Invisible shadows in inter-state negotiations: Testing Sinclair’s hypothesis on the need for automatically available procedures

By Rohit Gupta, Ph.D. Candidate at the University of Cologne

1.         Introduction

In 1984, Sir Ian Sinclair, the then Legal Adviser to the Foreign and Commonwealth Office who had been a leading member of the British delegation to the Vienna Conference in 1969, wrote:

“The chief value of the automatic procedures for settlement of disputes now written into the Convention lies not in their precise content but in their mere existence. […] No state is anxious to indulge in lengthy and expensive international conciliation or litigation. […] What is important – what is indeed crucial – is that there should always be in the background, as a necessary check upon the making of unjustified claims, or upon the denial of justified claims, automatically available procedures for the settlement of disputes.”[1]

His treatise drew from his experiences in the application of the Vienna Convention on the Law of Treaties (‘VCLT’) during several inter-state and other multiparty negotiations. The above excerpt, referring to the mechanism jointly found in Articles 65 and 66 of the VCLT, carries the significant authority attached to Sinclair’s work and still reflects contemporary wisdom on the reluctance of states to litigate when disputes may be resolved through bilateral negotiations. Sir Michael Woods’ notes that “negotiation has pride of place”, while also observing the reduced judicialization of international disputes (except before the International Court of Justice (‘ICJ’)) and states’ reluctance to appear before or their withdrawal of consent from courts entirely.[2]

Given this primacy of inter-state negotiations then, this comment is concerned with Sinclair’s assertion on automatically available procedures, which appears sound at first glace. States have often used the threat of resorting to litigation to inject momentum into the negotiation process. In 1973, Pakistan instituted proceedings before the ICJ against India to break a stalemate over the return and repatriation of prisoners of war. Fearing worse financial and political losses, India was forced to resume negotiations, after which the proceedings were dropped.[3] Similarly, in 2023–2024, India and the United States mutually agreed on settling seven pending disputes, after spending over a decade in parallely litigating these issues before the World Trade Organization.[4]

Poetti, Bièvre and Chatagnier argue that negotiations under the World Trade Organization system occur in the “shadow of judicialization”.[5] They construct a model that demonstrates that the complainant’s bargaining power (in a negotiation) increases with its ability to impose costs upon the defendant; but that the complainant’s preference for loss-mitigation (in the event of an unfavourable opinion) reinforces the defendant’s leverage. Further, the complainant must judge the degree of compliance expected from the defendant if litigation is triggered. If the defendant is unlikely to comply, fewer concessions can be extracted through the threat of judicialization. The defendant may vice versa instrumentalize its image as a non-complier to advance conditions during negotiations, expecting the complainant to favourably respond since resorting to litigation would increase chances of non-compliance. Thus, both parties operate under a complex flux of diplomatic manoeuvring in order to achieve a successful outcome.[6]

It is also important here to clarify the potency of the threat in question. Several agreements and conventions provide the right to resort to third-party adjudication, provided a failure to negotiate a settlement of the dispute.[7] A failure to even begin negotiations led the ICJ to reject the Democratic Republic of the Congo’s application against Rwanda.[8] However, courts and tribunals have tended to read the requirement of negotiation as a facilitator of peaceful settlement of disputes, rather than an impediment to third-party adjudication. Parties are obligated to negotiate to the point that such a process remains ‘meaningful’, failing which they may turn to other mechanisms. The ICJ, in North Sea Continental Shelf, introduced a fairly low bar to define ‘meaningful’, noting that it would not be so if “either [negotiating party] insists upon its own position without contemplating any modification of it”.[9] Causing an undue delay in the proceedings may dispel the obligation of the opposing party to seek initial settlement through negotiation only.[10]

The threat, or shadow, of judicialization is thus very real in international dispute settlement. Sinclair’s assessment of the behavioural changes it produces is easily acceptable. What is less acceptable about this assessment is the position that these behavioural changes must always be linked to automatically available procedures.

