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The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change

Published online by Cambridge University Press:  23 January 2013

Benny TAN Zhi Peng
Benny TAN Zhi Peng*
Affiliation:
Attorney-General's Chambers, Singaporebennytan.zp@gmail.com
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Abstract

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

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Articles
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Asian Journal of International Law , Volume 3 , Issue 1 , January 2013, pp. 51 - 76
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Copyright © Asian Journal of International Law 2013

Any attempt to develop a coherent and principled approach to [the topic of Effects of Armed Conflicts on Treaties] must … rely upon, to the greatest extent possible, the general principles on the law of treaties expounded in the Vienna Convention.Footnote 1

Rene Provost

The issue of the effect of armed conflicts on treaties has been labelled “obscure”,Footnote 2 and an “unsettled problem of law”.Footnote 3 The focal type of “armed conflict” to be examined in this paper is this—two states, e.g. States A and B, are parties to a treaty. An armed conflictFootnote 4 breaks out between these two states. In the absence of any express provision in the treaty providing for such a contingency,Footnote 5 how are the effects of the armed conflict on the treaty to be determined?

The analysis in this paper also generally applies to the paradigm where States A and B are parties to a treaty, and an armed conflict breaks out between States A and C, although it should be pointed out that the literature in this area of international law mainly discusses the former type of “armed conflict”. There is a third possible scenario, and that is where States A and B are parties to a treaty, and State A experiences an internal armed conflict. However, this situation lies beyond the scope of this paper, in the main because it does not involve an outbreak of hostilities between states, and, as will become clear below, therefore does not give rise to the impetus for writing this paper.Footnote 6

For a start, the issue of the effects of armed conflicts on treaties is known to be but “one aspect of the general problem of change in the international community”.Footnote 7 Two doctrines that regulate the effects of changes on treaties have been codified in the 1969 Vienna Convention on the Law of TreatiesFootnote 8 (VCLT)—supervening impossibility of performance (SIP), and fundamental change of circumstances (FCC) (also sometimes known as rebus sic stantibus). Broadly speaking, states may escape treaty obligations if a change results in the impossibility of executing these obligations, or if the change qualifies as being “fundamental”. However, the framers of the VCLT felt that the topic of effects of armed conflicts between states on treaties (EACT) could not be conveniently dealt with at the time of drafting, and hence they deferred a proper examination of the issue to a future occasion. Consequently, the two doctrines in the VCLT only purport to govern changes that do not relate to or arise from armed conflicts between states.Footnote 9

The future occasion arose when the International Law CommissionFootnote 10 (ILC) included the topic of EACT in its current programme of work nine years ago in 2004. Work on this topic concluded recently in 2011 when the ILC adopted, on second reading, a set of eighteen draft articles, an annex (EACT Draft Articles), and accompanying commentaries.Footnote 11

One of the EACT Draft Articles titled “Other cases of termination, withdrawal or suspension” makes references to SIP and FCC,Footnote 12 and apparently intends for both doctrines to be applicable in determining the effects of armed conflicts on treaties. This particular article was included by the Special Rapporteur without much discussion. It also attracted minimal attention from the ILC members and the various states during their respective debates.Footnote 13 Instead, their focus had been on other controversies.Footnote 14 As such, the substance of the article remained unchanged throughout the years. This overall lukewarm attention is rather troubling given that the two doctrines were codified in the VCLT without having taken situations of armed conflicts between states into consideration. Can these two doctrines therefore apply appropriately in such scenarios?

This paper attempts to add to the scholarship in this area of international law by first undertaking the more thorough examination envisaged by the drafters of the VCLT. In Part II, I argue that the applicability of SIP and FCC in determining the effects of armed conflicts on treaties is in fact theoretically justifiable. Nevertheless, I will go on to highlight in Part III that the mere cross-referencing of the EACT Draft Articles to the two VCLT doctrines, coupled with the fact that the phraseology of the VCLT Articles codifying both doctrines was not formulated with EACT in mind, poses several difficulties that should not be ignored. Finally, in view of the fact that the United Nations General Assembly has since taken note of the draft articles and will tentatively consider in 2014 the possibility of elaborating a convention on the basis of the articles,Footnote 15 I propose in Part IV a replacement draft article that seeks to address the various difficulties.

Before engaging in a theoretical analysis proper, a conspectus on the history of EACT, including previous and current efforts in codifying its rules, may aid readers in better appreciating the ensuing discussion.

I. Background on the Effect of Armed Conflicts on Treaties

A. Position Under Customary International Law

The rules governing EACT under customary international law are rife with uncertainties.Footnote 16 As commentators have forthrightly expressed, “[t]o this day, no clear comprehensive customary regime exists on the effect of hostilities on treaties”.Footnote 17 However, studies based on state practice at least agree that at the most general level, the central position has undergone two waves of transformation.Footnote 18

The traditional (pre-twentieth century) view is that all treaties are automatically abrogated by the outbreak of war between contracting state parties.Footnote 19 But, beginning from the early twentieth century, the trend moved towards the other pole. The general rule became that the outbreak of hostilities does not terminate or suspend treaties, though this was subject to certain exceptions.Footnote 20

The varied state of applicable exceptions subsequently led to the modern view that an armed conflict does not ipso facto affect the operation of treaties in force between parties to a conflict. Instead, the emerging preference is to resolve the issue of the effects of an outbreak of hostilities according to the type of treaty involved.Footnote 21 In other words, through a “categorization” approach.Footnote 22

B. Previous Efforts to Codify Rules Governing EACT

1. 1969 Vienna Convention on the Law of Treaties

An opportunity to consider codifying the rules governing EACT first arose in the 1960s when the ILC worked on creating a set of draft articles to govern the law of treaties, which later formed the basis of the VCLT.Footnote 23 However, in 1963 the ILC decided not to include any provision that would concern the topic of EACT. The reason it gave for its decision was practical, thus

the study of this topic [of EACT] would inevitably involve a consideration of the effect of the provisions of the [UN] Charter concerning the threat or use of force upon the legality of the recourse to the particular hostilities in question; and it did not feel that this question could conveniently be dealt with in the context of its present work upon the law of treaties.Footnote 24

In 1966, the Commission provided an additional, more policy-driven reason for this exclusion. It thought that

in the international law of today the outbreak of hostilities between States must be considered as an entirely abnormal condition, and that the rules governing its legal consequences should not be regarded as forming part of the general rules of international law applicable in the normal relations between States.Footnote 25

These reasons ultimately led to the insertion of a reservation—Article 73 of the VCLT—stating that “the provisions of the … [VCLT] shall not prejudge any question that may arise in regard to a treaty … from the outbreak of hostilities between States”.Footnote 26 The substantive effect of this reservation is that the issue of EACT lies outside the scope of the VCLT,Footnote 27 and specifically for present purposes, the articles codifying FCC and SIP, two primary doctrines that govern the effects of certain changes on treaties.

2. 1985 Resolution by Institut de Droit International

Approximately fifteen years following the adoption of the VCLT, the Institut de Droit International Footnote 28 (IDI) undertook to examine the issue of EACT as an attempt to address the lacuna left by the ILC. The study led to the adoption of a resolution consisting of twelve articles.Footnote 29 However, it became clear that only some of the rules at the most general level could be formulated. For instance, Article 2 of the resolution provides that “the outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties in force between the parties to the armed conflict”.Footnote 30 Beyond that, more specific questions such as when a treaty is suspended or terminated by the outbreak of hostilities remain open. The overly broad nature of such a rule has been criticized as unsatisfactory.Footnote 31

In addition, the IDI inserted in the preamble that the resolution “shall not prejudge the application of the provisions of the [VCLT]”.Footnote 32 This was presumably because the IDI had in mind the possibility of suspension or termination of treaties when a conflict constituted FCC or leads to SIP as codified under the VCLT.Footnote 33 This raises eyebrows, given that, as explained earlier, the VCLT was not intended to govern situations of outbreak of hostilities.Footnote 34 This apparent disjunct arises again in the EACT Draft Articles currently adopted by the ILC, the difficulties of which will be further examined in Part III.

