Electronic copy available at: http://ssrn.

com/abstract=1733443
Chapter 75
THE DI PLOMATI C CHANNEL
xicuaii wainii
1 Te character and conduct of negotiations 1086
(a) Characteristics of negotiations 1087
(b) Te advantages and disadvantages of negotiations 1090
(c) Te role of international law in negotiations 1091
2 When States negotiate 1092
(a) Duties to negotiate 1092
(b) Te relationship of negotiations to other means of dispute resolution 1094
3 Te link between negotiations and State responsibility 1095
(a) Negotiating compensation 1095
(b) Te eect of negotiations on State responsibility 1096
3 Conclusion 1096
Further reading 1097
Only a small subset of international disputes ever reaches international courts and tribu-
nals. Despite the growing prominence of judicial and arbitral proceedings, adjudication
is just the tip of the iceberg. Diplomacy still reigns supreme in settling international dis-
putes, especially when condentiality and exibility are important. To this day, negotia-
tions remain the predominant tool for managing and settling international disputes.
Indeed this is probably more the case than ever, especially with the rise of international
organizations and multilateral co-operation. Te post-World War II period has been called
an age of negotiations. Disputes associated with the most di cult issues of the day,
ranging from war and peace, to nuclear disarmament, economic dislocations, and global
warming, are by and large addressed by negotiation, rather than adjudication.
JG Collier & AV Lowe, Te settlement of disputes in international law: institutions and procedures (Oxford, OUP,
1999), 20; Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 1115 (negotiation as the chief
method by which States settle disputes and dene the subject-matter of claims); JG Merrills, International Dispute
Settlement (4th edn, Cambridge, CUP, 2005), 2 (the principal means of handling all international disputes . . .
negotiation is employed more frequently than all the other methods put together); United Nations Handbook on the
Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; MN Shaw, International law
(6th edn, Cambridge, CUP, 2008), 918.
IW Zartman & MR Berman, Te practical negotiator (New Haven, Yale University Press, 1982), 3;
SMG Koopmans, Diplomatic dispute settlement: the use of inter-state conciliation (Te Hague, TMC Asser,
2008), 22 (the diplomatic method par excellence); I Brownlie, Why do States Take Disputes to the
International Court?, in N Ando and others (eds), Liber Amicorum Judge Shigeru Oda (Leiden, Brill, 2002),
829; JW Salacuse, Te Global Negotiator: Making, Managing and Mending Deals Around the World in the
Twenty-First Century (New York, Palgrave Macmillan, 2003).
CH075.indd 1085 4/3/2010 7:54:53 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Electronic copy available at: http://ssrn.com/abstract=1733443
1086 Part V Te Implementation of International Responsibility
What explains the prevalence of negotiations in international relations? Beyond the
natural advantages of negotiation that this Chapter explores, a chief reason for its popular-
ity is the absence of compulsory dispute settlement procedures in international law and
broad immunity that states enjoy for their sovereign acts. Te lack of a general method or
forum for enforcing obligations under international law increases their attractiveness of
negotiations in relative terms. Given the importance of negotiations in international rela-
tions, the dearth of literature on the subject is surprising.
Te International Court in the North Sea Continental Shelf Case highlighted the
fundamental character and universal acceptance of the direct and friendly settlement
of . . . disputes between parties. States select the dispute settlement procedure based on
the strength of their legal, policy, and negotiating position, and according to which will
yield the best result for them. In many cases, negotiations turn out to be the preferred
method. Collier and Lowe emphasize this point: recourse to legal processes for the adjust-
ment of conicts and settlement of disputes is optional . . . Law is chosen as the framework
within which to resolve disputes when it is advantageous to use that framework.
Te Chapter proceeds as follows. Section 1 explains the use and characteristics of nego-
tiations as a tool to manage and settle disputes in international aairs. Section 2 explores
what happens when States negotiate, with a focus on potential duties to negotiate and
the relationship of negotiations to other dispute settlement procedures. Section 3 sets out
the link and eects of negotiated settlements with state responsibility claims. Section 4
concludes.
1 Te character and conduct of negotiations
Negotiation is the most important function and chief tool of peaceful diplomacy.

Te
terms negotiation and diplomacy are sometimes even used synonymously. Te starting
point for most negotiations is a concrete disagreement on law, fact or policy concerning
rights or interests. Negotiation may be dened as a process in which divergent values are
combined into an agreed decision, whereas diplomacy is an essentially political activity
whose chief purpose is to enable states to secure the objectives of their foreign policies
SMG Koopmans, Diplomatic Dispute Settlement: Te Use of Inter-State Conciliation (Te Hague, TMC
Asser, 2008), 22 attributes this to the fact that international negotiations can cover everything, and cites
the General Assemblys unsuccessful attempt to draw up general guidelines for negotiation, GA Res 55/101
(1999) (with further references in note 69).
North Sea Continental Shelf, ICJ Reports 1969, p 3, 4849 (para (88) (the delimitation of the continental
shelf between neighbouring States must be eected by agreement with reference to equitable principles); Cf
also Free Zones of Upper Savoy and the District of Gex, PCIJ Reports, Series A, No 22, p 4, 13 (Whereas the
judicial settlement of international disputes . . . is simply an alternative to the direct and friendly settlement of
such disputes between the Parties; as consequently it is for the Court to facilitate, as far as is compatible with
its Statute, such direct and friendly settlement.).
