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Third Parties in International Law by Chinkin, Christine (10th June 1993)

1 The Problem

From: Third Parties in International Law

Christine Chinkin

Subject(s):
Sources of international law — Third party participation — International Court of Justice (ICJ) — Third party interventions

(p. 1) The Problem

1.  Introduction

The international legal system has been described as a series of bilateral consensual relationships1 within which rights, commitments, and obligations are formulated, and values are allocated between parties inter se.2 In the words of International Law Commission Special Rapporteur, Professor Roberto Ago:

The correlation between a legal obligation on the one hand and a subjective right on the other admits of no exception; as distinct from what is said to be the situation in municipal law, there are certainly no obligations incumbent on a subject which are not matched by an international subjective right of another subject or subjects, or even … of the totality of the other subjects of the law of nations.3

These serial bilateral relationships are created both by treaties and the operation of rules of customary international law. A multilateral treaty relationship may be broken down into a series of bilateral relationships.4 ‘It is as if each contracting party were bound by as many bilateral treaties as there are other contracting parties.’5 A dispute as to the interpretation (p. 2) or application of an international convention may arise between many of its parties but a claim of breach will normally be specific to particular parties.6 Similarly with customary international law, the concept of opposability reduces the issue to one of bilateral application as between the immediate parties.7

International dispute resolution operates within bilateral relationships. ‘It is up to each State, to protect its rights’,8 whether these be a claim for reparations for the commission of an international delict, a claim of cessation of a continuing wrongful act, or a claim to act in self-defence. The regular means of communication between States through diplomatic exchange and protest accentuates the bilateral character. In certain dispute resolution processes, for example mediation, conciliation, and enquiry, a third party assists the parties in resolving the dispute, but that person’s function is to attempt to focus the parties’ interest in its resolution, not to widen its parameters beyond their concerns. The adversarial nature of judicial and arbitral proceedings likewise assumes a bilateral model, which is especially clear in boundary determination.

This bilateralism ‘contributes to an “orderly” outward appearance of the law because it facilitates a precise identification of who has a right or a claim against whom and who may enforce it’.9 However, it also imposes an artificial constraint upon the management of international affairs and an impediment to the development of an international law which is responsive to the broadening concerns of international society. For a number of reasons bilateralism is no longer appropriate as the paradigm model for the regulation of activities in the international arena.

First, as a matter of fact if not law, the actions and responses of any two States will impact upon the interests of other States, as well as upon other participants in the international and municipal arenas. Even bilateral treaties impinge upon non-parties: the distribution of values between two parties can rarely be contained within neatly drawn lines. Any bilateral conflict about different perceptions of an appropriate or just distribution of values may also have a wider impact. Secondly, scientific and technological advances allowing exploitation and exploration of areas not previously susceptible to such activities, and the corresponding increased (p. 3) capacity to exhaust the world’s resources or to monopolize a market, mean that even those States that lack the resources to take advantage themselves are still directly concerned in the activities of others. Further, the allocation of resources outside the jurisdiction of any State, for example in Antarctica and sea-bed areas beyond the limits of national jurisdiction, is a matter of concern for all States and peoples.10 Thirdly, the expansion of subject matters of legitimate international concern to include, inter alia, economic development, environmental and conservation interests, the regulation of the allocation of resources, and human rights militates against a strictly bilateral framework. These topics are typically the subject matter of multilateral treaties which define mutually accepted uniform standards. Their conclusion as instruments of codification or progressive development of international law weighs against a bilateral perspective which signifies a reciprocal exchange of commitments.11 Further they underline that international law can no longer be viewed solely from the narrow perspective of States’ interests but encompasses those of other bodies, notably those of individuals and of the international community as a whole. Fourthly, the increased use of institutional arenas for debate and confrontation rather than reliance upon closed diplomacy means that States are called upon to make their claims and responses in a public, multiparty forum. The formulation of restraints upon State activities through the adoption (often by consensus) of Resolutions and Codes of Conduct within international organizations makes it hard for a State to claim non-party status, as it can to a treaty it has not ratified. Although formally non-binding, the impact of such instruments upon the development of international law cannot be ignored. They operate to create expectations as to future behaviour between members of the international community in a wider setting than treaties.12

These changes in the subject matter of international law, in the participants in international activities, and in the arenas within which the (p. 4) participants perform have exposed the inadequacies of the bilateral model for the accommodation of third parties, either as individual members of the international community or collectively as the international community as a whole.13 There have been limited attempts to address the problem of third parties, for example by the International Law Commission and the International Court of Justice. The work of the former on jus cogens,14 the Draft Code of Offences against Mankind,15 and the concept of an international State crime and the consequences of the commission thereof16 all develop the concept of obligations owed to the international legal community, and possible third party responses to violation.17 The International Court of Justice has asserted that some obligations are owed to the international community, that is, they are obligations erga omnes, not confined to bilateral rights and obligations.18 (p. 5) Taken together these developments ‘reveal a trend towards the incipient personification of the international community’19 as an interested third party to bilateral transactions. In the words of Mosler: ‘International law cannot be defined solely in terms of bilateral or multilateral relations between subjects which possess legal capacity. The collection of subjects participating in the international legal order constitutes a community living according to common rules of conduct.’20

In order to assess the progressive development of international law in this direction it is important to determine what claims may be made by or against third parties, either as a particular third party or as a member of the international community, and the possible outcome of those claims. This book analyses the current position of third parties in international law through an examination of third party claims.

Although third party claims may be made in all areas of international law, the topic will be examined only in three specified areas. It is hoped that each of these will shed some light on the position of third parties generally. The areas chosen are all areas where the bilateral relationship is strongly apparent, and where the impact of bilateral action upon third parties may provoke a third party response: treaty law, international judicial and arbitral procedure, and responsibility for an international wrong, with particular reference to armed conflict. At first sight these may seem rather disparate areas for the drawing of generalized conclusions. However, inter-State behaviour ranges from genuinely consensual to ex-tremely coercive, with many variations in between. These areas of law illustrate the importance of the degree of coercion as between the parties inter se, and between the parties and a third party in determining the appropriateness of third party response. The third party response may in fact be what distinguishes consensual and coercive relationships between States.

