- Object & purpose (treaty interpretation and) — UN Charter — Treaties, effect for third states — Vienna Convention on the Law of Treaties — Erga omnes obligations
The conclusion of a codification treaty like the Vienna Convention on the Law of Treaties (VCLT) is not a simple task: previous international practice is rarely entirely consistent, and political difficulties often arise, hindering the negotiations. The text of the VCLT, finalized in 1969, is the outcome of a compromise between different readings of previous practice, and it is therefore ‘flexible’ enough to allow for the development of further interpretations, which could take into account the subsequent evolution of international practice. This should be taken into consideration when studying the issue of the so-called ‘treaties establishing objective regimes’.
‘Treaties establishing objective regimes’ are international agreements setting up ‘objective rules’ whose effects spread erga omnes, even if the number of states parties is limited.1 The issue was considered by the International Law Commission (ILC) when dealing with the effects of treaties on third states. The definition of objective regimes given by Special Rapporteur Waldock, in his 1964 Report to the ILC,2 included only treaties defining the status of a particular territory, area of the sea or airspace, with the intent of establishing, in the general interest, a set of treaty rules universally valid, representing the only international regime applicable to the situation.3 According to Waldock's definition, international agreements through (p. 226) which states parties dispose of their real rights do not establish objective regimes if no general interest of the international community is involved.4 Treaties establishing objective regimes must affect situations or rights that are not (or not any more) considered disposable due to the existence of a prevailing general interest in the certainty of the law. As the objective regime established by the treaty needs to be unique and indivisible, it necessarily affects third states.5
Waldock's proposal was built on elements of previous international practice. The Special Rapporteur considered, inter alia, the 1920 Report of the Committee of Jurists created by the League of Nations to establish whether Sweden, which was not a party to the 1856 Treaty of Paris providing for the demilitarization of the Åland Islands, was nevertheless entitled to invoke the provisions of the latter Treaty against Finland.6The Special Rapporteur also took into consideration treaties concerning protected and neutral states7 and the agreements establishing international servitudes, such as those providing for the free navigation of international canals.8 The erga omnes effect of such treaties was first recognized by Article 109 of the Final Act of the Vienna Congress,9 and it was later confirmed by the Permanent Court of International Justice (PCIJ) in the Wimbledon case.10 The latter concerned the erga omnes effects of Article 380 of the 1919 Treaty of Versailles, according to which Germany was to allow for the free navigation of the Kiel Canal. After World War II, reference to the general interest of mankind was made, in order to ensure erga omnes effects to the qualification of a state as an aggressor,11 in the International Court of Justice (ICJ) References(p. 227) case law concerning the international status of South-West Africa,12 and in the preamble of the Washington Treaty concerning Antarctica. The intention of the 12 states that concluded the Antarctic Treaty was not only to freeze the respective claims of sovereignty, but also to establish a particular and unique regime for the continent.13
Waldock's proposal, however, was rejected by the ILC, which feared that it could boost the hegemonic position of the Great Powers, thus compromising the egalitarian structure of the international community.14 Article 34 of the VCLT provides that: ‘a treaty does not create either obligations or rights for a third State without its consent’. This rule is consistent with the general principle of relativity (of autonomy) of the treaties, laid down in Article 26.15 The latter principle, according to which a treaty is binding only upon states parties, precluded the inclusion in the Vienna Convention of a rule concerning treaties establishing objective regimes, regardless of whether they provide for erga omnes rights or obligations.
The model laid down in the 1969 VCLT was somehow altered by the 1978 Convention on Succession of States in Respect of Treaties. According to Articles 11 and 12 of the Convention, the successor state is bound by treaties establishing the regime of a boundary or ‘other territorial regimes’.16 Under general international law, the principle of continuity of treaty obligations is sometimes applied to other categories of agreements (eg to human rights treaties).17
The developments of international practice just described impinge upon the principle of relativity of treaties in the case of newly independent states: the latter may acquire conventional rights or obligations simply by establishing their sovereignty over the territory of a state which was a party to the relevant treaty. On the other hand, such developments have little to do with the issue of treaties References(p. 228) establishing objective regimes, as the latter potentially affect any third state, and not only successor states.
Meanwhile, moreover, the phenomenon of treaties establishing objective regimes has evolved, taking into account new international interests. The international regime of the ‘Area’—subject to the International Sea-Bed Authority within the provisions of the 1982 Montego Bay Convention as modified by the 1994 Agreement—easily fits into the original model of objective regimes established by treaties.18 Erga omnes effects may also arise from treaties for the preservation of certain fish stocks, such as the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.19 Other international agreements establish objective regimes, in the interest of the international community, for the protection of certain species of fauna20 or of the environment,21 to ensure international peace or disarmament,22 to address drug trafficking,23 to regulate international communications,24 or to define the status of the so-called ‘maritime cemeteries’.25 The ICJ implicitly acknowledged that the United Nations (UN) Charter establishes an objective regime when it recognized that the UN is a subject of international law, capable of raising claims against third states.26 The regime established by a treaty may affect individuals and, in general, non-state actors, even though the latter could never become a party thereto.27 This happens, in particular, when states parties conclude a treaty defining the status of a non-state actor and assume the obligation to ensure the erga omnes respect of that legal regime. This is the case, for example, of the 1951 Refugee Convention and of other similar treaties. The state where the refugee has sought protection issues the refugee's identity papers and travel documents, and it may exercise diplomatic protection on References(p. 229) behalf of the refugee, raising claims even against a state which is not a party to the Geneva Convention.28
