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PART B: ARTICLES
ON THE INTERPRETATION OF
HUMAN RIGHTS TREATIES AND
SUBSEQUENT PRACTICE
David McGrogan*
Abstract
The interpretation of human rights treaties is not often addressed from a formal legal
perspective. This article argues that such a perspective is necessary, and that it would
likely involve conceptualising part of the work of the UN human rights treaty bodies
as conduct constituting subsequent practice establishing the agreement of the parties
under Article 31 (3) (b) of the Vienna Convention on the Law of Treaties. The article
draws from the jurisprudence of the International Court of Justice and the Dispute
Settlement Body of the World Trade Organisation, as well as other international courts
and tribunals, to postulate a framework for analysing the work of the UN treaty bodies if
it were to be conceptualised in this way. The article sets forth likely requirements for the
crystallisation of subsequent practice in the human rights context, before considering
some of the implications of the proposed model.
Keywords: formalism; interpretation; public international law; treaty law; united nations
1.
INTRODUCTION
The interpretation of the provisions of human rights treaties is complex. First,
provisions tend to be vague, broad, and nebulous in scope. Their very ambiguity can
be viewed as virtuous,1 but it is indisputable that it can also make their content difficult
to delineate and define. Second, unlike most other treaties, human rights treaties
are not based on reciprocal binary obligations between States, but have third-party
beneficiaries, large numbers of parties, and aspirations to create international norms.
They are thus more akin to what used to be referred to as traités-lois, and hence do not
*
1
Lecturer in Law, Northumbria Law School, University of Northumbria.
The correlation between the broadness of human rights treaty provisions and the generation of
consensus is often remarked upon – see for example J. Donnelly, Universal Human Rights in Theory
& Practice (Cornell University Press 2003), 94–95.
Netherlands Quarterly of Human Rights, Vol. 32/4, 347–378, 2014.
© Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
347
David McGrogan
fit well into the conceptualisation of treaty law which was enshrined in the Vienna
Convention on the Law of Treaties (VCLT);2 it is thus not immediately apparent how
the rules in the Vienna Convention apply to them. And third, it is generally accepted
that human rights treaties are of a different character to other treaties in that their
interpretation ought to be to some degree dynamic; in other words, that they should
be interpreted in light of general principles “at any given moment”3 rather than at the
time of their conclusion. This doctrine of dynamic or evolutive interpretation is often
further connected with the teleological view that human rights treaties are a special
regime, and hence interpretation of human rights treaty provisions must take place in
line with the ‘object and purpose’ of the treaty, and reflect that object and purpose.4
The situation is, of course, further clouded by the fact that it is not only – or indeed
primarily – the State Parties to the major human rights treaties which interpret
their provisions inter se. Rather, each treaty has its own autonomous monitoring
mechanism in the form of a treaty body, which gives ‘authoritative’ interpretations of
the obligations of the relevant parties. Yet the legal basis of these interpretations has
never been fully settled,5 making it a difficult proposition, as a matter of law, to assess
the value or import of a given interpretation offered by a given treaty body of a given
treaty provision.
This makes the means by which the provisions of human rights treaties are
interpreted, as a legal process, an issue in need of addressing. That is to say, in light of
the special characteristics of human rights treaties – their vagueness, their apparent
law-making nature, and their evolutive character – how are the rules of international
law regarding treaty interpretation to apply to them?
In 2004 the International Human Rights Law and Practice Committee (HRLPC)
of the International Law Association released its Final report on the impact of findings
of the United Nations human rights treaty bodies.6 In it, the Committee raised the
notion, occasionally aired elsewhere,7 that the findings of the UN human rights treaty
bodies may constitute or generate subsequent practice establishing the agreement of
the parties regarding interpretation of the relevant treaty, under Article 31(3)(b) of the
2
3
4
5
6
7
348
On this point, see e.g. J. Brunée, ‘Reweaving the Fabric of International Law?’ in M. Craven, and M.
Fitzmaurice (eds), Interrogating the Treaty (Wolf Legal Publishers 2005) 120.
P. Teitgen, Collected Edition of the Travaux Préparatoires, vol. I (Council of Europe, 1961) 131.
ILC, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International Law’ adopted at the
58th Session (2006) UN Doc. A/61/10, para 13.
See for example M. O’Flaherty, ‘The Concluding Observations of United Nations Human Rights
Treaty Bodies’ (2006) 6 Human R ights Law Review 27, 36.
International Law Association, Berlin Conference (2004), International Human Rights Law and
Practice Committee. available at www.ila-hq.org/download.cfm/docid/3B0BF58A-C096–4113–
830E8E1B5BC6DEC5 (accessed 31st October, 2014).
See for example M. Scheinin, ‘Impact on the Law of Treaties’, in M. Kamminga and M. Scheinin
(eds), The Impact of Human Rights Law on General International Law (OUP 2009) 33.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
VCLT.8 It postulated how general comments/recommendations in particular might
do this, as well as concluding observations.
However, the HRLPC was terse about the mechanism by which this should occur,
and, indeed, the work of the UN human rights treaty bodies is not often examined
from a formal legal perspective. Whether this is due to a general trend towards
the deformalisation of international law,9 a willingness to overlook formal legal
requirements in the interest of supporting forward-looking promotional human rights
thinking within the treaty bodies,10 or simply because of the belief that formalism
‘constrains creative thinking’11 (or indeed is ‘boring’12), scholarly attention is not
ordinarily concerned with the monitoring of human rights as a legal process, nor
with the rules which guide how human rights treaty provisions are to be interpreted.
Instead, scholars and practitioners working in the field tend to rely on evasions,
describing the interpretations offered by treaty bodies as being ‘quasi-binding’,13
or as ‘possessing considerable authority’,14 although ‘ill-specified’.15 Where a more
formalist approach is suggested, it tends to end, as does that of the HRLPC, with
simple speculation that the mechanism may be subsequent practice under the VCLT.
This article takes the standpoint that this lack of clarity is both frustrating and
problematic. On the one hand, it does not seem suitable or appropriate to leave the
interpretation of international human rights treaties unexplored from a stricter,
formal legal standpoint. Human rights may be a special regime, and may require a
slightly different emphasis in interpretation to other areas of international law, yet,
at least in the orthodox view, that regime does not exist in isolation, but against a
backdrop of general rules of international law. Even as a special regime human rights
law can only gain its special character through reference to already existing general
rules and principles of international law.16 And even if the general trend amongst
academics working in the field is to promote the concept of global constitutionalism
or to underplay formalism, to leave the reference points between international
human rights law and general law entirely under-theorised therefore seems perverse.
It runs the risk of marginalising discussion of human rights law, not least in the
8
9
10
11
12
13
14
15
16
See International Law Association (n 6) para 20.
See especially J. D’Aspremont, ‘The Politics of Deformalization in International Law’ (2011) 3
Goettingen Journal of International Law 503.
Of the kind discussed in K. Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’
(2009) 42 Vanderbilt Journal of International Law 905, 933–935.
J. Brunée, and S. Toope, ‘International Law and Constructivism: Elements of an International
Theory of International Law’ (2000–2001) 39 Columbia Journal of Transnational Law 1, 65.
L. Mälksoo, ‘The Science of International Law and The Concept of Politics’ (2005) 76 BYBIL 383,
500.
M. Nowak, & E. McArthur, The United Nations Convention Against Torture: A Commentary (OUP
2008) 77–78.
W. Kalin, & J. Kunzli, The Law of International Human Rights Protection (OUP 2009) 225.
See O’Flaherty (n 5).
See ILC (n 4) para. 1.
Netherlands Quarterly of Human Rights, Vol. 32/4 (2014)
349
David McGrogan
eyes of practitioners and domestic judges and governments.17 Moreover, it seems to
avoid entirely the role of the VCLT, which as the ILC noted, provides the unifying
framework for essentially all special regimes in international law, and is understood
by the relevant actors as such.18
On the other hand, there is a strong argument to be made that, since it is
inappropriate for States to interpret their obligations under human rights treaties
inter se, and since it is therefore appropriate that the treaty bodies in a sense act in
the State Parties’ stead when interpreting treaty provisions, the treaty bodies ought
to operate under the same rules of interpretation as States (i.e. the VCLT).19 If they
do otherwise, it can only serve to undermine their legitimacy and therefore their
persuasiveness. While this is surely true in the context of any treaty where a nonState actor is engaged in interpretation, it is imminent in the field of human rights
that interpretation should be as much an act of persuasion as it is of determining
meaning,20 for the simple reason that, given the lack of sanctions for non-compliance,
legitimacy and persuasiveness are crucial in generating implementation.
This article, therefore, aims to introduce a formalist perspective on the interpretation
of human rights treaties. In particular, it focuses on the ‘known unknown’ of subsequent
practice establishing the agreement of the parties, under Article 31(3)(b) of the VCLT.
It is a ‘known unknown’ because, although it has been cited as the mechanism behind
which the respective treaty bodies give their interpretations, how that mechanism
works in practice and what the requirements might be is something which has never
been properly developed. This article offers an attempt at such a development.
2.
THE VIENNA CONVENTION AND SUBSEQUENT
PRACTICE ESTABLISHING THE AGREEMENT OF
THE PARTIES
It is worth noting that treaty interpretation has become something of a fad during
the last decade, with numerous monographs and collections being published on the
subject.21 It is also worth noting that this literature takes a varied approach to the
very notion that formal rules guiding interpretation are required; on the one extreme
Jan Klabbers argues that interpretation is ultimately a craft or an art,22 whereas on
17
18
19
20
21
22
350
See Scheinin (n 7) at 31.
See Fragmentation report of the ILC (n 4) para. 249.
See Mechlem (n 10) at 920–921.
See J. Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’
(2010) 23 Harvard Human Rights Journal 1, 6–8.
For an overview of some of this literature, see M. Waibel, ‘Demystifying the Art of Interpretation’
(2011) 22(2) EJIL 571.
See J. Klabbers, ‘Virtuous Interpretation’ in M. Fitzmaurice and O. Elias (eds), Treaty Interpretation
and the Vienna Convention: 30 Years On (Martinus Nijhoff 2009).
