Pacta Tertiis Nec Nocent Nec Prosunt
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This article has been written by Deyasini Chakrabarti from KIIT School of Law, Odisha. This article mostly talks about the principle of Pacta Tertiis Nec Nocent Nec Prosunt and various exceptions related to it along with a few cases.

Introduction

The very word society is the mixture of two words that are ‘socius’ and ‘logos’ which means ‘the science of society’. Thus, Auguste Comte, commonly known as the ‘Father of Sociology’ had defined sociology as the “Queen of all the sciences” as it is dealing with the most unpredictable subjects that are human beings, therefore it deals with the basics of all sciences and as a result occupies the top position at the hierarchy of sciences. Hence, the science of society could be deducted as positivist in nature as it is based on observation, experiments, comparisons, and conclusions. Thus, a society comprises individuals, business, economy, trust, finance, politics and lastly power. Therefore the foundation of society is the contract and when the parties agree to the agreement it becomes a binding contract on the parties only and not to some other third party, thus giving rise to the concept of Pacta Tertiis Nec Nocent Nec Prosunt”.

Meaning and explanation: Pacta Tertiis Nec Nocent Nec Prosunt

The phrase “Pacta Tertiis Nec Nocent Nec Prosunt” is a Latin usage of words which means that a treaty binds the parties and only the parties. Thus, it states that the binding power of a treaty is limited only to the consenting party. Such a treaty that is binding only upon the consenting parties does not create either obligations or rights for third parties with/without their consent.This concept has also been highlighted under Article 34 of the Vienna Convention of the Law Of Treaties 1969. Thus the duties and rights are only enforceable between the contracting parties and there could be no imposition or implementation of these pre-decided rights and duties on the third parties. Therefore, the contracting parties should only remain concerned about their terms and conditions and no third party should interfere in it. Thus, it can be interpreted that the above mentioned maxim strictly follows the policy of non-interference on the third parties or any outsiders until their consent comes to the play.

Exception to the above maxim 

The treaties are to be meant only for the contracting parties, however, there is an exception to it. The Vienna Convention on The Law of Treaties 1969 also provides for a few exceptions. For example, when a car is sold from the seller to the buyer, the right which arises is not only the right in personam (i.e. a personal right attached to a specific person) but at the same time, the owner of the car also has the right to drive the car safely after following and obeying all the traffic rules, thus it is also giving rise to right in rem (i.e the right available against the entire world). Similarly, when a person develops a new scientific invention, at that time it is the duty of the society not to steal his ideas, rather encourage him in the field of research and development, and that’s why the concept of the patent had developed world wide now for creations involving scientific inventions. Thus, there is always a right and duty towards society as a whole. The exceptions in this regard are namely Article 35, 36, 37 and 38 of the Vienna Convention on the Law of Treaties, 1969.

Article 35

  • Article 35 of the said convention states about the treaties providing for obligations on the third parties. An obligation emerges for a third State from an arrangement of a treaty if the parties to the treaty intend to accept those arrangements or provisions of the treaty as an instrument to establish the obligation on the third party.
  • Provided that the third party also explicitly acknowledges the obligation which would further be intimated in writing to the initial two consenting parties. 
  •  Thus when the third party is mindfully accepting the said terms and conditions in writing of an agreement entered into by the other two consenting parties, then it automatically puts an obligation on itself even when it is not the part of the consenting parties.

Article 36

  • Article 36 of the Vienna Convention on The Law of Treaties 1969 is also an exception to Pacta Tertiis Nec Nocent Nec Prosunt. Article 36 talks about the treaties which also provide rights to third parties.
  • It highlights on the fact that a privilege emerges for a third State from an arrangement of a settlement if the parties to the treaty expect the arrangement to accord that privilege either to the third State, or to a group of States to which it belongs, or to all States, and if the third State consents thereto.
  • However, the third parties approval will be assumed as long as contrary or clashing intention arises, except if the treaty in any case provides otherwise.It further adds that a State practising a right which is in accordance with paragraph 1 of Article 36 of the said convention, should conform to the conditions for its activity accommodated in the treaty or set up in conformity with the arrangement.

