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Retaliation or Arbitration—or Both? The 1978 United States-France Aviation Dispute

Published online by Cambridge University Press:  27 February 2017

Lori Fisler Damrosch
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Extract

It began as a very small dispute. Pan American World Airways planned to introduce a service from San Francisco to Paris with a stop in London, using a Boeing 747 aircraft from San Francisco to London and a smaller Boeing 727 aircraft from London to Paris. The change to a smaller plane would have enabled the most efficient and economic use of Pan Am’s fleet. In aviation as in railroad terminology, a change along a route to equipment of a different size is called a “change of gauge.”

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 4 , October 1980 , pp. 785 - 807
Copyright
Copyright © American Society of International Law 1980

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References

1 Stoffel, , American Bilateral Air Transport Agreements on the Threshold of the Jet Transport Age, 26 J. Air L. & Comm. 119, 133 (1959)Google Scholar; Lissitzyn, , Change of Aircraft on International Air Transport Routes, 14 J. Air L. & Comm. 57 (1947)Google Scholar.

2 61 Stat. 3445, TIAS No. 1679, as subsequently extended and amended (see 1 UST 593, T1AS No. 2106; 2 UST 1033, TIAS No. 2257; 2 UST 1037, TIAS No. 2258; 10 UST 1791, TIAS No. 4336; 13 UST 1860, TIAS No. 5135; 20 UST 2684, TIAS No. 6727).

3 The Agreement does not use the term “change of gauge.” Section VI of the Annex to the Agreement reads: (a) For the purpose of the present Section, the term “transshipment” shall mean the transportation by the same carrier of traffic beyond a certain point on a given route by different aircraft from those employed on the earlier stages of the same route. (b) Transshipment when justified by economy of operation will be permitted at all points mentioned in the attached Schedules in territory of the two Contracting Parties. (c) However, no transshipments will be made in the territory of either Contracting Party which would alter the long range characteristics of the operation or which would be inconsistent with the standards set forth in this Agreement and its Annex and particularly Section IV of this Annex.

4 See section IV of the Annex to the Agreement. For a recent overview of the development of the policies reflected in aviation agreements negotiated by the United States, see Atwood, , International Aviation: How Much Competition, and How? (book review), 32 Stanford L. Rev. 1061 (1980)CrossRefGoogle Scholar.

5 The proposed change of gauge did not involve the carriage of local traffic between London and Paris, which would have been a new and valuable right subject to bargaining

6 The Agreement as amended provides in Article X that any dispute between the Contracting Parties relative to the interpretation or application of this Agreement or its Annex which cannot be settled through consultation shall be submitted for an advisory report to a tribunal of three arbitrators… . The Contracting Parties will use their best efforts under the powers available to them to put into effect the opinion expressed in any such advisory report. Under arbitral clauses of this type, the principle of recourse to arbitration is agreed in advance, but the modalities of submitting a specific dispute to arbitration must be worked out through the negotiation of an intergovernmental agreement known as a compromis. Such an agreement may include, inter alia, provisions on selection of the arbitrators, seat of the tribunal, questions to be posed, procedures to be followed, the schedule for the proceedings, and the terms governing the conduct of the parties over the disputed issue during the pendency of the proceedings.