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
the other Linderfalk attempts to come up with an extensive and exhaustive list of
implicit or explicit guidelines.23 The purpose of this article is not to sally forth into
those particular lists. Rather, it begins from the standpoint that, the particular debate
over the value of rules of interpretation notwithstanding, nominal rules do exist (in
the form of Article 31–33 of the VCLT) and international courts and tribunals do refer
to them; as Orakhelashvili puts it, currently, international law ‘admits of no doubting’
that interpretation should take place in accordance with rules.24 Taking the rules at
face value, then, provides us with a useful perspective on the situation, setting aside
the important observation that interpretation is still a human and political activity,
with all of the connotations that come with it.
Likewise, there is a wealth of academic literature on what transpires behind the
scenes of interpretation, so to speak; the notion that the act of interpretation is not
merely a unified, monolithic behaviour on the part of a State or institution but the
work of a “community” or an “institutional setting” of policy makers, practitioners,
pressure groups, lobbyists, and so forth, has been in the scholarship for decades.25
Again, this is an important and valuable observation. But while it certainly provides
us with a perspective on how a given interpretation is formed, it does not add to
the strictly legal question of what the effect of a given interpretation is. This article
therefore sets that consideration to one side.
Instead, its focus is on rules. The first step here, of course, must be to set out, briefly,
what those rules are: Article 31(3)(b) of the VCLT states that together with context
and the general rules of interpretation ‘any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its interpretation’
must be taken into account when a given treaty is interpreted. The essence of this
subsequent practice, to use Sir Ian Sinclair’s definition, is a ‘concordant, common
and consistent’ sequence of acts or pronouncements sufficient to establish a pattern
implying the agreement of the parties regarding a given interpretation.26
It is relatively uncontroversial to state that, as with the rest of Article 31 and 32 to
the VCLT, Article 31(3)(b) reflects or codifies a customary norm of international law.
That these Articles essentially embody customary law has been affirmed on a number
of occasions, by the ICJ (in for example the Genocide Convention (Bosnia v Serbia)
case,27 the Indonesia/Malaysia case,28 and in LaGrand (Germany v United States of
23
24
25
26
27
28
U. Linderfalk., On the Interpretation of Treaties: The Modern International Law as Expressed in the
1969 Vienna Convention on the Law of Treaties (Springer, 2007).
A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP 2008) 293.
See for example I. Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’
(1990–1991) 12 Michigan Journal of International Law 371.
See. I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press 1984) 137.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ (Judgement) [26 February 2007]
para 160.
Sovereignty over PulauLigitan and PulauSipadan (Indonesia/Malaysia) ICJ (Judgement) [23 October
2001] para 37.
Netherlands Quarterly of Human Rights, Vol. 32/4 (2014)
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David McGrogan
America),29 by the Dispute Settlement Body of the World Trade Organisation (WTO)
(in for example the United States – Restrictions on Imports of Tuna panel),30 and by the
Permanent Court of Arbitration (in for example The Rhine Chlorides Arbitration).31
And in practice, ‘the rules set forth in the Convention are invariably relied upon even
when […] States are not parties to it’.32 This means that, in effect, subsequent practice
will always be, at least potentially, a consideration when any treaty is interpreted.
A complication occurs when we consider multilateral treaties with a third party
interpreter, such as a major human rights treaty. This is because, obviously, the primary
agent of interpretation in that context is not the State Parties; rather, interpretation
is partially or fully the task of the relevant monitoring committee set up under the
respective treaty. This means that the establishment of subsequent practice will not
merely be a question of examining the conduct and pronouncements of the State
Parties to discover concordance, commonality and consistency; it will also have to
take account of the interpretive practice of the treaty body concerned.
Of course, this is not in keeping with the orthodox understanding of the VCLT,
under which the findings of the treaty bodies would not amount to State practice.
Nonetheless, there are persuasive reasons for suggesting, as the HRLPC did, that
‘relevant subsequent practice might be broader than subsequent State practice and
include the considered views of the treaty bodies adopted in the performance of the
functions conferred on them by the State parties’.33
The first reason is simply that human rights treaties are different from other
treaties, for reasons which we have already explored: the Human Rights Committee
(HRC) itself has voiced the opinion that the VCLT rules regarding reservations are
‘inappropriate’34 in the context of human rights treaties (although that remark is
hardly uncontroversial), and scholars have frequently argued that the separate nature
of human rights treaties calls for a different approach to interpretation.35 State Parties
cannot be relied upon to interpret treaty terms in that context inter se, because of the
special nature of the treaties: the State Parties would obviously have every incentive to
interpret their obligations restrictively and not, in fact, in line with the treaty’s object
and purpose.
However, the second – and perhaps more persuasive – reason is through reference
to the VCLT itself. Necessarily, since a concordant, common and consistent sequent
29
30
31
32
33
34
35
352
LaGrand (Germany v United States of America) ICJ (Judgment) [27 June 2001] para 99.
Panel Report United States – Restrictions on Imports of Tuna, adopted 16 June 1994, WT DS29/R,
para 3.17, 5.18.
The Rhine Chlorides Arbitration Concerning the Auditing of Accounts (Netherlands v France),
Permanent Court of Arbitration, Arbitral Award of 12 March 2004, para 59.
A. Aust, Modern Treaty Law and Practice (CUP 2000) 10.
International Human Rights Law and Practice Committee (n 6) para 22.
HR Committee, ‘General Comment No. 24’ (1994) U.N. Doc. CCPR/C/21/Rev.1/Add.6, para 17.
Of course, the European Court of Human Rights has also advocated setting the ‘object and purpose’
at the forefront of the interpretation of the Convention. See e.g. ECtHR, Soering v United Kingdom
(7 July 1989) App. No. 14038/88,t para 87.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
of acts or pronouncements is required, reference to an isolated act cannot generally
be held to establish the development of subsequent practice; it must be a “sequence”.36
However, this does not require all of the State Parties to the treaty to have engaged
in the acts or pronouncements concerned. It is likely, from reference to the travaux
préparatoires, that only ‘tacit approval’ of a practice by some of the relevant State
Parties would be necessary to indicate that it constitutes subsequent practice under
the Article.37 That means it is hardly out of keeping with the thrust of Article 31 of the
VCLT to suggest that, since some treaties (such as the major human rights treaties, the
WTO dispute settlement understanding, the UN Charter) entrust some organs with
the competence to detail the content of treaty provisions requiring interpretation, the
interpretive practice of those organs could be in some way constitutive of subsequent
practice establishing the agreement of the parties38 – if that tacit approval on the
part of the State Parties was also present. Put another way, an approach viewing the
practice of the treaty bodies as constituting a devolved or delegated form of subsequent
practice, recognising that international human rights treaties are not static but were
created for a particular object and purpose, would not be unfounded. (It is also worth
noting, on that point, that Article 31(3)(b) is itself silent on who the relevant actor is
in ‘the application of the treaty’.) This approach would view treaty body practice such
as concluding observations on State Party reports and general comments as being,
if not binding, then potentially suggestive of subsequent practice establishing the
agreement of the parties insofar as the relevant State parties tacitly endorse it.
This, indeed, appears increasingly to be the mainstream view, at least amongst
scholars of human rights law who are interested in the issue of treaty interpretation.
Peters, synthesising these arguments, describes subsequent practice as ‘[C]onsistent,
treaty-related actions and omissions of the parties to or organs established by the
treaty on the international level, which reflect the common ideas of all the parties
about the interpretation of the treaty’.39 It follows that, where an ‘organ established by
[a] treaty’ is concerned, the treaty-related actions and omissions can only reflect the
common ideas of all the parties contingent on whether the State Parties agree.
This rather simple notion is the point at which the development of the argument
has seemed to end, but it leaves several questions open. First, if we are to envision the
actions of treaty bodies to be potentially constitutive of subsequent practice, then what
categories of action are included? Treaty bodies, of course, provide general comments/
recommendations, views on individual complaints, and concluding observations on
State reports; do all such actions come under the umbrella of subsequent practice?
Second, how is the criterion of “consistency” to be assessed? It is clear from our
36
37
38
39
Appellate Report Japan – Taxes on Alcoholic Beverages, adopted 4 October 1996, AB-1996–2, WT/
DS8/AB/R, WT/DS10/AB/R, WT/DS12/AB/R, 13.
See Yearbook of the ILC 1966 II (UN Doc. A/CN.4/SER.A/1966/Add.1), 221–222.
See e.g. Scheinin (n 7) 33.
C. Peters, ‘Subsequent Practice and Established Practice of International Organizations: Two Sides
of the Same Coin?’ (2011) 3(2) Goettingen Journal of International Law 617, 619.
Netherlands Quarterly of Human Rights, Vol. 32/4 (2014)
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David McGrogan
discussion so far that a “sequence” rather than an isolated act is necessary, and that
this sequence ought to be ‘concordant, common and consistent’, but this statement is
hardly closed to further problems of interpretation. And third, how is the question of
tacit endorsement to be addressed? It is necessary to view the interpretive practice of
treaty bodies as being potentially constitutive of subsequent practice in conjunction
with the acquiescence of State Parties, but is silence or lack of reaction on the part of
those State Parties sufficient?
In order to answer these questions, it is instructive to examine how they have been
addressed in other contexts: in the ICJ, other international tribunals, and the Dispute
Settlement Body of the WTO. For, as we shall find, VLCT subsequent practice has
been examined at some length within those contexts, particularly the latter; indeed,
questions of treaty interpretation have been addressed with a considerable amount of
rigour within the WTO dispute settlement process’s Appellate Body (AB).40 Of course,
there are important distinctions between both human rights law and trade law in
general, and between the role of the WTO’s AB and the human rights treaty bodies.
Likewise, the ICJ, as a court of general international law, will naturally have a different
focus to human rights bodies. But nonetheless, for reasons which have already been
discussed, this article takes the approach that, first, if human rights treaties have any
sort of special character then this must derive from general rules and principles of
international law both for theoretical and practical reasons; and, second, that to ignore
formal considerations entirely is perverse. Hence, simply examining the manner in
which subsequent practice has been utilised formally in other contexts is useful and
important on its face.
3.
SUBSEQUENT PRACTICE IN INTERNATIONAL COURTS
AND TRIBUNALS
The rules on how subsequent practice functions as a means of interpretation are
not entirely clear, mostly because international tribunals have dealt with the issue
almost at random, as cases at hand have required, and because the area has only very
recently become an issue for concerted academic research.41 As we shall see, however,
a number of requirements can be identified in the jurisprudence of these tribunals,
such that it would be a misapprehension to view the process as being entirely void of
formal considerations. Some of these formal considerations shall now be set out, first
from within the case law of the ICJ, and then from within the jurisprudence of the
WTO Dispute Settlement panels and AB.
