CYIL vol. 8 (2017)

PAVEL CABAN CYIL 8 ȍ2017Ȏ international law should not also develop among States linked by a common cause, interest or activity other than their geographical position, or constituting a community of interest, whether established by treaty or otherwise”. 24 This propostion itself seems to be doubtful – surprisingly, neither the Commision in its commentary, nor the Special Rapporteur in his report suggesting this conclusion, have adduced any practical example of such alleged “non- localized” particular custom. 25 However, if we accepted the suggestion that “non-regionalized” or “non-localized” particular customary law could exist, then, applying the draft conclusion 16 together with current draft conclusion 10, paragraph 3 on the “failure to react”, 26 it would seem that a state could become bound by a “non-localized” particular customary international law simply by a failure to react to a practice, which only “indirectly affected” its rights or interests and which originated in conduct of a state or states on the other side of the globe, with which the former state would be assumed to be connected only by a nebulous criterion of “common cause, interest or activity”. It is suggested that this approach does not reflect the practice of states and could create chaos in international relations. VIII. It might be interesting to have a look whether similar issues have not been touched upon in the Commission’s debates on other topics. The Commission adopted a similar general conclusion, according to which “[s]ilence on the part of one or more parties can constitute acceptance of the subsequent practice when the circumstances call for some reaction”, 27 in its conclusion 10 [9], paragraph 2 of the draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, adopted by the Commision on first reading in 2016. At the same time, the Commission, in the draft conclusion 7, para. 3, 28 did not exclude the possibility that subsequent practice in the application of a treaty 24 ILC, Report on the work of the sixty-eighth session, doc. A/71/10, p. 116, para. 5. 25 See Mr. Murphy, Commission’s summary records A/CN.4/SR.3251 (15 May 25015), p. 3 (“Since the type of custom referred to in draft conclusion 15 was commonly known as ‚regional‘ or ‚special‘ custom, a key issue was whether it had to have a geographic nexus. The principal case law to date had been driven by geography. Some scholars had characterized the rules deriving from regional custom as being binding only upon States in a certain geographic area or region, constituting a regionalized exception permitted out of respect for regional legal traditions. Others, including the Special Rapporteur, had argued that a rule of customary international law could exist among any group of States, even if they were scattered across the globe. Since the Special Rapporteur did not provide any examples of such a rule, one might wonder if his argument was based more on theory than practice.”). 26 According to the commentary to the draft conclusion 16, this draft conclusion “has been placed at the end of the set of draft conclusions since the preceding draft conclusions generally apply also in respect of the determination of rules of particular customary international law, except as otherwise provided in the present draft conclusion. In particular, the two-element approach applies, as described in the present commentary”; ILC, Report on the work of the sixty-eighth session, doc. A/71/10, pp. 115, para. 2. 27 “Conclusion 10 [9] – Agreement of the parties regarding the interpretation of a treaty: 1. An agreement under article 31, paragraph 3 (a) and (b), requires a common understanding regarding the interpretation of a treaty which the parties are aware of and accept. Though it shall be taken into account, such an agreement need not be legally binding. 2. The number of parties that must actively engage in subsequent practice in order to establish an agreement under article 31, paragraph 3 (b) [of the Vienna Convention on the Law of Treaties], may vary. Silence on the part of one or more parties can constitute acceptance of the subsequent practice when the circumstances call for some reaction. ” [emphasis added by the author]; ILC, Report on the work of the sixty-eighth session, doc. A/71/10, p. 122. The Commission transmitted the draft conclusions, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2018. 28 Conclusion 7, paragraph 3: “It is presumed that the parties to a treaty, by an agreement subsequently arrived at or a practice in the application of the treaty, intend to interpret the treaty, not to amend or to modify it.

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