Abstract
This contribution describes the International Law Commission’s Draft Articles of 2011 on the Effect of Armed Conflicts on Treaties. The Articles in question begin by defining the notion of “armed conflicts” which, in the commission’s view should include internal armed conflicts, at least if there is outside participation. The Commission takes the contemporary view that extinction and even suspension is no longer the rule; it defines the factors to be used to decide on the survival, termination, or suspension of conventions; and it lists types of treaties that tend to survive. The contribution stresses that treaties do not necessarily survive—or lapse—en bloc. It also comments on a number of provisions to ensure that the Draft Articles will not affect the system of collective security embodied in the Charter of the United Nations.
Chairman, International Law Commission of the United Nations.
Former Judge, European Court of Human Rights, Strasbourg, France.
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- 1.
Entered into force on 16 November 1994.
- 2.
For an abundant bibliography on the subject, see The Effect of Armed Conflict on Treaties: An Examination of Practice and Doctrine. Memorandum by the Secretariat, UN Doc. A/CN.4/550 (1 February 2005), pp. 88–95.
- 3.
Delbrück 2000, p. 1369.
- 4.
See infra, para 4.3. lett. e).
- 5.
Treaty of Amity, Commerce and Navigation (London, 19 November 1794), entered into force on 19 February 1856.
- 6.
Delbrück 2000, p. 1371.
- 7.
Except those containing provisions on individuals’ private rights which are separable from the rest of the treaty. See infra, para 4.3. lett. e).
- 8.
Entered into force on 27 January 1980.
- 9.
See: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Geneva Convention relative to the Treatment of Prisoners of War; and Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949), entered into force on 21 October 1950; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (Geneva, 8 June 1977), entered into force on 7 December 1978.
- 10.
Report of the International Law Commission, 63rd Session, UN Doc. A/63/10 (2011), p. 173, at p. 179, commentary (2) on Article 1.
- 11.
The Article prescribes: “The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the responsibility of a State or from the outbreak of hostilities between States.”
- 12.
Resolution of 28 August 1985. 1986 Yearbook of the Institute of International Law 61-II, p. 278.
- 13.
First Report on the Effects of Armed Conflicts on Treaties by Mr. Ian Brownlie, Special Rapporteur, UN Doc. A/CN.4/552 (21 April 2005); Second Report on the Effects of Armed Conflicts on Treaties by Mr. Ian Brownlie, Special Rapporteur, UN Docs A/CN.4/570 (16 June 2006) and A/CN.4/570/Corr.1 (12 July 2006); Third Report on the Effects of Armed Conflicts on Treaties by Mr. Ian Brownlie, Special Rapporteur, UN Docs A/CN.4/578 (1 March 2007) and A/CN.4/578/Corr.1 (24 July 2007); and Fourth Report on the Effects of Armed Conflicts on Treaties by Mr. Ian Brownlie, Special Rapporteur, UN docs A/CN.4/589 (14 November 2007) and A/CN.4/589/Corr.1 (16 April 2008).
- 14.
UN Docs A/CN.4/550 (1 February 2005) and A/CN.4/550/Corr.1 (3 June 2005).
- 15.
Effects of Armed Conflicts on Treaties: Comments and Information Received from Governments, UN Docs A/CN.4/622 (15 March 2010) and A/CN.4/622/Add.1 (12 May 2010).
- 16.
First Report on Effects of Armed Conflicts on Treaties, by Mr. Lucius Caflisch, Special Rapporteur, UN Doc. A/CN.4/627 (22 March 2010) and A/CN.4/627/Add.1 (21 April 2010).
- 17.
Effects of armed conflicts on treaties: Note on the recommendation to be made to the General Assembly about the draft articles on the Effects of armed conflicts on treaties, by Mr. Lucius Caflisch, Special Rapporteur, UN Doc. A/CN.4/644 (18 May 2011).
- 18.
Article 1: “Scope. The present draft articles apply to the effects of armed conflict on the relations of States under a treaty”. Article 2: “Definitions. For the purposes of the present draft articles: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation, and includes treaties between States to which international organisations are also parties; (b) ‘armed conflict’ means a situation in which there is resort to armed force between States or protracted resort to armed force between governmental authorities and organised armed groups.”
- 19.
According to this provision, “‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.
- 20.