40
41
354
On this point generally, see I. Van Damme, Treaty Interpretation by the WTO Appellate Body (OUP
2009).
Georg Nolte ‘Treaties Over Time in Particular: Subsequent Agreement and Practice’ UN Doc
A/63/10, Annex A.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
The first principle identifiable in ICJ jurisprudence is that, for actions to be
potentially constitutive of VCLT subsequent practice, intentionality is required.
In Kasikili/Sedudu42 the continued presence between 1890 and the 1940s of the
Masubia tribespeople, who were Namibian nationals, on a river island, was argued
by Namibia to be subsequent practice to a boundary treaty between Namibia and
Botswana. The argument was made on the basis that the presence of the Masubia
on the island established the agreement of the Parties over the interpretation of the
treaty as including the island in Namibian territory,43 since Botswana had never
objected to the Masubia’s presence. The ICJ, however, ruled that in order to qualify
as subsequent practice there was a requirement for conduct to be linked to the belief
that said conduct was undertaken as an interpretation of the treaty in question: the
occupation of the island by the Masubia would have to be linked to a belief on the
part of the relevant authorities that it came within Namibian territory.44 Here, since
there was no intentionality on the part of the tribespeople or either party that their
‘practice’ should be linked to the interpretation of the treaty (the tribespeople used
the island intermittently and certainly not in the name of a territorial claim, and it
seemed likely that their presence on the island was tolerated precisely because of this),
it could not be constitutive of subsequent practice. It was not relevant to the question
of whether or not there was any agreement between the parties on the boundary
treaty’s interpretation.
The second principle is that the consent or acquiescence of parties can, in the context
of the constitutional instruments of international organizations, be deduced or implied.
For example, in Continued Presence of South Africa in Namibia45 the Court decided
that the requirement of Article 27(3) of the UN Charter that decisions of the Security
Council on non-procedural matters must be made by the ‘affirmative’ vote of 9 of its
members, plus the concurring votes of the permanent members, should be interpreted
as if ‘concurring’ meant ‘not objecting’ – because subsequent practice indicated as much.
This was despite the fact that almost none of the Members of the General Assembly had
participated in the practice in question (not being permanent members of the Security
Council) and had merely tacitly approved through silence or non-objection.46
And finally, a third established principle would appear to be that subsequent
practice can lead to interpretation that in fact modifies the meaning of the treaty text.
In Certain Expenses,47 President Winiarski stated (in his dissenting opinion) that ‘if
a practice is introduced without opposition in the relations between the contracting
42
43
44
45
46
47
Kasikili/Sedudu Island (Botswana/Namibia) ICJ (Judgment) [13 December 1999].
Ibid, at 1093.
Ibid, at 1094.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 ICJ (Advisory Opinion) [21 June 1971].
Ibid, at paras 20–22.
Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter)ICJ (Advisory
Opinion) [20 July 1962].
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David McGrogan
parties, this may bring about, at the end of a certain period, a modification of a treaty
rule’.48 This has also been the view of other international tribunals, as in the Air
Services49 and Ethiopia/Eritrea50 cases, and by the European Court of Human Rights,
as for example in Ocalan51 and Soering.52 The traditional view, at least espoused by Sir
Gerald Fitzmaurice, is that it is for tribunals ‘to interpret treaties, not revise them’, but
that there is a clear duty ‘to interpret them as revised, and to give effect to any revision
arrived at by the parties’.53 Arato goes so far as to say that ‘in light of the proliferation
of cases recognizing the possibility of modification on the basis of subsequent practice
[…] the argument could even be made that the VCLT has been reinterpreted, on the
basis of subsequent practice in its application, to mean that under Article 31(3)(b)
interpretation can shade into modification by subsequent practice’.54
So much generally seems to be agreed. However, noting that these principles exist
hardly allows us to draw distinct conclusions as regards subsequent practice in the
context of human rights treaties. It leaves many questions unanswered: how consistent
must the practice be? How many States are required to engage in the practice, in the
case of a multilateral treaty? Are there any restrictions on the type of practice being
participated in? How is intentionality demonstrated? Is silence a clear indication of
acquiescence or approval?
Here, turning to the literature on subsequent practice in the context of the WTO and
its Dispute Settlement Body would be instructive, as it is here that subsequent practice
has been addressed more than in any other international judicial (or quasi-judicial)
body,55 and where it has been given a ‘high standard of scrutiny’.56 This article shall
examine three strands which emerge in the WTO dispute settlement jurisprudence:
the first being the need for conduct to be concordant, common and consistent, the
second being the necessity for conduct to be of an interpretive character, and the third
being the need for agreement.
48
49
50
51
52
53
54
55
56
356
Ibid, Dissenting Opinion of Judge Winiarski, 230–231.
Interpretation of the air transport services agreement between the United States of America and
France signed at Paris on 27 March 1946 (United States – France), 22 December 1963, 38 ILR 182, 249.
Decision Regarding Delimitation of the Border (Ethiopia v Eritrea), Eritrea-Ethiopia Boundary
Commission, 13 April 2002, 25 RIAA 83, see especially paras 3.29, 4.60.
ECtHR, Ocalan v Turkey (12 May 2005) Appl. No. 46221/99, para. 163.
ECtHR, Soering v the United Kingdom (7 July 1989) Appl. No. 14038/88, para. 103, holding that
“subsequent practice in national penal policy…could be taken as establishing the agreement of the
Contracting States to abrogate [an exception]”.
G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty
Interpretation and Other Treaty Points’ (1957) 33 BYBIL 203, 225.
J. Arato, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation
Over Time and Their Diverse Consequences’ (2010) 9 The Law and Practice of International Courts
and Tribunals 443, 464 at fn. 73.
A. Feldman, ‘Evolving Treaty Obligations: A Proposal for Analyzing Subsequent Practice Derived
from WTO Dispute Settlement’ (2008–2009) 41 New York University Journal of International Law
and Politics 655, 676.
See Van Damme (n 40) at 342.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
3.1.
CONDUCT MUST BE CONCORDANT, CONSISTENT AND
COMMON
Initially, the position within WTO jurisprudence was that adopted panel reports
could constitute subsequent practice in interpretation of the GATT. In the Japan –
Alcoholic Beverages panel report,57 the panel dealt specifically with a number of issues
arising from subsequent practice of the parties to the GATT, but first and foremost
‘noted that […] Panel reports adopted by the GATT CONTRACTING PARTIES and
the WTO Dispute Settlement Body constitute subsequent practice in a specific case by
virtue of the decision to adopt them’;58 and it further argued that ‘Article 1(b)(iv) of
GATT 1994 provides institutional recognition that adopted panel reports constitute
subsequent practice. Such reports are an integral part of GATT 1994, since they
constitute “other decisions of the CONTRACTING PARTIES to GATT 1947”’.59 This
seemed to indicate that simply by dint of a panel report being adopted, interpretive
practice contained within said report would crystallise into subsequent practice.
However, this was quickly revised. In an AB review of the dispute the AB disagreed
partially with the panel’s conclusion, deciding that the definition of subsequent
practice offered by Sir Ian Sinclair suggested that there were further requirements
for subsequent practice to be established than merely the adoption of a panel report:
Generally, in international law, the essence of subsequent practice in interpreting a
treaty has been recognized as a ‘concordant, common and consistent’ sequence of acts
or pronouncements which is sufficient to establish a discernible pattern implying the
agreement of the parties regarding its interpretation. An isolated act is generally not
sufficient to establish subsequent practice; it is a sequence of acts establishing the agreement
of the parties that is relevant.60
A single panel report, in other words, could not be a ‘“concordant, common and
consistent” sequence of acts or pronouncements […] sufficient to establish a […]
pattern’; it was not indicative by itself of consistent party conduct.61
This was further elaborated upon in the United States – Copyright Act panel
report.62 Here, the US argued that the doctrine of ‘minor exceptions’, which is
accepted explicitly in Article 10 of the World Intellectual Property Organization
Copyright Treaty (WCT), was incorporated into the Trade-Related Aspects of
57
58
59
60
61
62
Panel Report Japan – Taxes on Alcoholic Beverages, adopted 11 July 1996, WT/DS8/R, WT/DS10/R,
WT/DS12/R.
Ibid para 6.10.
Ibid.
See Appellate Report Japan – Taxes on Alcoholic Beverages (n 36) at 13.
See e.g. A. Chua, ‘Precedent and Principles of WTO Panel Jurisprudence’ (1998) 16 Berkeley Journal
of International Law 171, 185.
Panel Report United States – Section 110(5) of the US Copyright Act, circulated 15 June 2000, WT/
DS160/R.
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David McGrogan
Intellectual Property Rights (TRIPS) Agreement since its inclusion within the
WCT constituted subsequent agreement or practice under Article 31 of the VCLT.
The US representatives argued that since 99 members of the Berne Convention had
adopted the WCT by consensus there was an indication that subsequent State practice
suggested an interpretation of the TRIPS as incorporating the ‘minor exceptions’
doctrine; it implied general agreement that the doctrine should be applicable in the
overall framework of multilateral copyright protection. The panel rejected this view
rather baldly, stating that subsequent developments in the area since TRIPS were ‘of
rather limited relevance in the light of the general rules of interpretation as embodied
in the Vienna Convention’.63 Indeed, it seemed to take an extremely cautious approach
to subsequent practice in general, preferring to follow the decision in the Japan –
Alcoholic Beverages AB review and stating that it ‘did not wish to express a view on
[…] “subsequent practice” within the meaning of Article 31 (3) (b)’ in relation to State
practice in the TRIPS context.64 Nonetheless, the implication seemed to be that mere
adoption of the WCT by consensus would not indicate crystallisation of subsequent
practice: there needed to be what the AB in the subsequent Chile – Price Band65
called ‘a discernible pattern of acts or pronouncements implying an agreement’66
and in US – Gambling67 called ‘a common, consistent, discernible pattern of acts or
pronouncements’.68
3.2.
