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Published online by Cambridge University Press: 18 May 2017
* Mr. Kronby, Ms. Marceau, and Mr. Weiniger did not contribute materials to the Proceedings.
1 Danae Azaria, Treaties on Transit of Energy via Pipelines and Countermeasures 26–30 (2015).
2 Id. at 1.
3 Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11; Convention on Transit Trade of Landlocked States, July 8, 1965, 597 U.N.T.S. 42; U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3.
4 S.C. Res. 2046 (May 3, 2012).
5 Cooperation Agreement Between the Republic of the Sudan and the Republic of South Sudan, Sept. 27, 2012; Agreement Between the Government of the Republic of South Sudan and the Government of the Republic of the Sudan on Oil and Related Economic Matters, Appendix to Cooperation Agreement between the Republic of the Sudan and the Republic of South Sudan, Sept. 27, 2012.
6 For analysis of the dispute and the agreement, and its relationship to responses to breach under the law of treaties and state responsibility, see Azaria, supra note 1, at 148–51.
7 Id. at 89–93, 224–27.
8 Azaria, Danae, State Responsibility and Community Interest in International Energy Law: A European Perspective, 5(2) Cambridge J. Int'l & Comp. L. 5–37 (2016)Google Scholar.
9 The EU and its member states were WTO members and ECT contracting parties at the time of the dispute. Ukraine was a WTO member and ECT contracting party. Russia had not as yet acceded to the WTO, but was provisionally bound by the ECT pursuant to the latter's Article 45. See Yukos Universal Ltd. (Isle of Man) v. Russia, Interim Award on Jurisdiction and Admissibility, at para. 394 (Perm. Ct. Arb. Nov. 30, 2009). On August 20, 2009, Russia expressed its intention not to become party to the ECT and since October 19, 2009 is not provisionally bound by the treaty (ECT Article 45(3)(a)).
10 The only 1947 GATT case dealing with energy activities: Panel Report, US—Taxes on Petroleum and Certain Imported Substances, L/6175 (June 17, 1987), GATT BISD 34S/136 (1988).
11 Azaria, supra note 1, at 31–35.
12 Id. at 36–38.
13 Coral Davenport, Report Opens Way to Approval for Keystone Pipeline, N.Y. Times, Jan. 31, 2014.
14 For analysis of DSU in this respect, see Azaria, supra note 1, at 168–172.
15 Id. at 177–78.
16 Id. at 178–84.
17 Id. at 177–78.
18 ECOWAS Energy Protocol, A/P4/1/03, 42 ECOWAS O.J. 71 (Jan. 31, 2003).
19 Azaria, supra note 1, at 255–56.
20 Regarding the impact of the practice of conferences of parties on treaty interpretation, see Int'l Law Comm'n, Rep. on the Work of Its Sixty-Sixth Session, U.N. Doc. A/69/10, at 168–217 (2014).
21 Todd Tucker, TransCanada Is Suing the U.S. Over Obama's Rejection of the Keystone XL Pipeline. The U.S. Might Lose., Wash. Post, Jan. 8, 2016.
22 Catherine Redgwell, Contractual and Treaty Arrangements Supporting Large European Transboundary Pipeline Projects: Can Adequate Human Rights and Environmental Protection be Secured?, in Energy Networks and the Law: Innovative Solutions in Changing Markets 102, 102–117 (Martha M. Roggenkamp, Lila Barrera- Herna´ndez, Donald N. Zillman & In˜igo del Guayo eds., 2012).
23 Azaria, supra note 1, at 110–24.
24 On treaty exceptions being lex specialis and superseding the customary circumstances precluding wrongfulness, see: LG&E v. Argentina, ICSID Case No. ARB/02/1, Decision on Liability, paras. 245–61 (Oct. 3, 2006). Interpreting treaty exceptions through VCLT Article 31(3)(c) to incorporate conditions from circumstances precluding wrongfulness under custom see: CMS Gas Transmission Co. v. Argentina, ICSID Case No. ARB/01/8, Award of the Tribunal, paras. 315–82 (May 12, 2005).
25 Azaria, supra note 1, at 75–94. Rep. of the Comm'n to the Gen. Assembly on the Work of Its Fifty-Third Session, [2001] 2 Y.B. Int'l L. Comm'n 31–143, U.N. Doc. A/CN.4/SER.A/2001 [hereinafter ILC Commentary to the ASR], p. 71, para. 1; CMS Gas Transmission Co. v. Argentina, ICSID Case No. ARB/01/8, Decision of the Ad Hoc Committee on the Application for Annulment, paras. 129–35 (Sept. 25, 2007); Sempra Energy Int'l v. Argentina, ICSID Case No. ARB/02/16, Ad Hoc Committee, Decision on the Request for Annulment, paras. 200–04 (June 29, 2010).
26 Implied inclination (yet misplaced reasoning), see Appellate Body Report, Mexico—Tax Measures on Soft Drinks and Other Beverages, paras. 69–76, 79, WTO Doc, WT/DS308/AB/R (Mar. 24, 2006). For further analysis and criticism of the lex specialis argument here, see Azaria, supra note 1, at 83–88.
27 As to the lawfulness of such countermeasures under custom (to the extent that they are not displaced by treaty lex specialis), e.g. on the basis of their effect on fundamental human rights obligations, and on the basis of proportionality, see Azaria, supra note 1, at 232–47.
28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 41 (July 9).
29 Mavrommatis Palestine Concessions (UK v. Greece), 1924 PCIJ (ser. A) No. 2, at 11 (Aug. 30).
30 When a state invokes the responsibility of another it has implicitly made its own determination that responsibility has ensued from an internationally wrongful act. Noninvocation of responsibility may mean that the invoking state has made the determination that there is no breach, but it may be due to numerous other (e.g. political and/or economic) reasons. ILC Commentary to the ASR, supra note 24, at 116–17, para. 2.
31 The customary freedom to lay pipelines on the high seas applies in the continental shelf and the exclusive economic zone, while the delineation of the pipeline's route on the continental shelf is subject to the coastal state's consent.
32 Similarly, geopolitical reasons may allow for the construction and operation of transit pipelines without the conclusion of a bespoke pipeline treaty. Such pipelines are regulated by customary international law (where applicable, e.g., freedom to lay pipelines on high seas as applied in the continental shelf) and other treaties of general scope (where applicable), which include transit obligations. An example is the Nord-Stream pipeline in the Baltic Sea.
