Anthony Aust. Handbook of International Law

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disproportionate’.

But everything depends on the particular facts and circumstances.

Procedural conditions

Resort to countermeasures is an exceptional action. Therefore, before embarking on that course, the

injured state should take the procedural steps set out in Article 52. However, since they may well not

represent customary international law, we use the conditional tense (‘should’, rather than ‘shall’ or

‘must’). First, the injured state should call upon the responsible state to cease its wrongful act and to

make reparation. In practice, it is likely that this requirement will have already been met by

discussions – albeit brief – between the two states. Secondly, the injured state should notify the

responsible state of its decision to take countermeasures, and offer to negotiate. Thirdly, since in

many situations these two requirements may take too long, paragraph 2 recognises that the injured

state may take ‘such urgent countermeasures as are necessary to preserve its rights’, such as freezing

bank accounts held in the injured state. The ‘rights’ referred to are both the right to take

countermeasures and the primary rights that are the subject matter of the dispute. Fourthly, the

countermeasures should be suspended ‘without undue delay’ if the wrongful act has ceased or the

dispute is ‘pending’ before an international court or tribunal that has jurisdiction to make decisions

on the parties. The dispute will be ‘pending’ only once the court or tribunal is in a position to deal

with the case. If it is an ad hoc tribunal set up pursuant to a treaty, the dispute will be pending only

when the tribunal is actually constituted, and this can take months.

This latter provision

presupposes that the court or tribunal will have the power to order interim measures of protection.

If the dispute has been referred by a national of the injured state to a tribunal,

countermeasures

would not be justified except in exceptional cases. Fifthly, countermeasures may be taken or

continued if the responsible state fails to implement the dispute settlement procedures in good faith,

such as non-cooperation in the establishment or procedure of a tribunal, non-compliance with an

interim measures order or a refusal to accept the final decision. Countermeasures must of course be

81. Air Services Agreement of 27 March 1946 (US v. France), (1978) 54 ILR 303, para. 83. See also

Gabcíkovo-Nagymaros Project (Hungary . Slovakia), ICJ Reports (1997), p. 7, at paras. 85 and 87; ILM

(1998) 162; 116 ILR 1.

82. See p. 442 below.

83. See p. 459 below.

84. See p. 374 above.

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terminated as soon as the responsible state has complied with its obligations of cessation and

reparation (Article 53).

It is possible that a state may lose its right to take countermeasures if it delays doing so for so long

that it must be deemed to have waived its right to take them.

Obligations not affected by countermeasures

Article 50 lists four obligations which must never be affected by countermeasures: (a) to refrain

from the threat or use of force; (b) to protect fundamental human rights; (c) the prohibition in

international humanitarian law of reprisals; (d) peremptory norms of general international law.

Paragraph 2 lists two other obligations which have important functions in relation to the resolution

of the dispute that has given rise to the threat or use of countermeasures, and which must therefore

also be respected: (a) obligations under any dispute settlement procedure applicable between the two

states; and (b) obligations to respect the inviolability of diplomatic or consular agents, premises,

archives and documents.

Responsibility of an international organisation

Article 57 makes it clear that the Articles do not affect any question of the responsibility of an

international organisation, or of any state for the conduct of an international organisation. An

international organisation has international legal personality separate from its member states

and

there can no longer be any doubt that the organisation is responsible in international law for its own

acts.

The ILC began consideration of the topic of the responsibility of international organisations

only in 2002. It seems very likely that, in producing draft Articles on this topic, it will use those on

state responsibility as a model.

There are various problems that will have to be addressed. First, whose conduct can be

attributable to the organisation? In most cases, there will be no problem, but what if a person is

injured (in the broadest sense) by the conduct of an official of a state implementing a decision of

85. See p. 198 above.

86. See Difference Relating to Immunity (Cumaraswamy) Advisory Opinion, ICJ Reports (1999), p. 62 at

para. 66; 121 ILR 405; and Article 60 of the Vienna Convention on the Law of Treaties between States and

International Organisations and between International Organisations 1986 (ILM (1986) 543), although it is

not yet in force.