7 Civil Aeronautics Board Order 78-5-45, Docket 32651.

8 14 C.F.R. pt. 213. Part 213, originally proposed by the Civil Aeronautics Board in 1961 to provide a means for controlling the capacity of foreign air carriers if foreign governments controlled the capacity of U.S. carriers, was adopted in somewhat different form in 1970. The version in effect at the time of the U.S.-France dispute authorized the Board to require foreign air carriers to file schedules upon a finding that the public interest so required. In the case of foreign carrier operations subject to an air transport agreement between the United States and a foreign government, the Board could not require filing of schedules unless it found that the carrier's government had impaired, limited, terminated, or denied U.S. operating rights under the agreement or otherwise failed to prevent the denial of fair and equal opportunity to exercise those rights. By entry of a subsequent order, subject to stay or disapproval by the President, the Board could prevent the inauguration of proposed schedules or require the discontinuance of existing schedules. In 1979 Congress amended section 402(f) of the Federal Aviation Act to include a specific statutory provision on the model of part 213. International Air Transportation Competition Act of 1979, Pub. L. No. 96-192, §9, 94 Stat. 35. Under the new provision, retaliatory measures may be entered summarily and without hearing, subject to the approval of the President. The Senate Commerce Committee's report explains the provision as follows: Experience under Part 213 has demonstrated that an effective retaliatory power can and does act as a persuasive deterrent against foreign government restrictions. Moreover, the right of the United States to take proportional countermeasures in response to restrictive action by a foreign government in violation of a bilateral agreement (even when such countermeasures would, in the absence of the foreign government violation, themselves constitute a violation of the agreement) has recently been sustained by an international arbitration tribunal as consistent with recognized international law principles. Award of Arbitral Tribunal in the International Arbitration between the United States and France, December 9, 1978. S. Rep. No. 96-329, 96th Cong., 1st Sess. 5 -6 (1979). The report also notes the view of the committee that implementation of a retaliatory measure when a foreign government has breached an agreement is consistent with the Board's mandate under section 1102 of the Federal Aviation Act to act consistently with obligations assumed by the United States in intergovernmental agreements.

9 Civil Aeronautics Board Order 78-6-82, Docket 32651, 43 Fed. Reg. 25,846 (June 15, 1978). The order was subject to stay or disapproval of the President within 10 days, but was neither stayed nor disapproved: indeed, the interested executive branch agencies (the Departments of State and Transportation) supported the decision to proceed to the implementation of part 213 countermeasures.

10 Civil Aeronautics Board Order 78-7-33, Docket 32651.

11 The relevant portion of the compromis reads: The tribunal is requested to decide the following two questions in accordance with applicable international law and in particular with the provisions of the Agreement: (A) Does a United States-designated carrier have the right to operate West Coast-Paris service under the Air Services Agreement between the United States and France with a change of gauge in London (transshipment to a smaller aircraft on the outward journey and to a larger aircraft on the return journey)? The tribunal's decision of this question shall be binding. (B) Under the circumstances in question, did the United States have the right to undertake such action as it undertook under Part 213 of the Civil Aeronautics Board's Economic Regulations? The tribunal shall issue an advisory report with respect to this question in accordance with Article X of the Agreement, which shall not be binding. The compromis fixed an expedited schedule for the briefing of the case and requested the tribunal to render its decision no later than December 10, 1978. It also established interim arrangements to permit Pan Am to operate its service with change of gauge on exactly one-half the days between the inception of the dispute and December 10. See infra, note 54 and accompanying text.

12 Case Concerning the Air Services Agreement of 27 March 1946, Arbitral Award of 9 December 1978, 54 ILR 304 (1979) [hereinafter cited as Award].

13 See A. Lowenfeld, Aviation Law, ch. II, §5.3 (2d ed. 1980).

14 UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). The Vienna Convention entered into force on January 27, 1980, but has not been ratified by the United States. However, many of its provisions are considered to be declaratory of customary international law. See Briggs, , Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice, 68 AJIL 51 (1974)CrossRefGoogle Scholar, and United States Ratification of the Vienna Treaty Convention, 73 id. 470 (1979). The final preambular paragraph of the convention provides that “rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention.“

15 The word “treaty” is here used in the sense defined by Article 2 (a) of the Vienna Convention on the Law of Treaties: “an international agreement concluded between States in written form and governed by international law, … whatever its particular designation.” Domestic law considerations, such as whether ratification of the agreement has received the advice and consent of the Senate, are not relevant to this usage of the term.

