Third Parties in International Law CHRISTINE CHINKIN

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1 Third Parties in International Law CHRISTINE CHINKIN CLARENDON PRESS OXFORD 1993

2 Abbreviations Table of Cases Table of United Nations Resolutions Table of Treaties and Other Documents i The Problem xvi xx xxix xxxi i 1. Introduction i 2. Identification of Third Parties States as third parties International organizations as third parties Individuais as third parties Third Parties in International Disputes and Conflicts Rights, Obligations, and Interests 18 PART I. TREATIES AND THIRD PARTIES 2 States as Third Parties to Treaties: Formal Prescriptions The Current Status of the Pacta Tertiis Rule General Legal Prescription on Treaties and Third Parties Before the Vienna Convention on the Law of Treaties Drafting the Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties: Articles Exclusions from the Vienna Convention Other Articles of the Vienna Convention Comments on the Vienna Convention Specific Legal Prescription Interlocking arrangements: Treaties of Guarantee The Peace Treaty between Egypt and Israel The Afghanistan Peace Treaties and Guarantees 46

3 x 3.2 Other Treaty Devices Protocols Reciprocity 50 3 States As Third Parties to Treaties: Claims by and against Third Party States Claims of Participation Claims of accession Claims of adherence Claims of assignment Claims of third party beneficiary Claims of agency Claims of newly independent States Claims of Non-participation Claims for Performance Claims that a Treaty Should not be Entered into or Performed Treaties conflicting with the rights of third States Conflicting treaties Surrender of treaty-making power Claims of Amendment Claims Relating to International Communications Interoceanic canals Straits 86 4 International Organizations as Third Parties to Treaties International Organizations as Third Parties The Vienna Convention on The Law of Treaties between States and International Organizations Claims by Member States against International Organizations Claims that organizations are bound by their constitutive treaties Claims that the actions of the organization are invalid Claims by International Organizations against Member States Claims that member States acted contrary to the constitutive treaty 99

4 xi 4.2 Claims that member States are estopped from denying an extension of institutional power Claims of Status Options Available to Dissentient Member States Claims by Third Parties with Respect to International Organizations The position of third parties Third party procedural Claims Third Party Claims against the Member States of an Organization Individuais as Third Parties to Treaties Introduction States'Claims on Behalf of Individuais Individuais' Claims before National Courts Individuais'Claims to Status Claims Based upon Human Rights and Humanitarian Principles Conclusions to Part I: The Pacta Tertiis Rule in Modern International Law Introduction The Vienna Convention on the Law of Treaties The Displacement of Treaty Law Analogy to Municipal Law Devices Conclusions 142

5 xii PART II. INTERNATIONAL JUDICIAL AND ARBITRAL PROCEDURE AND THIRD PARTIES 7 Intervention before the International Court of Justice: Articles 62 and 63 of the Statute of the Court Introduction: The Bilateral Model of Adversary Proceedings Legal Basis for Intervention before the International Court of Justice Articles 62 and 63 of the Statute of the Court Article 62 of the Statute of the Court Article 63 of the Statute of the Court Relationship between Articles 62 and Relationship with Article Interpretation of Article 62 by the International Court Interest of a legal nature 'May be affected' Purposes of Intervention Precise nature of expressed purpose To join interests with one of the parties To introduce a peripheral matter To assist the Court Improper purposes Jurisdiction for Intervention No jurisdictional requirement for intervention Rights of the intervening State Interpretation of Article 63 by the International Court Purposes of intervention under Article Jurisdictional link under Article Policies of Intervention Policies under Article Policies under Article Multiparty Disputes: Intervention and Indispensable Parties before the International Court of Justice Introduction Party and Third Party Strategies 186

6 xiii 2.1 Notification of Conventions under Article To request or block access to pleadings To request or object to intervention Timing of a claim of intervention Decision Not to Intervene: Indispensable Parties Other Options Available to Third Parties Where other proceedings have been commenced Commencement of separate proceedings Joinder of proceedings Where no other proceedings have been commenced Designation as a third State Proceedings in the public interest To seek an advisory opinion Intervention before the European Court of Justice The Legal Framework The Practice of Intervention before the European Court Other Third Party Procedures before International Adjudicative Tribunals The International Court of Justice Information from third party States Information from third party organizations Information from third party individuals The European Court of Human Rights Individual standing before the Court Presentation of information by non-parties The Inter-American Court of Human Rights Interpretation of Treaties Affecting Non-parties to an Organization Third Parties before International Arbitral Tribunals Introduction: Differing Models of Arbitration Party Autonomy in International Arbitration 249

7 xiv 3. Claims that an Arbitral Award Prejudices Third Party Claims by parties to the award Claims by third parties Claims to Enforce the Arbitration Agreement Claims that an arbitral agreement be enforced against a third party Third party prejudiced by failure to seek arbitration Third Party Claims that Rights Have Been Bestowed by the Arbitral Agreement Third party claims of accession Third party claims of intervention Third Party Claims that a Tribunal Should Not Hear a Case Conclusions To Part II: Third Parties in International Proceedings Third Party Procedural Claims Third Party Procedures in the Public Interest 282 PART III. THIRD PARTIES AND INTERNATIONAL CRIMES: ARMED CONFLICT 13 Third Party Response to Armed Conflict and Acts of Aggression: Neutrality Introduction Policies with Respect to Third Parties to Armed Conflict Identifying the Aggressor Unilateral Third Party Claims: Neutrality Neutrality under the United Nations Charter Claims of neutrality where there has been no Security Council determination of aggression Claims of neutrality where there has been a Security Council determination of aggression 311

8 xv 14 Third Party Unilateral and Collective Responses to Armed Conflict Unilateral Third Party Responses Non-forcible counter-measures Collective self-defence Counter-intervention Collective Response to an Act of Aggression: Constructive Injury to Third Parties as Members of the International Community Conclusions to Part III: Third Parties and International Crimes Introduction Third Party Claims in International Armed Conflict Conclusions 349 Bibliography 357 Index 377

INTERNATIONAL LAW AND THE USE OF FORCE BY STATES

INTERNATIONAL LAW AND THE USE OF FORCE BY STATES BY IAN BROWNLIE, Q.C., D.C.L., F.B.A. CHICHELE PROFESSOR OF PUBLIC INTERNATIONAL LAW IN THE UNIVERSITY OF OXFORD; FELLOW OF ALL SOULS COLLEGE, OXFORD; ASSOCIB