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Obligatory Negotiations in International Organizations

Published online by Cambridge University Press:  09 March 2016

Stephen L. Kass
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Article 26 of the Mandate by which Great Britain administered Palestine required disputes between league members to be submitted to the Permanent Court if they “cannot be settled by negotiation.” In the Mavrommatis Palestine Concessions case, Great Britain contended that discussions with Greece, the complainant, had been so brief as not to amount to negotiations, insisting that in negotiations parties must at least define their positions and consider each other's views. Although intergovernmental exchanges had not reached this point, the Court held that prior discussions between Mavrommatis and British authorities had so defined the relevant issues that the Greek government could rely on these talks, in conjunction with its own protests, to satisfy the negotiations requirement.

Judge Moore, in dissent, believed that negotiations should be limited to intergovernmental discussions because issues raised by individuals cannot define the positions open to governments. Moreover, negotiations should proceed in an ordered, even rational manner.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 3 , 1965 , pp. 36 - 72
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1965

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References

1 P.C.I J., Series A, No. 2 (1924).

2 Id. at 61.

3 [1950] I.G.J. Rep. 128 (advisory opinion).

4 Id. at 139.

5 Id. at 188.

6 As used here, a remedial provision is “a provision which directs that a certain consequence, or sanction, may or shall follow upon an acknowledgment or formal determination of non-compliance with the relevant primary provision.” Hart, & Sacks, , The Legal Process 135 (tentative ed. 1958).Google Scholar Remedial conduct is pursuant to a remedial provision.

7 P.C.I.J., Series A/B, No. 42 (1931) (advisory opinion).

8 Id. at 116.

9 [1950] I.C.J. Rep. 128, 184.

10 Upon the argument in South-West Africa, the Philippines argued that the trusteeship provisions constituted a pactum. Pleadings 247.

11 Oppenheim, International Law Sec. 498 (8th ed. Lauterpacht, 1955) (hereinafter cited as Oppenheim). McNair believes the term limited to treaties specifying the provisions of subsequent agreements, rather than leaving them open for negotiations. Where negotiations are required, he points out, only good faith is required of the parties. This is not the same, McNair insists, as a strict obligation to accede to an existing or future treaty whose terms are specified. McNair, , The Law of Treaties 29 (1961).Google Scholar Yet, as discussed below, there is an equally important difference between agreements to conclude treaties through good faith negotiations and mere good faith negotiations without a prior agreement.

12 As used here, primary conduct is conduct undertaken by a party prior to a formal determination that that particular party is obliged to undertake that course of conduct. Primary obligations are requirements regulating primary conduct.

13 2 U.N. Rep. Int’l Arb. Awards 911 (1925).

14 Id. at 929.

15 This apparent paradox is avoided if McNair’s definition of a pactum is adopted. In his view, the treaty involved in Tacna-Arica merely established an obligation to negotiate, not one to agree. McNair, op. cit., supra note 11, at 29. Yet the Treaty of Ancon contemplated that a plebiscite would be held, not merely discussed. McNair’s analysis ignores this intermediate range of treaties where parties have bound themselves to agree but have not specified the terms.

l6 Reuter, Droit International Public 81–84 (2nd ed. 1963).

17 Arbitral award of November 16, 1957, 53 Am. J. Int’l L. 156 (1959) (excerpts of unofficial translation).

l8 Id. at 164.

19 56 Am. Jur., “Waters” Sec. 375 (1947).

20 Colorado v. Kansas, 320 U.S. 383, 392 (1943) (dictum). The court stated, “Such controversies may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the federal Constitution. We say of this case, as the court has said of interstate differences of like nature, that such mutual accommodation and agreement should, if possible, be the medium of settlement, instead of invocation of our adjudicatory power.”

21 Wyoming v. Colorado, 398 U.S. 573 (1936).

22 For an argument that international water claims are not in any sense appropriate for adjudication, see Berber, , Rivers in International Law, passim (1959).Google Scholar Although recognizing that states must have “due regard to the interests of other riparians,” Berber appears to believe that the absence of substantive rules of primary conduct entirely removes water disputes from the judicial sphere. The significance of the “due consideration” requirement, in his view, is merely to make water problems proper subjects for “political” action by international bodies. Id. at 254–74.

23 One may question whether this leaves any incentive for the party proposing change to reach agreement since it will achieve its objective even if negotiations fail. Theoretically, if agreement is not actually pursued by that party it has failed to demonstrate good faith and therefore cannot achieve its objective. In practice, the line between purely formal good faith negotiations and a sincere desire for agreement may be difficult to enforce.

24 61 Stat. 3; 55 U.N.T.S. 194; T.I.A.S. 1700 (1947).

25 62 Stat. 1981; 21 U.N.T.S. 77; T.I.A.S. 1838 (1947).

