Pacta Tertis Nec Nocent Nec Prosunt
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This Blog is written by Asmita Arora from Guru Nanak Dev University, Amritsar. Edited by Prakriti Dadsena.
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INTRODUCTION
In the world of conflicts and disputes, there is an urgent and necessary requirement for forming contracts between two parties to avoid future conflicts. Also, we need to cease the involvement of third parties in the two parties’ contracts otherwise it leads to the same situation of distress between the parties. Agreements or treaties just not the concept of individuals but it is the concept of nations too. Earlier at the times of philosophers i.e. Hobbes, Locke, Rousseau, and Immanuel, the concept of the social contract came into existence, where the central idea was to maintain harmony between the king and the people of his empire. Therefore, the foundation of society is the contract. And whenever consensual parties agree to the agreement, it has a binding effect on them and not to some other party, thus giving rise to the concept of “Pacta Tertis NEC Nocent NEC Prosunt.” This maxim is significant not only in the national laws but also in international laws.
MEANING
The maxim “Pacta Tertis NEC Nocent NEC Prosunt” is a Latin phrase which states that a treaty binds the parties and only the parties; it does not create obligations for a third state. In other words, treaties or agreements have a binding effect on consenting parties to the agreement. Such a treaty that is binding only on the consenting parties does not create any obligations for the third parties. Likewise, in accordance with the Indian Contract Act, 1872, there is a binding effect on the consenting parties to the legal contract and not the others. This theory is a basic rule of customary international law. This idea is enshrined in Article 34 of the Vienna Convention of the Law of Treaties 1969 which states “A treaty does not create either obligations or rights for a third State without its consent.” The principle of not imposing obligations upon a third party can be traced to the Roman Private Law of Contract which provided that “Pacta non obligant nisi gentes inter quasi initia”. For States other than the parties, a treaty is “res inter alios acta, quae tertio nec prodest nec nocei.” Publicists have not been accepted this principle unanimously but supported continuous practice. The theory of not imposing obligations on third parties can be traced in the modern municipal law of contracts of different countries such as UK, the US, France, the Netherlands, Belgium, Italy, and Germany.
EXCEPTIONS
The principle of consent of third states of the applicability of obligation and right against third states is related to the varied principle of international law namely sovereignty, equality and non-interference. The exceptions are enumerated in Vienna Convention of the Law of Treaties 1969:
• Article 35 states “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.” Under this article, the obligation shall be imposed on third parties under two conditions:
– The states parties to the treaties intended to establish the obligation for a state.
– The third-party agree to be bound by it. In this way, obligation and rights arise to third parties.
• Article 36e. Treaties providing for rights for third States:
-“ 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.
– 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.” This article is also an exception to the maxim Pacta Tertis NEC Nocent NEC Prosunt.
• Article 37e Revocation or modification of obligations or rights of third States:
-“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.
– 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.”
• Article 38e. Rules in a treaty becoming binding on third States through international custom states: “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.” This article also considered to be vital exception of the respected maxim.”
CASE ANALYSIS
In the case of Union of India and Anr v. Azadi Bachao Andolan and Anr, it was stated that the power of entering into a treaty is an inherent part of the sovereign power of the State. By article 73, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which the Parliament has the power to make laws. The Executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaty incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals. The power to legislate in respect of treaties lays with the Parliament under entries 10 and 14 of List I of the Seventh Schedule. But the making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the law of the State. Furthermore, in this case, the respondents banked on certain observations made in Oppenheim’s International Law. All that is stated therein is a reiteration of the general rule in municipal law that contractual obligations bind the parties to their contracts and not a third party to the contract. In international law also, it has been pointed out that the Vienna Convention on the Laws of Treaties,1969 reaffirms the general rule that a treaty does not create either obligations or rights for a third party state without its consent, based on the general principle Pacta Tertis Nec Nocent Nec Prosunt.
In the case of North Sea Continental Shelf, the court observed 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 when the State was ‘capable and qualified for’ acknowledging the duties in a proper way.
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).
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 state – in any case, the Court held that state’s action didn’t bolster a conflict for estoppel.
In the case of Trampler v. High Court of Zurich, municipal court evolved the principle of inadmissibility of treaties to third states is supported by the national courts. Therefore, it was proved that treaties are not applicable to third parties.
In the case of Eastern Bank Ltd v. Turkish Government, the decisions of International courts have affirmed the principle of not applicability of a treaty on third states without their consent. The Anglo-Turkish Mix Arbitral Tribunal of December 28, 1927 reaffirmed the principle of Pacta Tertis NEC Nocent NEC Prosunt.
CONCLUSION
Based on the Vienna Convention on the Law of Treaties, the general rule regarding the legal effects of treaties to third states is that treaty does not create obligations for the legally binding contract without their consent to the third parties. A number of organizations or committees took an initiative, by compelling nations to sign a number of treaties to maintaining harmony and for the smooth, coordinating, negotiable environments among the nations. As most of the assertions bear exceptions, this principle also contains some exceptions which are broadly explained in Article 35, 36, 37, and 38 of Vienna Convention on the Law of Treaties which states the non-binding character against third parties. Treaties or provisions of treaties is applicable to third parties if the provisions of treaties have already become customary international law.
REFERENCES
[1] [2003] Insc 494 (7 October 2003)
[2] [1969] ICJ 1