Taking up the topic of the effects of armed conflicts on treaties, Sixth Committee (Legal) delegates today revisited the International Law Commission’s draft articles and tackled the question of whether domestic conflict should be treated differently than international conflict in the context of treaties.
The Committee also had before it the report of the Secretary‑General (A/72/96) on the matter, containing comments and information received from Governments. It also recalled that the International Law Commission recommended that the Assembly annex the draft articles in a resolution and, at a later stage, consider elaborating a convention based on those texts.
Sudan’s representative said that domestic conflicts did not necessarily have an impact on treaties between two sovereign States. While the draft articles should respect international law, he noted that their scope of application should not include armed conflicts that were non‑international.
Echoing those sentiments, the Russian Federation’s delegate said that armed conflicts that were non‑international were outside of the scope of the draft articles. She also underscored that developing a convention on the basis of those articles would be premature at the present time.
By contrast, Estonia’s representative said that it was justified to include both international and non‑international conflicts, as both types had an effect on treaties. An example could be found in the Convention for the Protection of Human Rights and Fundamental Freedoms, which took into account the effect of non‑international armed conflicts. She also observed that occupation was a form of armed conflict and hence covered by the draft articles.
Israel’s representative, highlighting the practical difficulties arising from the text on the prohibition of benefit to an aggressor State, said identifying the aggressor was a complex matter; the very definition of aggression was controversial. He also cautioned against the inclusion of a list of specific treaties in the draft articles. Rather, it would be more appropriate to compile a list of general criteria that a treaty needed to meet in order to continue to apply in the event of armed conflict.
Speaking for the African Group, the representative of Algeria also urged that criteria be established to determine what types of agreements would not be susceptible to termination or suspension during armed conflict. In addition, because the articles not only attempted to clarify an area of law where rules were lacking, they also risked what he described as the fragmentation of international law.
Nonetheless, Uruguay’s delegate emphasized that commitments taken at an international level with regard to treaties needed to be implemented faithfully. Not honouring treaty obligations should only happen on rare occasions, such as whenever those obligations could not be carried out during an armed conflict.
Also speaking today were representatives of Finland (for the Nordic countries), Australia, Singapore, El Salvador, United States, Bangladesh, South Africa, Iran, Malaysia, Saudi Arabia, Greece and Portugal.
The Sixth Committee will reconvene at 10 a.m. on Monday, 23 October, to commence its consideration of the report of the International Law Commission on the work of its sixty‑ninth session.
Introduction of Draft Resolutions
The representative of Austria introduced two resolutions on the United Nations Commission on International Trade Law (UNCITRAL) (documents A/C.6/72/L.10 and A/C.6/72.L.11).
The first draft resolution on the Report of the Commission on its fiftieth session stressed the importance of international trade law and that UNICTRAL was the key body in that sector. The second draft text addressed the UNCITRAL Model Law on Electronic Transferable Records.
Statements on Effects of Armed Conflicts on Treaties
SABRI BOUKADOUM (Algeria), speaking for the African Group, said that while the International Law Commission had worked to clarify and develop an area of law that was vague, the Vienna Convention on the Law of Treaties remained the primary instrument regarding the interpretation of those texts. There should also be regard for the rules of international humanitarian law, which had been developed over a long period of time. Noting that the definition of “armed conflict” in the draft articles differed from its definition in international humanitarian law, he said that the articles should support and enhance already established rules, not depart from them.
He went on to say that he did not support the elaboration of the draft articles into a binding legal instrument. While the articles attempted to clarify an area of law where there were not many rules, they risked the fragmentation of international law by touching on both treaty law and international humanitarian law, without relying exactly on key concepts in those areas. Furthermore, the draft articles contained an indicative list of types of treaties that should be presumed not to be susceptible to termination or suspension in an armed conflict situation. It would be preferable, instead, if criteria could be established to determine what types of agreements would not be susceptible to termination or suspension during armed conflict, he said.
NIINA NYRHINEN (Finland), speaking for the Nordic countries (Denmark, Iceland, Norway and Sweden), said that the topic originated from the International Law Commission. Its work on that matter had been concluded in 2011 with the adoption of a set of 18 draft articles. The General Assembly took note of those articles and commended them to the attention of Governments. The Commission also recommended that the elaboration of a convention based on the draft articles should be considered at a later stage.
She underscored the contents of a note that one of the Special Rapporteurs submitted to the Commission in which he pointed out that the Commission had not always followed article 23 of the Commission’s statute on types of recommendations to the General Assembly. In fact, the Commission had, at times, agreed on intermediary types. The Special Rapporteur had also weighed in on arguments for the convocation of a conference to elaborate a convention, encouraging the Commission to move cautiously. She expressed her agreement that the holding of a diplomatic conference for the elaboration of a convention was not of immediate relevance.