It is not easy to lump all these different types of treaties establishing objective regimes into a single category.29 As the ILC itself recognized, the VCLT is deficient in this respect.30 In order to fill this gap, reference has to be made to the existing customary rules governing the issue.31 The ILC, however, did not entirely exclude the relevance of the rules governing the effects of treaties on third states.32 According to the VCLT, though, a treaty may affect third states only with their consent. For the ILC,33 this principle stems directly from the Latin maxim pacta tertiis nec nocent nec prosunt.34 This maxim, however, cannot be considered to be a general principle of law, and thus it cannot be regarded as a source of international law.35 Firstly, the maxim developed in a private law context, where pacta are divested of any law-making function.36 Even if considered in its strictly private law characterization, moreover, the maxim cannot be regarded as common to a large number of systems of municipal law. The stipulation of a contract for the benefit of a third party was admitted, albeit on an exceptional basis, already under Roman Law,37 and it is nowadays well known by several systems of municipal law.38 Although the maxim pacta tertiis nec nocent nec prosunt was unknown in Roman scholarship and case law,39 positivistic international scholars did not hesitate to exploit it, considering it ‘a self-evident proposition’ of international law.40 The principle of autonomy, upon which the maxim relies, perfectly suits (p. 230) the traditional inter-individual conception of the international legal order, based on the principles of independence and sovereign equality of states.41 This idea of the international legal order, however, is not completely in line with international practice, not only in relation to treaties establishing objective regimes, but also in relation to conventions establishing uniform private international rules which may compel states parties to apply the laws of a third state.42
Treaties establishing objective regimes would not require a specific regulation if the rules enshrined in such treaties were to be considered customary rules. In this case, the rules would apply ‘potenzialmente all'intera società internazionale’.43 This possibility is admitted by Article 38 of the VCLT, according to which a rule set forth in a treaty may become binding upon a third state as a customary rule of international law, recognized as such.44 In a situation of particular urgency, a treaty establishing an objective regime may well serve as a means to provide a clear set of rules in the interest of the international community as a whole. The intention of the parties is to endow the treaty with erga omnes effects, thus affecting third states as well. This claim could be more easily upheld if the regime established by the treaty were ‘functionally’ linked with an already-existing customary rule. This link, however, is often very feeble. The legal regime established by the treaty, moreover, rarely develops into new customary rules soon after the entry into force of the treaty.45
This process is hindered, first of all, by certain peculiarities of the law of treaties, such as the possibility to formulate reservations or to include subordination clauses.46 Even when some of the norms enshrined in the treaty become binding as customary rules,47 it is difficult to admit that the entire objective regime established by the treaty has become a part of general international law.48 Treaties establishing objective regimes often establish permanent collective organs between the states parties. Through such mechanisms, the objective regime created by the treaty can be refined over time, sometimes (p. 231) becoming extremely detailed;49 the rules thus adopted, however, are subject to the authority of the treaty, and cannot become a part of international custom.50 Finally, treaty rules establishing a clear hierarchy among states, such as those enshrined in the Antarctic Treaty, are unlikely to evolve into international custom.51
The main obstacle to the codification of treaties establishing objective regimes is the principle of the relativity of treaties. The impact of this principle on the rules enshrined in the VCLT must be ascertained. It is also necessary to assess whether (and to what extent) the relevance of consent for the conclusion of the effects of a treaty has diminished in subsequent practice.
The phenomenon of groups of states claiming to act uti universi for the fulfilment of some public interest is not new in international law.52 Thus, for example, when a violation of an erga omnes obligation is at stake, and especially when this involves a serious breach of a peremptory norm, the sanction regime established against the responsible state is generally defined by a group of Great Powers.53 A group of Great Powers, or a large number of states, may also play a leading role in the creation of new customary and jus cogens rules. Particularly relevant here is not only the ability of a treaty concluded by such states to influence subsequent practice, but also the intention of the parties thereto to consider the legal regime established by the treaty as customary, and to ensure that the agreement is considered a part ‘of the International order of things’.54 In this case, the principle of sovereign equality is somehow superseded by that of effectivity.55 However, this does not affect the position of states that have consistently objected to the References(p. 232) development of the treaty rules into generally applicable rules of customary law (so-called ‘persistent objectors’).56
The principles of independence and sovereign equality of states still play a decisive role in contemporary international law, preventing the formation of a general rule allowing for treaties to affect third parties without their consent.57 This limit, however, may only operate within the framework of a structurally non-organic international legal order. Different considerations apply with respect to the increasing law-making activity of international organizations,58 especially as concerns the resolutions the Security Council may adopt under Chapter VII of the Charter in order to react to a breach of the peace, a threat to the peace, or an act of aggression. The maxim pacta tertiis nec nocent nec prosunt does not prevent the Security Council from imposing resolutions with binding effects upon third states (and other subjects of international law), according to Article 2(6) of the UN Charter.59 In this framework, the Security Council may also compel a third state to respect a particular treaty it never ratified. Article 75 of the VCLT confirms the peculiar role of the UN collective security system, affirming that ‘[t]he provisions of the [ … ] Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression’. As pointed out by Lachs, ‘l'intérêt de la paix et de la sécurité internationale peut rendre nécessaire d'imposer à un tel Etat des restrictions et devoirs spéciaux’.60
