Armed Conflict, Effect on Treaties

Abstract

Today the majority view seems to approve the general applicability of peacetime law during war in regard to certain types of peacetime treaties (see paras 5-11). The topic is still disputed as neither the UN Charter nor other multilateral treaties include rules in regard to the effect of armed conflict on treaties. The → Vienna Convention on the Law of Treaties (1969) (‘VCLT’) only says that the Convention does not cover these questions (Art. 73: ‘The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty […] from the outbreak of hostilities between States’). This was due to the fact that the conduct of hostilities was seen wholly outside the scope of the general law of treaties to be codified in the articles of the VCLT by the drafters (Wetzel and Rauschning 480). Besides of this there is no decisive judgment or advisory opinion of the → International Court of Justice (ICJ) to the general question of the effects of armed conflicts on peacetime treaties (see United States Diplomatic and Consular Staff in Tehran [United States of America v Iran], dealing only with the Vienna Conventions on Diplomatic and Consular Relations, see below para. 6; Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion], dealing with the question of the protection of the environment during armed conflict without giving a clear answer in regard to the question of the applicability of peacetime environmental treaties during armed conflicts, see below para. 10).

After World War II, expert bodies dealt with the problem of the effect of armed conflict on treaties. The first important resolution was drafted by the → Institut de Droit international (‘IDI’) in 1985 (see the resolution ‘The Effects of Armed Conflict on Treaties’). The → International Law Commission (ILC) finally included this topic in its current programme of work in 2004 (UNGA Res 59/41 of 16 December 2004), a first report was drafted by special rapporteur Ian Brownlie in 2005 and in 2008 the ILC adopted, on first reading, a set of 18 draft articles on the effects of armed conflicts on treaties (‘ILC Draft Articles’). In 2010 Lucius Caflisch, the new special rapporteur, proposed a number of changes to the initial set of draft articles after these articles were commented by States. The most crucial topics of discussion have been inter alia the scope of the articles; effects of non-international armed conflicts; the indicia for identifying treaties which continue in operation; the types of treaties whose subject matter implies their survival in whole or in part; and the effects of international or civil war conditions involving a single State Party or several States Parties to treaties.