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Is the International Law Commission Elevating Subsequent Agreements and Subsequent Practice?

Published on August 30, 2018        Author: 

At its most recent (70th) session, the International Law Commission adopted two important sets of “restatements” on two important sources of international law on second reading, namely the Draft Conclusions on the Identification of Customary International Law and the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (see the ILC’s 2018 Report (UN Doc A/73/10) here). This post concerns the second of these restatements, subsequent agreements and subsequent practice (see Chapter IV of the Report).  In particular, this post expresses a concern about an apparent, almost surreptitious, attempt by the Commission to elevate subsequent agreements and subsequent practice as tools of interpretation to the same level as the more objective tools outlined in article 31(1) of the Vienna Convention of the Law of Treaties. The concern may seem like a storm in a cup – and I hope that is the case.  However,  there is a real possibility – a possibility which could risk the stability of treaties – that the ordinary meaning of the words of a treaty, in their context and in light of the object and purpose of the treaty could give way to ever-changing moods of States expressed through subsequent agreements and subsequent practice. If states don’t like the terms of the treaties they have adopted, they should amend it through the means provided for in the treaty or in the customary rules on amendments of treaties. Amendment through interpretation, a real likelihood if subsequent agreements and subsequent practice were elevated to an independent status of equal value – perhaps some day even greater – to ordinary meaning, in context and in light of the object and purpose, would be a dangerous course.  It is hoped that this implicit suggestion in the work of the Commission is not taken up the practice of courts in the application of article 31.

I should begin by two caveats.  First, this post, like the draft conclusions themselves, concerns only subsequent agreements and subsequent practice in relation to treaty interpretation.  Thus, what is said here does not affect the role that subsequent agreements or subsequent practice might have, say for modification of treaties in general. Second, there is, admittedly, nothing in the draft conclusions themselves that can be interpreted as the elevation of subsequent agreements and subsequent practice.  The (attempted) elevation comes in the commentaries to a number of provisions in the set of draft conclusions.  I should note, in connection with the last-mentioned caveat, that the commentaries themselves seem to have been elevated to a higher position than before – not quite on par with the draft conclusions but certainly approaching that level.  While in the past, it has been understood that the draft texts adopted by the Commission were to be read with commentaries, during the 70thsession, the Commission inserted language as the first paragraph in the general commentary of both second reading topics to emphasise this point, which had not been emphasised in this manner before. Read the rest of this entry…