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
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