mean that,
"[a] s a defence to the non-performance of an obligation, it is a
general principle of law, as enshrined in Article 38, paragraph
1(c), of the Statute of the Court. "125
This view supporting the existence of exceptio non adimpleti
contractusin contemporary international law was also affirmed in
Klackner Industrie-Anlagen GmbH & Others v. Republic of
Cameroon12t and has scholarly support.1 27 Indeed, as ILC Special
Rapporteur Professor James Crawford noted in his Third Report
on State Responsibility in 2000, it is recognized in law by a
"respectable body of international authority and opinion."12 8 It
is also worth noting that in acknowledging the existence of
exceptio non adimpleti contractus in contemporary international
law in its 2002 award in La Aplicaci6n del "Imesi" (Impuesto
Especifico Interno) a la Comercializaci6n de Cigarrillos, an ad hoc
Mercado Comun del Sur tribunal effectively recognized that the
circumstances that can justify the use of this legal principle are
different than those under the "material breach" regime of
article 60 of the VCLT: a "violaci6n sustancial; [sic] del tratado y
teniendo ella caracteristicas esenciales"1 29 for the former rather
than, as regards the latter, a "violaci6n grave."Is0 In Eureko BV v.
Poland, furthermore, a 2005 arbitral award decided under
United Nations Commission on International Trade Law
arbitration rules in response to a dispute between the
Netherlands and Poland, the tribunal defined exceptio non
adimpleti contractus as the "exception of non performance" 1
and noted that this legal principle relates to "simultaneous
performance of particular obligations, i.e. mutuality," 1 2 and
could only in theory apply to cases of "simultaneous or
conditional performance." 1 This careful language suggests that
exceptio non adimpleti contractus requires two elements, reciprocity
and non-performance, and that the latter of these two elements
need not necessarily rise to the level of a "material breach" as
understood by article 60 of the VCLT.1
A final response that a party to a dispute can potentially
take if it has suffered an injury under the law of negotiation lies
in the "material breach" regime of article 60 of the VCLT. This
is a truly radical option in that it allows the victim party to sever
treaty relations with the responsible party, though a party that
has suffered a "material breach" and wishes to invoke this
regime must be careful to observe such related modalities as not
expressly condoning or by its conduct acquiescing in the
continued validity of the treaty. 13" Analogous to the limits
beyond which permissible countermeasures must not transgress
as articulated in the Articles on State Responsibility, the
"material breach" regime does not apply to "provisions relating
to the protection of the human person contained in treaties of a
humanitarian character, in particular to provisions prohibiting
any form of reprisals against persons protected by such
treaties." '6 This reflects a naturalist impulse in the law of
treaties, but as with countermeasures, what precisely is meant by
these exclusions is not altogether clear. 37
In cases in which a treaty sets forth detailed provisions that
seek to regulate the negotiation process, the violation by one of
the parties of its obligations under the law of negotiation as set
forth in the particular treaty at issue will take on added
significance as compared with a more generalized treaty that
only deals with the modalities of negotiation in cases of dispute
as but one aspect of the overall treaty. Given the subject matter,
133. Id. 177. It should be noted that, as the ICJ had done in Interim Accord, the
arbitral tribunal here refused to even acknowledge the existence of exceptio non
adimpleti contractusin contemporary international law. See id.
134. It is worth noting that in a colninentary to Article 60 of the VCLT that he
coauthored in 2011 with Christian Tams. Judge Sinuna conceded that the "Inaterial
breach" regime deviated from the concept of reciprocity that is inherent to exceptio non
adimpleti contractus. See Bruno Sinuna & Christian J. Tains, Article 60, in 2 THL VILNNA
CONVENTION ON THE LAW F'TRLATILS: A COMMENTARY 1331, 1377-78 (Olivier CorLten
& Pierre Klein eds., 2011).
135. SeeVCLT, supranote 63, art.45.
136. Id. art. 60(
137. See Simma & Tams, supra note 134, at 1366-70.
it is more likely that a party's violation of its negotiation
obligation under the former type of treaty could be considered a
"material breach" in the sense of Article 60 of the VCLT, that is,
in the context of a bilateral treaty, a "repudiation of the treaty
not sanctioned by the present Convention; or . . . the violation
of a provision essential to the accomplishment of the object or
purpose of the treaty," 1" thus allowing the victim party to
terminate or suspend the treaty. Of course, this is not to say that
a party's violation of its negotiation obligation under the latter
type of treaty could not rise to the level of a "material breach."
