How to defeat a treaty's object and purpose pending entry into force: toward manifest intent.

• Author: Klabbers, Jan
• Position: Vienna Convention on the Law of Treaties

ABSTRACT

Under Article 18 of the 1969 Vienna Convention on the Law of Treaties, states that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty pending its entry into force. After noting that international lawyers and academics have recognized various types of treaties, the Article begins by observing that traditionally the interim obligation operates well in contractual situations but not in normative situations. Furthermore, the Author argues that where treaties are normative, the traditional conception of the interim obligation is insufficient.

While the interim obligation has been recognized in various international legal systems, it remains unclear how to determine whether the interim obligation is being violated. Several tests have been proposed, including evaluations of the subjective intent of the alleged infringing party and the legitimate expectations of the aggrieved party. The Author contends that none of the existing tests is adequate. Rather, he proposes the possibility of a "manifest intent" test. The manifest intent test has the advantage of being relatively objective, avoiding the pitfalls associated with more subjective tests. In addition, the manifest intent test is more appropriate in normative, non-contractual situations. The Author finds support for this test in the preparatory works for Article 18, as well as in both judicial practice and scholarly works.

1. INTRODUCTION

   Imagine this: State X is among the first to sign and ratify a convention against arbitrary detention. In the period of time between the ratification by State X and the entry into force of the convention, State X continues to detain a number of individuals arbitrarily. Does State X, in doing so, violate international law?

   Or picture this: State Y signs a disarmament convention and plans to ratify it at the earliest possible date, but in the meantime State Y continues to procure the very armaments that the convention will ban when it enters into force. Is State Y violating international law?

   Or consider this: State Z has ratified an extensive free trade agreement that, upon entry into force, will prohibit any new tariffs and similar charges and will be self-executing. A week or so before the agreement enters into force, State Z increases tariffs on products coming from one of its prospective partners, to the detriment of a producer operating from within that trading partner. Is State Z acting in violation of international law?

   The three scenarios sketched above are more or less hypothetical, but not completely devoid of realism. The third scenario is, in fact, a simplified and stylized version of the facts that gave rise to the Opel Austria case, decided by the Court of First Instance of the European Community in early 1997.(1)

   The other examples also are not too far removed from real life occurrences. Angola endured a storm of criticism by continuing to use landmines after having signed the anti-landmine convention.(2) India met with fierce opposition when it announced its intention to block the entry into force of the Comprehensive Nuclear Test Ban Treaty after lengthy negotiations but before it signed the convention.(3) Some commentators analyzed the 1994 agreement facilitating the entry into force of the United Nations Convention on the Law of the Sea in terms of whether it violated the Convention itself prior to its entry into force.(4) In addition, the conclusion of the Chemical Weapons Convention in 1993 spurred the Committee on Arms Control and Disarmament Law of the International Law Association to investigate whether or not obligations may exist for signatories to arms control agreements prior to their entries into force.(5)

   This recent discovery(6) of the interim obligation is not merely coincidental. Note that all of the above examples--a human rights convention, an arms control treaty, and a complex free trade agreement--are not strictly contractual in nature; instead, they aspire to create institutions and establish norms of general application. They are, to use the classic term, law-making treaties.

   This suggests that there is something about law-making conventions which makes their effects desirable (if not their formal entry into force) without any delay. Indeed, it is awkward to argue that states have a right to lay landmines if they have signed, and perhaps have ratified, a treaty prohibiting such practices, simply because the calendar has not yet reached a certain date. Any suffering in the interim is suffering for formalities. Surely international law must have a rule preventing such situations, and many contend that this rule is the one embodied in Article 18 of the Vienna Convention on the Law of Treaties, widely known as the "interim obligation."(7)

   According to its very terms the interim obligation provision of Article 18 of the Vienna Convention cannot be invoked without more. Its success depends on whether behavior would defeat the object and purpose of the treaty concerned, and it is here that a paradox sets in. Instead of defeating the object and purpose of a law-making convention, any behavior irreconcilable with it, prior to its entry into force, actually serves to emphasize the desirability of its entry into force. The behavior, rather, strengthens the very point of the treaty.

   The paradox takes on additional importance because many states allow treaty provisions to be self-executing under certain conditions.(8) Thus, they need not be transformed into domestic legislation but are capable of having an immediate effect in domestic legal orders. Where this is the case, the treaty concerned is no longer merely an undertaking among states. Hence, without the treaty attracting new formal partners, individuals or companies who stand to gain from a proposed treaty may require protection by the law prior to that treaty's entry into force.(9)

   The argument explored in this Article is multi-layered, but may be summarized as follows. In situations involving alleged infractions of law-making, normative treaties (as opposed to contractual undertakings) pending their entry into force, the interim obligation as laid down in Article 18 of the 1969 Vienna Convention on the Law of Treaties provides little relief, at least not in the way in which it is normally understood. That is far from surprising as the interim obligation has always been premised on contractual thinking, and its specific formulation in Article 18 of the Vienna Convention has been inspired by purely contractual notions. Thus, it requires a reconceptualization of the interim obligation in order to allow the interim obligation to adapt to situations involving normative instruments and in order to provide a useful function in international law and international relations. Such a reconceptualization is already present--albeit often somewhat below the surface--in both recent scholarly writings and recent judicial practice,(10) although these are limited in numbers.(11) The reconceptualization concentrates on the test to determine whether the interim obligation is violated. For convenience, this specific reconceptualization of the test of the interim obligation shall be referred to as a "manifest intent test."

   The argument for the manifest intent test is multi-layered in that it rests on several other foundational points that must be recognized either as preliminary matters or in passing. The multi-layered nature of the argument may make the argument somewhat difficult to follow and at times give the appearance of repetitiveness. One such foundational point is that the law of treaties in general is based on thoroughly contractual notions. A second, related point is that the contractual underpinnings of the law of treaties are no longer very helpful in an age where a large number of treaties aspire (or claim to aspire) to protect the interests of the international community at large (no matter how amorphous this very notion itself is) or the interests of individual natural or legal persons within states. Moreover, the manifest intent test is inevitably rather abstract. There is, after all, not much existing state practice or case law on the topic to enliven the argument, and this Article aims to establish a point of general validity; abstraction, therefore, cannot be avoided. Still, in essence the claim is straightforward enough: the interim obligation as traditionally conceived is ill-suited to present-day demands, and so it must be reconstructed. Such reconstruction is already under way, as the few judicial decisions and scholarly writings on the topic have witnessed.(12)

   Article 18 of the 1969 Vienna Convention on the Law of Treaties carries the title "Obligation not to defeat the object and purpose of a treaty prior to its entry into force" and reads:

   A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.(13) Thus under Article 18, states that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty prior to its entry into force. Yet can it really be said with respect to the examples mentioned above, that States X, Y, or Z are engaging in behavior that defeats the object and purpose of the treaty at issue and are acting in violation of international law? Upon a regular reading of Article 18 the answer must be in the negative, for reasons to be explained below. Only a different reading of Article 18's interim obligation may facilitate qualifying the behavior of States X, Y, and...