ODIFICATION The international case law shows that subsequent practice in the application of a treaty is well capable of actually modifying it The research explores the factors conducive to such modi ID: 183885
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fulfilling their purpose over time. By contrast, the process of subsequent practice offers a large degree of fle ODIFICATION The international case law shows that subsequent practice in the application of a treaty is well capable of actually modifying it. The research explores the factors conducive to such modification: for instance, the character of the respective practice, Ôcommon background of understandingÕ on the effects of subsequent practice. 4 TACIT MODIFICATION BY MEANS OF NEW CUSTOMARY INTERNATIONAL LAW CONFLICTING WITH THE ARLIER TREATY RULE The international case law indicates that a court can invoke subsequent customary law as a ground for the tacit modification of a conflicting treaty provision. However, what the case law and doctrine also suggest is that subsequent customary rules Ð with the exception of jus cogens norms Ð do not automatically