Three procedures particularly undercut Sinclair’s assertion that automatically available procedures must ‘always be in the background’ to check disputing parties’ action: (1) countermeasures, (2) forum prorogatum, and (3) United Nations Security Council referrals. I argue that it is important to consider these procedures as negotiation tactics when no other (compulsory) mechanism exists.

2.         Invocation of Countermeasures

The absence of any third-party mechanism does not render a state defenceless against the flouting of the negotiation process. Scholars, such as Robert Barnidge, have conceived of a ‘law of negotiations’ which denotes what constitutes a successful attempt at negotiation.[11] The ICJ, in Georgia v. Russia, mandates a negotiation to be a “genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute”.[12] Thus, a negotiation can only be said to have been tried and exhausted if the process becomes “futile or deadlocked”.[13] This imposes an obligation of good faith, similar to the one envisaged in Article 26 of the VCLT.[14]

In response to a perceived lack of good faith in negotiating a dispute settlement, states may resort to lawful countermeasures provided that these are meant to facilitate, rather than to obstruct, the negotiation process. Their purpose must be to restore the “equality and symmetry” between the states,[15] and must comply with the four criteria laid down by the ICJ in Hungary v. Slovakia.[16] The Air Service Agreement arbitral award between the United States and France affirmed this permissibility of invoking countermeasures within the context of ongoing negotiation, and only dissuaded such measures when provisional or interim measures of protection could be sought.[17] Since we are considering the case where no third-party mechanisms exist, the latter finding may be distinguished.

A test of proportionality will also be whether the countermeasure contradicts the obligation of non-aggravation. The obligation follows from the requirement under Article 2(4) of the UN Charter to not settle disputes in a manner that endangers “international peace and security, and justice”, such as through the use of force.[18] The 1982 Manila Declaration on the Peaceful Settlement of Disputes expressly qualifies non-aggravation as acting in a manner liable to “endanger the maintenance of international peace and security and make more difficult or impede the peaceful settlement of the dispute’”.[19] Non-aggravation has traditionally been invoked in the context of the threat or use of force, such as in the aftermath of Turkey’s invasion of Cyprus,[20] with respect to local Iranian strife after the United States invasion,[21] or the North Korean launch of a provocative missile over Japan.[22] However, there is no particular guidance on which acts may be permissible,[23] given proportionality is assessed on a case-by-case basis. Steven Ratner provides a graded list of permissible acts, such as the imposition of economic sanctions.[24]

3.         Forum Prorogatum as a Jurisdictional Link

Among the jurisdiction links not mentioned in Article 36 of the Statute of the ICJ, and hence, forgotten, is forum prorogatum or prorogated jurisdiction.[25] Article 38(5) of the Rules of the Court allows states to find jurisdiction based on the yet to be given consent of the respondent state.[26] Once consent is received, the case is entered into the General List and the proceedings are said to be instituted. States are in no manner bound to accept such an invitation or to provide their consent to submit any dispute to any international adjudicative body under general international law.[27] This follows from the principle of sovereignty.[28]

In the past, however, forum prorogatum has been used to strongarm the respondent state into conceding jurisdiction to the Court for fear of loss of face. Both Djibouti and the Republic of the Congo instituted proceedings against France expressly claiming jurisdiction under Article 38(5) of the Rules of the Court. Though the reasons for accepting the jurisdiction of the Court are complex, France here was put in a situation where non-acceptance would imply a weak front and a tacit admission of responsibility before the international community.[29] Once an application is made, press releases and media may concentrate global attention towards respondents. An analogy may be drawn here to the perception created against an accused when she resorts to protections against self-criminalization. The mere submission of such an application may also not be seen as violative of the obligation against aggravation as the procedure sought is peaceful and one which is envisaged and endorsed by the UN Charter.[30] Forum prorogatum may thus serve, independent of any compulsory settlement mechanisms, as a valid negotiation tactic.

