Consultation and Negotiation in the States´ Practice

First Steps in International Justice, Primeiros Passos em Justiça InternacionalLeave a commentEdmundo Lellis Filho

1. Introduction

Theoretically, drawing a clear distinction between consultation and negotiation is straightforward: while consultation serves as a means to avoid disputes, negotiation, alongside enquiry, mediation, and conciliation, is a method for resolving disputes. Both legal mechanisms fall within the amicable and diplomatic spectrum of maintaining good relationships between states. Thus, while these institutes may appear similar, their impacts differ, taking States by surprise if a dispute emerges.

Consultation and negotiation, as relevant legal devices fostering good relationships between signatories States and quite helpful mechanisms in the process of peaceful resolution of conflicts, because result from the parties´ will, should be drafted very carefully in the accord, choosing the legal and appropriate wordings with close attention to States´ real intentions, so that the juridical effects may in the future match the parties expect consequences therefrom. However, states’ practice presents lawyers with arrangements in treaties where consultation and negotiation emerge from really obscure clauses, making it difficult to extract their real intentions and raising severe issues if a dispute has to be referred to an international court or tribunal.

That image is clause 4 in the “Declaration on the Conduct of the Parties in the South China Sea.” Although written with simplicity, the true intention behind the words is not easy to establish. For China, the clause conveys the idea that the adherent States to that declaration cannot resort to third-party dispute-settling methods, such as mediation, arbitration, or judicial proceedings. On the other hand, the Philippines comprehends that the clause requires amicable dispute settlement means such as consultation and negotiation as prerequisites before instituting adjudicatory proceedings. The latter understanding was held by an Annex VII Arbitral Tribunal, which accepted its jurisdiction over the ruling of the South Sea conflicts between China and the Philippines. Conversely, China was absent in the arbitral proceedings, and since that arbitral tribunal handed down its final decision on the matter (against China´s interests in the region), tensions have risen in that sea.

This post and its follow-up will address issues related to clauses of consultation and negotiation in light of the procedural consequences they spark in adjudicatory proceedings, that is, raising allegations on preliminary objections.  

2. Concepts. Distinctions and Similarities between Consultation and Negotiation. Consultation (sensu lato and sensu stricto)

The first step is establishing the concepts, distinctions and similarities between consultation and negotiation. It is worth noticing that the idea hereby given is theoretical. In practice, when drafting a clause of negotiation or consultation, it is necessary to write it according to its discrete desired effects. 

3. Consultation and Negotiation in Treaties (Bilateral or Multilateral)

Nevertheless, and here lies the inflection point, when consultation and negotiation are embedded in agreements, their optional character fades, and simplicity transitions to complexity. Consequently, consultation and negotiation evolve into binding mechanisms, forming law between the parties, subject to interpretation by courts when defendants raise objections about admissibility, particularly in the context of arbitral or judicial proceedings.

There are three rooted problems with consultation and negotiation agreed upon by States in treaties: One, Consultation and negotiation are, theoretically, related categories; two, when using consultation and negotiation in their agreements, States´ practices mix them up and, three, as consultation and negotiation are employed in treaties, they becomes a pre-condition, or a prerequisite, of the legal point where a dispute, not having been settled through diplomatic ways (upon which the parties to it retain full control over the dispute´s result), may be handed over to adjudication (broader sense), when, then, parties have no longer domain of their dispute resolution.

The last issue becomes even more serious when States, already parties to a multilateral agreement endowed with compulsory jurisdiction mechanisms, simultaneously enter into agreements that establish consultation and negotiation as prerequisites before commencing legal (arbitral) or judicial proceedings, with both agreements covering the same subject matter.