The pacta tertiis rule (which protects non-parties to a treaty from having the treaty imposed upon them) has long been accepted in international law. However multilateral treaties are instrumental in the shaping and sharing of community values. There is therefore inevitably a friction between the rigid pacta tertiis rule and the progressive development of normative standards. The limitations of the former are evident in the event of violation of such treaty-based community standards where there is a need for collective and unilateral response from both treaty parties and non-parties. Part One of the book examines the modern application of the pacta tertiis rule. However, a third party may find itself without any (p. 6) available forum in which to present its substantive claims. International adjudication and arbitration operate within a bilateral model with only limited accommodation of third party interests. The restrictions of international procedures may inhibit the realization of third party claims, and hence the development of substantive law. Part Two therefore examines third party claims in international procedures. Treaty relationships are consensual, and third parties must decide what claims they wish to make with respect to the relationship from which they are excluded. Civil proceedings are also consensual when commenced by special agreement to submit to arbitration or to the International Court of Justice. A third party must determine its response to a form of dispute settlement from which it is excluded, but which it apprehends may impact upon itself. The tribunal must also determine whether to permit a third party to intrude upon a bilateral, consensual relationship. However, where jurisdiction is contested there is no community of interest between the parties, the respondent State may view the applicant’s behaviour as coercive, and a third party’s intervention may be more readily tolerated. Finally, an act of aggression is coercive and, unlike the commencement of proceedings which accords with the obligation upon States to settle disputes peacefully, involves the commission of an illegal act to which a third party must respond. It is in the context of armed conflict that many of the problems of third parties are brought into relief. Traditionally, the right of States to remain aloof from conflict between other States, and to have that stance recognized as the legal status of neutrality, was the most developed third party right. However, as other third party responses have been formulated, the compatibility of neutrality with the obligations of the United Nations Charter has been questioned. This in turn raises the question of unilateral and collective response to internationally illegal acts as developed, for example, through the International Law Commission’s work on State responsibility. As Simma argues:

the bilateralism inherent in the traditional structures and processes of international law is secured on the one hand, by a prohibition of intervention protecting not only a State’s internal but also its external affairs against third party interference and, on the other hand, by the pacta tertiis rule in the law of treaties, according to which an agreement can create neither obligations nor rights for a third State without its consent.21

The principle of non-intervention has given way to the need for legal response to international wrong-doing, coupled with responsibility for such acts. Thus Part Three examines the responses of a third State to an international crime of State, taking as a particular example acts of (p. 7) aggression, and examines how the concept of State responsibility may be used to bring some overall cohesion into the third party problem. In all three areas the impact upon the third party of the actions of other actors is beyond the control of the former; indeed from its perspective it may be of little import whether the behaviour of other States inter se is consensual or coercive, until the degree of coercion becomes such that as a member of the international community it must recognize and respond to an illegal act.

2.  Identification of third parties

2.1  States as third parties

An examination of the claims that can be made by or against third parties requires the identification of third parties. This depends upon the context of the claim; there is no single definition that can be used to identify third parties for all purposes.22 Third parties are those outside a bilateral relationship, whether formally created, for example by treaty or the commencement of proceedings, or occurring through events such as the outbreak of armed conflict.23

The Vienna Convention uses the term ‘third State’ to describe the opposite status to ‘party’. Another possible term is ‘non-party’. In the context of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations24 there was discussion as to whether these are equivalent terms. Reuter, for example, considered that a non-party is a State outside the terms of a treaty, which cannot claim any of the powers of a party, for example, with respect to treaty procedures for amendment or termination. A non-party is also, but ‘only inferentially’, not ‘directly bound by the obligations of the instrument’. However, as Reuter pointed out, it is possible to derive rights and to be bound to perform certain obligations without becoming a party to the treaty, an example being the United Nations with respect to its Charter. By way of contrast, he viewed ‘third party’ as having a more radical, although technically less precise, meaning. A third party is (p. 8) ‘foreign to an instrument, its consequences and all the rules deriving therefrom’.25 While third party analysis in the context of international organizations gives this distinction some validity, in other areas it is less significant, as it is difficult to assert that a State is completely foreign to the effects of an agreement to which it is not a party. Unless the context makes clear that a special emphasis is to be given to the term ‘third party’, the two expressions will be treated as equivalents.

In some contexts it is relatively easy to identify parties, and consequently third parties. Article 2 (h) of the Vienna Convention on the Law of Treaties provides that ‘A third State means a State not a party to a treaty.’26 It does not matter why a State has failed to become a party to a treaty, or whether it is eligible to become a party and intends at some time to do so. Determining the parties to a treaty is usually straightforward, although there can be problems of substance and evidence. The rules relating to inadmissible reservations and objections thereto can confuse the relationship even between States which have ratified a treaty. These rules belie the assumption that a State is either a party or a third party to an entire treaty.27 Instead there can be a series of bilateral relationships within the framework of a multilateral treaty, effectively setting up other third party relationships.

A State may be labelled a ‘third party’ to a unilateral act by another State which has juridical effect, although ‘non-party’ would seem a more appropriate term.28 Braud gives the example of Egypt’s 1957 unilateral declaration in favour of third States with respect to transit through the Suez Canal.29 Another example is a unilateral declaration of acceptance of the jurisdiction of the International Court of Justice under Article 36 (2) of its Statute. All States are non-parties to the declaration of any other State, but an accepting State is a party to ‘the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36’.30 States with no declaration are third (p. 9) parties to the jurisdictional scheme. In Nuclear Tests unilateral statements of the French authorities were said by the Court to have been made ‘publicly and erga omnes’. France had therefore bound itself with respect to all States, including Australia and New Zealand, leaving no State as a third party.31

The adversarial nature of contentious proceedings before the International Court ensures that the parties are readily identifiable. Third parties to international adjudication are all States other than the applicant or respondent. Some States may have interests arising out of a treaty to which they are parties, and which is to be interpreted or applied by the Court. Such States are parties to the treaty, but not to the proceedings.32 Somewhat less obviously, it has been argued that in certain circumstances States can be treated as parties to the Court’s exercise of its advisory jurisdiction.33 Legal questions rarely exist in the abstract and the opinion of the Court may affect the rights and duties of various international actors.34 The Court’s Rules of Procedure35 take account of this reality by allowing such States the benefit of procedures designed for contentious cases; recognition of certain States as ‘parties’ in advisory proceedings entails third party status for all others.36

The definition of a third State has occupied the International Law (p. 10) Commission in its Draft Articles on State Responsibility.37 Special Rapporteur Riphagen expounded what he termed the three parameters of relationship in international law which are set up by an internationally wrongful act. These require to be defined:

  1. 1.  what international law requires of a State that has violated international law, that is the obligations of the guilty State;

  2. 2.  the scope of national enforcement, that is the rights of the injured State;

  3. 3.  the scope of international enforcement, that is the rights and obligations of third States in respect of an internationally wrongful act.38

