December 2020
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December 17, 2020

Subsequent Agreement Vclt

Filed under: Uncategorized — Mark Baker @ 8:30 pm

After making it clear that the amendment by interpretation is not permissible, the comments make a slight tracing. Paragraphs 23 to 31 of the comments contain a very complex (and sometimes difficult to follow) description of subsequent agreements and practices. In some places, the boundaries between subsequent agreements and practice as contract modifiers and subsequent agreements and practices, as interpretive instruments, are blurring. In point 23, for example, the comments indicate that, as if the distinction between agreed practice and other subsequent practices were projected in the context of the restrictive/effective dichotomy, the reports indicate that the following practices may have both support and restriction effects, which may limit or broaden the scope of possible interpretations. [21] This seems to imply that the ILC does not purport to participate in a policy debate on restrictive or far-reaching interpretations. The emphasis is on the intention to get as close as possible to the “authentic” importance of a treaty. [22] But the “authentic” can also be treated in different ways, i.e. from the point of view of state sovereignty, which would trigger connotations to the rule of thebio-mitius, or by following a term which aims to give a treaty the broadest scope, incompatible with other methods of interpretation of the contract for which the rule of useful effect is used. [23] The claim to be seeking authentic meaning is therefore not necessarily the same as remaining neutral between these two positions.

The fact that, despite the balanced and in-depth analysis of the material, the reports are rather hesitantly based on subsequent practice when it comes to methodological implications. Therefore, the subsequent practice is “any action taken on the basis of the interpreted contract.” [24] It follows that this practice will be consulted at a later date than the application of the general rule of section 31, paragraph 1, of the VCLT, i.e. the text, context, purpose and purpose. [25] It must be used with a language, context or purpose already considered in the usual language, in the context or in the general rule. [26] This approach seems to disappoint the expectation in such a way that the work of the ILC “would serve as a necessary antidote to the occasional misunderstanding that suggests that the first part of the general rule [i.e. Section 31, paragraph 1, of the LTCV] is the main rule, which is somewhat subsidiary.” [27] The reports indicate that the VCLT rules apply in principle to the practice of expert bodies, which is not obvious in light of the debate. [41] The results of these committees, whose members are supposed to be independent, are not, as such, attributable to the “parties” within the meaning of Section 31, paragraph 3, of the VCLT. [42] In order to confirm this result, the reports mention the history of draft general opinion 33 on Member States` obligations in the implementation of the pact and the views of the HRC[43], during which the HRC withdrew its opinion expressed in an earlier draft, in which it claimed to present a subsequent practice. [44] “Article 31, paragraph 3, point (a) and Article 39 prove, when read together, that the agreements that the parties will later enter into to enter into a contract are subject to interpretation and modification of the contract.” I have to start with two reservations.

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