General Assembly/6C: Statement by Legal Advisor Ambassador Ney on "Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties"
(statement as prepared for delivery:)
"Madam Chairwoman/Mr. Chairman,
Germany welcomes and supports the first report of Special Rapporteur Professor Georg Nolte on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. We also welcome the work undertaken by the drafting committee and the resulting draft conclusions. In our view, they provide excellent guidelines for the interpretation and application of treaty provisions. We welcome in particular their well-balanced approach.
A good example for this well-balanced approach is the differentiation between “subsequent practice” under Article 31 VCLT and “other subsequent practice”. We support this differentiation, which is enshrined in draft conclusion 1 para. 3, 4 and draft conclusion 4, for two reasons: On the one hand it makes it possible to also use non-consensual practice in the implementation of a treaty, i.e. practice that is shared by a large number of states, but not by all states parties to a treaty. On the other hand draft conclusion 4 clarifies unequivocally that such non-consensual practice may only serve as supplementary means of interpretation under Article 32 VCLT.
We also welcome the formulation of draft conclusion 3. It takes into account the possibility of treaty provisions evolving over time. At the same time it makes it clear that subsequent agreements and practice may also argue for a static interpretation.
Draft conclusion 5 touches upon the question of whether the action of non-state actors may play any role in the interpretation of a treaty. It clarifies that it is the contracting states which are the “masters of the treaty”. Consequently, it is their subsequent practice in implementing it which counts under Articles 31 and 32. Nevertheless, draft conclusion 5 does not close the door entirely to looking at non-state actors when assessing subsequent state action. This question will certainly be further discussed.
Madam Chairwoman/Mr. Chairman,
Germany continues to follow this project with great interest.