not accept it, especially if it is a 69 See the interesting discussion in E. Lauterpacht, loc. cit. note 42 at pp. 460ff. He is of the view that agreement, acquiescence and estoppel are not adequate bases for practice. See also the difficulties raise

in the Expenses Case: 1962 ICJ Reports at pp. 191, 192, 201. 54 i n t e r p r e t a t i o n o f t e x t s sizeable one, because, while those in the minority at the time of becom- ing parties to the constitutive treaty entered into commitments based on a treaty, they are not willing to see those changed simply because a majority of members so wish; in other words, they did not in fact agree, at the time of becoming parties to the constitutive instrument, to amendments to the treaty by the decision-making process of the orga- nization involving only a majority vote but only to giving effect to or implementing the treaty by this method. While a practice may not ‘change’ a constitutional provision in the sense of amending it, a substantial minority may be entitled to maintain that it did not implicitly agree to ‘development’ of the text against its will. The same argument may not be applied to a small minority. There is an element of implied agreement in the case of the latter, to the extent that it cannot obstruct the functioning of the organization. To this consequence which endows a practice with legality all the members may be presumed to international law firm agreed at the time of becoming parties to the constitution, regardless of whether they disagreed as part of a small minority with the specific practice at the time the decision or decisions were taken to follow the practice. It makes no difference that the practice has or has not been decided upon specifically and expressly as an interpretation of the constitution or that the issue has or has not been addressed. As the ICJ said in the Expenses Case, the relevant organ of the institution in the first place, at least, interprets its constitution and this interpretation, however it is done, would stand, unless overruled by a higher competent body, so that the adoption, whether by explicit or implicit interpretation, of practices by organs within the limits described above could be regarded as having been consented to by members at the time they became parties to the constitutive instrument. The examples of practice used in interpretation, such as in the Namibia Case, it must be acknowledged, cannot really be said to international law firm amounted to amendments of the constitution. As regards the practice of the GA referred to in that case, it did not necessarily contradict the language of the Charter of the UN but could be regarded as implementing, develop- ing and filling in gaps in the Charter. As regards the voting in the SC, the position may be somewhat more difficult. Undoubtedly, if practice even with general agreement or consensus gives rise to an interpretation that contradicts and, therefore, amends the constitution of an institution, because it continues to be adopted as an appropriate interpretation, this is a question which pertains to amendment and not to interpretation c o n s t i t u t i o n a l i n t e r p r e t a t i o n 55 as such. But it is not clear that practice that contradicted an express text was accepted as of interpretative value.