C. ILC's Present Efforts to Codify Rules Governing EACT

1. History and general approachFootnote 35

Almost twenty years later in 2004, the ILC decided to tackle this difficult topic head on when it identified the topic for inclusion in its long-term programme of work.Footnote 36 In 2005, the Secretariat of the ILC submitted a memorandum detailing progress on and analysis of the topic.Footnote 37 The then Special Rapporteur Ian Brownlie also submitted his first report.Footnote 38 This report was accompanied by an entire set of fourteen draft articles, a feat not often observed in other ILC work; following this, Brownlie submitted three other reportsFootnote 39 before his resignation in 2009. Lucius Caflisch was appointed as the new Rapporteur, and subsequently submitted his first report in 2010.Footnote 40 In its most recent meeting in 2011, the ILC concluded work on this topic when it adopted, on second reading, the EACT Draft Articles.Footnote 41

For prefatory purposes, it suffices to highlight three observations arising from the EACT Draft Articles. First, the general thrust of the same resembles the twelve articles adopted by the IDI in 1985. The central article of the EACT Draft Articles, like Article 2 of the IDI resolution, provides that the outbreak of an armed conflict does not ipso facto affect the operation of treaties.Footnote 42 This affirms the modern view on the topic—the presumption of continuity of treaties.Footnote 43 Second, the EACT Draft Articles further identify several non-exhaustive factors to take into account in determining the effects of armed conflicts on treaties.Footnote 44 These include the nature of the treaty, and the characteristics of the armed conflict, such as its scale, intensity, and duration.Footnote 45 In addition, the ILC attempted to list the categories of treaties which, based on their subject matter, involve the implication of their continuity of operation in the case of an armed conflict.Footnote 46

2. Applicability of FCC and SIP

What about the specific question of FCC and SIP's place within the context of EACT? The starting point for analysis must be Article 18 of the EACT Draft Articles. It is the only provision that mentions these two doctrines, and provides that “the present draft articles are without prejudice to the termination, withdrawal or suspension of treaties as a consequence of, inter alia … (b) supervening impossibility of performance; or (c) fundamental change of circumstances”.Footnote 47

In the first report introduced by the First Rapporteur, the accompanying commentary merely notes that Article 18 “states the obvious”.Footnote 48 It was later elaborated that this article “preserves the possibility of termination, withdrawal or suspension of treaties arising out of the application of other rules of international law”.Footnote 49

Article 18, as a “without prejudice” provision, may give rise to two diametrically opposing interpretations. This may not be particularly surprising, considering that ordinarily “without prejudice” means “do not affect or interfere”.Footnote 50 But what is the exact scope of this non-interference? The short answer is that we cannot be entirely certain.

On one interpretation, one may argue that Article 18 does not intend for FCC or SIP to operate as objective standards in determining the effects that armed conflicts may have on treaties. Instead, the article's reference to these two doctrines is such that in the midst of an armed conflict, should a change that is unrelated to the conflict occur, for instance an earthquake, states are still free to invoke either doctrines vis-à-vis that unrelated change, in order to suspend or terminate treaty obligations. It is in this sense that FCC and SIP, as grounds for suspending or terminating treaties, are “preserved”.Footnote 51

This “non-relevance” interpretation of Article 18 is not implausible in the light of three observations. First, the ILC Secretariat has in its memorandum concluded that “a strong argument can be made that [EACT] is distinguishable on the basis that it occurs automatically, whereas doctrines such as [FCC and SIP] must be invoked”.Footnote 52 Despite the Secretariat's caveat that whether the effect of armed conflicts is automatic or invokable is “one of the most important of all questions that a study of [this topic] presents”,Footnote 53 and that it remains an “open question”,Footnote 54 neither the First nor Second Rapporteur made any apparent effort to follow up on this controversy in their respective reports.Footnote 55 Combined with the fact that Article 18 was intended to “state the obvious”, one could speculate that the ILC agreed with the Secretariat that the topic of EACT is a separate legal problem from FCC and SIP, and consequently that neither doctrine is intended to be applicable as an objective standard in determining the effects of armed conflicts.

Second, the placing of Article 18 as the last article, and in the “Miscellaneous” section, may also suggest that FCC and SIP are not intended to apply as objective standards. If it were otherwise, one would question why these two doctrines were not accorded more prominence, perhaps together with the main governing rules in Part Two of the EACT Draft Articles.

Finally, and perhaps most importantly, it bears recalling that by virtue of Article 73 of the VCLT, the provisions of the VCLT (including those codifying FCC and SIP) were not intended to govern situations of armed conflicts.Footnote 56 They were not drafted with the outbreak of hostilities in mind.Footnote 57 It may seem rather questionable to now conclude that these very provisions are to be applicable as objective standards in determining when treaties are affected by an outbreak of hostilities.

Nonetheless, it is submitted that, on the other hand, Article 18 may also be interpreted as intending for the applicability of FCC and SIP vis-à-vis an armed conflict itself. This is arguably the more likely interpretation for several reasons. In response to a state's request to give more fundamental consideration to FCC and SIP as basic criteria to determine the effects of armed conflicts, the Second Rapporteur countered that Article 18 already refers to FCC and SIP.Footnote 58 This is crystal-clear evidence that, to the Second Rapporteur at least, the two doctrines are applicable in determining the effects of armed conflicts.

Furthermore, although the First Rapporteur himself never made explicit his intention for FCC and SIP to be applicable, he opined in his international law textbook that war could lead to an impossibility of performance or fundamental change of circumstances.Footnote 59 One could argue that he maintained this position even with respect to the draft articles he proposed.

Finally, regard may be had to the 1985 IDI resolution. From the preparatory work of the resolution, it is arguable that the IDI had envisaged the termination or suspension of treaties where armed conflicts lead to SIP or FCC.Footnote 60 Since the EACT Draft Articles are substantially based on that resolution, it further buttresses the argument that the more likely interpretation of Article 18 is the applicability of both doctrines.

One preliminary suggestion, therefore, is that for the sake of clarity it should be made more apparent in the EACT Draft Articles that FCC and SIP are indeed intended to be relevant as objective standards to determine the effects of armed conflicts. In any case, given that available evidence does allude more strongly to this position, the following analysis will proceed on this basis.

II. Justifying the Applicability of FCC and SIP in Determining the Effects of Armed Conflicts

According to the ILC, Article 18, the draft article which provides that FCC and SIP are applicable as objective touchstones to determine the effects of armed conflicts on treaties, apparently “states the obvious”. This is quite disconcerting considering both doctrines were codified under the VCLT in the 1960s without having taken the paradigm of armed conflicts into account. To reiterate, the ILC had at that time intended for a more particular and detailed analysis to be undertaken in the future.Footnote 61 In the absence of such closer examination, the position currently adopted by the ILC is arguably presumptuous. Is such a position even defensible? Specifically, do the rationales justifying adoption of FCC and SIP under the VCLT likewise apply in the context of EACT? Although the ILC Secretariat has in its study undertaken some analysis,Footnote 62 the study is, with respect, somewhat limited in perspective. And, as I will go on to argue, the conclusions derived in the study may no longer reflect the most recent consensus.

This section engages in a more comprehensive analysis by demonstrating that the position adopted by the ILC has not only received substantial support from the international community, but is also justifiable from a theoretical standpoint.

A. Applicability is Supported by Jurists, Governments, and Courts

The proposition that FCC and SIP should be applicable as objective standards has found significant favour with some scholars, states, and national courts. Conforti and Labella, for instance, explicitly express support for this position when they assert that “the effects of war on treaties are not of independent significance but instead constitute an application of the principle of rebus sic stantibus”.Footnote 63 In a like vein, Sonnenfeld concluded that the majority view is that

in case of termination [of treaties] the cause is not so much “the fact that a war has broken out, but rather … the impossibility to implement the treaty, owing to the change in the conditions which presided over its conclusion …”Footnote 64

The Italian Court of Cassation likewise assumed this theory when it held that an armed conflict “cannot bring about the extinction of treaties, but may contribute to a ‘supervening impossibility’ and perhaps to a change in the circumstances (rebus sic stantibus)”.Footnote 65

The delegation from the Republic of Korea noted during one of its interventions that “armed conflicts made it difficult or impossible for parties to fulfil certain treaty obligations”.Footnote 66 The Belarus delegation similarly suggested that “[treaties] should continue in operation except when that became impossible owing to the emergence of insuperable objective circumstances in a conflict situation”.Footnote 67

Others also appear to accept such a theory, although in less certain terms. McIntyre, in his comprehensive treatise examining state practice of the United States in relation to EACT, explained that “it might be possible to consider the legal affect of war on treaties as a special case of rebus sic stantibus”.Footnote 68

In terms of state practice, the ILC Secretariat has also highlighted in its memorandum at least three occasions where rebus sic stantibus was applied by states to justify either the suspension or termination of treaties.Footnote 69 One prominent case is when United States President Franklin D. Rossevelt invoked the doctrine to suspend American obligations under the 1930 International Load Line Convention following the outbreak of World War II.Footnote 70

Even though the applicability of FCC and SIP has evidently received much support outside the ILC's work, a closer theoretical examination as to whether it is indeed justified is still merited. This is first because some advocates of the applicability of the two doctrines have not been sufficiently clear as to what the relationship between EACT and the other two doctrines is. This may be gleaned from their usage of vague terms such as “special case”Footnote 71 and “special application”,Footnote 72 as well as the relatively minimal effort to substantiate their positions.