These parameters require an injured State to be distinguished from a third State for the purposes of defining the accountability of the wrong-doer and the rights of other States. The Draft Articles provisionally adopted by the International Law Commission incorporate the concept of an ‘injured State’.39 In these Articles injured States comprise those (p. 11) in a defined bilateral relationship;40 those in a defined third party relationship;41 those who share a formal relationship with the wrong-doer State, although not necessarily factually injured by the breach;42 and those indirectly injured because their only injury is as a member of the international community.43 All members of the international community are included within this last category as having suffered a constructive or derivative injury,44 leaving no residual category of third States. But this widening of the concept of an injured State, if accepted, could lead to the ‘disappearing third State’, foreshadowed by the International Court in Barcelona Traction and Nuclear Tests.45 The elision of third parties into the overall international community in the Draft Articles occurs for the particular purpose of identifying the consequences of an international wrongful act. This deconstruction of the concept of an injured State to include third parties to treaties and members of the international community in the event of an international crime reinforces the choice of topics to be examined in this book. Arangio-Ruiz, who replaced Riphagen as Rapporteur at the 39th session of the International Law Commission, has proposed that the Commission examine separately the consequences of an international delict and an international crime, since certain consequences apply only to the latter. An activity that can be designated an international crime has effects erga omnes and entails certain unilateral or collective obligations for other members of the international community: the obligation of non-recognition of the situation created by the act; the obligation not to assist the author of the act; and the obligation to assist the victim State.46 Whether or not third States are finally included as indirectly injured States in the terms of Draft Article 5 (3), development of international law in this respect is crucial to an examination of the rights and obligations of third parties.

2.2  International organizations as third parties

Since the Vienna Convention applies to treaties between States, its definition limits third parties to States. However, this is an incomplete representation, although the claims of non-State third parties will not normally be made within international institutional arenas which, with (p. 12) limited exceptions, are reserved to States. Instead claims by and against third party organizations or individuals may be made in a variety of domestic and regional, formal and informal arenas.

The growth of collective action by States through international organizations has been achieved primarily through treaties which have been used to define the competence of international organizations, and to perform their functions.47 Accordingly the Vienna Convention on International Organizations provides that organizations can be third parties to a treaty and defines ‘third States’ and ‘third organizations’.48 An international organization, for example the United Nations, is a third party to its constitutive treaty, and its officials are third party beneficiaries of the privileges and immunities49 accepted by it on their behalf.50 Since it would be absurd to regard the organization as a stranger to such a treaty, this third party relationship must be regarded as an exceptional one.51

An international organization or specialised agency may also be an interested third party to a non-constitutive treaty between States. For example, the International Committee of the Red Cross has an interest in monitoring the application of the Geneva Conventions and Protocols,52 and the United Nations High Commissioner for Refugees is in a similar situation with respect to the Refugee Conventions.53 Similarly, an international organization may have an interest in a dispute or proceedings between States, or between private parties. An inter-State dispute over (p. 13) refugee border crossings could impact upon the work of the United Nations High Commissioner for Refugees, while the International Committee of the Red Cross could be involved in a dispute about the repatriation of prisoners of war.54 An international organization will be directly interested in proceedings where its constitutive instrument, its actions, or its documents might be scrutinized.55

Non-government organizations monitor treaty performance and encourage participation in treaties to which they themselves cannot adhere. For example, the International Women’s Rights Action Watch reports on ‘law and policy change in accordance with the principles of the Convention on the Elimination of all Forms of Discrimination against Women’.56 Amnesty International performs a similar function with respect to the treatment of political detainees and the international prohibition of torture.57 Some such organizations have made procedural claims in litigation to which they are not a party; the various international and regional adjudicative bodies have adopted different stances in response to these claims.58 An international organization can express its interest through the advisory jurisdiction of the International Court.59 Not surprisingly a number of international organizations have requested an advisory opinion on the interpretation of their own constitutive treaty,60 or of an instrument to which a particular organization is a party, or which it was instrumental in drafting and having adopted.61 In contrast, a non-governmental organization has no such access to the International Court of Justice.62

2.3  Individuals as third parties

Individuals cannot enter into treaties, although States may enter into them on their behalf.63 States are free to waive, renounce, or dispose of a (p. 14) national’s rights or interests by treaty unless restricted by national law. The theory of State responsibility means that international claims are made by States, with individual interests subsumed to those of the State.

There is debate as to whether States accept obligations for the protection of individuals or whether individuals are the recipients of rights which they can enforce. Whatever view is preferred, where a State has entered into a treaty on behalf of an individual, or a group of individuals, it is self-evident that those individuals have an interest in its performance or nonperformance. States may undertake duties with respect to individuals and impose duties upon them, as signified by the emergence of international crimes and an international law for the protection of human rights. The individual defendants at Nuremberg, for example, were third parties to the Treaty of London establishing and granting jurisdiction to the Military Tribunal.64

Individuals remain third parties to treaties guaranteeing the protection of human rights, although some such treaties grant individuals procedural rights in international arenas. Most commonly the relationship between individuals and territorial legal persons is governed by municipal law and procedure. Examples are plentiful: an individual defending an extradition application in a municipal court is a third party to the extradition treaty between the requesting State and the State of detention; the crew of a fishing vessel arrested for illegal activities within another State’s exclusive economic zone are third parties to agreements delimiting fishing zones; individuals claiming refugee status rely upon the terms of the Refugee Treaty. In municipal arenas the focus becomes the incorporation of norms of international law into municipal law, and the forum’s jurisdiction over the individual before it. This obscures the fact that although States act as their representatives in international arenas, individuals remain as third parties.

Legal and natural persons are denied access to most international fora;65 exclusionary rules prevent them from being parties, interveners, or even witnesses in what they may see as their own claims.66 Yet an individual (p. 15) may not accept that the State has represented his or her interests adequately in a claim of State responsibility. Indeed the State’s interests may not coincide with those of the individual. For example in Barcelona Traction67 it is possible that the corporate authorities felt that the company’s interests were never placed squarely before the International Court and that the legal issue, whether Belgium could represent the Belgian shareholders, ignored the question of third party interests in the company itself. The legal concept of incorporation and the creation of separate legal personality must entail the recognition of interests of that entity that might require legal protection on the international plane. The corporation was allowed no say in an authoritative international arena in its own demise.68

Further, the requirement that a State has standing before the International Court may mean that an individual’s interests are not raised on their merits before the Court. If the outcome of Barcelona Traction overlooked the interests of the third party corporation, it also ignored those of the shareholders. On the other hand, States may have received representations from a number of groups of individuals whose concerns may conflict, and the traditional theory of State responsibility allows the State to synthesize or ignore those arguments and to present the position that best represents its own interests. The theory of State responsibility may ensure the independence of the State in presenting its claims, but this should not obscure the fact that entities other than States have interests that may be affected by the outcome of the proceedings, and that the present process of international litigation, with few exceptions, pays no regard to them.

