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98
MILAN LIPOVSKÝ
CYIL 6 ȍ2015Ȏ
such are not an object of ratification (nor part of the treaty
21
) together with the treaty
amendment. Due to these aspects, the only previous example of issuing so-called
understandings may not help to establish the status of the “Understandings” that are
in question.
The Understandings were among others adopted to calm down the fears of certain
States from interpretation of the amendments in a (for them seemingly) undesirable
way. As such the success of adopting this document was disputable, because it is
improbable that these States would become parties to the Rome Statute, and the less
so to the amendments regarding the crime of aggression. Moreover, as proven above,
they do not in fact (with an exception) change the amendments successively. Quite
conversely, they create a legal problem as to their status. However, no one paid proper
attention to it.
Since theRomeStatutedoesnot helpevaluate thebinding forceof theUnderstandings,
it is necessary to search for the answer in the law of treaties. The interpretative value
of international treaties is dealt with in the “famous” part III, section 3 of the above-
mentioned VCLT, particularly in article 31. The very basic rule is that “[a]
treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose
.”
22
So issues that need to be taken into account when interpreting treaties are the
text, preamble and annexes of a treaty. And the context also is comprised of “[a]
ny
agreement relating to the treaty which was made between all the parties in connexion with
the conclusion of the treaty
”
23
and “[a]
ny instrument which was made by one or more
parties in connexion with the conclusion of the treaty and accepted by the other parties as
an instrument related to the treaty.
”
24
Together with context, there needs to be taken into account as well “[a]
ny
subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions
”.
25
So there are in fact two relevant categories of interpretative rules that are present
in article 31 VCLT, and those are
agreements/rules made together with the treaty
and
subsequent agreements
(both categories also referred to as
the primary means
of interpretation).
Article 32 VCLT adds
supplementary means of interpretation,
such as
“preparatory work of the treaty and the circumstances of its conclusion.”
Last but not
least, the VCLT contains article 41 dealing with
agreements to modify multilateral
21
MCDOUGALL, Carrie. The Crime of Aggression under the Rome Statute of the International
Criminal Court, p. 114.
22
Article 31 (1) VCLT.
23
Article 31 (2) (a) VCLT.
24
Article 31 (2) (b) VCLT.
25
Article 31 (3) (a) VCLT.