MegaReg Forum Paper 2016/1

Megaregionals: Protecting Third Parties?

Jan Klabbers

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Treaties such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) are, at first sight, fairly regular treaties. True, they bring some of the more powerful economic actors together (this applies especially to TTIP), and true enough, they may cover a considerable portion of global trade, but at the end, one might think, these are regular treaties, creating more or less balanced and reciprocal rights and obligations between the parties. The megaregionals may be exceptional in the magnitude of what they cover (hence the prefix “mega”), but are unexceptional in their structure. The law of treaties, in other words, is likely to treat them as it treats other treaties.

It is a truism of the law of treaties that agreements to prevent genocide are to be dealt with in the same way as a treaty between minor powers on trade in light bulbs. More to the point, it has even been difficult to suggest that normative instruments (‘legislative’ treaties, in yesterday’s terms) such as human rights treaties ought to be treated in ways that are different from how contractual undertakings are treated. Attempts to rationalize the intuition that there is something special about normative treaties have occasionally been presented, but the more thoughtful reflections remain skeptical themselves.

Hence, as a starting point, it seems clear that the megaregionals are simply to be seen as ever so many regular treaties subject, to be sure, to the Vienna Convention on the Law of Treaties (VCLT) or what is customarily held to be its customary law alter ego. This entails the following three propositions, which can all be imperiously phrased in Latin terms. First, it entails that the megaregionals are to be considered legally binding on their parties: pacta sunt servanda. Second, it entails that each megaregional treaty is to be seen as res inter alios acta—a thing between the parties. And third, from this it follows that the megaregionals are not to affect, in law, the position of third parties: pacta tertiis nec nocent nec prosunt. Quod erat demonstrandum.

And yet, there seems to be something rather special about the megaregionals, and this special character owes much precisely to the magnitude of the undertakings. For, it turns out, in the real world of the global political economy, the megaregionals have real effects on third parties. In form, they may be regular treaties; in substance, however, they force other states to change positions and strategies; to do things they might not otherwise have considered doing. In a sense, this applies to most treaties: even a treaty between A and B on trade in light bulbs may lead to trade diversion, away from state C or D. And in a sense, the law of treaties is by and large unable to address this as long as it remains focused on considerations of form, rather than substance.