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This chapter discusses the Appellate Body's use of supplementary means of interpretation, other language versions, subsequent practice and agreements, and special meanings in interpreting the covered agreements. Previous chapters have touched on these issues and this chapter completes the analysis. Articles 31(3)(a)–(b), 31(4), 32, and 33 VCLT share the characteristic that they are as much concerned with the burden to proof the meaning of the treaty as they are with guiding the process of interpretation as such. Also, they often overlap with other principles of treaty interpretations discussed in other chapters of this book. The Appellate Body does not easily use supplementary means of interpretation, other language versions, subsequent practice, or special meanings on its own initiative. These principles of interpretation differ from the principles of contextual and effective interpretation, which the Appellate Body applies almost as a matter of course.

This chapter engages in a normative assessment of international lawmaking by way of interpretation. It first studies the bittersweet taste of justice in legal discourse and juxtaposes diverging views on semantic change that employ substantive yardsticks. Neither narratives of progress nor realist critiques can categorically convince. Looking at the preconditions that render the exchange of interpretative claims normatively meaningful is more promising but the concept of arguing should not be overburdened with normative aspiration. International law should rather be explored as a medium that helps to justify the exercise of authority. The chapter testes potentials in the developments of legal doctrine in this regard and exposes the normative preferences nested in notions of soft law, subsequent practice, global administrative law and in research centred on international public authority. It closes by outlining a framework for the democratic justification of semantic authority in a normative pluriverse.

This chapter begins by examining the constitutional relevance of the Vienna Convention rules of interpretation, and the debate on the need for rules of interpretation. After covering historical and conceptual aspects of the problem, it examines in detail the principles of interpretation in terms of plain meaning, context, object and purpose, subsequent practice, ‘relevant rules’ of international law, and preparatory work. The hierarchy of interpretation methods is arranged in terms of which method better reflects the original consent and agreement given by States to treaties. In terms of recent debate, the notion of ‘systemic integration’ is also addressed. The practice examined covers ICJ, WTO dispute settlement bodies, arbitral tribunals (general and investment), WTO dispute settlement bodies, and European Court of Human Rights.

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.

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.

This chapter illustrates the treaty modifying potential of subsequent practice and customary law by means of a ‘repertoire’ of examples of practice spanning a wide range of legal fields, with a focus on major treaty regimes such as the UN Charter and the LOSC, and examples drawn from both within and outside the dispute settlement context, as well as within and outside the context of international organizations. The chapter systematically explores the modifying potential of subsequent practice in different contexts, facilitating identification and analysis of analogous cases. It combines and builds upon the analysis in the preceding chapters in order to derive—with the focus on international practice as such—guidelines that provide future reference points to better understand the modifying potential of subsequent practice, and examine the way in which modifications have been dealt with in the past, by dispute settlement bodies in particular.

While the general interpretative approach of the WTO Appellate Body has been much discussed, its use of ‘subsequent practice’ as a means of interpretation has so far been less focused on. This chapter gives an overview of the pertinent pronouncements by the Appellate Body, relates them to the jurisprudence of the ICJ, and discusses the possible relevance of subsequent practice as an element of interpretation within the WTO system in the future.

The chapter focuses on the treaty modifying potential of subsequent customary law, which, though distinct from that of subsequent practice, reveals a significant conceptual and practical overlap between the two modifying processes, and adds an additional dimension to the discussion on subsequent practice. After a look into the drafting history of the ultimately deleted ILC provision on modification by customary law, the chapter turns to the complex process of formation and identification of customary law and its parallels to the emergence of subsequent practice. The chapter then examines the interplay between customary law and treaties as a basis for identifying the former’s treaty modifying potential, and sets out crucial distinctions and requirements. Finally, the chapter examines the extent to which treaty modification by subsequent customary law and subsequent practice can be distinguished, especially as the latter may itself lead to the emergence of customary rules.

