Subsequent To Agreement

As examples of subsequent agreed practice, the reports cite cases where a subsequent agreement is, so to speak, already in place, referring to contractual clauses that need to be developed through interpretation in practice[13] or that are likely to do so[14] of a dynamic nature[15] to continue implementation[16] or to set up a body to: The Committee on Economic Affairs and Energy was taken into account in the context of the [17] Unlike these categories, the other subsequent practice includes simple “positions” and “views”[18], as well as subsequent unilateral or parallel practices, such as those contained in national legislation. [19] The practice in limited numbers and not all parties is also included in this category. [20] [52] See First Report (No. 1), para. 37, 97-8. The European Court of Human Rights rarely makes explicit the fact that it considers the composition of national law as a subsequent practice of the ECHR, see also Second Report (No 1) Nos 14, 40, 53, 69. This is not to say that the ILC contradicts itself on this point; In this context, reference is also made to a comparative analysis of the HrC, see First Report (No 1), paragraph 99. Therefore, the attitude adopted in the reports towards subsequent practice generally seems hesitant, so the distinction between restricted and broader practice may be part of an inherently restrictive approach. The second point (point 3) for which the distinction between the two types of subsequent practice has consequences is the categorization of the practice of international organizations.

31 VCLT (`Parties`, `in the application of the Treaty`) is interpreted restrictively, the subsequent practice as an interpretative element refers to one of the three elements (part one) of the uniform rule of Article 31(1) of the TREATY. and the “own practice” of international institutions as such is seen only as a complementary means of interpretation. States, as interpreters of their actions, are the relevant actors in further development. This approach, which can be described as “positivist” or “realistic”, would be consistent with the “presumption in favour of the State in the process of interpretation”, which is intended to characterize the general concept of Article 31 of the VCLT. [62] However, such an agreement must not in itself exclude institutional practice.