Sixth Committee (Legal) — 69th session
Effects of armed conflicts on treaties (Agenda item 84)
- Authority: resolution 66/99
Summary of work
Background (source: A/69/100)
At its sixty-sixth session, in 2011, the General Assembly, under the item entitled “Report of the International Law Commission on the work of its sixty-third session”, considered chapter VI of the report of the Commission which contained the draft articles on effects of armed conflicts on treaties together with a recommendation that the Assembly take note of the draft articles and that it consider, at a later stage, the elaboration of a convention on the basis of the draft articles. The Assembly took note of the articles, the text of which was annexed to resolution 66/99, and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action (resolution 66/99).
Consideration at the sixty-ninth session
The Sixth Committee considered the item at its 18th, 27th and 28nd meetings, on 23 October and 5 and 7 November 2014 (see A/C.6/69/SR.18, 27 and 28).
Statements were made by the representatives of South Africa (on behalf of the African Group), Finland (on behalf of the Nordic countries), Belarus, the Russian Federation, Cuba, Colombia, Singapore, Israel, Portugal, India, Greece, Malaysia, Argentina and the United States of America.
Some delegations welcomed that the scope of the articles on the effects of armed conflicts on treaties, adopted by the International Law Commission in 2011, was sufficiently broad to cover situations in which only one of the States parties to a treaty was a party to an armed conflict. A delegation reiterated its understanding that the articles did not cover treaties between international organizations. A number of delegations noted the relevance of international humanitarian law and stressed that the articles should not depart from established rules and principles of international law. Whereas some delegations concurred with the definition of “armed conflict” adopted in article 2, based on that adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) in its Tadic decision, the view was expressed that the definition should have been broader. Concern was also expressed over the formulation of article 2 and it was stated that the articles should not attempt to define armed conflict. It was suggested that a reference to common articles 2 and 3 of the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts would have been more appropriate. Some delegations drew attention to some ambiguity regarding the definition of armed conflict, in particular with regard to the use of the term “protracted” in article 2. Doubts about the inclusion of internal armed conflicts within the scope of the articles were reiterated. A number of delegations agreed with the approach taken in article 3 of indicating that armed conflict does not ipso facto terminate or suspend the operation of treaties.
Some delegations welcomed the clarifying inclusion of article 5 according to which in the absence of a clear indication in the treaty itself, one should seek to ascertain its meaning through the application of the established rules of international law on treaty interpretation. With regard to article 15, the view was expressed that all unlawful uses of force should have been covered rather than focusing on aggression as defined in General Assembly resolution 3314 (XXIX). Noting the complexity of extended armed conflicts, it was also pointed out that the question of possible benefit of an aggressor, as dealt with in article 15, was not necessarily the only relevant factor to consider in such situations.
A number of delegations expressed concern with regard to the inclusion of an indicative list of types of treaties that should be presumed not to be susceptible to termination or suspension as a consequence of an armed conflict. The view was expressed that the list could be neither definitive nor exhaustive. Several delegations expressed a preference for establishing general criteria to determine which treaties would fall into that category; some delegations would have preferred to either delete the list or to include it in the commentaries; and the preference to include specific types of treaty provisions rather than broad categories of treaties was also voiced. In addition, some delegations expressed the view that the articles should contain a statement of principle on the presumption of continuity of treaties during armed conflict.
Some delegations considered it premature to discuss the final form the articles would take. Several delegations did not support the eventual adoption of a convention. Several other delegations considered that the articles could serve as guidelines for States. Other delegations were of the view that the articles should remain, for the time being, in their present form. While it was recognized that the articles needed further elaboration, the opinion was also expressed that the final form could be a convention. To this end, some delegations suggested the establishment of a working group.
Action taken by the Sixth Committee
At the 27th meeting, on 5 November 2014, the representative of the Czech Republic, on behalf of the Bureau, introduced a draft resolution entitled “Effects of armed conflicts on treaties” (A/C.6/69/L.9).
At the 28th meeting, on 7 November 2014, the Committee adopted draft resolution A/C.6/69/L.9 without a vote.
Under this draft resolution, the General Assembly would once again commend the articles on the effects of armed conflicts on treaties to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. It would also request the Secretary-General to invite Governments to submit written comments on any future action regarding the articles. Finally, the General Assembly would decide to include in the provisional agenda of its seventy-second session an item entitled “Effects of armed conflicts on treaties” with a view to examining, inter alia, the question of the form that might be given to the articles.
Subsequent action taken by the General Assembly
This agenda item will be considered at the seventy-second session (2017).