Indeed, it very well could, as long as it meets the "material
breach" test.'" This raises the obvious point that it is difficult to
make general conclusions as to "material breach," and the
significant consequences that can potentially flow from this, in
When the parties to a dispute exercise their freedom to
choose by deciding to negotiate, they are making a tangible
contribution to the peaceful settlement of disputes. This is to be
encouraged. To facilitate this, international law has developed
such that certain modalities govern when it can be said as a
matter of law that negotiation has been tried and has been
exhausted. Unsurprisingly, the law of negotiation in this regard
is extraordinarily fact-specific, and it involves considerations of
both procedural and substantive law. What is clear is that the
non-arbitral and non-judicial nature of negotiation in no way
detracts from the seriousness of legal obligation for the
138. VCLT, supranote 63, art. 60.
139. it should also be pointed out that the "matelrial breach" regime is itscf not
without what seem to be its own internal inconsistencies in logic. See Simma & Tams,
supra note 134. at 1359 (pointing out, quite accurately, that a textual analysis of the
article supports the view that "Artice 60 does not legitimize responses to grave
breaches of treaty provisions which are not essential, but . . . that trivial breaches of
essential provisions can constitute material breaches in the sense of Article 60,
paragraph 3(b) ").
140. On Article 60 of the VCLT in the jurisprudence of the ICj, see Application of
Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment, 1 23-25 (Dec. 5.
2011). available at http://www.ic-cij.org/dockct/filcs/142/16829.pdf, (separate
negotiating parties as they attempt to peacefully settle their
That international law empowers a party to a dispute that
has suffered an injury under the law of negotiation to potentially
resort to countermeasures and other responses when a
negotiation breaks down need not be a particularly alarming
proposition. Indeed, in the words ofJessup, a year before he was
to become Judge Jessup of the ICJ, these may be "necessary as a
safety-valve lest national feelings be strained to a point at which
the state yields to the temptation blatantly to violate
international law."' 41just as it is true that a response by the
victim party of any description to violations of the law of
negotiation by the other party could inflame a dispute in certain
contexts, so a victim party's failure to respond at all could doom
the prospects of a settlement in other contexts. As long as the
victim party acts reasonably on the particular facts and
circumstances, however, then neither need it fear the law nor
need the law in this area risk being hopelessly compromised. As
the arbitral tribunal in Air Service Agreement put it, such
responses are a "wager on the wisdom, not on the weakness of
the other Party." 4 2
2. Id. at 61 ( MooreJ ., dissenting).
3. SeeJ. G. MERRILLS, INTERNATIONAL DISPUTL SETTLLMLNT 1 (5th ed. 2011 ) ("A dispute may be defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another."); see also Questions Relating to Obligation to Prosecute or Extradite (Helg . v. Sen.), judgment, 1 46 July 20 , 2012 ), available at http://www.icj-cij.org/ docket/files/144/15054.pdf: Application of International Convention on Elimination of All Forins of Racial Discrimination (Geor . v. Russ.), Preliminary Objections , 1 30 ( Apr . 1, 2011 ), availableathttp://www.icj-cij.org/docket/files/ 140/16398.pdf.
4. U.N. Charter art. 2, para . 3.
5. See id. art. 2 , para . 4.
6. See League of Nations Covenant arts. 12 - 17 .
7. On Chapter TIof the UN Charter, with particular reference to Article 33, see Rosalyn Higgins, InternationalLaw and the Avoidance, Containment and Resolution of Disputes: General Course on PublicInternatonal Law, in 230 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTLRNATIONAL LAw 9 . 225 - 28 ( 1991 ). See also 2005 World Summit Outcome, G.A. Res . 60 /1, U.N. Doc . A/RES/60/1, at 21 (Sept. 16, 2005 ); Anne Peters, InterationalDispute Settlement: A Aetwork of CooperationalDuties, 14 EUR .J. INTL L. 1 4 - 9 ( 2003 ) ; see generally Manfred Lachs, The Law and the Settlement of InternationalDisputes. in DISPUTE SETTLEMELNT THROUGH THL UNITED NATIONS 283 (K Venkata Ranan ed ., 1977 ).
