Repotesriana defeated the object and purpose of the Global Oleafa Protection Compact

I. Repotesriana violated international law by permitting its nationals to engage in collection of blue oleafa.

Under the Compromis, Repotesriana permitted its nationals to harvest the blue oleafa, which is prohibited by international law. Since such actions are attributable to Repotesriana, because, under the 1928 Convention it is Repotesriana which possesses the “authority to authorize harvesting of blue oleafa”[1], and it was Repotesriana which permitted “its nationals to engage in collection of blue oleafa”[2], Repotesriana violated international law, namely,

1) a customary rule not to “defeat the object and purpose of a treaty when it has signed the treaty”, and

2) an international custom prohibiting harvesting of blue oleafa.

A. Repotesriana violated a customary international rule not to “defeat the object and purpose of a treaty when it has signed the treaty”

Repotesriana is obliged not to defeat the object and purpose of the Global Oleafa Protection Compact

Under the Compromis, Repotesriana has signed but not ratified the Global Oleafa Protection Compact, which prohibits harvesting of all species of oleafa. There is a customary international rule crystallized in the Vienna Convention on the Law of Treaties (1969) that “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty”[3]. The customary character of the norm “not to frustrate the object of a treaty prior to its entry into force”[4] is proved by both necessary elements of a custom[5]. The existence of state practice and opinio juris is demonstrated by

- the International Law Commission (ILC)[6] which underlined that the rule concerned “appears to be generally accepted”[7]

- decisions of the Permanent Court of International Justice[8],

- the fact that mentioned rule had been enshrined in Draft articles on the Law of Treaties of 1962, 1965 and 1966[9] adopted by the ILC

Thus, since Repotesriana has signed the Compact and the customary international law is generally binding for all states (with exception to local or regional custom, which is not applicable in the present case)[10], Repotesriana is obliged to “refrain from acts which would defeat the object and purpose of” the Global Oleafa Protection Compact.

Repotesriana defeated the object and purpose of the Global Oleafa Protection Compact

There is no official meaning of the terms “object and purpose of a treaty”, however some scholars recognize under them “the “essential goals” of a treaty”[11]. The Global Oleafa Protection Compact protects all species of oleafa. Under protection it is obviously understood the prohibition of harvesting and collection of the oleafa including the blue one. The mentioned provisions are to be regarded as the essential goals”, otherwise the Compact would have been “meaningless”[12].

Under the Compromis Repotesriana authorized collection of the blue oleafa. Since such actions contravene the most essential goals of the Compact, Repotesriana violated customary international rule not to defeat the object and purpose of the Treaty.

Date: 2015-12-11; view: 757