“‘Armed conflict’ means a state of war or a conflict which involves armed operations which by their nature or extent are likely to affect the application of treaties between States parties to the armed conflict or between a State party to the armed conflict and a third State, regardless of a formal declaration of war or any declaration by any or all of the parties to the armed conflict” (Report of the International Law Commission, 60th Session, UN Doc. A/63/10 (2008), p. 83). The above definition, which was limited to international armed conflicts, corresponded to Article 1 of the 1985 Resolution of the Institute of International Law.
- 21.
ICTY, Prosecutor v. Dusko Tadić, IT-94-1-A, Appeals Chamber, Decision (2 October 1995), para 70.
- 22.
For another limitation, see infra, p. 39.
- 23.
This provision now reads as follows: “‘armed conflict’ means a situation in which there is resort to armed force between States or protracted resort to armed force between governmental authorities and organised armed groups.”
- 24.
These provisions prescribe: Article 3: “General principle. The existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties: (a) as between States parties to the conflict; (b) as between a State party to the conflict and a State that is not.” Article 4: “Provisions on the operation of treaties. Where a treaty itself contains provisions on its operation in situations of armed conflict, those provisions shall apply.” Article 5: “Application of rules on treaty interpretation. The rules of international law on treaty interpretation shall be applied to establish whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflict.” Article 6: “Factors indicating whether a treaty is susceptible to termination, withdrawal or suspension. In order to ascertain whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflict, regard shall be had to all relevant factors, including: (a) the nature of the treaty, in particular its subject-matter, its object and purpose, its content and the number of parties to the treaty; and (b) the characteristics of the armed conflict, such as its territorial extent, its scale and intensity, its duration and, in the case of non-international armed conflict, also the degree of outside involvement.” Article 7: “Continued operation of treaties resulting from their subject-matter. An indicative list of treaties the subject-matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict, is to be found in the annex to the present draft articles.” Annex: “Indicative list of treaties referred to in Article 7: (a) Treaties on the law of armed conflict, including treaties on international humanitarian law. (b) Treaties declaring, creating or regulating a permanent regime or status or related permanent rights, including treaties establishing or modifying land and maritime boundaries. (c) Multilateral law-making treaties. (d) Treaties on international criminal justice. (e) Treaties of friendship, commerce and navigation and agreements concerning private rights. (f) Treaties for the international protection of human rights. (g) Treaties relating to the international protection of the environment. (h) Treaties relating to international watercourses and related installations and facilities. (i) Treaties relating to aquifers and related installations and facilities. (j) Treaties which are constituent instruments of international organisations. (k) Treaties relating to the international settlement of disputes by peaceful means, including resort to conciliation, mediation, arbitration and judicial settlement. (l) Treaties relating to diplomatic and consular relations.”
- 25.
American International Law Cases (AILC), 1783–1968, Vol. 19, p. 49, at pp. 52–53.
- 26.
Report cited in note 10, p. 186, commentary (2) on Article 5.
- 27.
Ibidem, pp. 187–188, commentary (4) on Article 6.
- 28.
Indeed, the Special Rapporteur would have preferred its insertion after Article 7 rather than at the end of the Draft.
- 29.
Entered into force on 12 May 1784.
- 30.
Arbitral Tribunal: The North Atlantic Coast Fisheries Case (Great Britain/United States), Award (7 September 1910).
- 31.
AILC 1783–1968, Vol. 19, p. 133, at p. 138.
- 32.
Entered into force on 6 November 1996.
- 33.
Entered into force on 28 July 1924.
- 34.
Entered into force on 25 July 1929.
- 35.
Rome Statute of the International Criminal Court (Rome, 17 July 1998), entered into force on 1st July 2002.
- 36.
See Report cited in note 10, p. 205, commentaries (23) and (24).
- 37.
Ibidem, paras 27–38, pp. 206–208.
- 38.
AILC 1783–1968, Vol. 19, p. 49, at p. 54.
- 39.
Ibidem, p. 117, at p. 122; Goos v. Brocks, Supreme Court of Nebraska, 10 January 1929, ibidem, p. 124.
- 40.
Entered into force on 14 March 1829.
- 41.
Decision of 22 June 1949, Annual Digest of Public International Law Cases 1949, No. 130.
- 42.
Entered into force on 3 September 1953, as amended by Protocol No. 11 (Strasbourg, 11 May 1994), entered into force on 1 November 1998, and Protocol No. 14 (Strasbourg, 13 May 2004), entered into force on 1 June 2010.