2. The Effects of Treaties on Third States under the Vienna Convention on the Law of Treaties
A simple consideration confirms that the maxim pacta tertiis nec nocent nec prosunt is often wrongly invoked to justify the principle of relativity of treaties. Under Roman law, contracts stipulated for the benefit of a third party (and, even more References(p. 233) so, contracts imposing obligations on a third party) were considered null and void.61 No such rule emerges in international practice, with respect to treaties providing for rights for third states.62 The VCLT, as we shall see, only regulates the effects of treaties providing for rights (or obligations) for third states,63 leaving unaffected the validity of such agreements, which may only be contested on the grounds of Articles 46–53.64 The validity of a treaty affecting third states is thus uncontroversial, and relies on the binding effects of the agreement in respect of states parties that have validly expressed their consent thereto.65 In order to justify the effects of the treaty in respect of third states, the VCLT relies on the classical positivistic view according to which treaty rules may affect states only with their consent. In this framework, the will of the states which ratified the treaty is supplemented by a sort of ‘collateral agreement’ between the states parties and the third state, concerning exclusively the rules affecting the latter.66 This ‘collateral agreement’ remains distinct from the ‘main treaty’,67 to which the third state is not a party.68
According to Article 35 of the VCLT, an obligation arises for a third state from a provision of a treaty only if ‘the third State expressly accepts that obligation in writing’. This rule is built on the authority of the PCIJ judgment in the Free Zones of Upper Savoy and District of Gex case.69 As pointed out by Gaja, ‘(si tratta) di un'ipotesi di importanza limitata’,70 but it is in line with the object of the VCLT, whose rules only apply to international agreement concluded in written form (Article 2(1)(a)).71 Doubts have been raised, however, on the customary References(p. 234) nature of the rule imposing the written consent of the third state.72 Such a rule, first of all, would conflict with the general principle of the freedom of form in the conclusion of a treaty.73 According to international practice, moreover, the third state is not required to express its consent using one of the forms commonly admitted by diplomatic practice,74 as tacit or presumed assent may also be considered sufficient. In other words, the content of the customary rule on treaties providing for obligations for third states is similar to that of the rule concerning treaties providing for rights for third states enshrined in Article 36 of the VCLT.75 Furthermore, although under Article 37 of the VCLT the consent of the third state is required to revoke or modify an obligation already accepted by it, no formal condition has to be fulfilled in order to re-establish the pre-existing regime of freedom. A similar ‘flexible’ approach informs the VCLT's rule concerning treaties providing for rights of third states: according to Article 36, in this case the assent of the third state ‘shall be presumed so long as the contrary is not indicated’.76 The reason behind the different formulations of Articles 35 and 36 of the VCLT is rather obvious: the will of the third state to accept a right provided by a treaty may be presumed, because the third state's sovereignty itself would benefit from such a provision.77 No indication can be found in the VCLT concerning the case in which a treaty provides both for rights and obligations for a third state. According to most scholars, the rule provided by Article 36 should apply in order to better guarantee the sovereignty of the third state.78 However, this solution does not seem appropriate for treaties establishing objective regimes.
On the other hand, some of the other rules of the VCLT may well be suitable for such treaties. Thus, for example, both Articles 35 and 36 attach great importance to the ‘intent’ of the parties.
This is a choice that is rather unusual for the VCLT, which generally favours the objective element of the treaty over the subjective one. ‘Intent’ is decisive for determining the content of the right or obligation provided for third states (Articles 35 and 36 (1)), as well as the form through which the third state (p. 235) is to express its consent (Article 37(2) and, albeit more ambiguously, Article 37(1)). Due to the central importance accorded to ‘intent’, the preparatory work of the treaty becomes a primary means of interpretation of the relevant provisions, whereas under Article 32 it should only be used to supplement the means of interpretation provided by Article 31.79 The relevance accorded to ‘intent’ moreover, makes it possible to assess the intention of states parties to act uti universi when concluding a treaty establishing an objective regime. This element had already been highlighted by the PCIJ in its judgment of 10 September 1929 concerning the Territorial Jurisdiction of the International Commission of the River Oder case. According to the Court, international practice recognized the existence of treaties establishing objective regimes ‘in the idea of a community of interest’ already in 1815, at the time of the Congress of Vienna.80 The traditional synallagmatic model—according to which an agreement is a source of reciprocal obligations between the parties81 but may not create absolute rights with erga omnes effects82—therefore cannot be considered exhaustive. That model was based on the Roman idea according to which the sole purpose of an agreement is to solve a conflict of interests among the parties.83 By contrast, international practice from the beginning of the nineteenth century led international scholars to distinguish between ‘law-making treaties’ (traités-lois or Vereinbarungen) and ‘treaty-contracts’ (traités-contrats or Rechtsgeschäftiliche Verträge),84 depending on the nature of the interests involved.85 Although these categories are not taken into consideration by the VCLT,86 their relevance in contemporary international practice was recently confirmed by the Eritrea–Ethiopia Claims Commission, according to which the Geneva Conventions of 1949 ‘are concluded for the purpose of creating a treaty law for the parties to the convention and for the related purpose of codifying and developing customary international law that is applicable to all nations’.87References(p. 236)
3. The Relevance of Consent in the Conclusion of Treaties Establishing Objective Regimes
In order to clarify the normative implications of treaties establishing objective regimes and their impact on the system of the sources of international law, the relevance of consent within the VCLT has to be reassessed in light of subsequent practice.
