scholarly journals ‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 171-200
Author(s):  
Danae Azaria
Keyword(s):  
International Law ◽  
Focal Point ◽  
Vienna Convention ◽  
Customary International Law ◽  
Treaty Interpretation ◽  
Per Se ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

Abstract This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradigm in the four topics considered in this article is to introduce clarity and predictability into secondary rules on the law of treaties, thus ensuring the clarity and predictability of primary treaty rules across all fields of international law. The ILC endeavours to convince states to use international law as a medium by which they regulate their affairs.

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

Debating the Ouroboros of International Law: The Drafting History of Article 31(3)(c)

2007 ◽  
Vol 9 (1) ◽  
pp. 1-31 ◽  
Author(s):  
Panos Merkouris
Keyword(s):  
International Law ◽  
Present Status ◽  
Vienna Convention ◽  
History Of ◽  
The Law ◽  
Droit International ◽  
International Law Commission ◽  
Law Commission

AbstractThe Diversification and expansion of International Law has sparked a series of debates on the present status and future of International Law; even more so, since the ILC decided to tackle the issue of fragmentation. One of the areas of research and controversy has been Article 31(3)(c) of the Vienna Convention on the Law of Treaties which, arguably, enshrines the principle of systemic integration. The aim of this article is to explore the evolution of Article 31(3)(c) from its first inception by the forefathers of international law up to the finalization of the text of the Vienna Convention on the Law of Treaties. By mapping the critical arguments in the three main fora of debate (i.e the Institut de Droit International, the International Law Commission and the Vienna Conference on the Law of treaties) what arises is a series of conclusions with respect to certain aspects of Article 31(3)(c) as well as certain recurring themes in the nature and progress of the discussions. All of the above will show that the drafting history of Article 31(3)(c) seems to suggest that the relevant provision was meant to serve a purpose expressed more concisely by the symbol of Ouroboros rather than of a mere "master-key" to the house of International Law.

The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change

2013 ◽  
Vol 3 (1) ◽  
pp. 51-76
Author(s):  
Benny TAN Zhi Peng
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Controversial Issue ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Insufficient Attention ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

scholarly journals Treaty-Making Capacity of  Components of Federal States from the Perspective of the Works of the UN International Law Commission

2018 ◽  
Vol 5 (2) ◽  
pp. 9
Author(s):  
Karol Karski ◽  
Tomasz Kamiński
Keyword(s):  
International Law ◽  
Federal State ◽  
Vienna Convention ◽  
International Treaties ◽  
Federal States ◽  
The Subject ◽  
The Law ◽  
Formed Part ◽  
International Law Commission ◽  
Law Commission

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

More on the Depositary of International Treaties

1970 ◽  
Vol 64 (5) ◽  
pp. 838-852 ◽  
Author(s):  
Shabtai Rosenne
Keyword(s):  
United Nations ◽  
International Law ◽  
Previous Article ◽  
Vienna Convention ◽  
International Treaties ◽  
The United Nations ◽  
The Law ◽  
International Law Commission ◽  
Law Commission ◽  
Made In

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.

Preamble

2016 ◽  
Author(s):  
Denza Eileen
Keyword(s):  
International Law ◽  
Theoretical Basis ◽  
Character Theory ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
Customary International Law ◽  
Progressive Development ◽  
International Law Commission ◽  
The Relationship ◽  
Law Commission

This chapter describes the Preamble of the Vienna Convention on Diplomatic Relations set forth by the International Law Commission, the main legal body which promotes the progressive development of international law and oversees its codification. It briefly describes three theories that form as the basis of the statements written at the Preamble —the ‘exterritoriality’ theory, the ‘representative character’ theory, and the ‘functional necessity’ theory. All of these theories heavily influence matters regarding diplomatic privileges and immunities. Ultimately, the Preamble to the Convention has two important legal functions—to state the view of the participating States on the theoretical basis of diplomatic privileges and immunities, and to make explicit the relationship between the Convention and customary international law.

Part II Interpretation of Treaties, 9 Supplementary Means of Interpretation

2011 ◽  
Author(s):  
Sbolci Luigi
Keyword(s):  
International Law ◽  
General Rule ◽  
Case Law ◽  
Vienna Convention ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.

Part II Interpretation of Treaties, 6 The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The 'Crucible' Intended by the International Law Commission

2011 ◽  
Author(s):  
Villiger Mark E
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Customary International Law ◽  
Different Types ◽  
Relative Structure ◽  
International Law Commission ◽  
Law Commission

This chapter concentrates on the means of interpretation as codified in Articles 31 and 32 of the 1969 Vienna Convention. It also deals with the misgivings as to rules on interpretation, namely as to whether it is at all possible to establish rules of interpretation and to elicit the ‘correct’ meaning from a treaty term. It further discusses certain misunderstandings, in particular as to the relative structure of the means mentioned in Articles 31 and 32. The chapter finds that Articles 31 and 32 are not only contractually binding, they also enjoy a solid basis in customary international law. Overall, it can be said that these two provisions are among the most important ones of the entire 1969 Vienna Convention. They offer the interpreting agency considerable flexibility to adapt the various means of interpretation to the different types of treaties.

The Law of Treaties Beyond the Vienna Convention

2011 ◽  
Keyword(s):  
International Law ◽  
Customary Law ◽  
Actual State ◽  
Vienna Convention ◽  
Customary International Law ◽  
Progressive Development ◽  
The Law ◽  
Jus Cogens ◽  
International Law Commission ◽  
The Impact

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

The Vienna Convention of 1969 on the Law of Treaties and Humanitarian Law

1972 ◽  
Vol 12 (136) ◽  
pp. 367-380 ◽  
Author(s):  
José Daniel
Keyword(s):  
United Nations ◽  
International Law ◽  
Substantial Part ◽  
Vienna Convention ◽  
Humanitarian Law ◽  
Public International Law ◽  
Customary International Law ◽  
Collective Work ◽  
The Law ◽  
International Law Commission

The Conference on the Law of Treaties held at Vienna in 1968 and 1969, like the other important United Nations conferences on the codification of international law (Geneva Conferences on the Law of the Sea of 1958 and 1960, Vienna Conference on Diplomatic Intercourse and Immunities of 1961 and Vienna Conference on Consular Relations of 1963), formulated and adopted a Convention on the basis of a draft which was the collective work of the International Law Commission (ILC) of the United Nations, carried out under the guidance of a Special Rapporteur.We have thus been witnessing since 1958 the interesting process of the reduction into treaty law of a substantial part of the customary international law of peace; if this period is compared with the centuries that went before, the transformation of unwritten rules into written law which has thus taken place appears remarkably fast. This codification of public international law has of course served to clarify pre-existing rules but it has at the same time made it possible to bring these rules up to date so as to meet better the new requirements of the community of States—the society which is governed by that law and which has undergone significant changes in the last few decades.

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