No, there is no general obligation to negotiate under international law. The rule governing settlement of interstate disputes comes from Articles 2(3) and 33 of the UN Charter, which establishes an obligation to settle such disputes by peaceful means. This customary normFootnote ¹ precludes resorting to forceful means but does not oblige states to definitively settle their disputes.Footnote ²

Article 33 does not prescribe a preferential method of resolution but requires states to resolve disputes by any peaceful method of their choice. The Manila Declaration on the Peaceful Settlement of International Disputes provides that disputes may only be submitted to a certain method of resolution if both states agree. No state may be compelled to employ a method it has not consented to; therefore, a method of settlement may not be selected unilaterally.

There is also no obligation to resort to negotiations as a “default” method to resolve disputes, as they are just one of the peaceful means mentioned in Article 33. This conclusion was explicitly endorsed by the International Court of Justice (ICJ) in the case concerning an Obligation to Negotiate Access to the Pacific Ocean, where it stated that “no obligation to negotiate Bolivia's sovereign access to the Pacific Ocean arises for Chile under the provisions of the Charter on the peaceful settlement of disputes.”Footnote ³

Although the ICJ rejected a general obligation to negotiate, states may be bound by customary law to negotiate in certain cases. For instance, in the North Sea Continental Shelf cases, the ICJ recognized a customary obligation to negotiate concerning the continental shelf, finding “delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles.”Footnote ⁴

There is also an obligation to negotiate in situations where the rights of one state necessarily overlap with the rights of another. In the Fisheries Jurisdiction case, the Court determined negotiations are necessary when the rights of a state may only be determined by reference to the rights of other states.Footnote ⁵ However, situations like this should be interpreted narrowly because otherwise the obligation could be applicable to any dispute, which would be inconsistent with the principle of free choice. The nature of the specific rights concerned will be decisive in establishing whether an obligation to negotiate exists.

Additionally, a treaty may establish an obligation to negotiate expresslyFootnote ⁶ or establish an obligation to conclude a subsequent instrument, which will require pursuing negotiations to that effect.Footnote ⁷ An example of the latter is the arbitration on the Tacna-Arica Question, where the arbitrator found the states undertook an obligation to negotiate an additional protocol resolving the remaining details of their dispute.Footnote ⁸

A treaty may also establish negotiations as a precondition before resorting to other means. Here there is no actual obligation to negotiate a solution, but the states may not resort to other means unless they have attempted negotiation. For instance, in Georgia v. Russia, the ICJ concluded that Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) required the states to pursue negotiation before submitting an application.Footnote ⁹ Because the Court concluded no negotiations were undertaken before submitting the application, the conditions for exercising jurisdiction were not fulfilled.Footnote ¹⁰ Any alternative interpretation would leave the article's terms devoid of any practical effect.Footnote ¹¹ Similarly, the Pact of Bogotá does not establish an obligation to negotiate, but requires attempting negotiations before employing other means.Footnote ¹²

An obligation to negotiate may also be established by any other source of legal obligations. The parties to a dispute may choose to negotiate final details after reaching substantial agreement on major issues, to set parameters for future negotiations, or to commit preemptively to negotiate settlement of future conflicts. It is important to understand that these “pre-negotiations” live in the domain of diplomacy rather than the domain of law.

Although states are not subject to any general obligation to negotiate regarding differences between them, as Claudio has said, states may by subject to obligations to negotiate in specific situations or may assume specific obligations to negotiate.

One well-known example of an obligation to negotiate is that contained in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons. Article VI provides as follows:

In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ described this as “an obligation to negotiate in good faith a nuclear disarmament.”Footnote ¹³

This obligation to negotiate was also the subject of the proceedings brought by the Marshall Islands before the ICJ recently, but those proceedings were dismissed at the jurisdictional stage,Footnote ¹⁴ and so the Court did not proceed to consider the content of the obligation to negotiate.

Other well-known obligations to negotiate are those contained in Articles 74(1) and 83(1) of the UN Convention on the Law of the Sea (UNCLOS), which relate to the delimitation of the exclusive economic zone (EEZ) and continental shelf. The obligation to negotiate in Article 83 was considered, for example, by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in Ghana/Côte d'Ivoire Footnote ¹⁵ and briefly by the ICJ in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Footnote ¹⁶

Are such obligations—or other obligations to negotiate with which you are familiar—ones of conduct or result? And what is the difference?

