The monograph under review examines, from the standpoint of international law generally, but with particular reference to the issue of countermeasures, the field of treaties on transit of energy via pipelines—a field which has not until now been sufficiently analysed in public international law literature. Such treaties assume the forms of bilateral, plurilateral and multilateral pipeline agreements, and include in relation to bilateral and plurilateral treaties in particular so called ‘bespoke’ pipeline agreements—ie agreements which are ‘tailor-made for a particular pipeline’. Such a variety of international legal instruments is always likely to involve States in international legal disputes; and major political events may have an impact on the regulation of transit of energy as Azaria rightly pointed out was the case following Russia's unlawful use of force in Crimea in 2014 causing interruption of transit of energy contrary to Ukraine's obligations under multilateral treaties such as the WTO Agreement and the Energy Charter.
The author of the monograph has chosen a great variety of treaties for her analysis, including, in particular, two major multilateral agreements—the WTO and the Energy Charter Treaty (the ‘ECT’)—and 16 bespoke pipeline agreements relating to different geographical areas, with a detailed analysis of scope and content of obligations regarding transit of energy in these agreements. The book consists of nine chapters, including an extensive introduction and a conclusion. Chapters cover historical background; the scope and content of obligations regarding transit of energy; the nature of international obligations regarding transit of energy; responses to breaches under the law of treaties; provisions of treaties concerning dispute settlement and compliance; countermeasures against responsible transit State; and countermeasures as circumstances precluding wrongfulness of transit interruptions.
One of the most fascinating and original parts of the book is Azaria's analysis of the type of obligations regarding energy flow via pipelines. In this part of her study, the author displays her solid roots in general international law. Thus she starts her analysis with the general classification of obligations—reciprocal (or concessionary), integral and interdependent, as introduced by Gerald Fitzmaurice during the codification of the 1969 VCLT—and links them with the types of obligation underlying the 2001 International Law Commission's Articles on State Responsibility, which, apart from bilateral obligations, include obligation erga omnes and erga omnes partes. Her research in relation to the classification of obligations under energy treaties via pipelines is, indeed, pioneering. She reaches a very interesting and somewhat unexpected conclusion, namely, that examination of the 16 bespoke pipeline agreements indicates that the obligations not to interrupt transit/transportation via pipelines in plurilateral bespoke pipeline agreements are indivisible, and that they can be classified as interdependent (or erga omnes partes). Based on her study of the classification of the obligations of the parties to treaties concerning transit of energy via pipelines, Azaria goes on to analyse responses to breaches of those treaties.
In the view of the present reviewer the greatest value of this book is its ‘broader setting within’ general and classical international law, the law of treaties and the law of State responsibility. Azaria investigates breaches of energy transit agreements within the law of treaties in particular from the points of view of material breach and exceptio inadimplenti non est adimplendum. It is of course impossible in a short review to discuss all aspects on the law of treaties raised by the author, but there is no doubt that she is a leading expert in this area with an impressive knowledge of the relevant case law. In this respect, Azaria analyses, inter alia, one very difficult and somewhat confused legal issue, namely, the relationship between the law of treaties and the law of State responsibility within the context of breaches of treaty obligations. She is right in pointing out that in the case of suspension of treaty obligations as a result of a breach under the law of treaties, there may be a resemblance to non-compliance with some treaty obligations as a countermeasure under the law of State responsibility. Azaria explains that the difference arises from the different object and purpose involved under treaty law responses and those adopted under the law of State responsibility. The former are aimed at re-establishing the balance between the parties to the treaty; whilst the latter (countermeasures), may be taken as responses to breaches (material and non-material), in order to induce the responsible State to comply with its obligation and to make reparation. The legal literature on this very complex subject-matter has adopted a very strict view on the division between means available under the law of treaties and under the law of State responsibility. However, in the view of the author of this review, this question has not been sufficiently clarified, either in theory or practice of States.
Azaria illustrates the theory of international law with ample examples from practice, which is one of the most laudable aspects of her monograph. In relation to responses to breaches, she analyses the WTO Agreement and the much lesser-known bespoke agreements, such as the West Africa Gas Pipeline Agreement. She reaches a very important conclusion, namely, that: ‘responses to material breaches under the law of treaties, and instances of special rules that displace treaty law responses to material breaches under the law of treaties differ from and do not exclude countermeasures’ (151). Azaria evidences by her research that the practice of States regarding material breaches of treaties and the law of State responsibility (countermeasures), is an evolving and living area of international law, which is very difficult to define in clear legal terms. Material breach entitles any other party to a multilateral treaty to unilaterally suspend, in whole or in part, the operation of a treaty—either between the defaulting State of itself, in case of integral and bilateralizable treaties; or in respect to itself in case of interdependent treaties. Azaria has applied these general rules of material breach to the treaties in question, and comes to the conclusion that ‘breaches of treaty provisions concerning transit in the form interruptions of established energy flows through pipelines would qualify as material breaches’ (157). Also very illuminating—and one of the most challenging—parts of the book is the analysis of countermeasures as means of implementing the responsibility of a transit State or an international organization. The most valuable analysis regarding this subject relates to bespoke pipeline treaties—a very little-known area. Azaria finds that several of these treaties specifically exclude countermeasures as circumstances precluding wrongfulness for prior breaches of obligations in the treaties themselves, or for violations of other obligations. There are also some agreements (such as the WTO) which exclude countermeasures in the form of suspending compliance with obligations therein, as a response to prior violations of the agreements themselves. Azaria further argues that treaty obligations of an indivisible nature, are not susceptible to countermeasures, in contrast to obligations of bilaterlizable character, which would be susceptible to countermeasures such as ECT Article 7. Finally, it must be mentioned that the Chapter 2's historical overview and normative background of transit in international law is very interesting and, indeed, indispensable from the point of view of understanding the concept of freedom of transit and the differences between transit of energy through pipelines and other means. Azaria explains that the emergence of bespoke pipeline agreements can be attributed to several reasons, the most important being the desire to achieve a level of certainty and specificity which is generally absent in customary international law or general treaties.
In conclusion, this is a remarkable monograph, which deals with the generally little-explored subject of transfer of energy through pipelines. This subject is meticulously researched, and analysed against the background of general international law, which is the most notable characteristic of this study. Azaria has managed very successfully to link fairly technical subject-matter with general international law. The analysis of the law of treaties and the law of State responsibility evidences the author's in-depth knowledge of classical international law. It is an excellent and very important study, highly recommended not just for those with an interest in its particular subject matter, but, indeed, for anyone interested in international law.
