Modification of Treaties by Subsequent Practice – Some Comments on the Austrian Position

Modification of Treaties by Subsequent Practice – Some Comments on the Austrian Position Modifi cation of Treaties by Subsequent Practice – Some Comments on the Austrian Position Gerhard Hafner I. Introduction The question as to whether treaties may be amended by subsequent practice had kept the ILC very busy in the course of its elaboration of the Draft Articles on the Law of Treaties. Professor Zemanek implicitly addresses this problem in his article on ‘Court-Generated State Practice’, in which he concludes that it is not the court or supervisory organ that creates state practice, but rather the reaction of states to a decision of such a body. In that way, a court or supervisory organ can only initiate or catalyze the creation of state practice. This view is also confi rmed by the relative legal effect of court decisions since, as confi rmed by Article 59 of the Statute of the International Court of Justice, they are binding only upon the parties to the dispute, with certain variations concerning intervening states. Accordingly, states not parties to a dispute are not bound by a decision resulting from it. Such states maintain their discretionary power to conform to the decision or not. It will always remain up to them to act in conformity with http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Austrian Review of International and European Law Online Brill

Modification of Treaties by Subsequent Practice – Some Comments on the Austrian Position

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
1573-6512
D.O.I.
10.1163/15736512-00000012
Publisher site
See Article on Publisher Site

Abstract

Modifi cation of Treaties by Subsequent Practice – Some Comments on the Austrian Position Gerhard Hafner I. Introduction The question as to whether treaties may be amended by subsequent practice had kept the ILC very busy in the course of its elaboration of the Draft Articles on the Law of Treaties. Professor Zemanek implicitly addresses this problem in his article on ‘Court-Generated State Practice’, in which he concludes that it is not the court or supervisory organ that creates state practice, but rather the reaction of states to a decision of such a body. In that way, a court or supervisory organ can only initiate or catalyze the creation of state practice. This view is also confi rmed by the relative legal effect of court decisions since, as confi rmed by Article 59 of the Statute of the International Court of Justice, they are binding only upon the parties to the dispute, with certain variations concerning intervening states. Accordingly, states not parties to a dispute are not bound by a decision resulting from it. Such states maintain their discretionary power to conform to the decision or not. It will always remain up to them to act in conformity with

Journal

Austrian Review of International and European Law OnlineBrill

Published: May 7, 2018

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