More pertinently, several of the statements supporting this position were made before SIP and FCC were codified under the VCLT. The scope and requirements of these doctrines under the VCLT may be different from their pre-codification position.Footnote 73 Further, several of the views cited refer to rebus sic stantibus, which is often, but not always, treated as the equivalent of FCC.Footnote 74 The possible varying scope of rebus may thus mar the validity of the proponents’ assertions. The solution to these issues is to analyze FCC and SIP as they have been codified under the VCLT.

Finally, arguments that may be raised against the applicability of FCC and SIP also need to be addressed.

B. Examining the Theoretical Applicability of FCC and SIP

1. The underlying rationales for FCC and SIP are compatible with the paradigm of armed conflicts

To ensure conceptual clarity, I will henceforth refer to SIP and FCC as they are codified under Articles 61 and 62 of the VCLT respectively. Article 61 relates to SIP, and the main rule states that:

A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.Footnote 75

Article 62 governs FCC and its main rule stipulates that:

A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

b) the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty.Footnote 76

It has been held by the International Court of Justice (ICJ) that both articles “in many respects” represent the position under customary international law.Footnote 77

  1. (a) No obligation to do the impossible—A matter of common sense: The underlying rationale for allowing one to escape their treaty obligations in the event of SIP is a practical one. It reflects the idea that international law, as with domestic law,Footnote 78 cannot expect a party to execute its treaty obligations where exceptional circumstances render such execution impossible.Footnote 79 As one state emphasized, “the principle that ‘no person is required to do the impossible’ was both a universal rule of international law and a question of common sense”.Footnote 80 It is for this practical reason that FCC as codified under Article 61 of the VCLT was accepted with relatively minimal debate.Footnote 81

    Such a justification applies with equal force in the context of armed conflicts. There is little doubt that armed conflicts can lead to instances of impossibility of carrying out treaty obligations. McIntyre cites labour treaties and treaties governing intergovernmental debt as possible examples in relation to this point.Footnote 82 Similarly then, in such instances a state should be allowed to at least suspend the treaty.Footnote 83

  2. (b) Accepting fundamental change of circumstances—A realistic approach to treaty relationships: FCC likewise can be rationalized in the context of armed conflicts. For a start, the theoretical justification for FCC under Article 62 of the VCLT was itself a source of difficulty. Scholars were divided then as to whether FCC should be based on the idea of an implied term in the treaty, arising from the presumed intention of parties as to how a treaty is to be affected by FCC, or as an objective rule of law, imposed apart from the intention of the parties.Footnote 84 The ILC and the drafters of the VCLT ultimately favoured the latter theory, the main reason being that “the notion of the intention of the parties in a matter of this kind is very much of a fiction”Footnote 85 because “in most cases the parties gave no thought to the possibility of a change of circumstances and, if they had done so, would probably have provided for it in a different manner”.Footnote 86 FCC was thus formulated as an objective rule of law—that as a consequence of a radical change of circumstances, on grounds of “equity and justice”, FCC may be invoked by state parties to escape treaty obligations.Footnote 87 As some commentators opined, the acceptance of FCC as a ground to escape treaty obligations is to “adopt a realistic approach to interstate contractual relationships”.Footnote 88

This preferred justification resonates very strongly with the problem of EACT. Numerous observers, including members of the ILC and state delegations, have pointed out that states nowadays rarely, if ever, contemplate the possibility of engaging in armed conflicts with fellow state parties when signing treaties.Footnote 89 This was precisely why the criterion of “intention of parties” was removed from the list of indicative factors in the EACT Draft Articles.Footnote 90 Instead, what remain in the list are other more objective factors such as the characteristics of the conflict and nature of treaties.Footnote 91 The application of FCC serves to further supplement these indicia as a realistic objective standard in determining the effects of armed conflicts on treaties.Footnote 92

In addition, the rationale underpinning FCC may go towards justifying other standards that have sometimes been taken to also apply in the context of armed conflicts, such as the notions of “incompatibility”Footnote 93 and “inconsistency”.Footnote 94 The oft-cited example of a treaty incompatible with the outbreak of hostilities is a treaty of friendship or alliance.Footnote 95 Historically, such treaties are taken to be at least suspended in times of the outbreak of hostilities because these treaties presuppose the maintenance or existence of peaceful political relationships between state parties.Footnote 96 Nonetheless, the theoretical basis of such a position does not appear to have been identified.

It is submitted that these treaties are taken to presuppose the preservation of peaceful political ties because such preservation “constituted an essential basis of the consent of the parties to be bound by the treaties”.Footnote 97 Hence, in the light of the radical change of circumstances, i.e. loss of peaceful interaction, on the same grounds of “equity and justice”, international law will decree that parties may at least temporarily escape their treaty obligations.

It can be observed from the preceding analysis that the various theoretical underpinnings of FCC and SIP do fit snugly in the context of EACT. It is suggested that these justifications are very likely the root basis for the various commentators’, states’, and courts’ belief that an armed conflict may affect treaties if the conflict causes SIP, or results in FCC in the first place.

2. Distinctions between EACT and FCC/SIP do not warrant non-applicability

The position that state parties should be allowed to suspend or terminate treaties where an outbreak of hostilities results in SIP or FCC is not without dispute. It may be contended that there are nuances between the issue of EACT and FCC/SIP that support detraction from the position of applicability. This section attempts to isolate and debunk these nuances.

  1. (a) Automatic abrogation vs. invokable ground: One difference is that the effect of an armed conflict arises automatically, while grounds such as FCC and SIP must be invoked. This distinction led the ILC Secretariat to conclude that there is a strong argument that EACT is distinguishable from the latter two doctrines,Footnote 98 and therefore a “separate legal problem”.Footnote 99 The Secretariat based this position on commentary by Richard Rank.

    Rank had highlighted a salient element of rebus that “the party wishing to invoke the doctrine to terminate the obligations of the treaty cannot denounce the treaty unilaterally, but must seek the consent of the other party or parties to its release”.Footnote 100 Rank then argued that since state practice has showed that, in certain past instances, the outbreak of hostilities are taken to result in the automatic suspension or termination of treaties, EACT and rebus sic stantibus must be theoretically distinct.Footnote 101

    It is submitted that this distinction may no longer be valid pursuant to certain recent developments. As a matter of state practice, Rank was right to assert that some states indeed historically treated the effects of hostilities to be automatic. However, that position was more consistent with the traditional position that armed conflicts are taken to abrogate all treaties. In line with the modern consensus that armed conflicts no longer ipso facto affect treaties,Footnote 102 there is an emerging inclination that armed conflicts, like other grounds for suspending or terminating treaties (such as FCC and SIP), should be non-automatic.

    In the First Rapporteur's fourth report, focusing solely on the procedure for suspension and termination, the Rapporteur considered the argument that, in view of the practical realities of an armed conflict, it may make sense for its effect on treaties to operate automatically.Footnote 103 However, despite this, he raised the option of adopting a regime of notification, coupled with granting the state receiving notification an opportunity to reject the same within a certain time period.Footnote 104 This in effect militates against unilateral action by states.Footnote 105 The Rapporteur justified this preference on the grounds that non-automatism is consistent with the modern position that armed conflicts do not ipso facto affect the operation of treaties, and more congruent with a regime of stability.Footnote 106

    This proposed regime of notification has since been adopted under Article 9 of the EACT Draft Articles. Comments from states and their respective delegations also show emerging preference towards this position.Footnote 107 In the light of this recent preference for armed conflicts to only be an invokable ground for affecting treaties, Rank's (and consequently the Secretariat's) objection to the theoretical compatibility of EACT and rebus sic stantibus may no longer be persuasive.Footnote 108

  2. (b) Distinction regarding nature of change: The other distinction is that the outbreak of hostilities necessarily involves the loss or undermining of mutual trust and confidence between contracting state parties. The political relationships between such states are affected, and it may be this change that justifies the suspension or termination of treaties. This is in contrast to Articles 61 and 62 of the VCLT, which envisage changes which do not affect ties between state parties, such as submergence of an island, drying up of river, etc.Footnote 109 These changes usually concern only one of the state parties. As the First Rapporteur noted,Footnote 110 albeit obliquely,Footnote 111

the cause of the termination or suspension is … the considerations of security and necessity dictated by the circumstances of the armed conflict. It is in this respect particularly clear that the case of armed conflict is not a paradigm of the other cases of termination or suspension recognized in the [VCLT]. [emphasis added]

The Portugal delegation hints at a similar standpoint when it intervened that

in a situation where two or more contracting States were parties to a conflict, the issue at stake was the level of trust necessary to the implementation of the treaty. Where just one contracting State was a party to the conflict, the issue was not one of good faith but of a serious difficulty or impossibility of performance.Footnote 112

This contrast noted by Portugal seems to suggest its belief that in an armed conflict between two contracting state parties, SIP and FCC are irrelevant.Footnote 113

To be fair to those who support the applicability of FCC and SIP,Footnote 114 the pre-codified position of SIP and FCC does not appear to draw a distinction between changes of circumstances that involved a breakdown of interstate relationships, and changes that do not. The key issue that needs to be addressed is whether this particular distinction justifies the rejection of FCC or SIP as applicable objective standards. It is submitted that it does not.

