29 decembrie 2011

Exceptio non adimpleti contractus - Requiescat in pace

Almost two months have passed since I've duked it out for the former Yugoslav Republic of Macedonia in its (this time virtual) case against Greece at Oxford.

Twenty one days have passed since the International Court of Justice issued its judgment regarding the (this time actual) case concerning the Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece). Needless to say that I took a sneak peek at the operative clause of the judgment and ended up being quite satisfied with the fact that the World Court rendered a favourable judgment in real life as well.

About 16 minutes have passed since I finished reading the judgment and the appended separate opinion, dissenting opinions and declarations. (Finally, I've made time to read the whole judgment in such a festive period!) Well, I can certainly say that I'm still quite satisfied with the outcome and the reasoning adduced by the Court relative to the considerations in fact and law.

However, a particular question that I've asked myself during my preparation for this case at OxIMUN has sadly remained unanswered by the judgment. I've cautiously raised my eyebrow when reading Greece's counter-memorial in which the exceptio non adimpleti contractus was raised as a defence just in case the Court would find that Greece actually breached its treaty obligation enshrined in Article 11(1) of the Interim Accord - to refrain from objecting to the application by or membership of the FYROM to international organisations in which Greece is already a member UNLESS the FYROM shall be referred to DIFFERENTLY THAN the former Yugoslav Republic of Macedonia in said organisation.

Anyway, I wondered if the exceptio, a principle I've become quite fond of in Romanian Civil Law textbooks, can be regarded as a general principle of law recognised by 'civilised nations' and thus an applicable source of law in the case? Better yet, can the exceptio be applied separately from the suspension of a treaty due to a material breach, as codified by Article 60 of the Vienna Convention on the Law of Treaties? Since the exceptio is clearly such a general principle of law since it enjoys wide recognition in almost all civil and common law legal systems, the more appropriate question is the second one.

In short, the exceptio is based on the idea that a contract (In our case, bilateral and multilateral treaties, since we are talking about International Law!) is a negotium juris , a deal which implies the existence of interdependent and reciprocal obligations. (a quid pro quo - think Hannibal Lecter and Clarice, tit for tat, I scratch your back, you scratch mine) If one Party does not fulfill its obligations, the entire system is frustrated and, in response, the other Party has the right not to fulfill its own obligations in turn.

The Court skillfully avoided pronouncing itself on the nature of the exceptio, although it could have done so proprio motu. It could have enforced its role as a sage institution also responsible for emitting state-of-the art evaluations of fascinating legal aspects entailed by a case instead of simply sticking to the case itself. (The Court has done so in the past!) The Court simply found that Greece failed to prove that the FYROM breached other provisions of the Interim Accord and thus, any defence invoked by Greece (the exceptio, countermeasures and suspension due to a material breach) is therefore simply irrelevant.

In comes judge Simma to save the day with his separate opinion! In short, he ruled out the applicability of the exceptio non adimpleti contractus in International Law. Firstly, Article 60 of the Vienna Convention on the Law of Treaties dedicated to suspension due to a material breach of a treaty coupled with Article 65 which outlines the necessary procedural requirements for the invocation of suspension are exhaustive and the exceptio cannot coexist along with such a provision in the law of treaties which is essentially codified customary international law. This is due to the fact that the necessities and complexities of multilateral treaties (after all, we do - in theory - live in a community of independent states) simply cannot be coped with by the exceptio which is more suited to law (particularly Civil Law) developed in foro domestico. Even though Article 60 only covers a reaction to a material breach, the exceptio still can't stand for smaller breaches as it would be absurd that smaller breaches can entail the same consequences as material ones: the de facto inaplicability of a treaty. Such instances are covered by the law of state responsibility. Secondly, the exceptio is not a circumstance precluding wrongfulness and therefore a notion belonging to the law of state responsibility.

As a side note, judge Bennouna did not discount the existence of the exceptio in International Law as, in his view, the principle could be used in strict instances of reciprocal international obligations which cannot be executed one without the other. However, he did discount its applicability in the present case by strictly limiting the ambit of the quid pro quo to Article 11 itself, as, in his interpretation, that article contained an obligation for Greece and the FYROM as well and the FYROM could not be found to be in breach of its end of the Article 11 bargain.