JG Collier & AV Lowe, Te Settlement of Disputes in International Law: Institutions and Procedures
(Oxford, OUP, 1999), 3.
G Berridge, Diplomacy: Teory and Practice (3rd edn, New York, Palgrave Macmillan, 2005), 27. Before
the 20th century, gunboat diplomacy was notorious: note the contradiction in terms.
Revised General Act for the Pacic Settlement of Disputes, adopted by the UNGA on 28 April 1949, 71
UNTS 101; 1948 Charter of the Organization of American States, 119 UNTS 3, entered into force December
13, 1951 (through the usual diplomatic channels).
Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 1115.
IW Zartman & MR Berman, Te Practical Negotiator (New Haven, Yale University Press, 1982), 1;
see also K Hakap, Negotiation, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law
CH075.indd 1086 4/3/2010 7:54:53 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1087
without resort to force, propaganda, or law . Negotiations thus dened refer to the
process by which States combine divergent values into agreed decisions.
In many disputes, negotiations are the only means to settle disputes that the parties
employ. But negotiations play an important role in other methods of dispute settlement
as well. Such negotiations may lead to a negotiated agreement that forms the basis for
another form of dispute settlement. Negotiations here help focus the points of concrete
disagreement to render them justiciable in adjudication or conciliation. Tey set the terms
for inquiries, lead to the conclusion of a compromissory clause for judicial settlement or
arbitration, establish the modalities for the execution of a decision, or precede diplomatic
protection.
Te term consultation, also known as preventive negotiation, refers to a subset of nego-
tiations, namely those negotiations before a dispute has even arisen. Te most well-
known, mandatory consultation procedure in modern international law is the WTO
Dispute Settlement Understanding. Article 3(3) of the DSU provides that on request par-
ties shall enter into consultations in good faith within a period of no more than 30 days
after the date of the receipt of the request. According to article 3(7), if such consultations
fail, the establishment of a panel may be requested.
With consultations, the parties to a potential disputes adjust their policy and accom-
modate the other partys interests in advance, before any harm has even occurred. Early
warning procedures can greatly reduce diplomatic frictions. Policies are modied at
decision-making stage, which is typically less costly than modications after implemen-
tation has started. For instance, this approach is widely used in anti-trust matters and
underpins a policy of co-operation between regulators in cross-border cases.
(a) Characteristics of negotiations
Negotiations come in many dierent forms. Tey may involve sizeable delegations meeting
with strict diplomatic protocol, an informal meal, a hallway conversation or a joint com-
mission. A modern example is the High-Level Technical Group established by Argentina
and Uruguay to settle their dispute on pulp mills. Negotiations do not require a table.
Tey can take place in almost any setting, even without direct lines of communication
between the parties. Other negotiations are conducted in international organizations or at
large conferences under public scrutiny. Te advantage of such negotiations is that third
(Oxford University Press, online edn, 2008), para 1 (discussions at dierent levels of authority with a view to
achieving a common understanding or agreement to develop international law or settle disputes).
Emphasis added. G Berridge, Diplomacy: Teory and Practice (3rd edn, New York, Palgrave Macmillan,
2005), 1 (recalling that Edmund Burke applied the label diplomacy to what was previously called
negotiation, or ngociation continuelle by Cardinal Richelieu).
SMG Koopmans, Diplomatic Dispute Settlement: Te Use of Inter-State Conciliation (Te Hague, TMC
Asser, 2008), 24.
JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 3; United Nations
Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; Convention on
succession of States in Respect of Treaties, art 41; 1983 Convention on the Succession of State Property,
Archives and Debts, 8 April 1983, not yet entered into force, 22 ILM 306 (1983), art 42 both provide for
a process of consultation and negotiation; art XI of the 1959 Antarctic Treaty, 402 UNTS 71, entered into
force June 23, 1961; art 283 UNCLOS, 10 December 1982, 1833 UNTS 3 (exchange of views as a form of
consultation). ICJ Press Release 2006/17, 4 May 2006.
K Hakap, Negotiation, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law
(online edn, Oxford University Press, 2008), para 2.
CH075.indd 1087 4/3/2010 7:54:53 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
1088 Part V Te Implementation of International Responsibility
parties may help the disputing parties to settle their dispute. In such cases, the boundary
with other methods of dispute settlement becomes blurred. Tird parties can, for instance,
merely mediate or open up a channel of communications where none existed before.
Mediation and negotiation are often combined into a single process, especially in the
context of peace negotiations. An interesting example of such a hybrid mechanism is
the Israel-Lebanon Monitoring Group, a novel form of negotiation-cum-mediation. Te
Group was established in 1996 to monitor the implementation of four understandings on
appropriate behaviour in the low-intensity armed conict in Southern Lebanon. Accord-
ing to paragraph 3.E. of the Groups Protocol on the Working Rules, the ve parties
Lebanon, Syria, Israel, United States, and Francenegotiate reports for non-compliance
with the four undertakings. Tese may be adopted by unanimity, or if no consensus is
reached, referred to the Foreign Ministers for follow-up.
Te actors in international negotiations vary. Foreign ministries are often heavily involved.
