How are non-party provisions used in international agreements? How have they been used and what are some examples?
It is generally recognised that a treaty does not create either obligations or rights for a third State without its consent. An obligation arises for a third State from a provision of a treaty only if the third State expressly accepts that obligation in writing. The term ‘Non-party’ broadly refers to a State that has not ratified, acceded or otherwise become a party to an international agreement. The term is used in the context of either (a) granting rights to ‘non-parties’ or (b) setting out how a party to a treaty should interact with a ‘non-party’ state, rather than in the context of imposing an obligation on a ‘non-party’. Non-party provisions can only impose obligations on parties.
Many international agreements contain provisions and associated instruments that promote the ratification of, or compliance with, the agreement by non-parties. The following table provides some examples of so called third party provisions in international agreements and other examples of how international agreements may relate to third parties.
Whilst all are ultimately designed to promote compliance, non-party provisions take various forms. The most commonly used are:
- Provisions that require Parties to encourage non-Parties to become Parties (eg. 2009 Port State Agreement, 2000 Cartagena Protocol, CCAMLR);
- Provisions that require Parties to take measures to deter activities of non-Parties which undermine the effective implementation of the relevant agreement (eg. UN Fish Stocks Agreement, 1993 FAO Compliance Agreement, 2009 Port State Agreement, 2010 Cluster Munitions Convention);
- Provisions that impose on Parties (and indirectly on non-Parties) trade restrictions with non-Parties unless those non-Parties conform to the requirements of the relevant treaty, ie they provide an incentive for non-Party to comply (eg. CITES, Montreal Protocol, ICCAT, Minimata Convention);
- Provisions that encourage Parties to enter into bilateral and other agreements with non-Parties to ensure compliance with relevant treaty or protocol (eg. 2000 Cartagena Protocol);
- Provisions that ensure that, when applying the relevant agreement, no more favourable treatment is given to non-Party (eg. 2001 Control of Harmful Anti-Fouling Systems on Ships, 1982 Paris MOU on Port State Control, 1995 Convention on Standards of Training etc for Seafarers)
Charter of the United Nations
Article 2 para. 6:
The organization shall ensure that states which are not members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing
Article 23: Non Parties to this Agreement
1. Parties shall encourage non-Parties to this Agreement to become Parties thereto and/or to adopt laws and regulations and implement measures consistent with its provisions.
2. Parties shall take fair, non-discriminatory and transparent measures consistent with this Agreement and other applicable international law to deter the activities of non- Parties which undermine the effective implementation of this Agreement.
2000 Cartagena Protocol on Biosafety
1. Transboundary movements of living modified organisms between Parties and non-Parties shall be consistent with the objective of this Protocol. The Parties may enter into bilateral, regional and multilateral agreements and arrangements with non-Parties regarding such transboundary movements.
2. The Parties shall encourage non-Parties to adhere to this Protocol and to contribute appropriate information to the Biosafety Clearing-House on living modified organisms released in, or moved into or out of, areas within their national jurisdictions.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
Article X: Trade with States not Party to the Convention
Where export or re-export is to, or import is from, a State not a Party to the present Convention, comparable documentation issued by the competent authorities in that State which substantially conforms with the requirements of the present Convention for permits and certificates may be accepted in lieu thereof by any Party.
Minimata Convention on Mercury
6. Each Party shall not allow the export of mercury except:
(a) To a Party that has provided the exporting Party with its written consent, and only for the purpose of:
(i) A use allowed to the importing Party under this Convention; or
(ii) Environmentally sound interim storage as set out in Article 10; or
(b) To a non-Party that has provided the exporting Party with its written consent, including certification demonstrating that:
(i) The non-Party has measures in place to ensure the protection of human health and the environment and to ensure its compliance with the provisions of Articles 10 and 11; and
(ii) Such mercury will be used only for a use allowed to a Party under this Convention or for environmentally sound interim storage as set out in Article 10.
Statute of the International Criminal Court
Provision on co-operation by non-party states with the ICC
Article 87(5): the Court ‘‘may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.’’
|United Nations Convention on Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement)|
Limits the access to any fishery to the member states of an Regional Fisheries Management Organisation (Article 8); grants member port States “the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures” (article 23) including the prohibition of landings and transhipments where it has been established that catch was taken in violation of adopted conservation measures. Party States may act under the authority of this language in relation to any vessel independent of whether its flag state is a party to the Agreement.
As specifically related to Non-Party states, the Agreement requires party States to encourage non-parties to adopt/ratify the Agreement and directs participating States “to adopt measures consistent with international law to deter the activities of vessels flying the flag of non-parties which undermine the effectiveness of the Agreement.” (Article 33)
1993 FAO Compliance Agreement
1. The Parties shall encourage any State not party to this Agreement to accept this Agreement and shall encourage any non-Party to adopt laws and regulations consistent with the provisions of this Agreement.
2. The Parties shall cooperate in a manner consistent with this Agreement and with international law to the end that fishing vessels entitled to fly the flags of non-Parties do not engage in activities that undermine the effectiveness of international conservation and management measures.
3. The Parties shall exchange information amongst themselves, either directly or through FAO, with respect to activities of fishing vessels flying the flags of non-Parties that undermine the effectiveness of international conservation and management measures.
2001 International Convention On The Control Of Harmful Anti-Fouling Systems On Ships
(3) With respect to the ships of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships.
1982 Paris MOU on Port State Control
…in applying the relevant instrument, the Authorities will ensure that no more favourable treatment is given to ships of non-Parties . . .
Section 3.2, Annex 1:
…in making such an inspection the port State control officer will follow the same procedures as provided for ships to which the relevant instrument are applicable.
1995 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
This article shall be applied as may be necessary to ensure that no more favourable treatment is given to a vessel entitled to fly the flag of a non-Party than is given to a vessel entitled to fly the flag of a Party.
1982 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)
Policy To Enhance Cooperation Between CCAMLR and Non-Contracting Parties requires the Convention’s Commission to write a letter to the Minister of Foreign affairs of non-Contracting Parties describing and explaining how IUU fishing undermines the effectiveness of CCAMLR conservation measures. This letter is to include a request to accede to the Convention, or to adopt and implement its conservation measures as well as participate in the scientific data and research aspects of the Convention.
Conservation Measure 10-07(2006), reaffirmed in 2007 and 2008) (scheme to promote compliance by non-Contracting Party vessels with CCAMLR conservation measures):
“request[s] non-Contracting Parties to cooperate fully with the Commission with a view to ensuring that the effectiveness of CCAMLR conservation measures is not undermined”.
Northwest Atlantic Fisheries Organisation (NAFO) Scheme to Promote Compliance by Non-Contracting Party Vessels
A Non-Contracting Party vessel which has been sighted engaging in fishing activities in the NAFO Regulatory Area is presumed to be undermining the effectiveness of NAFO Conservation and Enforcement Measures.
International Commission for the Conservation of Atlantic Tunas (ICCAT)
Resolution 94-3 and Resolution 95-13:
Market-related measures designed to encourage compliance by ICCAT members and cooperation by non-members with ICCAT’s conservation and management decisions
Bluefin Tuna Action Plan (1994) and Swordfish Action Plan (1995) can lead to the mandatory prohibition of imports of the relevant species from non-members whose vessels diminish the effectiveness of the ICCAT conservation measures for those species.
2010 Convention on Cluster Munitions
each State Party…shall promote the norms [the Convention] establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions