Part 4 International transactions, Ch.14 Treaties, Treaties and Third States
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Treaties, effect for third states
Treaties and Third States
Roxburgh, International Conventions and Third States (1917) Salvioli, Rivista, 12 (1918), pp 228–41 Winkler, Verträge zu Gunsten Dritter (1932) McNair, Hag R, 43 (1933), i, pp 209–96, and Treaties, ch 16, and in Varia Juris Gentium: Liber Amicorum JPA François (1959), pp 188–93 Harv Research (1935), pt III, pp 812–43 Kelsen, Revue de droit, 10 (1936), pp 286–9 Brierley, Hag R, 58 (1936), iv, pp 221–9 Scrimali, ZöR, 21 (1941), pp 190–216 Zannini, L’Adesione ai trattati internazionali (1946) Balladore Pallieri, Hag R, 74 (1949), i, pp 530–42 de Arechaga, AJ, 50 (1956), pp 338–57, and Hag R, 159 (1978), i, pp 50–58 Kojanec, Trattati e Terzi Stati (1961) Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp 317–25 Detter, Essays on the Law of Treaties (1967), pp 100–18 Cahier, Hag R, 143 (1974), iii, pp 589–736 Elias, The Modern Law of Treaties (1974), pp 59–70 Napoletano, Ital YBIL, 3 (1977), pp 75–91 Sinclair, The Vienna Convention on the Law of Treaties (2nd ed, 1984), pp 98–106 Schweisfurth, ZöV, 45 (1985), pp 653–74 Reuter, in Realism in Law-Making (eds Bos and Siblesz, 1986), pp 155–68 Restatement (Third), 1, pp 194–6 Thirlway, BY, 60 (1989), pp 63–72 Reuter, Introduction to the Law of Treaties (Eng trans, 1989, by Mico and Haggenmacher, of 2nd ed (1985) of original in French), pp 78–99.
A treaty binds the contracting states only, and the Vienna Convention on the Law of Treaties 1969 reaffirms the general rule that a treaty does not create either obligations1 or rights for a third state2 without its consent: pacta tertiis nec nocent nec prosunt. The International Law Commission considered that ‘there appears to be almost universal agreement’ upon such a general rule, which is based not only on a general concept of the law of contract but also on the sovereignty and independence of states.3 (p. 1261) Treaties may, of course, create rights and obligations for third states with their consent.4 Even though not creating rights and obligations for third states, treaties may affect their rights and obligations, as where a treaty between states A and B grants more extensive commercial rights than state A has previously granted to state Z under a treaty containing a ‘most-favoured-nation’ clause,5 or where a treaty requires a party to it to divest itself of its obligations under a treaty with other states,6 or where a treaty determines an individual’s nationality with consequent effects for third states in the context of the nationality of claims.7 Also, a rule set out in a treaty may become binding upon a third state as a recognised rule of customary international law.8 Lastly, mention may be made of the special case of treaties establishing a regime or status valid erga omnes,9 certain provisions of the United Nations Charter,10 and treaty obligations imposed upon an aggressor state in consequence of measures taken in conformity with the Charter of the United Nations with reference to that state’s aggression.11
References(p. 1262) Notwithstanding the general rule, states may still conclude a treaty containing provisions which they intend to be a means of establishing an obligation for a third state, but of itself such a treaty does not create any obligation for the third state, which only arises upon its express acceptance by the third state, in writing.12
Similarly, states may conclude treaties containing a provision by which they intend to accord a right to a third state, either specifically,13 or by a reference to a group of states to which it belongs,14 or to all states.15 Article 36 of the Vienna Convention provides that in such cases a right arises for a third state if it assents; its assent is presumed so long as the contrary is not indicated, unless the treaty otherwise provides. This provision, which much authority would regard as reflecting the rule of customary international law,16 conceals a divergence of opinion17 between those who maintain that while the treaty provision itself may confer a benefit upon the third state, no actual legal right is created for that state until it has accepted what is no more than an offer made to it,18 and on the other hand those who maintain that (if the contracting parties so intend) an actual right is created immediately and until the third state disclaims it.19 In practice, however, References(p. 1263) these two approaches do not differ very much, if at all, in their results. Where a right has arisen for a third state it must, in exercising it, comply with any conditions for its exercise provided for in the treaty or established in compliance with it.20
One of the questions much discussed in relation to the possibility of parties to a treaty creating rights or obligations for third states is whether the parties can subsequently freely modify that right or obligation.21 On the one hand it is thought that the parties to a treaty alone determine whether any changes are to be made; on the other hand there are the considerations that where a third state has altered its position by acting in accordance with the right or obligation any modification thereof should require its consent, and that the consent of all the parties concerned may be regarded as itself constituting a separate agreement which should not be susceptible to unilateral modification. It seems that these conflicting considerations may be resolved by distinguishing between modification of the treaty provision as such and modification of the right or obligation for third states to which that provision has given rise:22 the former is a matter solely for the parties to the treaty, while the latter also needs the consent of the third state. Article 37 of the Vienna Convention provides that a third state’s obligation may be revoked or modified only with the consent of the parties to the treaty and of that state (unless it is established that they had otherwise agreed), while a third state’s right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third state.23
