is not part of the norms that constitute the supplementary means of interpretation,
provided for in Article 32, the subsequent Article of the Vienna Convention.
In other words, according to Article 31(4), the “special meaning [of a term] that the
parties so intended” must be stated in one of the following ways: either in the
agreements, instruments and practices referred to in Article 31, paragraphs 2 and 3
(which are distinguishable because they are intimately connected with the relevant
treaty or because they refer to an agreement about its interpretation); or in a rule of
international law that is applicable to the relations between the Member States.
b.- Rule of the context and of the progressive or evolutive development.
Now, following the State’s allegations, the Judgment refers to the Universal Declaration
of Human Rights, 71 the International Covenant on Civil and Political Rights, 72 the
Convention on the Elimination of all Forms of Discrimination against Women, 73 and the
Convention on the Rights of the Child. 74 It also refers to the provisions of the
Universal, 75 European 76 and African human rights systems, 77 and also to the case law
of the European Court of Human Rights 78 and of seven domestic constitutional
courts. 79 The Judgment refers to all of them within the framework of the systematic
and historical interpretation, even though it should have done so, in some cases, in
application of the rule of the context (established in Article 31(2) of the Vienna
Convention), and in other cases, in application of the rule of progressive development
of law (provided for in Article 31(3) of the same convention).
These agreements and instruments, however, lack the relevant features for being
considered as instruments or agreements made as a consequence of or in connection
with the Convention. Hence, they cannot be used as a means for interpreting the
Convention. They neither refer, strictly speaking, to subsequent practice, to the way
how States parties to the Convention apply this treaty, whereby showing their
agreement regarding the Convention’s interpretation. As to the rules of international
law applicable in the relations between the State parties, it is evident that they do not
fulfill Article 31(4) of the Vienna Convention’s requirement of being “relevant” to the
case.
Even more so, the provisions of the previously referred treaties, the statements of the
aforementioned judgments of international and European courts, and the provisions of
domestic law of Member States to the Convention—all of which were quoted for
interpreting the latter—can be neither considered a kind of customary law nor a
general principle of law. They are not international custom because they are not
71
Para.224.
72
Para.225.
73
Paras.227 and 228.
74
Paras. 229 to 233.
75
Para. 226.
76
Para. 234.
77
Para. 243.
78
Paras. 236 to 242.
79
Paras. 252, 261, and 262.