But so are technical experts from various governmental departments. Negotiators often come
from dierent levels or parts of government. Lower-level civil servants may reach a draft or
framework agreement, before such draft is sent to their political superiors for approval. If
departments are unable to reach agreement, the dispute may be referred to the heads of
govern ment or heads of State to overcome the impasse, for instance at a summit meeting.
Negotiations at summits have a number of advantages and drawbacks. Leaders may gain
political capital by reaching agreements that their bureaucracies failed to resolve, even if in
reality civil servants worked out many details in advance. As Merrills rightly notes, summit
diplomacy is usually the culmination of a great deal of conventional negotiation. Good
personal relations between leaders may give rise to out-of-the-box solutions and thereby help
overcome deadlock. Conversely, their high visibility may create exaggerated expectations.
Game theory oers much insight on international negotiations. Negotiations require
at least some overlapping of interests between the parties, for otherwise there is nothing
to negotiate about. Tis overlapping creates what the negotiation literature calls a Zone
of Possible Agreement (ZOPA). How much value parties attach to the start and successful
conclusion of negotiations is shaped by their respective Best Alternative to a Negotiated
Agreement (BATNA) and the Worst Alternative to a Negotiated Agreement (WATNA).
States are typically repeat players in international negotiations, and therefore concerned
about their reputation as negotiators and their perceived trustworthiness. Tey rarely play
one-shot games, but are concerned about the eect of any negotiation for their future
ability to negotiate to achieve their interests. For instance, the terms and conditions for
C Bell, On the Law of Peace: Peace Agreements and the Lex Pacicatoria (Oxford, OUP, 2008), 176.
A Waldman, Arbitrating Armed Conict: Decisions of the Israel-Lebanon Monitoring Group (Huntington,
Juris, 2003); G Blum, Islands of Agreement: Managing Enduring Armed Rivalries (Cambridge, Harvard
University Press, 2007), 190241. For the text of the Understanding see Mideast Accord: Restricting the
Violence in Lebanon, NY Times, Apr 27, 1996, A8.
JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 10.
H Nicolson, Te Evolution of Diplomatic Method (London, Constable, 1954), 89, oers a deeply
sceptical view of summitry: diplomacy by loud-speaker . . . do[es] much to diminish the utility of professional
diplomatists and, in that they entail much publicity, many rumours, and wide speculation,in that they
tempt politicians to achieve quick, spectacular and often ctitious results,they tend to promote rather
than allay suspicion, and to create those very states of uncertainty which it is the purpose of good diplomatic
method to prevent. See also AL Davrde, Negotiations, Secret, in R Wolfrum (ed), Max Planck
Encyclopedia of Public International Law (online edn, Oxford University Press, 2008).
Cf the classic TC Schelling, Te Strategy of Conict (Cambridge, Harvard University Press, 1960), 21.
FC Ikl, How Nations Negotiate (New York, Harper & Row, 1964), 2.
CH075.indd 1088 4/3/2010 7:54:53 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1089
accepting or rejecting an agreement in any given negotiation aect the governments future
bargaining strength. Tey may also set a disadvantageous precedent.
Negotiations may be either zero sum or non-zero sum. With zero sum games, one side
wins, the other loses. Tese negotiations distribute a xed sum. Te better the bargain for
one party, the less the other party receives. In non-zero sum games, the e ciency aspect
dominates. Cooperation through negotiation here lies in the joint interest of the parties,
since they may implement mutually protable adjustments. Te parties may manage to
convert a given negotiation from a zero sum game to a mutually benecial game. One way
of achieving this shift is by focusing on value creation. Te negotiators can distribute this
surplus among the parties.
Various negotiation techniques may help to reach a settlement. Two separate disputes
may be bundled together, or one dispute split into smaller piece. Te slicing and dicing
facilitates package deals acceptable to both sides (issue linkages). Negotiations on one
important aspect may be brought to a conclusion, while leaving other sensitive issues
open. Negotiations between Spain and the United Kingdom on Gibraltar focus on coop-
eration on a range of technical areas, leaving the question of sovereignty aside. To prevent
any perception of unfairness, the less-favoured party may be given control over the agenda
and the place of negotiations.
Tere are several stages to the typical international negotiation. In the rst stagethe
so-called pre-negotiationsthe parties agreeing on the need to negotiate. A major threshold
is crossed when all the parties accept that a negotiated settlement is a better way forward. Pre-
conditions may stand in the way. For instance, Syrias established policy was not to negotiate
with Israel on Lebanon until the return of the Golan Heights. In some cases, a government
may not be prepared to negotiate with governments of a certain ideological slant.
In the second phase, when the negotiation process is typically the most fragile, the par-
ties agree on the agenda, which often incorporates implicit deals. Parties sometimes agree
on broad principles for settlement, such as the land for peace formula or one one coun-
try, two systems. Tey also set the procedure for negotiations, in particular the format,
venue, level and composition of delegations as well as the timing. A record of hostility or
reluctance to compromise with the other side will often insulate the negotiator from the
charge of not defending the national interest.
Te actual negotiations are the third stage. A good example was the early negotiations
on European integration. Te details stage consists of resolving any disagreement within
the broad negotiating terms agreed to earlier. Te parties need to agree on common lan-
guage, as a particular term may advantage one side. Tis exercise is often time-consuming
Ibid, 76.
