The object and purpose of a treaty: three interpretive methods.

• Author: Jonas, David S.

ABSTRACT

This Article examines the three most prominent uses of the term "object and purpose" within the Vienna Convention on the Law of Treaties and, in each instance, offers a new method for applying the term. First, the rule that a treaty be interpreted "in light off' its object and purpose requires a process of interpretation that oscillates between a treaty's individual provisions and the logic of all its provisions as a whole. Second, for reservations, the term exists to preserve "rule coherence[,]" as that term has been developed by Professor Thomas Franck. Lastly, states are required upon signature not to "defeat" the object and purpose of a treaty, and this rule is best understood as a means of facilitating domestic legislative review of new treaties by preserving the status quo at the time of signature. In sum, this Article examines a term of art that has perplexed scholars and practitioners for decades, and, in three specific contexts, it offers an understanding of the term refined beyond what other writers have offered.

TABLE OF CONTENTS I. INTRODUCTION II. EIGHT USES OF THE TERM OBJECT AND PURPOSE WITHIN THE VIENNA CONVENTION ON THE LAW OF TREATIES III. ARTICLE 31: THE GENERAL RULE OF TREATY INTERPRETATION A. Defining Object and Purpose B. Applying Object and Purpose in Practice IV. ARTICLE 19(C): OBJECT, PURPOSE, AND RESERVATIONS A. Background B. The Object and Purpose Test as a Safeguard Against Incoherence (1) The Text (2) Opinion of the International Court of Justice (3) Context: The Structure of the Vienna Convention's Reservation Regime (4) State Practice: Convention on the Elimination of All Forms of Discrimination Against Women V. ARTICLE 18: THE INTERIM OBLIGATION A. Background B. The Essential Elements Test C. The Impossible Performance Test D. The Bad Faith and Manifest Intent Tests E. The Status Quo/Facilitation Test VI. CONCLUSION I. INTRODUCTION

The phrase "object and purpose" is used relatively frequently in the law of treaties, and the phrase's meaning could be decisive in resolving multiple current international law controversies. Yet, object and purpose is a term of art without a workable definition. Broadly speaking, it refers to a treaty's essential goals, as if a treaty's text could be boiled down to a concentrated broth--the essence of a treaty. (1) Beyond this general idea, scholars have failed to create a definition with adequate clarity and detail to serve lawyers who must apply the term in practice. Those who have attempted to do so admit "with regret" that it remains an "enigma" that, "[i]nstead of reducing the potential of future conflicts... [,] plants the seed of them." (2)

The ambiguity of the term object and purpose creates problems in a range of current international law contexts. For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) governs and affirms women's fundamental right to equal treatment, (3) but some states party attempted to attach broad reservations that would have eviscerated CEDAW's protections. (4) The conflict over whether such reservations were permitted hinged on whether they were "incompatible" with CEDAW's object and purpose. (5)

Another example of a current object and purpose issue involves the Comprehensive Nuclear Test-Ban Treaty (CTBT). (6) The United States signed the CTBT in 1996 but has not yet ratified it. (7) Signature alone does not bind the United States to all provisions of the treaty, but signature nevertheless triggers an obligation hot to defeat the treaty's object and purpose. (8) Regrettably, there is no conclusive understanding of the extent of this obligation. One may reasonably believe, for example, that the United States government may conduct one nuclear test--or ten--without defeating the treaty's object and purpose, leaving the CTBT in a state of "legal limbo." (9)

A third example involves the United States' relationship to the International Criminal Court (ICC). (10) The ICC is the international tribunal established to prosecute war crimes, genocide, and crimes against humanity. (11) From December 2000 to May 2002, the United States was a signatory to the Rome Statute, the treaty establishing the ICC, but did not ratify it. (12) Then, in May 2002, President Bush authorized the "unsigning" of the treaty. (13) During the interim between signature and unsigning, the United States was bound not to "defeat the object and purpose" of the Rome Statute. (14) Yet, the extent of this obligation was (and remains) undefined. Signature might have created an obligation to cooperate with the ICC, including surrendering suspects on U.S. territory to the ICC. (15) Signature might have also waived certain objections to the ICC's jurisdiction to prosecute U.S. citizens. (16) The Bush Administration took the unprecedented step of unsigning the treaty because of these vague and potentially significant obligations. (17) By unsigning, the United States demonstrated that it no longer desired to become a party to the treaty, and thus the obligation not to defeat the object and purpose of the treaty no longer applied. (18)

