Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Chapter 8: The personal dimension: Challenges to the pacta tertiis rule
The maxim pacta tertiis nec nocent nec prosunt (agreements neither harm nor benefit third parties) concerns the legal effects produced by treaties in relation to States that are not party to them. From the perspective of a (‘third’) State that has not expressed its consent to be bound by its terms, a treaty constitutes res inter alios acta. As such, the pacta tertiis rule, which as the Permanent Court of International Justice (PCIJ) stated in 1923 stems from the operation of the principle of sovereign equality of States, may be described as a negative formulation of the principle of pacta sunt servanda. Historically, the pacta tertiis rule has its roots in the Roman law of contract. Notwithstanding several attempts by the Great Powers (Austria-Hungary, France, Great Britain, Prussia and Russia) to create ‘objective law’ (in other words, law binding on third States) on several occasions following the Congress of Vienna in 1815, the pacta tertiis rule has never been called into question generally. During the work of the International Law Commission (ILC) on the law of treaties, the effects of treaties on ‘third’ States were comprehensively dealt with by Special Rapporteurs Fitzmaurice and Waldock. Settled jurisprudence on the matter prompted Special Rapporteur Fitzmaurice to state that the principles pacta tertiis nec nocent nec prosunt and res inter alios acta ‘are so fundamental, self-evident and well-known, that they do not really require the citation of much authority in their support’. Ultimately, the pacta tertiis rule was adopted as Art.
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