Note, however, that this tactic may not always induce acceptance or even a response from states. Indeed, the United States refused to accept the jurisdiction of the Court in reply to Argentina’s 2014 institution of proceedings over the United States’ restructuring of Argentine public debt.[31]

4.         Referral by the United Nations Security Council under Chapter VII

The United Nations Security Council is tasked with the maintenance of international peace and security and under Article 36 of the UN Charter plays a special role in the settlement of international disputes. Under Article 36(1), the Security Council may recommend “appropriate procedures or methods of adjustment” for situations that endanger international peace and security.[32] Such procedures include a recommendation to refer the dispute in question to the ICJ. But Article 41 of Chapter VII of the UN Charter empowers the Security Council to adopt coercive measures which do not involve the use of force to maintain or restore international peace and security.[33] The international criminal tribunals for the Former Yugoslavia and Rwanda have been established by the Security Council acting under this provision.[34] The power of the Security Council to bind non-state parties to the Rome Statute and to trigger the International Criminal Court’s jurisdiction may be seen as an extension of this power.[35]

It must naturally follow that the Security Council should have the power to require states to submit to the jurisdiction of the ICJ, even against their will.[36] The Security Council did, for instance, compel Kuwait and Iraq to settle their boundary dispute by a binding procedure.[37] Admittedly, Article 41 has not been utilized in this manner but there does not seem any bar on the same.

5.         Conclusion

This comment briefly analyses Sinclair’s statement in regards to the automatically available mechanisms of dispute settlement in the VCLT. The overall picture so developed is that Sinclair’s words represent conventional wisdom, but ignore, most naturally, some of the more recent developments which occurred after they were uttered. In 1930, Sir Hersch Lauterpacht wrote that states choose diplomatic means over legal means of dispute settlement to effectively “substitute a series of attempts at settlement for a settlement proper”.[38] This remains largely true, until it does not. The only truism found is that states act in self-interest, whether those be achieved through negotiation or litigation.

Photo: Negotiations about Iranian Nuclear Program – Foreign Ministers and other Officials of P5+1 Iran and EU in Lausanne (30 March 2015). Credit: United States Department of State

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[1] Sir Iain Macleod, ‘Ian Sinclair, The Vienna Convention on the Law of Treaties, 1984’ in Jill Barrett and Jean-Pierre Gauci (eds), British Contributions to International Law, 1915-2015 (Brill Nijhoff 2020) 657.

[2] Sir Michael Wood, ‘International Dispute Settlement: A Bright or Depressing Future?’ in Russell Buchan, Daniel Franchini and Nicholas Tsagourias (eds), The Changing Character of International Dispute Settlement (Cambridge University Press 2023) 499.

[3] Trial of Pakistani Prisoners of War (Pakistan v India) [1973] ICJ Rep 328.

[4] World Trade Organization, ‘India, US announce mutually agreed solution in dispute over agricultural import measures’ (21 March 2024) <https://www.wto.org/english/news_e/news24_e/disp_21mar24_e.htm#:~:text=On%2015%20March%2C%20India%20and,WTO%20members%20on%2021%20March.&gt; accessed 10 April 2025.

[5] Arlo Poletti, Dirk de Bièvre Dirk and J. Tyson Chatagnier, ‘Cooperation in the Shadow of WTO Law: Why Litigate When You Can Negotiate’ (2015) 14(1) World Trade Review, 37.

[6] See also, Marc L. Busch and Eric Reinhardt, ‘Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes’ (2000) 24(1–2) Fordham International Law Journal, 158–172.

[7] Under Article 14 of the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, states were obligated to first “settle by negotiation”. See Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (23 September 1971) 974 UNTS 177, art 14.

[8] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6 [91].

[9] North Sea Continental Shelf [85(a)].

[10] John G. Merrills, International Dispute Settlement (Grotius Publications 2005) 19.

[11] Robert Barnidge, ‘The International Law as a Means of Negotiation Settlement’ (2013) 36(3) Fordham International Law Journal, 562.

[12] Application of International Convention on Elimination of All Forms of Racial Discrimination (Georgia v. Russia) (Preliminary Objections) [2011] ICJ Rep 2011 [157] (Apr. 1. 2011).

[13] ibid.