CARRIE MCDOUGALL (Australia), while voicing her support for further work on the topic, said that because of the varied nature of armed conflict, the level of consensus needed to conclude a binding international instrument might not be possible. In a non‑binding form, the draft articles were a useful source of guidance and complementary to the Vienna Convention, which should continue to be the primary source of law on that topic, she said.
ELSADIG ALI SAYED AHMED (Sudan), associating himself with the African Group, recalling the recommendation of the International Law Commission’s draft articles to the General Assembly, said that the draft articles must respect the principles enshrined in international law. The scope of application should not include armed conflicts that were non‑international in nature. Domestic conflicts did not necessarily have an impact on treaties between two sovereign States, he said.
SERAPHINA FONG (Singapore) said that the draft articles and their commentaries were a valuable compendium on a complicated area of treaty law and should remain in their current form. Further, although the texts were useful as a source of guidance, she also said that she remained unpersuaded of the necessity to formally endorse or elaborate them into a convention. Draft articles 2, 5, 6 and 7 as well as the annex could be viewed as the progressive development of international law, recalling her country’s comments which had previously been articulated to the Committee in detail in document A/C.6/69/SR.18, paragraphs 27‑31.
ELENA A. MELIKBEKYAN (Russian Federation) said that it was important that the draft articles clearly reflected the presumption that armed conflict did not automatically lead to the cessation or curbing of a treaty. However, the scope of the articles had not yet changed, she noted, stressing that armed conflicts that were non‑international in nature should remain outside the scope of the topic. Also expressing doubts about the definition of armed conflict and the indicative list of treaties, she said that the draft articles were useful as a guideline for States in improving national legislation and practice. Developing a legally binding instrument based on the articles would be somewhat premature.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), commending the work of the International Law Commission and its two Rapporteurs, said that the draft articles, when it came to hostilities between States, had enabled the international community to fill certain legal gaps at the international level. Commending the codification of the general principle of international law as set out in article 3, he noted that the principle of stability did not presume that there could be no termination of certain relations as a result of domestic or international armed conflict. Further, it was essential to interpret the content of article 7 in conjunction with the indicative list of treaties, he said, adding that he was open to a discussion on the future form the articles should take.
MARK A. SIMONOFF (United States) said that the draft articles reflected the continuity of treaty obligations during armed conflict and provided practical guidance to States to see if a treaty should remain in effect under those circumstances. Noting that the General Assembly had considered those draft articles on several occasions, he said that the texts should be best used as a resource for States when considering the effect of particular armed conflicts on particular treaties. Also expressing concern regarding certain draft articles, he said he did not support the elaboration of a convention. Furthermore, regarding draft article 2.b on the definition of armed conflict, the definition found in the Geneva Conventions enjoyed nearly universal acceptance among States.
MOHAMMAD HUMAYUN KABIR (Bangladesh) said that he subscribed to the view found in draft article 3 that the existence of an armed conflict did not, in and of itself, mean that a treaty should be terminated. Draft articles 4, 6, 7, 8 and 15 were of importance for the progressive development of law. On the divergent view on draft article 2, there was merit in further discussion on that matter. He further noted that reference to non‑international armed conflicts had not been consistent in the commentaries furnished along with the draft articles.
THEMBILE ELPHUS JOYINI (South Africa), associating himself with the African Group, said that, while the Vienna Convention remained the benchmark for the interpretation of treaties, treaty law and international humanitarian law constituted two separate bodies of public international law. Noting the divergent definitions of “armed conflict” in the draft articles as compared to international humanitarian law treaties and international judicial decisions, he said that it was not desirable to create differing definitions of a concept so central to relations between States. Cautioning that if transformed into a treaty, the draft articles risked the fragmentation of international law, he said that they should rather be elaborated into a set of principles or guidelines that States could refer to, should the need arise.
DAVID GOLDFARB (Israel) said that the question of the draft articles’ form was still a premature one, because key issues regarding those articles raised major concerns and fundamental difficulties yet to be resolved. He stressed that the inclusion of an indicative list of treaties, involving an implication that they continue operating during armed conflict as detailed in draft article 7, was not the most preferable approach. Rather than listing specific treaties, a more appropriate method would be to compile a list of general criteria that a treaty needed to meet in order to continue to apply in the event of armed conflict. Furthermore, practical difficulties arising from draft article 15 on the prohibition of benefit to an aggressor State also remained. For example, in situations of extended conflicts, identifying the aggressor was quite complex, he said, adding that the very definition of aggression was a controversial matter and subject to debate. Thus, the identification of a State as an aggressor should not be the sole factor considered when it came to limiting its ability to withdraw from a treaty.
