16
application or interpretation of the Convention
2
; on the other hand, international
courts and tribunals that operate outside the UNCLOS framework have had the
chance to rule on UNCLOS provisions relevant to the issues raised before them. For
a discussion of the interpretations of UNCLOS made by the various judicial and
arbitral bodies, I refer the reader to the chapters in this book that specifically deal
with one or more of those bodies. I will briefly return to this issue in my conclusions, where I consider whether, on the whole, the multiplicity of courts and tribunals has led to the development of a consistent international jurisprudence.
Here, I am primarily concerned with the methods and the object of interpretation.
In my view, the international jurisprudence on UNCLOS has largely relied on the
interpretative criteria specified in the 1969 Vienna Convention on the Law of
Treaties (VCLT),
3
at Articles 31 to 33.
4
The International Court of Justice (ICJ) has
clarified on a number of occasions—including in the context of disputes concerning
UNCLOS—that its approach is to “apply the rules on interpretation to be found in
Articles 31 and 32 of the [1969] Vienna Convention on the Law of Treaties”,
5
which
it considers to be “reflective of customary international law”.
6
The same approach
has been adopted by numerous international courts and tribunals
7
—including the
International Tribunal for the Law of the Sea (ITLOS)
8
—and was recently endorsed
by the International Law Commission (ILC) itself in the 2018 Draft Conclusions on
Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of
Treaties
9
(to which I will return in paragraph 5).
2 For further analysis and references, see Klein (2005), Virzo (2008), Karaman (2012) and Caligiuri
(2018).
3 Vienna, 23 May 1969; entry into force: 27 January 1980; 1155 UNTS 331.
4 As is well known, Articles 31–33 of the Convention on the Law of Treaties between States and
International Organizations or between International Organizations, adopted on 21 March 1986 in
Vienna and not yet entered into force, are identical to Articles 31–33 VCLT.
5 See, for example, and for references to prior case law, ICJ, Maritime Delimitation in the IndianOcean (Somalia v. Kenya), Preliminary Objections, Judgment, 2 February 2017, para. 63.
6 Ibidem. Due to the customary law character of these provision, in a previous judgment the Court
held that “neither the circumstances that Nicaragua is not a party to the Vienna Convention on the
Law of Treaties nor the fact that the treaty which is to be interpreted here considerably pre-dates
the drafting of the said Convention has the effect of preventing the Court from referring to the
principles of interpretation set forth in Articles 31 and 32 of the Vienna Convention”. See ICJ,
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, 13 July
2009, para. 47.
7 For a list of important decisions by international courts and tribunals recognizing the customary
law character of the interpretative criteria set out in Articles 31 and 32 VCLT, see Crema (2017),
pp. 26–27, footnotes 87 and 89.
8 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, 1 February 2011, para. 57.
9 Cf. ILC, Report of the work of the 17th session (2018), pp. 11–117. The topic of “Subsequent
Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” was placed on
the agenda of the Commission in 2012 (64th session), but is actually a development of the
Commission’s work on “Treaties over Time” started in 2009 (61st session). Georg Nolte was
appointed Special Rapporteur in 2012. In 2016 (68th session) the ILC transmitted the Draft conR. Virzo
application or interpretation of the Convention
2
; on the other hand, international
courts and tribunals that operate outside the UNCLOS framework have had the
chance to rule on UNCLOS provisions relevant to the issues raised before them. For
a discussion of the interpretations of UNCLOS made by the various judicial and
arbitral bodies, I refer the reader to the chapters in this book that specifically deal
with one or more of those bodies. I will briefly return to this issue in my conclusions, where I consider whether, on the whole, the multiplicity of courts and tribunals has led to the development of a consistent international jurisprudence.
Here, I am primarily concerned with the methods and the object of interpretation.
In my view, the international jurisprudence on UNCLOS has largely relied on the
interpretative criteria specified in the 1969 Vienna Convention on the Law of
Treaties (VCLT),
3
at Articles 31 to 33.
4
The International Court of Justice (ICJ) has
clarified on a number of occasions—including in the context of disputes concerning
UNCLOS—that its approach is to “apply the rules on interpretation to be found in
Articles 31 and 32 of the [1969] Vienna Convention on the Law of Treaties”,
5
which
it considers to be “reflective of customary international law”.
6
The same approach
has been adopted by numerous international courts and tribunals
7
—including the
International Tribunal for the Law of the Sea (ITLOS)
8
—and was recently endorsed
by the International Law Commission (ILC) itself in the 2018 Draft Conclusions on
Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of
Treaties
9
(to which I will return in paragraph 5).
2 For further analysis and references, see Klein (2005), Virzo (2008), Karaman (2012) and Caligiuri
(2018).
3 Vienna, 23 May 1969; entry into force: 27 January 1980; 1155 UNTS 331.
4 As is well known, Articles 31–33 of the Convention on the Law of Treaties between States and
International Organizations or between International Organizations, adopted on 21 March 1986 in
Vienna and not yet entered into force, are identical to Articles 31–33 VCLT.
5 See, for example, and for references to prior case law, ICJ, Maritime Delimitation in the IndianOcean (Somalia v. Kenya), Preliminary Objections, Judgment, 2 February 2017, para. 63.
6 Ibidem. Due to the customary law character of these provision, in a previous judgment the Court
held that “neither the circumstances that Nicaragua is not a party to the Vienna Convention on the
Law of Treaties nor the fact that the treaty which is to be interpreted here considerably pre-dates
the drafting of the said Convention has the effect of preventing the Court from referring to the
principles of interpretation set forth in Articles 31 and 32 of the Vienna Convention”. See ICJ,
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, 13 July
2009, para. 47.
7 For a list of important decisions by international courts and tribunals recognizing the customary
law character of the interpretative criteria set out in Articles 31 and 32 VCLT, see Crema (2017),
pp. 26–27, footnotes 87 and 89.
8 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber),
Advisory Opinion, 1 February 2011, para. 57.
9 Cf. ILC, Report of the work of the 17th session (2018), pp. 11–117. The topic of “Subsequent
Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” was placed on
the agenda of the Commission in 2012 (64th session), but is actually a development of the
Commission’s work on “Treaties over Time” started in 2009 (61st session). Georg Nolte was
appointed Special Rapporteur in 2012. In 2016 (68th session) the ILC transmitted the Draft conR. Virzo