The modification of treaties by subsequent practice
- Set out how the subsequent practice of the parties can modify their treaty obligations
- Explains how treaty modification by subsequent practice can be identified and how it should be dealt with by dispute settlement bodies
- Analyses important topics such as the sources of international law, the relationship between treaties and customary law, the question of fragmentation of international law, and the role of non-State actors and institutions in shaping international law
While treaties can be notoriously difficult to amend by formal means, they must nevertheless be adapted over time in order to remain useful. Herein lies the role of subsequent practice as a key tool for treaty change. Subsequent practice-a well-established means of treaty interpretation-sometimes diverges from the original treaty provision to such an extent that it can no longer be said to constitute an act of interpretation or application. Rather, it becomes, in effect, one of treaty modification.
The modification of treaties by subsequent practice extends to all fields of international law, from the law of the sea, environmental law, and investment law, to human rights and humanitarian law. Such modifications can have significant practical consequences, from revising or creating new rights and obligations, to establishing new institutional mechanisms. Determining when and how treaty modification by subsequent practice occurs poses difficulty to legal scholars and dispute settlement bodies alike, and impacts States’ expectations as to their treaty obligations. This significant yet underexplored process is the focus of this book.
The Modification of Treaties by Subsequent Practice proves that subsequent practice can-under carefully defined conditions that ensure strict accordance with the will of the treaty parties-alter, supplement, and terminate treaty provisions or even entire treaty frameworks. It can also generate customary law and fuel regime interaction. Ultimately, this book demonstrates the relevance and dynamism of the process of treaty modification by subsequent practice, emphasizing the need to deal with the issue head on, and explains-on a theoretical and practical level-how it can be identified and dealt with more consistently in the future. The book thus contributes to a deeper understanding of the process of treaty modification by subsequent practice and its continued role in striking the judicious balance between the stability of treaties on the one hand, and the organic evolution of the law on the other.
Table of contents
2: Subsequent Practice as a Means of Treaty Interpretation
3: Subsequent Practice as a Means of Treaty Modification
4: Subsequent Customary Law as a Means of Treaty Modification
5: A Repertoire of Practice
Irina Buga, Associate in International Arbitration, De Brauw Blackstone Westbroek
Irina Buga is currently an Associate in International Arbitration at De Brauw Blackstone Westbroek in Amsterdam. She previously held the position of Doctoral Fellow in Public International Law and member of the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University, where she completed her PhD in 2015. Dr Buga has worked as Legal Assistant at the International Court of Justice in The Hague, and practiced international arbitration in Paris. She completed the Magister Juris programme at the University of Oxford, having been awarded the Clifford Chance Prize for Best Performance in the Programme, after having received her B.A. from University College Utrecht and an LL.M. in Legal Research from Utrecht University. Dr Buga is also an alumna and dual prize recipient of the Rhodes Academy for Oceans Law and Policy. The initial study upon which the current book is based was awarded the François Prize by the Royal Netherlands Society of International Law.
27 January 2015
PhD defense Irina Buga
On 26 January 2015 Irina Buga successfully defended her PhD dissertation The Modification of Treaties by Subsequent Practice: The Implications of Practice Going Beyond the Limits of Treaty Interpretation at Utrecht University. The dissertation discusses a significant number of examples relating to the United Nations Convention on the law of the sea.
Irina left NILOS on 31 December 2014 and will continue her career at the Amsterdam-based law firm De Brauw Blackstone Westbroek.
|Title||The modification of treaties by subsequent practice : The implications of practice going beyond the limits of treaty interpretation|
|Thesis advisor||Soons, Fred; Oude Elferink, Alex|
|Degree grantor||University Utrecht|
|Reference(s)||Law of treaties, Subsequent practice, International organizations, Treaty modification, Interpretation, Amendment, Customary international law, United Nations, Law of the sea, International dispute settlement, International law commission, Vienna Convention on the Law of Treaties|
|Abstract||International treaties can be notoriously difficult to amend by formal procedures. They must nevertheless be adapted over time to their changing international environment. Subsequent practice – a well-established tool for treaty interpretation – sometimes diverges from treaty provisions to such an extent that it can no longer be said to constitute an act of interpretation or application, but rather becomes, in effect, one of treaty modification. After examining the parameters of the notion of ‘subsequent practice’ and its application in the process of treaty interpretation in light of Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, the present study focuses on its role as a means of modifying treaty provisions. It demonstrates that the ultimate deletion of the International Law Commission’s draft article on treaty modification by subsequent practice at the Vienna Conference in 1968 did not detract from the validity of the process. The study then explores ways of distinguishing between interpretation and modification, and the importance of doing so for States and international dispute settlement bodies alike. It examines the factors conducive to the process of treaty modification by subsequent practice, its main limitations, and alternative adaptation mechanisms. It is necessary to look at factors such as the age, field, and nature (technical or general, bilateral or multilateral, reciprocal or non-reciprocal) of the treaty or provision in question, and the applicability of special principles. Moreover, one should take into account the presence of ‘in-built’ adaptation mechanisms that could detract from the potential for modification by subsequent practice, such as dispute settlement, evolutionary interpretation, and the doctrine of implied powers. Next, the study explains the treaty modifying potential of subsequent customary law, based on the interplay between customary law and treaties, and its parallels to, and overlap with, the process of modification by subsequent practice. Finally, these results are further illustrated by means of a repertoire of practice – a systematic collection of examples of potential treaty modifications by subsequent practice spanning a wide range of fields and treaty regimes, as assessed within and outside of the case law and the context of international organizations. The study shows that subsequent practice can – under carefully defined conditions, and subject to a high threshold that ensures its strict accordance with the will of the parties – alter, supplement, and terminate treaty provisions or even entire treaty frameworks, as well as previously established modifications by subsequent practice. It can also generate customary law and fuel regime interaction. As a recognised process, dispute settlement bodies have a duty to acknowledge treaty modifications by subsequent practice where these have occurred. The study thus contributes to a deeper understanding of the process, and its continued relevance in the development of international law.|
|OpenURL||Search this publication in (your) library|