Object and purpose?

In the discussion above on the meaning of the teleological method of interpretation, no attention was paid to the expression ‘object and purpose’ itself. While this concept is also part of teleological interpretation at a national level, much more discussion on this expression has taken place in an international context.35 _{Therefore, before}

dealing with the question how to establish the object and purpose, it is important to give the meaning of this concept a moment of thought.

Within international law, reference to the object and purpose of a treaty is a common approach, but the notion itself remains rather vague. One of the main ques- tions is whether the object and purpose are distinct or synonymous notions,36 _and

whether they can change over time. This is mainly relevant in order to be as trans- parent as possible about this method of interpretation. If the meaning of the different notions involved is clear, it is much easier to check whether this method is applied in a legitimate manner.

International practice does not provide many clues as to the meaning of the expression ‘object and purpose’. Within the scholarly debate, two alternatives have been defended. On the one hand the position has been taken that the notions ‘object’ and ‘purpose’ can be used interchangeably and that no distinction between the two should be made.37 _{This position is mainly based on English and German theoretical}

discussions. The expression ‘object and purpose’ should thus be considered to refer

33 Linderfalk (2007), p. 205. This claim is supported by Klabbers, who claims that object and purpose can only be the result of parties’ intentions’. Klabbers (1997), p. 150. Linderfalk even claims that the distinction between objective and subjective purpose does not exist in international law. 34 Bernhardt (1988), p. 68 and 71.

35 See for example: Klabbers (1997); Buffard & Zemanek (1997); Linderfalk (2007), p. 207-211. 36 Klabbers (1997), p. 140; Buffard & Zemanek (1997), p. 342; Linderfalk (2007), p. 207-211. 37 Position has been taken by Klabbers (1997), p. 144-148, who refers to many different authors as

well.

Chapter 5

to one notion, which is the general aim of a treaty.38 _{On the other hand it has been}

argued, based on the French theoretical debate, that the two notions should be dis- tinguished. According to BUFFARD& ZEMANEK‘purpose’ refers to the aim of a treaty

and ‘object’ refers to the ‘legal instruments created for achieving the aim’.39_Accord-

ing to this view, connecting the ‘object’ to the ‘purpose’ of a treaty provides a link between the aim of the treaty and its actual provisions and is therefore a restraint on unfettered interpretation.40 _{On this ‘bifurcated’ reading of object and purpose,}

however, other views have been expressed as well. KLABBERShas considered, for example, the object to refer to an ‘immediate goal’ and the purpose to refer to a more distant goal.41

While both positions seem to have some value, it seems that in the international debate the former reflects the view of the majority.42 _{In the context of this thesis}

object and purpose will therefore be used as a single notion. It is interesting to consider this point in the case law analysis and try to find out whether the European Courts make a distinction.

A different matter is whether the object and purpose remain the same over time. This question is strongly connected to the issue of taking a subjective or objective teleo- logical approach. If a subjective approach should prevail, it seems inherently im- possible that the object and purpose can change with the passage of time. Subjective teleological interpretation, as has been determined above, refers to the intent of the original legislator and will therefore not change over time. In cases where an objective teleological approach is followed, reference will be made to the rational or reasonable legislator. Perceptions of what the rational or reasonable legislator thinks or intends can change in time and therefore the object and purpose ascribed to a treaty may change.43 _{This phenomenon has been called ‘emergent’ purpose.}44 _{The extent of}

the change depends on the level of abstraction at which the object and purpose are discussed. The higher the level of abstraction, the more stable an object and purpose are. Therefore a more abstract object and purpose will not change much throughout the existence of a treaty. At a lower level of abstraction the object and purpose might

38 Buffard & Zemanek (1998), p. 323. 39 Buffard & Zemanek (1998), p. 332. 40 Buffard & Zemanek (1998), p. 332.

41 Klabbers referring to Elisabeth Zoller,La bonne foi en droit international public, 1977. Klabbers (1997), p. 144-145.

42 See mainly references by Klabbers (1997), 145-148.

43 Linderfalk also acknowledges that the object and purpose of a treaty can be subject to change, but is unsure in which cases this could be the case. Linderfalk (2007), p. 211.

44 Orakhelashvili (2008), p. 344; Vanneste (2010), p. 224; Jacobs (1969), p. 320, argues that the doctrine of emergent purpose is widely recognized in the context of interpretation of constitutional documents.

Teleological interpretation

change in time, because when interpreting a provision the context of the legal issue that needs to be resolved needs to be taken into account. Both the legal issue and the context are subject to change and can therefore influence the object and purpose of a treaty.45 _{When reviewing the case law of both the ECtHR and the CJEU it is}

interesting to try to find out whether the object and purpose have gone through a change and whether this has been justified in some way or another by the respective courts.