3.  Third parties in international disputes and conflicts

While the parties, and hence third parties, to treaties and international proceedings may be readily identified, it may be more complex to identify the parties to a conflict or dispute. The Permanent Court defined a dispute as ‘a disagreement on a point of law or fact, a conflict of legal views or interests between two persons’.69 Given the adversarial procedures of the (p. 16) Court it is not surprising that it defined a dispute in bilateral terms. However, a dispute may not be purely bilateral; indeed the two-party model imposed by the adversarial system will rarely represent the multifaceted dimensions of a dispute.70 Third party interests in a dispute will range in intensity and directness, as illustrated by the background to Nicaragua v. the United States.71

Nicaragua’s claims against the United States arose out of conflict in Central America which impinged upon all other States in the area. As the Contadora process demonstrated, States within the immediate region and beyond felt themselves affected by the repercussions of the conflict.72 From among these States the interests of El Salvador, Honduras, and Costa Rica were more directly and intensely affected than those of other States. Although only Nicaragua and the United States were parties to the original litigation, the United States claimed that its actions in and against Nicaragua were justified as collective self-defence of the territorial integrity and political independence of those third States, in particular of El Salvador. Thus El Salvador, Costa Rica, and Honduras, whilst third parties to the contentious proceedings before the International Court, were asserted by the United States to be parties to the wider dispute. The legitimacy of this claim is shown by Nicaragua’s subsequent commencement of proceedings against Costa Rica and Honduras in which Honduras alleged that the Nicaraguan claims constituted an ‘artificial and arbitrary’ dividing up of the tension within the area.73

It might become necessary to define the parameters of an international dispute so as to identify the parties to it. This especially arises where third parties make procedural claims in an international forum seised of the dispute. Boundary disputes have become perhaps the classic setting for the presentation of bilateral claims in which third parties may claim an interest. Since boundaries do not form neat bilateral patterns, adjacent or opposite States may fear that any bilateral demarcation will trespass upon an area claimed by them. The parties to the proceedings may claim to be unaware of this wider dimension, and may challenge any third party (p. 17) procedural claims.74 Alternatively, an unwilling respondent may claim that the dispute is wider than that presented to the forum, in that third parties are involved, and that the claim should not be considered in their absence.75

Certain claims depend upon party or third party labelling. This was the case in the dispute arising out of the restrictions Egypt imposed in 1951 upon Israeli shipping in the Suez Canal. On one view, this was a bilateral dispute between Israel and Egypt regarding the right of transit for Israeli shipping through the Canal. On another, it was part of the wider Middle East conflict involving all Arab States in their war against Israel. Egypt claimed it was still wider, and that all States which had protested Egypt’s actions (the Netherlands, Turkey, the United Kingdom, the United States, and France) were parties to the dispute, although their own shipping was not directly affected.76 Egypt argued that protest put those States into dispute with Egypt as to the interpretation of the Armistice Agreement77 and the Suez Canal Convention.

The United Kingdom responded that Israel (as a party) had brought its dispute with Egypt before the Security Council, and that Egypt and Israel were the only parties. Egypt’s interpretation would increase the participants in all disputes by designating any protesting State a party, whether or not the actions protested against affected it directly. The strategies behind the claims were procedural: Egypt wanted United Nations Charter, Article 27 (3) to be applied, to prevent those States that had protested from voting on the matter before the Security Council, while the United Kingdom wished to preserve the bilateral nature of the dispute and its own procedural rights.

Another illustration of the importance for procedural rights of determining whether a dispute exists, and of identifying the parties to it, is Namibia.78 South Africa claimed that since it was a party to the dispute the Security Council had acted illegally in depriving it of its right of audience under United Nations Charter, Article 32. The Court side-stepped the issue by noting that Namibia had been listed on the agenda of the Security Council as a ‘situation’ not a ‘dispute’.79 This avoided the need to distinguish between parties and non-parties, but deprived those closely associated with the affair of claims to procedural rights. Recognizing South Africa as a party to a dispute about its policies in Namibia would (p. 18) have required identification of the other parties.80 The obvious candidates are non-States: the people of Namibia, and the United Nations.

These examples illustrate that in any dispute there can be a number of third parties with different interests of varying degrees of intensity. El Salvador, Honduras, and Costa Rica were ‘hard-core’ third parties to the proceedings before the Court between Nicaragua and the United States; other regional States were third parties with direct interests in the efforts to bring peace to Central America; outside the region, States had an interest in the fortunes of the Sandinista government; States whose shipping used Nicaragua’s ports had an interest in its safety; and all States shared a community interest in the maintenance of international peace and security. In the Suez dispute, the issue between Israel and Egypt was part of the serial conflict between the Arab States and Israel; States parties to the Armistice Treaty and the Suez Canal Convention shared an interest in their observance; and still wider, all States share a common interest in freedom of navigation through international waterways, the possible creation of an objective regime, and in the maintenance of international peace and security.

4.  Rights, obligations, and interests

A third party may claim that it has a direct interest in the actions of States or it may accept that its interest is indirect or peripheral. Its interest may be legal, moral, ideological, economic, religious, regional, political, or a combination of these. A State has an interest in the protection of certain values it upholds.81 A third party may assert that it has more than a mere interest in a certain subject, since it has a legal right82 in the subject matter of the dispute, or a right granted under a treaty between the parties. On the other hand, the parties may argue that some third party is under a legal obligation to them.83 These various levels of legal right, interest, and values may be illustrated by reference to treaties and third parties.

(p. 19) On one level all treaties and other international transactions affect strangers to the transaction, which must respect the allocation of values between the parties. The impact of a treaty upon a third party can range through various levels of intensity, from an actual duty accepted by a third party to perform certain acts, through to the treaty being ‘incidentally unfavourable’ to it.84 The impact may be favourable to a third party, again ranging from the bestowal of a right through to some beneficial side effects. A treaty may create expectations in other members of the international community that it will be performed, and third parties may arrange their own affairs accordingly. Third parties have no legal basis for a claim that a treaty merely affects them in some way, or that non-performance or reduced performance has frustrated their own expectations; nor can they interfere with the rights of other States to enter into such treaties.

The problem is to determine the degree of intensity necessary to allow the third party to make some valid claim, or for the parties to bring a claim against it. In international procedural terms this required level of intensity is, at least theoretically, satisfied when a State considers it has ‘an interest of a legal nature that may be affected by the decision in the case’,85 while in treaty law the emphasis is on rights and obligations. If States A and B conclude a treaty delimiting an area of adjacent continental shelf between them, their agreement will affect third States (and other interested bodies such as mining companies), which will have to acknowledge the existence of the delimitation, and decide upon their appropriate response. There is a range of potential responses: the delimitation may be respected and acted upon, for example through application for mining licences to either A or B according to the terms of the agreement; other States might tacitly acquiesce in the delimitation; others might make a formal protest that it conflicts with a legal interest of their own, for example, claims of sovereign rights over part of the same area. If there are proceedings before the International Court between A and B, a third State, C, may be able to intervene to raise its interest before the Court;86 or C may have sufficient interest to enable it to claim that there is a dispute between itself and A and/or B and (assuming jurisdiction) initiate its own action. C might ignore the agreement, take coercive action and promote a conflict between itself and A and B. C cannot be compelled to accept the terms of the treaty between A and B; if C acts contrary to the treaty, A and B cannot make that the basis of a claim against C. Equally, if the treaty between A and B was in C’s interest, C (p. 20) could not enforce that interest through legal proceedings unless it was in fact more than an interest, and amounted to a legally protected right.