A recent example can be seen in the South China Arbitration instituted by the Philippines against the Popular Republic of China, under the auspices of the 1992 United Nations Convention on the Law of the Sea (in which Part XV sets up compulsory jurisdiction); however, those same States are also signatories to an agreement where, seemingly, an arbitral or judicial instance are precluded from being instituted unless prior negotiations have proved to be unsuccessful, 2002 Declaration on the Conduct of Parties in the South China Sea. Recognizing that the Philippines could not initiate arbitral proceedings without prior negotiation, China refused to acknowledge the jurisdiction of the Arbitral Tribunal and did not appear before it.

The Reciprocal Encouragement and Protection of Investment between the Republic of Argentina and the United States is an example of a consultation clause in a bilateral treaty. This BIT, Bilateral Investment Treaty,

3. Consultation and Negotiation in General International Law

It is noteworthy that International Law, founded on the principle of the “sanctity of treaties” and the respect for consent, does not obligate states to engage in any compulsory diplomatic, legal, or judicial dispute resolution methods. Consequently, two uncontroversial interpretations of Article 33(1) of the 1945 San Francisco Charter emerge: Firstly, the methods that States are encouraged to pursue are not arranged in any order of precedence1 or hierarchy2; secondly, Article 33 (1) mandates only the resolution of disputes through peaceful means, thereby committing States to abstain from aggression or any actions that threaten security and peace.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Article 33 (1)

UN Charter
4. The Effects of Consultation and Negotiation in International Treaties

Being well-established that when a treaty contains a specific rule, there is a prior obligation to consult or negotiate before initiating legal or judicial proceedings, the following issue arising in the interpretation of such treaties is defining the limits and scope of that obligation, namely, to what extent it prevents States from commencing legal proceedings, because, as aforementioned, the States´ practice is not clearly articulated in the treaties.

So, when a dispute arises regarding the terms of an agreed-upon clause of prior consultation or negotiation, International Courts and Tribunals seized of such cases have to decide which interpretation of the clause is appropriate and, accordingly, which effects it has on the application filed with the Court or Tribunal. The defendant States bring to the Court´s attention that contention as an objection to admissibility3.

5. Relevant Judgments Regarding the Interpretation of Treaties containing Consultation or Negotiation Clauses

5.1 Lake Lanoux Case

The Lake Lanoux Case (France v. Spain). Arbitral Tribunal, November 16, 1957 – interpretation of Article 11 of the Additional Act of May 26, 1866, to the Treaty of Bayonne of the same date.

The importance of this case stems from the Arbitral Tribunal’s dismissal of Spain’s contention grounded on Article 11 of the Additional Act of the Treaty of Bayonne. The Tribunal concluded that prior notice serves as a form of consultation, compelling an attempt to negotiate in good faith. Thus, it cannot be viewed as an obligation to achieve an agreement (as a precondition for France’s jurisdiction) or as conferring a veto power (consent authority) over France’s territorial jurisdiction upon Spain.

5.2 The Pulp Mills on the River Uruguay

The Pulp Mills on the River Uruguay (Argentina v. Uruguay). International Court of Justice, judgment of April 20, 2010 – interpretation of Article 7 of the 1975 Statute of the River Uruguay.

The Court construed Article 7 of the Statute of the River Uruguay to mean that Argentina violated its obligations under that article by failing to notify the Commission before undertaking alterations on the River Uruguay.

Notification is a consultative measure (or a category of consultation).

Another significant interpretation of Article 7 by the ICJ, with broad implications for international justice, is that consultation constitutes a procedural obligation, not a substantive4 one. Therefore, when such an obligation is breached, the party claiming damages bears the burden of proving their existence, as damages cannot be presumed solely from the procedural breach. Consequently, in the case, the ICJ found that Uruguay violated the consultation obligation, but Argentina failed to demonstrate any resulting damages.

5.3 Obligation to Negotiate (Sovereign) Access to the Pacific Ocean Case

Obligation to Negotiate Access to the Pacific Ocean Case (Bolivia v. Chile). The International Court of Justice, in its judgment dated 1 October 2018, addressed the interpretation of Article 2(3) of the United Nations Charter, along with other legal grounds, in respect of Bolivia’s claim that Chile was allegedly obligated to negotiate sovereign access to the Pacific Ocean for Bolivia. That is, Chile had the obligation to negotiate.