Vitally, the distinction relates specifically to the nature of change involved. However, FCC and SIP as codified under Articles 61 and 62 of the VCLT may be deconstructed into two constituent elements—one, the type of change governed, and two, the threshold requirements of (i) the importance of original circumstances, and (ii) the consequence of change. (Table 1, available online, expresses this observation graphically; see the end of this paper for access details.)

That both articles do not seek to govern changes involving loss of mutual trust between state parties was due to the conscious decision of the framers of the VCLT to so restrict the VCLT's scope of operation. The current EACT Draft Articles are not bound by such a restriction.

What is additionally crucial to emphasize is that pursuant to the analysis in Part II(B.1) above, the underlying rationales for FCC and SIP under the VCLT are comfortably compatible in the context of the outbreak of hostilities. For instance, SIP may arise due to the breakdown of interstate relationships, just as it may from any other change of circumstances. Therefore, both doctrines, insofar as their threshold requirements are concerned, can also be applicable in such a context.

A useful analogy may be drawn with the situation of severance of diplomatic and consular relations. This situation is substantively analogous to that of EACT—both involve the breakdown of interstate relationships.Footnote 115 The effect of a severance of diplomatic or consular relations on treaties is governed by Article 63 of the VCLT, which provides that

the severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.

The Special Rapporteur of the VCLT intended SIP under Article 61 to be applicable with Article 63 (see Table 1).Footnote 116 The upshot, therefore, is that the distinction as regards the nature of change should likewise not prevent the application of FCC and SIP as objective standards vis-à-vis EACT.

III. Evaluation of The ILC'S Draft Articles on Eact

I have demonstrated in the preceding section that the rationales justifying FCC and SIP as invokable grounds for affecting treaties by non-armed conflict changes are equally applicable in the armed conflict paradigm. Hence, the ILC's decision to allow for the suspension or termination of treaties if an armed conflict causes FCC or SIP is indeed defensible. Nevertheless, it will be shown that the providing of such a position through Article 18 of the EACT Draft Articles is problematic in several respects and careful redrafting should be seriously considered.

A. Source of Law Problem

One preliminary problem is that Article 18 omits to state whether it refers to FCC and SIP as they are under customary international law, or as they have been codified under Articles 61 and 62 of the VCLT. The ICJ has held that both articles are “in most regards” declaratory of the position under customary law.Footnote 117 Strictly speaking, the rules under the two regimes may not be identical. One state has on more than one occasion requested for FCC to be expressly defined under Article 18.Footnote 118

The First Rapporteur did not expressly mention which source of FCC and SIP Article 18 is intended to refer to. However, the Second Rapporteur has mentioned that Article 18 refers to both doctrines as they are codified under Articles 61 and 62 of the VCLT.Footnote 119 Considering the problems I am about to highlight, it is not too far-fetched to suggest that the First Rapporteur may have intentionally left it vague as to which source of rules Article 18 refers to.

B. Schematic Problem

Another problem relates to the schematic relationship between the draft articles on EACT and the provisions of the VCLT. As mentioned, the substantive effect of Article 73 of the VCLT, the “non-prejudge” provision, is that the topic of EACT lies outside the scope of the VCLT.Footnote 120 From a formal perspective, the cross-referencing of Article 18 to provisions in this other international instrument that purports to not govern EACT leads to a legal quagmire.Footnote 121 Admittedly, this is a rather technical problem. A ready solution would be to interpret Article 18 as referring to FCC and SIP as they are formulated in Articles 61 and 62 of the VCLT, as opposed to these two articles themselves.

C. Doctrinal Problems

Even assuming arguendo that Article 18 refers to FCC and SIP as they are formulated under the VCLT, beyond the complaint on formalism there are deeper doctrinal issues at stake. The root cause is that the specific phraseology of both articles was not crafted with situations of outbreak of hostilities in mind.

1. Going beyond physical impossibility

With respect to SIP under Article 61, it is doubtful whether the phrase “disappearance or destruction of an object” sufficiently covers the types of impossibility that may arise from an outbreak of hostilities. Commentators are currently divided over how narrowly “object” under Article 61 should be interpreted.Footnote 122 One school of thought is that it refers only to physical objects.Footnote 123 Several arguments have been raised in support of this restrictive reading of “object”. For one, the commentary accompanying Article 61 of the VCLT only mentions examples of the destruction or disappearance of physical objects.Footnote 124 For another, the phrase “destruction or disappearance” suggests reference only to an object that is “physical” or “real”, and not also to those of juridical character.Footnote 125

The other school of thought is that “object” may be read less restrictively to further include non-physical objects, and thus Article 61 also covers juridical impossibility.Footnote 126 This was the approach of the ILC with regard to the 1986 Vienna Convention on the Law of Treaties between state and international organizations or between international organizations.Footnote 127 The example the ILC gave is the disappearance of a legal situation such as a trusteeship regime.Footnote 128

The upshot of this unresolved division of views is that the exact scope of the term “object” under Article 61 remains largely controversial.Footnote 129 Bearing this in mind, it would be inappropriate to assume Article 61's comfortable fit into the already very complicated area of EACT. It may no doubt be conceived that armed conflicts can affect treaties by causing physical impossibility. However, physical impossibility is not the only form of impossibility that may arise in consequence of an armed conflict. An earlier mentioned example of non-physical impossibility is impossibility due to loss of political trust and confidence.Footnote 130 Adopting the restrictive reading, “political trust and confidence” does not qualify as an “object”.

If such a difficulty is not clarified in the EACT Draft Articles, not only may states not be able to plead impossibility in supposedly appropriate circumstances, but any subsequent adoption of a broader interpretation of the term “object” in the context of EACT may risk accordingly expanding that same term under Article 61 of the VCLT.Footnote 131

An illustrative analogy may again be drawn with Article 63 of the VCLT. During the crafting of that article, the drafters acknowledged that the severance of diplomatic or consular relations could result in SIP.Footnote 132 However, as mentioned, the article codifying SIP relates solely to the disappearance or destruction of an “object”. This troubled the UK government, as well as a number of ILC members for precisely the same reason just emphasized vis-à-vis the issue of EACT—that the destruction of an “object” refers “only to one particular impossibility”, when the severance of relations may cause other types of impossibilities, specifically those arising from the disappearance of “the means necessary” for the execution of the treaty.Footnote 133

The Rapporteur thus recommended some drafting changes to accommodate this concern.Footnote 134 But for fear of departing too far from the position that severance of relations should not normally have an effect on treaties, the drafting committee ultimately decided to remove any express mention of SIP within Article 63 itself.Footnote 135 In response, the Rapporteur suggested that “a State wishing to invoke [SIP] would have to make out a case in accordance with the conditions laid down in article [61]”.Footnote 136 But this means that the difficulties as regards the limited scope of Article 61 remain unresolved, and today the precise relationship between Article 61 and 63 remains an enigma.Footnote 137

Returning to the issue of EACT, such difficulties may be readily prevented by more thoroughly examining the types of impossibility that may arise due to an outbreak of hostilities, and then drafting rules that take these into account.

2. Need for radical transformation of obligations

The application of FCC under Article 62 of the VCLT as an objective standard for EACT is also problematic. As suggested above, FCC is most likely relevant to treaties of friendship or alliance.Footnote 138 But it does not appear from state practice that the outbreak of conflicts had “radically to transform the extent of obligations” (subparagraph 1(b) of Article 62) before such treaties are suspended.Footnote 139

It is therefore suspected that states inclined towards codifying rules that are more consonant with state practiceFootnote 140 may not be comfortable with the inclusion of this limb of Article 62.Footnote 141 Yet, there may be opposing states that desire to restrict the application of FCC as far as possible, and therefore prefer to include this additional requirement, albeit as part of progressive development. In the draft article I propose below, I assume the former position, but quite evidently the issue of whether to include this additional threshold deserves more attention from the ILC.

IV. Proposal for a New Draft Article

The various problems highlighted above should not be surprising. It is worth reiterating that the provisions of the VCLT were never drafted with the topic of EACT in mind. A glove that was made to the measurements of person X naturally cannot be expected to fit snugly onto the hand of person Y, even though the general shape may be similar. It is suggested that the Second Rapporteur may in fact have been cognizant of this, given his rather tentative rejection of Belarus's call for a more fundamental consideration of FCC and SIP.Footnote 142 In this part, I will suggest a possible replacement draft article that better tailors FCC and SIP to the context of EACT.