CONDUCT MUST BE OF AN INTERPRETIVE CHARACTER
The AB in Japan – Alcoholic Beverages did not limit its concerns to the issue of
consistency. It further restricted the extent to which panel reports could constitute
subsequent practice by stressing that ‘[it did] not believe that the CONTRACTING
PARTIES, in deciding to adopt a panel report, intended that their decision would
constitute a definitive interpretation of the relevant provisions of GATT 1947’, and nor
did it ‘believe that this is contemplated under GATT 1994’.69 Taking this together with
the decision in the United States – Dumping arbitration (which found that previous
arbitrations were not constitutive of ‘subsequent practice’70), it can be concluded
that even practice on the part of an interpretive body which is concordant, common
63
64
65
66
67
68
69
70
358
Ibid, para 6.69.
Ibid, para 6.55 at fn. 68.
See Appellate Report Chile – Prince Band System and Safeguard Measures Relating to Certain
Agricultural Products, adopted 23 September 2002, AB-2002–2, WT/DS207/AB/R.
Ibid, para 214.
Appellate Report United States – Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, adopted 7 April 2005, AB-2005–1, WT/DS285/AB/R.
Ibid, para 192.
See Appellate Report Japan – Taxes on Alcoholic Beverages (n 60).
United States – Continued Dumping and Subsidy Offset Act of 2000 (Original Complaint by Brazil),
Recourse to Arbitration by the United States, decision circulated 31 August 2004, WT/DS217/ARB/
BRA, para 3.42 at fn.57.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
and consistent might still not be adequate to establish subsequent practice.71 The
implication would be that this is the case where the conduct itself is not contemplated
to be definitively interpretive.
This was iterated more clearly by the AB in US – Gambling. Here, Antigua
had claimed that the GATS Scheduling Guidelines adopted in 2001 constituted
subsequent practice regarding the interpretation of the terms of the GATS. The AB
disagreed, but its reasoning was especially instructive. The WTO Council for Trade
in Services had adopted the 2001 Scheduling Guidelines, but it had explicitly stated
that these guidelines were non-binding – there was no intent to agree to an authentic
interpretation.72 By its nature, practice which itself indicates that it should not be
binding cannot provide a binding interpretation. And here, the parties’ consent to
the Guidelines was indeed based on the very fact that they were non-binding. This
meant that such negotiations could not constitute practice for the purposes of VCLT
subsequent practice, at least not by default; they were not intended to be binding and
thus could not be viewed as interpretive conduct per se.
However, as Feldman notes, there is something more to the notion of intentionality
as it is presented in US – Gambling, although the AB did not distinguish it in
sufficient detail.73 This is the apparent indication that the AB did not deem there to
be a requirement for actual overt express intent, but rather that ‘an initial burden
must be satisfied showing that the practice in question can, by its nature, indicate
party agreement’.74 That is to say, the intentionality requirement apparently failed in
US – Gambling not because the parties had neglected to indicate expressly that their
conduct constituted agreement per se, but rather because the documents at hand were
themselves specifically excluded from the scope of potential agreement – W/120 was
never intended to be binding on Members. The suggestion would be that, rather than
conduct itself, the type of conduct (that is, something which by its nature can indicate
party agreement) is most relevant in determining what is of a genuinely interpretive
character. This would certainly draw a common thread between the jurisprudence of
the WTO and that of the ICJ in, for example, Kasikili/Sedudu, where the conduct of
the tribespeople involved clearly was not by its nature intended to be interpretive of
the relevant treaty provisions.
3.3.
THE REQUIREMENT FOR AGREEMENT
Linked to the requirement that the conduct be of a character that is capable of
signifying party agreement is the requirement for agreement itself. But this raises a
further question: how is agreement to be established?
71
72
73
74
See Feldman (n 55) at 683.
Appellate Report United States – Gambling (n 67) para 193.
See Feldman (n 55) at 689.
Ibid.
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David McGrogan
This was elaborated on by panels and the AB in recent cases, beginning with US –
Zeroing,75 in which the EC claimed that since its interpretation of the Anti-Dumping
Agreement was supported by the practice of 105 other WTO Members it constituted
a pattern of conduct sufficient to be classified as subsequent practice under the VCLT.
The panel decided otherwise, stating that even if all the Members the EC referred
to did in fact apply the treaty provision at question in the same way, it would still
‘only mean that a considerable number of WTO Members have adopted an approach
different from that of the United States’.76
All of this would suggest – as we know77 – that any element of disagreement would
obviate concordant, common, and consistent practice. In EC-Chicken Cuts,78 the
AB turned to the more complicated question of how to establish agreement of silent
parties. Here, the panel had considered whether or not all WTO Members needed to
have engaged in a practice for it to constitute subsequent practice under the VCLT,
and had concluded that, in fact, they did not.79 It was simply sufficient to demonstrate
that the all the parties had accepted the relevant practice.80 The AB did not disagree,
although it felt that in the context of a multilateral treaty it would be difficult to
discern a concordant, consistent and common pattern from a small number of State
Parties. This, rather, required repeated observations over a period of time, across a
number of State Parties.
Second, the AB addressed the question of whether one State’s practice could
amount to subsequent practice under the VCLT. Here, the panel had decided that
since it was the EC’s schedule which was being interpreted, and that the schedule
was particular to the EC, this meant that it was only the EC’s classification practice
which was relevant in determining the agreement of WTO members regarding the
schedule.81 Furthermore, the EC was the only WTO Member which apparently
imported the type of product in question.82
The AB overturned this, arguing instead that the EC’s schedule was based on the
Harmonized System and hence was not as unique as would be required if it were to be
argued that only the EC’s practice was relevant.83 Despite the comparative importance
of the EC’s practice in constituting subsequent practice regarding the interpretation
of its own Schedule, the classification practice of all the other WTO Members was
75
76
77
78
79
80
81
82
83
360
Panel Report United States – Laws, Regulations and Methodology for Calculating Dumping
Margins (“Zeroing”), adopted 31 October 2005, WT/DS294/R.
Ibid, para 7.218.
See e.g. A. Aust, Modern Treaty Law and Practice (2nd ed, OUP 2007) 195.
Appellate Report European Communities – Customs Classification of Frozen Boneless Chicken
Cuts, adopted 12 September 2005, AB-2005–5 WT/DS269/AB/R.
Panel Report European Communities – Customs Classification of Frozen Boneless Chicken Cuts,
adopted 25 May 2005, WT/DS269/R, paras 7.251, 7.252.
Ibid, para 7.253.
Ibid, paras 7.253–7.289.
Ibid, para 7.255.
Appellate Report EC – Chicken Cuts (n 78) 264.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
not irrelevant per se.84 Nevertheless, in rejecting the panel’s findings the AB did not
dismiss outright the notion that the consistent practice of a small number of States
could constitute subsequent practice under the VCLT. In a multilateral treaty this
would be difficult, but not impossible.85
Third, the AB examined the issue of silence or acquiescence. Here, it rejected the
earlier conclusions drawn in Chile – Price Band, which seemed to require overt acts or
pronouncements indicating acceptance of a practice in order for it to be constitutive
of subsequent practice. Rather, the AB agreed with the panel in thinking that silence
or lack of reaction could imply acceptance of practice as an authentic interpretation
by a State Party and thus was not a barrier to the developing of VCLT subsequent
practice.86 It did, however, set out the following caveat:
[W]e have misgivings about deducing, without further inquiry, agreement with a practice
from a party’s “lack of reaction”. We do not exclude that, in specific situations, the “lack of
reaction” or silence by a particular treaty party may, in the light of attendant circumstances,
be understood as acceptance of the practice of other treaty parties.87
Such situations, it went on, ‘may occur when a party that has not engaged in a practice
has become or has been made aware of the practice of other parties (for example, by
means of notification or by virtue of participation in a forum where it is discussed),
but does not react to it’.88
Agreement, according to the AB, had to be otherwise absolute; any instance of
disagreement on the part of any State Party would prevent the creation of subsequent
practice. The AB itself here relied on certain classic texts, as well as the travaux
préparatoires for the VCLT, noting that the original text of Article 31(3)(b) contained
the words ‘the understanding of all the parties [emphasis added]’; the omission of
the word ‘all’ in the final version, the AB continued, did not change that rule, but
rather signified that the Commission considered the phrase ‘the understanding of the
parties’ to necessarily encompass the ‘parties as a whole’ – it ‘omitted the word “all”
merely to avoid the possible misconception that every party must individually have
engaged in the practice where it suffices that it should have accepted the practice’.89
Naturally, this leads to the conclusion that the requirement for the ‘understanding of
the parties’ literally refers to all of them.
The principles emerging from EC – Chicken Cuts and the rest of the WTO dispute
settlement jurisprudence, then (which would appear to have somewhat crystallised;
84
85
86
87
88
89
Ibid.
Ibid, para 259.
Ibid, para 272.
Ibid.
Ibid.
Ibid, para 7.521, quoting from The Yearbook of the International Law Commission (1966) Vol. II,
p. 222, para 15.
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David McGrogan
see for instance the recent decisions in EC – Large Civil Aircraft 90 and China –
Automobile Parts91) are as follows:
1.
2.
3.
Conduct must be a concordant, common and consistent sequence of acts or
pronouncements, meaning that isolated acts are not sufficient and a discernible
pattern must be observable over a period of time and across a number of State Parties.
In order for conduct to be constitutive of VCLT subsequent practice, it must be in some
sense linked to interpretation of the treaty – it must be intended to be interpretive –
but this requirement for ‘intentionality’ is not necessarily a matter of express intent;
rather, it depends on the type of conduct in question.
There must be total agreement, but agreement may be implied by silence or a ‘lack of
reaction’, provided that there is a clear awareness of the conduct in question on the
part of all the parties; any instance of disagreement would obviate the crystallisation
of subsequent practice.
If there is a ‘normative background’ of international law to which international human
rights law is to be set against, therefore, then insofar as VCLT subsequent practice is
concerned, it is composed of these principles, together with the broader principles that
have emerged from ICJ practice and that of other international tribunals. It will be
noted that these principles chime with those postulated by the HRLPC and elaborated
on in section I of this article regarding tacit approval of the practice of international
human rights treaty bodies by State Parties.
Yet there are, of course, important differences between international human rights
monitoring and WTO dispute resolution, and it will not be immediately apparent how
the principles identified can be transposed to the human rights context. It is to this
we now turn.
4.
