Danae Azaria, Countermeasures and Bespoke Pipeline Treaties

March 2017

Danae Azaria (2017) Countermeasures and Bespoke Pipeline Treaties. Journal of International Dispute Settlement (In press).

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Given the proliferation of multilateral treaties concerning transboundary pipelines, and the number of disputes involving interruption of energy flows via pipelines, the question of the relationship between these treaties and countermeasures under customary international law is pertinent. This article examines three treaties tailor-made for the Nabucco Pipeline, the Trans-Adriatic Pipeline and the West-Africa Gas Pipeline, with a view to determining whether countermeasures under the law of international responsibility are available as a means of implementing responsibility for breaches of obligations regarding uninterrupted energy flows, and as circumstances that preclude the wrongfulness of suspending compliance with such obligations. It argues that countermeasures remain central to enforcing obligations of uninterrupted energy flows in the form of suspending performance of obligations outside these treaties. On the other hand, if states intend to ensure that obligations concerning energy flows via pipelines are not susceptible to countermeasures, carefully crafted drafting should be adopted. Despite the constructive ambiguity in these treaties, there is room to argue that countermeasures are excluded as circumstances that preclude the wrongfulness of suspending performance of obligations concerning uninterrupted energy flows.