조약 발효 전의 잠정적 의무에 관한 소고

Some thoughts on the Interim Obligation of the Vienna Convention on the Law of Treaties - An Analysis of Article 18 of the Vienna Convention on the Law of Treaties -

Under Article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), States that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty pending its entry into force. For over forty years scholars, international courts, and tribunals looked to Article 18 of the VCLT to assess the action of signatory States in light of their obligation to refrain from defeating the object and purpose of a treaty. As treaty-making continues to predominated in the development of international law, it seems entirely appropriate to inquire into the content and contours of the meaning of "defeat" as it is employed in Article 18. While the interim obligation has been recognized in various international legal systems, it remains unclear how to determine whether the interim obligation is being violated. Thus, continuing research on the test which can clarify the meaning of defeat the object and purpose of treaty pending its entry into force would be made. In this article, I have tried to look into the meaning of the interim obligation, which is provided in Article 18 of the VCLT in three parts. First, I explore the meaning and purpose of Article 18 of the VCLT. Second, reviewing historical records of the drafters of Article 18 of the VCLT, I tried to point out that the rationales under which the drafters of Article 18 of the VCLT felt compelled to include as a component of the VCLT a significant interim obligation on the part of signatories. Lastly, I tried to explore strengths and weaknesses of several tests, including the essential elements test, the impossible performance test and the manifest intent test in terms of clarifying the meaning of "defeat" the object and purpose of treaty pending its entry into force.