A third State is affected by a treaty as a matter of fact when the treaty necessitates it acting in some way in response (even if its preferred response is to do nothing). Suppose State C has been for many years the major supplier of wheat to State A. If States A and B make an agreement that A will buy wheat from B instead of from C, this will affect C, which will have to decide upon its response. C may lobby A, may reduce its own prices, may seek new markets elsewhere, or take other steps. C cannot challenge the conclusion of the agreement between A and B, unless that agreement constitutes a violation of either a prior agreement between A and itself, or of a multilateral agreement to which both are parties.

A distinction is usually drawn between the legal effects of a treaty that bestows rights and one that purports to impose burdens87 upon third parties. The Vienna Convention on the Law of Treaties continues this distinction and makes no reference to interests of third parties. However, the distinction between rights and obligations is a crude one that does not reflect accurately the impact of treaties upon third parties.88

A third party has an interest in a treaty which presents a threat to the continuance or allocation of a value of the third party. If the value is a legally recognized interest, the third State may be able to make representations against the parties for its protection. If the value is not a legally recognized interest, the third party may still make diplomatic claims or take political or economic action. At a higher level of intensity again the treaty may amount to the attempted bestowal of a right or the imposition of an obligation upon a third party. The bestowal of a right upon a third party gives rise to expectations on the part of that third party that the parties will act in conformity with the treaty in their relations with itself; without necessarily having made any commitment of its own it will see itself as the beneficiary of the exchange of promises between the parties.89 The imposition of obligations means that the parties form similar expectations about the behaviour of the third party that they can enforce if the third party does not comply.

In many cases it is simplistic to make a bald differentiation between an obligation and a right, for each can exist at many different levels.90 An obligation or right (as well as an interest) can be legal or moral, express (p. 21) or implied. Either may arise only after the performance or occurrence of some particular acts. The words ‘obligation’ and ‘right’ provide no analysis of what might actually occur within the relationships between the parties and between the parties and non-parties, or of the chain of action and response that is likely to unwind from the conclusion and subsequent performance of any treaty.

A right can be viewed in terms of a claim, although that expression is itself ambiguous. To make a claim is to articulate a public statement that one has ‘reasons or grounds that put one in a position to engage in performative and propositional claiming’.91 One ground for such a belief is that one has a legal right to some act or omission by another legal or natural person, although to define claims in terms of rights becomes circular: ‘Nevertheless, certain facts about rights, more easily, if not solely, expressible in the language of claims and claiming, are necessary to a full understanding of what rights are and why they are so vitally important.’92

In the international arena (as in the municipal arena) needs can be the ground for a claim. Claims resting upon needs must be distinguished from demands where there is no recognized justification for the claim other than, perhaps, naked power. The armed robber does not claim your property but demands it. Many of the claims of the developing world, especially those relating to the establishment of a new international economic order, fall into the category of articulation of needs for economic development. An emphasis upon rights and obligations focuses upon a pre-existing treaty relationship defining parties and third parties. Disputes relating to rights and obligations centre upon interpreting the status quo, while third parties’ claims may rest upon interests or needs that have emerged or been articulated at some subsequent time. It has been argued that the present day focus of international law is upon disputes relating to parties’ interests in satisfying needs, and values, rather than upon formalistic attention to rights. ‘The drawing of lines between right and wrong [or duty and obligation] is being overshadowed by the need for cooperative adjustment and common improvement among States competing for limited resources.’93 A concentration on rights and obligations provides only a narrow perspective that ignores the role of international regulation in development, the equitable allocation of resources, and the need for co-operation and negotiation between States.

(p. 22) The formulation of a claim to register some need presupposes a response, but the identity of the respondent might be problematic. In a bilateral system comprising a network of reciprocal relationships the entity against which claims are made is evident. It is more complex where international actors coexist in a variety of relationships. Claims may be made by or against individual entities, or the international community as a whole. The international community is not per se owed a duty of obedience to the claims of some of its members, but it does provide a framework for the articulation of claims and for cohesion in response. It can organize sanctions to unsatisfactory responses. The presentation of claims within the organs of the institutionalized international community signifies a shift from bilateral to multilateral claims.

Some of the third party claims examined will be based upon recognized legal rights and obligations, but others are based upon certain needs in which some merit is recognized by members of the international community.94 One purpose of making these claims might be to attempt to establish a new legal norm, that is, that a claim at present based upon a need will become one of right. The international prescriptive process operates through the chain of response and counter-response to the articulation of claims which allows for the prediction of future behaviour.95

Footnotes:

1  e.g. ‘Basically, international legal obligations exist on the level of relations between pairs of individual States.’ B. Simma, ‘International Crimes: Injury and Countermeasures. Comments on Part 2 of the ILC Work on State Responsibility’, in J. Weiler, A. Cassese, and M. Spinedi, eds., International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin: De Gruyter, 1989), 283–315 (hereinafter B. Simma, ‘International Crimes’); B. Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y. Dinstein and M. Tabory, eds., International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (The Hague: Martinus Nijhoff, 1989), 821–44 (hereinafter B. Simma, ‘Bilateralism’).

2  Simma asserts that this traditional bilateralist view of international law is supported by the theoretical underpinning that the ‘law is made up of correlative rights and obligations of its subjects.’ B. Simma, ‘International Crimes’, 283.

3  R. Ago, Second Report on State Responsibility, [1970] 2 YBILC Pt. 1, 177–97 at 192–3. (Hereinafter R. Ago, Second Report).

4  Cf. W. Riphagen, Third Report on State Responsibility, [1982] 2 YBILC Pt. 1, 22–50 at 36, 38: ‘There are many multilateral treaties and rules of customary international law which create only bilateral relationships, be it of uniform content.’ See also M. Lachs, ‘Le Développement et les fonctions des traités multilatéraux’, 92 Rec. des cours 233–341 (1957/II).

5  A. Cassese, International Law in a Divided World (Oxford: Clarendon Press, 1986), 28.

6  e.g. Vienna Convention on the Law of Treaties, adopted 23 May 1969, 1155 UNTS 331, UN Doc. A/Conf. 39/27 (1969) Article 60 (2) (b) provides particular rights for ‘a party specially affected by the breach …’ (Hereinafter Vienna Convention.)

7  e.g. Anglo-Norwegian Fisheries (United Kingdom v. Norway) 1951 ICJ Rep. 116 (Judgment of 18 Dec); Asylum Case (Colombia v. Peru) 1950 ICJ Rep. 266 (Judgment of 20 Nov.); Case Concerning Right of Passage over Indian Territory (Portugal v. India), Merits, 1960 ICJ Rep. 6, 39 (Judgment of 12 Apr.)