RH Mnookin, SR Peppet, & AS Tulumello, Beyond Winning: Negotiating to Create Value in Deals and
Disputes (Cambridge, Belknap Press, 2000), 143.
See G Berridge, Diplomacy: Teory and Practice (3rd edn, New York, Palgrave Macmillan, 2005), 2987,
for a concise general overview of negotiations (diplomacy), and its stages.
H Kissinger, Diplomacy (New York, Simon & Schuster, 1994), 756 contrasts the US and British attitude
to negotiations with communist countries. In its entire history, Great Britain had not often had the luxury
of conning negotiations to friendly or ideologically compatible countries . . . Great Britain negotiated with
ideological adversaries as a matter of course regarding practical arrangements relating to coexistence. Te
wisdom of negotiating was almost universally accepted. Te US, however, wanted to change the Soviet system
rather than negotiate with it.
IW Zartman & MR Berman, Te Practical Negotiator (New Haven, Yale University Press, 1982),
109114.
CH075.indd 1089 4/3/2010 7:54:53 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
1090 Part V Te Implementation of International Responsibility
and requires the participation of specialists. Step-by-step negotiations may oer a useful
way forward when there is a lot of mistrust or many contentious or far-reaching points
that require discussion.
(b) Te advantages and disadvantages of negotiations
Te revealed preference for negotiation in international dispute settlement points to a
number of distinct advantages of this method of resolving disputes.
First, the diplomatic channel is the most exible method. For any given dispute,
negotiations may be adapted to the parties preferences, needs, and desired outcomes.
Negotiations can thus be tailored to the dispute in question, the specic issues that arise
in its resolution and the likely solutions. As a result of such individualization, negotiations
are typically more e cient than any other methods of dispute settlement. A solution may
be reached more quickly, and under the conditions and guidelines set by the parties alone.
Tese factors increase the legitimacy and trust of the parties in the process.
A second major advantage of negotiations is that the parties they retain complete con-
trol, unlike when referring a dispute to an international court or arbitral tribunal. Te loss
of control involved in adjudication explains why States devote so much attention to the
threshold of moving from negotiation to adjudication. With negotiations, States do not
run the risk of an adverse outcome from an impartial body. To the contrary, they can end
the negotiations at any time, provided they bear the consequences of such termination. In
negotiations, third party involvement is extremely limited, or indeed often non-existent.
Diplomacy has become gradually more public over the course of the 20th century, a
development with signicant implications for the conduct of negotiations. Te increasing
openness of the negotiating process presents its own challenges. Negotiators need to pay
greater head to public concerns. Domestic political considerations often constrain the
negotiators room for manoeuvre. When domestic pressures not to give any ground are
strong an impasse may result. In these circumstances, the submission to an international
court or tribunal may oer a way out. When the government commits to resolving a
dispute through an impartial tribunal, advances the best legal arguments it can muster
and still loses the case, then domestic constituencies may more readily accept the need for
changing course.
Some features of negotiations oer advantages in some scenarios, but not in other dis-
putes. Negotiators typically like to follow well-trodden paths. Tis inherent conservatism
gives much weight to precedents derived from past negotiations. A party that wishes to
change the status quo in a substantial way may thus bear a heavy burden of persuasion,
especially when negotiations take a previously negotiated text as a starting point. Relying
on precedents often saves considerable amount of time and is easier to sell at home.
Constructive ambiguity can help overcome impasse, but also simply postpone the funda-
mental source of the dispute to a later time.
Negotiations may encounter a range of problems, even before they have started. In
boundary disputes, the party in possession of a disputed territory has a much stronger
negotiating position, and may not see a need to negotiate. Gibraltar may oer a good
example. Te parties may fail to agree on the agenda for negotiations. Such disagreements
Cf RD Putnam, Diplomacy and Domestic Politics: Te Logic of Two-Level Games (1988) 42
International Organization 427.
CH075.indd 1090 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1091
often reect deeper substantive disagreements. Te terms of agreement will frequently
reect not the merits of each partys case, but their relative power. A party with a weaker
negotiation position may thus refuse to negotiate. Failed negotiations may give rise to bit-
terness, and complicate further dispute resolution.
Successful negotiations often occur in the following circumstances: a set of common
interests among the parties, prior identication of possible solutions, however distant;
both parties suer large costs without negotiations; broad domestic support for negotia-
tions; and considerable scope for issue linkages and trade-os between the parties. Such
linkages may of course not be acknowledged in the nal agreement, especially if such
acknowledgment would inconvenience one party. Tis could be the case, for instance,
when that party insisted in the past that it would refuse such linkage.
Most diplomatic settlements of disputes come about in a piecemeal fashion. Agreed
parts serve as elements of an overall agreement, and thereby facilitate negotiation. Parties
reciprocate concessions or return favours as a sign of negotiating in good faith. Dealing
with emotions, at a personal and agency level, is also essential. Emotions often become
involved in international negotiations. If not successfully managed, they do more harm
than good, in particular when they sow distrust. Trust is of cardinal importance for fruitful
negotiations.
