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CYIL 7 ȍ2016Ȏ THE INTERNATIONAL LAWCOMMISSION AT THE END OF ITS QUINQUENNIUM…
comments and observations, with the request that such comments and observations
be submitted to the Secretary-General by 1 January 2018.
17
The conclusions are divided into four parts. Part One (Introduction) makes it
clear that the present draft conclusions concern the role of subsequent agreements
and subsequent practice in the interpretation of treaties (conclusion 1).
Part Two includes basic rules and definitions. Conclusion 2 refers to Articles 31
and 32 of the Vienna Convention on the Law of Treaties which set forth, respectively,
the general rule of interpretation and the rule on supplementary means of interpretation.
It also reminds one that the interpretation of a treaty consists of a single combined
operation, which places appropriate emphasis on the various means of interpretation
indicated in those articles.
18
Conclusion 4 includes the definition of subsequent
agreements and subsequent practice. According to conclusion 5, subsequent practice
under Articles 31 and 32 “may consist of any conduct in the application of a treaty
which is attributable to a party to the treaty under international law”. Other conduct,
including by non-State actors, does not constitute subsequent practice in this
meaning. However, such conduct may be relevant when assessing the subsequent
practice of parties to a treaty.
19
Part Three covers general aspects of the topic. The identification of subsequent
agreements and subsequent practice under Article 31, para. 3, requires, in particular,
a determination whether the parties, by an agreement or by a practice, have taken
a position regarding the interpretation of the treaty. According to conclusion 7
subsequent agreements and practice contribute to the clarification of the meaning of
a treaty. Subsequent agreements and subsequent practice may also assist in determining
whether or not the presumed intention of the parties was to give a term used a meaning
which is capable of evolving over time (conclusion 8). The weight of a subsequent
agreement or subsequent practice depends on its clarity and specificity. The weight of
subsequent practice depends, in addition, on whether and it is repeated (conclusion 9).
An agreement under Article 31, para. 3(a) and (b), requires “a common understanding
regarding the interpretation of a treaty which the parties are aware of and accept”
(conclusion 10). The conclusion and the commentary thereto explain that this
“agreement” need not be legally binding.
20
Part Four addresses specific aspects of subsequent agreements and practice, such as
decisions adopted within the framework of a Conference of State Parties (conclusion 11).
According to conclusion 12, Articles 31 and 32 of the Vienna Convention on the Law
of Treaties apply to a treaty which is the constituent instrument of an international
organization. Paragraph 2 highlights that subsequent agreements and practice of State
17
See doc. A/CN.4/L.884, p. 3, § 10.
18
See doc. A/CN.4/L.884, p. 4.
19
Ibid
., p. 5.
20
See doc. A/CN.4/L.884/Add.1, pp. 71-75.