Treaties establishing objective regimes enjoy the same normative authority that scholars attached to law-making treaties. To use the words of Special Rapporteur Waldock, the effects of treaties establishing objective regimes upon third states find their justification in the intention of the parties to create ‘in general interest general obligations and rights’.88 The principle of consent does not prevent a treaty from producing erga omnes effects89 because the relevance of that principle is not absolute in the framework of the law of treaties. Thus, for example, whenever a treaty requires a minimum number of ratifications in order to enter into force, the treaty may be deemed to be in force even if it is not in force between two of the states parties due to a qualified objection lodged by one of them to a reservation formulated by the other. Through this mechanism, a state may be regarded as a party from an objective point of view, although it is still considered a third state for some of the parties.90
The relevance of consent must also be reassessed in the light of the so-called vacuum doctrine. The latter is only partially justified by Article 31(3)(c) of the VCLT, according to which a treaty shall be interpreted in the light, inter alia, of any relevant rules of international law applicable in the relations between the parties. The ‘vacuum doctrine’ has often been invoked by the European Court of Human Rights in order to coordinate the European Convention of Human Rights with other rules of international law, and has sometimes led the Court to compress the material field of application of the former.91
The tendency of the ‘positive’ sources of international law to depart from the principles of independence and sovereign equality of states is even clearer in respect of unilateral acts of states. In its judgment of 20 December 1974 concerning the Nuclear Tests case, the ICJ recognized that a unilateral promise may produce erga omnes effects even if its content does not reflect a rule of customary international law.92 The Court thus supported the idea that a rule may provide References(p. 237) for rights for a state even if the latter has not consented to its adoption.93 This conclusion was subsequently upheld by the Court in the order of 22 September 1995 concerning the same case.94
The relevance of the maxim pacta tertiis nec nocent nec prosunt in international law having been so reappraised,95 the interpretation of the rules of the VCLT concerning the effects of treaties on third states can also be reconsidered and adapted to the characteristics of the treaties establishing objective regimes.96 This evolutionary interpretation of the VCLT is possible because, in the framework of Articles 35–37, consent is not as paramount as it seems.97 Moreover, although the VCLT takes into consideration only the case of a treaty specifically identifying the third state (or the third states) which would benefit from the provisions thereto,98 nothing prevents the states parties, acting uti universi, from conferring rights or obligations erga omnes.99 This possibility can only be excluded when a treaty establishing an objective regime explicitly derogates from the model defined by the VCLT.100
The scheme of the ‘stipulation pour autrui’ may apply to treaties establishing objective regimes conferring rights erga omnes, if the accent is put on the intention of the states parties101 and on the acquiescence of the third states.102 Retaining the formulation of Article 35, the acquiescence of the third states would not serve as a constitutive element of the right which the treaty confers to them, as such right would find its sole source in the treaty, and would thus become fully operative as soon as the treaty enters into force:103 whenever the treaty provides a third state with a right, states parties assume, jointly and severally, the obligation to respect such a right.104 On the other hand, if the application of Article 36 were to be excluded, the consent eventually manifested by the third states would have a References(p. 238) constitutive effect, modifying, albeit retroactively, their legal status.105 The first solution better fulfils the quest for certainty of the law,106 also as concerns the direct enforcement of the treaty in the third states’ municipal legal orders.107 Just like unilateral promises, treaties establishing objective regimes which provide third states with a right are immediately effective, once they enter into force, even without the consent of the third states.
According to Article 36, the third state does not become a party to the treaty even if it assents to the right provided thereto:108 its position remains distinct from that of the states parties which have ratified or adhered to the treaty as a whole. This peculiarity should be borne in mind when analysing the nature of the consent through which, according to the VCLT, the third state ‘adheres’ to the favourable juridical situation designed by the treaty.109
Firstly, the provision introducing a right for the third state is a sort of unilateral promise through which the states parties jointly and severally assume the obligation to respect the right they intend to confer on the third state.110 The parties, in other words, consider that the provision cannot be disposed of inter se.111 The VCLT does not specify the erga omnes nature of the commitment undertaken by the parties with respect to the third state. This is in line with the limited consideration given by the VCLT to erga omnes obligations in general: the ILC clearly privileged the conceptual model of bilateral or multilateral treaties concluded according to the traditional synallagmatic scheme, according to which the agreement is a source of reciprocal obligations among the parties.112
For the same reason, third states’ interests do not need to match perfectly those of the parties to the treaty.113 By assenting (explicitly or implicitly) to a treaty provision granting it a right, the third state does not express its consent to the treaty as a whole, and cannot formulate reservations in order to modify (p. 239) the scope of the latter.114 Furthermore, and notwithstanding the silence of the VCLT in this respect, under general international law the third state is always free to waive the right provided for it in the treaty, even after having formally accepted it.115
Treaties establishing objective regimes imposing obligations erga omnes also involve the joint and several responsibility of the states parties.116
Thus, according to Article 3 of the Washington Treaty of 6 February 1922 relating to the Use of Submarines, the parties undertake to punish any attack upon merchant ships, even when perpetrated by a third state. Under Article X of the Convention on International Trade in Endangered Species of Wild Fauna and Flora,117 states parties exporting to or importing from a third state must obtain ‘comparable documentation issued by the competent authorities in that State which substantially conforms with the requirements of the present Convention for permits and certificates’. According to Common Article 1 to the 1949 Geneva Conventions, ‘the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’,118 whereas common Article 2(3) adds that ‘the Powers who are parties [ … ] shall [ … ] furthermore be bound by the Convention in relation to [a Power in conflict which is not a party to the Convention], if the latter accepts and applies the provisions thereof’.119
In the framework of Article 35 of the CVLT, if the third state formally accepts the obligations arising from the treaty ‘the third party remains just that: it does not become a party to the entire treaty’.120 In order to become a party to the entire treaty, the third state would need to accede to it. By expressing its consent to the ‘collateral agreement’121 concerning the provision affecting it, the third state does not become a party to the ‘main treaty’ to which that provision belongs.122References(p. 240)
According to Article 36(2) of the VCLT: ‘a State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty’. This rule applies, in particular, to the interpretation of the treaty clause which provides the third state with a right. According to Articles 31(3)(a) and 31(3)(b), the only practice which is relevant for the interpretation of a similar provision is that of the parties to the ‘main treaty’.
The issue arises only insofar as the third state formally rejects the treaty provision which affects it, following the procedure defined by the VCLT or other analogous procedures. This could give rise to an international dispute, which could lead the states parties to modify the text of the treaty,123 or even to terminate it.124
The termination of the treaty by consent of all the parties would necessarily affect the provision providing for a right for the third state. According to the VCLT (and just as happens with unilateral promises), the states parties to a treaty establishing an erga omnes regime could not unilaterally modify the right they have granted to the third state;125 however, the parties may invoke one of the other grounds for termination provided under general international law, such as the emergence of a new peremptory norm of general international law conflicting with the treaty. Treaties establishing an objective regime may also specify other autonomous grounds for their termination or define specific procedures through which the provisions affecting third states may be modified or even revoked.126 This explains why a treaty creating an international organization may be modified without the formal consent of those third states.127
4. The Significance of Objective Regimes for the International Legal Order
As already pointed out, the intention of the group of states which concludes a treaty establishing an objective regime is to define a general and unique international regime for a situation affecting the international community, thus granting the treaty provisions with erga omnes effects. Due to the structural deficiencies of the international law-making process,128 only partially overcome by the law-making activity of international organizations, treaties establishing objective References(p. 241) regimes are the only ‘tool’ available to fill the normative gaps of the international legal order, responding to a need perceived across the international community, though not necessarily by all of its members.