- 43.
These provisions deal, respectively, with the right to life, the prohibition of torture and of inhuman or degrading treatment, and the principle “No punishment without law”.
- 44.
On this issue, cf. for example Pastor Ridruejo 2007, pp. 399–407.
- 45.
ICJ: Legality of the Threat or Use of Nuclear Weapons, Advisory Op. (8 July 1996).
- 46.
Article 35.3 of the Protocol prohibits the use of methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. According to Article 55, care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage; this protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
- 47.
Report cited in note 10, p. 212, commentary (56).
- 48.
Entered into force on 22 December 1888.
- 49.
Entered into force on 31 October 1922.
- 50.
Not yet in force.
- 51.
Report of the International Law Commission, 60th Session, UN Doc. A/63/10, para 53; and UN General Assembly Resolution 63/124 of 11 December 2008, UN Doc. A/RES/63/124 (15 January 2009), Annex.
- 52.
Report cited in note 10, p. 216, commentary (72). See also Article 18 of the Draft Articles on the Law of Transboundary Aquifers, supra n. 51, p. 27.
- 53.
Report cited in note 10, p. 214, commentary (67).
- 54.
See infra, p. 49.
- 55.
Entered into force on 24 April 1964.
- 56.
Report cited in note 10, p. 216, commentary (72).
- 57.
ICJ: United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment (24 May 1980), para 86.
- 58.
Entered into force on 19 March 1967.
- 59.
Report cited in note 10, p. 217, commentary (77).
- 60.
California Court of Appeal (21 June 1954), International Law Reports 1954, p. 432, especially at p. 433.
- 61.
Entered into force on 14 October 1925.
- 62.
Article 8: “Conclusion of treaties during armed conflict. 1. The existence of an armed conflict does not affect the capacity of a State party to that conflict to conclude treaties in accordance with international law. 2. States may conclude agreements involving termination or suspension of a treaty or part of a treaty that is operative between them during situations of armed conflict, or may agree to amend or modify the treaty.” Article 9: “Notification of intention to terminate or withdraw from a treaty or to suspend its operation. 1. A State intending to terminate or withdraw from a treaty to which it is a party, or to suspend the operation of that treaty, as a consequence of an armed conflict shall notify the other State party or States parties to the treaty, or its depositary, of such intention. 2. The notification takes effect upon receipt by the other State party or States parties, unless it provides for a subsequent date. 3. Nothing in the preceding paragraphs shall affect the right of a party to object within a reasonable time, in accordance with the terms of the treaty or other applicable rules of international law, to the termination of or withdrawal from the treaty, or suspension of its operation. 4. If an objection has been raised in accordance with para 3, the States concerned shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 5. Nothing in the preceding paragraphs shall affect the rights or obligations of States with regard to the settlement of disputes insofar as they have remained applicable.” Article 10: “Obligations imposed by international law independently of a treaty. The termination of or the withdrawal from a treaty, or the suspension of its operation, as a consequence of an armed conflict, shall not impair in any way the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of that treaty.” Article 11: “Separability of treaty provisions. Termination, withdrawal from or suspension of the operation of a treaty as a consequence of an armed conflict shall, unless the treaty otherwise provides or the parties otherwise agree, take effect with respect to the whole treaty except where: (a) the treaty contains clauses that are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust.” Article 12: “Loss of the right to terminate or withdraw from a treaty or to suspend its operation. A State may no longer terminate or withdraw from a treaty or suspend its operation as a consequence of an armed conflict if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty remains in force or continues in operation; or (b) it must by reason of its conduct be considered as having acquiesced in the continued operation of the treaty or in its maintenance in force.” Article 13: “Revival or resumption of treaty relations subsequent to an armed conflict. 1. Subsequent to an armed conflict, the States parties may regulate, on the basis of agreement, the revival of treaties terminated or suspended as a consequence of the armed conflict. 2. The resumption of the operation of a treaty suspended as a consequence of an armed conflict shall be determined in accordance with the factors referred to in draft article 6.”
- 63.
McNair 1961, p. 696.
- 64.
Fitzmaurice 1948, p. 309.
- 65.
Report cited in note 10, p. 189, commentary (6) on Article 8.
- 66.
Article 43 VCLT provides: “The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.”
