Many treaties place purpose-based limitations on the exercise of a right. Article VI of the 1858 Treaty of Limits between Costa Rica and Nicaragua allows Costa Rica the right of free navigation “for the purpose of commerce.” The 1946 International Convention for the Regulation of Whaling places a moratorium on commercial whaling but allows whaling under special permits “for purposes of scientific research” in Article VIII. Difficulty often arises, however, in testing whether a given state action meets such purposes. A state action often has multiple purposes, and the relative influence of each different purpose can be difficult to determine. This Essay argues that treaties have tended to adopt language that complicates the determination of purpose behind state action, and international fora have, in turn, taken an inconsistent approach to determining purpose.
Part I of this Essay considers the problem of mixed purposes in the General Exceptions clause of the 1994 General Agreement on Tariffs and Trade. Part II delves into the inadequacies and inconsistencies of mixed-purpose jurisprudence in two cases—Costa Rica v. Nicaragua and Australia v. Japan: New Zealand Intervening—in which the issue arose before the International Court of Justice (ICJ). Drawing from international tax law, Part III introduces a standard which examines whether the purpose of a state action meets a threshold of significance, which I argue may address some of the tensions generated by multi-purpose state action.
Introduction
As a theoretical base, I adopt a four-part taxonomy from Andrew Verstein, a Professor of Law at UCLA, who has undertaken a systematic study of mixed-motive jurisprudence in U.S. municipal law. The building blocks of Verstein’s taxonomy are as follows. Motives are divided into acceptable motives (A-motives) and unacceptable motives that qualify the defendant for adverse legal treatment (B-motives). For example, consider a wrongful termination suit. An A-motive for terminating employment could be the employee’s unjustified absenteeism, whereas a B-motive could be racial animus towards the employee. Verstein finds that four common rules have emerged to determine whether a B-motive qualifies a defendant for adverse legal action. These include (1) the Primary Motive, in which the B-motive predominates over the A-motive; (2) the But-For Motive, where the action/omission would not have taken place but for the B-motive; (3) the Sole Motive, in which the B-motive must be the sole motivator of the action/omission; and (4) the Any Motive, where any influence of the B-motive qualifies the defendant for adverse legal action.
Although the terms “purpose” and “motive” are often used interchangeably in municipal and international law, I distinguish between them here to translate the taxonomy into the language of international law. A fundamental challenge in applying any motive-based test in international law is the difficulty of ascertaining a state’s subjective intent or motivation.
States are complex collective entities and tend not to have a single, unified motive for their actions. Moreover, proving subjective motive through direct evidence—such as internal government deliberations—is sometimes infeasible in international adjudication due to issues of access, confidentiality, and diplomatic sensitivity. Consequently, international tribunals frequently opt for more objective approaches focusing on externally verifiable indicia of intent. For instance, WTO adjudicators often look to a measure’s “design,” “structure,” and “operation.” I use the term “purpose” in this Essay to refer to these objective element(s) of state action that international adjudicators consider.
I do not argue that any single mixed-purpose rule is desirable. Instead, I propose that treaty drafters and adjudicators should choose a standard and justify their choice, rather than treat “purpose” as an unstructured inquiry.
Part I: Mixed-Purpose State Action under the 1994 GATT
Trade law offers a good point of departure from which to begin to understand the problems of mixed purposes. Timothy Meyer, a trade law scholar, uses Verstein’s framework to analyze exceptions in WTO agreements. Article XX of the 1994 General Agreement on Tariffs and Trade (GATT), for instance, deals with general exceptions to the substantive trade rules in the GATT:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
- necessary to protect public morals;
- necessary to protect human, animal or plant life or health.
. . . .
To determine whether a measure is necessary for the purpose laid out in the sub-article, WTO adjudicators assess whether a state instituting a measure had less trade-restrictive alternatives reasonably available to it. If the answer is yes, the measure fails the necessity assessment. This test is effectively an “Any Purpose” standard. The measure must not have any purpose other than the legitimate domestic regulation of the fields laid out in the sub-articles. States consequently lack the discretion to choose more or less trade-restrictive measures.
