HOW CAN A NON PARTY STATE TO AN INTERNATIONAL TREATY BE FINALLY PART OF IT?

1.0 INTRODUCTION.

THE 1969 VIENNA CONVENTION ON THE LAW OF TREATY'S ACT AS A BASIS FOR ALL FORMATION OF INTERNATIONAL TREATY’S.

  1.1 DEFINITION OF LAW,  INTERNATIONAL LAW, TREATY AND NON PARTY STATE.

LAWS ARE THE BINDING RULES OF CONDUCT MEANT TO ENFORCE JUSTICE AND PRESCRIBE DUTY OR OBLIGATION, THEY CAN ALSO BE SAID TO BE THE BRANCH OF PHILOSOPHY CONCERNED WITH THE LAW AND THE PRINCIPLES THAT LEAD COURTS TO MAKE THE DECISIONS THEY DO.

WHILE INTERNATIONAL LAWS ACCORDING TO BARRON'S BUSINESS DICTIONARY ARE SAID TO BE LAWS GOVERNING RELATIONS OF NATIONS WITH ONE ANOTHER THAT ARISES PRINCIPALLY FROM INTERNATIONAL AGREEMENTS OR FROM CUSTOMS THAT NATIONS ADOPT, THEY ARE ALSO A SET OF RULES GENERALLY RECOGNIZED 
BY CIVILIZED STATES AS GOVERNING THEIR CONDUCT TOWARDS EACH OTHER.

1.2 WHAT IS A TREATY?

A TREATY IS A BINDING WRITTEN LEGAL AGREEMENT WHICH CAN BE AMONG TWO OR MORE COUNTRIES. MANY SCHOLARS BELIEVE THAT A TREATY IS THE MOST IMPORTANT SOURCE OF INTERNATIONAL LAW. THE 1969 CONVENTION ON THE LAW OF TREATY  DEFINED A TREATY AS AN AGREEMENT CONCLUDED BETWEEN STATES IN WRITTEN FORM AND GOVERNED BY INTERNATIONAL LAW WHETHER EMBODIED IN A SINGLE INSTRUMENT  OR IN TWO OR MORE RELATED INSTRUMENT .

1.3 WHAT IS A NON PARTY STATE?

A NON PARTY STATE IS A PARTY THAT WAS NOT PART OF A TREATY MAKING PROCESS FROM THE BEGINNING BUT WANTS TO BECOME A PARTY TO THE TREATY, SOMEONE OTHER THAN THE PRINCIPALS WHO ARE INVOLVED IN A TRANSACTION WHICH IN THIS CASE IS THE DRAFTING OF A TREATY.

2.0 IMPORTANCE OF THE TOPIC.

THE IMPORTANCE OF THIS TOPIC IS TO SHOW OR STATE THE PROCESS WHEREBY A NON PARTY STATE CAN BECOME A MEMBER TO AN INTERNATIONAL TREATY.

THE MAKING OF A TREATY HAS MANY STEPS ALL OF WHICH ARE LISTED BELOW:

• ·         NEGOTIATION
• ·         ADOPTION
• ·         SIGNATURE
• ·         RATIFICATION
• ·         ENTRY INTO FORCE.
•  

FOR A NON PARTY MEMBER OF A TREATY TO BECOME A PARTY TO THE TREATY SUCH PARTY HAS TO UNDERGO SOME PROCESSES SLIGHTLY DIFFERENT FROM THE MAKING OF A TREATY.

3.0 THE PROCESS OF A NON PARTY STATE BECOMING A PARTY TO A TREATY.

BEFORE A NON PARTY STATE/THIRD STATE BECOMES A PARTY TO A TREATY THE PRINCIPLE OF ACCESSION MUST BE SATISFIED.

ACCESSION IS THE ACT OF A STATE ACCEPTING THE OPPORTUNITY TO BECOME A PARTY TO A TREATY, THE THIRD PARTY/NON PARTY SITE EXPRESSES ITS CONSENT TO BE A PARTY TO THE TREATY.

ACCORDING TO ARTICLE 2(1) (B) AND 15 ICT IN THE LAW OF TREATIES 1969, THE FOLLOWING EXPLAINS HOW A NON PARTY STATE CAN BECOME A PARTY TO A TREATY:

ARTICLE 34, 35, 36 OF THE VIENNA CONVENTION OF TREATIES 1969 STATED THE RELATIONSHIP REGULATING THE ACTIONS OF THIRD PARTIES STATE IN FORM OF THE MAXIM OF:

“PACTA TERTIS NEC NOCENT”- TREATIES CANNOT BIND THIRD PARTIES WITHOUT THEIR CONSENT; AGREEMENT NEITHER HARM NOR BENEFIT THIRD PARTIES.