The rule that treaties cannot validly impose obligations upon dissenting third states follows (p. 1264) clearly from the sovereignty of states and from the resulting fact that there is no international legislative process by which rules of law are imposed upon a dissenting minority of states. However, as international society becomes a more integrated community, a departure from the accepted principle becomes unavoidable, in particular in the sphere of preservation of international peace and security. Building upon the precedent set in the Covenant of the League of Nations,1 Article 2(6) of the Charter of the United Nations lays down that the Organisation shall ensure that states which are not members of the United Nations act in accordance with the principles of the Organisation so far as may be necessary for the maintenance of international peace and security.2 This is a mandatory provision which, upon analysis, constitutes a claim to regulate the conduct of non-members to the extent required for the fulfilment of the object of that Article. It cannot be admitted that the International Court of Justice or any other organ of the United Nations established under the Charter would be at liberty to hold that action taken in pursuance of Article 2 is contrary to international law. It is also suggested below that Article 102 of the Charter relating to registration of treaties produces indirect legal effects in relation to non-member states inasmuch as they cannot invoke before an organ of the United Nations a treaty to which they are a party and which has not been registered.3 Both the Covenant and the Charter must therefore be regarded as having set a limit, determined by the general interest of the international community, to the rule that a treaty cannot impose obligations upon states which are not parties to it.4
References(p. 1265) The International Court of Justice has held that the international personality conferred on the United Nations by the great majority of the members of the international community, including in particular the right to present international claims, is effective even in relation to non-member states;5 and that non-member states must act in accordance with the United Nations’ decisions which terminated the Mandate for South-West Africa and declared South Africa’s continued presence in that territory illegal.6 In imposing mandatory sanctions on Southern Rhodesia, on South Africa and on Iraq, the Security Council expressly included non-member states within the scope of its resolutions, although in terms generally consistent with the limitations of Article 2(6) of the Charter.7
In addition to the acquisition by third states of rights and obligations under treaties concluded between other states, and the common situation in which a third state has some kind of interest in a treaty concluded by other states, a third state may also be said to participate in a treaty in certain circumstances. Thus it may accede to a treaty concluded between other states, thereby becoming a party to the treaty.1 Again, it may, References(p. 1266) without becoming a party to the treaty, through its good offices or mediation2 assist the parties in the conclusion of the treaty; or it may intervene by interposing dicutorially between the negotiating states and requesting them to drop or to insert certain stipulations;3 or it may act as guarantor of the performance of a treaty between other states.4
A somewhat special case arises where one state concludes a treaty on behalf of another state.5 This is not strictly a question involving a ‘third’ state, but is more a matter of agency.
1 However, see the next §.
2 As to a treaty’s effects on nationals of states not parties to it, see § 622, n 3. The application of a treaty directly to individuals, who were not parties to the treaty, may in some measure be seen as a departure from the general rule.
3 Commentary (Treaties), Art 30, para (1): YBILC (1966), ii, p 226. The general rule was included in the Vienna Convention as Art 34. The general rule is so well established that there is no need to cite extensive authority for it, but mention may be made of the decisions of the PCIJ in the cases concerning Certain German Interests in Polish Upper Silesia (1926) (Series A, No 7, pp 27–9), the Free Zones of Upper Savoy and the District of Gex (1932) (Series A/B, No 46, p 141), the Territorial Jurisdiction of the River Oder Commission (1929) (Series A, No 23, pp 19–22), and the Status of Eastern Carelia (1923) (Series B, No 5, pp 27–8): see also the Pablo-Najera claim, AD, 4 (1927–28), No 271; and the judgments of the ICJ in the case concerning the Aerial Incident of July 27 1955, ICJ Rep (1959), p 127, and the North Sea Continental Shelf Cases, ICJ Rep (1969), p 3.