16 The relevant provisions of Article 60 of the Vienna Convention read: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 3. A material breach of a treaty, for the purposes of this article, consists in (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

17 Reports of the International Law Commission on its Seventeenth and Eighteenth Sessions, 21 UN GAOR, Supp. (No. 9) 82-84, UN Doc. A/6309/Rev.1 (1966), reprinted in [1966] 2 Y.B. INT'L L. COMM'N 253-55, UN Doc. A/CN.4/Ser.A/1966/Add.1.

18 PCIJ, ser. A/B, No. 70, at 50 (1937). See also A. D. McNair, The Law of Treaties 570-78 (1961); M. Whiteman, 14 Digest of International Law 468-78 (1970); Restatement (Second), Foreign Relations Law of the United States §158; Esgain, , The Spectrum of Responses to Treaty Violations, 26 Ohio State L.J. 1 (1965)Google Scholar. For confirmation of the right to suspend performance in the specific case of breach of an air services agreement, see B. Cheng, The Law of International Air Transport 482 (1962).

19 The Commission noted that the right to invoke termination or suspension arises “independently of any right of reprisal.” [1966] 2 Y.B. Int'l L. Comm'n 255.

20 The American Law Institute's Restatement (Second) of the Foreign Relations Law of the United States confirms in section 158 the right to suspend performance of treaty obligations toward the breaching party as long as the suspension and the violation (apparently whether material or not) involve corresponding provisions or are otherwise reasonably related. Lord McNair notes that retaliatory suspension of a corresponding provision is a common sanction for minor treaty breaches, though he comments that “[t]he precise juridical status of this practice is not clear, and little authority exists.” A. D. McNair, supra note 18, at 573. See also Restatement, Foreign Relations Law of the United States (Revised), Tentative Draft No. 1, April 1,1980, §345, following Article 60 of the Vienna Convention.

21 The tribunal described the rule as “well-known.” Award, para. 83.

22 Ibid.

23 The United States had made an extensive showing of practice under agreements with third countries to support its position on the change-of-gauge issue. The tribunal did not find it necessary to rely on the evidence of third-country practice, and concluded only that this evidence “does not appear inconsistent” with the approach suggested by more direct sources of interpretation. Award, para. 71.

24 Award, para. 78.

25 A retaliatory act that is not itself illegal falls into the category of retorsion: an unfriendly act for an unfriendly act. L. Oppenheim, 2 International Law 136 (7th ed. H. Lauterpacht, 1952). A retaliatory breach of treaty, however, corresponds to a measure of reprisal under customary international law: the victim state's conduct in derogation from its own international obligations is justified as a response to a prior illegal act.

26 The compromis provided for the United States and France each to select one arbitrator; they were Thomas Ehrlich and Paul Reuter, respectively. The third arbitrator, chosen by agreement of the parties, was Willem Riphagen, a Dutch international law scholar.

27 P. Jessup, A Modern Law of Nations 152 (1948). See also Borchard, , Declaratory Judgments in International Law, 29 AJIL 488, 490–91 (1935)Google Scholar.

28 For a discussion of some of the opportunities for delay in the progress of a dispute through arbitration, see Larsen, , Arbitration of the United States-France Air Traffic Rights Dispute, 30 J. Air L. & Comm. 231, 237–38 (1964)Google Scholar; Larsen, , The United States-Italy Air Transport Arbitration: Problems of Treaty Interpretation and Enforcement, 61 AJIL 496, 502–03 (1967)Google Scholar.

29 B.Sinha, Unilateral Denunciation of Treaty Because of Prior Violations of Obligations by other Party 210 (1966). But see the discussion by the International Court of Justice approving the action of the United Nations General Assembly in invoking South Africa's breach of its international obligations as a ground for terminating South Africa's League of Nations mandate over South West Africa. Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971] ICJ Rep. 16, 46-47.

