Air Service Agreement arbitration (1978)

The Air Service Agreement arbitration (1978) is the arbitral award of 9 December 1978 in the dispute between the United States and France under the Air Services Agreement of 27 March 1946. It held that a state injured by another's breach of an international obligation may take proportionate countermeasures, and that proportionality is not strict equivalence. The award became an influential authority in the modern law of countermeasures.

The dispute

France barred Pan American from operating a West Coast to Paris service with a change of aircraft gauge in London, which the United States considered permitted under the agreement. When French authorities prevented the flights in 1978, the United States responded by moving to suspend Air France services to Los Angeles, a measure of comparable commercial weight, while the parties proceeded to arbitration. France argued the American suspension was itself unlawful self-help.

Holding

The tribunal upheld the American position on the merits and, decisively for later doctrine, on the countermeasure. It held that under general international law an injured state is entitled, subject to limits, to respond to a breach with measures otherwise contrary to its obligations toward the wrongdoer; that such countermeasures must have "some degree of equivalence with the alleged breach", assessed loosely and with regard to the importance of the questions of principle at stake; and that resort to countermeasures is not excluded merely because arbitration is contemplated, at least until a tribunal able to grant interim protection is actually seized.

Effects

The award, with the Naulilaa arbitration (1928), informed the customary law reflected in the Countermeasures under the ILC Articles on State Responsibility (2001), whose commentary cites the case in discussing proportionality. Its significance is permissive and restrictive at once: it supports limited countermeasures by an injured state, but only within legal conditions that include a prior internationally wrongful act, a proper purpose and proportionality. The award does not legalise sanctions programmes generally. It sits alongside Retorsion in mapping the lawful terrain below economic warfare proper.

See also

Countermeasures under the ILC Articles on State Responsibility (2001) · Naulilaa arbitration (1928) · Retorsion · Non-intervention principle and economic coercion · Economic warfare

Sources

• Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, Award of 9 December 1978, 18 RIAA 417.
• United Nations Office of Legal Affairs, Reports of International Arbitral Awards, Volume XVIII, official case index.
• International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), arts 49-54 and commentaries.
• James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013), 685-703.