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This chapter analyses the availability of countermeasures, as a means of implementing the responsibility of the transit state (or international organization), in a particular form: that of suspending performance of obligations in the treaty breached by the transit state. Such exclusion may result either from the nature of obligations to be suspended as a countermeasure or from special treaty provisions that exclude countermeasures as circumstances precluding wrongfulness. Additionally, it examines the conditions of lawfulness of countermeasures under customary international law and explains that these conditions may restrict the choice as to the form that countermeasures may take, when they are available within and outside the treaty breached by the responsible transit treaty party.

This chapter examines countermeasures as circumstances precluding wrongfulness in the form of interrupting established transit flows of energy. It shows that although the GATT and the ECT do not exclude such countermeasures, some bespoke pipeline treaties may be interpreted in this manner. The chapter then analyses the conditions of lawfulness of countermeasures in the form of interrupting established energy flows focusing on three conditions of particular importance in the context of transit of energy. First, it examines the impact on third treaty parties (or third states). Second, it analyses proportionality. Third, it discusses the impact of interruption of transit of energy on human rights of individuals located in the states of origin (exporters) and of destination (importers). It argues that despite the limitations on extraterritorial application of human rights in this scenario, countermeasures taken in the form of suspending compliance with obligations concerning energy transit (or exports) may be disproportionate.

Faced with the need to cooperate in order to access energy sources and energy markets, states increasingly conclude treaties with a view to guaranteeing uninterrupted transit of energy via pipelines. Although bilateralisable treaty obligations regarding transit of energy remain dominant, a trend towards genuinely multilateral obligations regarding transit is appearing in treaty practice, along with a trend of multilateralization on an institutional level. The indivisible nature of obligations and the emphasis that treaty parties place on uninterrupted energy flows via each pipeline may signal a trend away from unilateralism- countermeasures remain a preferred a means of implementing responsibility, but treaty rules are being established that may prohibit unilateral countermeasures, as circumstances precluding wrongfulness.

Chapter 2 examines the development of ‘freedom of transit’ in international law. It provides the historical and normative landscape for treaties on transit of energy via pipelines and offers a basis for academic comparison in the following chapters. The chapter begins with the analysis of the development of rules concerning transit through waterways (cross-border rivers, international canals, transit at sea), and continues by examining the development of rules concerning transit overland through the prism of the historical transition from the League of Nations to the United Nations and the debate about transit rights of landlocked states. It illustrates that in international law, the development of ‘freedom of transit’ via different routes came about separately, and served diverse purposes, for particular routes and for particular groups of states. However, in each case the balance between the interests of the transit state and those of other states underlies all rules concerning transit.

This chapter focuses on Article 26, which requires watercourse State to show due diligence in maintaining and protecting ‘installations, facilities and other works’ related to an international watercourse. In addition, watercourse State Parties to the UN Watercourses Convention are required to enter into consultations with regard to the safe operation and maintenance of such installations, facilities, and other works. The chapter first reviews the travaux préparatoires of the Convention, with emphasis on the work of the International Law Commission (ILC), before discussing the scope and content of the rules enshrined in Article 26 and whether these rules exist as separate rules of customary international law. It then considers Article 26’s relationship with other articles of the Convention and concludes with a critical assessment of the provision.

Chapter 1 illustrates the importance of means of transportation in the development of international law, and the modern relevance of transit of energy via pipelines in this respect. The chapter sets the framework and method used in the study. Key concepts (transit, energy, and pipelines) and the scope of application of the treaties (ratione loci and ratione materiae) examined in the study are explained. It explains the rules of treaty interpretation that are used in the study for determining the scope and content of obligations regarding transit of energy, for identifying the nature of these obligations with a view to establishing standing to invoke international responsibility in case of their breach, and for determining the relationship between treaty rules and customary international law. It focuses on the role of subsequent agreements and practice, which is extensively used in this study as a means of treaty interpretation. The elements of an internationally wrongful act are then discussed. Emphasis is placed on attribution of conduct of private entities, and on the dual function of countermeasures under the law of international responsibility.

Chapter 4 classifies treaty obligations concerning transit with a view to determining which state is injured under the law of international responsibility and can invoke responsibility including by recourse to countermeasures against the responsible transit state. The question posed is to whom is each obligation owed. The analysis in this chapter also assists in determining which treaty party may have recourse to means available in the treaty where the treaty does not contain sufficiently express rules on standing, a matter which is analysed in Chapter 6. The analysis illustrates the polyphony of primary rules vis-à-vis their nature, and argues that bilateralism is not the only model in this area of international law (either in form or in substance). Rather, a number of treaties create collectively owed obligations: some erga omnes partes and some interdependent..

This chapter focuses on the provisional application of treaties, examining whether and how international law accommodates treaty-makers’ desire to apply their treaties sooner than the text’s entry-into-force provisions (or more pertinently domestic legal requirements) allow. Part I begins with an examination of the shift in terminology from ‘provisional entry into force’ to ‘provisional application’. Part II explores the formal source of the binding effect of provisional application and the forms it can take. Part III takes up the legal effects of provisional application. Part IV deals with the relationship between provisional application and domestic law, and Part V with the termination of provisional application. The chapter finishes with some conclusions on provisional application and the future developments in this area.

Chapter 5 addresses unilateral treaty law responses available to treaty parties against breaches of transit obligations therein, and examines whether the exceptio non adimpleti contractus has a separate existence to the rule concerning responses to material breaches under the law of treaties. It illustrates that there may be special rules in treaties that displace treaty law responses under customary international law. The analysis distinguishes treaty law responses (and the exceptio non adimpleti contractus) from countermeasures. It demonstrates that even though unilateral responses under the law of treaties may be available to treaty parties other than the defaulting transit treaty party in response to a material breach of the treaty establishing transit of energy obligations (or non-performance may as a matter of treaty interpretation be allowed by virtue of the exceptio), these do not overlap and do not exclude countermeasures under the law of international responsibility.

Chapter 3 analyses the scope and content of treaty obligations regarding transit, revealing a variety of primary rules. The exercise in this chapter assists in the determination of when and how a breach of transit obligations takes place, thus providing the framework for the discussion in all the following chapters. Treaty obligations regarding transit are classified as obligations of conduct or of result. Finally, security exceptions in the GATT, the ECT and other language in bespoke pipeline agreements and the Model Inter-Governmental Pipeline Agreement prepared by the Energy Charter Secretariat, is examined with a view to establishing whether they constitute special circumstances precluding wrongfulness displacing countermeasures under customary international law or whether they form part of primary obligations incumbent on treaty parties.