30 The Harvard draft convention with commentary is reprinted in 29 AJILSupp. 662 (1935). The relevant provision, Article 27, is discussed in id. at pp. 1077-96 and reads: (a) If a State fails to carry out in good faith its obligations under a treaty, any other party to the treaty, acting within a reasonable time after the failure, may seek from a competent international tribunal or authority a declaration to the effect that the treaty has ceased to be binding upon it in the sense of calling for further performance with respect to such State. (b) Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty vis-à-vis the State charged with failure. (c) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. The Harvard draft reflected the approach taken by Lauterpacht a few years earlier in discussing self-help remedies in international law. He noted that self-help is not a normal juridical institution, but only a temporary authorization to act in the name of the law. Its use, in the final analysis, must be justified before the law: Le “self-help” doit, en fin de compte, se justifier devant la loi, et tout excès ou abus de force entraînera un châtiment. Dans les sociétés où la loi est souveraine, l'individu qui se rend justice à lui-même est strictement responsable devant la loi… . La thêse d'après laquelle la reconnaissance du “self-help” par le droit national, dans des cas peu nombreux et peu significatifs, justifierait son adoption comme règle générale dans le domaine des relations internationales se heurte doncà de sérieuses objections. II est également fort grave de placer sur le même plan le “self-help” provisoire, réglernenté et justifiable devant les tribunaux, et le “self-help” destine à faire valoir d'une manière définitive et normale des droits réels ou supposeés, sans en référer ensuite à un organisme indépendant chargé de rendre un jugement. Lauterpacht, , La Théorie des différends non justiciables en droit international, 34 Recueil Des Cours 499, 527–28 (1930 IV)Google Scholar. Thirty-five years later, the International Law Commission, in discussing the draft of the Vienna Convention, noted that some of the Commission's members considered that the right to terminate or suspend a treaty for breach should be made subject to control by compulsory reference to the International Court of Justice. [1966] 2 Y.B. Int'l L. Comm'n 262.

31 Harvard draft convention, supra note 30, 29 AJIL Supp. at 1095-96.

32 As a variant on this approach, the Harvard draft approach could be used to enter a finding that retaliation “was not justified” in the absence of prior breach, but good faith would be taken into account in determining whether it would be appropriate for the retaliating party to pay reparation to the other party for any damage caused by the retaliatory acts.

33 Award, para. 74.

34 Award, paras. 74 (“alleged violation“); 81 (“a situation … which, in one State's view, results in the violation of an international obligation by another State“); 82 (“the obligation allegedly breached,” “thealleged violation“); 83 (“thealleged breach“); 84 (“a violation of international law allegedly committed by the State against which [the countermeasures] are directed“) (emphasis added). Cf. Case Concerning United States Diplomatic and Consular Staff in Tehran, Judgment of May 24, 1980, [1980] ICJ REP. 3, 27-28, reprinted in 74 AJIL 746 (1980) (United States countermeasures against Iran were taken “in response to what the United States believed to be grave and manifest violations of international law by Iran … [emphasis added]“). But see id. at 53-55, 63-65, dissenting opinions of JJ. Morozov and Tarazi, arguing that the United States should not have implemented countermeasures when it was looking to the Court for judicial relief.

35 Award, paras. 77-78, 83, 90.

36 Award, paras. 91-98.

37 Award, paras. 80, 84-99.

38 Award, para. 95.

39 France so agreed by diplomatic note on May 13, 1978, less than 10 days after the United States proposed binding and expedited arbitration and 4 days after the first part 213 order was entered. Award, para. 6.

40 This provision took its present form when the Agreement was amended by exchange of notes in 1951. 2 UST 1033, TIAS No. 2257. See note 6 supra.

41 See Borchard, , Declaratory Judgments in International Law, 29 AJIL 488 (1935)CrossRefGoogle Scholar; cf. Case Concerning the Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections), [1963] ICJ Rep. 15, 37-38.