The test for arbitrary or unjustifiable discrimination under the chapeau (the headnote) of Article XX also uses an Any Purpose standard. A measure must entirely serve one of the purposes laid out in the sub-articles of Article XX. Any trade-restrictive objective—such as an aim to discriminate between like products—is fatal.
In Meyer’s view, the WTO adjudicators’ current approach to invoking Article XX is flawed. It does not account for the true significance of Article XX, which is to allow WTO members to balance their trade obligations with their right to pursue legitimate regulatory objectives domestically. In most cases, this means measures seeking protection under Article XX likely have multiple purposes. Given this challenge, Meyer argues that the Any Purpose tests described above ought to be replaced with the Primary Purpose test. This would allow states to promulgate mixed-purpose measures, so long as they are primarily for a legitimate regulatory aim and not primarily protectionist.
This logic can apply to other exercises of rights limited by purpose, at least where states can reasonably be said to be pursuing multiple purposes with a given action. The first step of the inquiry must therefore ask whether it is plausible that a state would act for multiple purposes. The second must determine if the treaty provision contemplates simultaneously pursuing multiple purposes. With this in mind, I now examine two ICJ cases involving the issue of mixed purposes.
Part II: Examination of ICJ Case Law
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)
Costa Rica v. Nicaragua is illustrative because the Court dealt with the question of whether a right of commercial navigation conferred by a treaty could allow some non-commercial navigation within its ambit. At issue was Costa Rica’s right of navigation under the 1858 Treaty of Limits between the two countries. Under Article VI of the Treaty, Costa Rica had a right of free navigation “for the purposes of commerce” on a section of the San Juan River, the southern bank of which formed the border between the two states. In the Court’s view, “the Parties did not intend to establish any hierarchy as between Nicaragua’s sovereignty over the river and Costa Rica’s right of free navigation.” In other words, the structure of the division of rights was not of a rule-exception nature; Costa Rica’s right of free navigation was not an exception to Nicaragua’s right of territorial sovereignty.
Interpreting the phrase “for the purposes of commerce,” the Court observed that “expressly stating the purpose for which a right may be exercised implies in principle the exclusion of all other purposes and, consequently, imposes the limitation thus defined on the field of application of the right in question.” This is an expression of the Any Purpose standard. The exercise of the right of free navigation for any purpose other than commerce is prohibited.
Was the use of this standard justifiable or appropriate in interpreting the 1858 Treaty of Limits? To answer this question, we pursue two lines of inquiry.
First, would the Costa Rican state or its citizens likely exercise their rights of free navigation for multiple purposes on any given trip? On any given trip, the Costa Rican state and its citizens likely did not make use of their navigation rights to pursue more than one concurrent purpose, given that their right could be exercised broadly in four largely mutually exclusive ways:
- commercial private navigation, encompassing the “navigation of vessels carrying goods intended for commercial transactions; and that of vessels carrying passengers who pay a price other than a token price in exchange for the service thus provided”;
- non-commercial private navigation, including navigation comprising the ordinary movement of Costa Ricans living in villages along the riverbank as part of their day-to-day life;
- navigation of official vessels for commercial purposes, such as the movement of revenue vessels; and
- navigation of official vessels for non-commercial purposes, such as the movement of police vessels.
Indeed, one can imagine some situations where the purpose of navigation comprises more than one of these categories—for instance, a Costa Rican citizen in transit between villages who also sells fish from their vessel along the way, or an official vessel of the revenue service that simultaneously performs some police functions. For the most part, however, these categories appear mutually exclusive.
Second, does the Treaty of Limits contemplate the pursuit of multiple purposes in its conferral of the limited right of free navigation? The answer to this question is less clear. To the extent that commercial navigation operates to the exclusion of non-commercial navigation, it seems the answer is no. However, adding a qualifier to the phrase—only for purposes of commerce or primarily for purposes of commerce—would have made the answer far clearer.
