On the Interpretation of Human Rights Treaties and Subsequent Practice

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.