Article 37

  • Article 37 of the Vienna Convention on The Law of Treaties is also being regarded as an exception to Pacta Tertiis Nec Nocent Nec Prosunt. Article 37 focuses on denial or alteration of commitments or rights of third parties.
  • It states that at the point when a commitment has emerged for a third State in congruity with Article 35, the commitment may be disavowed or adjusted distinctly with the assent of the consenting parties to the settlement and of the third party, except if it is built up that they had in any case otherwise agreed.
  • Thus, an obligation could be modified by the consenting parties along with the third party if they agree to do so unless it was otherwise agreed to act contrary. However, in the case of revocation or modification of rights, the idea is not so liberal. It states that at the point when a right has emerged for a third State in similarity with Article 36, the privilege may not be repudiated or changed by the parties in the event that it is built up that the right was proposed not to be revocable or subject to alteration without the assent of the third State.
  • Therefore, it highlights on the fact of equal protection of rights and obligations of the two initial consenting parties as well as the third party.Thus if a third party is being involved in a treaty then its consent, its obligation, its rights, everything matters, as a result of which it cannot be terminated and modified as per the whims and fancies of the consenting parties. In other words, we can say that Article 37 is protecting the rights and obligations of the third parties arising out of the treaty entered into by the consenting parties.

Article 38

  • Article 38 is also considered as an important exception to the concept that the treaty is binding only to the consenting parties but not the third party. It states the rules in the treaty which becomes binding on the third party through international customs. It states that nothing in Articles 34 to 37 prevents a standard set out in a treaty from getting authoritative upon a third State as a customary rule of international law, perceived thus. 
  • Therefore, it highlights the importance of the traditional practices or the established unseen norms of the society that are meant to be followed even though they had not been written down anywhere.

Third Party’s Involvement Due To Humanitarian Intervention

Thus, it brings back the memory down the history lane of the India Pakistan War of 1971 when Pakistan was divided into West Pakistan (which was dominated mostly by the Urdu speaking Punjabi elites) and East Pakistan (which was mostly dominated by the Bengali elites). In December 1970, when Pakistan held free and fair elections in both its wings, a crisis situation was created as a result. The Bengalis of East Pakistan voted for a moderate Bengali nationalist party, the Awami League, which won the majority and assumed responsibility for the two wings of the nation. General Agha Muhammad Yahya Khan, the military tyrant and the President of Pakistan went into constitutional negotiations, which drove the situation to a political stalemate. Therefore the only solution which could be found out by General Yahya Khan was to launch a devastating military crackdown on the Bengalis across East Pakistan. Thus, the process of torturing and massacring the Bengalis of East Pakistan began, which led to hundreds and thousands of deaths, and some ten million refugees fled into neighboring India. The then Indian Prime Minister, Indira Gandhi decided to intervene and protect the people of East Pakistan which gradually led to the formation of Bangladesh.

Therefore with this incident, though there was no sort of treaty involved; nevertheless it could be highlighted that initially the war or aggression started between East Pakistan and West Pakistan and India was nowhere a party to it. However, on humanitarian grounds, India brought a right and an obligation on itself just to protect the people at large. Thus it is not always necessary that one has to be a part of any incident or event, rather sometimes through some circumstances or situations, the third party plays a greater role on the grounds of humanity, thus leading us to the concept of humanitarian intervention.

Cases Related to the Maxim Of Pacta Tertiis Nec Nocent Nec Prosunt

North Sea Continental Shelf Case

The statute of the North Sea Continental Shelf Cases sets out the double prerequisite for the development of International law i.e the State practice (the objective component) and opinio Juris (the subjective component).

Facts of the case

Netherlands and Denmark had drawn partial boundary lines dependent on the equidistance principle. A concurrence on further prolongation of the limit demonstrated troublesome in light of the fact that Denmark and Netherlands needed this prolongation to occur depending on the equidistance standard whereas Germany was of the view that, together, these two limits would create an unjust outcome for her. Germany expressed that because of its sunken coastline, such a line would bring about her losing out on a lot of the continental shelf dependent on proportionality to the length of its North Sea coastline. The Court needed to choose the principles and rules of worldwide law relevant to this delimitation. In doing as such, the Court needed to choose if the principles embraced by the parties were binding on the parties either through treaty law or customary international law.

