CYIL 2015

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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.

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.

(Then Draft) Articles on the Law of Treaties with commentaries (1966), ILC, Yearbook of International

Law Commission, 1966, vol. II, available from

english/commentaries/1_1_1966.pdf&lang=EF [last access on 18/08/2015], p. 222.