The application of the Any Purpose standard, then, is at least defensible in this case, even if an argument can be made that a Primary Purpose standard would be preferable.
The Court’s formulation of the Any Purpose standard—“expressly stating the purpose for which a right may be exercised implies in principle the exclusion of all other purposes” —may have been meant as an abstract, general endorsement of the Any Purpose standard. Such a proposition seems overly broad and rigid. As discussed below, the ICJ appears to have refrained from affirming this principle in its subsequent Whaling decision.
Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening)
Five years after the decision in Costa Rica v. Nicaragua, the ICJ had another opportunity to interpret a purpose-limited right as applied to a purportedly mixed-purpose state program. In the 2014 Whaling in the Antarctic case, at issue was Phase 2 of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II). As a party to the 1946 International Convention for the Regulation of Whaling (ICRW), Japan was subject to a commercial whaling moratorium. To justify its whaling program, Japan invoked an exception to the moratorium—Article VIII of the Convention—that allowed whaling “for purposes of scientific research.”
Australia, the applicant, contended that JARPA II was a commercial whaling program and therefore could not claim the exception. In its memorial, Australia relied on the decision in Costa Rica, arguing that the exception required that the whaling could only be for purposes of scientific research, to the exclusion of other purposes. However, the Court did not directly address the question of whether the pursuit of a scientific research purpose excluded the pursuit of other purposes in its merits judgment. While acknowledging that states often simultaneously pursue multiple objectives, the Court observed that “an objective test of whether a programme is for purposes of scientific research does not turn on the intentions of individual government officials, but rather on whether the design and implementation of a programme are reasonable in relation to achieving the stated research objectives.”
As some commentators have observed in response, the Court seemed to have sidestepped the question of what mixed-purpose rule to apply. It relied instead on a standard of review that asked broadly whether the approach adopted by the whaling program was reasonably related to a scientific research objective. In other words, rather than asking if Japan really intended to carry out scientific research with JARPA II, the Court asked instead if JARPA II was a reasonable way to conduct scientific research. A crucial question that the Court considered, which illustrates the thrust of this approach, was whether lethal sampling (killing the whales) was necessary to achieve Japan’s stated scientific research objectives. The question of whether JARPA II approached scientific research in a reasonable manner is of some relevance to determining Japan’s aim. However, the following discussion makes clear that a more straightforward inquiry into commercial versus scientific intent was more suitable.
The Court’s approach here was criticized in the dissents of Judge Bennouna and Judge Abraham as unjustifiably avoiding an examination of JARPA II’s true aim. This method could perhaps be explained in part by the difficulties of imputing motive to government action, as discussed in the introduction. Nevertheless, the Court still could have objectively examined aspects of the program that amounted to evidence of commercial or research intent. A demonstration of this approach can be found in Judge Bhandari’s separate opinion. Judge Bhandari found the following facts to be relevant to evince commercial intent, inter alia: the establishment of a new whale meat wholesaler company with the support of the Japanese government and Japan’s statements opposing the moratorium on commercial whaling (although I make no comment on whether Judge Bhandari was correct to infer commercial intent from these facts).
Recall again that the two-part inquiry asks, first, if it is plausible that a whaling program could have multiple purposes, and second, whether the ICRW contemplated the pursuit of mixed purposes. Several of the separate and dissenting opinions address these two questions. Judge Greenwood noted in his separate opinion that JARPA II had multiple purposes. He observed that the fact that whale meat obtained from the whaling program at issue was sold to Japanese consumers did not itself disqualify the whaling program from justification under the scientific research exception.
Judges Yusuf and Owada also expressed the view that good faith on Japan’s part must be presumed. That is, JARPA II must be presumed to be for purposes of scientific research, and the burden was on Australia to show otherwise. Judge Yusuf read the exception to require a preponderant scientific research purpose, with concurrent subsidiary commercial purposes being permissible. The preponderance of the scientific research purpose was to be presumed in good faith, rebuttable by a clear showing that the program had commercial whaling as its preponderant purpose. Similarly, Judge Owada in his dissent observed that the ulterior motives of individuals involved in the action were irrelevant in principle, unless Australia established by convincing evidence that such motives played a preponderant role in formulating and initiating the program.