Question of law

Regardless of whether Germany was under a legal obligation to acknowledge the equidistance-extraordinary conditions principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international rule or as based on the Geneva Convention?

The decision of the court

The Hon’ble court held that the utilization of the equidistance technique had not crystallized into customary law and the strategy was not mandatory as well as obligatory for the delimitation of the regions in the North Sea, as the Republic of Germany didn’t ratify the Convention, was identified with the present proceedings.

Relevant Findings of the Court

  • The Court dismissed the principal contention. It said that only a ‘very consistent extremely predictable course of conduct with respect to a State would permit the Court to assume that the State had some way or another become bound by an arrangement (by a method other than in the proper way, for example: endorsement) when the State was ‘capable and qualified for’ acknowledging the duties in a proper way. The Court held that Germany had not unilaterally assumed commitment under the Convention. The Court likewise considered the way that regardless that even if Germany had ratified the treaty she had the alternative of going into a reservation on Article 6, after which that specific Article would never again be appropriate to Germany (in other words if one were to expect that Germany assumed to become a party to the Convention, it doesn’t interpret that it would have additionally attempted those commitments contained in Article 6).
  • The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into power in 1980, talks about in more detail about arrangement commitments of third States (those States who are not gatherings to the bargain). It plainly stipulates that commitments emerge for third States from an arrangement of a settlement just if (1) the genuine parties to the treaty expected the arrangement to make commitments for third States, and (2) third State explicitly acknowledge those commitments or obligations recorded in writing (Article 35 of the VCLT). The VCLT was not in power when the Court pondered on this case.
  • The Court held that the nearness of a condition of estoppel (which could be defined as a position that prevents someone from asserting realities that are in opposition to past cases or activities) has allowed Article 6 to get authoritative on Germany – in any case, the Court held that Germany’s action didn’t bolster a conflict for estoppel. The Court moreover held that the unimportant truth that Germany probably won’t have unequivocally fought the equidistance standard as contained in Article 6, isn’t sufficient to communicate that the guideline is as of now definitive upon it.

Therefore it was upheld that Germany had not acted in any manner that would incur certain restrictive rights and obligations on her. Thus the equidistance special circumstances rule was not binding on Germany in any way.

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Convention on the Prevention and Punishment of the Crime of Genocide

What is Genocide?

Genocide, in simple terms means mass killing. If we want to think about the root cause of genocide, then it will always remain an unanswered question. A single thing that may be simple and normal to a single individual may be skeptical, pessimistic and complicated to another individual. Thus, we can also say that Hitler was biased, prejudicial and stigmatized towards the Jews, as a result, he found the solution to it that was commitiing genocide against the Jews. If one would like to see about the psychological thought process of Hitler then it would prima facie showcase Hitler’s psychic, xenophobic and biased attitude towards a particular group, community or people, and through this,we may conclude the root cause for the act of genocide. History has shown us a number of genocide cases such as Bosnia and Herzegovina v Serbia and Montenegro, and therefore the history continues. Thus the Convention gives a statutory basis to the crimes of genocide which affects the society at large.

Article 1 of the Convention defines Genocide as slaughtering individuals from a particular group, causing genuine real or mental damage to individuals from the gathering, deliberately incurring on the group states of life determined to realize its physical demolition in entire or to a limited extent; imposing estimates proposed to forestall births inside the gathering, forcibly moving offspring of the group to another group.

The case of Bosnia & Herzegovina v. Serbia & Montenegro

The war was an effect of the separation of Yugoslavia. Following the Slovenian and Croatian severances from the Socialist Federal Republic of Yugoslavia in 1991, the multi-ethnic Socialist Republic of Bosnia and Herzegovina–which was possessed by primarily Muslim Bosniaks (44 percent), Orthodox Serbs (32.5 percent) and Catholic Croats (17 percent)– passed a submission for freedom on 29 February 1992. This was dismissed by the political delegates of the Bosnian Serbs, who had boycotted the submission.

Following Bosnia and Herzegovina’s affirmation of autonomy (which increased worldwide acknowledgment) and following the withdrawal of Alija Izetbegović from the recently marked Cutileiro Plan (which proposed a division of Bosnia into ethnic cantons), the Bosnian Serbs, driven by Radovan Karadžić and bolstered by the Serbian legislature of Slobodan Milošević and the Yugoslav People’s Army (JNA), prepared their power inside Bosnia and Herzegovina so as to verify ethnic Serb domain, at that point the war before long spread over the nation, joined by ethnic cleansing. 