SUBSEQUENT PRACTICE IN INTERNATIONAL HUMAN
RIGHTS TREATIES
The most important difference between human rights monitoring committees and the
WTO dispute settlement process (and, indeed, the work of the ICJ) is that the WTO
panels and AB do not, in themselves, create ‘practice’ per se – as was emphasised in
Japan – Alcoholic Beverages; it was not contemplated by the parties that the adoption
of panel reports should signify definitive interpretations of the GATT text, in the view
of the AB.92 Rather, the clear line of its jurisprudence is that its role is to identify
subsequent practice within the conduct of State Parties.
90
91
92
362
Appellate Report European Communities – Measures Affecting Trade in Large Civil Aircraft ,
adopted 18 May 2011, AB-2010–1, WT/DS316/AB/R, at para 845 and fn. 1916.
Panel Report China – Measures Affecting Imports of Automobile Parts, adopted 18 July 2008, WT/
DS339/R, WT/DS340/R, WT/DS341/R.
See Appellate Report Japan – Taxes on Alcoholic Beverages (n 60).
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
This, clearly, is not either appropriate or realistic in the context of human rights
treaties. Indeed, we must go so far as to say that it cannot be true, for both practical and
theoretical reasons. The theoretical reason is very simple: human rights treaty bodies
have had powers conferred on them by the State Parties to undertake interpretation
and monitor compliance, and hence, in contrast with the WTO procedures, it is in fact
very much contemplated that the monitoring practice of human rights treaty bodies
can constitute definitive interpretations of treaty provisions. The HRLPC was clearly
of this view when it completed its final report.93 The practical reason is that which
was alluded to in the opening section to this article: it would be inappropriate and
self-defeating to view State conduct alone as constitutive of subsequent practice in the
human rights sphere, because it is inherent in the aspirational nature of human rights
treaties that State conduct will frequently be at odds with what the treaty requires.
It hardly needs stating that viewing State conduct alone as formative of subsequent
practice in light of that would be problematic. Rather, it seems that the correct view
must surely be that the monitoring practice of human rights treaty bodies can itself be
conduct constitutive of subsequent practice, provided the necessary criteria are met:
that the conduct is intended to be interpretive, that it is concordant, common and
consistent, and that there is no disagreement.
The intention of interpretation – if on is to agree with the AB – can be discerned
from the type of conduct in question. We must, then, consider what types of conduct
it is that the human rights treaty bodies engage in. This is not limited to the creation
of general comments or recommendations, responses to individual complaints, or
concluding observations regarding State reports, but also includes the creation of
lists of issues, statements made during ‘constructive dialogue’, follow-up reports,
and so forth. Is it the case that all of these categories of ‘conduct’ have the necessary
intentionality?
The AB in US – Gambling, of course took the view that since document W/120
could not in itself satisfy the initial burden of indicating agreement between WTO
Members, it was specifically excluded from the scope of potential agreement.
On this basis, one would be justified in taking the position that lists of issues, the
constructive dialogue, and follow-up reports would, on their face, not possess
sufficient intentionality to be conduct potentially constituting subsequent practice,
even if the other criteria were met. This is simply because those categories of conduct
are designed to provide clarification or request information (in the case of the list
of issues and response), or are excluded from the scope of potential agreement (the
constructive dialogue is a back-and-forth which elucidates and expands on the State
report; and since the individual members of the treaty bodies tend to explore different
avenues and take different approaches, the treaty body itself does not speak with a
93
See International Law Association (n 6) paras 21–23.
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David McGrogan
unified voice). Conduct of the treaty bodies in these forms, therefore, falls at the first
hurdle in its very nature.94
This leaves us with concluding observations, general comments, and final views on
individual communications. The first of these, concluding observations, are, of course,
not primarily interpretive in function – they are, rather, hortatory. Nonetheless, the
terms of the treaties themselves generally imply that the process involves interpretation;
given the role of the monitoring bodies, in order to fulfi l their duties with respect
to the reporting process their assessments will by necessity constitute some form of
judgment regarding what the precise nature of States’ obligations are. This act is, in its
nature, interpretive of the treaty text and cannot be otherwise.
Moreover, while concluding observations are generally viewed to be non-binding,
they are strongly authoritative for a number of reasons. As Scheinin argues:
The absence of specific provisions on the legally binding nature of the findings […] does not
mean that such findings are merely ‘recommendations’. The treaty obligations themselves
are…legally binding, and the international expert body established by the treaty is the
most authoritative interpreter of the treaty in question.95
Dimitrejevic notes simply that ‘a statement of an authoritative body performing an
important supervisory function cannot remain without consequences’.96
Of course, former members of the HRC have a vested interest in emphasising the
importance of its work. Nonetheless, the understanding of concluding observations
being at least indicative of what States’ legal obligations are is present in more neutral
forums. The ICJ, for instance, chose to view remarks made in the HRC’s concluding
observations on reports submitted by Israel as authoritative interpretations of Israel’s
legal obligations in its advisory opinion on the construction of the security wall.97
And there are certainly a relatively large number of cases in which domestic courts
have viewed such comments as being at least persuasive and authoritative indications
of the nature of the obligations of the State Party, if not directly binding.98
It certainly seems, therefore, that concluding observations by treaty bodies on
State reports are at least potentially capable of satisfying the criteria of intentionality:
94
95
96
97
98
364
Of course, the products of these areas of the treaty bodies’ work could very likely be considered to
be supplementary means of interpretation under Article 32 of the VCLT; this point is beyond the
scope of this article to explore, though it is worth noting that the HRLPC raised the issue in its Final
Report. See International Law Association (n 6) at 6.
M. Scheinin, ‘International Mechanisms and Procedures for Implementation’ in R. Hanski and M.
Suksi (eds), An Introduction to the International Protection of Human Rights (Institute for Human
Rights 1997) 369.
V. Dimitrejevic cited ibid.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ (Advisory
Opinion) [9 July 2004] 184.
See International Law Association (n 6) and International Law Association, Committee on
International Human Rights Law and Practice, Interim report on the impact of the work of the United
Nations human rights treaty bodies on national courts and tribunals, New Delhi Conference, 2002.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
they are of a class of document which pertains, inherently, to the legal obligations of
the parties to the treaty. There is, however, one remaining caveat: notwithstanding the
fact that human rights treaty terms are vastly more nebulous and broad in scope than
those of, for instance, the GATT, it is also true that much of what exists in concluding
observations is of little interpretive value. For instance, when the Committee on the
Elimination of Discrimination Against Women (CEDAW Committee) recommends
that India ‘be proactive and […] take all necessary measures and initiatives to ensure
that the rule of law is upheld and justice delivered’,99 or when the Committee on
the Rights of the Child (CRC Committee) recommends that the United Kingdom
‘intensify its efforts to render appropriate assistance to parents and legal guardians
in the performance of their child-rearing obligations’,100 it is difficult to view genuine
interpretation as taking place; these recommendations are insufficiently specific and
too aspirational and abstract to be viewed as anything other than exhortative in
character.
Similarly, the treaty bodies are occasionally given in their concluding observations
to, as O’Flaherty puts it, ‘opin[ing] on matters which […] have little or nothing to do
with the actual treaty obligations of the State party’101 – as, for instance, when they
recommend that State Parties incorporate treaty provisions in a monist fashion.102
This tendency to go beyond interpretation of treaty obligations must also be viewed as
being nothing more than exhortative in nature.
This means that, while the default view must be that material contained in
concluding observations can by its nature be deemed to be of interpretive character
and hence there is a presumption that it is conduct capable of constituting subsequent
practice, this is a rebuttable presumption and can be obviated by a lack of specificity
or purely exhortative nature in the material concerned.
General comments/recommendations are, on their surface, more obviously
interpretive than concluding observations. In the words of Opsahl, they are the primary
opportunity for treaty bodies to ‘[apply] the Covenant, [discuss] interpretations, and
[draw] conclusions’.103 By their nature, then, their focus and value is in elaborating in
some authoritative manner on the nature of obligations specific and general – which
is to say, interpreting treaty terms.
The legal importance of general comments is, of course, of some debate. There are
a large variety of different incentives for different actors to portray the significance
of general comments in different ways. The HRLPC’s valuable report on the work of
99
100
101
102
103
CEDAW ‘Concluding observations: India’s exceptional report’ (3 November 2010) UN Doc.
CEDAW/C/IND/CO/SP.1, para 24 (a).
CRC, ‘Concluding observations: United Kingdom’s Th ird and Fourth Periodic Reports’ (20 October
2008) UN Doc. CRC/C/GBR/CO/4, para 45(a).
M. O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’
(2006) 6 Human Rights Law Review 27.
Ibid, at 33.
T. Opsahl, ‘The Human Rights Committee’ in P. Alston (ed) The United Nations and Human Rights:
A Critical Appraisal (Clarendon, 1995).
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David McGrogan
the treaty bodies shows that national courts exhibit a considerable variety of views
on the matter.104 In the US, New Zealand and Switzerland, for example, general
comments have been described as ‘major source[s] for interpretation of the ICCPR
[International Covenant on Civil and Political Rights]’,105 ‘essential points of reference
for the interpretation of national constitutions and legislation and the development of
the common law’,106 and ‘of importance for the interpretation and jurisprudential
development’ of the treaties, if not directly binding.107 However, they have also been
described as having ‘moral authority but nothing more than that’108 and only of
account ‘as opinions on the level of facts’.109 Moreover, as the HRLPC interim report
notes, the persuasive or authoritative nature of general comments seems to derive
largely from the expertise and reputation of the different bodies’ membership.110 This
chimes with Opsahl’s view that general comments only ‘carry some practical authority
because they represent an important body of experience in considering matters from
the angle of the Covenant’.111
In practice, this means that in some jurisdictions general comments have been seen
as an important source of ‘interpretive guidance’ despite their non-binding nature.112
It must be said, of course, that as a general rule the jurisdictions where this occurs tend
to be those whose level of incorporation of international human rights norms into
domestic law is relatively strong. The HRLPC’s interim report,113 and the following
final report,114 contain exhaustive lists of cases in which general comments have been
considered by domestic courts, and the national courts and tribunals referred to are
those of New Zealand, Hong Kong, Switzerland, Germany, the United Kingdom,
South Africa, Malawi, Japan, the USA, the Netherlands, India, Canada, Australia,
Hungary, Latvia, Norway, Poland, and Mauritius. The conclusion must therefore be
that, for the vast majority of State Parties to the human rights treaties, domestic courts
do not consider general comments to be of enough influence or importance to be
relevant. However, when international courts and tribunals are examined, it becomes
clear that general comments are of some influence, or at least have some legal weight:
104
105
106
107
108
109
110
111
112
113
114
366
See HRLPC interim report (n 98).