A. Proposing a New Draft Article

A possible new draft article may be along the lines of:

Article 5 bis—Termination or suspension of treaties on grounds of supervening impossibility of performance or fundamental change of circumstances

A State is entitled to invoke an armed conflict (occurring between itself and another State) to suspend or terminate a treaty insofar as:

a) the armed conflict leads to the impossibility of executing the treaty; or

b) the absence of an armed conflict constituted an essential basis of the consent of the parties to be bound by the treaty.

In the accompanying commentary to this new draft article, it is imperative to identify as explicitly as possible the types of impossibility envisaged to be applicable under subparagraph (a), be it arising from the destruction of an object, or undermining of mutual trust and confidence. If more rigidity is preferred, subparagraph (a) may read “the armed conflict leads to the impossibility of performing the treaty in consequence of the disappearance of an object or legal regime indispensable for its execution”.

It should also be elaborated that subparagraph (b) is intended to be mainly applicable to treaties such as treaties of friendship or alliance,Footnote 143 while subparagraph (a) is targeted primarily at all other categories of treaties, which do not presuppose the maintenance of peaceful political relationships, and hence which are very likely to continue in their operation during an outbreak of hostilities. Rather, subparagraph (a) accounts for situations where obligations under these other treaties may still need to be suspended due to impossibility, rare as these instances may be.

With the insertion of this new draft article, the references to FCC and SIP under Article 18 may be removed. The chapeau of Article 6 may also be amended to read:

Article 6—Factors indicating whether a treaty is susceptible to termination, withdrawal or suspension

In order to ascertain whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflict, [or whether the requirements under Article 5 bis have been fulfilled,] regard shall be had to all relevant factors, including …

B. Advantages of the New Draft Article

One immediate advantage is that it is now patently obvious that FCC and SIP are applicable as objective standards in determining the effects of armed conflicts.Footnote 144 The role of the indicia in Article 6 also consequently becomes clearer in identifying what it would take to rebut the presumption of continuity of the types of treaties listed in Article 7 and the Annex.Footnote 145

The clarity would additionally respond to Belarus's call to view FCC and SIP as basic criteria in determining the effect of armed conflicts on treaties,Footnote 146 and go some way in allaying the concern of the Netherlands that

[g]enerally speaking, the Special Rapporteur's work seemed to be confined to the narrow issue of the suspension and termination of treaties. In reality, however, armed conflicts could raise other questions such as application of the rebus sic stantibus … Such a narrow approach suggested that many questions relating to the application of the 1969 Vienna Convention during situations of armed conflict would remain pending.Footnote 147

The omission of any cross-referencing to the provisions of the VCLT avoids the awkward issue of schematics identified above. There is, moreover, less need to be anxious that any interpretation of the EACT Draft Articles would expand the current restrictive phraseology of Articles 61 and 62 of the VCLT.Footnote 148

Doctrinally, overall coherence is promoted as the various types of changes in the international community will be governed by the similar touchstones of impossibility and fundamental change. This follows from the oft-cited maxim that “the like should be treated alike”, and addresses the caution of Australia that “it would be important to ensure that any criteria on termination or suspension set out in the draft articles [on EACT] conform to the [VCLT]”.Footnote 149

C. Other Outstanding Issues

Some detractors may contend that while the notion of “impossibility” under sub-paragraph (a) of the new proposed article is restrictive enough, that of “an essential basis of consent” under subparagraph (b) may still be a tad too imprecise, and hence susceptible to abuse. The response is that such concern is probably overstated. That states will engage each other in armed conflict just to escape treaty obligations is likely very exceptional. In any case, Article 15 of the EACT Draft Articles operates to prevent states committing aggression from escaping treaty obligations.Footnote 150

Separately, the persistence of change on the possible effects on treaties will also need to be resolved. Will impossibility of performance arising from outbreak of hostilities ever result in the termination of treaties? Under Article 61 of the VCLT, termination is possible if the impossibility is complete and permanent, while only suspension is allowed if the impossibility is temporary. Should such a distinction similarly apply in the context of EACT? Given the contemporary circumstances, might political ties between states ever be permanently wounded? Furthermore, for FCC under Article 62 of the VCLT, such a distinction is not expressly drawn. Should it be drawn as it is for its counterpart under the EACT Draft Articles? These are outstanding, but nevertheless essential, issues that require attention.

V. Looking Ahead

I have endeavoured to demonstrate that the rule that a treaty may be suspended or terminated if an armed conflict leads to SIP, or constitutes FCC, is theoretically justifiable. However, the article providing for such a rule in the EACT Draft Articles raises several problems, and would benefit greatly from further analysis and redrafting. To remedy these problems, I have proposed a possible replacement draft article. Admittedly, my proposal does not purport to resolve all controversies on this topic. Rather, my hope is that it will provide a more effective stepping-stone towards coming up with a more principled and coherent set of draft articles.Footnote 151

Following the ILC's adoption of the EACT Draft Articles, the United Nations General Assembly has since adopted a similar approach to that of the 2001 Draft Articles on State Responsibility,Footnote 152 i.e. to take note of the articles and commend them to the attention of the states. The General Assembly has additionally decided to include in the provisional agenda of its 69th Session (in 2014) an examination of the form that might be given to these articles.Footnote 153

It would, in my view, be best if states take notice of the various potential difficulties highlighted in the preceding discussion, and appropriate changes to the text of the EACT Draft Articles are made as and when a suitable opportunity arises.Footnote 154 As the delegation from Belarus has helpfully reminded us, “current events pointed to the importance of having clearly defined rules to govern inter-State relations both during and after armed conflicts, and of protecting the interests of the numerous parties affected by them”.Footnote 155

However, in the meantime, how may the EACT Draft Articles (as they currently stand) be read consistently with FCC and SIP under the VCLT? Considering the various problems raised in Part III above, a possible approach would be to first interpret Article 18 as intending the relevance of FCC and SIP as objective touchstones, and then to treat Article 18 as referring to FCC and SIP as they are formulated, i.e. analogous application, under the VCLT. There may be a further need to either, in cases of SIP, affirm that the term “object” could be interpreted widely enough to take into account other instances of impossibility, or, in cases of FCC, interpret the requirement of radical transformation of obligations liberally and pragmatically.

SUPPLEMENTARY MATERIALS

For supplementary material referred to in this paper, please visit http://dx.doi.org/doi:10.1017/S204425131200032X

Footnotes

*

Deputy Public Prosecutor and State Counsel, Attorney-General's Chambers, Republic of Singapore; LL.B (Hons) National University of Singapore. This article is a revised version of a directed research paper I wrote earlier as part of the 2011 Centre of International Law—Attorney General's Chambers of Singapore (International Affairs Department) Summer Internship for Research on Public International Law. I am grateful for the invaluable patience and guidance of Ms Davinia Aziz, who provided very helpful comments and encouragement during my writing of this research paper. All errors, however, remain mine. The views expressed in this paper are entirely the author's own and do not reflect those of the Attorney-General's Chambers, Republic of Singapore.

1. CORTEN, Olivier and KLEIN, Pierre, eds., The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II (New York: Oxford University Press, 2011) at 1659

2. BROMS, Bengt, “Preliminary Report to the Fifth Commission: The Effects of Armed Conflicts on Treaties” (1981) 59(1) Annuaire de I'Institut de droit international 224 at 227

O'CONNELL, Daniel P., International Law, Vol. I, 2nd ed. (London: Stevens, 1970) at 268

3. Techt v. Hughes, Opinion of Judge Cardozo, [1920] 229 NY 222 at 240.

4. In this paper, I use the terms “armed conflict” and “outbreak of hostilities” interchangeably.

5. This is a very real scenario given that it is nowadays rare for states to consider, if ever, the possibility of armed conflicts when negotiating treaty terms. See for instance the comment by one state, that:

the criterion … [of] the intention of the parties to the treaty, was unlikely to be of much practical value: it was hard to imagine States, whenever they concluded an international treaty, asking themselves whether to incorporate provisions on the treaty's suspension or termination in the event of armed conflict.

See Official Records of the United Nations General Assembly (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2008) at para. 60.

6. Unless otherwise stated, all ensuing references to “armed conflict” in this paper refer to armed conflicts between states. Nevertheless, whether the issues and problems highlighted in this paper are also applicable to situations of internal armed conflicts is certainly food for thought.

7. MCINTYRE, Stuart H., Legal Effect of World War II on Treaties of the United States (Leiden: Martinus Nijhoff, 1958) at 25

8. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 [VCLT].