The ICJ held that the aforementioned wording of the UN Charter (Art. 2 (3)), which was the alleged legal base for Bolivia´s claim that Chile was obliged to reach an agreement with it (on sovereign access to the Pacific Ocean), does not constitute an obligation to negotiate. The Court also sustained that the existence of an obligation to negotiate must be ascertained as any other legal obligation in international law.

By addressing (and rejecting) each of Bolivia´s legal bases, the ICJ construed the appropriate interpretation the International Law should have regarding the obligation to negotiate, when that diplomatic means of dispute resolution is provided in a treaty as a pre-condition of referring a dispute to a Court or Tribunal. So, the Court held that as follows:

“While States are free to resort to negotiations or put an end to them, they may agree to be bound by an obligation to negotiate. In that case, States are required under international law to enter into negotiations and to pursue in good faith”

ICJ

In essence, the ICJ established that the obligation to negotiate is contingent upon a specific agreement, and once it is in place, the obligation to negotiate must be pursued in good faith; thus, good faith serves as the guiding principle.

5.4 North Sea Continental Shelf Cases

Special Agreement for the submission to the International Court of Justice of a
difference between the Kingdom of the Netherlands and the Federal Republic of
Germany concerning the delimitation, as between the Kingdom of the Netherlands
and the Federal Republic of Germany, of the continental shelf in the North Sea
2 February 1967

In this case, ICJ establishes what is necessary to accomplish the obligation of negotiation by asserting that States should conduct themselves in a way that the negotiations are meaningful, and give a negative concept of meaning negotiation. Indeed, when defining the scope of obligation to negoatiate, describing that States under the obligation to negotiate have the duty of consistency with meaningful character of a negotiation and that will not occur when:

“(…) either of them insists upon its own position without contemplating any modification” (I.C.J. Reports 1969, p. 47, para. 85).”

ICJ

5.5 Application of the Interim Accord of 13 September 1995

In that judgment, ICJ established what can be regarded as “meaningful negotiations”, by asserting that:

Each of them “should pay reasonable regard to the interests of the other” (Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011 (II), p. 685, para. 132).”

ICJ

5.6 Advisory Opinion on Railway Traffic between Lithuania and Poland

5.7 Legality of the Threat and Use of Nuclear Weapons, Advisory Opinion

5.8 South West Africa Cases

5.9 Northern Cameroons Case

5.10 Armed Activities Case between the DR of the Congo and Rwanda

5.11 Diplomatic and Consular Staff in Tehran

5.12 Aegean Sea Continental Shelf

5.13 South China Sea Arbitration

5.14 Lockerbie Case

5.15 Border and Transborder Armed Actions Case between Honduras and Nicaragua

5.16 Southern Bluefin Tuna Case

5.17 MOX Plant case

5.18 Reclamation Land Case between Malaysia and Singapore

  1. In the Charter of the Organisation of the American States, Article 3 asserts it expressly: “ARTICLE III. The order of the pacific procedures established in the present Treaty does
    not signify that the parties may not have recourse to the procedure which they consider
    most appropriate in each case, or that they should use all these procedures, or that any of
    them have preference over others except as expressly provided”    . ↩︎
  2. “[I]t is well established in international law that no state can without its consent, be compelled to submit its disputes with other states either to mediation or to arbitration, or to any other kind of pacific settlement”. Status of Eastern Carelia Advisory Opinion, 1923, PCIJ, Series B, nº 05, p 27. ↩︎
  3. To read the Difference between jurisdiction and admissibility ↩︎
  4. The concepts of substantive and procedural obligations, when related to consultation or negotiation assumed in treaties as a precondition for taking certain actions, such as during a decision-making process, should not be confused with the substantive aspect of negotiation. To understand this further, one can explore the Substantive and Instrumental Effects of Negotiation and The substantive Aspect of Negotiation. ↩︎
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