THIS MAXIM IS BASED ON THE PRINCIPLE OF SOVEREIGNTY AND EQUALITY THE PRINCIPLE HAS BEEN RECOGNIZED IN STATE PRACTICES AS A FUNDAMENTAL PRINCIPLE 

FOR NON PARTY STATE TO A TREATY THE TREATY MAXIM IS “RES INTER ALIOS ACTA”.

THUS A TREATY DOES NOT CREATE OBLIGATIONS OR RIGHT FOR A STATE WHICH IS NOT A PARTY TO IT.  A TREATY ONLY CREATES LAWS AS BETWEEN STATES WHICH ARE PARTIES TO IT AND IN ANY CASE OF DOUBT NO RIGHTS CAN BE DEDUCED FROM IT IN FAVOR OF THE THIRD PARTY.

EXCEPT IN RARE CASES WHERE:

·         

•    ESTABLISHMENT OF AN OBLIGATION FOR A THIRD PARTY STATE BY PARTIES TO THE TREATY.
•         THE THIRD PARTY EXPRESSLY ACCEPT SUCH OBLIGATION IN WRITING. A TREATY MAY ALSO PROVIDE FOR THE RIGHTS OF THE THIRD STATE IF THEY AGREE TO IT. 

1. THE EXPRESSION OF CONSENT.

AFTER SATISFYING THE CONDITIONS ABOVE THERE COMES THE DRAFTING OF AN AGREEMENT BETWEEN THE MEMBERS PARTY TO THE TREATY AND THE THIRD STATE, THIS AGREEMENT IS KNOWN AS COLLATERAL AGREEMENT.

FOLLOWING THE CONSENT OF THE STATE TO BE BOUND BY THE TREATY,OTHER MATTERS SUCH AS  THE MANNER AND DATE OF ITS ENTRY INTO FORCE, RESERVATION,THE FUNCTIONS OF THE DEPOSITORY AND OTHER MATTERS ARISING MUST BE DISCUSSED AND PERFORMED NECESSARILY FROM THE TIME OF ACCESSION, TO THE ENTRY INTO FORCE AND  TILL THE TIME OF ADOPTION.                                                                                                           

        THE STATE THEN DEPOSITS AN INSTRUMENT OF ACCESSION TO SIGNIFY ITS AGREEMENT TO BEING LEGALLY BOUND BY THE PROVISIONS OF THE TREATY ACCESSION OCCURS AFTER THE TREATY HAS ENTERED INTO FORCE AND IT HAS THE SAME LEGAL EFFECT AS RATIFICATION (THE PROCESS OF A STATE GIVING ITS CONSENT TO BE BOUND BY A TREATY AND THE OFFICIAL REPRESENTING THE STATE MUST BE THE HEAD OF STATE OR GOVERNMENT OF THE SIGNATURE TO THE TREATY). ARTICLE 2 OF 1969 VIENNA CONVENTION SUPPORTS THIS.

ARTICLE 38 OF THE VIENNA CONVENTION ALSO STATES THAT RULES IN A TREATY BECOME BINDING ON THIRD STATE THROUGH INTERNATIONAL CUSTOMS.

4.0 CONCLUSION

THIS PAPER TALKS ABOUT THE MEANS BY WHICH A NON PARTY STATE TO AN INTERNATIONAL TREATY CAN BE FINALLY PART OF IT, IT STATES OUT THE PROCESSES A NON PARTY STATE HAS TO UNDERGO IN ORDER TO BECOME A PARTY TO AN INTERNATIONAL TREATY. ALSO THE 1969 VIENNA CONVENTION ON THE LAW OF TREATY'S IS A VERY IMPORTANT DOCUMENT IN THE INTERNATIONAL ARENA.

IT IS IN OUR OPINION THAT A NON PARTY STATE SHOULD BE ALLOWED TO BECOME A MEMBER TO A TREATY.

REFERENCE.

1. ·         MALGOSIA FITZMAURICE: THIRD PARTIES AND THE LAW OF TREATIES.
2. ·         ADVANCE ENGLISH DICTIONARY.
3. ·         GENERAL PRINCIPLES OF INTERNATIONAL LAW MRS METONU.