Subsequent Practice as a Means of Treaty Modification
Subsequent Practice as a Means of Treaty Modification
This chapter surveys the degree of recognition of the process of treaty modification by subsequent practice in the case law and doctrine. The analysis begins with the original ILC provision on treaty modification by subsequent practice ultimately excluded from the Vienna Convention. The focus then turns to analysing the validity, nature, and scope of the process of modification by subsequent practice, also in relation to formal amendment and a treaty’s object and purpose. Next, the chapter considers the difficult exercise of identifying modification by subsequent practice as distinguished from interpretation. Finally, the chapter explores how crucial factors such as the type of treaty regime and provision can impact the modifying process, and how alternative adaptation mechanisms can reduce the scope or need for recourse to modification. It is shown that subsequent practice can—under carefully defined conditions—alter, supplement, and terminate treaty provisions or even entire treaty frameworks.
Keywords: subsequent practice, modification, formal amendment, object and purpose, interpretation, treaties, UN, ICJ, ILC, Vienna Convention
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