An interesting application of the general rule was given by the Inter-American Court of Human Rights in the Consultative Jurisdiction Case (1982), ILR, 67, p 594. The Court affirmed its right to give advisory opinions on all treaty provisions applicable in the American states, even if non-American states are parties to the treaties in question, but added that it may decline to give an opinion if the issues raised deal mainly with international obligations assumed by a non-American state.
As to the rights and obligations arising for states which are members of an international organisation as a result of treaties concluded by the organisation but to which those states are not parties, see draft Art 36 bis (and Commentary) of the ILC’s draft Articles on the law of treaties concluded by international organisations (YBILC (1982), ii, pt 2, pp 43–7): the draft Article was not included in the 1986 Convention which was the outcome of the ILC’s work.
4 Thus, under Art 228 of the Treaty establishing the EEC, the member states agree to be bound by certain treaties entered into by the EEC as such, without their direct participation. See also the India-Pakistan agreement of 1973, containing stipulations requiring action by Bangladesh and in which the Government of Bangladesh concurred: ILM, 12 (1973), p 1080. As to the Munich Agreement of 1938, to which Czechoslovakia was not a party but which affected the status of Czechoslovakia and which it accepted under protest, see § 641, n 8.
5 See § 669; and YBILC, 1978, ii, pt 2, p 8, para (1).
6 Eg Art 234 of the Treaty of Rome 1957 establishihg the EEC; Art 292 of the Treaty of Versailles 1919. As to the situation in which state A concludes with state B a treaty which conflicts with a pre-existing treaty in force between state A and state C, see §§ 590–1.
7 See Flegenheimer Claim, ILR, 25 (1958-I), pp 91, 126.
8 Vienna Convention, Art 38. See § 583. In this situation it is not so much the treaty rule which is binding, but rather the customary rule, which has found convenient expression in the terms of the treaty. The distinction was important in Military and Paramilitary Activities Case, ICJ Rep (1986), p 14: see § 11, n 26.
9 See § 583.
10 See § 627.
12 Vienna Convention, Art 35. The requirement that the acceptance must be in writing was added during the Vienna Conference, and may not have reflected a requirement of customary international law. For an example of such a treaty provision see Art 63 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 (ILM, 8 (1969), p 229) in which the contracting states, being the then existing members of the EEC, recognise that any new state becoming a member ‘shall be obligated to accept this Convention as a basis for’ negotiations.
14 Eg Art 35 of the UN Charter; Art 26 of the Japanese Peace Treaty 1951 (by which Japan agreed to conclude with any state which had signed or adhered to the UN Declaration of 1 January 1942 (TS No 5 (1942)), but which was not a signatory to the 1951 Treaty, a bilateral Treaty of Peace on the same or substantially the same basis as the 1951 Treaty: quaere, did that Art confer a legal right upon any of those States?).
15 Eg, the treaties of 1901 and 1903 between, respectively, the USA and the UK, and the USA and Panama, relating to the Panama Canal; Art 5 of the Argentine-Chilean Treaty of 1881 regarding navigation through the Straits of Magellan. See generally §§ 183–6, on international canal regimes.
16 In vol I of 8th ed of this work, § 522, a different view was expressed, citing in particular the case concerning Certain German Interests in Polish Upper Silesia, in which the PCIJ held in 1926 that as Poland was not a party to the Armistice Agreement she was not entitled to avail herself of that instrument (Series A, No 7, pp 27–9) and the Judgment of 13 September 1928, in the case of the Factory at Chorzów (Series A, No 17, pp 43–6). However, note was also made of Steiner and Gross v Polish State, decided on 30 March 1928 by the Upper Silesian Arbitral Tribunal, in which it was held that a Czecho-Slovak subject, ie a national of a state not a party to the Convention establishing the Tribunal, could bring an action against Poland, one of the two parties to the Convention: AD, 4 (1927–28), No 287.
