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Modification of Treaties by Subsequent Practice$
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Irina Buga

Print publication date: 2018

Print ISBN-13: 9780198787822

Published to Oxford Scholarship Online: May 2018

DOI: 10.1093/oso/9780198787822.001.0001

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Subsequent Practice as a Means of Treaty Interpretation

Subsequent Practice as a Means of Treaty Interpretation

(p.16) 2 Subsequent Practice as a Means of Treaty Interpretation
Modification of Treaties by Subsequent Practice

Irina Buga

Oxford University Press

This chapter focuses on the well-established role of subsequent practice in the interpretative process. It begins by examining the concept of ‘subsequent practice’ in light of the drafting history of the Vienna Convention on the Law of Treaties. It also sets out the constitutive elements of subsequent practice pursuant to Articles 31 and 32 VCLT, including the non-exhaustive notion of ‘practice’ and relevant actors, the scope of the term ‘subsequent’, the related notions of subsequent practice and subsequent agreement, the meaning of practice ‘in the application of the treaty’, and, crucially, the requirement of establishing the parties’ agreement. The chapter then explores the varying role accorded to subsequent practice by different dispute settlement bodies in the interpretative process, and, particularly, in relation to two special forms of dynamic interpretation: evolutionary interpretation and the doctrine of implied powers.

Keywords:   subsequent practice, treaty interpretation, VCLT, ICJ, subsequent agreements, international organizations, non-State actors, evolutionary interpretation, implied powers

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