11. Mavrommatis Palestine Concessions (Greece v . U.K.), 1924 P.C.I.]. (ser. A) No. 2 , at 62- 63 (Aug. 30) (Moore J. , dissenting).
12. Id . at 91 (Pessoa, J., dissenting).
13. See Appellate Body Report , Mexico-Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)fron the United States . 1 54 . W /DS132/AB/RWX (Ot. 22. 2001 ).
14. See J. G. Merrills , The Mosaic of International Dispute S(ttlem nt Procedures: Complementary or Contradictory ? 54 NLTH . INTL L. RLV. 361 , 366 ( 2007 ).
15. Lachs , supranote 7. at 289.
16. Id .
26. Id . art. 25 .
27. Id . art. 24 , para . 1.
28. S.C. Res . 395 , 1 3, U.N. Doc . S/RES/395 (Aug. 25 , 1976 ). For another of the Security Council's "callings upon" to negotiation involving another dispute in the eastern Mediterranean with obvious implications for Greece and Turkey, see S.C. Res . 12501 7, U.N. Doc . S/RES/1250 (June 29, 1999 ).
29. See Aegean Sea Continental Shelf (Greece v . Turk.), Interim Measures, 1976 I.C .J 3 , 13 (Sept. 11).
30. Acgean Sea Continental Shelf (Grecce v . Turk.) , 1978 I.C.J. 3 ( Dec . 19).
31. See id . In Paragraph 4 , Resolution 395 also  nvit[ed] the Governments of Greece and Turkey . . . to continue to take into account the contribution that appropriate judicial means, in particular the International Court of Justice, are qualified to make to the settlement of any remaining legal differences which they may identify in connexion with their present dispute." S.C. Res . 395 , 1 4, U.N. Doc . S/RES/395 (Aug. 25 , 1976 ).
32. Aegean Sa , 1978 I.C.J. at 12; see id. at 52-53 (separate opinion of Lachs,J.).
33. See Waibel, supra note 17 , at 1094-95.
34. See Free Zones of Upper Savoy and District of Gex (Fr . v. Switz.), Order, 1929 P. Cj .I. (ser . A) No. 22 , at 13 (Aug. 19) (stating that the Permanent Court of International Justice ("PCIJ") had a "facilitat[ive]" role with regards to "direct and friendly settleICent," though only "so far as is compatible with its Statute" ).
35. See Application of Interim Accord of 13 September 1995 (Maced . v. Greece), Dissenting Opinion , 5 ( Dec . 5. 2011 ) available at http://www.icjcij.org/d(ocktc/files/142/16833.pdf (Xue J., dissenting); id 16 (Roucounas , J., dissenting), available at http://www.icj-cij.org/docket/files/142,/16835.pdf. But cJ Peters, supra note 7 , at 15 ( suggesting that a court in such circumstances might be inclined to view this as an abuse of process).
36. See Maced v. Greece , 2011 LC.. 1 [[ 57 - 60 ; see also Legal Consequences of Construction of a Wall in Occupied Palestinian Territory , Advisory Opinion, 2004 I.C.J. 136 , 159 - 60 ( July 9 ).
37. Judgments of Administrative Tribunal of International Labour Organization Upon Complaints Made Against United Nations Educational, Scientific and Cultural Organization, Advisoly Opinion, 1956 I.C J. 77 . 86 (Oct. 23 ).
38. SeeJudgment No. 2867 of Administrative Tribunal of International Labour Organization Upon a Comrplaint Filed Against International Fund for Agricultural Development , Advisory Opinion, 1 [ 33 - 34 ( Feb . 1 2012 ), available at http://'ww.icj cij.org/docket/iles/ 146/ 16871 .pdf.
39. Application of International Convention on Elimination of All Forms of Racial Discrimination (Geor . v. Russ.), Preliminary Objections , 1 [30 ( Apr . 1. 2011 ), availableat http://www.icj-cij.org/docket/files/140/16398.pdf; see Phoebe Okowa. The InternationalCourt ofJustice and the Georgia/RussiaDispute , 11 IHUM. Ris. L. REV. 739 ( 2011 ).