Judge Bhandari, however, endorsed the “Any Purpose” standard in his reading of the Convention as “envisag[ing] only three exhaustive and mutually exclusive purposes for whaling: (i) scientific research; (ii) commercial enterprise; and (iii) aboriginal subsistence.” In sum, we can gather from the discussion thus far the following. First, in contrast to our understanding of navigation in Costa Rica, whaling programs like JARPA II are more naturally modeled as multi-purpose undertakings. While the merits judgment presumed JARPA II to be for the purpose of scientific research and largely avoided a direct inquiry into the intent behind the program, some of the separate and dissenting opinions characterized the program as multi-purpose. Second, it is unclear whether the ICRW contemplates the pursuit of multiple purposes. As with the Treaty of Limits in Costa Rica, adding a qualifier to the exception—only for the purposes of scientific research, or primarily for the purposes of scientific research—would make clear the applicable standard. The Court in Whaling had the opportunity to develop on its earlier mixed-purpose jurisprudence from Costa Rica but stayed silent on the question. Neither the merits judgment, nor the separate and dissenting opinions in Whaling contend with the possibility of a program that pursues scientific and commercial aims in equal or comparable measure. While JARPA II might not reasonably have been characterized as such a program, this still indicates a potential gap in international law’s mixed-purpose jurisprudence. To address this gap, I explore a fifth “Significant Purpose” standard in Part III.
Part III: Adding to Verstein’s Taxonomy: “Significant Purpose”
It is possible that some state action pursues concurrent purposes in equal or comparable measure. In such a case, the four standards described thus far appear inadequate to adjudicate the legality of the state action.
Insights from international tax law may offer a solution. The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) has as one of its aims the prevention of tax treaty abuse. One tool available to MLI State Parties is the incorporation of what is known as the Principal Purposes Test (PPT) into their Double Taxation Avoidance Agreements. Although the test’s name might suggest that it involves examining whether the principal purpose of some arrangement is to abuse the treaty, the test is subtly more nuanced (see, for example, the S.C. Lowy case). The test requires tax authorities to assess whether one of the principal purposes of the arrangement—in terms of the subjective intent of the assessee(s)—is obtaining the treaty benefit. If yes, the treaty benefit will not be granted, unless it was the objective of the treaty to grant such benefit.
Unlike the Primary Purpose standard, the test imagines that a business arrangement can have multiple principal—or significant—purposes. Under the PPT, if the purpose of obtaining a treaty benefit is illegitimate in light of the treaty’s objective and crosses a threshold of significance, the respondent will face adverse legal action. To generalize this beyond the PPT, any illegitimate purpose must cross a threshold of significance to invite adverse legal action. Therefore, a potential fifth standard for international agreements emerges: the Significant Purpose standard.
Conclusion
To quote Andrew Verstein, “[i]t is not essential that all courts use the same mixed motive standard in all cases, but it is essential that courts know what their options are, know what is at stake in the standard they select, and know how to communicate the standard to future litigants.” The same appears to be true of the international law equivalent. That is, international law generally ought to account for the fact that state action is very often driven by mixed purposes.
Future treaties would benefit from making explicit the permissibility of mixed-purpose action, as well as explicitly setting out the threshold for state action to qualify as meeting some purpose. This threshold could be one of the four standards drawn from Verstein’s taxonomy, the “Significant Purpose” standard described in Part III, or a standard not captured by this Essay. Parties to a treaty will consequently better understand the scope of their entitlement under purpose-based rights conferred by the treaty. If interpreting a treaty without an explicit threshold, adjudicators should make evident their choice of standard for determining purpose, and justify the choice. Such structured inquiries would allow for clearer comparisons of treaty language and context, potentially enabling the development of a more systematic mixed-purpose jurisprudence in international law.