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Senin, 13 Februari 2012

THE LEGAL STATUS OF THIRD STATES ACCORDING TO 1969 VIENNA CONVENTION ON THE LAW OF TREATY


CHAPTER I
INTRODUCTION
A.          BACKGROUND
In todays world, cooperation among states is one thing that cannot be avoided. Kind of lifes in the world has become complex and potent to raise many problems. To avoid all of these problems, of course the international society has to have a rule or norm. This rule’s purpose not only to avoid the problems but also to keep the peace regarding relationship among states. Realization of this cooperation will be applied in a treaty.
Treaty is a significant thing in a state relationship so it is one of sources of international law. It is caused of various international society practices use a treaty to control their business and maintain the relation among them. So, clearly the role of treaty is very important.
International society then look that they need to have a law according to this. It is thought that they will have a reference and orientation if they want to make a relation or agreement with other countries. There are some international law codification relate to treaty, but the most important instrument is 1969 Vienna Convention on the Law of Treaties because it regulate specificly about the general principle of international law of treaty.
One of significant things is the provisions of the 1969 Vienna Convention in relation to treaties and third states. The relevant provisions in regard to third states specifically consist in Chapter III Section 4 entitled “ Treaties and Third States” Articles 34 – 38.

B.           PROBLEMS IDENTIFICATION
Based on the background which was mentioned above this mini research paper will elaborate:
·         What is meant by a third state in the 1969 Vienna Convention on the Law of Treaties?
·         What are the provisions in regard of third state which are mentioned in the 1969 Vienna Convention on the Law of Treaties?




CHAPTER II
THEORITICAL BASIS

A.          The Definition of Third States
The provisions which closely relate to definition of third state are contained in Article 2 para. 1 1969 Vienna Convention, namely:
·           third State means a State not a party to the treaty” (subpara. h)
·          party means a State which has consented to be bound by the treaty and for which the treaty is in force” (subpara. g)
·         contracting State means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force” (subpara. f)
·         negotiating State means a State which took part in the drawing up and adoption of the text of the treaty” (subpara. e)
The above definitions, relate to two different situations: one concerns the status of a state has espressed its concern to be bound and for which the treaty has come in force (“party” to a treaty) and the second covers the situation in which a treaty is not yet in force for a state (“contracting” and “negotiating” states). Under this provision a state in relation to which a treaty is not yet in force is a third state.[1]

B.           The Provisions of 1969 Vienna Convention in Relation to Third States
The determination relating to third state is mentioned explicitly in Article 34 – 38 1969 Vienna Convention. The significant principle is regulated in Article 34 that a treaty does not create either obligations or rights for a third state without its consent. The Conventions distribute separately with obligations (Article 35) and rights (Article 36). Article 37 regulates about the revocation or modification of obligations or rights of third states. Lastly, Article 38 sets about the rules in a treaty becoming binding on third states through international custom.
Article 34 which is the general rule of third states mentions that there are no obligations or rights which may be imposed to third states without its consent. This Article clearly follows the rome statute principle “Pacta Tertiis Nec Nocent Nec Prosunt” meaning that a treaty does not give any obligations or rights to third states.
Article 35 “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing”. According to this article, two conditions must be satisfied before a state can be bound by an obligation arising from a provision in a treaty to which it is not a party:
·         First, the parties must intend the provision to be the means of establishing the obligation of third state;
·         Secondly, the third state must have expressly accepted the obligation in writing.
Conduct consistent with acceptance of the obligation will not, of itself, bind the third state. And, even when a third state has accepted an obligation in a treaty, it does not become a party to the treaty.[2]
Article 36 : “Treaties providing for rights for third States”
(1). A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.
(2). A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.
There is nothing in international law which prevents two or more states creating by treaty a right in favour of third state. An intention to create only a benefit (such as an agreement between the parties to restrict noxious emissions which will, as a matter of fact, also benefit a third state) does not confer any right on the third state. Whether states have created a right for a third state depends on their intention.[3]
Article 37: (1) When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. (2) When a right has arisen for a third State in conformity with article 36, the 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.
The initiative for revocation may come from the third state, in which case the consent of the parties of the treaty is necessary; but if they wish to renounce their right to call for the performance by the third state of the obligation, the consent of the third state would be a formality.[4] On the other hand, the third state’s obligations may involve a complex relationship with the parties to the treaty, and possibly involve also the rights of the third states. It is therefore desirable that any change in the obligations should be by mutual consent. However, the provision of Article 37 relates to O’Connel statement: Once obligations or rights have occurred they can only be revoked or modified with the consent of all state concerned.”[5]
Article 38 Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such”. A treaty may formulate a rule or establish a regime which later becomes generally accepted by states which are not parties to the treaty.[6] The provision of this article will be applied when a treaty become binding on third states through the workings of customary rule of international law. According to Article 38 (1)  ICJ statute what is meant by international custom:  international custom, as evidence of general practice accepted as law.”