9. The history of the VCLT will be elaborated on in Part I(B.1), below.

10. MORTON, J., The International Law Commission of the United Nations (Columbia, SC: University of South Carolina Press, 2000) at 1−18

11. See Official Records of the UNGA, 66th Session, Supplement No. 10, Report of the ILC, UN Doc. A/66/10 (2011) [ILC Report 2011] at Part E.

12. Ibid., at 195, EACT Draft Article 18.

13. One notable exception is the delegation from Belarus, which country has twice questioned, in its interventions in 2008 and 2010, why the FCC and the SIP have not been given more attention as basic criteria in determining the effects of armed conflicts. See Official Records of the UNGA (Sixth Committee), 63 rdSession, Summary Record of the 16th Meeting, UN Doc. A/C.6/63/SR.16 (2008) at para. 40, and Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2008) at para. 60, respectively.

14. These controversies concern, inter alia, the definition of “armed conflicts”, the scope of the EACT Draft Articles, and the factors to identify treaties that continue in operation. See generally First Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 62nd Session, Report of L.Caflisch, UN Doc. A/CN.4/627 (2010) at para. 3 [Caflisch's First Report (2010)].

15. See Effects of Armed Conflicts on Treaties, UNGA Res. 66/99, UN Doc. A/RES/66/99 (2011) at paras. 3−4.

16. AUST, Anthony, Modern Treaty Law and Practice, 2nd ed. (Cambridge: Cambridge University Press, 2007) at 308

17. Corten and Klein, supra note 1 at 1656

OPPENHEIM, Lassa F.L., Lauterpacht, H., ed., International Law: A Treatise. By Oppenheim, Vol. II, 7th ed. (London: Longmans Green, 1952) at 302

18. Corten and Klein, supra note 1 at 1655−1656

19. Secretariat Memorandum, supra note 16 at para. 14.

20. Ibid., at para. 15.

21. Ibid., at para. 17.

22. MCNAIR, Lord, The Law of Treaties (New York: Oxford University Press, 2000) at 695−728

STARKE, J.G., An Introduction to International Law, 5th ed. (London: Butterworths, 1963) at 409−410

23. Supra note 8.

24. Yearbook of the ILC (1963), Vol. II at 197, para. 14.

25. Yearbook of the ILC (1966), Vol. II at 267.

26. ROSENNE, Shabtai, Developments in the Law of Treaties 1945−1986 (Cambridge: Cambridge University Press, 1989) at 68−72

VILLIGER, Mark, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff Publishers, 2009) at 895−904

Corten and Klein, supra note 1 at 1654−1659

27. Para. 2 of the commentary to Article 73 of the VCLT mentions:

the Commission concluded that it was justified in considering the case of an outbreak of hostilities between parties to a treaty to be wholly outside the scope of the general law of treaties to be codified in the present articles. [emphasis added]

ILC, supra note 25 at 268. See also Aust, supra note 16 at 308, and Villiger, supra note 26 at 903. Note, however, that since only the outbreak of hostilities between states are excluded, the VCLT would still govern the situation of a treaty between States A and B, and where an internal armed conflict occurs in State A (see the main text accompanying supra note 6).

28. The Institut de Droit International (Institute of International Law) is a private organization devoted to the study and development of international law. For further information, see the Institute's official website, online: IDI 〈http://www.idi-iil.org〉.

29. Resolution Adopted by the Institute of International Law on the Effects of Armed Conflicts on Treaties (1986) Annuaire de I'Institut de droit international (“Resolution of the Institute of International Law”) 279 [IDI Resolution]. See also Rosenne, supra note 26 at 70−72.

30. IDI Resolution, supra note 29, Article 2.

31. Secretariat Memorandum, supra note 16 at para. 16.

32. IDI Resolution, supra note 29, “Preamble”. As a side note, the use of the term “prejudge” seems inappropriate given that the VCLT was adopted prior to the IDI Resolution.

33. Corten and Klein, supra note 1 at 1656−1657

34. Compare with Part I(B.1) above.

35. For a more detailed summary on the ILC's progress of work, see ILC, “Summary—Effects of Armed Conflicts on Treaties” ILC Summaries (10 October 2011), online: ILC 〈http://untreaty.un.org/ilc/summaries/1_10.htm〉.

36. Official Records of the UNGA, 59th Session, Supplement No. 10, Report of the ILC, UN Doc. A/59/10 (2004) at para. 364.

37. See Secretariat Memorandum, supra note 16.

38. First Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 57th Session, Report of Ian Brownlie, UN Doc. A/CN.4/552 (2005) [Brownlie's First Report (2005)].

39. Second Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 58th Session, Report of Ian Brownlie, UN Doc. A/CN.4/570 (2006); Third Report on the Effects of Armed Conflicts on Treaties, UNGA(ILC), 59th Session, Report of Ian Brownlie, UN Doc. A/CN.4/578 (2007); Fourth Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 59th Session, Report of Ian Brownlie, UN Doc. A/CN.4/589 (2007) [Brownlie's Fourth Report (2007)].

40. Caflisch's First Report (2010), supra note 14.

41. ILC Report 2011 at Part E, supra note 11. See also UNGA Res 66/99, supra note 15 at Annex.

42. Supra note 11, EACT Draft Article 3. See also Official Records of the UNGA, 60th Session, Supplement No. 10, Report of the ILC, UN Doc. A/63/10 (2008) at 93 [ILC Report 2008]. (“[The formulation of Article 3] is a replication of Article 2 of the resolution adopted by the Institute of International Law in 1985.”) The EACT Draft Article covers not only situations of armed conflict between states, but also internal armed conflicts. Note, however, that this paper is only concerned with armed conflict between states (see supra notes 6 and 26).

43. ILC Report 2008, supra note 42, at 93.

44. Supra note 11, EACT Draft Article 6.

45. The initial purpose of listing indicative factors seemed to be towards discovering the intention of the parties vis-à-vis how the treaty is to be affected by an outbreak of hostilities. See Official Records of the UNGA, 57th Session, Supplement No. 10, Report of the ILC, UN Doc. A/60/10 (2005) at paras. 149−56; Brownlie's First Report (2005), supra note 38 at paras. 29−48). However, the idea of discovering the intention of the parties has subsequently been subject to objection, on the grounds of artificiality. The express reference to “intention of parties” was hence removed from the article (infra note 90). As such, the current rationale behind this article remains rather unclear. It may be surmised that these factors at least operate to ascertain objectively the effect of armed conflicts, perhaps by “imputing” intention.

46. Supra note 11, EACT Draft Article 7 and Annex (Indicative list of treaties referred to in Draft Article 7). This is a reflection of the “categorization” approach adopted by several modern scholars. See the main text accompanying supra notes 21−2.

47. Supra note 12.

48. Brownlie's First Report (2005), supra note 38 at para. 126. The commentary to this article in subsequent ILC reports maintains this position. See commentary to art. 17, ILC Report 2008, supra note 42 at 134; commentary to art. 18, ILC Report 2011, supra note 11 at 198.

49. See commentary to art. 17, ILC Report 2008, supra note 42 at 133, and commentary to art. 18, ILC Report 2011, supra note 11 at 198. Para. 2 of both commentaries further elaborates that the article also intends to avoid the possible implication that the occurrence of an armed conflict gives rise to a lex specialis precluding operation of other grounds of termination, withdrawal, or suspension.

50. GARNER, Bryan, Black's Law Dictionary, 9th ed. (St Paul, MN: West, 2009) at 1740

Villiger, supra note 26 at 903

51. It is also in this sense that art. 18 seeks to avoid the possible implication that the outbreak of hostilities gives rise to a lex specialis and precludes the operation of other grounds for termination, withdrawal, or suspension. Another “non-relevance” interpretation is that the grounds of FCC and SIP under art. 18 are intended to be applicable only to non-interstates armed conflicts, i.e. internal armed conflicts (supra note 6), since such conflicts are also within the scope of the EACT Draft Articles (see arts. 3(b) and 6(b)). Such an interpretation may be dismissed immediately as the Second Rapporteur has expressly emphasized that FCC and SIP are to also apply in the context of interstate armed conflicts. See Caflisch's First Report (2010), supra note 14 at para. 6.

52. Secretariat Memorandum, supra note 16 at “Summary”.

53. Ibid., at para. 125.

54. Ibid., at para. 139.

55. The First Rapporteur may perhaps be taken to have agreed with the Secretariat when he noted in his fourth report that “the case of armed conflict is not a paradigm of the other cases of termination or suspension recognized in the [VCLT]”. See Brownlie's Fourth Report (2007), supra note 39 at para. 29.

56. See Part I(B.1) above.

57. See comments from the government of Portugal, noting that “[the matter of EACT] was intentionally excluded from the [VCLT]”. See Effects of Armed Conflicts on Treaties: Comments and Information Received from Governments, UNGA (ILC), 62nd Session, Report of the ILC, UN Doc. A/CN.4/622 (2010) at 11 [ILC Report 2010].