This Chapter outlines the context, objective, and scope of the book, and examines two foundational issues that anchor its law of the sea enquiry firmly within the doctrinal and methodological context of general international law. First, it considers the international law concept of ‘jurisdiction’ and examines its role and application under the 1982 United Nations Convention on the Law of the Sea in general, and in the exclusive economic zone (EEZ) in particular. It explores the idea of jurisdiction as a ‘continuum’ of prohibitions, rights, and obligations pursuant to which a State may be obliged, authorized but not required, or prohibited from exercising authority in relation to a person or activity, and considers the balance of interests in the sui generis regime that underpins the jurisdictional continuum of the EEZ. Second, it examines the potential legal effects of subsequent State practice in the law of the sea. It describes the conceptual framework that underlies the book’s widespread examination of State practice and explains how the relevant rules of international law apply to evaluate the legal effect of State practice under treaty law and customary international law in the unique context of the law of the sea. The Chapter outlines the parameters used to determine and analyse the State practice examined in the book, and concludes with an overview of the structure and chapter content.

This chapter introduces the discussion of the key role of subsequent practice in the process of treaty adaptation and the formation of international law more generally. The chapter explains the need to explore the treaty modifying potential of subsequent practice—a topic that has, in recent years, generated an increasing amount of attention—and its potentially far-reaching effects for States and dispute settlement bodies alike. The chapter also defines treaty ‘modification’ in this context. The final section sets out the book's systematic approach to exploring the relevance and dynamism of the process of treaty modification by subsequent practice and showing—on a theoretical and practical level—how it can be identified and dealt with more consistently in the future.

This concluding chapter gives an overview of the book’s main conclusions, painting a larger picture of the workings of the process of treaty modification by subsequent practice and customary law. It describes how the process may be considered and identified, in particular by dispute settlement bodies, in order to inject a degree of certainty, rather than to advocate formalism, and to explain how the possibility of treaty modification can be dealt with more consistently, with a greater sensitivity to context and circumstance. Finally, the chapter assesses the feasibility of codification of a rule on modification of treaties by subsequent practice, as attempted in the past, and reflects once more on the complexity, dynamism, and necessity of the process under international law.

Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v The United Kingdom. While State practice has traditionally played a role in the interpretation of the European Convention on Human Rights in its dynamic interpretation, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain. This chapter develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the International Law Commission’s work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna rules provide a useful point of departure without the need for additional means of interpretation. This matrix allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38(1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation and serve as a catalyst for the advancement of human rights.

This chapter discusses whether judicial dialogue on international law between domestic courts may be conceptualized as a new means of interpretation—beyond the Vienna Convention on the Law of Treaties. After defining ‘dialogue’ and presenting its various potential iterations, the chapter argues that in fact judicial dialogue between domestic courts is required under international law, including the Vienna Convention. This is because domestic court decisions on international law may constitute subsequent practice which is to be taken into consideration when interpreting a treaty, in accordance with Article 31(3)(b) VCLT. But domestic court decisions may also constitute practice and/or reflect opinio juris, which domestic courts must find in order to determine the existence and content of customary international law. As such, domestic courts must engage with the relevant decisions on international law by domestic courts in other jurisdictions. They must engage in judicial dialogue as a means for interpreting international law.

The law of treaty interpretation aspires to unity. All treaties are formally subject to the same rules of interpretation, codified in the Vienna Convention. Yet time and again we hear that some kinds of treaties are entitled to special treatment. Most commonly the idea is that certain exceptional conventions are capable of evolving, with or without the continued consent of the parties—as with certain human rights conventions. Other times the claim is that certain kinds of agreements resist techniques of interpretation that establish treaty change over time. To date, explanations for such differential treatment remain unsatisfying. This chapter seeks to better account for the practice of affording some treaties special status. It argues that differential treatment cannot be justified by appeal to a treaty’s object and purpose alone, but must be understood in light of the nature of the obligations that the parties established to achieve their goals.

The European Court of Human Rights has a long tradition of interpreting the European Convention of Human Rights evolutively, but can national courts also change the meaning of the terms of the ECHR through interpretation? This chapter looks into how a judicial system comprising European and national elements can be constructed that distinguishes three possible models of judicial human rights architectures. Based on those models, the practice of domestic courts in three member states (Germany, Ireland, and the United Kingdom) are reviewed. Subsequently, the question of evolutive interpretation by national courts is looked at from the European perspective focusing on its legal, institutional, and normative aspects. In conclusion, the insights are summarized by five themes, including tools to harmonize international and national jurisprudence, the diversification of domestic rules to implement international law, compatibility problems of national and European judicial architectures, and the notion of judicial architecture.

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. This chapter starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The chapter then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on states to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The chapter argues that the alleged existence of a general procedural obligation on states to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.