18 See n 22.
19 This view is supported in particular by the judgment of the PCIJ, in the Free Zones Case (1932), Series A/B, No 46, pp 147–8. In that case the question arose whether Switzerland acquired rights under certain instruments and declarations made during the Congress of Vienna in 1815. The Court found that there was, with regard to the Gex zone, an actual agreement between Switzerland and the various Powers, including France. Accordingly, the Court did not find it necessary to consider whether the Gex zone was a stipulation in favour of a third party. But the Court added that although it could not be lightly presumed that stipulations in favour of a third state had been adopted in order to create a legal right in its favour, there was nothing to prevent contracting parties from effectively creating rights in favour of third parties. The Court pointed out that the question of the existence of a right acquired under a treaty between other states must be decided in each particular case: Series A/B, No 46, p 147. See also Order of 19 August 1929: Series A, No 22, p 20.
20 Vienna Convention, Art 36.2. There may clearly be borderline cases in determining whether a requirement for a third state is a ‘condition’ with which it must comply pursuant to this provision or an ‘obligation’ which only arises pursuant to Art 35.
22 See ILC Commentary (Treaties), Art 33, para (2): YBILC (1966), ii, p 230. This analysis could lead to the situation in which the treaty provision has been abrogated while the right or obligation for a third state to which it gave rise still subsists: this in turn suggests that the third state’s right or obligation exists independently of the treaty (eg, by virtue of the collateral act constituted by that state’s acceptance of the right or obligation).
23 Such an intention is probably to be implied (if it is not express) in the case of those treaties which establish a status or regime valid erga omnes: see § 583.
Article 37 is silent as to whether a third state may renounce its right. It is similarly silent as to whether the parties to the treaty may revoke or modify the right, without the third state’s consent and notwithstanding that it may have acted in reliance on the right, in cases where it is not established that the right was intended not to be revocable or subject to modification without its consent. Presumably if the intention of the parties was to create only a right revocable unilaterally by them, the third state’s assent to the right is to be regarded as involving acceptance of those terms.
1 The Covenant, without expressly imposing obligations upon non-members, asserted the right of the League to compel them to assume some of the obligations of the Covenant with regard to the settlement of their disputes with members of the League (Art 17: see vol II of 7th ed of this work, § 25g). It also asserted the right of active intervention of the League in disputes between non-member states (ibid).
2 On the position of non-member states see Kelsen, The Law of the United Nations (1950), pp 106–10; Kunz, AJ, 41 (1947), pp 122–6, and 47 (1953), pp 456–62; Guggenheim, vol 1, p 92; Katzarov, Archiv des Völkerrechts, 3 (1951), pp 1–22; Liang, AJ, 45 (1951), pp 314–24; Söder, Die Vereinten Nationen und die Nichtmitglieder (1956); Kojanec, Trattati e Terzi Stati (1961), pt IV; Goodrich, Hambro and Simons, Charter of the United Nations (3rd ed, 1969), pp 58–60; Cahier, in Current Problems of International Law (ed Cassese, 1975), pp 81–103; Cot and Pellet (eds), La Charte des Nations Unies (1985), pp l33–9. On the participation of non-member states in the activities of the UN, see Schachter, BY, 25 (1948), pp 115–22.
A provision on somewhat similar lines to that in Art 2(6) of the Charter is to be found in Art X of the Antarctic Treaty 1959.
3 See § 663.
4 See Kunz, AJ, 41 (1947), pp 119–26; Jessup, ibid, pp 386–91. The obligation, it will be noted, is not a direct one. However, inasmuch as a legal rule is conceived as a precept of conduct enforced by external sanction, the difference is one of form rather than of substance. Article 14 of the Opium Convention 1931, in fact, although not in law, imposes obligations upon states which are not parties to the Convention inasmuch as the parties are under an obligation to stop imports of certain drugs by non-parties who have exceeded the estimates of the maximum quantity of drugs allotted to them. See Staricoff, JCL, 3rd series, 18 (1936), p 90. See also Kelsen, Prager Juristische Zeitschrift (1934), pp 420–32 who points to cases such as that of Danzig in which the contracting parties imposed duties upon a future state created by treaty. See also the Resolution on German Assets in Neutral Countries included in the Final Act of the Paris Conference of 21 October 1945, on Reparations (Cmd 6721, p 13): ‘The Conference unanimously resolves that the countries which remained neutral in the war against Germany should be prevailed upon by all suitable means to recognise the reasons of justice and of international security policy which motivate’ the various Powers ‘in their efforts to extirpate the German holdings in neutral countries’.
