Chapter VI: Third States
The issue of treaties and third States is regulated in articles 34 to 38, VCLT, 1969. A ‘third State’ is a State not being a party to the treaty. Article 2, § 1(g) of the VCLT defines a ‘party’ to the treaty as a State which has consented to be bound by the treaty, notably by ratification or accession. Thus, a contrario, negotiating or contracting States, in particular signatory States, are third States for the purposes of article 34ff. However, the signatory State has a special status with regard to the treaty. It incurs certain obligations, by which non-signatory third States are not burdened. This is true, in particular, with regard to article 18 VCLT 1969. The main principle for the status of third States is set out in article 34 of the VCLT: ‘A treaty does not create either obligations or rights for a third State without its consent.’ Legal science knows the categories ‘relative’ and ‘absolute’ rights. The first are mainly contractual rights: a subject has a subjective right to performance only against one or some other subjects bound by the agreement. The second ones are, for example, property rights: a subject has a claim against all other subjects whatsoever that they do not interfere with its property. Treaties are squarely in the realm of relative rights: hence the rule pacta tertiis nec nocent nec prosunt. From the standpoint of the third State the rule is pacta tertiis sunt res inter alios acta.
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