CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE IMPORTANCE OF CUSTOMARY LAW FOR THE CODIFICATION OF THE LAW … by the positive approach of a great majority of delegations at the diplomatic conference completed by signing the VCLT. 28 The provision of Art. 31 was voted for unanimously. We can further question when the rules of interpretation in the wording of treaty law codification acquired its customary nature – whether it was before their codification or subsequently, as a result of influence of codification on the state practice. In other words, the question is when the custom was formed – whether before the conclusion of the VCLT or after it, as a follow-up to it. The majority of authors state that the VCLT codified custom already existing along time, but there is also an opposite view that custom was formed only subsequently on the basis of the codified text of the VCLT. 29 The Judge of the European Court of Human Rights elected in Lichtenstein, Professor at the University in Zürich, Mark Villiger, writes that only after the conclusion of the VCLT in 1969, had the persuasion of states and international courts about the fact that the VCLT is a declaratory expression of customary law started to emerge. The author cast doubts upon it, refers to authors with the opposite opinion 30 and states that only later, on the basis of the codification convention, did the new custom come into being. In this context, it should be mentioned that not all the states that supported the VCLT at the diplomatic conference were indeed persuaded about its customary character; some delegations considered it as innovative. The supporters of this minority view nevertheless recognize that the structure of the general rule of interpretation enshrined in Art. 31 VCLT (which is not designed in any hierarchical order and is based on equivalence of interpretative methods) has a customary ground. All the analysed commentaries 31 to the VCLT unanimously say that the instruments and methods constituting altogether the general rule of interpretation are not listed in any hierarchical order. The interpretation of treaty rules is a comprehensive and complex procedure, an interconnected sequence of processes focused on a unique aim (the wording single combined operation is often used). This is the so-called inductive approach and already a settled opinion. In other words, the single general rule of interpretation gives the possibility to prefer individual methods according to the character of the interpreted treaty, with regard to its object and purpose, without lifting them out of the context of the codified general rule. 32 It should be further emphasized that according to the view of the ICJ no treaty itself had ever constituted a new custom only on the basis of a broad treaty membership of states. 33 One of the reasons is that there has never been any treaty in history that would embrace all the 29 VILLIGER, Mark, Commentary on the 1969 Vienna Convention on the Law of Treaties . Martinus Nijhoff Publishers, Leiden – Boston, 2009, p. 415 et seq., SCHWARZENBERGER, Georg, Myths and Realities of Treaty Interpretation. Articles 27-29 of the Vienna Draft Convention on the Law of Treaties. Virginia Journal of International Law , Vol. 9, 1968, p. 10 (discussions about the departure from existing customary law), p. 8, YASSEN, Mustafa Kamil, L’interprétation des traités d’après la Convention de Vienne sur le droit des traités, Recueil des cours , 1976, p. 16 (discussions about progressive development). 30 SCHWARZENBERGER, YASSEN, op. cit. 31 DÖRR, Oliver, SCHMALENBACH, Kirsten (eds.), op.cit., p. 523. 32 “In a sense, all rules of interpretation have the character of guide lines since their application in a particular case depends so much on the appreciation of the context and the circumstances of the point to be interpreted .” Report by the Special Rapporteur H. Waldock, UN Doc. A/CN.4/L.116/Add. 18, p. 8. 33 TOMKA, Peter, op. cit. , p. 39. 28 REUTER, Paul, Introduction au droit des traités . Graduate Institute Publications, Geneva, 1985, p. 8. [on-line] [accessed 3 February 2017] < http://books.openedition.org/iheid/1755 >.

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