58. Caflisch's First Report (2010), supra note 14 at para. 46 (see also paras. 6 and 43). See further Official Records of the UNGA, 62nd Session, Supplement No. 10, Report of the ILC, UN Doc. A/65/10 (2010) at para. 220. The delegation from Belarus had earlier commented during one of its interventions that

some of the grounds cited in the [VCLT], such as a fundamental change in circumstances, should be viewed as basic criteria, in conjunction with the indicia set out in draft article 4, for determining whether treaties could be suspended or terminated in situations of armed conflict.

See supra note 13.

59. BROWNLIE, Ian, Principles of Public International Law, 7th ed. (New York: Oxford University Press, 2008) at 620

60. See the main text accompanying supra notes 32−3.

61. See the main text accompanying supra note 24.

62. See Secretariat Memorandum, supra note 16 at Parts VI.A and VI.E.

63. CONFORTI, Benedetto and LABELLA, Angelo, “Invalidity and Termination of Treaties: The Role of National Courts” (1990) 1 European Journal of International Law 44 at 58

64. SONNENFELD, Renata, “Succession and Continuation, A Study on Treaty Practice in Post-War Germany” (1976) Netherlands Yearbook of International Law 91 at 109

65. Lanificio Branditex v. Società Azais e Vidal, Court of Cassation, Joint Sessions, No. 3147 (8 Nov 1971), reported in 1 Italian Yearbook of International Law 232−3. The Court also held that “a declaration of war only brings to an end those international conventions, observance of which would become absolutely and finally impossible as a result of the outbreak of hostilities”.

66. Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 25th Meeting, UN Doc. A/C.6/65/SR.25 (2008) at para. 30 [Republic of Korea].

67. Supra note 5 at para. 60.

68. McIntyre, supra note 7 at 25

TARASOFSKY, Richard, “Legal Protection of the Environment during International Armed Conflict” (1993) 24 Netherlands Yearbook of International Law 17 at 65

69. One example is when “the French Foreign Ministry argued that war constituted a changed circumstance sufficient to terminate its adhesion to the obligatory jurisdiction clause of the Permanent Court of International Justice in 1939”. The other is when “the Court of Paris held that hostilities created a changed circumstance creating special rights and duties for the belligerent State”. See Secretariat Memorandum, supra note 16 at para. 122.

70. BRIGGS, H.W., “The Attorney General Invokes Rebus Sic Stantibus” (1942) 36 American Journal of International Law 89

71. See the main text accompanying supra note 68.

72. Supra note 68.

73. Aust, supra note 16 at 308

74. McIntyre, supra note 7 at 23

75. Art. 61 (in extenso) states that:

  1. 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

  2. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

76. Art. 62 (in extenso) states that:

  1. 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

  2. a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

  3. b) the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty.

  4. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

  5. a) if the treaty establishes a boundary; or

  6. b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

  7. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

77. Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 1 [Gabcikovo] at para. 99; Fisheries Jurisdiction case (Federal Republic of Germany v. Ireland), Judgment, 2 February 1973, [1973] ICJ Rep. 1 at para. 36.

78. Corten and Klein, supra note 1 at 1386

79. SINCLAIR, Ian, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984) at 191

Corten and Klein, supra note 1 at 1386

80. Aust, supra note 16 at 296

Corten and Klein, supra note 1 at 1385−1386

81. Sinclair, supra note 79 at 191

Corten and Klein, supra note 1 at 1386

82. McIntyre, supra note 7 at 134

DELBRUCK, J., “War, Effect on Treaties” (2002) in 4 Encyclopedia of International Law 1367 at 1370

83. This is barring exceptions such as where the armed conflict was initiated by a state intentionally to escape its treaty obligations. See e.g. supra note 11, EACT Draft Article 15.

84. Corten and Klein, supra note 1 at 1413−1415

85. Second Report on the Law of Treaties, supra note 84, at 59, para. 149.

86. Yearbook of the ILC (1966), Vol. II at 258.

87. Ibid.

88. Corten and Klein, supra note 1 at 1413

89. Supra note 5. See also the comments from Portugal during one of its interventions, that:

Parties are supposed to conclude treaties in good faith and with the intention to comply with them (pacta sunt servanda). It is thus very difficult to guess the parties’ intention at the time of the conclusion of the treaty in the case of an outbreak of hostilities.

Supra note 57 at 13. See further Secretariat Memorandum, supra note 16 at para. 11; Collected Writings of Sir Robert Jennings, Vol 1 (The Hague; Boston: Kluwer Law International, 1998) at 237 [Jennings].

90. See Statement of the Chairman of the Drafting Committee (17 May 2011) accompanying EACT Draft Articles at 10, that:

The question remained as to whether there ought to be a reference to the criterion of intention … Upon reflection, the Committee decided not to make such a reference. It was of the view that the drafters of treaties rarely provide an indication of their intentions should the parties to the treaties ever become engaged in an armed conflict.

91. Supra note 11, EACT Draft Article 6.

92. McIntyre, supra note 7 at 359−360

93. Delbruck, supra note 82 at 1369

94. Restatement 3rd, supra note 68.

95. Delbruck, supra note 82

96. Starke, supra note 22 at 409

Delbruck, supra note 82 at 1371

97. Art. 62(1), subpara. (a) of the VCLT, supra note 76.

98. Secretariat Memorandum, supra note 16 at paras. 126 and 139.

99. Ibid., at Summary and paras. 125 and 139.

100. RANK, Richard, “Modern War and the Validity of Treaties: A Comparative Study (Part I)” (1952−53) 38 Cornell Law Quarterly 321 at 338−339

101. Ibid., at 340−1. It is precisely for this reason that Rank contends that the US erred in raising rebus vis-à-vis the 1930 International Load Line Convention following the outbreak of World War II.

102. Compare Part I(A) above.

103. Brownlie's Fourth Report (2007), supra note 39 at para. 30.

104. Ibid., at paras. 30−4.

105. Ibid., at para. 32. See also ILC Report 2010, supra note 57 at 18 (Poland):

[The regime of notification] reflects the idea that a State may not unilaterally terminate, withdrawal from or suspend the operation of a treaty as a consequence of its engagement in an armed conflict. What it may do is to invoke the occurrence of an armed conflict as a ground for expressing its intent to terminate, withdraw from or suspend the operation of a treaty. If so, such a notification has no effects on the treaty until the other State so agrees. The only effect the notification has is to inform the other State or States of the relevant intent of the notifying State. [emphasis added]

106. Brownlie's Fourth Report (2007), supra note 39, at para. 33.

107. See e.g. ILC Report 2010, supra note 57 at 19 (Switzerland) (“Switzerland commends the decision to include a duty of notification as an element supporting the principle of stability pursuant to draft article 3”); UN Doc. A/C.6/65/SR.23, supra note 5 at para. 97 (Poland) (“Poland agreed that under current international law, there was no rule providing for automatic suspension or termination of treaties”); Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 17th Meeting, UN Doc. A/C.6/63/SR.17 (2008) at para. 32 (Hungary); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 26th Meeting, UN Doc. A/C.6/65/SR.26 at para. 10 (2010) (Chile); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 (2011) at para. 3 (Chile). While some states have raised difficulties regarding giving notice to opposing state party or parties, it should be stressed that these concerns are not with respect to the decision to treat EACT as non-automatic, but rather with the practical difficulties of abiding by the procedure, such as its formalistic nature. See Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/65/SR.24 (2010) at para. 40 (Greece); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 at para. 14 (Greece); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 26th Meeting, UN Doc. A/C.6/65/SR.26 at para. 41 (Sri Lanka). But there are a few states who are uncomfortable with the strict notification requirements. See e.g. Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/65/SR.24 (2010) at para. 62 (UK); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2010) at para. 43 (Netherlands).

108. Rank would likely agree to this, as he himself qualified his position by earlier noting that “[i]t might be both theoretically and practically better … to consider the problem of whether the changes brought about by a war … in the existing status quo would automatically warrant the invocation of … rebus sic stantibus” [emphasis added] (Rank, supra note 100 at 336). See also the qualification of the ILC Secretariat that “it is still an open question whether the effect of armed conflicts on treaties operate automatically—thus distinguishing it from [FCC and SIP]—or whether it must also be invoked by the State parties concerned” (Secretariat Memorandum, supra note 16 at para. 139).

109. This distinction could explain why the Special Rapporteur of the draft articles that subsequently formed the basis of the VCLT (see the main text accompanying supra note 23) decided that the situation of severance of diplomatic or consular relations under art. 63 is a “separate matter” from those governed by arts. 61 and 62 of the VCLT (Yearbook of the ILC (1966), Vol. I, Part 2 at para. 94).