The contention was at first between the Yugoslav Army units in Bosnia which later changed into the Army of Republika Srpska (VRS) on the one side, and the Army of the Republic of Bosnia and Herzegovina (ARBiH) which was to a great extent made out of Bosniaks, and the Croat powers in the Croatian Defense Council (HVO) on the opposite side. Strains among Croats and Bosniaks expanded all throughout late 1992, bringing about the Croat–Bosniak War that started from 1992. The Bosnian War was described by harsh battles, aimless shelling of urban communities and towns, ethnic purifying and deliberate mass assault, for the most part executed by Serbs,and to a lesser degree, Croat and Bosniak powers. Events like the Siege of Sarajevo and the Srebrenica slaughter later got notorious for the contention. 

The Serbs, albeit at first militarily better due to the weapons and assets given by the JNA, inevitably lost force as the Bosniaks and Croats aligned themselves against the Republika Srpska in 1994 with the production of the Federation of Bosnia and Herzegovina following Washington’s understanding. Pakistan opposed the UN’s restriction on the supply of arms and transported rockets to the Bosnian Muslims, while after the Srebrenica and Markale slaughters, NATO interceded in 1995 with Operation Deliberate Force focusing on the positions of the Army of the Republika Srpska, which was the key element in consummating the war. The war was finished after the marking of the General Framework Agreement for Peace in Bosnia and Herzegovina in Paris on 14 December 1995. Harmony dealings were held in Dayton, Ohio and were finished on 21 November 1995. 

Thus prevention of Genocide is a part of the Customary International law which has to be followed by the parties even if they are not specifically mentioning about their consent. Thus in my opinion it could be drawn as an exception to the maxim of pacta tertiis nec nocent nec prosunt. Thus genocide is not just being defined under the said convention but is also being defined under the Statute of the International Criminal Tribunal for Former Yugoslavia and many other statutes as well.

Thus this doesn’t provide an option for consent under the domestic law. Therefore as per the domestic law one has to follow the established municipal rules of the state. However in the international forum it gives the option of consent in it in the form of reservation. Therefore Genocide, being an inhuman and brutal crime which is being committed upon the society as a whole needs to be stopped regardless the concept of consent to it. 

Implication to the Reservations under the Convention on Prevention and Punishment of Genocide on the Genocide case

Fundamentally, the Convention sets upon State Parties the pledge to take measures to forestall and to punish the wrongdoing of genocide, including by building up important provisions and punishing the guilty parties. That commitment, despite the restriction not to commit genocide, had been considered as an untold principle of International Customary law; subsequently, it becomes binding on all States, paying little heed to the reality of whether they have approved the Genocide Convention or not.

What is a reservation under the Vienna Convention on the Law of Treaties?

As per Article 2(1)(d) of the Vienna Convention on the Law of Treaties 1969, “reservation” signifies a one-sided articulation, anyway expressed or named, made by a State, when marking, endorsing, tolerating, favoring or consenting to a treaty, whereby it implies to prohibit or to alter the legitimate impact of certain provisions of the treaty in their application to that State.

Hence when a State is satisfied with the majority terms of the treaty but is not happy about a few of the terms then in certain cases, the State may refuse to accept or be bound by the provision, while agreeing to the rest of the agreement.Thus the capacity to make reservation to an international treaty illustrates the principle of sovereignty.

  • Thus, the general rule that became a universal standard is that the reservation could only be made with the consent of all the states who are involved in the treaty as a party. This was done to preserve the the unity of approach so as to ensure the fulfillment of the objective of the international agreement and also to minimize the diversion from the text of the treaty.
  • The effect of it was that the State making a reservation had to obtain the consent of all the States. If the consent was not being given, then it would have to become a party to the original treaty or would not become a party at all. 
  • However this watertight approach to the reservation was not agreed by the International Court of Justice in the Reservation to the Convention of the Genocide case. 

