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country was justified in its legislation, are not matters for judicial cog- or modified by the parties if it was intended not to be
nizance. . . . revoked or modified without the consent of the third
Judgment flied.
state. Also, Article 38 provides that ". . . [nlothing in Ar-
In a Memorandum prepared for President Harding, Sec- ticle 34 to 37 precludes a rule set forth in a treaty from
retary of State Charles Evan Hughes stated, "Congress becoming binding upon a third state asa customary rule of
[by passing inconsistent legislation] has the power to vio- international law, recognized as such." This article was
late treaties, but if they are violated, the nation will be adopted despite differences of opinion as to the source of
none the less exposed to all the international conse- the biding force of rules in a treaty on third parties. 120
quences of such a violation because the action is taken by c. An example of rights conferred on third parties
the legislative branch of the Government." 117 Where a recognized by custom is the right of free passage through
treaty and an act of Congress are wholly inconsistent with interoceanic canals. One writer has noted that: "[Tlhe priv-
each other and the two cannot be reconciled, the courts ilege of free passage through the three major interoceanic
have held that the one later in point of time must prevail. canalsSuez, Panama, and Kiel-has been created in
While this is necessarily true as a matter of municipal law, each case by a treaty to which the territorial sovereign, act-
it does not follow that a treaty is repealed or abrogated by a ing freely or under the pressure of other powers, has been
later inconsistent statute. The treaty continues to subsist as a party." 121 The right of third parties in such situation has
an international obligation, even though it may not be en- been analogized to the doctrine of "international ser-
forceable by the courts or administrative authorities. 118 vitudes" and "third-party beneficiary" concepts drawn
However, a treaty will not be deemed to have been abro- from municipal law. 122 Baxter argues that "the preferable
gated or modified by a later statute unless such a purpose theory concerning the rights of nonsignatories is that a
on the part of Congress has been clearly expressed. 119 state may, in whole or in part, dedicate a waterway to in-
8-25. Effect of International Agreements for States Not ternational use, which dedication, if relied upon, creates
Parties. a. The customary rule of international law ex- legally enforceable rights in favor of the shipping of the in-
pressed in the maxim pacta treatiis nee nocent necprosunl ternational community. " 123
has been codified by Article 34 of the Vienna Convention, The U.N. Charter raises a special situation as to the
which provides that "a treaty does not create either binding force of multiparty constitutive agreements on
obligations or rights for a third party." This rule must ad- nonmember states. Article 2, paragraph 6, of the Charter
mit of exceptions, however, as there are situations in requires that the U.N. ensure that nonmember states act
which states not parties to an agreement consent to be in conformity with the principles of the Charter in order to
bound by it, or are intended by the parties to derive further international peace and security.Thus,it is argua-
benefits from the agreement. Articles 34 and 35 of the ble that, as a condition precedent to international dealings,
Convention apply to these two situations. Article 35 pro- states now run the risk that their actions will not escape
vides that an obligation arises for a third state if the parties the sanction of the U.N., 124 and that Article 2, paragraph
to a treaty intend for its provisions to establish an obliga- 6, as evidence of a trend to create in the Charter a law
tion for a third state and this state expressly accepts such affecting both members and nonmembers. 125 The
obligation in writing. Thus,the juridical basis of the third I.C.J.'s reasoning in its Advisory Opinion Concerning
state's obligation is not the treaty but the collateral agree- Reparations for Injuries in the Service of the United Na-
ment by which it has accepted the obligation. Article 36 tions reflects this tendency, referring to the purposes of
deals with the converse situation of rights in a third party and large number of signatories to the U.N. Charter, in
derived from a treaty. It provides that a right arisesif par- deciding that a claim could be pressed by the U.N. against
ties to an agreement to accord certain rights to a third state a nonmember. 126 The Antarctic Treaty of December 1,
and the third state assents thereto. The third state's assent 1959, 127 is a further example of an attempt by signatories
is presumed unless the contrary is indicated or the treaty to influence the behavior of nonsignatories, stating:
provides otherwise. However, a third state exercising such "Each of the contracting parties undertakes to exert ap-
a derived right must comply with the conditions provided propriate efforts, consistent with the Charter of the United
in the treaty for its exercise. Nations, to the end that no one engages in any activity in
b. Article 37 of the Convention concerns revocation or
modification of obligations or rights of third states. An 120. Sinclair, supra note 66 at 8-10.
obligation may be revoked or modified only with the con- 121. R. Boxter, The Low of Internotional Wotewys 168-69
sent of the parties to the treaty and the third state, unless (1964) (hereinafter cited as Baxter).
otherwise agreed. Moreover, a right may not be revoked 122. See Friedrnann, supra, note 23 at 600.
123. Baxter, supra, note 121 at 182.
124. See McNoir, The Low of Treoties 268-71 (1961).
117. 5 G. Hockworth, supra note 14 at 324-25. 125. See Falk, The Authority of the United Notions to Control Non-
118. Id. at 185-86. See also, The Cherokee Tobacco, 78 U.S. (11 Members, 19 Rutgers L. Rev. 591 (1966).
Wall.) 616, 20 L.Ed.227 (1871). 126. Advisory Opinion Concerning Reparations for Iqjuries in the
119. Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 311, Service of the United Nations 119491 I.C.J. 174.
77 L.Ed.641 (1933). 127. 12 U.S.T. 794, 402 U.N.T.S. 71.