CYIL Vol. 6, 2015

MILAN LIPOVSKÝ CYIL 6 ȍ2015Ȏ concluded together with the amendments of already existing treaties where the term “all the parties” is undoubtedly clear. In my opinion, since it is not without problems to assume that those parties that were not present anymore during the vote agreed to the Understandings, article 31(2) (a) VCLT is not helpful regarding the Understandings, and, for the same reason, neither is article 31(2)(b) VCLT. Under the latter provision the parties would need at least to accept the instrument. And since they have not done so, I see the first opportunity for them to do so at the conference to be held in 2017 at the earliest. As such, the Understandings do not fit in this category of primary means of interpretation. On the other hand, should it be considered that delegations of State Parties that already left Kampala when the resolution (including the Understandings) was adopted, actually agreed to the Understandings by not expressly raising a negative voice (however unlikely it seems), the Understandings would fit into the category of an interpretative instrument according to article 31 (2) (b) VCLT. 3.3 Subsequent agreements VCLT does not require subsequent agreements to be adopted by all the parties, as it does in article 31 (2) (a) in relation to agreements made together with the treaty. There are opinions claiming that the parties agreeing upon a subsequent agreement do not need to be “all the parties”, as it would be a logical result. However, I cannot believe that only several parties could significantly alter the interpretation of a multilateral treaty in a binding way for all the other State Parties against their will. Such an idea feels like it goes against any legal instinct. After all, the International Law Commission’s argument (in a commentary to what later became article 31 (3) (b) VCLT that also lacks the word “all”) claims that omitting the word “all” does not mean that unanimity is not required. Quite the opposite, in the original wording of this article “the understanding of the parties” was supposed to mean the parties as a whole. 31 So the Understandings may not be considered a subsequent agreement due to the non-presence of several delegations. It is possible though that they could be adopted by all the State Parties during the next review conference. If that successfully occurred, the status would be clear – a subsequent agreement.

31 (Then Draft) Articles on the Law of Treaties with commentaries (1966), ILC, Yearbook of International Law Commission, 1966, vol. II, available from http://legal.un.org/docs/?path=../ilc/texts/instruments/ english/commentaries/1_1_1966.pdf&lang=EF [last access on 18/08/2015], p. 222.

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