That is why the rules provided in such treaties affect third states, especially by imposing duties on them. However, following the traditional inter-individual model of classical international law, a treaty establishing an objective regime could not impose obligations on a third state without its formal consent, or, a fortiori, if the treaty does not provide the third state with the possibility to accede to it or to otherwise accept its provisions. Yet even in these circumstances the erga omnes relevance of a treaty establishing an objective regime cannot be excluded completely.
Due to the relevance for the international legal order of the unique international objective regime created by the treaty, the situation regulated by it can no longer fall within the scope of the absolute ‘freedom’ previously accorded to third states. In order to ensure the consistency of the international legal order, it is for the latter to establish the conditions for the coordination of the previous regime of freedom and the regime established by the treaty. Since treaties establishing objective regimes do not give rise to instant customary rules, the means by which such coordination is established need to be consistent with the traditional non-organic structure of the international legal order. Thus, the group of states which concluded the treaty cannot be considered an ‘organ’ of the international legal order, as was affirmed, albeit from different perspectives, by Kelsen,129 Quadri,130 and Scelle.131 The model of the ‘dédoublement fonctionnel’ discussed by Scelle and others132 cannot even be adopted in respect to the law-making activities of the Security Council. Nevertheless, the choice made by a group of states willing to identify, regulate, and protect a general interest of the international community inevitably impinges upon the regime of freedom enjoyed by third states. The initiative of the group of states that concluded the treaty establishing the objective regime has an impact on the international legal order as a whole. After recognizing both the first and the second regime, the international legal order needs to coordinate them in a consistent way.
The impact of a treaty establishing an objective regime over the other sources of international law is less relevant if the treaty is nothing but a means to ‘concretize, and elaborate on, principles which on their part are constituent elements of (p. 242) international legal order’.133 However, treaties establishing objective regimes are not all functional to the implementation of general principles of international law; even when this is the case, the treaty still needs to be coordinated with all the other international rules that coexist with that principle or affect its scope of application.
In order to assess the impact of a treaty establishing an objective regime over previous treaties concerning the same matter, the intention of the parties must be taken into account. The intention of the states which conclude a treaty establishing an objective regime is to elaborate a unique regime for the protection of an interest which is perceived as common to the international community. Thus, under Article 103 of the UN Charter, the obligations under the Charter prevail over conflicting obligations arising from any other treaty. The peculiar competences attributed to the UN for the maintenance of global peace explain why the international community never contested this rule but rather enlarged its scope of application to encompass the Security Council's binding resolutions.
Notwithstanding the intention of the parties, analogous solutions are unlikely to develop in the context of treaties concluded during the present stage of development of international law. In any case, third states would not be compelled to respect the rules provided by a treaty establishing an objective regime if such rules were inconsistent with those of a treaty they had ratified. Moreover, disputes may arise in case of conflict between a claim based on the regime of freedom previously in force with respect to a given situation and the subjective legal situations established by the treaty. Leaving aside the possibility that the treaty establishing an objective regime becomes, with time, a part of general international law, the conflict, de lege lata, concerns rules established by two different treaties. In such cases, the only solution that the international legal order can provide relies on the rule concerning the abuse of rights. According to that rule, although the states parties to a treaty establishing an objective regime cannot compel third states to respect the provisions of that treaty, third states must take into consideration the reasons that led the states parties to establish such a regime acting uti universi. In other words, a treaty establishing an objective regime may not create specific obligations for third states without their consent, but the international freedom of third states must confront the general interest underlying the objective regime. Since both values belong to the same international legal order, it is for the latter to coordinate them: the closer the connection of the treaty establishing the objective regime with generally recognized international principles, the greater the limits imposed upon the freedom of third states. Through this coordination, the state which is not a party to a treaty establishing an objective regime may nevertheless indirectly be affected by it,134 as the regime defined by the treaty interferes (p. 243) with the freedom previously enjoyed by that state.135 The abuse of rights doctrine can be applied to this issue, insofar as the subjective legal situations involved are considered to belong to the same legal order rather than to two distinct inter-individual relationships. The abuse of rights doctrine has no relevance under the 2001 Draft Articles on State Responsibility,136 as the latter are based on the traditional positivistic approach according to which the international legal order is made of reciprocal relationships established among pairs of states, one of which has assumed an obligation towards the other which has thus acquired a right in respect to the former.137 The present chapter serves to highlight the limits of such a model.
1 H. Kelsen, ‘Contribution à la théorie du traité international’, Revue internationale de la théorie du droit (1936) 265 et seq.; A. McNair The Law of Treaties (Oxford: Clarendon Press, 1961) 259 et seq.; J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, thèse doctorale (Paris, 1973) 378 et seq.; H. Mosler, ‘The international society as a legal community’, 140 Recueil des Cours (1974) 234 et seq.; P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, 143 Recueil des Cours (1974) 660 et seq.; S. Bastid, Les traités dans la vie internationale. Conclusion et effets (Paris: Economica, 1985) 143 et seq.; P. Subedi, ‘The Doctrine of Objective Regimes in International Law and the Competence of the United Nations to Impose Territorial or Peace Settlements on States’, 37 GYIL (1994) 174.
3 E. David, ‘Article 34’, in O. Corten and P. Klein (eds), Les Conventions de Vienne sur le droit des traités. Commentaire article par article (Bruxelles: Bruylant, 2006) 1408–9 (hereinafter Commentaire).
4 A. McNair, ‘Treaties Producing Effects “erga omnes”?’, in Scritti di diritto internazionale in onore di Tomaso Perassi (Milano: Giuffrè, 1957) vol. II, 23. These kinds of treaties produce erga omnes effects only because they involve real rights, and not because they serve a common interest of the international community (A. McNair, The Law of Treaties, supra note 1, 256–7).