26 As provided in Article XXV(i), “contracting parties” indicates the parties to GATT in their individual capacities, while “CONTRACTING PARTIES” indicates the parties acting jointly as the principal organ of GATT.

27 8th Supplement, Basic Instruments and Selected Documents 28–30 (GATT 1954) (hereinafter cited as (Supp.) (BISD)).

28 11 (Supp.) BISD 55 (1963).

29 11 (Supp.) BISD 59 (1963).

30 11 (Supp.) BISD 56 (1963).

31 2 Oppenheim Sec. 8 (7th ed. 1952).

32 Cf. Lauterpacht, J. in South-West Africa — Voting Procedure, [1955]Google Scholar I.C.J. Rep. 67, 119 (advisory opinion) : A state, “while not bound to accept the recommendation, is bound to give it due consideration in good faith. If … it decides to disregard (the recommendation), it is bound to explain the reasons for its decision.”

33 See, for example, President Goolidge’s language in Tacna-Arica, Part I, supra note 14.

34 361 U.S. 477 (1960).

35 11 (Supp.) BISD 56 (1963).

36 11 (Supp.) BISD 55 (1963).

37 See Jaffe, , “Res Ipsa Loquitur Vindicated,” 1 Buffalo L. Rev. i (1951).Google Scholar

38 Cf. Summers v. Tice, 33 Cal. ad 80, 199 Píd 1, 5 A.L.R. 2d 91 (1948).

39 E.g., Nicaragua, 5 (Supp.) BISD 29 (1957); and Uruguay, 11 (Supp.) BISD 56 (1963).

40 3 (Supp.) BISD 250–51 (1955).

41 E.g., Articles XXIV(7), XII(4).

42 Uruguay, supra note 39, at 99.

43 See Report on the Withdrawal by the United States of a Tariff Concession Under Article XIX of the GATT (GATT 1951).

44 Uruguay, supra note 39, at 100.

45 See also 2 BISD 44 (1952).

46 Wilcox, , “The World Trade Charter,” 27 Foreign Affairs 486, 494 (1949).CrossRefGoogle Scholar

47 See Metzger, , “Settlement of International Disputes by Nonjudicial Methods,” 48 Am. J. Int’l L. 408 (1954).CrossRefGoogle Scholar

48 See Rubin, , “The Judicial Review Problem in the International Trade Organization,” 63 Harv. L. Rev. 78 (1949).CrossRefGoogle Scholar

49 220 U.S. I (1911).

50 Id. at 36.

51 246 U.S. 565 (1917).

52 For another example of the Supreme Court’s use of remedial negotiations to facilitate enforcement, see Wyoming v. Colorado, 298 U.S. 573, 586 (1936)1 where the court said, “While the problem of measuring and recording the diversions (of the Colorado River) is a difficult one, we entertain the hope that the two States will by cooperative efforts accomplish a satisfactory solution of it. But we think Wyoming should have leave to apply to us for an appropriate order in the matter if the two States are unable to agree and it is found that there is real need for invoking action by us.”

53 We should note an important argument directed at this conclusion: In order for a negotiated agreement to be attributed to the CONTRACTING PARTIES, they must accept it, just as a court accepts a master’s report. The CONTRACTING PARTIES only accept negotiated agreements through failure to take further action if they in fact could have disapproved such agreements as “inadequate” or “unsatisfactory.” However, if a negotiated remedy is satisfactory to the aggrieved party, the CONTRACTING PARTIES have no further interest in the dispute. They neither approve nor disapprove negotiated agreements, and therefore such agreements have no relevance in defining adequate or satisfactory proposals in remedial negotiations which later fail.

But the CONTRACTING PARTIES do have an interest, independent of the parties involved, in requiring adherence to GATT’s principles. If pressure was exerted through factors not relevant to normal trade negotiations, such as foreign aid or military threats, the CONTRACTING PARTIES may properly be concerned. If GATT is founded on the principle that trade relations proceed toward an expanded pie of commerce, factors not related to this pie should be minimized. With this in mind, the CONTRACTING PARTIES would appear to have at least four reasons for reviewing remedial agreements : ( 1 ) to protect their own remedial process from evasion in this particular dispute, (2) to protect the expectations of other parties interested in a proper remedial agreement in this dispute, (3) to ensure that factors not directed toward GATT’s goals do not become prevalent bases of negotiations in GATT, and (4) to avoid the inevitable effect of such agreements as evidence of adequate negotiations in future disputes, as discussed in the text below. In quasi-remedial negotiations, Article XVIII(18) implies the CONTRACTING PARTIES may disapprove compensatory agreements if more acceptable measures will accomplish the same purpose. Similarly, common market agreements under Article XXIV(7) are subject to review by the CONTRACTING PARTIES.

54 See Hart & Sacks, op. cit. supra note 6, at 29a.

55 Fuller, The Forms and Limits of Adjudication, unpublished essay quoted in Hart & Sacks, op. cit., supra note 6, at 431.