Maria v McElroy, District Court for the Eastern District of New York, Judgment, 1999, 68 F Supp 2d
206, at para 232.
Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218, 235 (High
Court of New Zealand, Cartwright J).
A and B v Regierungsrat des Kantons Zurich, Judgment of 22 September 2000, S 2(g), Swiss Federal
Supreme Court (Bundesgerichtf), cited in HRLPC, interim report (n 98) para 32.
Kavanagh v Governor of Mountjoy Prison [2001] IEHC 77, paragraph 23 (High Court of Ireland,
Finnegan J).
Judgment of 27 March 1998, Kyoto District Court, 45 Shomu Geppo 1259.
See HRLPC interim report (n 98) para 33.
See Opsahl (n 103) at 415.
See HRLPC interim report (n 98) paras 44–47.
Ibid, para 55.
See HRLPC fi nal report (n 98) paras 80–102.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
they have been referred to on occasion by the European Court of Human Rights, the
Inter-American Commission on Human Rights, the African Commission on Human
and Peoples’ Rights, and the ICJ, as guides for interpretation.115
As with concluding observations, of course, many criticisms can be levelled against
general comments from a practical or advocatory point of view. Their implications are
sometimes ‘insufficiently considered’;116 they contain ‘considerable inconsistencies
and discrepancies’;117 and their conclusions are sometimes too controversial to be
accepted by State Parties.118 But given the perspective of this article, a critical analysis
of individual general comments as texts is not particularly important: it suffices to
note that there are reasonable grounds for stating that they are genuinely interpretive
of obligations of the relevant State Parties; though they are not binding and do not
purport to be, nor are they insignificant or mere recommendations. Like the contents
of concluding observations, their nature is such that there should at least be a rebuttable
presumption that material contained within general comments can be constitutive of
subsequent practice if the other criteria are satisfied.
Finally, we come to final views on individual communications. Here, as with
concluding observations, the conduct of treaty bodies cannot help but be interpretive
in character: aside from any impact it has on the complainant’s circumstances, the
process represents nothing if not a method for deliberating on, and refining, the
meaning of treaty terms in practice. Indeed, some would go so far as to suggest that
since treaty bodies cannot in their individual complaint mechanisms realistically
serve the functions of a court, since they lack fact-finding capabilities and oral
hearings, their primary function is in fact to elucidate, interpret and explain their
respective treaty.119 And since each respective treaty body was created by the State
Parties specifically to interpret the provisions of the relevant treaty, amongst other
things, the presumption must be that the views of a treaty body are the authoritative
interpretation of that treaty.120
Nonetheless, there are arguments for treating final views on individual
communications with caution in relation to the development of subsequent practice.
First, there is a crucial distinction between final views on the one hand, and concluding
observations and general comments on the other: the latter stem directly from
provisions in the treaty concerned, whereas views on individual communications
stem from optional instruments. This distinction gives us reason for reluctance in
115
116
117
118
119
120
Ibid, paras 118–155.
See Opsahl (n 103) at 415.
See Mechlem (n 10), at 931.
See for example ‘Comment on Some Controversies Addressed in General Comments’ in H. Steiner,
P. Alston and R. Goodman. (eds), International Human Rights in Context (OUP 2007) 885–890.
H. Steiner ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights
Committee?’ in P. Alston and J. Crawford (eds), The Future of Human Rights Treaty Monitoring
(CUP 2000).
See e.g. R. Hanski and M. Scheinin (eds), ‘Leading Cases of the Human Rights Committee’ (Institute
for Human Rights 2003), 23.
Netherlands Quarterly of Human Rights, Vol. 32/4 (2014)
367
David McGrogan
treating views on individual communications as being in themselves conduct capable
of constituting subsequent practice regarding the interpretation of provisions of the
relevant treaty – that is, not all of the State Parties to the treaty will have consented
to be bound by the process by which such views are taken. In the case of the ICCPR
there are 167 parties to the Covenant proper but only 114 parties to the First Optional
Protocol; the corresponding figures for the CEDAW are 187 to 104. It seems doubtful,
then, simply based on this fact, that final views given by treaty bodies on individual
communications could be deemed to be conduct potentially constitutive of subsequent
practice – it would be controversial to say the least if an interpretation of a treaty
provision, given in the context of a process under a separate treaty which certain
State Parties to the former treaty are not parties to, came to be seen as potentially
establishing the agreement of those parties.
Second, on purely logical grounds, it also seems unfeasible to suppose that
final views on individual communications could in themselves be constitutive of
subsequent practice given the principles which seem to have emerged in WTO
dispute settlement jurisprudence. The crux of the formation of subsequent practice
in the context of multilateral treaties, as has been established, is acquiescence
or acceptance through silence on the part of State Parties not participating in the
relevant practice. A corollary of this is that State Parties must have some mechanism
or opportunity for registering their objections or non-consenting reactions; if there is
no such opportunity, their ‘acceptance through silence’ can have no meaning and is a
tautology. And for States which are party to a ‘core’ treaty but not the relevant optional
protocol, there is no realistic alternative but silence in reaction to the final views of the
respective treaty body. Meaningful acquiescence cannot therefore take place. And in
the absence of meaningful acquiescence, it would be difficult to argue that subsequent
practice under the VCLT could be said to have crystallised.121
This can be contrasted with the universal character of general comments
– which must be considered to apply to all parties to the treaty – and concluding
observations, which are not necessarily each individually of universal character but
are the culmination of a process (the reporting procedure) in which all State Parties
have consented to participate and on which all State Parties have opportunities to
express a view. One might tentatively conclude, in other words, that while final views
on individual communications are interpretive in some sense, they cannot genuinely
signify the consent or acquiescence of all State Parties to the relevant treaty on their
own and thus must generally be discounted if only insofar as subsequent practice is
concerned.122 Of course, this bears the obvious caveat that final views on individual
communications tend to find themselves incorporated in part into general comments
121
122
368
Th is is, in essence, the AB’s view on silence and acquiescence as expressed in EC – Chicken Cuts AB
(n 78).
Again, this is not to say that final views on individual communications are irrelevant as far as
Article 32 of the VCLT is concerned; see discussion above at n 94. Nor is it to suggest that the process
is valueless in respect of complainants, remedies, and so on.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
issued by the respective treaty bodies; one need only examine any recent such
document issued by the HRC to notice this.123 Hence, while interpretations which
emerge solely in final views on individual communications may not be constitutive of
subsequent practice in the strict sense, final views clearly form part of the process by
which general comments are created and, in that regard, interpretations given in them
are relevant in a less direct fashion to its crystallisation.
Given that all other material produced by the treaty bodies through other
procedures is generally not of an interpretive character at all, this essentially means
that one should be reluctant to view anything that is expressed outside of the context
of general comments and concluding observations as being of a character that is
capable of being conduct constitutive of subsequent practice.
Having established the type of material which can be considered to be genuinely
interpretive, we must then turn to the question of how commonality, concordance and
consistency can be assessed. Naturally, there is a sense in which these requirements
are somewhat nebulous and to be treated as rules of thumb, rather than hard limits.
To a degree this is inevitable; consistency, commonality and concordance are not
measurable, and nor is it particularly desirable that they should be.
In the first place, it seems obvious that a core requirement is that conduct which
is contradictory will not be viewed as “consistent”, unless the contradiction has been
affirmed repeatedly and over a lengthy period of time. That need go without saying.
However, beyond that patent requirement, matters are less clear: Sinclair’s formulation
required a ‘discernible pattern’, but it is difficult to postulate clear rules for this. In
Japan – Alcoholic Beverages, as we have seen, the AB considered one adopted report to
be insufficient in establishing a pattern, and hence the adoption of a panel report was
not indicative of party conduct to the extent that it could be constitutive of subsequent
practice. A discernible pattern, it logically follows, would require repeated observations
over a period of time, and across a number of State Parties – though, of course, that
merely transposes the question to what is deemed to be a sufficient period of time. It
might be suggested that since the EC’s consistent classification practice during the
years 1996 to 2000 was not considered insufficient for discerning a pattern by the
AB in EC – Chicken Cuts (though ultimately it was discounted for other reasons),
the period of time required is not particularly great. This can be compared with the
recent decision of the ICJ in Costa Rica v Nicaragua, in which Judge Skotnikov implied
that around 10 years of practice was sufficient to change the meaning of a term in a
treaty.124 This suggests a rough guide of 5–10 years being required.
Other requirements suggested by the common meaning of the terms suggest
themselves, of course. “Commonality” suggests that the conduct cannot exist in
123
124
For instance, the most recent General Comment issued by the HRC, General Comment No. 34, cites
in its very first reference two final views on individual communications, among many others. See
HRC, ‘General Comment No. 34’ (2011) U.N. Doc. CCPR/C/GC/34.
Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) ICJ (Judgement)
[13 July 2009].
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isolation: the treaty body must have given similar interpretations of the treaty across
a number of State Parties, or in the form of a general comment, rather than in its
concluding observations to one State Party alone. And “Concordance” suggests that
where interpretations of a treaty provision exist across concluding observations to a
variety of State Parties and/or general comments, that it is given in the same or similar
fashion and does not imply a significantly different obligation for one State Party in
comparison to another, all other things being equal. The final point to consider is the
means by which silence can imply agreement. Here, a crucial question arises: if one
accepts that agreement can be implied by silence, and it seems that there is a strong
argument for suggesting that it can, then how does disagreement manifest itself? Is it
necessary for a State Party to explicitly announce its disagreement, or can it impliedly
disagree through its conduct?
It can only be the case that actual explicit disagreement is required. The locus ought
to be what State Parties say in reaction to the interpretations of the relevant treaty body,
rather than what they do. This is not necessarily the view of the HRLPC, which in its
2004 report expressed the view that pronouncements by courts and their application
of treaty body interpretations might also be relevant in establishing the agreement
requirement for subsequent practice, as well as the organs of whichever State was
concerned, including their courts and legislature.125 However, even the HRLPC was
unclear on this point, emphasising it would only be true ‘if it is accepted that national
court decisions are relevant practice for the purpose of Article 31’.126 And there are good
reasons for not preferring this approach. The first of these is that, bluntly, the purpose
of a State ratifying a human rights treaty (in the ideal sense) is to ensure that the rights
of individuals under its jurisdiction are protected – and this means, often, protecting
the rights of individuals from the very organs of the State which it is supposed are
to influence the development of subsequent practice. It would be somewhat perverse
to imagine that organs of a State whose own practice directly affects the rights of
individuals of that State should affect that very development. It would in effect render
the entire notion of subsequent practice into a tautology: if the standard required
all of the State Parties and all of their relevant constituent organs to agree with the
interpretation given by the treaty body and act in concordance with it, the doctrine
of subsequent practice in the human rights context would lose all meaning – it would
simply be another way of saying that a given right has achieved universal protection.