6 See P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 665; C. Chinkin, Third Parties in International Law (Oxford: Clarendon Press, 1993) 29.
7 J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, supra note 1, 430 et seq. Thus, the neutrality of Switzerland was established during the Congress of Vienna (1815). See also, more recently, the Declaration of 1962 (Article 5) establishing the neutrality of Laos and the Agreements of 23 October 1991 on a Comprehensive Political Settlement of the Cambodia Conflict, and in particular the Agreement concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia (see S.R. Ratner, ‘The Cambodian Settlement Agreements’, 87 AJIL (1993) 31 et seq.
8 J. Hostie, ‘Le statut international du Rhin’, 28 Recueil des Cours (1929) 105 et seq.; J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, supra note 1, at 399 and 447.
9 P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 680 et seq.; see, however, the critique of M. Giuliano, ‘L'ordinamento internazionale e i fiumi navigabili d'interesse internazionale’, Riv. di Diritto Internaz. (1959) 212.
11 This position was sustained by Soviet scholars: T. Schweisfurth, ‘International Treaties and Third States’, 45 ZaöRV (1985) 669, and R.G. Wetzel, The Vienna Convention on the Law of Treaties: travaux préparatoires (Frankfurt am Main: Alfred Metzner Verlag, 1978) 269. See also Article 75 of the VCLT (infra).
12 ICJ, International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports (1950) 128, at 131–2; ICJ, South West Africa (Ethiopia v South Africa), Judgment of 21 December 1962, ICJ Reports (1962) 319, at 329 and 331; ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971) 16, at 56, para. 126.
13 R.E. Guyer, ‘The Antarctic System’, 139 Recueil des Cours (1973) 149 et seq.; D.R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996).
14 P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 615–16; S.P. Subedi, ‘The Doctrine of Objective Regimes in International Law and the Competence of the United Nations to Impose Territorial or Peace Settlements on States’, supra note 1, 171.
15 See, among others, P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 611 et seq. The PCIJ was very sensitive to the principle of relativity of treaties: Certain German Interests in Upper Silesia, Merits, (Germany v Poland), Judgment of 26 May 1926, PCIJ, Series A No.7 (1926) 28–9.
16 A treaty, however, ‘cannot be interpreted as disposing of the rights of independent third Powers’ (The Island of Palmas Case, Arbitrator M. Huber, 4 April 1928, available at <http://www.pca-cpa.org>).
17 Human Rights Committee, General comment No. 26 on Issues relating to the Continuity of Obligations to the International Covenant on Civil and Political Rights, 29 October 1997, CCPR/C/21/Rev.1/Add.8/Rev.1, para. 4.
18 H. Mosler, ‘The international society as a legal community’, supra note 1, page 252.
20 See, in particular, the International Convention for the Regulation of Whaling of 2 December 1946, the customary nature of which is expressly excluded by C.L. Carr and G.L. Scott, ‘Multilateral Treaties and the Environment: a Case Study in the Formation of Customary International Law’, 27 Den. J Int'l L & Pol. (1998–99) 323.
22 See, in this respect, some Soviet scholars: T. Schweisfurth, ‘International Treaties and Third States’, supra note 11, 663.
23 P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 654–5.
24 J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, supra note 1, 424 et seq.
25 See the remarks of J. Klabbers, ‘Les cimetières marins sont-ils établis comme des régimes objectifs? A propos de l'accord sur l’épave du M/S Estonia’, 11 Espaces et Ressources Maritimes (1997), 121–33, concerning the so-called ‘Estonia Agreement’ of 23 February 1995.
29 See, for some attempts at a definition (such as ‘service public international’ or ‘droit territorial d'intérêt général’): J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, supra note 1, 420.
34 R.G. Wetzel, The Vienna Convention on the Law of Treaties: travaux préparatoires, supra note 11, 266.
36 See H. Kelsen, Contribution à la théorie du traité international, supra note 1, 254; see also I. Detter, Essays on the Law of Treaties (London: Sweet and Maxwell, 1967) 100.
38 See E. Jimenez de Arechaga, ‘Treaty Stipulations in Favour of Third States’, 50 AJIL (1956) 346 et seq.; I. Detter, Essays on the Law of Treaties, supra note 36, 114; P. Braud, ‘Recherches sur l’État tiers en droit international public’, supra note 5, 52.
39 No traces of the maxim could be found on Bibliotheca Iuris Antiqui (BIA), edited by N. Palazzolo, and on Bibliotheca Teubneriana Latina (BTL). For a similar glossary see L. Meriggi, I trattati ed i terzi (Torino: UTET, 1939) 9–10.
40 R. Roxburgh, International Conventions and Third States (London: Longmans, 1917) 23; M. Lachs, ‘Le développement et les fonctions des traités multilatéraux’, 92 Recueil des Cours (1957) 313 et seq.
41 P. Braud, ‘Recherches sur l’État tiers en droit international public’, supra note 5, 19; P. Reuter, ‘Du consentement des tiers aux normes d'un traité’, in A. Bos and H. Siblesz (eds), Realism in Law-Making. Essays on International Law in Honour of Willem Riphagen (Dordrecht: Martinus Nijhoff Publishers, 1986) 155; C. Chinkin, Third Parties in International Law, supra note 6, 26.
44 See, extensively, J.-F. Prevost, Les effets des traités conclus entre Etats à l’égard des Etats tiers, supra note 1, 486 et seq.
45 For a similar approach, see C.L. Carr and G.L. Scott, ‘Multilateral Treaties and the Environment: a Case Study in the Formation of Customary International Law’, supra note 20, passim.
49 On the relationship between the ‘material’ and the ‘organizational’ aspects of treaties establishing objective regimes, see: PCIJ, Territorial Jurisdiction of the International Commission of the River Oder (United Kingdom, Czechoslovakia, Denmark, France, Germany, Sweden/Poland), Judgment of 10 September 1929, PCIJ, Series A, No. 23 (1929) 23–4.
