What is the impact of where topics are placed within the Agreement, eg. Loss and Damage? Does the placement affect the force of a particular provision, or of the agreement as a whole?
More specifically:
a) What is the legal status of the Preamble versus other sections of the agreement?
b) What is the legal status of the Objective versus other sections? Or to put it another way, what are the legal implications of moving something into the Objective section versus another section? Is putting something in the Objective section less “implementable” or is there less pressure to act upon it?
c) Does the Objective have the same impact as the Preamble, or a lesser impact?
Summary:
Treaty provisions that create obligations binding on the parties should be located in the operative articles or annexes rather than the Preamble. The Preamble though may be used to interpret terms in the operative provisions of the treaty. The object and purpose of the treaty, in the light of which the treaty is interpreted, may be found in either or both of the Preamble or the Objective section.
Advice:
This advice will deal with the specific questions in turn:
a) What is the legal status of the Preamble versus other sections of the agreement?
Treaty Preambles usually consist of sets of recitals. These recitals commonly include considerations which played a part in drawing up the treaty and the motives of the parties in entering into the treaty. As a matter of form, the Preamble is not the appropriate place for stating obligations, which are usually stated in operative articles of the treaty or in annexes.
The Preamble may be used to interpret terms in the operative provisions of the treaty. Treaty terms must be given their ordinary meaning in their context and in light of the treaty’s object and purpose (Vienna Convention on the Law of Treaties 1969, Article 31(1)). The context includes the text of the treaty, and the text includes the Preamble (Article 31(2) VCLT). Accordingly, the Preamble may be used to interpret treaty terms in two ways. First, the Preamble forms part of the context of the terms. Secondly, the Preamble may indicate the object and purpose of the treaty. Thus, Preambles are “of both textual and teleological significance”.
b) What is the legal status of the Objective versus other sections?
The legal status of a treaty provision ultimately depends on the terms of that provision. Having said that, if the provision is located in the “Objective” section of the treaty rather than another section, the provision is more likely to be used in understanding the object and purpose of the treaty, and thus in interpreting other terms of the treaty. A provision located in another section may still be used to understand the object and purpose of the treaty. However, the International Court of Justice tends to look to Preambles and the “Objective” sections of treaties to understand their object and purpose.
The extent to which a treaty provision creates a binding obligation depends on the terms of that provision rather than its location. A distinction may be drawn between provisions that create binding obligations, and those that are interpretative. The latter may illuminate the object and purpose of the treaty or may give a special meaning to a particular term (Article 31(4) VCLT). The fact that a provision is located in the Objective section may mean that it will be understood as an interpretative provision rather than one creating binding obligations.
c) Does the Objective have the same impact as the Preamble, or a lesser impact?
This question overlaps with the previous two. Assuming that the provision concerns the object and purpose of the treaty, it will probably have the same impact whether it is located in the Objective section or the Preamble. Article 31 VCLT does not state where the object and purpose of the treaty should be sought. Traditionally the object and purpose are sought either in the Preamble or in a general clause at the beginning of the treaty.
The Oil Platforms case before the ICJ illustrates that the object and purpose of a treaty may be found in either or both the Preamble or the Objective. The Court found the object and purpose of the 1955 Treaty of Amity in its Preamble. This object and purpose included closer economic intercourse and the regulation of consular relations. The Court then interpreted Article 1 of the Treaty in light of this object, to find that this article fixed an objective of peace and friendship. The Court then interpreted other treaty provisions in light of this objective.