Modification of Treaties by Subsequent Practice
 |
| Anteprima |
While
treaties can be notoriously difficult to amend by formal means, they
must nevertheless be adapted over time in order to remain useful. Herein
lies the role of subsequent practice as a key tool for treaty change.
Subsequent practice-a well-established means of treaty
interpretation-sometimes diverges from the original treaty provision to
such an extent that it can no longer be said to constitute an act of
interpretation or application. Rather, it becomes, in effect, one of
treaty modification. The modification of treaties by subsequent practice
extends to all fields of international law, from the law of the sea,
environmental law, and investment law, to human rights and humanitarian
law. Such modifications can have significant practical consequences,
from revising or creating new rights and obligations, to establishing
new institutional mechanisms. Determining when and how treaty
modification by subsequent practice occurs poses difficulty to legal
scholars and dispute settlement bodies alike, and impacts States'
expectations as to their treaty obligations. This significant yet
underexplored process is the focus of this book. Modification of
Treaties by Subsequent Practice proves that subsequent practice
can-under carefully defined conditions that ensure strict accordance
with the will of the treaty parties-alter, supplement, and terminate
treaty provisions or even entire treaty frameworks. It can also generate
customary law and fuel regime interaction. Ultimately, this book
demonstrates the relevance and dynamism of the process of treaty
modification by subsequent practice, emphasizing the need to deal with
the issue head on, and explains-on a theoretical and practical level-how
it can be identified and dealt with more consistently in the future.
The book thus contributes to a deeper understanding of the process of
treaty modification by subsequent practice and its continued role in
striking the judicious balance between the stability of treaties on the
one hand, and the organic evolution of the law on the other.
