Public Law Studies Quarterly

The Role of Subsequent Practice in the Interpretation of Constituent Treaties of International Organizations

Document Type : Article

Authors

Abassali Kadkhodaei 1
Ehsan Shahsavari 2

1 Prof., Public Law Department, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran

2 Assistant Prof., Department of Law, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran

https://doi.org/10.22059/jplsq.2018.251597.1665
Abstract
Under Articles 31 and 32 of the 1969  and 1986 Vienna Conventions on the Law of Treaties, subsequent practice in the application of the treaty is an authentic element in the interpretation of that treaty. The constituent treaty of an international organization is the legal basis under which that organization operates. The growth and development of an international organization and its proper functioning, requires a better understanding of its constituent treaty in light of subsequent practice. It is believed that the subsequent practice of parties to the constituent treaty, the subsequent practice of the organization’s organs and a combination of both can be used for elucidating the content of the constituent treaty. Articles 12(1) and 27(3) of the Charter of the United Nations are representative examples. International jurisprudence, findings of the International Law Commission, and legal scholarship confirm the role of subsequent practice in interpreting the UN Charter.

Keywords

treaty interpretation
subsequent practice
general practice
established practice
constituent treaty of the organization
  1. A) Books
  2. Ahlborn, Christiane (2011), "The Rules of International Organizations and the Law of International Responsibility", Research Paper No. 02, Amsterdam Center for International Law.
  3. Bigzade Ibrahim (2012), the law of international organizations, 2nd, Tehran, Majd publication (In Persian).
  4. Charter of the United Nations, 1945 (In Persian).
  5. Falsafi, Hedayattolah (2016), International law of treaties, 5rd Pub, 3rd Edition, Tehran, Farhang Nashr no Publication (In Persian).
  6. Falsafi, Hedayattolah (2017), the Flow of Reason in the International Legal System, 1st Pub, Tehran, Farhang Nashr no Publication (In Persian).
  7. Gardiner, Richard (2008), Treaty Interpretation, Second edition, Oxford, Oxford Publication.
  8. International Court of Justice (11 April 1949), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion.
  9. Pauwellyn, Joost (2003), Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law, Cambridge, Cambridge University Press.
  10. Saberi Ansari, Behzad (2011), the Role of Subsequent Practice in Relation to States Treaty Obligations, A Thesis Submitted in partial fulfillment of the requirements for the Degree of Ph.D. in Public International Law, Faculty of Law and Political Science, Tehran University (In Persian).
  11. Schermers, Henry G., Blokker, Niels M. (2011), International Institutional Law: Unity within Diversity, Fifth Revised Edition, Boston/Leiden, Martinus Nijhoff Publishers.
  12. Shaygan, Farideh (2003), the United Nations Security Council and the concept of international Peace and security, 1st Pub, Tehran, Tehran university publication (In Persian).
  13. Simma, Bruno, the Charter of the United Nations: A Commentary, Translated by Heybatollah Najandimanesh (2015), 1st Pub, Tehran, Khorsandy publication (In Persian).
  14. Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, 1986 (In Persian).
  15. Vienna Convention on the Law of Treaties, 1969 (In Persian).
  16. Zamani, seyed ghasem (2013), the law of international organizations, 1st Pub, Tehran, SDIL publication (In Persian).

 

  1. B) Articles
  2. Andrassy, Juraj (1956), "Uniting For Peace", American Journal of International Law, Vol. 50, No. 3.
  3. Carswell, Andrew J. (2013), "Unblocking the UN Security Council: The Uniting for Peace Resolution", Journal of Conflict & Security Law, Vol. 18, No. 3.
  4. Downes, Chris (2005), "Responding to a Changing World: Time to amend the UN Charter?", Brussels Journal of International Studies, Vol. 2.
  5. Liang, Jessica (2012), "Modifying the UN Charter through Subsequent Practice: Prospects for the Charter's Revitalization", Nordic Journal of International Law, Vol. 81, Issue1.

 

  1. C) Advisory Opinions and Judgments of ICJ
  2. International Court of Justice (3 March 1950), Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion.
  3. International Court of Justice (8 June 1960), Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion.
  4. International Court of Justice (20 July 1962), Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion.
  5. International Court of Justice (21 June 1971), Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion.
  6. International Court of Justice (24 may 1980), United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment.
  7. International Court of Justice (15 December 1989), Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion.
  8. International Court of Justice (8 July 1996), Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion.
  9. International Court of Justice (11 June 1998), Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), (Preliminary Objections), Judgment.
  10. International Court of Justice (9 July 2004), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion.

 

  1. D) ILC Report and Yearbook
  2. (7 April 2015), Third Report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, A/CN.4/683
  3. International Law Commission (1982) Yearbook of the International Law Commission, Vol. II, in: A/37/10.

 

  1. E) UN documents
  2. A/RES/5/377 (1950).
  3. S/RES/144 (1960).
  4. S/RES/228 (1966).
  5. /RES/731 (1992).
Public Law Studies Quarterly
Volume 52, Issue 1
Spring 2022
Spring 2022
Pages 1-23

  • Receive Date 31 January 2018
  • Revise Date 03 March 2018
  • Accept Date 24 June 2018

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