51 See B. Simma, ‘The Antarctic Treaty as a Treaty providing for an “objective regime”?’, 19 Cornell Journal of International Law (1986) 195; F. Aumond, ‘La “convergence antarctique”. Radioscopie, de l'actuel consensus concernant la gestion du continent blanc’, 136 Clunet (2009) vol. 4, 1213 et seq.
52 See G. Balladore Pallieri, Diritto internazionale pubblico (Milano: Giuffrè, 6th edn, 1952) 77 et seq., and especially A. McNair, Separate Opinion to the ICJ, Advisory Opinion of 11 July 1950 (supra note 12, 153). Rozakis, however, contests the very possibility for states parties to manifest the intention ‘to produce law for third States outside the scope of the participants’ (see C. Rozakis, ‘Treaties and Third States: a Study in the Reinforcement of the Consensual Standards in International Law’, 35 ZaöRV (1975) 11.
54 See R. Roxburgh, International Conventions and Third States, supra note 40, at 81; R. Quadri, Diritto internazionale pubblico (Napoli: Liguori, 5th edn, 1968) 141 et seq.
55 This process of creation of customary rules is what Giuseppe Barile considered to be an expression of the so-called ‘volontà atipiche’: ibid., Lezioni di diritto internazionale (Padova: CEDAM, 2nd edn, 1983) 82 et seq.
56 See ICJ, Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports (1951) 116, at 131; see also E. David, Article 34, supra note 3, 1410.
57 See the succinct remarks of Cyprus: YILC (1966), vol. II, 285: ‘The primary rule … is that the parties to a treaty cannot impose an obligation on a third State without its consent. The rule is one of the bulwarks of the independence and equality of States.’ See also L.N. Mathur, ‘Treaties and Third States’, in S.K. Agrawala (ed.), Essays on the Law of Treaties (Bombay: Orient Longman, 1972) 41; T.O. Elias, The Modern Law of Treaties (New York-Leiden: Oceana-Sijthoff, 1974) 59 et seq.
58 See J. Alvarez, ‘The new Treaty Makers’, 25 Boston College International and Comparative Law Review (2002) 213 et seq.; M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff Publishers, 2009) 473.
59 C. Chinkin, Third Parties in International Law, supra note 6, at 108; but see already H. Kelsen, The Law of the United Nations (London: Stevens & Sons Ltd, 1951) 85–6 and 108.
60 M. Lachs, ‘Le développement et les fonctions des traités multilatéraux’, supra note 40, 315.
61 P. Bonfante, ‘Contratti a favore di terzi’, in P. Ciapessoni (ed.), Studi di diritto pubblicati dalla Facoltà di giurisprudenza della Università di Pavia (Pavia: Facoltà di giurisprudenza, 1934) 218 and 222.
62 L. Oppenheim, Editorial Introduction to R. Roxburgh, International Conventions and Third States, supra note 40, underlined the methodological mistake of applying principles derived from municipal law to international law.
63 It is instructive, in this respect, that the Algerian proposal—according to which Article 34 of VCLT should have declared ‘absolutely null and void any obligation imposed by a treaty upon a third State without the latter's assent’ (in R.G. Wetzel, The Vienna Convention on the Law of Treaties: travaux préparatoires, supra note 11, 264)—was rejected.
66 P. Reuter, Introduction, supra note 27, 80; YILC (1966), vol. II, 226–7. The ‘collateral agreement’ however, can hardly be considered as an autonomous, registrable treaty: C. Chinkin, Third Parties in International Law, supra note 6, 41.
68 According to Article 2(1)(h) of the VCLT: ‘?“third State” means a State not a party to the treaty’. This definition should be coordinated with that provided by Article 2(1)(g), according to which: ‘?“party” means a State which has consented to be bound by the treaty and for which the treaty is in force’.
70 G. Gaja, Trattati internazionali, supra note 43, 353.
71 See also M.E. Villiger, Commentary on the 1969 Vienna Convention, supra note 58, 478.
73 See P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 646.
74 P. Braud, ‘Recherches sur l’État tiers en droit international public’, supra note 5, 58; P. Reuter, Du consentement des tiers aux normes d'un traité, supra note 41, 164–5; M.E. Villiger, Commentary on the 1969 Vienna Convention, supra note 58, 478.
76 According to the PCIJ, Judgment of 26 May 1926, supra note 15, 29, however, ‘in case of doubt, no rights can be deduced from [the treaty] in favour of [third State]’.
77 The consent of the third state should be expressed—but not necessarily in writing—if the parties decide to revoke or modify the juridical situation established in favour of the third state, and that situation was intended not to be revocable or subject to modification without the consent of the third state (Article 37(2) VCLT).
79 The PCIJ struggled to identify specific principles for the interpretation of treaties establishing objective regimes: PCIJ, Judgment of 10 September 1929, supra note 49, 27 et seq.; see also E. Brown Weiss, ‘The Evolution of International Water Law’, 331 Recueil des Cours (2007) 195–6.
80 PCIJ, Judgment of 10 September 1929, supra note 49, 27–8.
81 See A. Schiavone, Studi sulle logiche dei giuristi romani. Nova negotia e transactio da Labeone a Ulpiano, (Napoli: Jovene, 1971) especially 59; for a re-examination of this model from an international law perspective, see A. Pietrobon, Il sinallagma negli accordi internazionali (Padova: CEDAM, 1999).
83 Ibid., 937.
84 See H. Kelsen, Contribution à la théorie du traité international, supra note 1, 258 et seq. For a very peculiar exploitation of the model of the ‘traités-lois’ see G. Scelle, Précis de droit des gens (Paris: Sirey, 1934) especially 345 et seq. In this regard, see also the discussion infra.
86 C. Chinkin, Third Parties in International Law, supra note 6, 39.
87 Eritrea–Ethiopia Claims Commission, 1 July 2003, Partial Award, Prisoners of War, Eritrea's claim, 17, para. 39, avalaible at <http://www.pca-cpa.org>.