8  B. Simma, ‘Bilateralism’, 821; cf. P.-M. Dupuy, ‘The International Law of State Responsibility: Revolution or Evolution’, II Mich. JIL 105–28 (1989).

9  B. Simma, ‘International Crimes’, 284.

10  C. Tomuschat, ‘Treaties under International Law and Third States’, 41 Law and State 7 (1990). Tomuschat emphasises that occupation is no longer acceptable as a basis of title, requiring other methods of distribution in which non-exploiting States share an interest.

11  Cf. Reservations to the Convention on Genocide Case, 1951 ICJ 15, 23 (Adv. Op. 28 May): ‘In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.’

12  On international ‘soft’ law see, T. Gruchalla-Wesierski, ‘A Framework for Understanding Soft Law’, 30 McGill LJ 37–88 (1984); M. Bothe, ‘Legal and Non-Legal Norms: A Meaningful Distinction in International Relations?’, 11 Neths. YBIL 65–95 (1980); A. Tammes, ‘Soft Law’, in E radice arbor: Essays on International and Comparative Law in Honour of Judge Erades (The Hague: Nijhoff, 1983); I. Seidl-Hohenveldern, ‘International Economic Soft Law’, 163 Rec. des cours 165–246 (1979/II); C. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, 38 ICLQ 850–66 (1989).

13  See E. Root, ‘The Outlook for International Law’, 9 ASIL 2–11 at 7 (1915); P. Jessup, A Modern Law of Nations (New York: Macmillan, 1948) 2; O. Schachter, ‘Philip Jessup’s Life and Ideas’, 80 AJIL 878–95 at 892–3 (1986).

14  Vienna Convention, Articles 53 and 64. On jus cogens see e.g. C. Rozakis, The Concept of Jus Cogens in the Law of Treaties (Amsterdam: North-Holland, 1976); J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal (Vienna: Springer-Verlag, 1974); L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status (Helsinki: Finnish Lawyers’ Publishing Company, 1988); A. Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, 60 AJIL 55–63 (1966); E. Schwelb, ‘Aspects of International Jus Cogens’, 61 AJIL 948 (1967); G. Gaja, ‘Jus Cogens beyond the Vienna Convention’, 172 Rec. des cours 271–316 (1981/III); G. Christenson, ‘Jus Cogens: Guarding Interests Fundamental to International Society’, 28 VJIL 585–648 (1988).

15  [1950] 2 YBILC 374–8; [1954] 2 YBILC 150–2. Work by the International Law Commission was resumed after GA Res. 36/106, 10 Dec. 1981. It was renamed the Draft Code of Crimes against the Peace and Security of Mankind; see GA Res. 42/151, 7 Dec. 1987.

16  International Law Commission, Draft Articles on State Responsibility, Article 19, [1979] 2 YBILC Pt. 2, 90; [1980] 2 YBILC Pt. 2, 14, 70. Riphagen has described Article 19 as the ‘ultimate stage’ in this process; W. Riphagen, ‘State Responsibility: New Theories of Inter-State Relations’, in R. St J. Macdonald and D. Johnson, eds., The Structure and Process of International Law (The Hague: Nijhoff, 1983), 581–625 at 607.

17  R. Ago, ‘Droit des traités à la lumière de la Convention de Vienne’, 134 Rec. des cours 303–31 at 323 (1971/III).

18  Barcelona Traction, Light and Power Co. Case (Belgium v. Spain), New Application, 1970 ICJ Rep. 3, 32 (Order of 5 Feb.): ‘In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis à vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.’ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 1986 ICJ Rep. 14, 153 (sep. op. Singh J.); 199 (sep. op. Sette-Camara J.) (Judgment of 27 June) for individual opinions referring to the prohibition of the use of force as constituting jus cogens. (Hereinafter, Nicaragua, Merits). See also South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, 1962 ICJ Rep. 319, 425 (Judgment of 21 Dec.) (sep. op. Jessup J.); South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, 1966 ICJ Rep. 4, 374 (Judgment of 18 July) (diss. op. Jessup J.). (Hereinafter South West Africa, Preliminary Objections; South West Africa, Second Phase).

19  R. Ago, Second Report, at 184.

20  H. Mosler, ‘International Legal Community’, in R. Bernhardt, ed., Encyclopedia of Public International Law, Instalment 7 (Amsterdam: North-Holland Elsevier Science Publishers, 1984), 309–12. (Hereinafter R. Bernhardt, ed., Encyclopedia.)

21  B. Simma, ‘International Crimes’, 284 (notes omitted).

22  Cf. G. Fitzmaurice, Fifth Report on the Law of Treaties, [1960] 2 YBILC 72–107 at 83: ‘Admittedly this term (third State) is not in itself a very satisfactory one. It is imprecise, and strictly appropriate only for the case of a bilateral treaty …’. (Hereinafter G. Fitzmaurice, Fifth Report).

23  See the definition of a third State in the Dictionnaire de la terminologie du droit international (Paris: Sirey, 1960), 603. A third State is: ‘Celui qui par rapport à un acte juridique, à une instance arbitrale ou judiciaire et à la décision à laquelle elle aboutit, à une affaire, n’est pas partie à cet acte ou à cette instance, ou qui est étranger à cette affaire.’

24  Adopted 20 Mar. 1986, UN Doc. A/Conf. 129/15, rep. 25 ILM 543 (1986). (Hereinafter Vienna Convention on International Organizations.) The Convention is not yet in force.

25  P. Reuter, Sixth Report on the Question of Treaties between States and International Organizations or between Two or More International Organizations, [1977] 2 YBILC Pt. 1, 127.

26  Cf. Vienna Convention, Article 2 (g): ‘“party” means a State which has consented to be bound by the treaty and for which the treaty is in force.’

27  Vienna Convention, Articles 19–23. Cf. Vienna Convention, Article 41 which permits fewer than all the parties to a convention to modify it as between themselves.

28  P. Braud, ‘Recherches sur l’état tiers en droit international public’, 72 RGDIP 17–96 (1968).

29  F. Déhaussy, ‘La Déclaration égyptienne de 1957 sur le Canal de Suez,’ 6 AFDI 169–80 (1960).

30  Case Concerning Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, 1957 ICJ 125, 146 (Judgment of 26 Nov.). Cf. ‘In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements …’; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 418 (Judgment of 26 Nov.). (Hereinafter Nicaragua, Jurisdiction and Admissibility.)

31  Nuclear Tests (Australia v. France; New Zealand v. France) 1974 ICJ Rep. 253, 269 (Orders of 20 Dec). Cf. Case Concerning the Frontier Dispute (Burkina Faso v. Mali) 1986 ICJ Rep. 554, 574 (Judgment of 22 Dec).

