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SANDRA BROŽOVÁ CYIL 8 ȍ2017Ȏ various sources from the creation of the VCLT in the 1960s or from later years of VCLT interpretation which show a general consent on the fact that the VCLT is a codification reflecting customary law that had already emerged earlier. 21 Such a conclusion is supported by states that are not party to the VCLT but do respect its rules in their own practice (because they consider them as a custom). Customary rules continue to regulate the treaty relations of states that have not acceded to the VCLT (this is clear from the wording of its Art. 3). The European Union is also persuaded about the customary nature of the codified rules; however international organizations are not and cannot become signatories of the VCLT, which is intended to bind states only, according to its Art. 2 (1) a). 22 The VCLT rules were recognized as a general reference framework for interpretation of EU external agreements by the Court of Justice of the EU, 23 which is also some support for the customary viewpoint. The UN International Law Commission based its work on the assumption 24 that the ICJ recognized the customary nature of the general rule of treaty interpretation. 25 Moreover, the ICJ considered the VCLT as an authoritative expression of binding treaty law even before its entrance into force 26 and became a legally binding treaty in the formal sense. The customary character of the VCLT was repeatedly confirmed in the ICJ case-law. The same conclusion can be inferred from case-law of other international courts, e.g. the International Tribunal for the Law of the Sea or European Court of Human Rights. 27 It is common that the codified rules are applied (as a binding custom) on treaties concluded before the VCLT entered into force, although the VCLT could not be relevant as a treaty source according to its own text. Last but not least, the views of states about the customary character of interpretative rules are supported 21 MONACO, Riccardo, CURTI GIALDINO, Carlo, Manuale di diritto internazionale pubblico , 3rd edition, UTET Giuridica, Rome, 2009, p. 212. Judgment of ICJ in the territorial dispute between Libya and Chad, ICJ Reports, 1994, p. 21. 22 Contribution of the European Union on the topic of subsequent agreements and subsequent practice in relation to treaty interpretation , adressed to the International Law Commission, [on-line] [accessed 2 August 2016] < http://legal. un.org/ilc/sessions/67/pdfs/english/sasp_eu.pdf > p. 5., see also Judgements of the Court of Justice of the EU, cases C-410/11, Espada Sánchez and others , and C-386/08, Brita GmbH vs. Hauptzollamt Hamburg-Hafen . 23 See Judgment of the Court of Justice of the European Union, BRITA GmbH v. Hauptzollamt Hamburg-Hafen , C-386/08, para. 41-42: “…a series of provisions in that convention reflect the rules of customary international law …” “… as the rules are an expression of general international customary law…” 24 See NOLTE, Georg, First report on subsequent agreements and subsequent practice in relation to treaty interpretation , UN Doc. A/CN.4/660, p. 6. 25 See cases before the ICJ: Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, ICJ Reports 1995, p. 6, Libya v. Chad, ICJ Reports 1994, p. 6; Kasikili/Sedudu Island (Botswana v. Namibia), ICJ Reports 1999, p. 1045. The same conclusion can be drawn from the analysis of the approach of WTO Dispute Settlement Body. See CAMERON, James, GRAY, Kevin R., Principles of International Law in the WTO Dispute Settlement Body, International & Comparative Law Quarterly , Vol. 50, No. 2, 2001, p. 252-256. 26 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, Aegean Sea Continental Shey, (Greece v. Turkey) Judgment, I.C.J. Reports 1978, p. 3. 27 DÖRR, Oliver, SCHMALENBACH, Kirsten (eds.), op.cit ., pp. 523-524. See cases before the ICJ: Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, ICJ Reports 1995, p. 6, Libya v. Chad, ICJ Reports 1994, p. 6; Kasikili/Sedudu Island (Botswana v. Namibia), ICJ Reports 1999, p. 1045; MOLOO, Rahim, When Actions Speak Louder Than Words: The Relevance of Subsequent Party Conduct to Treaty Interpretation. Berkeley Journal of International Law , Vol. 31, 2013, p. 42.

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