42 See M. Hudson, International Tribunals 120 (1944); G. Schwarzenberger, 1 International Law 586 (1957) (“The fact that international awards and judgments may be of a declaratory character proves that legal interest in international law does not depend on the actual sufferance of damage… . [T]he mere danger of an infringement of international rights suffices for this purpose.“); compare the views of the United States and the United Kingdom on the arbitrability of an incipient controversy over Panama Canal tolls, as set forth in G. Hackworth, 6 Digest of International Law 59 (1943). In the Corfu Channel case ([1949] ICJ Rep. 35), a declaratory judgment was deemed to be appropriate satisfaction for the violation of Albania's sovereignty though Albania had suffered no injury. However, in the Cameroons case, the Court did emphasize that the Court may pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the parties. The Court'sjudgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations. [1963] ICJ Rep. 33-34. Thus, though consummated injury may not be a requirement for submission of a dispute to adjudication, a concrete controversy is.

43 The French text of the relevant provision reads: “tout différend entre les Parties contractantes relatif a I'interpretation ou à I'application dudit Accord ou de son annexe qui ne pourrait être réglé par voie de négociations directes sera soumis pour avis consultatif à un Tribunal arbitral de trois membres… .“

44 The jurisprudence of the International Court of Justice and its predecessor, the Permanent Court of International Justice, supports the proposition that in appropriate circumstances a case might even be dismissed if diplomatic consultations had not yet occurred. See, e.g., Mavrommatis Palestine Concessions, [1924] PCIJ, ser. A., No. 2, at 15: The Court realises to the full the importance of the rule laying down that only disputes which cannot be settled by negotiation should be brought before it. It recognises, in fact, that before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by means of diplomatic negotiation. And see dissenting opinion of Judges Spender and Fitzmaurice in the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), [1962] ICJ Rep. 310, 563: [Requirements about “disputes” and “negotiations” are not mere technicalities. They appear in one form or another in virtually every adjudication clause that has ever been drafted, and for good reason. They are inserted purposely to protect the parties, so far as possible, from international litigation that is unnecessary, premature, inadequately motivated, or merely specious. See also Bourquin, , Dans quelle mesure le recours à des négociations diplomatiques est-il nécessaire avant qu'un differend puisse être soumisà la juridiction internationale?, in Hommage D'une Géneration de Juristes Au Président Basdevant 43–55 (1960)Google Scholar.

45 The Board found that the Government of France has taken action which, over the objections of the United States Government, will impair, limit, terminate, and deny operating rights and deny the fair and equal opportunity of U.S. carriers to exercise the operating rights provided for in the United States-France Air Transport Services Agreement. Order 78-5-45, supra note 7.

46 Each side qualified its consent to arbitration with a reservation of the right to attempt to persuade the tribunal that it should not proceed to the merits of the question in which that party was defendant. See infra, notes 48-52 and accompanying text.

47 Professor Arie David has shown that disputes over treaty termination have a tendency to expand laterally into other aspects of the parties’ relationship, which raises the stakes involved in the resolution of the conflict. A. David, The Strategy of Treaty Termination: Lawful Breaches and Retaliations (1975). His analysis of the pattern of lateral widening of treaty termination disputes can also be applied to cases of retaliation within a treaty framework. David has pointed out that the adjudicative process, in contrast to the retaliatory process, tends to limit and confine disputes, and thus is inconsistent with the lateral widening phenomenon he sees as usually essential to the resolution of treaty termination conflicts. For this reason, among others, he doubts the utility of adjudication in resolving vital disputes and relegates it to “matters of relatively minor importance.” Id. at 186-89, 201.

48 Pan Am had commenced an action in a French administrative tribunal to have set aside the decision denying it the right to operate the service with change of gauge. This action was still pending at the time the arbitral award was rendered. France argued that the U.S. request for arbitration related essentially to a matter of diplomatic protection of one of its nationals, so that the international law rule of exhaustion should be observed. The United States noted, on the other hand, that the case was not one of espousal but rather of direct injury to the right of the United States to conduct air services through a designated carrier. The United States also argued that the exhaustion rule was waived by the arbitration provisions of the Agreement, and that there was in any event no effective remedy available in France. Though it did not adopt all the arguments made by the United States, the tribunal did rule in favor of the United States on this issue.

