Statement by Legal Adviser Wasum-Rainer in the 6th committee on effects of armed conflicts on treaties

Nov 2, 2010

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Madam Chair,

Allow me to express Germany’s gratitude for the significant achievements of the Commission on this topic. Let me on this occasion pay special tribute to Sir Ian Brownlie. He was at the forefront of the work leading to the adoption in a first reading of the draft articles and he provided an excellent basis for further work. Lucius Caflisch, the new Special Rapporteur, has skilfully taken up this work and adapted the articles in response to the reactions of States and the members of the Commission.

From the outset I think it is particularly important to keep in mind that the overall aim of written rules on the effect of armed conflicts on treaties should be to narrow the options of States engaged in armed conflict to terminate or suspend treaty relationships. The current set of draft articles successfully meets this objective.

Let me now comment on several issues which are of particular interest to us.

As regards the use of terms, I would like to concentrate on both the necessity for a definition of armed conflict and the question as to whether the effects of both international and non-international armed conflicts on treaties should be regulated by the draft articles.

As regards the definition of armed conflict, I understand that the scope of application of the present draft articles presupposes the existence of an armed conflict under international humanitarian law. Therefore I would suggest that there is no need for the draft articles themselves to provide for a separate definition of an armed conflict, which may be suitable today but outdated in the future. We should leave it to the rules of international humanitarian law to decide on a case-by-case basis whether there is an armed conflict and take this as a basis to trigger the applicability of the draft articles.

This leads me to the question as to whether non-international armed conflicts should be included in the draft articles. This is a difficult issue, considering the fact that the line between international and non-international armed conflicts can be blurred and the effects on treaties could be the same. Today’s conflicts are mostly of a non-international character and the relative uncertainty with which one can prove that there is an internal armed conflict in the State in question has to be borne in mind. There is not just one form of non-international armed conflict. An internal civil war or insurrection will not, in general, affect the application of treaties between States. On the other hand, non-international armed conflicts may very well affect treaty relations between States. It is hard to draw up general rules for this multitude of possible conflict scenarios. Maybe at this stage is is better to leave this question open to further discussion.

Turning to the so-called indicia of susceptibility to termination, withdrawal or suspension of treaties in draft article 4, Germany supported the non-intention-based approach in the previous draft articles and would strongly suggest a return to this wording. In this context I would like to refer to Art. 31 of the Vienna Convention on the Law of Treaties, which does not mention the intention of the Parties but rather objective criteria. At the time this was a conscious decision of the drafters of the Vienna Convention

Furthermore, the list of indicia in draft art. 4(b) is simply enumerative, without stating how these different factors should be weighed. In consequence, this draft article provides legal certainty only in a limited way and offers few guidelines that might lead to predictable results in case-to-case decisions.

I do, however, agree with the compromise solution proposed by the Special Rapporteur to annex an “indicative list” of different categories of treaties to draft article 5. This seems to be the only feasible solution. Hiding such a list in the commentaries would complicate the use of draft articles in practice, and incorporating the list into the treaty itself would render it less flexible to amendment. Draft article 5 in its present shape lays down the fundamental principle and allows for a certain amount of flexibility in determining which kind of treaty should continue in operation in case of an armed conflict. It has to be ensured, though, that this flexibility is preserved with regard to the present rather detailed list.

Passing on to draft article 8, I understand that the process of notification can only be triggered when the review of the indicia, as detailed in draft art. 4, leads to the conclusion that a treaty is indeed susceptible to termination or withdrawal.

I welcome the reformulation of and amendment to Art. 8. Fixing a time limit for an objection – e.g. six months – provides for more legal certainty. Furthermore, the new paragraphs 4 and 5 introduce a mechanism as to how to proceed with an objection. I am wondering, however, whether the means of peaceful settlement in case of an objection will make sense in the case of an armed conflict involving at least one or both parties to the treaty.

As regards draft article 11, which, at first sight, appears to stand for continuity and stability, I share the concern that it could be counter-productive. In anticipation of the irreversible effect that any express or implicit act directed towards a treaty that remains in force despite the outbreak of an armed conflict, States might choose to terminate, withdraw from or suspend treaties at the earliest possible stage in order to avoid problems caused by an unpredictable future. Likewise, given the typical difficulty in anticipating how an armed conflict will develop in the future, such a strict rule on the loss of the right to suspend or terminate a treaty at a later stage may not be the best solution.

With regard to draft art. 13, I understand that a State exercising its right of self-defence does not automatically have the right to terminate or suspend a treaty as a whole when only the the termination or suspension of certain divisible obligations of the treaty is necessary for the exercise of this right. We should ensure that we limit the abusive invocation of the right of self-defence.

With a view to draft art. 15 (Prohibition of benefit to an aggressor State), I agree with the mentioning of GA Resolution 3314 in this context. Although this resolution may not cover all forms of aggression, it seems to provide for the most accepted definition of aggression. This has been confirmed recently at the Kampala conference, which has affirmed the pertinence of this resolution.

Let me conclude by once again commending the Commission on its excellent work. We look forward to continuing the exchange on this and other ILC topics.

Thank you!

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