- 67.
“The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.”
- 68.
Report cited in note 10, pp. 192–193, commentary (3) on Article 11.
- 69.
Ibidem, p. 193, commentary (3) on Article 12.
- 70.
Entered into force on 15 September 1947. Article 44 of the Peace Treaty runs as follows: “1. Each Allied or Associated Power will notify Italy, within a period of six months from the coming into force of the present Treaty, which of its pre-war bilateral treaties with Italy it desires to keep in force or to revive. Any provision not in conformity with the present Treaty shall, however, be deleted from the above-mentioned treaties. 2. All such treaties so notified shall be registered with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations. 3. All such treaties not so notified shall be regarded as abrogated.”
- 71.
Article 14: “Effect of the exercise of the right to self-defence on a treaty. A State exercising its inherent right of individual or collective self-defence in accordance with the Charter of the United Nations is entitled to suspend in whole or in part the operation of a treaty to which it is a party insofar as that operation is incompatible with the exercise of that right”. Article 15: “Prohibition of benefit to an aggressor State. A State committing aggression within the meaning of the Charter of the United Nations and Resolution 3314 (XXIX) of the General Assembly of the United Nations shall not terminate or withdraw from a treaty or suspend its operation as a consequence of an armed conflict that results from the act of aggression if the effect would be to the benefit of that State.” Article 16: “Decisions of the Security Council. The present draft articles are without prejudice to relevant decisions taken by the Security Council in accordance with the Charter of the United Nations.” Article 17: “Rights and duties arising from the laws of neutrality. The present draft articles are without prejudice to the rights and duties of States arising from the laws of neutrality.” Article 18: “Other cases of termination, withdrawal or suspension. The present draft articles are without prejudice to the termination, withdrawal or suspension of treaties as a consequence of, inter alia: (a) a material breach; (b) supervening impossibility of performance; or (c) a fundamental change of circumstances.”
- 72.
Report cited in note 10, p. 195, commentary (2) on Article 14.
- 73.
Article 7 of the Institute’s Resolution reads as follows: “A State exercising its right of individual or collective self-defence in accordance with the Charter of the United Nations is entitled to suspend in whole or in part the operation of a treaty incompatible with the exercise of that right, subject to any consequences resulting from a later determination by the Security Council of that State as an aggressor.”
- 74.
Article 9, which provides: “A State committing aggression within the meaning of the Charter of the United Nations and Resolution 3314 (XXIX) of the General Assembly of the United Nations shall not terminate or suspend the operation of a treaty if the effect would be to benefit that State.”
- 75.
U.N. Doc. A/RES/29/3314 (14 December 1974), Annex.
- 76.
The text of Article 15 sparked animated discussions on whether that provision should apply across the board, to all aggressor States, regardless of whether they would benefit from the aggression or not, or only to those aggressor States which would draw a benefit from the termination, suspension or withdrawal. The latter view, finally, prevailed.
- 77.
Report cited in note 10, p. 196, commentary (2) on Article 15.
- 78.
Ibidem, commentary (4) on Article 15.
- 79.
Ibidem, commentary (5) on Article 15.
- 80.
Article 103 provides: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
- 81.
According to Article 8 of that Resolution, “[a] State complying with a resolution by the Security Council of the United Nations concerning action with respect to threats to the peace, breaches of the peace or acts of aggression shall either terminate or suspend the operation of a treaty which would be incompatible with such resolution.”
- 82.
In its Resolution 66/99 of 9 December 2011, the United Nations General Assembly welcomed the conclusion of the ILC’S work on The Effects of Armed Conflicts on Treaties, expressed its appreciation to the Commission, took note of the Articles elaborated on the subject and commended them to the attention of governments, without prejudging the question of their future adoption or other appropriate action. It also decided to include the topic “The Effects of Armed Conflicts on Treaties” in the agenda of its 69th session so as to examine, in particular, the form to be given to the Articles. The highly contentious nature of the topic makes it unlikely that the Articles will receive much further official consecration, e.g., by the convocation of a codification conference. This is not to say, however, that the work of the Commission has been in vain. The Articles will be considered by international agencies and governments as being the state-of-the art expression of the principles governing the effects of armed conflicts, international or internal, on international agreements.
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Caflisch, L. (2013). The Effect of Armed Conflict on Treaties: A Stocktaking. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_4
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