TREATIES AND THIRD STATES by MAHEK UPADHAYAY@LexCliq

The general rule is that international agreements bind only the parties to them. This customary international law principle has been expressed in a Latin maxim known as pacta tertis nec nocent nec prosunt, This doctrine is supposed by the state and judicial practice and is incorporated in Article 34 of the convention which echoes the general rule in specifying that ‘a treaty does not create either obligations or rights for a third without its consent’. It is quite clear that a treaty cannot impose obligations upon third states and this was emphasized by the international law commission during its deliberations prior to the veinna conferences and convention.

EXCEPTIONS TO THIS GENERAL RULE

the rule that treaties cannot validly impose obligations upon third states follows clearly from the sovereignty of states. However, as international society has become a more integrated community, a departure from the accepted principle has become unavoidable. a treaty may create rights and obligations to a third state is certain cases. They are as follows:

  1. Where a Treaty provides for obligations for third states: a treaty may impose obligation on a sate which is not a party to a treaty if it accepts the obligation in writing. Article 35 of the Vienna Convention lays down that if an obligation is imposed for a third state from a provision of a treaty, the third state may expressly accept the obligation in writing. By accepting the obligation, the third state is deemed to have considered itself bound by the provisions of the treaty.
  2. Where a Treaty provides rights for Third States: As far as rights allocated to third states by a treaty are concerned, the matter is a little bit different.. If a right is given to a third state from a provision of a treaty, the third state may give its assent thereto according to article 36 of the vienna convention. Unlike obligation, the acceptance of the right by a third-party is not conditional upon any specific act or the conclusion of a collateral agreement between it and the partied to the treaty. Further any right so created, which has been claimed and enjoyed by the third parties cannot be revoked or modified without their consent, when it is established that the right was intended not to be revocable or subject to modification. For an obligation to be imposed by a treaty upon a third state, the express agreement of that state in writing is required, whereas in the case of benefits granted to third states, their consent is presumed in the absence of contrary intention.
  3. When a Treaty creates International Custom: A treaty may be binding on a third state even if it has not accepted in writing the obligations provided in a treaty, if a treaty creates customary rule of International Law in accordance with the provision of Article 38 of the Vienna Convention. The above provision may mean that the maintenance of international peace and security is a customary rule of international Law, and the obligations not to endanger international peace and security shall be binding upon third states which are not parties to the UN. If they fail to accept this obligation, the UN may take action against a non-member under Chapter VII of the charter.

 

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