The distinction between obligations of conduct and obligations of result is clear.Footnote ¹⁷ Obligations of conduct require states “to strive to realize a certain result.”Footnote ¹⁸ Alternatively, obligations of result require states to achieve a particular outcome.Footnote ¹⁹ I believe the distinction between obligations of conduct and result is useful for two main purposes: first, for determining the exact content of the obligation concerned; and second, for determining whether a given obligation has been extinguished. Since obligations of result are only fulfilled when the result is attained, a state will breach such obligations if it does not attain the result. In contrast, an obligation of conduct is fulfilled if the state has employed all the means reasonably available to it to comply with the relevant objective.Footnote ²⁰

The general rule with obligations to negotiate is that they are obligations of conduct, imposing on the parties an obligation to conduct meaningful negotiations that are not frustrated by either party's absolute insistence on its own position.Footnote ²¹ In general, obligations to negotiate do not require reaching an agreement. For instance, Article 83 of UNCLOSFootnote ²² establishes an obligation of conduct, pronouncing a course of action rather than requiring a predetermined result. The article does not require the parties to reach an agreement through delimitation negotiations, and even specifically provides for further procedures if an agreement cannot be reached.

However, the parties may also define obligations to negotiate as obligations of result. In these cases, the parties would be committing to reach a precise result, and the obligation would only be fulfilled when an agreement is reached. Article VI of the Treaty of Non-ProliferationFootnote ²³ establishes an obligation to negotiate, defining it as one of result. The ICJ held this article goes beyond requiring the parties to negotiate by requiring them to achieve total nuclear disarmament, specifically through good faith negotiations.Footnote ²⁴

For the precise content of an obligation to negotiate, the source of the obligation is the natural starting point.

There are, however, general “framework” principles that have been articulated in the jurisprudence as to what comprises good faith negotiations. They can be criticized as too scant or vague to be of utility, but are arguably by necessity rather high level; if they were too prescriptive then it would undermine what makes negotiation such an effective means for peacefully resolving disputes, i.e., its pragmatic flexibility in light of the facts and circumstances of the case.

The “framework” principles can be framed positively, e.g., they must be meaningful (North Sea; Manila Declaration), and there must be a “genuine intention or attempt” to achieve a positive result (Gulf of Maine; Georgia v. Russia). Or they can be framed negatively, e.g., not to adopt a negotiating position without contemplating any modification of its own position (North Sea), which was framed in the arbitration between Greece and Germany as a “willingness … to abandon earlier positions and meet the other side part way,” and in Lac Lanoux as “not systematically refusing to take into consideration adverse proposals or interests.”

On the latter point, the case law refers to a “willingness” and “contemplating” a change in position; the obligation is not to forgo vital interests or in the words of Tacna-Arica Question it does “not mean that either Party was bound to make an agreement unsatisfactory to itself.” Rather, the obligation is to understand and assist to identify a solution that meets everyone's interests. Arguments as to the extent of the compromise ultimately required may depend on the context and the rights at issue, e.g., if dealing with competing rights.

The Court in Georgia v. Russia expressly distinguished between “mere protests or disputations” and negotiation; the latter was not just a “plain opposition of legal views or interests or exchange of claims.” Arguably there lies the nub to that distinction; a willingness to consider if a state can modify a position on the disputed issue.

This links back to the founding obligation under Articles 2(3) and 33 of the UN Charter, which is framed as a positive obligation (the parties “shall settle” their disputes peacefully, and the parties are obliged to “seek” a solution). This is an active and positive obligation. The obligation is to understand the position of the other party and make efforts to overcome differences.

A final reflection when identifying the requirements of the good faith obligation to negotiate is to think about what their purpose is and whether, despite being high level, they achieve this. Clearly the basic purpose is to reach an amicable settlement. The 1999 UN General Assembly Resolution on Guidelines for International Negotiations referred to such framework principles as enhancing the predictability of negotiating parties, reducing uncertainty and promoting trust at negotiations. Establishing trust is surely the foundation for effective communication in any dynamic. And on the interstate level where the threats of isolationism and unilateralism are as great as ever been, the significance of these framework principles seems clear.

Good faith requires states to engage in negotiations with the sincere intention of reaching an agreement and to conduct themselves consistently with that intention. In the Fisheries Jurisdiction case, the ICJ held that in negotiations, states should reasonably respect the legal rights of the other state, since doing otherwise would frustrate the prospect of achieving an amicable solution.Footnote ²⁵ In the North Sea Continental Shelf cases, the Court reaffirmed that states are obliged to enter negotiations with the intent of reaching an agreement and to conduct themselves so that such negotiations are meaningful.Footnote ²⁶ Good faith demands states refrain from causing injury to the legal rights or interests of another state while negotiations are taking place, and obliges them not to take actions that would frustrate negotiations.