49 See note 42 supra.

50 The Northern Cameroons case, supra note 41, is an example of a dismissal due to the absence of a live controversy between the parties. The classic definition of an international dispute comes from Mavrommatis Palestine Concessions: “ A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” [1924] PCIJ, ser. A, No. 2, at 11.

51 See note 44 supra.

52 The tribunal noted the “request” of the two parties that it answer both questions posed by the compromis (Award, para. 22); but it barely acknowledged the express reservation by each party of the right to argue that the other's question should not be answered. Incidentally, there is precedent in international jurisprudence for an applicant party to raise preliminary objections going to jurisdiction or admissibility of a claim. See Monetary Gold Removed from Rome in 1943 (Preliminary Question), [1954] ICJ REP. 19, 28-29. In the Cameroons case, the Court stated that there may be “an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other the duty of the Court to maintain its judicial character.” [1963] ICJ Rep. 29. But see Sohn, , The Function of International Arbitration Today, 108 Recueil Des Cours 9, 24 (1963 I)CrossRefGoogle Scholar: “there are no disputes which by their nature are not suitable for arbitration. If the parties agree that a particular dispute should be submitted to an arbitral tribunal, that tribunal need not enquire whether that dispute is arbitrable.“

53 The French arbitrator in his separate opinion queried whether after the conclusion of the compromis France could still claim a sufficient legal interest to ask the second question. He noted, however, that he had answered this question with the tribunal “because a refusal of the Tribunal to answer that question would only have emphasized further an inequality between the Parties visible elsewhere.” On the merits of the question, the tribunal noted in sustaining the legality of the U.S. action that the aim of countermeasures is “to restore equality between the Parties and to encourage them to continue negotiations with mutual desire to reach an acceptable solution… . [T]he United States counter-measures restore in a negative way the symmetry of the initial positions.” Award, para. 90 (emphasis added).

54 Compromis, para. 3.

55 France claimed that the U.S. application of pressure forced it to make a series of concessions to which it would otherwise not have agreed. These were: (1) submission of the dispute to arbitration before Pan Am had exhausted local remedies; (2) binding arbitration on the change-of-gauge question but only an advisory report on the part 213 question; (3) an expedited schedule for the arbitration; and (4) an interim regime permitting Pan Am to perform the change-of-gauge operation for part of the period of time before the arbitral award was to be rendered. The United States argued in reply that each of the claimed French “concessions” was in fact illusory. Exhaustion of local remedies was not, under international law, a prerequisite to submission of this dispute to arbitration (and indeed the tribunal so held; Award, paras. 25-32). In the negotiations for the compromis, France never sought anything other than a bindingjudgment on the first question and an advisory report on the second. The expedited schedule for the arbitration and an interim regime permitting change of gauge on half of the days from the inception of the dispute to the expected date of entry of the award maintained legal equality of the parties (though in fact, as noted above, text at note 54, Pan Am derived no benefit from this “equal” arrangement).

56 See, e.g., the dispute between the United States and the Netherlands during 1974 and 1975, discussed in Lowenfeld, CAB v. KLM: Bermuda at Bay, 1 Air L. 2 (1975-76). In that case, the United States adopted a new interpretation of a standard clause as a predicate to retaliation, in circumstances where an arbitral tribunal might well not have ruled in its favor. See also H. A. Wassenbergh, Public International Air Transportation Law in a New Era 110 (1976).

57 The French based their argument on the proposition that acts of reprisal are not justified where satisfaction can be obtained by other means. As authority they cited the Naulilaa arbitration, 2 R. Int'l Arb. Awards 1026-28, and other authorities on the customary international law of reprisals. Arbitration, in the French view, was a means of obtaining satisfaction which should have been exhausted first.