40. For a fairly thorough articulation of the law ofnegotiation outside the context of the ICJ prior to Geor. v. Russ, see German External Debts Arbitration (Kingdom of Grecce v . F. R. G.), 47 I.L.R. 418 . 451 - 62 ( 1972 ).
41. See generally North Sea Continental Shelf (F. R . G. v. Den.: F. R. G. v. Neth.) , 1969 IC. . 3 (Feb. 20).
42. See id. at 46.
43. Id . at 47.
44. Id .
48. Application of International Convention on Elimination of All Forms of Racial Discrimination (Geor . v. Russ.), Preliminary Objections , 1 [30 ( Apr . 1 2011 ), availableat http://www.icj-cij.org/docket/files/140/16398.pdf. But (f Mavronatis Palestine Concessions (Greece v . U.K.), 1924 P.C.I.J . (ser. A) No. 2, at 13 (Aug . 30).
49. Geor . v. Russ.. 2011 I.C.J. J [ 156 .
50. Id . 157 .
51. Id .
52. Id .
53. Id . 159 ( citations omitted) . In its July 2012 judgincnt in QuestionsRelating to the Obligation to Proecute or Extradite, the International Court ofjustice ("ICj") clarified that it could be said that negotiation had been tried and had been exhausted when the "basic positions . . . [of the parties to a dispute had] not subsequently evolved." Questions Relating to the Obligation to Prosecute or Extradite (Belg . v. Sen.), Judgment. 59 (July 20 , 2012 ), available at http://www.icj cij.org/docket/files/144/17064.pdf.
54. See Geor . v. Russ . 2011 I.C.J. 1 161 .
77. Gov 't of Kuwait v . Am. Indep. Oil Co. (Aminoil) , 66 .L.R. 518 , 578 ( Int'l Aib . Trib . 1982 ) (emphasis added).
78. See Interpretation of Agreement of 25 March 1951 Betwccn World Health Organization and Egypt , Advisory Opinion, 1980 I.C.J. 73 , 96 (Dec. 20).
79. Application of Interim Accord of 13 September 1995 (Maced . v. Greece), Judgment. [ 134 (Dec. 5 , 2011 ), available at http://www.icjcij.org/docket/files/142/16827.pdf.
80. See id.
81. See generally Robert P. Barnidge , The Due DiligencePrinciple UnderInternational Law , 8 INT'L CMTY. L. RLV . 81 ( 2006 ) (discussing the due diligence principle generally under international law ).
82. See generall Responsibility ofStatesfor A -ternatioWnarlolnygful Acts , [ 2001 ] 2 Y.B. Int'l L. CoLm'n , L.N. Doc . A/CN4/SER.A/2001/Add.I [hereinafter Articles on State Responsibility].
83. See , e.g., Alinadou Sadio Diallo (Guinea v . Demt. Rep. Congo) , 2010 I.C.J. 639 , 691 - 92 (Nov. 30). For a view supporting the ICJ's ordering of a negotiated settlICnt as to reparation within a fixed period of time in its November 20 10judgment in Diallo, see Sandy Ghandhi, Human Rights and the International Court ofJustice: The Ahnadou Sadio Diallo Case, 11 Hum . RTs. L. RLV. 527 , 551 - 53 ( 2011 ). In the wake of Diallo, Guinea and the Democratic Republic of the Congo failed to reach agreement on
89. Air Serice Agreement, 18 R. I.A .A. at 419-23.
90. See id. at 441-46.
91. Id . at 443.
92. Id . On proportionality of countermneasures generally under international law, see PROUKAKI, supra notC 86 . at 260- 76 . and Thomas M. Franck , On Proportionalityof Countermeasuresin InternationalLaw, 102 AM. J. INT'l 1 . 715 ( 2008 ).