(c) Te role of international law in negotiations
Te ip side of negotiations innate exibility is that international law may play only a
subordinate role. Tis explains why this Chapter has thus far focused largely on non-legal
aspects. Te importance of international law in diplomacy is disputed. One school posits
that international law plays only second ddle, helpful perhaps as a common language or
for public appearance. In this view, the role of the international lawyer in negotiations
consists mainly in providing his client with legal arguments that bolster the legitimacy of
claims or to garner third-party support for ones own positions in the international com-
munity. A lawyer may also be tasked with preventing that a specic legal argument becomes
a boomerang in the future. But in essence, the role of law of is tightly circumscribed.
A second school believes that that international law plays a much more central role in
inter-State negotiations. Te rst reason is that legitimacy and lawful authority are key
components of political power. Te second is that the law provides a backstop to negoti-
ations, independent of its dispositive character. Te parties may thus depart from any legal
LN Rangarjan, Te Limitation of Conict: A Teory of Bargaining and Negotiation (London, 1985), 283.
C Bell, On the Law of Peace: Peace Agreements and the Lex Pacicatoria (Oxford, OUP, 2008), 5660.
IW Zartman & MR Berman, Te Practical Negotiator (New Haven, Yale University Press, 1982), 27.
W Levi, Law and Politics in the International Society (Beverly Hills, Sage Publications, 1976), 187
(References to law are virtually absent in papers of statesmen responsible for the shaping of foreign policy . . .
International law occurs as an afterthought, when for a number of reasons the formulation of policy decisions
in legal language appears desirable before its public appearance.); G Blum, Islands of Agreement: Managing
Enduring Armed Rivalries (Cambridge, Harvard University Press, 2007), 4344 (rules [of international law]
are seldom useful in resolving disputes, while acknowledging its potentially powerful presence as a basis for
mutual dealings, in feeding divergent positions with a common formal language to borrow from and build on).
R Sabel, Te Role of International Law in Negotiations Between States (2009) Justice 35; C Bell, On
the Law of Peace: Peace Agreements and the Lex Pacicatoria (Oxford, OUP, 2008), 298 (international norms
forms the common language through which the [negotiation] process is conducted, even though dierent
parties nd the implications of that language to be dierent.)
R Fisher, Points of Choice (Oxford, OUP, 1978), 12.
CH075.indd 1091 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
1092 Part V Te Implementation of International Responsibility
rules that bind them. But negotiations still occur in the shadow of law. Nevertheless, even
in this view, law is only one determinant of the outcome of the negotiations. Other factors,
such as commercial relations, negotiation skill and issue linkages all come into play.
Parties to negotiations often wish to prevent that any concessions or statement oered
in the context of condential negotiations aect the outcome in a subsequent adjudica-
tion. One way of achieving this goal is found in article 5 of the Special Agreement between
the United States and Canada in the Gulf of Maine case:
Neither party shall introduce into evidence or argument, or publicly disclose in any manner, the
nature or contents of proposals directed to maritime boundaries settlement, or responses, thereto, in
the course of negotiations or discussions between the parties undertaken in 1969.
Te absence of such a provision is likely to temper the parties willingness to oer conces-
sions in the preceding negotiations.
2 When States negotiate
(a) Duties to negotiate
Article 2(4) of the UN Charter obliges States to settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are not
endangered. Tis provision is not limited to the class of disputes that threaten interna-
tional peace and security. All international disputes are covered. Unlike article 33, article
2(4) refers to justice as well. Tese dierences result from the central role which the Char-
ter vests in the Security Council in settling international disputes. According to article
33(2), the Security Council may call upon parties to settle their disputes by such means.
As a general rule, States retain the discretion of which dispute settlement method to use.
Te UN Charter bars only the use of force. Article 33 of the UN Charter species a range
of peaceful methods to settle those international disputes whose continuance threatens
international peace and security: negotiation, enquiry, mediation, conciliation, arbitra-
tion, judicial settlement, resort to regional agencies, or any other peaceful method of
their choice. Tere is no order of priority in these means. Te choice among the various
methods of peacefully settling disputes is up to the disputing States.
Te General Assembly has the power to recommend a means of settling a dispute.
Section II, paragraph 3(a) of the Manila Declaration on the Peaceful Settlement of
Disputes provides that the General Assembly may:
discuss any situation, regardless of origin, which it deems likely to impair the general welfare or
friendly relations among nations and, subject to Article 12 of the Charter [the Security Council
exercising its functions under the Charter], recommend measures for its peaceful settlement.
Te General Assembly most frequently recommends negotiations as means of settling
disputes.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), ICJ
Reports 1984, p 246.
K Hakap, Negotiation, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law
(online edn, Oxford University Press, 2008), para 25 (no preference).
United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations,
1992), 12.
CH075.indd 1092 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1093
Te guiding principle is thus the parties freedom of choice with respect to the choice
of dispute settlement procedure, in line with foundational principle of consent in inter-
national law. Generally speaking, the parties may also decide not to negotiate, though this
statement might require some qualication in light of the ICJs case law. In the North Sea
Continental Shelf and the Fisheries Jurisdiction cases, the ICJ came close to enunciating a
general obligation to negotiate in good faith. Te source of the obligation to negotiate
might derive from general international law, rather than from specic treaty obligations
undertaken by the parties.
