Treaty-text Loyalists\u2019 Burden with Subsequent State Practice

Benedict Abrahamson Chigara

doi:10.1007/s40802-021-00185-8

Abstract

The role of subsequent state practice in the procedural law of treaties, and in the determination of consent in the implementation of treaties have become the subject of much scholarly debate in recent times. The UN International Law Commission has devoted copious amounts of study time into these issues under the distinguished guidance of Georg Nolte as Special Rapporteur. Ph.D. theses and research monographs, journal articles and commentaries have appeared on the matter, but the debate persists. At one end of this debate are treaty-text loyalists that reject the potential of subsequent state practice to modify what they regard as ‘solemn oaths’ taken by states when they conclude and adopt a treaty. That ‘temporal declaration of consent’ by states to be bound by a treaty regime is for them sacrosanct. At the other end are analytical jurisprudence scholars who appear to insist upon a purpose test approach to the matter. This article evaluates treaty-text loyalists’ arguments under current state practice on treaty implementation across a number of disciplines. It shows that the view that ‘temporal consent’ supremely prohibits the modification of treaties through subsequent state practice is exaggerated. Moreover, the ‘solemn oaths’ perception of treaties is not supported by recent examples of treaty implementation.

Highlights

Article 38(1) of the Statute of the International Court of Justice (ICJ) is a very deliberate, technical attempt to establish order in the practice of international law
Contrary to treaty-text loyalists’ claims that appear to be obsessed with an ‘unfounded solemnization of the treaty regimes approach’ by focusing only on a specific time-bound submission of consent as the moment when states’ involvement in law-making is concluded, and thereafter, the treaty regime assumes a separate existence of its own, this article proposes an ‘elastic approach to consent’ in treaty law as a better way: (i) to explain current state practice regarding subsequent practice in treaty implementation; (ii) to better understand the function of general principles of law recognised by civilised nations in treaty interpretation; and (iii) to understand the possible uses of custom in treaty interpretation
In the area of treaty law, the question of whether subsequent state practice could modify treaty obligations by recognizing it as law, something that is totally contrary to the express terms of a treaty adopted at some point in the past without ever going through the tedious, burdensome and ‘outcome uncertain’ process of formal treaty amendment—Articles 39–41 Vienna Convention on the Law of Treaties (VCLT), has given rise to the question of whether consent should be viewed as something that is static or fluid/elastic to encapsulate subsequent state practice that may have the effect of modifying a treaty regime

Summary

Introduction

Article 38(1) of the Statute of the International Court of Justice (ICJ) is a very deliberate, technical attempt to establish order in the practice of international law. Contrary to treaty-text loyalists’ claims that appear to be obsessed with an ‘unfounded solemnization of the treaty regimes approach’ by focusing only on a specific time-bound submission of consent as the moment when states’ involvement in law-making is concluded, and thereafter, the treaty regime assumes a separate existence of its own, this article proposes an ‘elastic approach to consent’ in treaty law as a better way: (i) to explain current state practice regarding subsequent practice in treaty implementation; (ii) to better understand the function of general principles of law recognised by civilised nations in treaty interpretation; and (iii) to understand the possible uses of custom in treaty interpretation This approach has the benefit of maintaining the unity of the band of sources of international law that is consistent with their function to both: (i) constrain the hand of the Court, and (ii) establish a functional and efficient concert of sources of international law. According to the Stanford Encylopedia of Philosophy, in spite of challenges from a section of formalist philosophy in recent years, analytical jurisprudence remains the dominant approach to discussing the nature of law.

Consent and the Interdependence of Sources of International Law

Treaty‐text Loyalists’ Burden

Treaties as Creatures of faire des compromis

Customary International Law and the Interpretation of Treaties69

Conclusions