The Obligation not to Defeat the raison d'etre of a Treaty: The Legal Nature of Article 18 VCLT and New Developments in the Law of Treaties

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Article 18 of the Vienna Convention on the Law of Treaties (VCLT) imposes an obligation on States not to defeat the object and purpose of a treaty prior to its entry into force when: (a) it has signed 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. Thus, whereas treaties do generally not have legal effect before becoming effective, Article 18 entails certain limitations upon the freedom of action of States that have signed or ratified a treaty. However, the contours of Article 18 are blurred. Existing academic literature relating to the provision is sparse, State practice is fragmentary, and no international tribunal has ever provided a thorough analysis of the obligation. There is also concern that the provision is less prone to creating a well-defined obligation in relation to law-making treaties than contractual treaties, wherefore there is a need to examine if a certain type of treaty may call for an 'adjusted' application of Article 18 in order to preserve the effectiveness of the provision. Moreover, with the ensuing emergence of multilateral environmental agreements and the need to ensure the efficient managing of such, certain 'new' methods of expressing consent to be bound have evolved, including decisions of Conferences of the Parties, non-compliance procedures, and tacit acceptance procedures. These may fall under the methods of expressing consent regulated by the VCLT regime, but the crucial question is if, and in that case from what time, Article 18 applies and triggers the interim obligation and if it can be utilised in defining States' obligations in addressing environmental problems. This issue is unexplored in academic research in its entirety. Another issue which is under-researched in the law of treaties is the nexus between Articles 18 and 25 VCLT, and whether the application of Article 18 extends to the provisional application of treaties. This thesis accordingly seeks to provide a comprehensive answer to the question of what the legal nature, scope and content of Article 18 VCLT is. As such, the thesis answers the following sub-questions: a) what is the genetic foundation of the provision; b) when can certain conduct be said to 'defeat' the object and purpose of a treaty; c) what role does the principle of good faith play in relation to Article 18; d) within what temporal frameworks does the provision apply, does the application of Article 18 extend to the provisional application of treaties, and how does the provision cope with new developments in methods of expressing consent to be bound; and e) how does Article 18 fit within the realm of law-making treaties as compared to contractual treaties?In order to answer these questions, the thesis brings together two forms of methodologies; a doctrinal method and a qualitative approach to empirical legal research, examining what contemporary understandings States have of Article 18 VCLT through the use of a questionnaire. The information collected may serve to contrast or confirm the doctrinal findings, and further enables the thesis to engage in a critical discussion from a contemporary point of view.