6 comentarii:

  1. Is there a second part to this piece? because I cannot find the author's conclusions. Fx

  2. The above piece is more of an open-ended report than anything else.

    At any rate, in lieu of a formal concluson in the report, I consider that a general principle of law recognised by civilised nations should not ipso facto become an applicable source of law in interstate litigation before the ICJ. In this instance, the exceptio would not lead to the same desired effects as it ought to in domestic law. Since the techniques enshrined in the VCLT and, eventually, DARSIWA would seem to be exhaustive for this case, the exceptio would be redundant. Furthermore, I think that the VCLT and DARSIWA pretty much balance the potential conflict of 'forcing' a State to comply with its treaty obligations and the overall stability of international relations governed by treaties. The exceptio, due to the accompanying lack of procedural safeguards, would pose the danger of chaos as the temptation of invoking it might just be too strong for a State which would gladly forsake its treaty obligations due to reasons which have nothing to do with upholding an international legal order.

    As such, even if the Court did not address this issue in its judgment, I don't think that the exceptio will be regarded as an applicable principle in International Law anytime soon.

  3. If I understood you correctly, your conclusion stands on three pillars. First, the effects of invoking the exceptio are already covered by treaty and international responsibility rules. Second, such rules anyway do a better job in this matter than the exceptio would do. Finally, the exceptio is procedurally weaker than the relevant rules of international law. Based on these, you seem to imply that there is no room in international law for this exception.

    However, I was not able to understand two things:
    1. why do you say that the exceptio would not lead to the same desired effects as it ought under domestic law?
    2. your final line seems to imply that in a distant future the exceptio might play a role in international law. Is this right?

    All in all, if you polish your piece and enrich it with some references it could very well be considered for the next issue of the RJIL :)

  4. That is pretty much the gist of my thoughts on the matter.

    Concerning my first contention, it is primarily based on potential consequences. In most instances, interstate friction due to unfulfilled treaty obligations can have dire consequences not only in interstate relations (worst case scenario: the endangerment of world peace and security and environmental issues) but it can also reverberate in the domestic affairs of the States involved (supposedly we're talking about a treaty concerning economic, cultural or other areas). It's my conception that instability in treaty relations can have consequences far more dire and complex than contractual relations between private actors in a domestic setting. (Contractual relations between multinational corporations in a conflict of laws setting might also have complex consequences, however I am unaware of the role of the exceptio in contractual relations is such settings.)
    Getting back on track, assuming that prolonged interstate quarrels due to unfulfilled treaty obligations would lead to grave consequences, the exceptio would factor in as an element of instability due to its very nature as a defence which is raised in case of litigation, without any prior procedural requirements. The same cannot be said about a suspension of a treaty due to a material breach or countermeasures, which have procedural requirements entailing, among others, prior notification which would already constitute a 'window' for communication and possible resolution. Although it might just be absurd to think that, in the alternative, State A would rely on the exceptio and not say a word while letting relations deteriorate, save when State B would resort to international litigation when State A could conveniently raise the exceptio and speak up why it decided not to uphold its obligaton. But it is exactly because of the fact that State B might resort to drastic measures instead of submitting an application to the ICJ that the period of uncertainty between the non-fulfillment of an obligation by State A and recourse to a drastic measure or litigation by State B should be removed by recourse to the already established means present in the VCLT and/or DARSIWA .
    In short, interstate friction due to unfulfilled treaty obligations have consequences which can be so complex and grave that the exceptio can't possibly used in International Law to attain the same effect like in domestic law: to force compliance with an obligation a party consented to be bound by with mutual noncompliance.

    As to the second contention, I simply avoided using language which would reflect absolute certainty since time has proven again and again that there can be no certainties when it comes to theoretical constructs. Who knows, the exceptio might play a role in International Law in the future, however I doubt it will.

    I would love to turn this report into a full-fledged article, it would be my pleasure. Please inform me with further details regarding deadlines and such. :)

  5. Well, I have a different view on the matter raised in your first argument. In my view, both the exceptio and the international rules mentioned above (I try to avoid referring to the VCLT and DARSIWA directly because of several reasons) have exactly the same effect - inducing compliance by reciprocal non-compliance. The question I have been trying to find an answer to is whether there are other differences between the exceptio and the rules, outside the fact that they exist on different planes (national and international) and that the international rules contain some procedural requirements. I have not succeeded yet.

    I nevertheless believe that a full-fledged article should strive to do that.

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