The Object and Purpose of a Treaty: Three Interpretive Methods

David S. Jonas, Georgetown University
Thomas N. Saunders, Georgetown University Law Center

Abstract

The Object and Purpose of a Treaty: Three Interpretive Methodologies ABSTRACT Within the Vienna Convention on the Law of Treaties, the term “object and purpose” is used eight times but is not defined, and it is now the point of focus in a range of current and momentous international law controversies. This paper examines the Vienna Convention’s three most prominent uses of the term and argues for a more refined understanding of each. First, the rule that a treaty be interpreted “in light of” its object and purpose requires a process of interpretation that oscillates between the specific and the general—between the individual provisions of a treaty’s text and the normative logic of those provisions when taken as a whole. In the context of reservations, the object and purpose test exists to preserve rule coherence and rule legitimacy as those terms have been developed by Professor Thomas Franck. Lastly, in the time between signature and ratification of a treaty, states are required not to “defeat” the treaty’s object and purpose. Scholars have repeatedly tried and failed to define the precise scope of this prohibition using a variety of tests: the impossible performance, manifest intent, and essential elements test, for example. This paper argues for a new and better test—the facilitation test—which facilitates domestic review of pending treaties by preserving the status quo at the time of signature and thus tempering gamesmanship between signatories. In sum, this paper examines a term of art that has perplexed international law scholars and practitioners for decades, and in three specific contexts, it offers an understanding of those terms refined beyond what has been offered by other writers.