How to determine the object and purpose

The question of how to determine the object and purpose is closely tied to the previous question on whether the subjective or objective reading of purpose should be adhered to. Depending on the choice of subjective or objective approach, different indicators might play a role in establishing the object and purpose. Subjective purpose refers to the actual purpose of the author of the legal text, while the objective purpose involves a search for the purpose of a reasonable author. It is therefore relevant to reflect on the different theoretical views on what can be considered an appropriate way to establish the (subjective or objective) object and purpose.

While both national and international theoretical literature on the teleological method have been consulted, for this discussion the international context will be most relevant. The national context is really different with regard to the type of documents that can and should be considered in determining object and purpose. Despite the fact that the European Convention and the EU treaty are particular kinds of treaties, they remain international treaties that have been established in a manner distinct from national constitutions. The role and reliability of, for example, preparatory documents, liketravaux préparatoires, is different from the role and reliability of preparatory documents in the national context.46_{Guidance on how to establish object and purpose}

should therefore be found in international legal theory, rather than in legal theory that is directed at national or constitutional interpretation. This matter has, however, not been extensively addressed in international law literature.47_{As a result this section}

will only provide a rather general overview of different aspects that could play a role in determining which documents may be consulted for the purpose of teleological

45 Klabbers (1997), p. 149-150.

46 Travaux préparatoiresare often referred to as not reflecting the intentions of the parties in a reliable manner. Moreover, the fact that some State Parties join later and are not represented in thetravaux préparatoiresis an additional factor leaving them less relevant. Both factors differ from a national context. See Orakhelashvili (2008), p. 382-387, on a critical dicussion of the value of thetravaux préparatoires.

47 Klabbers (1997), p. 156.

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interpretation. The next sections, dealing with both courts individually, will address the specific situation of each court.

As often in the context of this thesis, the Vienna Convention provides a good starting point for a discussion on how to determine the object and purpose of a treaty. Articles 31 and 32 of the Vienna Convention refer to different types of documents that can be consulted in the interpretation process. These include agreements or instruments created after the conclusion of the treaty and accepted by all parties and subsequent agreements or practice between the parties. The preparatory works only have a subsidiary place in the interpretation process. The category of supplementary means of interpretation appears not to be limited. Many different documents could be included on the basis of this provision.48_{The commentary to this provision, however,}

refers almost exclusively to thetravaux préparatoires.49 _{It therefore seems that on}

the basis of this provision mainly thetravaux préparatoiresare allowed as a secondary source in the interpretation process. In order not to exclude relevant evidence, the term travaux préparatoireshas not been defined and a general reference has been chosen.50

The question whether a subjective or objective teleological approach will be taken to interpret a certain treaty determines to some extent the documents that may be taken into consideration. For a subjective approach, thetravaux préparatoiresplay a signi- ficant role, since they reflect the intentions of the original legislators.51_{The fact that}

preparatory works are regarded as supplementary tools for interpretation reveals their limited relevance in the interpretation process. This implies that the Vienna Conven- tion, at least, does not support an entirely subjective approach.52

In order to establish the objective purpose, and also to some extent the subjective purpose, the text of the treaty plays a significant role. The main elements of the text of the treaty that should be considered are the title, the preliminary provisions, but also the preamble of a treaty.53 _{They provide strong indicators of its object and}

48 Aust (2000), p. 200.

49 Commentary to articles of Vienna Convention, Yearbook of International Law Commission, 1966- Vol. II, p. 222-223.

50 Commentary to articles of Vienna Convention, Yearbook of International Law Commission, 1966- Vol. II, p. 223.

51 Villiger (2009), p. 444, indicates that the travaux préparatoiresare often relied upon to take a subjective approach. See also Barak (2005), p. 135-136 and 140, referring to the legislative history as a factor that helps to establish the subjective purpose.

52 McDougal claims that the reference to object and purpose in the Vienna Convention does not support reference to the actual subjectivities of the parties’, but that the text reflects the real object and purpose. McDougal (1967), p. 272-273.

53 Klabbers (1997), p. 156-157; Buffard & Zemanek (1998), p. 328. The Vienna Convention also refers to the relevance of the preamble in art. 31.

Teleological interpretation

purpose.54 _{The category of documents that is relevant to establish the objective}

purpose of a treaty can, however, be much broader than the text and its preamble. While other documents might be accepted when establishing the objective purpose, the further removed the documents are from the actual text of the treaty, the more important it is that a proper explanation is given why these documents are consulted. After all, a (too) lenient approach to the use of different documents might generate accusations of judicial activism. The only problem is that no general guideline can be given as to what can be considered as ‘too lenient’. This depends on one’s perspect- ive on the role of the judge. How to deal with this problem will be discussed below. A different aspect that, rather obviously, plays a role in determining the most appro- priate documents for reference, is the availability of documents. The availability not only has consequences for the type of documents that can be consulted, but also for the interpretative approach that will be taken (objective or subjective). If, for example, thetravaux préparatoireshave not been published, they cannot be consulted, which means that a subjective approach seems hardly possible. Especially in the case of multilateral treaties where not all parties have taken part in the negotiation process, it might not be reasonable to use the travaux préparatoires to establish the object of the treaty. More recent parties to the treaty cannot be held to comply with docu- ments they have never been able to discuss.55_{In this context it should be noted that}

DWORKINhas argued against the use of authorial (legislative) intent in interpreting

legislation, albeit in the national context rather than in the context of international law, mainly because of the problems involved in basing authorial intent on legislative history.56_{These difficulties primarily arise in the context of establishing the subjective}

purpose. In the context of establishing the objective purpose the availability of (pre- paratory) documents is not much of an issue, because of the prominent role of the preamble, the text, the title and general clauses of a treaty.

Apart from these factors, KLABBERSholds that common sense and intuition can

be ‘useful indicators’ of object and purpose.57 _{This is probably true and these indi-}

cators might be helpful, but they are far from being objective indicators. Reliance on common sense and intuition makes an interpretation entirely dependent on the person of the judge. That is not a very desirable situation and preference should be given to objective indicators that lie outside the person of the judge. Common sense

54 See Klabbers (1997), p. 156, who lists several indicators of the object and purpose on the basis of an analysis of cases by international courts. See also: Villiger (2009), p. 428; Orakhelashvili (2008), p. 343.

55 Aust (2000), p. 199.

56 Dworkin (1986), ch. 9; MacCormick (2005), p. 135, referring to Dworkin; Barak (2005), p. 228, also referring to Dworkin.

57 Klabbers (1997), p. 155.

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and intuition may lead to the right direction, but references to documents are still always needed in order to test or support that initial assumption.