ABBAS BAGHERPOUR ARDEKANI (Iran) said that an attempt to define “armed conflict” would go beyond the main purpose of the draft articles, which was to examine the legal effects of armed conflict on treaties. In draft article 2.b, the definition of armed conflict was, to a large extent, modelled on that used by the Appeals Chamber of the International Tribunal for the Former Yugoslavia in the Tadic decision. That definition was too broad and risked becoming a matter of legal controversy. Therefore, it was not advisable to include a definition of armed conflict and, if any, the universally accepted definition stipulated in the common article 2 of the 1949 Geneva Conventions should be deployed.
MARINA SANDE (Uruguay) said the existence of armed conflict did not mean a treaty should be terminated or suspended. Stressing that the content of the treaty should be considered, she added that commitments undertaken at an international level needed to be implemented faithfully. Cessation of such commitments should happen only on rare occasions, as when a treaty required obligations that could not be discharged during armed conflict. Furthermore, States should not ignore the rules of customary international law on the pretext of armed conflict, she said, recalling the Vienna Convention. In addition, there were also treaties such as those relating to human rights that should not be affected by armed conflict. Calling for further study of the topic, she said while the Commission had listed in its draft articles treaties that might not be open for suspension during armed conflict, it had not provided an exhaustive list.
ANNELI LEEGA PIISKOP (Estonia), observing that the Commission’s work addressed questions of practical relevance, said that armed conflicts were ongoing and only a few treaties contained provisions on their operations in times of war. Therefore, any guidance was useful, not just to States in conflict, but also to their treaty partners. As well, it was justified to include international and non‑international armed conflict; both had an effect on treaties. She pointed out that the Convention for the Protection of Human Rights and Fundamental Freedoms took into account the effect of non‑international armed conflicts. She also expressed agreement with the Special Rapporteur’s note that occupation was a form of armed conflict and was covered by the draft articles, adding that articles 14 and 15 recalled the right of States to self‑defence, in accordance with the United Nations Charter.
INTAN DIYANA AHAMAD (Malaysia) said she agreed with other Member States that the draft articles on the effects of armed conflict on treaties provided practical guidance as non‑legally binding guidelines, but that it was premature to consider codifying them into a convention. The definition of armed conflict remained unclear, as did some areas in the annex to article 7 concerning treaties that could possibly remain in effect during armed conflict. Categories c and e in that annex were particularly unclear. More deliberation was needed, therefore, before a discussion on codifying the draft articles into a convention could be conducted.
HASSAN SAEED H. ALJOMAE (Saudi Arabia), commending the Commission for clarifying an important topic, underscored the importance of the Vienna Convention. In looking at the issue of the effects of armed conflicts on treaties, he said: “We must not neglect the rules of international humanitarian law.” While it was necessary to determine the type of treaties that must not be suspended during armed conflict, the broad scope made it difficult to classify them. Thus, it was difficult for Member States to reach agreement on what should and should not be included on the list. The text of the articles should remain guidelines for States, he stressed.
ZINOVIA STAVRIDI (Greece) said that the draft articles and commentary contained useful and practical guidance for States and international tribunals in terms of their dealings with the effects of armed conflicts on treaties. Her country had consistently supported the principle of continuity of the operation of treaties during armed conflict, she said, adding her support for the general approach adopted by the International Law Commission in its recommendations to the General Assembly concerning the draft articles. She also said she supported the recommendation that the Assembly adopt a resolution taking note of the draft articles and annexing them, thus encouraging States to make use of them in context‑specific situations. At a later stage, the Assembly should consider the elaboration of a convention on the basis of the draft articles, which would constitute a complementary instrument with normative effects equal to those of the Vienna Convention.
CRISTINA MARIA CERQUEIRA PUCARINHO (Portugal) said that her country’s approach followed closely the initial boundaries established by the International Law Commission. It was important to find out the measure in which mutual trust among parties regarding the fulfilment of obligations set out in a treaty could be compromised in the event of an armed conflict. The key and only ratio of the subject lay with striking an adequate balance between the trust of the parties, as a prerequisite for compliance with treaties, and the need for legal certainty. In general, the draft articles were suitable for an international convention. However, there were issues that raised doubts and concerns, notably the inclusion of internal armed conflicts within the scope of application of the draft articles and the position of third States. She said there were also aspects where practice, jurisprudence and doctrine did not offer a clear and unique answer.