32  Cf. Rules of Procedure adopted by the Inter-American Court of Human Rights, at its Third Regular Session, 30 July–9 Aug. 1980, rep. 19 ILM 1458 (1980), Article 2 which details three possible party/non-party relationships:

For the purposes of these Rules:

  1. h.  the expression ‘States Parties’ means the States which have ratified or adhered to the Convention;

  2. i.  the expression ‘Member States’ means the Member States of the Organization of American States;

  3. j.  the expression ‘Parties to the case’ means the parties in a case before the Court.

33  Statute of the International Court of Justice, Articles 65–8.

34  A distinction has been drawn between requests for an advisory opinion where there is a legal question to be answered, and requests where there is a dispute between States. See D. Pratap, The Advisory Jurisdiction of the International Court (Oxford: Clarendon Press, 1972), 21.

35  International Court of Justice, Rules of Court adopted 14 Apr. 1978, rep. 73 AJIL 748, 774 (1978).

36  Judge Krylov distinguished between a party and an informateur. The former arises where there is a legal question pending between two or more States and the outcome can affect the legal rights of a State. An informateur is where the Court’s answer to the question presented cannot affect that State’s legal rights; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, 1950 ICJ 65, 107 (Adv. Op. 30 Mar.) (diss. op. Krylov J.).

37  For a critique of the work of the International Law Commission on State Responsibility see, P. Allott, ‘State Responsibility and the Unmaking of International Law’, 29 Harv. JIL 1–26 (1988).

38  See W. Riphagen, Preliminary Report on State Responsibility, [1980] 2 YBILC Pt. 1, 107–29 at 114–15.

39  International Law Commission, Draft Articles on State Responsibility, provisionally adopted by the ILC, Pt. 2, Article 5 states:

  1. 1.  For the purposes of the present Articles, ‘injured State’ means any State a right of which is infringed by the act of another State, if that act constitutes … an internationally wrongful act of that State.

  2. 2.  In particular, ‘injured State’ means (a) if the right infringed by the act of a State arises from a bilateral treaty, the other State party to the Treaty; (b) if the right infringed by the act of a State arises from a judgment or other binding dispute settlement decision of an international court or tribunal, the other State or States parties to the dispute and entitled to the benefit of that right; (c) if the right infringed by the act of a State arises from a binding decision of an international organ … the State or States which, in accordance with the constituent instrument of the international organisation concerned, are entitled to the benefit of that right; (d) if the right infringed by the act of a State arises from a treaty provision for a third State, that third State; (e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the rule of customary international law, if it is established that: (i) the right has been created or is established in its favour; (ii) the infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law: or (iii) the right has been created or is established for the protection of human rights and fundamental freedoms; (f) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto.

  3. 3.  In addition, ‘injured State’ means, if the internationally wrongful act constitutes an international crime, all other States.

Report of the ILC on the Work of its 37th Session, [1985] 1 YBILC 307; reprinted Report of the ILC on the Work of its 43rd Session, 1991, 325. Cf.; W. Riphagen, Fifth Report on State Responsibility, Draft Article 5, [1984] 2 YBILC Pt. 1, 3.

40  Article 5 (2) (a) (b) (c).

41  Article 5 (2) (d).

42  Article 5 (2) (e) (f).

43  Article 5 (3).

44  Injury is not to be equated with damage; see B. Graefath, ‘On the Function of Responsibility in International Law’, 185 Rec. des cours 19–149 (1984/II).

45  Cf. D. Alland, ‘International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codification of Rules Governing International Responsibility’, in M. Spinedi and B. Simma, eds., United Nations Codification of State Responsibility (Dobbs Ferry, NY: Oceana, 1987), 143–95.

46  These consequences for a third State of an international crime are suggested in the Report of the International Law Commission on the Work of its 41st Session, UNGAOR, 44th Session, Suppl. No. 10 (A/44/10), 195 (1989).

47  Roucanas argues that the pacta tertiis rule was the product of an international legal system where nation States were the only subjects and held a monopoly of power. With the collectivism now required in international society, treaties are needed as a tool for the development of international law through these organizations; E. Roucanas, ‘Le Traité et les états tiers’, 17 Rev. hell, de droit int. 299–365 at 305 (1964).

48  Vienna Convention on International Organizations, Article 2 (h).

49  Convention on Privileges and Immunities of the United Nations, adopted by the General Assembly, 13 Feb. 1946, 1 UNTS 16. The International Law Commission has noted that the Secretary-General has maintained that the United Nations is a party to this treaty, a practical but theoretically false position; [1977] 2 YBILC Pt. 1, 125.

50  The International Court discussed the applicability of this Convention to an individual, Mr Dumitru Mazilu, Special Rapporteur of the Sub-Committee of ECOSOC on the Prevention of Discrimination and Protection of Minorities; Applicability of Article VI, s. 22 of the Convention on Privileges and Immunities of the United Nations, Request for Advisory Opinion, 1989 ICJ Rep. 177 (Adv. Op. 15 Dec).

51  Reuter called the question of whether the United Nations is a third party to the Charter an ‘absurd question’; [1982] 1 YBILC 26.

52  Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War 75 UNTS 287, all of 12 Aug. 1949. (Hereinafter Geneva Red Cross Conventions.) Since 1949 certain third States and the International Committee of the Red Cross have regularly issued appeals to States to ensure respect for the Conventions; T. Meron, ‘The Geneva Conventions as Customary Law’, 81 AJIL 348–70 at 354 (1987).

53  Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137; Protocol, 31 Jan. 1967, 606 UNTS 267.

54  e.g. Trial of Pakistani Prisoners of War (Pakistan v. India), Interim Protection, 1973 ICJ Rep. 328 (Order of 13 July).

55  e.g. in Shearson Lehman Bros Inc. v. Maclaine Watson and Co. Ltd. (No. 2) (International Tin Council Intervener) [1988] 1 WLR 16 the parties each wished to produce as evidence documents that had emanated from the International Tin Council.

56  Adopted by the UN General Assembly 18 Dec. 1979, GA Res. 34/180 (XXXIV), rep. 19 ILM 33 (1980).

57  See J. Ignarski, ‘Amnesty International’, in R. Bernhardt, ed., Encyclopedia, Instalment 8 (1985) 27–9.

58  See Ch. 10.

59  Statute of the International Court of Justice, Article 66.

60  e.g. Interpretation of the Agreement of 25 Mar. 1951 between the WHO and Egypt, 1980 ICJ Rep. 73 (Adv. Op. 20 Dec); Maritime Safety Committee Case, 1960 ICJ Rep. 150 (Adv. Op. 8 June).

61  The International Court of Justice accepted the General Assembly’s request for an advisory opinion on the interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 UNTS 277; Reservations to the Convention on Genocide Case, 1951 ICJ Rep. 15, 20 (Adv. Op. 28 May).

