CYIL vol. 11 (2020)

YLLI DAUTAJ CYIL 11 (2020) immunity from execution as touched upon in the FG Hemisphere case. This paper makes broader contrasting points on the Chinese overall agreeable diplomatic attitude with respect to the restrictive theory on immunity, on the one hand, and its practical disregard for its implementation, on the other. Last but not least, one technical detail should be mentioned at the outset; that is, neither the non-retroactivity provision in the VCLT (Article 28) nor in the Convention (Article 4) mean that the Convention has no effect because it has not entered into force. Article 18 “lays down the obligation of the States Parties not to defeat the object and purpose of a treaty prior to its entry into force. Art 18 does not constitute a retroactive provision; it is not an exception to Art 28”. 53 a. VCLT Article 18: A Legally Binding Interim Obligation of Good Faith Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force 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. “Historically, the constitutive rules of international law viewed unratified treaties as unperfected acts that generate no rights or obligations”. 54 However, the VCLT “purported to ‘progressively develop’ this dimension of treaty practice by going beyond customary international law and imposing an obligation on a signatory to act in such a way as not to frustrate the object of the treaty until such time as the signatory had decided not to ratify the treaty”. 55 In a word, Article 18 “sets out an obligation for those States that have committed themselves in a formal way to a treaty, but are not yet bound by that treaty itself.” 56 This is not a form of provisional application. That could be created through another instrument. Additionally, the interim obligation does not “give full effect to the substance of the treaty”; instead it “creates an autonomous obligation, taking the purpose of the treaty as a point of reference and protecting it by means of a reduced obligation”. 57 Thus, not every deviation is an action defeating of the object and purpose of a treaty, and the meaning of “’refrain’ can 53 DÖRR, Oliver and SCHMALENBACH, Kirsten (eds.), Vienna Convention on the Law of Treaties (Springer 2012) 469. 54 Reisman, (n 51) 742. 55 Ibid. 56 Dörr and Schmalenbach, (n 52) 219. 57 ibid 220. See also ibid 231 (“That content is necessarily geared toward the content of the treaty, influenced and determined by it, but it cannot amount to full compliance with its provisions, since the latter is not owed by the parties before the entry into force of the treaty. The very rationale of the interim obligation, founded on a general principle of international law and not on the specific treaty […], requires a substantial difference, not merely one of degree, between the obligations flowing from the treaty and those under Art 18. In this respect, the interim obligation is to be distinguished from the provisional application of the treaty under Art 25 VCLT. Nevertheless, the content of the treaty is of some significance for determining 31 the interim obligation.”). See finally Gragl & Fitzmaurice, (n 46) 700 (“It represents a middle ground between there being no obligations at all and full commitment to the treaty.”).


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