5 See the case concerning Reparation for Injuries Suffered in the Service of the United Nations: ICJ Rep (1949), p 185. See also § 7, at n 16ff.
7 Thus, para 7 of SC Res 232 (1966), the first to impose sanctions on Southern Rhodesia, ‘urges, having regard to the principles stated in Article 2 of the United Nations Charter, States not members of the United Nations to act in accordance with the provisions of the present resolution’. Paragraph 14 of SC Res 253 (1968) and para 18 of SC Res 277 (1970) were in similar terms. SC Res 314 (1972) urged ‘all States’ to implement fully all Security Council resolutions establishing sanctions against Southern Rhodesia ‘in accordance with their obligations under Article 25 and Article 2(6) of the Charter’: it is unclear whether this is addressed only to members of the UN, requiring them to ensure that non-member states act accordingly, or is addressed to non-members themselves in the apparent belief that they have ‘obligations’ under Art 2(6). Paragraph 2 of SC Res 320 (1972) was in similar terms, but without mention of ‘obligations’. Later resolutions, eg SC Res 388 (1976), para 3, and SC Res 409 (1973), para 2, reverted to the pattern of the first resolutions. In relation to South Africa, SC Res 418 (1977) ‘decides that all States’ shall forthwith apply an arms embargo, and ‘calls upon all States, including non-members of the United Nations, to act strictly in accordance with the provisions of this resolution’. Several paragraphs of the various sanctions resolutions call upon ‘all States’ to take the action specified: it would seem, given the express reference to non-member states in appropriate paragraphs, that such general references should be taken to refer only to members of the UN, but the drafting of the resolutions is not wholly clear on the point. See generally Widdows, ICLQ, 27 (1978), pp 459–62. As to sanctions imposed against Iraq in 1990, see para 5 of SC Res 661 (1990), which is addressed to ‘all States, including States non-members of the United Nations’. Paragraph 1 of SC Res 670 (1990), addressed to ‘all States’, refers to their ‘obligations’ under, inter alia, para 5 of the earlier resolution. Many provisions of the Iraq sanctions resolutions refer to ‘all States’, without special reference to non-members of the UN. As to compliance by Switzerland with sanctions against Southern Rhodesia and Iraq, see § 97, n 6.
1 See § 611.
The emergence of international organisations, particularly in the economic field, to which the member states have transferred certain competences for matters covered by existing treaties may have the effect that the other parties to the treaties find that, for those matters, they have to deal not with the member states which were parties to the treaty in question but with the organisation, which had thus in practice acquired much of the position usually flowing from accession. The position may be regularised by the organisation acceding to the treaty, if necessary following the amendment of its accession clause to allow for such accession; or the other parties may tacitly consent to the organisation fulfilling the role it has assumed; or the member states may continue to act as parties to the treaty, but as an internal matter between themselves adopt a uniform position as may be required by the organisation now possessing the relevant competences. The participation of the EEC in many multilateral treaties affords examples of practice in these matters. See, eg Case Nos 21-42/72, NV International Fruit Co v Produktschap voor Groenten en Fruit  ECR 1219, 1224–5 and Case 38/75 Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der invoerrechten en accijnzen  ECR 1439 (both as to the GATT).
2 See vol II of 7th ed of this work, § 9.
4 See § 667.
5 Eg, the US-Korea Utilities Claims Settlement Agreement 1958 (TS No 57 (1959)). And see UN Juridical YB (1975), pp 196–9. The Federal Republic of Germany was entitled to act on behalf of Berlin (which was an entity not forming part of the Federal Republic) in its international relations, including the conclusion of treaties: see § 48, n 35ff (and generally § 82 on the making of treaties on behalf of protected states). However, the conclusion of agreements on behalf of Germany by the Allied military authorities after the Second World War was a different matter, as in most cases the Allied authorities were acting as the governing authority of Germany. Upon the creation of the Federal Republic of Germany, these agreements remained valid as treaties of the Federal Republic. See the Convention on the Settlement of Matters Arising out of the War and the Occupation, 1952–54, ch 1, Art 2.2; and Bathurst and Simpson, Germany and the North Atlantic Community (1956), pp 82–9; Mann, BY, 23 (1946), p 354, and BY, 24 (1947), p 240; Simpson, BY, 35 (1058), p 374. See also § 626, n 4, as to treaties concluded by the EEC as such without the direct participation of the member states, but nevertheless binding on them; and § 626, n 3, para 3.