62  See Ch. 10.

63  Jurisdiction of the Courts of Danzig Case, 1928 PCIJ ser. B, No. 15, 16–24 (Adv. Op. 3 Mar.). See H. Lauterpacht, The Development of International Law by the International Court (London: Stevens, 1958) 173. McNair disagreed with Lauterpacht’s interpretation of the case. A. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), 337–8. Agreements between States and individuals have been denied treaty status: Anglo-Iranian Oil Company Case (United Kingdom v. Iran), Preliminary Objection, 1952 ICJ Rep. 93, 98 (Judgment of 22 July). Vienna Convention, Article 1 does not (for definitional purposes) include agreements where one party is not a State.

64  An Agreement for the Establishment of an International Military Tribunal, 8 Aug. 1946, 5 UNTS 251.

65  Cf. I. Brownlie, ‘The Individual before Tribunals Exercising International Jurisdiction’, 11 ICLQ 701–20 (1962).

66  The suggestion in the Committee of Jurists that individuals should have some access to the Permanent Court of International Justice was dismissed as it was assumed that States would represent their interests; Permanent Court of International Justice, Advisory Committee of Jurists, Procès Verbaux of the Proceedings of the Committee, 16 June–24 July 1920 (The Hague: Van Langenhuysen Brothers, 1920), 79–80.

67  Barcelona Traction, Light and Power Co. Case (Belgium v. Spain), New Application, 1970 ICJ Rep. 3.

68  The Court upheld a similar fiction with respect to an individual in Nottebohm (Liechtenstein v. Guatemala), 1955 ICJ Rep. 4 (Judgment of 6 Apr.). See S. Rosenne, ‘Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice’, in P. Sanders, ed., International Arbitration: Liber Amicorum for Martin Domke (The Hague: Nijhoff, 1967), 240–51.

69  Mavromattis Palestine Concessions, Judgment No. 2 (Greece v. United Kingdom), 1924 PCIJ ser. A No. 2, 11 (Judgment of 13 Aug.). See R. Bilder, ‘An Overview of International Dispute Settlement’, 1 Emory J. Int. Dis. Res. 1–32 at n. 3 (1986) for other definitions.

70  See L. Damrosch, ‘Multilateral Disputes in the International Court of Justice’, in L. Damrosch, ed., The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational Publishers, 1987), 376–400.

71  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Request for the Indication of Provisional Measures, 1984 ICJ Rep. 169 (Order of 10 May) (hereinafter Nicaragua, Provisional Measures); Military and Paramilitary Activities in and against Nicaragua, Declaration of Intervention, 1984 ICJ Rep. 215 (Order of 4 Oct.); Nicaragua, Jurisdiction and Admissibility, 1984 ICJ Rep. 392; Nicaragua, Merits, 1986 ICJ Rep. 14. By a letter of 12 Sept. 1991 Nicaragua renounced all further action and requested an order recording the discontinuance of proceedings; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1991 ICJ Rep. 47 (Order of 26 Sept.).

72  For the Contadora process see Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, 1988 ICJ Rep. 69, 96–8; 101–5 (Judgment of 20 Dec).

73  Ibid. at 91.

74  See Ch. 7.

75  See Ch. 8.

76  See debate on the Palestine Question, SCOR 6th year 553rd Meeting, 16 Aug. 1951, and ibid. 555th Meeting 27 Aug. 1951, S/2313.

77  24 Feb. 1949, 34 UNTS 243.

78  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council 276 (1970), 1971 ICJ Rep. 16 (Adv. Op. 21 June). (Hereinafter Namibia.)

79  Ibid. at 22–3.

80  Judge Gros thought that failing to recognize South Africa as a party to the dispute was ‘a purely formal view of the facts of the case which does not … correspond to realities’. Ibid. at 326 (diss. op. Gros J.). Judge Dillard queried who should be identified as parties to the dispute, South Africa and the Security Council, or South Africa and the members of the Security Council. Ibid. at 55 (sep. op. Dillard J.).

81  An interest is defined in the Dictionnaire de la terminologie du droit international 342 as: ‘Terme désignant ce qui affecte matériellement ou moralement une personne physique ou juridique, l’avantage matériel ou morale que présente pour elle une action ou une abstention, le maintien ou le changement d’une situation.’

82  A legal right is defined as: ‘Dans un sens subjectif une prérogative, un intérêt, un pouvoir d’agir juridiquement protégé, reconnu par le droit objectif.’ Ibid. at 226.

83  See Lake Lanoux Arbitration (France and Spain), 12 RIAA 315, 24 ILR 101 (1957) (Award of 16 Nov.) where Spain’s claim was rejected because it tended ‘to put rights and simple interests on the same plane’.

84  G. Fitzmaurice, Fifth Report; cf. P. Cahier, ‘Le Problème des effets des traités à l’égard des états tiers’, 143 Rec. des cours 595–735 at 597 (1974/III).

85  Statute of the International Court of Justice, Article 62.

86  See Ch. 7.

87  See R. Roxburgh, International Conventions and Third States (London: Longmans, 1917), 27.

88  For analysis of the different kinds of obligation typically incurred see J. Feinberg, ‘Duties, Rights and Claims’, 3 Am. Phil. Q. 137–44 (1966); H. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).

89  Cf. ‘the rights of third party beneficiaries, unlike those of promisees, are not logically correlated with the obligations of the promisor, but correlated only in virtue of moral or judicial policies and rules.’ J. Feinberg, ibid. at 138.

90  See G. Fitzmaurice, Fifth Report, 83.

91  C. Wellman, Commentary on J. Feinberg, ‘The Nature and Value of Rights’; 4 Journal of Value Inquiry, 257–8 at 257 (1970). The ‘Nature and Value of Rights’ is ibid. at 243–57.

92  J. Feinberg, above n. 88 at 142. R. Frey, Interests and Rights: The Case against Animals (Oxford: Clarendon Press, 1980), 8 discusses Feinberg’s notion of a right as resting upon having a claim and considers the enforcement of the claim through the courts, an option that is not normally present in the international legal system.

93  G. Webb, ‘Symbols and Ideas: Rules, Guidelines and International Law’, 14 VUWLR 389–414 at 398 (1984).

94  Fawcett argues that when speaking of rights ‘we imply that there is, or ought to be, some means of enforcement now’. Treating claims prematurely as rights can only cause confusion; J. Fawcett, ‘The International Protection of Human Rights’, in D. Raphael, Political Theory and the Rights of Man (Bloomington: Indiana UP, 1967), 119–29 at 125.

95  Cf. ‘claims are … needs and demands in movement, and there is a continuous transformation, as a society advances, of economic and social claims into civil or political rights; and not all countries or all claims are by any means at the same stages in this process.’ Ibid. at 128.