My 2011 Book Favorably Cited by International Law Commission Report

So this is going to sound a little international law nerdy, but I think my fellow PIL academics will understand when I say that I was quite excited when my friend Pierre-Emmanuel Dupont pointed out to me that my 2011 book had recently been cited to favorably in the International Law Commission Special Rapporteur’s second report on the topic of subsequent agreements and subsequent practice in relation to the interpretation of treaties (you can read about the ILC here). I’ll attach the ILC Report to a link below (you can’t just do a hyperlink to it, apparently). See footnote 195 and the surrounding text.

No, this is not a Nobel Peace Prize. But it’s still enough to make the day of an academic.

Basically, this is an argument that I have been making for some time, which is that NPT review conference final documents, which are adopted by consensus of the states parties of the NPT, are sources in which you can find “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, to quote from the Vienna Convention on the Law of Treaties, Article 31(3)(a).  I have used such final document statements fairly extensively in my interpretation of the NPT.

My arguments to this effect have not been uncontroversial, however. Christopher Ford, for example, has opined in our exchanges that NPT Review Conference Final Documents do not contain such statements of subsequent agreement, relevant for treaty interpretation purposes. As he argued in an exchange with me at Carnegie a few years ago, specifically critiquing my 2011 book:

The closest Dan gets to a legal argument for filling out the thinness of Article VI with concrete disarmament content is to declare that the NWS are legally obliged to take every disarmament-related step subsequently called for by the parties at any NPT RevCon. Specifically, he says the NWS’ compliance should be judged according to the degree of their fulfillment of the “13 Steps” described by the 2000 meeting.

To be sure, he is a bit vague about this, admitting that these measures are merely “part of the ‘yardstick’” for assessing NPT compliance, and seeming to accept the point that “at least partial compliance” is possible irrespective of whether or not one has followed the “13 steps.” Nevertheless, Dan clearly means to follow today’s diplomatic conventional wisdom and invest the “steps” with legal import.

This is, to my eye, a weak argument. It’s a shame to have to mention it here, for I dealt with this in my 2007 essay and in his book Dan fails to address the argument I made there. He wants the “13 steps” to constitute a “subsequent agreement” on how to interpret NPT within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties, but he offers no evidence that the drafters of the “steps” or indeed of any RevCon document ever understood themselves to be preparing such a thing. Certainly the “steps” themselves feature no language suggesting they are intended to have this kind of (or any) legal import, and indeed in many cases they are phrased in ways that would make compliance well-nigh unassessable anyway. (Bolding and Underlining Added. DJ)

However, this new ILC report seems to adopt very much my way of looking at this subject, and specifically cites to my book to demonstrate the point. So I can’t help but feel a bit validated.

ILC Second Report Subsequent Practice and Agreement Treaty Interpretation



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