56 “A market is a regime of reciprocity; it presupposes and requires a divergence of individual objectives. Establishing the rules necessary for the functioning of such mechanism is a meaningful task for adjudication; performing the tasks of the mechanism is not.” Id. at 426 (emphasis in original).

57 Seyid Muhammad, , The Legal Framework of World Trade 169 (1958).Google Scholar

58 5 (Supp.) BISD 29 (1957).

59 30 U.N.T.S. 55 (1948).

60 3 Annals of the Organization of American States 7 (Pan American Union, 1951) (hereinafter cited as Annals).

61 Lauterpacht concludes that nonjudicial settlement procedures provide states disregarding international law with the opportunity of binding law-abiding states to unlawful claims. This is so, he insists, because international law can provide solutions for all disputes; nonjudicial solution must therefore mean either unlawful decisions or judicial decisions by unqualified bodies. Lauterpacht, The Function of Law in the International Community 372–74 (1933). It may be doubted whether international law is yet able to give acceptable decisions in all disputes. The operations of the United Nations suggest that nonjudicial settlement is frequently the only alternative to serious international disturbances. Fortunately, it is unnecessary to resolve these basic questions in evaluating the function of obligatory negotiations. The purpose of this article is to examine the possible role of negotiations in expanding the operations of international legal standards. To the extent that obligatory negotiations tend toward nonjudicial procedures, negotiations are not performing this function.

62 Applications of the Inter-American Treaty of Reciprocal Assistance 1948–56, 69–82 (Pan American Union 1957) (hereinafter cited as Applications).

63 Id. at 124–27.

64 Id. at 147–48.

65 1 Annals 325–26 (1949).

66 Applications 17–28.

67 The parties agreed to implement the Havana Convention of 1928 and the Pact of Bogota. Id. at 48–50.

68 Nicaragua’s Ambassador Sevilla Sacasa was praised for his “unwaivering conciliation.” Id. at 57.

69 Id. at 55–56.

70 Id. at 157–61.

71 Id. at 194–96.

72 Id. at 205–14.

73 A new and distinct breach of primary duty may have to endanger the peace before the Council may act under the Rio Treaty. A breach of its remedial decree may be cognizable by the Council without reference to this condition.

74 See Applications 200–02.

75 Id. at 132.

76 For a dissent from the Committee’s report on this ground, see id. at 190.

77 Article 8 authorizes “recall of chiefs of diplomatic missions; breaking of diplomatic relations; breaking of consular relations; partial or complete interruption of economic relations or of rail, sea, air, postal, telegraphic, telephonic, and radiotéléphonie or radiotélégraphie communications; and use of armed force.”

78 This is presumably what happens in GATT when an injured party improperly rejects remedial proposals of a breaching party.

79 Again, this would correspond to the remedy suggested by Reuter and the arbitrators in Lake Lanoux, supra Part I.

80 50 Dept. State Bull. 304 (1964).

81 On April 3, 1964 the parties signed a Joint Declaration re-establishing diplomatic relations. They also agreed: (1) “To designate without delay special Ambassadors with sufficient powers to seek the prompt elimination of the causes of conflict between the two countries without limitations or preconditions of any kind;” and (2) “That therefore the Ambassadors designated will begin immediately the necessary procedures with the objective of reaching a just and fair agreement which would be subject to the constitutional process of each country.” Id. at 656.

82 The language of the Declaration indicates that the parties recognized the need to examine “the causes of the conflict” in order to deal effectively with the incidents of January 9 and 10, 1964.

83 Professor Hilding Eek has suggested informally that, regardless of Council action, Reuter’s doctrine might require renegotiations of the annual rental and managerial provisions of the Treaty of 1903.

84 Presumably, international law is binding on the Council as on other international bodies. This is reinforced by the provision of Article 5(a) of the OAS Charter, providing that “International law is the standard of conduct of States in their reciprocal relations,” though it might be said that when states act through the Council they do not deal in “reciprocal relations.” If the Council is bound by international law, can it require renegotiation of a valid treaty? An obligation to renegotiate is not a judicial judgment that the treaty is void. It merely is an attempt to reform the treaty in accordance with the demands of peaceful community relations. If reform is not achieved, the treaty remains valid, but the Council will refuse to enforce it. Nevertheless, the problems involved here are complex and need further study.

85 It might be argued that all negotiating burdens disappear when the parties agree to negotiate on reparations and treaty revision. Since the agreement discharges the parties’ remedial obligations, any further burdens on one particular party might be said to flow only from the language of that agreement. In this case, the Declaration’s stipulation that negotiations are to start without “preconditions of any kind” may indicate the absence of such a burden.

86 Note that one of the reasons for this inappropriateness is the difficulty of identifying a wrongdoer even if the Council desired to do so.

87 Lauterpacht, , The Function of Law in the International Community 372–82 (1933).Google Scholar

88 Id. at 377.