87. See the ILC Report for 2003, para. 44, and the current state of play at www.un.org/law/ilc/.

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the organisation, such as sanctions? Is the organisation liable? Secondly, whereas an organisation

can be liable to a state that is not a member of it, can it be liable to its member states? There would

seem no reason in principle why not. Although one must be careful of pushing the analogy with

companies too far, a company that injures a person is liable even if he is a shareholder or employee.

Thirdly, are the member states liable collectively for the conduct of the organisation? This is the

most controversial issue.

Article 3(4) of the Agreement establishing the International Fund for

Agricultural Development 1976 provides expressly that no member shall be liable by reason of its

membership for acts or obligations of the Fund.

If this represents the position in international law,

a subsidiary question is whether there could be circumstances in which one could ‘lift the corporate

veil’ to expose the member states to liability? Although it is not directly related to these issues, it

may be relevant that most international organisations have more or less total immunity from

jurisdiction conferred on them, so that domestic legal remedies are generally not available,

and

that international dispute settlement mechanisms generally do not have jurisdiction over

international organisations.

Individual responsibility

Article 59 makes it clear that the Articles do not affect any question of the individual responsibility

under international law of any person acting on behalf of a state. Although a state is responsible for a

wrongful act of its officials or agents, they may also have individual criminal responsibility for the

same acts. This is especially so for violations of the law of armed conflict and other international

crimes.

The Article leaves open the issue of possible individual civil responsibility for such

crimes.

88. See the helpful summary of how the English courts wrestled with this problem in the International Tin

Council legislation in J. Klabbers, An Introduction to International Institutional Law, Cambridge, 2002,

pp. 303–6, and pp. 300–19 on this particular topic generally.

89. 1059 UNTS 191 (No. 16041); ILM (1976) 922; UKTS (1978) 41.

90. See p. 199 above.

91. Klabbers, J. Klabbers, An Introduction to International Institutional Law, Cambridge, 2002, pp. 254–5.

92. See p. 177 above.

93. See Article 14 of the Torture Convention, 1465 UNTS 85 (No. 24841); ILM (1984) 1027; UKTS

(1991) 107; BGG, p. 229.

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22 Settlement of disputes

the law’s delay . . .

Collier and Lowe, The Settlement of Disputes in International Law, Oxford, 1999

Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 671–94

Merrills, International Dispute Settlement, 3rd edn, Cambridge, 1998

Handbook on the Peaceful Settlement of Disputes between States, UN, New York, 1992

Any respectable domestic legal system has a hierarchy of tribunals ending with a final court of

appeal. International law has no such system. Since each state is sovereign, it cannot be required to

submit to the jurisdiction of an international tribunal (which term includes international courts)

unless it has consented to its jurisdiction. And there is no hierarchy of tribunals, but rather an

unsystematic patchwork.

Even though judgments of the International Court of Justice (ICJ) are very

influential, it is not at the apex of the international legal system. In this chapter, we look at some

international tribunals. (See p. 246 above for the European Court of Human Rights, p. 273 above for

international criminal tribunals, p. 382 above for the World Trade Organization and p. 475 below for

the European Court of Justice.)

Many disputes are settled quickly and informally; others can take many years to resolve; some are

never resolved; and with some it is better to manage them than attempt a resolution.

A dispute is

usually between only two parties. There is no one method of dispute settlement, or even

1. W. Shakespeare, Hamlet, .i.56.

2. For a chart showing the main universal and regional international courts and tribunals, see www.pict-

pcti.org.

3. See R. Jennings, ‘The Role of the International Court of Justice’ (1997) BYIL 1 at 51, n. 100, where he

cites as an example the Antarctic Treaty 1959 (402 UNTS 71 (No. 5778); UKTS (1961) 97) in which the

parties have effectively frozen their sovereignty dispute.

