Item 82: Report of the International Law Commission

Chapter VII: Effects of Armed Conflicts on Treaties

Mr Chairman,

The Netherlands has been following the reports about the effect of armed conflicts on treaties with great interest. We recognize the theoretical importance of this issue, albeit that we remain unconvinced of the need to address it at this time. It would appear that recent armed conflicts have not led to great problems in terms of the law of treaties, and have not caused great upheaval for States or international organisations acting as depositaries either.

However, I do wish to make some comments on the recent reports of the Special Rapporteur. In general, the work on the subject seems to be confined to the narrow issue of suspension and termination of treaties. In reality, we consider that armed conflict may lead to many more and more varied questions with respect to the law of treaties, relating to matters such as the application of the clausula rebus sic stantibus rule or the consequences of non performance to name but a few. A narrow approach to the subject at hand implies that many questions as to the application of the Vienna Convention in situations of armed conflict will remain pending.

Mr. Chairman,

The Netherlands is happy to see the withdrawal of draft article 6, and welcomes the inclusion of the new draft article 6 bis reaffirming the lex specialis character of the law of armed conflict in relation to human rights. It is an important and helpful specification, echoing the Advisory Opinions of the International Court of Justice in the Nuclear Weapons case and the Wall case, that merits to be recalled in a body of articles on the present topic.

In a similar vein, we are of the opinion that it is appropriate to include in the draft articles a reference to international customary law as norms which maintain their legal force separate from that of the treaties possibly affected by armed conflict. The Martens Clause prevailing for over a 100 years stipulates that in absence of specific treaty rules, populations and belligerents remain under the protection of “the principles of international law…the laws of humanity and the requirements of the public conscience.” Perhaps a literal reference to the Martens Clause in particular would be suitable in the present context. In either form it would contribute to embedding the draft articles in the general system of international law. We would note that the Vienna Conventions on the Law of Treaties contain numerous references to customary international law for that same purpose.

Mr. Chairman,

We fully agree with the consideration that suspension or termination does not take place ipso facto and by operation of law. However, we feel that the reference to articles 42 to 45 of the Vienna Convention on the Law of Treaties in draft article 8 requires further clarification in the Commentary. These articles on the invalidity, termination and suspension of treaties provide a broad set of rules and the reference in draft Article 8 seems quite sweeping. An elaboration on their applicability would be welcome, in particular as to the relevance of article 44 of the Vienna Convention (1969) on the severability of treaty provisions, and the implications of that provision in a situation of armed conflict.

And following from that, Mr Chairman, I would like to point out that the formulation of draft Article 8 may require further attention. In particular the text now uses the concept of “mode” of suspension and termination, as well as referring to “forms” of suspension and termination as used in the Vienna Convention. If the same notion is referred to – as we understand it to be the case – the same terminology should preferably be used. Mr Chairman,

We have commented extensively on the definition of armed conflict in previous years. As stated before, it is our preference that non-international conflicts be included in the definition of armed conflict, as this reflects the contemporary reality. We appreciate the approach taken by the Special Rapporteur in this regard. We wish to emphasize, however, that a broadened definition inevitably makes higher demands on the draft articles, notably in terms of differentiation and detail. We have stated last year that, in relation to internal conflicts, the position of third parties deserves consideration. A set of rules that covers both international and internal conflicts in a meaningful way, with due support from the international community of states, needs to strike a fine balance between the interests of the different parties involved – whether or not they may be parties to the conflict.

There is another point I wish to raise is the definition of armed conflict as such. In his first report, the Special Rapporteur has cautioned against the time it would cost to bring the definition of armed conflict to a “high level of sophistication”. While we agree that in a drafting process such as the present one should proceed in an economic and realistic manner, it is our view that the definition of armed conflict will have to be adjusted and to some extent refined, in order to cover the instances of internal conflict to which the articles are addressed.

Going through the ILC report and the discussion on the inclusion of internal armed conflict in the definition of armed conflict in the Working Group, we were struck by what seems to be a high threshold for the possibility to rely on an internal armed conflict as a ground for suspension or termination. The way the text is formulated would suggest that, while hostilities necessarily need to have reached a certain level of intensity before an internal armed conflict exists in legal terms , the ILC Working Group requires yet a further level of intensity before the conflict could potentially be relied upon with respect to the suspension or termination of a treaty . We are uncertain whether distinguishing between different internal armed conflicts would be a good idea, and if so how, what that would imply. At any rate, we would appreciate an explanation of this line of thinking.

Thank you, Mr Chairman.