Chapter

Introduction

Author(s):
International Monetary Fund
Published Date:
January 1966
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The relationship of an international organization to non-members raises a number of issues, not only in connection with the growing law of international organizations but also in connection with the older law of treaties. One of the leading issues is the legal effect of a treaty on states that are not parties to it (“third” states, “strangers”). Writing in 1960 as the Special Rapporteur of the International Law Commission, Sir Gerald Fitzmaurice, now Judge Fitzmaurice of the International Court of Justice, noted that the literature on this “amorphous and rather protean topic” was sparse and that both theory and doctrine were unsatisfactory.1

Sir Gerald felt that there was “only one absolutely firm and unequivocal principle,”the one sometimes summed up in the Latin maxim pacta tertiis nec nocent nee prosunt.2 He elaborated this, in Article 3(1) of his Report, as follows:

  • … a State cannot in respect of a treaty to which it is not a party—

    • (a) Incur obligations or enjoy rights under the treaty;

    • (b) Incur any liability, or suffer any disability or detriment, or any diminution or deprivation of right, or be entitled to claim as of right any faculty, interest, benefit or advantage under the treaty.

Some jurists might question the absolute character of this formulation, in relation to both rights and duties.3 According to Judge Fitzmaurice, however, even if there are no true exceptions to the rule, the qualifications of it constitute “a considerable gloss” on it, and to stop simply at the rule

  • would be to give a very misleading picture of the position of third States in relation to treaties to which they are not parties. In short, there are a number of ways in which treaties do have legal effects on, for, or relative to, third States, even if directly obliging or entitling the third State under the treaty is not amongst them, and even if the latter remains in principle one of the effects that a treaty cannot have for a third State.

However, it is unlikely that any unifying legal principle runs throughout these qualifications.

It is the purpose of this paper to gather together the legal provisions and practices of the International Monetary Fund that involve non-member states. The relations of the Fund with non-members and the effects of the Fund’s Articles on them will be considered mainly in order to see to what extent Fund experience has put a gloss on the legal principle already referred to, but other principles will be mentioned where they have been involved in the practice of the Fund.

In the first two sections of this paper, certain preliminary topics are considered in order to clear the way: categories of non-members, subordinate territories for which members are responsible, and ex-members. Sections 3 to 5 discuss three ways in which non-members are affected either because members are limited in their freedom of action in dealing with non-members or because non-members have consented to certain obligations or standards that parallel those of the Articles. In section 6, the topic is the withholding of certain benefits from non-members, but section 7 deals with the extension of these same benefits to some non-members. In section 8, the topic is once again the withholding of benefits, but different benefits in this case. In the final two sections (9 and 10), there is some treatment of the consequences for non-members that flow from certain agreements they have made with the Fund or from the objective personality of the Fund in action.

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