Leaving such a vital term undefined risks undermining the strength and legitimacy of international law. Scholars debate why states comply with their international law obligations despite the lack of strong enforcement mechanisms, and one of the critical factors recognized by multiple theories is whether the law is clear. (19) Vague terms such as object and purpose erode the law's capacity to guide state behavior. This erosion is especially worrisome for the term object and purpose because it is used so frequently within the international legal regime. (20) It is used eight times in the Vienna Convention on the Law of Treaties (Vienna Convention) alone. (21) It is discussed in multiple decisions of the International Court of Justice, (22) as well as other domestic (23) and transnational courts. (24) The term is also used in numerous treaties. (25) In light of the term's prevalence, importance, and enduring ambiguity, this Article offers a better understanding of object and purpose as those words are used in the Vienna Convention.

Part II of this Article surveys all eight invocations of object and purpose within the Vienna Convention to provide the reader with a broad overview. Each of the subsequent three parts focuses on a specific invocation of the term, offering a new understanding of object and purpose refined beyond what has been offered by other writers.

Part III examines Article 31 and the rule that treaties must be interpreted in light of their object and purpose. Article 31 calls for a dialectical interpretive process, oscillating between the specific provisions of a treaty and the general normative logic of the treaty taken as a whole. (26)

Part IV examines Article 19(c), which prohibits reservations that are incompatible with a treaty's object and purpose. In this context, the object and purpose test is a coherence-preserving device, meaning it exists to ensure that reservations do hot add new distinctions to a treaty's rules unless those distinctions can be justified within the existing logic of the treaty. (27)

Finally, Part V examines Article 18, which forbids signatories from defeating a treaty's object and purpose prior to ratification. (28) Article 18 is best understood as a rule to facilitate domestic legislative review of new treaties during the time between signature and ratification. To achieve this end, Part V suggests a new "facilitation test" that aligns states' expectations and tempers gamesmanship among signatories.

Central to the structure of this Article is the belief that object and purpose is a necessarily abstract concept. Broadly, object and purpose refers to a treaty's goals, but any attempt to create a more specific definition risks truncating the full importance of the term. Necessarily abstract concepts are found in other contexts as well; in American constitutional law, for example, the terms "necessary and proper" and "equal protection" are vague yet clearly vital. (29) No single definition of these terms can be both broad enough to capture their full meaning and specific enough to guide practitioners in particular cases. To understand such terms, a more productive strategy--the strategy used in this Article--is to study how the term should be applied in particular contexts.

2. EIGHT USES OF THE TERM OBJECT AND PURPOSE WITHIN THE VIENNA CONVENTION ON THE LAW OF TREATIES

   The 1969 Vienna Convention "codified the law of treaties." (30) It was drafted by the International Law Commission in the late 1960s and entered into force January 27, 1980. (31) Over one hundred states have joined the Convention and are thereby bound by it. (32) Even states that have not joined are bound insofar as many of the Convention's articles reflect customary international law. (33) When the U.S. Department of State submitted the Vienna Convention to the President, the accompanying letter noted that "[a]lthough hot yet in force, the Convention is already generally recognized as the authoritative guide to current treaty law and practice." (34) Furthermore, "[t]he Department of State has on various occasions stated that it regards particular articles of the Convention as codifying existing international law[, and] United States courts have also treated particular provisions of the Vienna Convention as authoritative." (35)

   The term object and purpose is used eight times in the Vienna Convention. All eight examples are considered below:

   Article 18: When a state signs a treaty but before the treaty enters into force, the state is "obliged to refrain from acts which would defeat the object and purpose of a treaty." (36)

   Scholars and practitioners deem this an "interim obligation" because it exists in the interim between signature (prior to which a state is not bound by any aspect of the treaty) and ratification (after which a state is completely bound to observe...