[14] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment, Separate opinion of Judge Greenwood), [2010] ICJ Rep 2010, 223; Legality of Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [263]–[265] (referring to Article 6 of the Treaty on the Non-Proliferation of Nuclear Weapons).

[15] Barnidge (n 11) 562.

[16] Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 ((1) the measure must respond to an internationally wrongful act, (2) the measure must be enacted to induce compliance on the part of the wrongdoer, (3) the measure taken must be commensurate to the injury suffered, (4) the measure must be reversible and cease as soon as the wrongdoer’s compliance is secured)). These rules are also mirrored in Articles 49 and 51 and supplemented by Articles 50(1)(b) and 53 of the ILC’s Articles of State Responsibility (International Law Commission, Responsibility of States for Internationally Wrongful Acts, UN doc A/CN.4/SER.A/2001/Add.1 (2001)).

[17] Air Service Agreement of 27 March 1946 between the United States of America and France (Decision of 9 December 1978) 18 RIAA 417, 445–46.

[18] Bruno Simma et al. (eds), The Charter of the United Nations: A Commentary (OUP 2012), art. 2(3) [25].

[19] UNGA res 37/10 (15 November 1982) [8].

[20] UNSC res 353, (20 July 1974) [2].

[21] UNSC res 2233 (28 May 2015), Preamble [7]. 

[22] UNSC res 2397 (22 December 2017), Preamble [6].

[23] In Bolivia v. Chile, the ICJ held that Chile’s refusal to negotiate with Bolivia did not constitute an aggravating act, but did not say what may constitute such an act. See Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) (Judgment) [2018] ICJ Rep 507 [165]–[166].

[24] Steven R. Ratner, ‘The Aggravating Duty of Non-Aggravation’ (2020) 31(4) European Journal of International Law, 1338–1341.

[25] Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Preliminary Objections) [1948] ICJ Rep 15; Leoni Ayoub, ‘The Death Knell of Forum Prorogatum or: How the ICJ Missed its Opportunity to Generate its Own Jurisdiction’ in Jure Vidmar (ed), Hague Yearbook of International Law (Brill Nijhoff 2020) 1–30.

[26] Rules of the Court (1 July 1978) art 38(5).

[27] Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Objections) [1954] ICJ Rep 19.

[28] Antonio Cassese, International Law (OUP 2004) 3.

[29] Sienho Yee, ‘Forum Prorogatum Returns to the International Court of Justice’ (2003) 16(4) Leiden Journal of International Law, 706.

[30] Ratner (n 24) 1310 (“The linkage of Article 33 to Article 2(3) means that the options in the former are not to be regarded as aggravating a dispute.”).

[31] Julian Ku, ‘Here Comes That Frivolous Argentina ICJ Claim! Oh, And They Have No Jurisdiction Either!’ (Opinio Juris, 7 August 2014) <https://opiniojuris.org/2014/08/07/comes-frivolous-argentina-icj-claim-oh-jurisdiction-either/&gt; accessed 10 April 2025.

[32] Charter of the United Nations (24 October 1945) (UN Charter) art 36(1).

[33] UN Charter, art 41; Nico Krisch, ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, Article 41’ in Simma et al. (eds) (n 18) 1305 ff.

[34] UNSC res 827 (25 May 1993) (on the International Criminal Tribunal for the Former Yugoslavia); UNSC res 955 (8 November 1994) (on the International Criminal Tribunal for Rwanda); Wayne Sandholtz, ‘Creating Authority by the Council: The International Criminal Tribunals’ in Bruce Cronin and Ian Hurd (eds), The UN Security Council and the Politics of International Authority (Routledge 2008) 131.

[35] UNSC res 1593 (31 March 2005) (on the situation in Darfur); UNSC res 1970 (26 February 2011) (on the situation in Libya).

[36] Michael Wood and Eran Sthoeger, ‘The Security Council and the International Court of Justice’ in The UN Security Council and International Law (CUP 2022) 162.

[37] UNSC res 833 (27 May 1993).

[38] Hersch Lauterpacht, The Function of Law in the International Community (OUP 2011) 275.