CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … only be ascertained in each individual case and in the light of the commitments made under the treaty in question.” 58 Because treaties are oftentimes normative nowadays – as opposed to purely contractual – we cannot only focus on not destroying a treaties very essence by making its entry into force meaningless; but rather, we should also focus on not defeating the normative value of the treaty. 59 Normative treaties can be multilateral. The application of the interim obligation should be equally applicable to multilateral as well as bilateral treaties. 60 Initially, the global community was not determined whether the interim obligation would be a moral obligation as per the suggestion in the Harvard Draft of 1935, or as it is now treated, a legally binding obligation. 61 We now treat it as a legal obligation. Article 18 is a good faith principle that “protects the legitimate expectation of the other participants in the treaty-making” process by reassuring the actors (including, perhaps, non-state actors such as individuals, too 62 ) that the state will “not work against the object and purpose of its acceptance”. 63 Now to the topic of the day, namely, the object and purpose of the UNCSI is clearly to adopt a restrictive theory on immunity. This is done by asserting a general rule of immunity and then enumerating several exceptions. 64 Additionally, the interim obligation can be divided in interim obligation(s), in plural. The effectiveness of the article would otherwise diminish because a treaty can obviously pursue more than one purpose. 65 China never made clear its intention not to become a party to the convention. 66 Only upon such formal rejection could China have been considered to have relieved itself of its interim obligations. 58 Ibid 711-712. 59 See Dörr & Schmalenbach, (n 52) 220. cf KLABBERS, Jan , ‘How to Defeat a Treaty’s Object and Purpose Pending Entry into Force: Toward Manifest Intent’ (2001) 34 Vanderbilt Journal of Transnational Law 283. I argue, moreover, that the interim obligation(s) would be futile in treaties that regulates future conduct (normative) rather than to preserve something (e.g. contractual) if the threshold is that the action must defeat the object and purpose so as to make the provisions of the treaty “meaningless”. One should embrace the principle of effective interpretation in this context, namely, effet utile . See ibid 234 (“It is submitted that for reasons of the effet utile of Art 18, the exact meaning of the obligation to “refrain” can only be determined in every individual case in the light of the commitments made under the treaty.”). 60 See Gragl & Fitzmaurice, (n 46) 700. 61 See 1935 Harvard Draft Convention on the Law of Treaties, 778; Dörr & Schmalenbach, (n 52) 2020 and 224 ( see e,g, “The interim obligation laid down in Art 18 is basically an obligation of good faith, thus an explicit manifestation of the general principle of good faith, which is inherent in the law of treaties, and indeed in the whole of international law.” See also “In the ILC, it was SR Waldock who, following the example set by SR Lauterpacht and SR Fitzmaurice, regarded the interim obligation as being a legal duty and introduced four provisions on the subject in his first report in 1962.”); and Gragl & Fitzmaurice, (n 46) 703. 62 See New Haven School below. 63 Dörr & Schmalenbach, (n 52) 220 and 231. 64 See Crawford, (n 3) 489-490. See also Hobér, (n 3) 502 (“The importance of the Convention is that it clarifies the exceptions to [the general principle of immunity]. In particular, it generally embraces the restrictive theory of sovereign immunity”). See Fox & Webb, (n 12) 1,129. See also Dörr & Schmalenbach, (n 52) 232 (“’object and purpose’ refers to the reasons for which the States concluded the treaty and to the general result, which they want to achieve through it.”). 65 Dörr & Schmalenbach, (n 52) 232. 66 Article 18(a) and Gragl and Fitzmaurice, (n 46) 704 (“The prime example of how a State can make clear its intention not to become a party to a treaty is the withdrawal of the United States signature from the Rome


Made with FlippingBook flipbook maker