110. Brownlie's Fourth Report (2007), supra note 39 at para. 29. See also Brownlie's Fourth Report (2007), supra note 39 at para. 28 (“the case of armed conflict … is essentially different from what may be called the standard cases … [of] termination or suspension represented in Part V of the [VCLT]”).

111. The statement was made in the context of comparing notification procedures in the event of armed conflicts affecting treaties and non-armed conflict changes affecting treaties, and not so much directly between the principles behind EACT and rebus sic stantibus.

112. UN Doc. A/C.6/65/SR.23, supra note 5 at para. 4. See similar position adopted by Portugal earlier in Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 19th Meeting, UN Doc. A/C.6/63/SR.19 (2008) at para. 26; ILC Report 2010, supra note 57 at 5 (Portugal).

113. Contrast this with the intervention by the Republic of Korea delegation (see the main text accompanying supra note 66), which does not distinguish between a situation where two or more contracting states are parties to a conflict, and where merely one of them was a party to the conflict. In both cases, the armed conflict may cause difficulty or impossibility of performing treaty obligations.

114. Compare Part II(A) above.

115. Aust, supra note 16 at 310

The situation created by the outbreak of hostilities might be regarded … as somewhat analogous to that of severance of diplomatic relations, treaties continuing to apply except in so far as their continuation or operation is not possible during a period of hostilities.

116. See Yearbook of the ILC (1966), Vol. I, Part 2 at 212, para. 11, where the Special Rapporteur noted that in relation to severance of diplomatic or consular relations, a “State wishing to invoke supervening impossibility of performance would have to make out a case in accordance with the conditions laid down in article [61]”. Theoretically speaking, the severance of diplomatic or consular relations could also affect treaties if it qualifies as FCC. However, the drafters of the VCLT did not appear to have intended such an application. This is arguably due to the desire to ensure treaties are only affected by severance of diplomatic or consular relations if the strictest threshold of “impossibility” is met. In other words, the omission of applicability of FCC to art. 63 was a policy decision, and not due to theoretical incompatibility.

117. Supra note 77.

118. See Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2010) at para. 93 (Cuba); ILC Report 2010, supra note 57, UN Doc. A/CN.4/622 (2010) at 24 (Cuba); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 (2011) at para. 29 (Cuba).

119. Caflisch's First Report (2010), supra note 14 at para. 46.

120. Compare Part I(B.1) above.

121. Interestingly, with respect to the definition of “armed conflict” under art. 2 (Use of Terms) of the EACT Draft Articles, the Second Rapporteur was himself uncomfortable with mere cross-referencing to another international instrument. He opined that “[such an] approach would not be ideal; references to other texts make the draft articles abstract and difficult to digest” (Caflisch's First Report (2010), supra note 14 at para. 20). It is not clear why this same concern did not bother him with respect to art. 18.

122. Corten and Klein, supra note 1 at 1389−1390

123. Villiger, supra note 26 at 755

CURRIE, J., Public International Law, 2nd ed. (Toronto: Irwin Law Inc, 2008) at 181

124. Corten and Klein, supra note 1 at 1389−1390

125. Corten and Klein, supra note 1 at 1389−1390

126. Sinclair, supra note 79 at 191−192

127. Vienna Convention on the Law of Treaties between State and International Organizations or Between International Organizations, 21 March 1986, UN Doc. A/CONF.129/15 [VCLTSIO].

128. Commentary to art. 61 of VCLTSIO, Yearbook of the ILC (1982), Vol. II, Part 2 at 59, para. 3.

129. Currie, supra note 123 at 182

130. See supra note 82, and the main text accompanying supra notes 111−12. See also Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 18th Meeting, UN Doc. A/C.6/63/SR.18 (2008) at para. 21 (USA).

131. This was a major concern during the debates regarding art. 63 of the VCLT. See e.g. Yearbook of the ILC (1966), Vol. I, Part 2 at 108−11, paras. 70, 73, 85, 101. This is also a concern of a few states regarding the EACT Draft Articles. See e.g. ILC Report 2010, supra note 57 at 2 (China) (“[The draft articles on EACT] should be used only to supplement the [VCLT] and not to change the content of that Convention.”); Effects of Armed Conflicts on Treaties: Comments and Information Received from Governments (Addendum), UNGA (ILC), 62nd Session, Report of the ILC, UN Doc. A/CN.4/622/Add.1 (2011) at 2 (Iran).

132. See para. 5 of Commentary to Article 63 (then 65A) that “it … seems necessary to recognized that cases of supervening impossibility of performance may occur in consequence of the severance of diplomatic relations” (Yearbook of the ILC (1964), Vol II at 45).

133. Yearbook of the ILC (1966), Vol. II at 77 (Comments by the Government of the United Kingdom) and 108, paras. 60, 73, 94.

134. Ibid., at 78, para. 4, and Yearbook of the ILC (1966), Vol. I, Part 2 at 106, para. 39. The Rapporteur considered either (i) expanding the article codifying SIP to go beyond “disappearance or destruction of object”, or (ii) rephrasing the article governing severance of diplomatic or consular relations to cover disappearance of “the means necessary” for the application of the treaty.

135. Yearbook of the ILC (1966), Vol II, supra note 133, at 212, para. 10.

136. Supra note 116.

137. Corten and Klein, supra note 1 at 1444−1445

138. Compare Part II(B.1(b)) above.

139. Ibid.

140. See e.g. Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 18th Meeting, UN Doc. A/C.6/63/SR.18 (2008) at para. 43 (Greece); Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 16th Meeting, UN Doc. A/C.6/63/SR.16 (2008) at para. 74 (Italy).

141. In fact, if the objective standard of “incompatibility” with the treaty was also applicable, any reference to FCC would be rendered completely otiose, since the former does not require establishing the additional element of a radical transformation of the extent of obligations. But as things currently stand, the test of “incompatibility” is only expressly provided for vis-à-vis a state exercising its inherent right of self-defence. See supra note 11, EACT Draft Article 14. It is not clear whether such a standard is also concurrently applicable in non-self-defence instances.

142. See Caflisch's First Report (2010), supra note 14 at para. 46, where the Second Rapporteur responded that the changes proposed by the Belarus delegation “seem unnecessary”.

143. Compare Part II(B.1.(b)) above.

144. This is to prevent the difficulty highlighted in Part I(C.2) above from arising in the future.

145. The effect of the “categorization” approach is that certain treaties, by virtue of their subject matter, are implied or presumed to subsist in their operation. See supra note 11, EACT Draft Article 7. But how can such a presumption be rebutted? As the Second Rapporteur himself admitted:

“treaties do not continue in operation simply because they fall into one of the listed categories” and that any list is “indicative and does not suggest that the kinds of treaties mentioned would never be affected by the outbreak of an armed conflict”.

Caflisch's First Report 2010, supra note 14 at para. 53. It is submitted that the presumption may be rebutted if the requirements of either subparas. (a) or (b) are fulfilled.

146. Supra note 58.

147. Official Records of the UNGA (Sixth Committee), 62nd Session, Summary Record of the 20th Meeting, UN Doc. A/C.6/62/SR.20 (2007) at para. 32.

148. See the main text accompanying supra note 131.

149. Official Records of the UNGA (Sixth Committee), 60th Session, Summary Record of the 19th Meeting, UN Doc. A/C.6/60/SR.19 (2005) at para. 6.

150. See supra note 11, EACT Draft Article 15.

151. Compare quote accompanying supra note 1. See also UN Doc. A/C.6/65/SR.23, supra note 5 at para. 55 (Russian Federation):

Some ambiguities concerning the operation of treaties during armed conflict could not be resolved in the draft articles because of the lack of settled customary norms and consistent practice. However, the draft articles could provided guidance that would make it possible for future practice to evolve within a clearer framework. [emphasis added]

152. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 56th Session, Supplement No. 10, Report of the ILC on the Work of its Fifty-third Session, Official Records of the UNGA, UN Doc. A/56/10 (2001) at 43.

153. Supra note 15.

154. Rosenne, supra note 26 at 69

Corten and Klein, supra note 1 at 1396

155. UN Doc. A/C.6/65/SR.23, supra note 5 at para. 51.

* Deputy Public Prosecutor and State Counsel, Attorney-General's Chambers, Republic of Singapore; LL.B (Hons) National University of Singapore. This article is a revised version of a directed research paper I wrote earlier as part of the 2011 Centre of International Law—Attorney General's Chambers of Singapore (International Affairs Department) Summer Internship for Research on Public International Law. I am grateful for the invaluable patience and guidance of Ms Davinia Aziz, who provided very helpful comments and encouragement during my writing of this research paper. All errors, however, remain mine. The views expressed in this paper are entirely the author's own and do not reflect those of the Attorney-General's Chambers, Republic of Singapore.

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