Is The International Law Commission Elevating Subsequent Agreements And Subsequent Practice

To the extent that it is appropriate to state: in their work on subsequent agreements and subsequent practices regarding the interpretation of contracts42, as well as by many international courts43, the ILC has recognized the need to distinguish between subsequent practice within the meaning of Article 31, paragraph 3, paragraph b), and subsequent practice as a means of interpretation outside of Article 31.3 point (b) – an after-the-fact practice that does not necessarily lead to „agreement” by all parties within the meaning of that provision. After this position, the following practice, which fulfils all the conditions set out in Article 31.3, point b). „It is not the only form of subsequent practice of the parties in the application of a contract that is relevant to the interpretation of the treaty”44 It is often accepted that the weight of interpretation of the subsequent practice does not give rise to agreement within the meaning of Article 31.45, but the possibility of a subsequent practice of producing interpretive effects outside of Article 31 enjoys broad support. Even the ICJ itself – for example in Kasikili/ Sedudu Island (Botswana /Namibia) – appears to have recognized an interpretive value for subsequent practice outside of Article 31.3 B.46.46 „In fact, in practice, the line between the interpretation and modification or modification of a treaty is sometimes „difficult, if not impossible to correct”. In the following paragraphs, the attitude of the reports is contrasted with international jurisprudence and legal texts, in order to facilitate the evaluation of areas in which they may lie between traditionalist and evolutionary approaches. As if the distinction between agreed and other subsequent practices were projected in a context of restrictive/effective dichotomy, the reports indicate that the following practices may have both support and restriction effects, which may limit or broaden the scope of possible outcomes of interpretation. [21] This seems to imply that the ILC does not purport to participate in a policy debate on restrictive or far-reaching interpretations. The emphasis is on the intention to get as close as possible to the „authentic” importance of a treaty. [22] But the „authentic” can also be treated in different ways, i.e. from the point of view of state sovereignty, which would trigger connotations to the rule of thebio-mitius, or by following a term which aims to give a treaty the broadest scope, incompatible with other methods of interpretation of the contract for which the rule of useful effect is used.

[23] The claim to be seeking authentic meaning is therefore not necessarily the same as remaining neutral between these two positions. The relevance of the subsequent practices of international organizations is a closely related topic. In its jurisprudence, the ICJ has used this practice in important decisions, but has left the exact effects of this decision unresolved. It included not only the practice of international institutions, more or less explicitly advocated by the Member States, but also the „own practice” of the institutions. [28] On the other hand, the reports show an attempt to distinguish between the practice of the institutions as such and that of the Member States within those institutions (see section 3.1).

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