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one that is generally used. Nor is the method necessarily dictated either by the importance or

magnitude of the dispute or how long it has lasted. There are treaty disputes that are never settled

even when a method is provided in the treaty itself. (The term ‘settle’ is used here in the more

general sense of ‘resolve’, and not in its narrow sense of agreeing terms upon which pending

litigation is discontinued.)

In the UN Charter, Article 33 elaborates the basic principle enunciated in Article 2(3), that all

Members shall settle their international disputes by peaceful means, and lists the most usual ones:

negotiation, mediation, conciliation, arbitration and judicial settlement. The methods can be broadly

divided into voluntary and compulsory, depending on whether or not the parties to a dispute are

under a treaty obligation to enter into a particular means of settlement. But this does not mean that

under a voluntary process the parties will never be bound by the result; nor that under a compulsory

process the result will always be binding: it depends entirely on the terms that have been agreed.

Informal means

We will first look at methods of resolving legal disputes that do not involve an international tribunal,

although the parties should still need lawyers.

Negotiations and consultations

There is of course nothing to prevent the parties seeking to resolve a dispute by direct negotiations,

and this is normally the first step in every dispute. Even if the dispute is to be referred to arbitration

or judicial settlement, it is desirable that the points at issue should be better defined by negotiations.

Held in decent privacy, they may also make it easier to reach a settlement. Once a dispute is elevated

to a more formal or public level, it can be more difficult, at least politically, to settle. Positions

become entrenched and public ‘face’ may require that neither side should be seen to compromise.

Negotiating procedures are infinitely flexible, the process being completely under the control of

the parties. Once a third party is brought in, the negotiations may gain a momentum of their own

which the parties (at least individually) may not be able to stop or influence effectively. This may be

one reason why most disputes are settled by bilateral negotiations; although it may also be true that

most disputes are not so intractable that the parties have to resort to more formal methods. One

should treat with

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great caution any proposal for a new general treaty on dispute settlement.

There are already quite

enough of them and, although formal methods of dispute settlement have an important role to play,

they are often no substitute for, or no better than, a carefully negotiated settlement.

Negotiations can last as long as the parties wish, and may be stopped and resumed at any time,

although some dispute settlement clauses in treaties prescribe a time limit after which either party is

free to invoke whatever third-party means of settlement is provided for in the treaty.

There is no significant difference between consultations and negotiations, although consultations

are often made a formal pre-condition for moving to a third-party settlement procedure. The UK/US

Air Services Agreement 1977 (‘Bermuda 2’) provides for a dispute to be the subject of a ‘first round

of consultations’ before it can be submitted to third-party settlement,

and ‘first round’ means at

least two meetings with a break in between for reflection. Some treaties require the parties to do no

more than enter into consultations or negotiations with a view to reaching a settlement or to agreeing

on another method of settlement. These have to be implemented in good faith, so they must be

conducted purposefully.

If negotiations are successful, it is essential that the parties record what has been agreed. The form

will depend on the circumstances. It may involve an amendment to a treaty or a public statement. If

the parties do not want publicity, they may record the terms of settlement in an unpublished MOU.

Although not itself legally binding, an MOU may nevertheless have legal consequences, as was

demonstrated in the award in the UK/US User Charges Arbitration.

If the negotiations are not successful, one of the parties to a treaty dispute may decide to terminate

the treaty. This could be described as ‘the other way of settling a dispute’. Since 1945, the United

Kingdom has terminated at least four air services agreements: Philippines (1953 and 1984); United

States (1976); and Lebanon (1981).

Sometimes a dispute becomes so bad that termination and

starting afresh is the only sensible way out of the impasse. It does not mean, of course, that the

dispute may not still be settled by reference to a third party if the treaty so provides

4. See A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR 243 at 247–8.

5. 1079 UNTS 21 (No. 16509); UKTS (1977) 76.

6. See pp. 53-7 above on MOUs.

7. 102 ILR 215, especially 561–4.

8. A. Aust, ‘Air Services Agreements: Current United Kingdom Procedures and Policies’ (1985) Air Law

189 at 198–9.