Notwithstanding the general rule, duties to negotiate are founds in treaties, often cou-
pled with reference to good faith. States are then required to negotiate towards conclud-
ing an agreement. In these circumstances, failure to live up to the duty to negotiate
engages the States responsibility, including the potential use of countermeasures by the
injured State. Such failure can also consist in the unjustied breaking o of negotiations
or the systematic disregard for agreed procedures.
Provided a State has assumed a treaty obligation to negotiate in good faith, active con-
duct of the negotiations with some readiness for compromise is required. In the North Sea
Continental Shelf case the Court stated:
Te parties are under an obligation to enter into negotiations with a view to arriving at an agree-
ment, and not merely to go through a formal process of negotiation or a sort of prior condition for
the automatic application of a certain method of delimitation in the absence of agreement; they are
under an obligation so to conduct themselves that the negotiations are meaningful, which will not
be the case when either them insists upon its own position without contemplating any modication
of it.
In the Fisheries Jurisdiction case, the ICJ similarly exhorted parties to conduct their
negotiations on the basis that each must in good faith pay reasonable regard to the legal
right of the other.
North Sea Continental Shelf, Judgment ICJ Reports 1969, p 3, 48 (para 86) (the obligation to negotiate
under the Special Agreement merely constitutes a special application of a principle which underlies all interna-
tional relations, and which is moreover recognized in art 33 of the Charter of the United Nations); Fisheries Juris-
diction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3, 32 (para 74) (It is implicit in the
concept of preferential rights that negotiations are required in order to dene or delimit the extent of those
rights . . . the obligation to negotiate thus ows from the very nature of the respective rights of the Parties);
United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 12;
JG Collier and AV Lowe, Te Settlement of Disputes in International Law: Institutions and Procedures (Oxford,
OUP, 1999), 22.
Eg art IX of the Canada-Poland BIT provides that disputes shall to the extent possible, be settled amicably
between both parties concerned [the host state and the investor]; C Schreuer, Travelling the BIT Route: Of
Waiting Periods, Umbrella Clauses and Forks in the Road (2004) 5(2) Journal of World Investment and Trade
231 has other examples taken from the investment arbitration context. Obligations to negotiate are also often
in bilateral agreements for avoiding jurisdictional conicts in antitrust matters.
Railway Tra c between Lithuania and Poland, 1931, PCIJ Reports, Series A/B, No 42, p 4, 116: (not only
to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements,
although they are not obliged actually to reach agreement); Legality of the Treat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Reports 1996, p 226, 264 (para 99) (exceptionally, the court held that art VI of the
Treaty on Non-Proliferation is an obligation to achieve a particular resultnuclear disarmament in all its
aspectsby adopting a particular course of conduct, namely the pursuit of negotiations on the matter in
good faith).
Lac Lanoux (France v Spain) (1957) 24 ILR 101, 127. Cf also art 41 of the 1978 Vienna Convention on
Succession of States in Respect of Treaties, 23 August 1978, 1946 UNTS 3.
North Sea Continental Shelf, Judgment ICJ Reports 1969, p 3, 47 (para 85(a)).
Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3, 33, (para 78).
CH075.indd 1093 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
1094 Part V Te Implementation of International Responsibility
(b) Te relationship of negotiations to other means of dispute resolution
A dispute may be referred to adjudication even in the absence of any prior diplomatic
contact. However, it will rarely be sound policy to bring international claims without any
prior attempt to settle the dispute through negotiations. As a general rule, international law
does not require the exhaustion of diplomatic remedies before using another dispute settle-
ment procedure. Some treaties, however, require negotiations before bringing an inter-
national claim, or condition the admissibility of a claim on the failure of negotiations.
But negotiations do not generally preclude other methods of dispute settlement.
In the Diplomatic Sta in Tehran case, one instrument gave the ICJ jurisdiction over
disputes not satisfactorily adjusted by diplomacy. Te Court found that Irans refusal to
negotiate could not aect its jurisdiction. Dilatory tactics to delay legal proceedings by one
State are no bar to the exercise of jurisdiction. More di cult questions arise when nego-
tiations have taken place, but failed. A good way of avoiding this problem is to include a
specic time-limit for negotiations in the jurisdictional clause.
When negotiations run parallel to other methods of dispute settlement, is the judge
bound to defer to the negotiator? Te answer is no. Ongoing negotiations do not aect
the competence of the tribunal. In the Aegean Sea Continental Shelf case, the Court rejected
the notion that adjudication and negotiation may not proceed in parallel. Te Genocide
case likewise was heard while the parties simultaneously attempted to reach a settlement
by negotiation, mediation and conciliation. Te referral to the Court was just one ele-
ment in a broad dispute resolution strategy that concurrently used other levers for possible
Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning
the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, p 192 (the manifestation
of the existence of dispute in a specic manner, as for instance by diplomatic negotiations, is not required,
though perhaps desirable in many cases). United States Diplomatic Sta in Tehran.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary
Objections, ICJ Reports 1998, p 275, 302303 (para 56); United Nations Handbook on the Peaceful
Settlement of Disputes (New York, United Nations, 1992), 11.
UNCLOS, art 283; NATO Agreement, 4 April 1949, art 3, 34 UNTS 243.
