Court Generated State Practice? A Response to Karl Zemanek

Court Generated State Practice? A Response to Karl Zemanek Critique and Defense Court Generated State Practice? A Response to Karl Zemanek Georg Nolte* The editors of the Austrian Review of International and European Law have asked me to briefl y contribute a short comment on Karl Zemanek’s illumi- nating piece ‘Court Generated State Practice?’. I limit myself to pointing to certain aspects of the work of the International Law Commission. According to Karl Zemanek, it is ‘the obvious assumption’ of Article 31(3) (b) of the Vienna Convention of the Law of Treaties that the conduct of the parties in applying the provisions of a treaty was indicative of their understanding of them and may thus help to clarify their meaning when it cannot be defi nitely determined by the process prescribed by para 1 of Article 31. In its recent work on the topic ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’, the International Law Commission addressed the question of the relatio nship between paras 1 and 3 of Article 31. It came to the conclusion, on the basis of the Commission’s 1966 commentary to the Draft Articles on the Law of Treaties, that subse- quent practice under Article 31(3)(b) is a primary means http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Austrian Review of International and European Law Online Brill

Court Generated State Practice? A Response to Karl Zemanek

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
1573-6512
D.O.I.
10.1163/15736512-00000003
Publisher site
See Article on Publisher Site

Abstract

Critique and Defense Court Generated State Practice? A Response to Karl Zemanek Georg Nolte* The editors of the Austrian Review of International and European Law have asked me to briefl y contribute a short comment on Karl Zemanek’s illumi- nating piece ‘Court Generated State Practice?’. I limit myself to pointing to certain aspects of the work of the International Law Commission. According to Karl Zemanek, it is ‘the obvious assumption’ of Article 31(3) (b) of the Vienna Convention of the Law of Treaties that the conduct of the parties in applying the provisions of a treaty was indicative of their understanding of them and may thus help to clarify their meaning when it cannot be defi nitely determined by the process prescribed by para 1 of Article 31. In its recent work on the topic ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’, the International Law Commission addressed the question of the relatio nship between paras 1 and 3 of Article 31. It came to the conclusion, on the basis of the Commission’s 1966 commentary to the Draft Articles on the Law of Treaties, that subse- quent practice under Article 31(3)(b) is a primary means

Journal

Austrian Review of International and European Law OnlineBrill

Published: May 7, 2018

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