The US had put a reservation on the Convention on the Prevention and Punishment of the Crime of Genocide 1986, while ratifying the Convention. Thus if a party has put a reservation to any particular provision then it is not bound by it because it has not given its consent,therefore no obligation arises without the consent of the parties, hence it draws the link with the concept of Pacta tertiis Nec Nocent Nec Prosunt.

As per the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,in November 1950, the General Assembly asked the Court a progression of inquiries with regards to the situation of a State which connected reservations to its mark of the multilateral Convention on Genocide if different States, signatories of a similar Convention, protested these reservations. The Court considered, as it would in its Advisory Opinion of 28 May 1951, that, even if the Convention had no Article on the subject of reservation it didn’t follow that the reservations were restricted. The Court didn’t highlight the principle of integrity of the convention but pointed out to a variety of such specific or special circumstances with regard to the genocide convention. Such circumstances therefore included the universal character of the UN under whose guidance the convention had been concluded and the extensive participation that had happened under the convention as well. 

The inquiries which were enquired into are as per the following:

  1. The reserving State be considered as a party to the Convention while as yet keeping up its reservation if the reservation is protested by at least one of the parties to the Convention, however not by others?
  2. In the event that the response to Question I is in the positive, what is the impact of the reservation as between the reserving State and: (a) The parties which object to the reservation? (b) Those who acknowledge it?
  3. What might be the legitimate impact as regards the response to Question I if an issue with a reservation is made: (a) By a signatory which has not yet sanctioned the reservation? (b) By a State qualified for a sign or acquiesce however which has not been yet done as such?

Therefore the Court held:

That a State which has made and kept up a reservation which has been protested by at least one or more parties to the Convention, however not by others, can be viewed just as involved with the Convention if the reservation is perfect with the purpose and object behind the Convention.

However in the Court’s opinion, the Court also gives liberty to the individual states to check the compatibility of the reservation as per their own individual determination. If a party to a Convention objects to the reservation then it may consider the reserving state as not being a party to the Convention. 

The 1969 Convention on The Law of Treaties also accepts the Court’s views and therefore provides statutory provisions for it namely,

  • Article 19 of the said Convention states that reservations might be made when signing, confirming, approving, affirming or consenting to a treaty, however, they can’t be made where the reservation is denied by the treaty, or where the agreement or treaty gives that specific reservations might be made and these do exclude the reservation being referred to, or where the reservation is not consistent with the purpose and reason for the treaty.
  • Consent plays an important role under Article 20(2) of the said Convention. However, Article 20(4) shows the general guidelines to be followed with respect to treaties not within the scope of Article 20(2) and not constituent instruments of international organisation. These are that: 

(a) acknowledgment by another contracting condition of a reservation comprises the reserving state involved with the treaty as a party according to that other state if or at the point when the treaty is in power for those states; 

(b) an objection by another contracting state to a reservation doesn’t prevent an entry into the power of the treaty as between the protesting and reserving states unless the contrary opinion is certainly communicated by the objecting state;

(c) a demonstration communicating a state’s consent to be bound by the treaty and containing a reservation is viable when in any event one other contracting state has acknowledged the reservation.

  • Article 21 states that a reservation established in respect of the other party modifies for reserving state in relation with the other party, to the extent to which the reservation had been made. Article 21(3), however provides that when a state objects to the reservation but not the entry of the treaty into force then the provision to which the reservation relates between itself and the reserving party doesn’t apply to the extent of reservation. 

Therefore the Court’s Approach although is having some disadvantages but its objective was to increase the acceptance capacity and the scope of the treaties. 

Conclusion

Rights and duties are therefore supplementary and complementary to each other. The maxim Pacta Tertiis Nec Nocent Nec Prosunt though only makes the consenting parties binding to it, but not the third parties, however, in some cases we find the third party also becomes a part of the agreement entered into by the consenting parties. A treaty cannot create rights or obligations on third parties without its consent. Thus exceptions are always there, which are broadly mentioned under article 35, 36,37 and 38 of the Vienna Convention on The Law of Treaties. The objective of the formation of all the peace governing organizations and treaties is to provide a coordinating, smooth, negotiable environment among all the nations for the well-being of the society at large. Therefore a treaty though binding between the contracting consenting parties may it sometimes also creates an obligation, responsibility, and duty towards the society as a whole.


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