The Principle of Privity

University of Cambridge Faculty of Law Research Paper No. 44/2016

Conceptual and Contextual Perspectives on the Modern Law of Treaties (Kritsiotis and Bowman (eds.), Cambridge University Press 2018)

40 Pages Posted: 18 Sep 2016 Last revised: 6 Mar 2020

See all articles by Michael Waibel

Michael Waibel

University of Vienna - Faculty of Law

Date Written: September 16, 2016

Abstract

In Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice (PCIJ) said: 'A treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States'. This is the classic statement of the privity, pacta tertiis or parties-only principle in international law. Accordingly, treaties create (enforceable) obligations and rights only for the States parties to them. The Vienna Convention on the Law of Treaties (VCLT) codified the privity principle in its Articles 34, 35, 36 and 37.

As this chapter shows, the PCIJ's axiomatic statement in Certain German Interests almost eighty years ago no longer fully reflects the effect of treaties on third parties in contemporary international law. Since then, the principle of privity of treaty has lost some its sharp edges. The rise of erga omnes obligations and objective, status-creating treaties, the conferral of rights on non-State actors and their ability to directly enforce such rights as well as the turn towards informal international law beyond the law of treaties have tempered the traditional privity rule. However, it would be premature to sound the death knell of privity of treaty. Privity remains an important structural characteristic on the inter-State plane.

Keywords: law of treaties, privity, pacta tertiis, objective regimes, VCLT, third states

JEL Classification: K10, K12, K33

Suggested Citation

Waibel, Michael, The Principle of Privity (September 16, 2016). Conceptual and Contextual Perspectives on the Modern Law of Treaties (Kritsiotis and Bowman (eds.), Cambridge University Press 2018). Available at SSRN: https://ssrn.com/abstract=2839839 or http://dx.doi.org/10.2139/ssrn.2839839

Michael Waibel (Contact Author)

University of Vienna - Faculty of Law ( email )

Schottenbastei 10-16
Vienna, A-1010
Austria

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