Research On The Principle Of Object And Purpose In The Law Of Treaties

The Principle of object and purpose in the law of treaties was established in the1950s by the Advisory Opinion of International Court of Justice and codified in the late1960s in the Vienna Convention on the Law of Treaties. As an important principle in the law of treaties, it is different from teleological method of treaty interpretation. It regulates a variety of treaty acts apart from interpretation and reservation, such as, modification and termination of treaties between certain of the parties only. However, for a long time research on the relevant theme is confined to interpretation and reservation. The Guide to Practice on Reservation to Treaties that is adopted by International Law Commission at its sixty-third session in2011is not only a great achievement on the study of reservations to treaties, but also sheds light on the research on the principle of object and purpose in the Law of Treaties.Apart from foreword and conclusions, the main body is composed of three chapters:Chapter One defines the notion and characteristics of the principle. It deals with three questions:1. the concept of object and purpose of a treaty2. the connotation of the principle of object and purpose in the law of treaties3. the characteristics of the principle of object and purpose in the law of treaties. It is argued in the paper that object and purpose of a treaty is an inseparable concept and it reflects the value to be pursued by the treaty and intention of the parties. The principle of object and purpose in the law of treaties is essentially a requirement that treaty acts of a contracting party, such as reservation, interpretation, modification and termination should be compatible with the object and purpose of a treaty. It reflects the central status of object and purpose in a treaty. Ambiguity and certainty are the two characteristics of the principle. For the one hand, object and purpose, the key words of the principle, needs to be interpreted in a specific treaty. Meanwhile, contracting states or contracting organizations, treaty monitoring body and dispute settlement bodies have different rights to assess the compatibility, which makes it inevitable to render different results. For the other hand, owing to the application of the principle of object and purpose is essentially a process of interpretation. The general rule of interpretation is applied to the principle, which lead to the result that the objective components contained in article31of the convention become the source of certainty of the principle.Chapter Two, the justification of the principle, includes two sections. Section One elaborates the philosophy of law in respect of the principle and Section Two explains the relevant provisions stipulated in the Convention on the Law of Treaties. By explanation of the different opinions, on the theme of object of law, of natural jurisprudence, sociological jurisprudence and analytical jurisprudence, it arrives at a conclusion that both positivism and value are indispensable to law and they are combined together in the reality. On the other hand, Treaties concluded among contracting states contain various value target promoting security, steady and prosperity of the international community. These values are regarded as soul of the treaty which explains why the principle should be conformed. After elucidating the provisions of the relevant articles in the Vienna Convention on the Law of Treaties, the paper concluded that though the Convention left many things regarding the principle in the dark, evidence of certainty of the principle can be found in case-law and international documents.Chapter three expounds the application of the principle. In this chapter three questions are involved:1the premise of the application of the principle2.the ascertaining of the object and purpose of a treaty3.the assessment of the compatibility of treaty acts and the object and purpose of a treaty. It gives the conclusions that the premise of the application of the principle is taking fully account of the treaty provisions. A feasible way to ascertaining the object and purpose of a treaty, according to the International Law Commission, is to refer to the general rule of interpretation in the Vienna Convention on the Law of Treaties, namely, get some information from the title, preface, text, subsequent practice and so on. And then, the paper deduced from the rules given in the Guide to the Practice that contracting states or contracting organizations, dispute settlement bodies, and treaty monitoring bodies have respective rights to assess the compatibility of treaty acts and the object and purpose of a treaty. There exists some degree of complementarity among the various methods of assessment. As to the procedure, the paper is of the opinion that collegiate system and jurisdictional system are the main systems to assess the compatibility when disputes occur. At the end of the section, the paper expounds, by way of illustrations, some legal consequences of incompatibility of treaty acts and the object and purpose of a treaty, for instance, in the case of a reservation is regarded as incompatible with the object and purpose of a treaty, the reservation is illegal and invalid, while when a modification of a multilateral treaty in certain parties only is deemed to be incompatible with the object and purpose of the treaty, the modification is valid, though illegal.Finally, the paper gives some conclusions. The principle of object and purpose, featured with ambiguity and certainty, is the result of combination of positivism and value-oriented jurisprudence. It is an important principle regulating treaty acts of reservations, interpretation, modification, termination. Even before a treaty enter into force, the principle has some impact on the acts of contracting parties. The preference for value target in disregard of the provisions of a treaty will do harm to the certainty of the treaty. And on the contrary, preference for legality regardless of the value to be pursed in the treaty will make the treaty an empty shell. A delicate balance between the two inclinations is required in the application of the principle.