CYIL 2012

THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING OF ITS NEW QUINQUENNIUM 4.7 Treaties over time This topic has been on the current programme of the Commission since 2008. The Study Group, chaired by Mr. G. Nolte, was established first in 2009 and was reconstituted every year, including in 2012. At this session, the Study Group completed its consideration of the second report by its Chairman on the jurisprudence under special regimes relating to subsequent agreements and subsequent practice. In the light of the discussion in the SG, the Chairman reformulated the text of six preliminary conclusions by the Chairman of the SG on the following issues: subsequent practice as reflecting a position regarding the interpretation of a treaty; specificity of subsequent practice; the degree of active participation in a practice and silence; effects of contradictory subsequent practice; subsequent agreement or practice and formal amendment or interpretation procedures; and subsequent practice and possible modification of a treaty. The SG also considered the third report by its Chairman on subsequent agreements and subsequent practice of States outside judicial and quasi judicial proceedings. At the present session (on 31 May 2012), the Commission decided to change, with effect as from its sixty-fifth session (2013), the format of the work on this topic and to appoint Mr. Georg Nolte as Special Rapporteur for the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. The new Special Rapporteur will present his first regular report, which should synthetize the three reports which have been submitted to the Study Group so far, in 2013. The final outcome should be in the form of conclusions or guidelines with commentaries and could be finalized within the current quinquennium. 4.8 The Most-Favoured-Nation clause Regarding this topic, included in the programme of the ILC in 2008, the Commission reconstituted the Study Group under the Chairmanship of Mr. Donald McRae, and continued to have discussion concerning factors which appeared to influence investment tribunals in interpreting MFN clauses, following the arbitral award in Maffezini . The Study Group had discussion on the basis of working papers concerning Interpretation and Application of MFN Clauses in Investment Agreements and the Effect of the Mixed Nature of Investment Tribunals on the Application of MFN Clauses to Procedural Provisions. The Study Group also considered elements of the outline of its future report. 5. Conclusions The first year of the new quinquennium of the Commission seems to bring more questions than answers. New members, new topics, some new Special Rapporteurs- all these elements suggest speaking about a new beginning. However, this seems exaggerated, as the work of the ILC always includes both elements of continuity and elements of discontinuity. Rules of international law to be codified are also evolving rather than static in nature. As to the members, it is obvious that the fact that one

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