58 Article 5 of the Institute's resolution read in pertinent part: Les représailles même non armeés sont interdites quand le respect du droit peut être effectivement assuré par des procédures de règlement pacifique. En consèquence, elles doivent être considerées comme interdites notamment: 1. Lorsqu'en vertu du droit en vigueur entre les parties, facte dénoncé comme illicite est de la compétence obligatoire de juges ou d'arbitres ayant compétence aussi pour ordonner, avec la diligence voulue, des mesures provisoires ou conservatoires et que l'Etat défendeur ne cherche pas é éluder cette juridiction ou à en retarder le fonctionnement; 2. Lorsqu'une procédure de réglement pacifique est en cours, dans les conditions envisagées au 1…. Institut de droit International, 38 Annuaire 709 (1934). See also 3 Répertoire Suisse de Droit International Public 1788 (1975): “La conclusion des traités stipulant l'arbitrage obligatoire pour les différends juridiques exclura les represailles. En effet, on imagine mal des cas où I'autre Etat n'accepterait pas la procedure prévue.” The same view is also advocated in Bowett, , Economic Coercion and Reprisals by States, 13 Va. J. Int'l. 1 (1972)Google Scholar; and in E. Dumbauld, Interim Measures of Protection in International Controversies 182-84 (1932).

59 UN Doc. A/CN.4/318/Add.3, at n.15 (Feb. 5, 1979) (“An additional condition [for the legality of reprisals], referred to in article 5 of the Resolution of 1934 of the Institute of International Law, would be that there must not be any provision previously agreed between the parties for peaceful settlement …“).

60 Report of the International Law Commission on the Work of its Thirty-first Session, 34 UN GAOR, Supp. (No. 10), UN Doc. A/34/10, at 319 n.579 (1979) (“An additional condition is that there must not be any procedures for peaceful settlement previously agreed upon by the parties“).

61 Electricity Co. of Sofia & Bulgaria, [1939] PCIJ, ser. A/B, No. 79, at 199; Anglo-Iranian Oil Co., [1951] ICJ REP. 89, 93; Case Concerning United States Diplomatic and Consular Staff in Tehran (Order), [1979] ICJ Rep. 7, 21, reprinted in 74 AJIL 266 (1980), 19 ILM 139 (1980).

62 See E. Dumbauld, supra note 58.

63 Article 4 of the convention provides: Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

64 The relevant provisions of Article 65 read: 1. A party which, under the provisions of the present Convention, invokes … a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out … the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.

65 In light of the argument made in the text at notes l9-20 supra, that the convention was not intended to cover countermeasures for nonmaterial breaches, the Article 65 procedure would presumably not apply to such cases. Rather, by virtue of Article 4 (supra note 63) and Article 65, paragraph 1 (supra note 64), the rules of customary international law would govern.

66 The International Law Commission considered more restrictive formulations, but concluded that the article as drafted “represented the highest measure of common ground that could be found among Governments as well as in the Commission on this question.” 21 UN GAOR, Supp. (No. 9), UN Doc. A/6309/Rev.1 (1966), reprinted in [1966] 2 Y.B. Int'l L. Comm'n 169, 262.

67 UN Doc. A/6827/Add.2 (1967), reprinted in 62 AJIL 567, 574 (1968).

68 Exec. Order No. 12170, 44 Fed. Reg. 65,729 (1979), reprinted in 74 AJIL 428 (1980).

69 [1979] ICJ Rep. 7; see also [1980] ICJ Rep. 3.

70 Of course, the U.S.-France Air Transport Services Agreement did not in any respect codify customary international law. However, the distinction between treaties codifying customary international law and treaties de legeferenda has not been made either by the French in their pleadings before the tribunal or in any of the commentary on the question of countermeasures for breach of treaty.

71 See text at note 38 supra.

72 Award, para. 96.

73 Other qualifications can also be suggested. The United States recently took the position before the International Court that reprisals against the person of diplomats are always unlawful: even if a receiving state believes a diplomat has acted contrary to the sending state's obligations under the Vienna Convention on Diplomatic Relations, it can only expel the diplomat and cannot retaliate by suspending the convention's rules on diplomatic inviolability.

74 61 Stat. pts. (5) and (6), TIAS No. 1700. Article XXIII was amended by the Protocol Amending the Preamble and Parts II and III of the GATT, 8 UST 1767, 1787, TIAS No. 3930.