Revised General Act for the Settlement of Disputes 1949; South West Africa, Preliminary Objections, ICJ
Reports 1962, p 319 (objection that no proof adduced that the dispute incapable of being settled by negotiation).
Te PCIJ elaborated on the concept of failed negotiations in Mavrommatis (negotiations fail if nally a point is
reached at which one of the Parties denitely declares himself unable, or refuses, to give way, and there can
therefore be no doubt that the dispute cannot be settled by diplomatic negotiation. Mavrommatis Palestine
Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 13. See also South West Africa, Preliminary Objections, ICJ
Reports 1962, p 319, 346.
JG Collier & AV Lowe, Te Settlement of Disputes in International Law: Institutions and Procedures
(Oxford, OUP, 1999), 2021; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United
States), Jurisdiction and Admissibility, ICJ Reports 1984, p 392, 440; Aegean Sea Continental Shelf, ICJ Reports
1978, p 3, 12 (para 29) (ongoing negotiations no impediment to the exercise of the courts jurisdiction: Te
jurisprudence of the court provides various examples of cases in which negotiations and recourse to judicial
settlement have been pursued pari passu . . . 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).
United States Diplomatic and Consular Sta in Tehran (United States of America v Iran), ICJ Reports 1980,
p 3. Te same formulation is also found in a number of bilateral investment treaties, such as art 13, Agree-
ment between Japan and the Democratic Socialist Republic of Sri Lanka, 1 March 1982; cf also art XXI of the
Friendship, Commerce and Navigation Treaty between Iran and the United States, at issue in Oil Platforms
(Islamic Republic of Iran v United States of America), ICJ Reports 2003, p 161.
JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 2122.
Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29) (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).
CH075.indd 1094 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1095
resolution. Further support for the view that simultaneous recourse to dispute settlement
methods is possible is provided by a number of contentious cases that were discontinued
after the parties reached a settlement while the Court considered the dispute. From a
policy perspective, the simultaneous pursuit of various methods of dispute settlement
maximizes the chances of peaceful settlement and is therefore desirable.
3 Te link between negotiations and State responsibility
(a) Negotiating compensation
States often negotiate compensation or some other performance due for an internationally
wrongful act (article 36 ARSIWA). Te ILC Commentaries cite instances when com-
pensation has been negotiated after wrongful attacks on ships or aircraft causing damage,
injury or loss of life, damage or injury to personnel on diplomatic premises, and for
environ mental damage. Such settlements rarely admit State responsibility, and are fre-
quently on an ex gratia or without prejudice basis.
An undertaking to compensate assumed in diplomatic negotiations may, but need not
reect an underlying internationally wrongful act. States may assume responsibility by
agreement for an injury or loss even in the absence of any international legal obligation,
when the perceived gains of assuming responsibility outweigh the costs associated with a
refusal. Nevertheless, the possibility of the injured State successfully invoking State respon-
sibility in a binding dispute settlement procedure is an important factor in this calculus.
Lump sum settlements provide a means to settle a large number of claims by individuals
or corporations, sometimes only with token payments. Te settlement agreement provides
for payment of a global sum by the injuring State, and sometimes sets out a process, eligi-
bility requirements and standards for distribution to individual claimants. Te amount
available for distribution to those injured may dier substantially from their damage.
Particularly well-known examples of lump-sum agreements are the Holocaust settlements
with Germany and Austria.
Many agreements negotiated between States do not take binding form. States use a
range of means to record the results of negotiations, such as administrative agreements,
press communiqus, joint statements or executive agreements. Tere are several advan-
tages of these types of agreements: they may be concluded by those whose treaty making
Trial of Pakistani Prisoners of War (Pakistan v India), ICJ Reports 1973, p 347, referred to in Aegean Sea
Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29). See also Commentary to art 36.
Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22 February
1996, ICJ Reports 1996, p 6 (case discontinued following settlement of dispute arising out of the destruction
of an Iranian aircraft with 290 passengers and crew).
Commentary to art 36, para 12 (citing the US-China agreement for an ex gratia payment of US$4.5
million to families of the deceased and injury in the US bombing of the Chinese Embassy in Belgrade).
RB Lillich and BH Weston, International Claims: Teir Settlement by Lump Sum Agreements
(Charlottesville, University of Virginia Press, 1975); Agreement between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of the Peoples Republic of China
concerning the Settlement of Mutual Historical Property Claims, 5 June 1987, 1656 UNTS 77.
For details on the negotiations, see the fascinating account by S Eizenstat, Imperfect justice: looted assets,
slave labor, and the unnished business of World War II (New York, 2003).
J Klabbers, Te Concept of Treaty in International Law (Te Hague, Kluwer Law International, 1996),
100, goes so far calling international agency law a third legal order. Cf Baxters vast sub-structure of
intergovernmental paper, RR Baxter, International Law in Her Innite Variety (1980) 29 ICLQ 549.
CH075.indd 1095 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
1096 Part V Te Implementation of International Responsibility
power may be in doubt; they can be concluded more quickly; at the domestic level, no
ratication is necessary, and hence a meeting of the minds between the two executives
su ces.