A second reason is that it is not altogether clear from the VCLT rules themselves
that domestic courts and tribunals and other organs of state are necessarily relevant
actors. Article 7 of the VCLT, which lists the categories of person with the authority
‘for expressing the consent of the State to be bound’, considers those to be either
persons who ‘appropriate full powers’ or those for whom ‘it appears from the practice
of the States concerned or from other circumstances that their intention was to
125
126
370
See International Law Association, (n 6) paras 24–26.
Ibid, para. 24.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
consider that person as representing the State for such purposes and to dispense with
full powers’.127 Nolte expressed the view that this was ‘obviously too narrow when
it comes to determining the range of state organs or other actors that are capable of
contributing to relevant subsequent practice or agreement’,128 yet he does not express
a clear view on which state organs or other actors would be capable – only stating that
the actors listed in the Articles on State Responsibility129 would be too broad.
In any case, this problem, of the disconnect between the activities of the State at the
international level and those of domestic State organs, is one which has arisen before
international tribunals, as in the UNESCO officials residing in France case.130 Here,
the question arose in the context of contradictory declarations given by authorities
competent to express the position of the French State, and those given by the French
tax authorities. While UNESCO argued that the practice of a State consisted of the
‘acts, attitudes and conduct of all of its organs’,131 France argued that ‘in relation
to subsequent practice…only the positions of authorities competent to enter into
commitments on behalf of the State should be taken into account’.132 The Tribunal
gave a somewhat lengthy consideration of the issue, and while it decided that it was not
the case that only the positions of authorities competent to enter into commitments
on behalf of the State should be taken into account, it came to the conclusion that
‘where there is a difference between the conduct of the administration and that of the
authorities competent to express the position of a State, precedence should be given to
the latter’;133 it chose to give greater weight to the conduct of the authorities competent
to speak for France than the internal organs of the French State.134 It seems, then, that
there is some justification for understanding ‘agreement’ in the context of subsequent
practice in the interpretation of human rights treaties as, in general, meaning the
agreement of authorities competent to express the position of the relevant State Party
– which would include, presumably, the delegates to the treaty bodies. Acts of other
organs, domestic courts and so on might be relevant, but they would not be considered
conclusive where they conflicted with the stated views of those delegates.
The third consideration on this point is simply that, in this postulated model
for analysing the development of subsequent practice, the role of the State and its
representatives is not the formation of the practice but merely the indication of
agreement and disagreement. While, then, one might take a broad view of which
127
128
129
130
131
132
133
134
Vienna Convention on the Law of Treaties, art 7 (1) (a) and (b).
G. Nolte, ‘Treaties over time in particular: Subsequent agreement and practice’, Report of the
International Law Commission on the Work of Its 63rd Session, UN Doc. A/66/10, Annex A, para 27.
Article 4, Draft Articles on State Responsibility, GAOR, 56th Session, Supplement No. 10, UN Doc.
A/56/10.
Question of the tax regime governing pensions paid to retired UNESCO officials residing in France
(France v UNESCO), Award of 14 January 2003, UNRIAA, vol. XXV, pp. 231–266.
Ibid, para 65.
Ibid, para 66.
Ibid, para 74.
Ibid, para 75.
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David McGrogan
organs of the State and which acts or pronouncements are relevant in the formation
of subsequent practice in general international law, there is no special reason why a
restrictive approach should not be taken towards the establishment of “agreement” or
“disagreement” with the interpretive practice of the treaty bodies.
The effect of this is that if one is to identify actual disagreement with the
interpretations given by the treaty bodies, it must be primarily in the form of
statements of the State Party representatives who are actively engaged in the treaty
body procedures and thus must be deemed to be in some way giving voice to the
position of the State Party itself. This means that, primarily, one must look to the
following areas to identify disagreement where it occurs.
First, regarding general comments or recommendations, there are mechanisms
within the various treaties by which State Parties can register observations as and
when those general comments are issued in the various annual reports of the treaty
bodies, and they occasionally raise objections to the contents of general comments in
that form. In the case of the HRC, for instance, State Parties can register observations
under Article 40(5) of the ICCPR, and indeed France, the United Kingdom and the
US made use of this mechanism in objecting to the HRC’s General Comment No. 24
regarding reservations and declarations to the Covenant.135 The same procedure may
also be used for registering observations, and presumably objections, to concluding
observations, though in practice this is never done. Second, and much more
importantly, it seems at least strongly arguable that the statements made by State Party
representatives during the constructive dialogue can be indicative of disagreement.
While it was earlier established that the constructive dialogue was not intended to be
of a binding character and hence could not be viewed as interpretive conduct per se,
the dialogue is a valuable window into the actual positions of the representatives of
the State Parties on various issues, and is hence of considerable usefulness in assessing
whether tacit agreement with the interpretive conduct of a given treaty body is present.
As an illustration, we can take the well-known instance in the dialogue between the
HRC and the US for the State Party’s combined second and third periodic reports,136
during which the representatives of the US explicitly disagreed with the Committee
on the question of whether Article 7 of the Covenant contained a non-refoulement
obligation with respect to torture and cruel, inhuman or degrading treatment or
punishment.137 This would, prima facie, provide evidence of a lack of agreement on
the part of the US with the interpretive practice of the Committee as it has developed
over time with respect to the scope of Article 7, in the form of General Comment No.
20138 and various concluding observations on State reports.139
135
136
137
138
139
372
Report of the HRC, GAOR 50th Session, UN Doc. A/50/40, vol. I, Annex V and Annex IV.
HRC, ‘Summary Record of the 2380th Meeting’ 87th Session, UN Doc. CCPR/C/SR.2380.
Ibid, para 10.
Report of the HRC, GAOR 47th Session, UN Doc. A/47/40, p. 193.
To e.g. Sweden (UN Doc. A/57/40 vol. I, para. 79(12)(b)), New Zealand (UN Doc. A/57/40 vol I, para.
81(11)), Lithuania (UN Doc. A/59/40 vol. I, para. 71(7)), and many others.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
And third, since to a certain degree State reports themselves must represent
the relevant State Party’s views on its own obligations, especially in view of the
interpretive practice of the treaty body, we might also consider that where a report
clearly and deliberately demonstrates a conflict between the views of the State Party
and the treaty body, disagreement could be deemed to be present. We turn here for
illustration to the United Kingdom’s sixth periodic report to the HRC, in which, in
reply to the concluding observations of the committee on the fift h periodic report
(‘The State party should consider, as a matter of priority, how persons subject to its
jurisdiction may be guaranteed effective and consistent protection of the full range
of Covenant rights. It should consider, as a priority, accession to the first Optional
Protocol’.140), the United Kingdom’s representative stated that:
[T]he Government has noted that what the Committee has called the ‘general obligation’
on State parties to the ICCPR is ‘to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the ICCPR’ without
discrimination. The Government considers that this obligation, as the language of article 2
of ICCPR makes very clear, is essentially an obligation that State parties owe territorially,
i.e. to those individuals who are within their own territory and subject to the jurisdiction
of the United Kingdom.141
While the report did signal acceptance there might be ‘very exceptional cases’
where there could be exceptions, it did not communicate agreement in general with
the Committee’s stated position (in, for example, General Comment No. 31) that
the ICCPR has effect outside of the territory of a State Party. The HRC, for its part,
baldly stated in its concluding observations to the sixth report that ‘[t]he State party
should state clearly that the Covenant applies to all individuals who are subject to
its jurisdiction or control’;142 in view of this, it must be concluded that there was
disagreement on the part of the UK with the HRC’s interpretation of Article 2 of
the Covenant in this respect. This would, at least on a prima facie basis, obviate the
Committee’s interpretive conduct on this issue from crystallising into subsequent
practice – though this point will be returned to in the final section.
We have seen, then, how the requirements for subsequent practice to be deemed to
have developed might function in the human rights context. In the first instance,
the conduct of the treaty body must be of a type indicating that it is of a genuinely
interpretive character (that is, in a general comment or concluding observation) and
also capable of actually signifying the agreement of the State Parties (that is, not a
view on an individual communication); it must be given in a concordant, common
140
141
142
HRC, ‘Concluding Observations: the United Kingdom’s Fift h Report’ (2002) UN Doc. CCPR
A/57/40 vol. I, para 7.
HRC, ‘Sixth Periodic Report of the UK’ (2006) UN Doc. CCPR/C/GBR/6 para 59(a).
HRC, ‘Concluding Observations: the UK’s Sixth Report’ (2008) UN Doc. CCPR/C/GBR/CO/6, para 14.
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and consistent fashion; and it must be tacitly agreed to by the State Parties (that is, not
rejected via the Article 40 (5) mechanism, within the constructive dialogue, or within
a State Party report). If interpretive conduct of a treaty body satisfies these criteria,
then subsequent practice establishing the agreement of the parties could be said to be
crystallised. We must now consider, finally, some of the practical implications of this
for the interpretation of human rights treaties in general.
5.
SUBSEQUENT PRACTICE IN THE WIDER CONTEXT OF
HUMAN RIGHTS TREATY INTERPRETATION
There are two further, linked issues which come into consideration when examining
this issue: where subsequent practice is located within the general framework and rules
for interpreting human rights treaties, and how relevant or important it actually is.
On the first point, it will not have escaped the reader’s thoughts or attention that
the existence of subsequent practice is by no means the only, nor the most important,
issue when it comes to determining the nature of States’ human rights obligations.
Subsequent practice is only a small part of the VCLT: clearly, the treaty’s ordinary
meaning and object and purpose must also be taken into account (amongst other
things). And since the object and purpose of human rights treaties is always the
protection of the human rights of persons within State Parties’ jurisdictions and/
or territories, subsequent practice – or, rather the obviation of the crystallisation of
subsequent practice through the disagreement of a State Party – cannot and should not
trump that object and purpose where the case is clear-cut based on ordinary language.
