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THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2013
3. The topics on the Agenda of the ILC
This year the Commission had more topics on its agenda than in 2012, which
was the first year of the new quinquennium. The ILC was able to discuss the following
topics: “Subsequent agreements and subsequent practice in relation to the interpretation
of treaties”, “Immunity of State officials from foreign criminal jurisdiction”, “Protection
of persons in the event of disasters”, “Customary International Law”, “Provisional
application of treaties”and, on a preliminary basis, “Protection of the environment
in relation to armed conflict”. In addition, two other topics were considered by the
Working Group and the Study Group.
3.1 Subsequent agreements and subsequent practice in relation
to the interpretation of treaties
The Commission had before it the first report of the Special Rapporteur G. Nolte,
5
who developed earlier work he had done over the past years in the framework of the
Study Group on Treaties over time. The report, very well elaborated and documented,
with numerous references to case-law and literature, contained four draft conclusions
relating to the general rule and means of interpretation; subsequent agreements and
subsequent practice as means of interpretation; the definition of subsequent agreements
and subsequent practice; and attribution of a treaty related practice to a State. Upon
consideration of the report of the Drafting Committee, the Commission provisionally
adopted five draft conclusions together with commentaries thereto.
Those draft conclusions deal with general issues, such as the definitions of
subsequent agreements and subsequent practice and their role in the process of
treaty interpretation. Draft Conclusion 1 confirms that Articles 31 and 32 of the
Vienna Convention on the Law of Treaties set forth, respectively, the general rule of
interpretation and the rule on supplementary means of interpretation. These rules
also apply as customary international law. It also points out that the interpretation of
a treaty consists of a single combined operation, which places appropriate emphasis
on the various means of interpretation.
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Draft Conclusion 2 characterizes subsequent agreements and subsequent practice
under Article 31, para. 3 (a) and (b) “as authentic means of interpretation”.
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The
Commission thereby follows its 1966 Commentary on the Draft Articles on the
Law of Treaties, which described subsequent agreements and subsequent practice as
“authentic means of interpretation”. This Commentary stresses the importance of
such subsequent practice, for it constitutes “objective evidence of the understanding
of the parties as to the meaning of the treaty”.
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Draft Conclusion 3 addresses the role which subsequent agreements and subsequent
practice may play in an evolutive interpretation of a treaty. Subsequent agreements
5
See doc. A/CN.4/660 (2013).
6
See doc. A/CN.4/L.819/Add.1, p. 3.
7
See doc. A/CN.4/L.819/Add.1, p. 10.
8
cf
. YILC, 1966, Vol. II, p. 221, § 15.