(b) Te eect of negotiations on State responsibility
A valid settlement of the dispute with prejudice (a full and nal settlement) precludes
any further claims for reparation. In return for any consideration received under the
settlement, the injured State waives its right to any further claims against the responsible
State. Te scope of the waiver may vary. For example, it could be limited to the damage
suered by the government, leaving the possibility of claims by private individuals open.
Such waiver needs to be clear and unequivocal.
Negotiations may prevent lapse. An international claim may lapse by a combination of
passage of time and the conduct of the injured State. According to article 45 ARSIWA,
State responsibility may no longer be invoked if the injured State, by reason of its conduct,
validly acquiesced in the lapse of the claim. An application may become inadmissible by
passage of time. Tere is no precise time limit for lapse. Bilateral negotiations on the
claims concerned are su cient to put the respondent State on notice of eventual legal
proceedings. As a general rule, therefore, negotiations prevent lapse of the claim.
Before resorting to countermeasures, States are under an obligation to negotiate. In
practice, extensive negotiations typically precede the adoption of countermeasures.
According to article 52(b) ARSIWA, any injured State shall inform the injuring State
of its decision to take countermeasures and oer negotiations, except when urgent
countermeasures are necessary to preserve its rights under paragraph (c). Tese two proce-
dural conditions constrain countermeasures, a form of self-help. Countermeasures must
cease once the parties have referred the dispute to a court or tribunal with authority to
decide with binding eect (article 52(3)(b)). Conversely, countermeasures may lawfully
be adopted while negotiations continue, provided the injured State has complied with
the two procedural safeguards above, though their imposition will rarely create a positive
atmosphere for negotiations.
3 Conclusion
Negotiations are omnipresent in international relations. As this chapter explained, States
negotiate to settle disputes on almost any conceivable subject, in many dierent set-
tings and forms. Tey negotiate about detentions of their nationals, the safety of nuclear
power plants, reductions in carbon emissions, and impairment of foreign investment.
Even concepts that are not used to describe as negotiations may fall under that head-
ing. In the early days of international law, treaties resembled a negotiation process that
Commentary to art 45, para 1; see also above C Tams, Chapter 72.
Commentary to art 45, para 3; Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary
Objections, ICJ Reports 1992, p 240 (Nauru did not implicitly waive its rehabilitation claim, as negotiations
did not at any time eect a clear and unequivocal waiver).
Ibid, 253 (in the circumstances, application admissible).
Commentary to art 45, para 9.
Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240,
250 (para 20). Commentary to art 52, para 4. Ibid, para 1.
CH075.indd 1096 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
Te Diplomatic Channel 1097
encouraged adherence to the undertaking more than as a positive legal commitment.
Self-determination may be thought of as the right of marginalized minorities to negotiate
with their governments.
For all the advantages of negotiations, in some cases judicial settlement or arbitration
may oer better chances for just outcomes that stand the test of time. In the political real-
ity of unequal power that characterizes the international community of states, political
and economic levers may favour larger States in negotiations. Alas, the advice given by
Elihu Root to James Brown Scott, his legal advisor at the State Department, is not always
heeded in the practice of States: We must always be careful, and especially so in our rela-
tions with the smaller states, that we never propose a settlement which we would not be
willing to accept if the situation were reversed. Hans Blix best captures the essence of
this downside of negotiations: Nowhere is the juridical principle of equality of states bet-
ter respected than in an international tribunal.
No general answer may be given to the question when negotiations are desirable for
the parties to a dispute. Much depends on the circumstances of each dispute. Factors to
consider include the relative bargaining strength of the parties, the issue in question, the
strength of the respective legal positions, domestic political pressures, and the future rela-
tions between the contesting parties. As the parties retain complete control over the pro-
cess, compliance with voluntary undertakings assumed in negotiations is generally high.
Whenever negotiations are successfully used, they are probably the most eective and least
costly way of settling international disputes.
Further reading
G Berridge, Diplomacy: Teory and Practice (3rd edn, New York, Palgrave Macmillan, 2005)
JG Collier and AV Lowe, Te Settlement of Disputes in International Law: Institutions and
Procedures (Oxford, OUP, 1999)
K Hakap, Negotiation, in R Wolfrum (ed), Max Planck Encyclopedia of Public International
Law (online edn, Oxford University Press, 2008)
FC Ikl, How Nations Negotiate (New York, Harper & Row, 1964)
SMG Koopmans, Diplomatic Dispute Settlement: Te Use of Inter-State Conciliation (Te Hague,
TMC Asser, 2008)
JW Salacuse, Te Global Negotiator: Making, Managing and Mending Deals Around the World in
the Twenty-First Century (New York, Palgrave Macmillan, 2003)
C Bell, On the Law of Peace: Peace Agreements and the Lex Pacicatoria (Oxford, OUP, 2008), 89,
(quoting Pruchta with reference to American Indian agreements from 1778 to 1905).
Ibid, 38. (1937) 31 ASIL Proceedings 8.
H Blix, Te Principle of the Peaceful Settlement of Disputes, in MK Nawaz (ed), Te Legal Principles
Governing Friendly Relations and Co-operation Among States in the Spirit of the United Nations Charter (Leiden,
AW Sitho, 1966), 60.
CH075.indd 1097 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS
CH075.indd 1098 4/3/2010 7:54:54 AM
OUP UNCORRECTED PROOF REVISES, 06/04/2010, MPS