Statement by Ms. Brechje Schwachofer, First Secretary of the Permanent Mission of the Kingdom of the Netherlands

Mr. Chairman,

 First the Netherlands would like to express its appreciation to the Special Rapporteur, Mr. Ian Brownlie, for his hard work. It is impressive that he was able to submit an entire set of draft Articles in his first report. Nevertheless, the opinion expressed during the Commission’s session that it is too premature to submit the draft Articles to a Drafting Committee or to establish a working group is accurate.

As for specific points in relation to the draft Articles, the Netherlands would like to focus on a few issues.

First, the Netherlands supports the general proposition that the continuity of treaty obligations in armed conflict in cases where there is no real need for suspension or termination should be encouraged. In particular, a pragmatic approach in formulating the draft Articles should be utilized in determining whether suspension or termination is actually necessary.

 Second, with regard to the question whether the draft Articles should cover only treaties in force at the time of the armed conflict or also those treaties which have not yet entered into force, it is worth noting that because of the possibility to provisionally apply treaties (see art. 25 of the Vienna Convention on the Law of Treaties) it would seem advisable to have the draft Articles also apply to treaties that are being provisionally applied.

Third, the Netherlands has the following comments with regard to the discussion in the Commission about the scope of the draft Articles, and specifically whether treaties that become operative in time of armed conflict should be included (draft Article 1 and draft Article 7, paragraph 1). While it is true that the current title of paragraph 1 is not accurate in that these treaties do not continue in operation during an armed conflict but in large part become operative in an armed conflict, it is nevertheless useful to include these treaties under the scope of the draft Articles. International humanitarian law treaties cover a wide variety of topics and it is useful to emphasise that these provisions should be enforced unless it is genuinely not possible to do so.

 Mr. Chairman,

The next few points relate to the definition of armed conflict in draft Article 2, paragraph b. During the Commission’s meeting the proposal was put forward to exclude a definition of armed conflict. While this is a very interesting suggestion which deserves further consideration, one should keep in mind that states are sometimes reluctant to admit that they are in an armed conflict. The existence of an armed conflict is determined by a legal test applied to the factual situation and is not dependant on the recognition of the armed conflict by the participants. In this regard it would seem useful to include a definition of armed conflict in the draft Articles.

To the extent that the draft Articles include a definition of armed conflict, this definition should include non-international armed conflicts, as these can also affect a state’s ability to fulfil its treaty obligations. Additionally, as noted in the Commission’s discussion, the draft Articles should be drafted in such a way as to foster their applicability and the vast majority of current armed conflicts are non-international in character.

As for a suitable definition, reference could be had to the ICTY’s definition in the Tadić case, as mentioned during the Commission’s meeting. One advantage of such a definition is that it includes international as well as non-international armed conflicts: "An armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between authorities and organized groups or between such groups within a State." (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, 2 October 1995, para. 70).

 In this regard one should note that the current trend has been away from treating international and non-international armed conflicts as fundamentally different. Many of the norms originally developed in relation to international armed conflicts have been found to be applicable to non-international armed conflicts. This argues against making a distinction in the draft Articles between the two types of conflicts.

The final point to be raised in relation to the definition of armed conflict is that military occupations should indeed be included, even if not accompanied by protracted armed violence or armed operations. The fact that a state is under occupation can affect its ability to fulfil its treaty obligations. This is in keeping with the relevant provisions of international humanitarian law, notably Article 2 of the four Geneva Conventions of 1949, which is lex specialis in this field. If such an occupation is sufficient to trigger the applicability of the specific norms related to armed conflicts, then it would also seem sufficient to trigger the applicability of the draft Articles on the effect of armed conflict on treaties. In this regard the decision of the Special Rapporteur to include a reference in draft Article 5, paragraph 1, of international humanitarian law as lex specialis is worthy of support.

Mr. Chairman, With regard to draft Article 3, ipso facto termination or suspension, the Netherlands would support the suggestion made during the Commission’s meeting that the position of third parties be clarified in the text by noting that the ordinary rules in the Vienna Convention on the Law of Treaties related to fundamental change of circumstance and supervening impossibility of performance would apply.

The Netherlands has already expressed its opinion on draft Article 7, paragraph 2, in terms of the inclusion of treaties expressly applicable in case of an armed conflict. In this regard it is worth adding that the suggestion made during the Commission’s meeting to include the list in the commentary deserves further exploration.

Finally, the Netherlands awaits with interest the Special Rapporteur’s proposals for redrafting draft Article 10 concerning the legality of the conduct of the parties.

Thank you, Mr. Chairman.