(Effects of Armed Conflicts on Treaties, Diplomatic Protection and Fragmentation of International Law)

New York, 1 November 2005

Mr. Chairman,

Today I would like to comment on three topics, namely: effects of armed conflicts on treaties, diplomatic protection and fragmentation of international law.

I. Effects of Armed Conflicts on Treaties

The ILC considered at its 57th session the first report on “effects of armed conflicts on treaties” submitted by Mr. Ian Brownlie, the Special Rapporteur, in which he provided an entire set of draft articles. We appreciate the efficiency of the Special Rapporteur. We also note that the Secretariat has prepared a memorandum entitled, “The effects of armed conflicts on treaties: an examination of practice and doctrines” for the reference of the Commission, which we believe is very helpful. Now I would like to comment briefly on this topic.

With regard to the scope of application of the draft articles, we believe that the Special Rapporteur’s approach of limiting the study to treaties between States is too narrow, because some treaties entered into by international organizations are also affected by armed conflicts, and should therefore be included in the study under this topic. On the other hand, however, the scope of “armed conflicts” as they appear in the draft articles is too broad. Without a strict limitation to “international” armed conflicts, it is possible that military action taken by a State internally against rebel groups may be inappropriately included in the scope of application of the draft articles.

Regarding the idea put forward by the Special Rapporteur, namely, the outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties. We basically agree with this idea and believe that it will contribute to the stability of treaty relations. We also agree with the Special Rapporteur that the intention of state parties is an important criterion in determining whether treaties should be terminated or suspended at the outbreak of armed conflicts. However, in view of the fact that at the time when state parties enter into a treaty, they generally do not anticipate and make arrangements for the application of the treaty during armed conflicts, it seems that the determination of the intention of state parties should not only be based on their intention at the time of joining the treaty, but also on their implementation of the treaty, including the situation after the outbreak of armed conflicts. Furthermore, the nature, object, and purpose of the treaty are also important in determining intention. Thus, comprehensive consideration is needed in determining whether a treaty continues to be valid, and one of the important elements in such consideration is the intention of state parties when they concluded the treaty.

With regard to the provision contained in the draft articles that the termination or suspension of a treaty shall not be affected by the legality of the conduct of the parties to the armed conflict, we fully understand the Special Rapporteur's consideration that the determination of illegal use of force is highly political, and that in the absence of such a determination by an authoritative body, allowing a state to affect the validity of a treaty concerned by a unilateral assertion of illegality of the conduct of another state would not be conducive to the stability of international relations. However, we also hold that the legitimacy of the use of force does have a bearing on treaty relations. For instance, since the Charter of the United Nations recognizes a state's right of self-defense prior to necessary measures taken by the Security Council, when a state exercises its right of self-defense in accordance with the provisions of the Charter, it seems that it should have the right to suspend in whole or in part the implementation of a treaty which conflicts with its right of self-defense. We believe that this issue deserves further in-depth study.

II. Diplomatic Protection

The ILC considered at its 57th session whether it was necessary to include a provision on the “clean hands doctrine” in the “Draft Articles for Diplomatic Protection”. The Special Rapporteur Mr.Dugard submitted the sixth report on this topic. We appreciate his outstanding work and we agree in principle with his view that it is not necessary to include the clean hands doctrine in the articles for diplomatic protection.

III. Fragmentation of International Law

We appreciate the initial results achieved by the Study Group on this topic under the leadership of Mr. Martti Koskenniemi.

The study of fragmentation of international law is not only of theoretical significance but also of major practical importance. Of particularly importance are studies of the “lex specialis rule” and the question of “self-contained regimes”, and hierarchy in international law. These studies will facilitate an international consensus on these issues, further establish the primary status of the basic principles of international law, standardize international practice, and thereby help realize the objective of establishing rule of law throughout the international community.

We look forward to next year's report by the Study Group, which we believe will be of great reference value to governments, international organizations and jurists.

Thank you, Mr. Chairman.