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(a dispute settlement clause usually remains in force in relation to matters occurring before

termination of the treaty),

or the parties may agree to this. Termination can have the advantage of

effectively drawing a line under the dispute, so enabling the parties to negotiate a new treaty.

Involvement of third parties

It may be necessary to seek the help of a third party. Whether this will be successful – even whether

it will be possible – will depend on various factors. One will be the degree of cooperation from the

other party to the dispute. Despite the existence of several general treaties on the settlement of

disputes, in many cases there will be no agreement binding the parties to any means of third-party

settlement applicable to the particular dispute. It would then be necessary to negotiate – probably in

unfavourable circumstances – an ad hoc agreement on a method of settlement. If the method is

mediation or conciliation, unless the agreement provides for the parties to accept the

recommendations of the third party (which is not usual), neither party is legally bound to accept

them.

Conciliation

Conciliation may be provided for in the treaty that is the subject of the dispute or in a general treaty

on the settlement of disputes to which the parties in dispute are both bound,

or it may be agreed ad

hoc. The nature of conciliation is neatly expressed in the Annex to the Vienna Convention on the

Law of Treaties 1969, which provides for conciliation of disputes between parties to the Convention

in certain limited circumstances. The Annex provides in part that:

4. The [Conciliation] Commission may draw the attention of the parties to the dispute to any

measures that might facilitate an amicable settlement.

5. The Commission shall hear the parties, examine the claims and objections, and make proposals to

the parties with a view to reaching an amicable settlement of the dispute.

9. See pp. 246-7 above.

10. The ambitious, but so far unused, OSCE Convention on Conciliation and Arbitration 1992 (ILM (1993)

557) provides for compulsory conciliation, although the outcome is not binding. See Bloed (ed.), The

Conference on Security and Co-operation in Europe, Dordrecht, 1993, p. 870.

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This formula became a model for multilateral treaties, in particular for the UN Convention on the

Law of the Sea 1982.

A conciliation commission is usually composed of three to five members, one national member

being appointed by each party and the other one or three neutral members chosen jointly by the

national members. A neutral member serves as chairman. If a party fails to appoint its member, or

there is no agreement on the choice of the neutral member(s), it is essential for the treaty to provide

for the necessary appointment to be made by an eminent independent person, such as the President

of the International Court of Justice or the Secretary-General of the Permanent Court of Arbitration.

It is therefore also essential to set time limits for all appointments to avoid one party obstructing the

process. The Annex to the Vienna Convention provides a useful model for multilateral treaties, and

was a model for provisions which, by providing for a permanent list of conciliators, largely avoid the

problem of leaving the appointment of conciliators solely in the hands of the parties.

Conciliation is inevitably more expensive than negotiation, since each party will not only have to

pay its own expenses, including the fees of any outside lawyers or experts it engages, but also half of

the costs of the conciliators, their accommodation and staff.

The results of conciliation are almost invariably non-binding. Once again, the matter is well

expressed in the Annex to the Vienna Convention:

6. . . . The report of the Commission, including any conclusions stated therein regarding the facts or

questions of law, shall not be binding upon the parties and it shall have no other character than that of

recommendations submitted for the consideration of the parties in order to facilitate an amicable

settlement of the dispute.

Thus, conciliation is, from one point of view, usually less effective than arbitration or judicial

settlement, the results of which are legally binding, yet it can be just as expensive and time-

consuming. If conciliation has not led to a settlement, unless the parties can then agree to take the

dispute to arbitration or judicial settlement, there may be no formal means of resolving it.

11. 1833 UNTS 397 (No. 31363); ILM (1982) 1261; UKTS (1999) 81 (Annex , Articles 5 and 6).

12. For a bilateral precedent, see the Swiss–United Kingdom Treaty for Conciliation, Judicial Settlement

and Arbitration 1965, 605 UNTS 205 (No. 8765); ILM (1965) 943; UKTS (1967) 42.