CHAPTER II
ANALYSING DATA

According to the definition of third states mentioned above, there is an obvious meaning of third states, third state is a State not a party to a treaty. So we can assume that third state means a state which only do contract and negotiate in a treaty when the treaty not yet in force.
If we analyze the manner of formulation of art. 34, indicates that it is drafted in less absolute terms; it means that a treaty does not create rights and obligations for a third state without it consent. So, we can say that a treaty may create rights and obligations for a third states but under condition of the consent of the third state.
The purpose of the provisions of Article 35 and 36 is to protect the third states from a wrong obligation which is stated by the parties of a treaty to it and in relation to rights the convention also prevent the party of the treaty from the possibility of third states desirability that  want a huge right, indeed the right of third states more than the right of the parties. Therefore, the convention regulates clearly about it to avoid any kind of problems that may raise.
As to the creation of an obligation for a third state, the International Law Commission esplained that two conditions must be fulfilled before a non-party can be considered to be bound by a provision of a treaty to which it is not a party: first, the parties to the treaty must have had intended the provision in question to be the means establishing an obligation for a state not a party to the treaty; and secondly, the third state must have espressly agreed to be bound by the obligation in writing.[7]
Article 37 (1) mentions explicitly about the modification of a treaty imposing a third state with some obligations, has to be consented on both sides ( third parties and parties of the treaty). It is clear that if one side do not assent to modify the treaty, the modification or revocation of that treaty is illegal. Furthermore, Article 37 (2) regulates differently that modification in relation to a rights is illegal without third states agreement.
Article 38 regulates about rights or obligations of third states in diffirent way. This article means that in an international law not only a treaty has a significant role, but also an international custom has such role in making a rule and norm of international law.

CHAPTER IV
CONCLUSION

The definition of the third state according to 1969 Vienna Convention that can be concluded is a state not a party to a treaty and a state which want to be a party of a treaty ( contracting state or negotiating state).
Even not a party to the treaty, third states still have rights and obligations which are provided by the convention in order to make a balance between third states and the party to treaty. In relation to this, the third state must have expressly accepted the obligation in writing.
The Convention still consider about the interest of both side ( third states and party to treaty) which provides the regulation in relation to modification or revocation of obligations and rights relating to both sides.






BIBLIOGRAPHY

·         1969 Vienna Convention on the Law of Treaty
·         Malgosia Fitzmaurice, “Third States and Treaties”, 2002
·         Anthony Aust, Modern Treaty Law and Practice, Second Edition, Cambridge University Press, 2007
·         D.P. O’Conell, International Law, Vol.1, Stevens and Sons, London, 1970


[1]Malgosia Fitzmaurice, “Third States and Treaties”, 2002, p. 40
[2] Anthony Aust, Modern Treaty Law and Practice, Second Edition, Cambridge University Press, 2007, p.256.
[3] ibid.
[4] Ibid, p.259
[5] D.P. O’Conell, International Law, Vol.1, Stevens and Sons, London, 1970, p. 246
[6] Anthony Aust, op.cit, p.260
[7] Malgosia Fitzmaurice, op.cit, p. 46-47

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