CYIL 2013

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. 6 Draft Conclusion 2 characterizes subsequent agreements and subsequent practice under Article 31, para. 3 (a) and (b) “as authentic means of interpretation”. 7 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”. 8 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.