ABSTRACT
The Vienna Convention’s five articles dealing directly with treaties and third parties are narrowly drawn and limited in their application. Article 34 commences with a restatement of the classic pacta tertiis rule which underscores principles of sovereignty and equality. There is no concession to the various claimed exceptions, nor do the subsequent articles shed any light on possible inroads to the rule. ‘The principle enunciated in Article 34, namely that treaties did not have effects with respect to third states was thus absolute.’23 The decision not to enunciate any exceptions meant that there was also no attempt to provide a juridical basis for any such exceptions. After the uncompromising stance of Article 34, the following articles deal separately with the imposition of obligations upon third states and the bestowal of rights. The connecting factors are the intentions of the parties and third party assent, which reinforce a narrow, contractual view of treaties. Articles 35 and 36 assume that the parties’ intentions and the third party’s consent can be accurately determined, and will coincide. If they do not, no obligation can have been imposed, nor right bestowed. A distinction is drawn between rights and obligations for the purpose of the means of manifesting third party consent. A third party must expressly consent in writing to an obligation, but may impliedly consent to the acceptance of a right. However, as has been seen through the examination of many of the claims, rights and obligations cannot be treated as invariably distinct for they are often interrelated. Rights and obligations are interlocked in the formation of a bargain where all involved have duties to perform and expectations arising. Especially is
logical reason for according primacy to either concept; rather they should be treated together. The International Law Commission, and subsequently the Conference at Vienna, preferred a rigid construction of treaty law so as more easily to gain agreement on a text. The inflexibility is repeated in the subsequent Vienna Convention on International Organisations which, apart form the inclusion of international organisations as parties and third parties to treaties, adopts the same starting point. The narrowness of Articles 34-38 in both Conventions might give the impression that international law has receded from its earlier acceptance of exceptions to the general rule. In fact, a closer examination of both the Conventions, and of developments external to the law of treaties, demonstrates that this has not been the case. ... The effect of treaties on third parties cannot be determined merely by the formal application of specified rules of treaty law. Indeed, in some instances these rules are inadequate for the changing claims of both parties and non-parties. Instead third party claims must be analysed to determine their relevant factual context, the appropriate policies, and the applicable law. Certain exceptions to the pacta tertiis rule can be summarised as falling under the following heads: acquiescence in the conduct of parties and non-parties; application of a special principle of law outweighing the general third party rule; the existence of some situation that displaces the application of treaty law. There is a realisation that the pacta tertiis rule should not be applied inflexibly to produce inequity. While the pacta tertiis rule formally applies to all states and produces an appearance of equality, in fact it favours stronger states. Such states could conclude (and have concluded) agreements in their own interests which were presented as being to further overall community goals and, as such, binding on weaker states. A number of peace settlements and other territorial arrangements in the 19th and early 20th centuries can perhaps be categorised in this way. At the same time the rule could be cited against weaker powers. The manipulation of the pacta tertiis rule by stronger states and the recognition that one of the major exceptions to it worked primarily to their benefit, has perhaps led to a current tendency to ensure as many states as possible are included in a treaty relationship rather than having more powerful states in effect dictate settlements in the name of the public benefit. Sensitivity to the sovereignty of weaker states favours the inclusion of all interested parties in a treaty arrangement. An example is the package of treaties constituting the Afghanistan settlement.24 While the United States and the Soviet Union were parties to the arrangement through the Agreement on the Interrelationships for the Settlement of the Situation relating to Afghanistan, so too were Afghanistan and Pakistan. The settlement was not limited to the superpowers and imposed upon the others. The same is true of the Cambodia peace settlement. Devices to include as many parties as possible are also seen in widely phrased accession clauses, and in the use of Protocols allowing for adherence or accession. While presenting problems of juridical analysis, the aim is to provide certainty and stability by including interested or essential (state) participants in the treaty scheme. it may be that traditional treaty analysis which divides states into parties
frustrated by the technicalities of international law. The mechanisms described above operate on the assumption of the pacta tertiis rule and use it to create interlocking treaty relationships. On the other hand this process disadvantages weaker states where stronger states refuse to accept the invitation to join a treaty regime. There is another development which impacts in the opposite way. There has been a growing use of less formal ways of creating international obligations, primarily through collective actions of international organisations as expressed through their resolutions. Although the formal position remains that General Assembly resolutions are not binding, it is now widely accepted that legitimate expectations as to future behaviour may be engendered by them, which only an unwise or excessively formalistic decisionmaker would ignore. The pacta tertiis rule has become less relevant with this change: if even those voting in favour of a resolution are not formally bound by it, then ‘third’ parties are that much further removed form any commitments. However, in a practical sense, it may be very difficult for those states which abstained or dissented form a resolution (third parties) to remain aloof from its consequences. Developing states have favoured the passing of resolutions expressing their interests through their voting majority in the General Assembly and support claims as to their normative effect. Thus there may be a claim that the principles enunciated in General Assembly resolutions relating to the existence of a common heritage of peoples have become opposable even to third parties to a treaty in which the concept is incorporated, for example, the United Nations Convention on the Law of the Sea. Subsequent state conduct and acquiescence may once again play a decisive role in determining obligations flowing from General Assembly resolutions. In considering the current status of the pacta tertiis rule exclusive consideration of treaty-making processes distorts the current international prescriptive process. There are instrumentalities for change and development of international law which may not satisfy rigorous application of the traditional criteria for determining normative effect, and which consequently cause juridical inconsistency, but which cannot be disregarded. Any analysis of the classic third party rule is inevitably entwined with this change in the prescriptive process.25
