Tuesday, October 9, 2012

Barnidge: The International Law of Negotiation as a Means of Dispute Settlement

Robert Perry Barnidge Jr. (Univ. of Reading - Law) has posted The International Law of Negotiation as a Means of Dispute Settlement (Fordham International Law Journal, forthcoming). Here's the abstract:
Drawing upon a number of important recent decisions of the International Court of Justice and other dispute settlement bodies, this paper sets forth what can best be described as the international law of negotiation. It shows that although the forms of this diplomatic means of dispute settlement are varied and diverse, the essential embeddedness of negotiation within a framework of legal evaluation means that a party’s failure to comply with its obligations can result in an internationally wrongful act and, in response, countermeasures and other responses by the victim party. This paper proceeds in three parts. Firstly, it looks at the relationship between negotiation and other means of dispute settlement, both diplomatic and legal. Secondly, it explores the modalities that govern when it can be said as a matter of law that negotiation has been tried and has been exhausted. Finally, it looks at the not uncommon situation of a negotiation that has broken down due to the commission of an internationally wrongful act by one of the parties under the law of negotiation and the potential for the victim party to adopt countermeasures and other responses to facilitate compliance with law and vindication of rights.