A definição costumeira de "objeto e finalidade" de um tratado a partir da formulação de reservas dos Estados às convenções

Abstract

The present study tries to answer the following question: is there a customary definition of the ‘object and purpose’ of a treaty? Firstly, it argues that the jurisprudence, treaty law and literature did not define it, by analyzing the 1951 ICJ’s advisory opinion regarding Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide; the Vienna Convention on the Law of Treaties of 1969, article 19(c); and the ILC’s Guide to Practice on Reservations to Treaties of 2011. Secondly, it argues that the search for the definition of the term should be based on customary international law because, by its very nature, it would then be a general, uniform, and representative meaning. Thirdly, it searches for the existence of the customary definition in the formulations of reservations and in the objections to them because it represents a unique opportunity where States must make their opinions clear on what the term means and on how it is applied in the instruments to which they are parties. Finally, it concludes that the flexible system created by the test of compatibility with the ‘object and purpose’ of a treaty, although allowing for a bigger participation of States and ensuring their consent, also brings such a subjectivity to the theme that it renders a general definition of the term impossible but gives directions on how to assess it on an individual basis.