89 Such effects were not excluded by the previous Rapporteur G. Fitzmaurice, infra note 136.
93 See P. Braud, ‘Recherches sur l’État tiers en droit international public’, supra note 5, 17 et seq.
94 ICJ, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France), Order of 22 September 1995, ICJ Reports (1995) 288, paras 60–62.
95 C. Chinkin, Third Parties in International Law, supra note 6, 26.
96 P. Reuter, Introduction, supra note 27, 82.
97 See C. Rozakis, ‘Treaties and Third States: a Study in the Reinforcement of the Consensual Standards in International Law’, supra note 52, 8–9.
98 Although Article 35 of the VCLT (unlike Article 36) does not mention the possibility that the treaty provision may be addressed to more than one third state, this possibility should not be excluded: C. Laly-Chevalier and F. Rezek, ‘Article 35’, supra note 72, 1430.
100 C. Laly-Chevalier and F. Rezek, ‘Article 35’, supra note 72, 1433.
101 See PCIJ, Judgment of 7 June 1932, supra note 69, 147–8.
102 See C. Chinkin, Third Parties in International Law, supra note 6, 30.
103 See, in this sense: Article18(b) of the Harvard Research Draft Convention on Treaties (in A. McNair, The Law of Treaties, supra note 1, 309); P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 632.
105 See E. Jimenez de Arechaga, ‘Treaty Stipulations in Favour of Third States’, supra note 38, 352–3. See also J. Charpentier, La reconnaissance internationale et l’évolution du droit des gens (Paris: Pedone, 1956) 315.
106 This idea underlies the comments of the Dutch government before the Commission (in R.G. Wetzel, The Vienna Convention on the Law of Treaties: travaux préparatoires, supra note 11, 273).
109 For the divergent evaluation of state practice, see P. Cahier, ‘Le problème des effets des traités à l’égard des États tiers’, supra note 1, 621 et seq.
112 See C. Chinkin, Third Parties in International Law, supra note 6, 35.
113 The late-imperial doctrine of Roman law and the doctrine in the tradition of Giustinian are oriented in the same sense as concerns contracts stipulated for the benefit of a third party: H. Ankum, ‘Une nouvelle hypothèse sur l'origine de la règle alteri dari stipulari nemo potest’, in Études offertes à Jean Macqueron (Aix-en-Provence: Faculté de droit et des sciences économiques d'Aix-en-Provence, 1970) 27.
114 See also P. Reuter, Du consentement des tiers aux normes d'un traité, supra note 41, 156.
115 J.E. de Arechaga, ‘Treaty Stipulations in Favour of Third States’, supra note 38, 353.
116 The same PCIJ, very sensitive to the principle of relativity of treaties (see supra note 15), was reluctant to apply to treaties establishing objective regimes the traditional rule according to which, in case of doubt, a treaty should always be interpreted restrictively, as imposing ‘the least restriction on the freedom of States’: PCIJ, Judgment of 10 September 1929, supra, note 49, 26; but see also, earlier, PCIJ, Judgment of 26 May 1926, supra note 15, 29.
118 The clause ‘si omnes’ of the XIV 1907 Hague Convention (Article 2) is thus superseded. See also ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment of 27 June 1986, ICJ Reports (1986), 169, para. 220.
120 See C. Chinkin, Third Parties in International Law, supra note 6, 41.
121 See Report of the International Law Commission on the work of its eighteenth session, YILC (1966), vol. II, 226–7; P. Reuter, Introduction, supra note 27, 80.
122 H. Waldock, YILC (1964), vol. II, 21–2; M. Fitzmaurice, ‘Third Parties and the Law of Treaties’, supra note 67, 47; P. Braud, ‘Recherches sur l’État tiers en droit international public’, supra note 5, 31; T.O. Elias, The Modern Law of Treaties, supra note 57, 65.
123 C. Laly-Chevalier and F. Reziek, ‘Article 35’, supra note 72, 1430.
124 In any case, the third state would not be subjected to the judicial dispute settlement mechanism provided for by that treaty, as such mechanisms always depend on the consent of the parties (see Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ, Series B No. 5 (1923) 27).
125 C. Laly-Chevalier and F. Rezek, ‘Article 35’, supra note 72, 1432.
126 See A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2nd edn, 2000) 259; see also E. Jimenez de Arechaga, ‘Treaty Stipulations in Favour of Third States’, supra note 38, 349.
127 P. Reuter, Introduction, supra note 27, 78.
128 C. Tomuschat, ‘Treaties under International Law and Third States’, supra note 50, 8.
129 See H. Kelsen, Contribution à la théorie du traité international, supra note 1, 262 et seq.
130 R. Quadri, Diritto internazionale pubblico, supra note 54, 27 et seq., who spoke of an ‘Autorità sociale’.
132 Ibid.; C. Guillien, ‘Un cas de dédoublement fonctionnel et de législation de fait internationale: le statut du Canal du Suez’, in La technique et les principes du droit public. Etudes en l'honneur de Georges Scelle (Paris: LGDJ, 1950) tome II, 735 et seq. Although subordinated to a form of state consent, the thesis is indirectly shared by E. Klein, Statusvertrage im Volkerrecht: Rechtsfragen territorialer Sonderregime (Berlin–Heidelberg–New York: Springer, 1980) 209 et seq., and 356.
134 On the ‘indirect’ effects of treaties establishing objective regimes on third states, see also C. Tomuschat, Treaties under International Law and Third States, supra note 50, 18.
135 See also P. Vigni, Concorrenza fra norme internazionali: il regime giuridico dell'Antartide nel contesto globale (Milano: Giuffrè, 2005) 63–4 and 316–17. This is the reason why nowadays it would not be possible to uphold the claim of a third state considering Antarctica ‘terra nullius’: in this sense, see already H. Waldock, YILC (1964), vol. I, 105.