For instance, there has been some level of apparent disagreement between Singapore
and the CEDAW Committee regarding the requirement to remove any marital
immunity exemption in the penal code for the crime of rape.143 Here, Singapore had
initially entered into the CEDAW and the reporting procedure with a provision in its
penal code to the effect that ‘Sexual intercourse by a man with his own wife, the wife
not being under 13 years of age, is not rape’.144 Singapore was reluctant to amend this
provision (as urged by the CEDAW Committee) because ‘the majority of people still
considered sexual issues to be private and did not wish marital rape to be included
in the Penal Code’.145 Although in the constructive dialogue for the third and fourth
periodic reports146 Singaporean representatives had seemed to indicate that the
government was not entirely in disagreement with the Committee on this point, in
143
144
145
146
374
CEDAW, ‘Concluding Observations: Singapore’s Th ird Report’ (2007) UN Doc. CEDAW/C/SGP/
CO/3 para 28, and CEDAW, ‘Concluding Observations: Singapore’s Fourth Report’ (2011) UN Doc.
CEDAW/C/SGP/CO/4 para 24(a), and discussion at CEDAW, 49th Session, 994th meeting, UN Doc.
CEDAW/C/SR.994, para 62.
Penal Code of Singapore, Section 375, Exception. The provision was amended in 2008.
CEDAW, 39th Session, 803rd Meeting, 1 August 2007, UN Doc. CEDAW/C/SR.803(A), para 76.
See ibid, and also CEDAW, 39th Session, 803rd Meeting, UN Doc. CEDAW/C/SR.803(A), para 25.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
Singapore’s fourth periodic report itself a change to the law was mentioned (removing
marital immunity where marriages are ‘on the verge of break-down or have broken
down’), but a blanket abolishment of marital immunity was explicitly rejected because
it would ‘change the whole complexion of marriage in [Singaporean] society’.147 This
would seem to indicate, prima facie, that there could be a case made for disagreement
on the part of Singapore with the interpretive conduct of the CEDAW Committee
with respect to marital rape in its General Recommendation No. 19148 and elsewhere
in its concluding observations.149 It would follow that this interpretive conduct had
not crystallised into subsequent practice due to this disagreement on the part of
the one of the State Parties – that is, Singapore. Nonetheless, a potentially stronger
argument would suggest that since the object and purpose of the CEDAW Convention
is the elimination of discrimination against women, and marital immunity for rape
results in de facto discrimination against women for obvious reasons, Singapore’s
possible disagreement with the interpretive practice of the CEDAW Committee in
this regard would make no difference to the interpretation advanced – namely that
the existence of marital immunity in Singaporean law puts Singapore in breach of
its obligations under Article 1. Or, to put the matter more simply, one need not turn
to subsequent practice in the first place where it seems as though the interpretation
is relatively clear, as it is on this point. Apparent disagreement with the interpretive
conduct of the treaty bodies will not, and should not, trump what is obvious from a
common sense reading of the treaty text.
This consideration may also have bearing on the question of extra-territorial
application of the ICCPR discussed in the previous section. It was established that
the UK disagreed with the HRC on its interpretation of Article 2 in this regard, and
hence, on a prima facie basis, this would prevent the crystallisation of subsequent
practice. However, there is a perfectly sound argument to be made that a teleological
interpretation of the Covenant would be more appropriate in respect of the relevant
aspects of that Article, since it would hardly be in line with the object and purpose
of the Covenant to interpret Article 2 as only applying within a State Party’s territory
and jurisdiction and hence not applying to any kind of ill-treatment outside that
State’s territory.150
This may lead one to the conclusion that, since often there is nothing to be
gained from examining subsequent practice as opposed to interpreting the ordinary
meaning of the text in light of its object and purpose, the subsequent practice model
has no value even in deciding hard cases. The ICCPR’s object and purpose, after all, is
partly to create conditions ‘whereby everyone may enjoy his civil and political rights,
147
148
149
150
CEDAW, ‘Fourth Periodic Report of Singapore’ UN Doc. CEDAW/C/SGP/4, para 16.12.
CEDAW, ‘General Recommendation No. 19’ (1992) UN Doc. A/47/38.
CEDAW, ‘Concluding Observations: Singapore’s Fourth Report’ (n 143) paras 23–24.
For a persuasive argument on this point, see N. Rodley, ‘The extraterritorial reach and applicability
in armed confl ict of the International Covenant on Civil and Political Rights: a rejoinder to Dennis
and Surena’ (2009) 5 European Human Rights Law Review 628.
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David McGrogan
as well as his economic, social and cultural rights’; why, then, since the object and
purpose of the Covenant is so clear, should one turn to subsequent practice at all?
However, this approach would go too far; this analysis began with the observation
that teleological or ‘strong normativity’ approaches to the interpretation of human
rights treaties require rooting in the normative background of international law,
which would be obviated if object and purpose was the only relevant measure –
clearly, that would not accord with that normative background. Moreover, such an
approach could only lead to absurdities: the object and purpose of the ICCPR is to
create conditions whereby everyone may enjoy his civil and political rights, but this
must have limits given that rights can and do conflict; and moreover, it simply elides
the question of precisely what the content of those rights are – which brings us back
to the initial concern that leads to the examination of subsequent practice. In many
scenarios it can only be right, in other words, that object and purpose are simply
a part of the ‘crucible’ of interpretation151 alongside subsequent practice, ordinary
meaning, and so forth.
On the second point, it is important to acknowledge that even binding human
rights treaties have a partially hortatory or aspirational nature – both by dint of
their lack of enforcement mechanisms but also by their wording and character. They,
in part, declare ‘ideals of conduct’.152 If human rights treaties have a value in this
regard, as statements of ideals to which State Parties should aspire, then they are not
particularly damaged by a failure of subsequent practice to crystallise surrounding
a certain interpretation by a treaty body. If treaty provisions are partially viewed as
goals to aspire to, in other words, then in a sense it (at least sometimes) hardly matters
that not all State Parties are in agreement with the interpretive conduct of the relevant
treaty body. That interpretive conduct is still clearly of significance in its hortatory
function if it is persuasive on some or most of the State Parties, setting aside its legal
character.
Moreover, as has been noted and as is imminent in all discussions surrounding
international human rights law, lack of enforcement skews the effects of legal rules. In
the proposed approach, VCLT subsequent practice in the human rights context is the
interpretive conduct of the relevant treaty body in combination with the (express or
implied) agreement of those representatives of the State Parties competent to give it.
If the organs of a State Party then breach an obligation indicated by the interpretation
that emerges from the subsequent practice, however, despite the fact that this would
indicate a failure on the part of the State Party to fulfi l its treaty obligation, there is of
course no corresponding sanction or enforcement mechanism.
Nonetheless, these facts should hardly lead one to the conclusion that this
proposed approach is meaningless or without import. To come full circle, this article
151
152
376
See R. Gardiner, Treaty Interpretation (OUP 2008), 9 fn. 16.
H. Steiner, ‘International Protection of Human Rights’ in M. Evans (ed), International Law (3rd ed.,
OUP 2010) 804.
Intersentia
On the Interpretation of Human Rights Treaties and Subsequent Practice
began with two observations: first, that the interpretation of human rights treaties
ought to take place against a background of the rules of general international law
(or, at the very least, that to ignore those rules would be perverse), and second, that
the vagueness of many of the provisions of human rights treaties requires a level of
rigour in the rules of interpretation if there is to be clarity about the precise nature of
the obligations undertaken by State Parties. As well as going some of the way towards
resolving those problems, this approach also allows us to clarify the role of the UN
treaty bodies within the broad framework of international human rights. Rather than
resorting to unsatisfactory elisions such as stating that the treaty bodies ‘[possess]
considerable authority’153 we are able to define their authority, and role, more clearly.
This, it should go without saying, is preferable.
6.
CONCLUDING REMARKS
This article is predicated on the notion that there is a lack of attention paid to legal rules
and the normative background of international law in the scholarship on the role of the
UN treaty bodies in the interpretation of international human rights treaties, and that
this lack of attention is unusual. It may be that there are good reasons for avoiding a ‘black
letter’ approach to the question, but it is at least arguable that failing to refer to existing
rules (the normative background of international law) both undermines legitimacy in the
eyes of participants in the system, and leaves the authority of the treaty bodies themselves
ambiguous and unquantifiable. Even if, ultimately, the reader is not persuaded by the
approach advocated, to leave the area unaddressed would seem unnecessarily blithe, and
this article has postulated a manner of conceptualising how the interpretive conduct of
the treaty bodies can exist within that framework of existing rules.
While the postulated rules themselves are not perfectly clear, it is certainly the case
that guidelines exists for the crystallisation of subsequent practice under the VCLT,
and that these guidelines comprise the three postulated axes of actual interpretive
conduct that is concordant, common and consistent and has the tacit or explicit
agreement of all of the parties. The jurisprudence of the dispute settlement panels and
AB in the WTO indicates that this framework is broadly workable, and, as we have
seen, elements of the manner in which it is used in that context can be transposed to
the sphere of international human rights with some benefit.
The caveat is, of course, that even where subsequent practice can be safely said not
to have crystallised, the ‘ideals of conduct’ expressed in the relevant treaty itself will
not by necessity be diluted or invalidated. Human rights treaties are both law and also
‘norms’ in the strict definition of the word, and their value as norms, such as they are,
is not diminished through a lack of consistent interpretive conduct and/or agreement
on behalf of the parties.
153
See Kalin & Kunzli (n 14).
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David McGrogan
Rather, it could be argued that, in fact, conceptualising the interpretation of human
rights treaty provisions in the manner suggested in this article simply reinforces
and reiterates the truism that the realisation of international human rights within
domestic legal systems is predicated almost entirely on consensus. That is, in a system
entirely lacking in sanctions and without a rigorous judicial mechanism by which a
party to a human rights treaty can be held to account for breach, the only manner in
which human rights norms can be realised is through voluntary action by the State
Parties themselves – whether this is achieved through external persuasion, coercion,
acculturation, or simply internal change. The mechanism of subsequent practice as
a framework for understanding the role of the treaty bodies simply reinforces and
complements that truism: while a given treaty body may develop an interpretation of
a treaty provision over time, and do so consistently and universally across the relevant
State Parties, such an interpretation can only ever be contingent on the agreement of
those parties if it is to have any significance from a formal perspective.
378
Intersentia
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