Other cases have shed light on the contours of the obligation of good faith. For instance, the Lake Lanoux arbitration offered examples of potential infringements of good faith, including unjustified breaking off of discussion, abnormal delay, disregard of the agreed procedures, and systematic refusals to consider adverse proposals or interests.Footnote ²⁷ Alternatively, the Tacna-Arica Question arbitration provided examples of actions that do not violate good faith, such as proposing conditions the party deems to be reasonable and appropriate or opposing inadvisable conditions proposed by the other party.Footnote ²⁸ The arbitral tribunal further determined that since states are expected to act in accordance with their own constitutional principles, it does not violate good faith for a ratifying authority to refuse to ratify a protocol it deems unsatisfactory.Footnote ²⁹ Instead, bad faith requires an intent to frustrate negotiations.Footnote ³⁰ It is important to remember the words of Judge Fitzmaurice, who said in his lecture at The Hague Academy, that treaties answer the question of “what” needs to be done, while the principle of good faith answers the question of “why.”Footnote ³¹

Sometimes there is an express term in the source of the obligation which provides a time frame for negotiations. More generally, the question is really what is demanded by the requirements of good faith in the circumstances.

The flexible nature of that requirement is demonstrated by the case law. The starting point is normally to refer to the Railway Traffic case, which said they must be pursued “as far as possible.” In the Aminoil arbitration, it referred to the “sustained upkeep of negotiations over a period appropriate to the circumstances,” and Mavrommatis recognized that “negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches.”

Again, there is a positive and negative aspect to the obligation. The positive aspect is that the party must demonstrate an active engagement and genuine effort to resolve the dispute, but at the same time there is a safeguard to ensure unproductive negotiations are not unduly prolonged, i.e., a guard against formality and pretence (usually framed in terms of futility or deadlock).

Yes. Obligations to negotiate are generally obligations of conduct, imposing on states the duty to pursue negotiations as far as possible.Footnote ³² However, nothing prevents states from binding themselves to an obligation of result. As recognized by the ICJ in the case concerning an Obligation to Negotiate Access to the Pacific Ocean, the parties may establish an obligation to achieve a precise result.Footnote ³³ In such cases, the wording employed by the parties must be unequivocal, since a commitment of this nature certainly reduces the wide margin of discretion usually granted to states involved in negotiations. In addition, it will be difficult to establish the existence of an obligation of result if the wording of the agreement is unclear.

An obligation to negotiate can be a worthwhile tool, depending on the circumstances.

First, there is arguably a limited scope for “impediment” to what President Yusuf in his declaration in Bolivia v. Chile as the “lifeblood of international relations,” i.e., diplomatic exchanges. This is stated noting the modest requirements of the obligation to negotiate, the inherent flexibility of the framework principles, and the fact that those principles arguably serve the best interests of both sides by enhancing predictability and fostering trust.

Second, there are examples where the obligation is of utility, including where it assists with a state initiating engagement if the background of domestic sensitivities makes it politically difficult to come “voluntarily” to the table, or where it has kickstarted a stale or locked dynamic.

One concrete example of the utility of the obligation is the Timor Leste and Australia dispute. The issue of their maritime boundary in the Timor Sea was unresolved for many decades. The dispute resolution mechanism in that case was compulsory conciliation under Annex V of UNCLOS, but in essence Australia was forced to the table to negotiate with Timor Leste. The 2018 Commission Report noted that the parties came to the proceedings deeply entrenched in their legal positions and distrusted each other on the issue. However, once obliged to negotiate, which they did in good faith and meaningfully, there was a positive amicable agreement.

There are three aspects to the question. First, there is the body of case law in the bilateral investment treaty (BIT) field on legitimate expectations of an investor as protected by the fair and equitable standard. Secondly, it can be considered through the lens of the specific doctrines of estoppel and binding unilateral statements; arguably an aspect of both those doctrines is (in broad terms) protecting the legitimate expectations of a state. Third, there is the question whether legitimate expectations may serve as a free-standing basis to found an obligation to negotiate. The ICJ judgment in Bolivia v. Chile does not categorically say there is no such principle under general international law. It states that it did not follow from the BIT jurisprudence on fair and equitable treatment that “there exists in general international law a principle that would give rise to an obligation on the basis of what could be considered a legitimate expectation.”

In the premises, there is arguably limited scope for argument that legitimate expectations may serve as a free-standing basis to found an obligation to negotiate.

In the case concerning an Obligation to Negotiate Access to the Pacific Ocean, the Court noted that there does not exist in general international law a principle establishing an obligation to negotiate based on “legitimate expectations.”Footnote ³⁴ Therefore, the argument brought by Bolivia on this basis was rejected.Footnote ³⁵ This argument was intended to circumvent the requirement of “detrimental reliance” needed to find estoppel. Other situations, where the parties have negotiated over time but have not yet resolved through negotiation, have not resulted in an obligation to negotiate. Instead, these situations, including those in Kashmir, the South Kuril Islands, and in Aksai Chin, remain in the diplomatic realm. Finding an obligation to negotiate in these cases would not have contributed to their solution. Instead, a likely result would have been a delegitimization of the rule of law. Diplomacy and politics should also have a place in the toolkit of international mechanisms addressing conflict.