93. Air Serice Agreenent, 18 R.I.A .A. at 443.
94. Id . at 444.
95. See id. at 443.
96. Id . at 448 (Reuter. Aib.. dissenting).
97. See id. at 445-46; see also Yuji Iwasawa & Naoki lwatsuki, ProceduralConditions, in THE LAXWOF INTERNATIONAL RESPONSIBILITY , supra note 17, at 1149 , 1152 - 54 . But c
103. See id. at 224 (Vereshchetin,J., dissenting).
104. See id.
105. Articles on State Responsibility, supra note 82 . For a historical overview of the International Law Cornnission's decades' long State responmibility project, see JaInes Crawford, Introduction, in THE INTERNATIONAL LAW COMM1ISSION's ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION. TEXT. AND COMMENTARIES 1 (James Crawford ed ., 2003 ).
106. SeeAricle on State Responsibility, supra note 82 , at 75, art. 22; id. at 85, art. 27 .
122. See Application of Interim Accord of 13 Septcnber 1995 (Maced . v. Greece), Declaration, at I ( Dec . 5, 2011 ), available at http:/,/vw.icjcij.org/docket/files/142/16833.pdf (Bennouna, J., dissenting) ( stating that "the issue is not about determining whether or not a given theory is recognized by general international law, but rather of ascertaining the scope, in general international law, of the principle of reciprocity, presented as exceptio non adimpleti contractus,with regard to the obligations of the parties under the Interim Accord and , specifically, Article 11 thereof'); see also Serena Forlati, Reactions to Non-Perjormance of Treaties in International Law, 25 LLIDENJ. INT'L L . 759 ( 2012 ).
123. Maced v. Greece . 2011 I.C.J. at 1 (BennounaJ ., declaration).
124. See id. 66 (Roucounasj. dissenting).
125. Id . ; see Diversion of Water fron Mcuse (Neth . v. Belg.) , 1937 P.C.IJ. (ser . A/B) No. 70 , at 77 (June 28) (separate opinion of Hudson , J.); see also Articles on State Responsibility, supra note 82 , at 72. But see Crawford & Olleson, supranote 116 , at 73.
126. See Klockner Industrie-Anlagen GmbH & Others v. Rep. of Cameroon ( 1983 ), 114 I.L.R. 152 , 210 - 12 ( 1999 ) (recognizing the existence of exceptio non adimpleti contractus in international law, French law , and English law).
127. See , e.g., Alain Pellet & Alina Miron , Sanctions, MAX PLANCK ENCYCLOPEDIA 01 PUBLIC INTERNATIONAL LAW, 1 4 (July 2011 ), http://www.mpepil.com/subscriber article? id=/cpil/entrics/law-9780199231690-c984; Jan Peter Schmidt, MERCOSUR , MAXPLANCKEACYCLOPEDIA OFPUBLJITERNATIONAL LA 1 , 32 (Oct. 2008 ), availableat http://www.ipepil.com/subscribcr-article?id=/cpil/cntrics/law-9780199231690-c655.
128. Int'l Law Comin'n , Third Report on State Responsibility , at 35, U.N. Doc . A/CN.4/507/Add.3 ( 2000 ) (citing supporting authority).
129. Laudo del TribunalArbitral "adhoc" de MERCOSUR Constituido ParaDecidir en la ControversiaEntre la Repfublica del Paraguaya la Republica Orientaldel Uruguay Sobre la Aplicacion del "Imesi" (Impueso EspecificoInterno) a la Comercializacionde Cig-arrillos [Award ofthe Tribunal "ad hoc" IERCOSUR Constituted to Decide the Dispute Between the Republic of Paraguay to the Republic of Uruguay on the Implementation of "Imesi" (Excise Tax) by the Marketing of Cigarettes] , in LAUDos , ACLARACTONES, Y OPINIONES CONSULTIVAS DEL LOS TRIBUNALES DEL MERCOSUR 208 , 213 ( 2002 ).
130. On the "material breach" regime of Articlc 60 of the VCLT , see infra notes 134-40 and accompanying text.
131. Eureko BV v. Pol., Ad hoc- UNCITRAL Arbitration Rules, IC 98, 1 176 ( 2005 ).
132. Id . 179 .
141. Philip C. Jessup , A Half-Century of Efforts to Substitute Law for War, in 99 COLLECTED COURSES OF THF HAGUE ACADEMYOF INTERNATIONAi LAW 1 , 17 ( 1960 ).
142. Air Service Agreement of 27 March 1946 Between United States of America and France ( 1978 ), 18 R.I.A.A. 417 . 445 (making this point within the specific context of cou ntermeasures).