Statement made by Dr.A.R.Perera , PC - Legal Advisor - Ministry of Foreign Affairs on 30 May at the 59th Session of the International Law Commission in Geneva

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Since I am taking the floor for the first time, permit me to extend to the Chairman Mr. Ian Brownlie, you Mr. Vice-Chairman and other members of the Bureau my warm felicitations on your elections to the Bureau of the Commission. Under the able leadership and wise guidance of the Chairman and the Members of the Bureau, I have every confidence that the work of the 59th Session of the ILC would be extremely productive and achieve the objectives that it has set for itself. As a new member of the Commission I will make every endeavour to assist the Commission in this task.

Warm congratulations are also due to the Secretary Ms. Manoush Asanjani on her well deserved appointment.

I also wish to express my sincere appreciation to the Special Rapporteur Mr. Ian Brownlie on his Reports on the topic of ‘The effect of Armed Conflict on Treaties’ and for his comprehensive introduction of the Reports yesterday. His approach of presenting a complete set of draft articles certainly helps to understand the overall nature and scope of the topic.

I would be remiss in my duty if I did not acknowledge the invaluable input that is being made by the Secretariat to the work of the Commission and I wish to refer in particular to the Memorandum of the Secretariat on ‘The effect of Armed Conflict on Treaties: An Examination of Practice and Doctrine’. It is indeed a comprehensive compendium of state practice and doctrine on the effect of armed conflict on Treaties which would make an invaluable contribution to a study of the topic by the Commission. My comments this morning relate to three specific issues: (i) By way of general approach, the draft Articles adopt the test of the intention of the Parties at the time the treaty was concluded, to determine the effect of armed conflict on treaties. While the use of the intention criteria is broadly supported by doctrine, this should not exclude the use of other criteria which may help to discover the intention of the Parties in dealing with difficulties inherent in armed conflict situations. Prof. McRay this morning adverted to this effect and pointed out that in such instances the general rule could very well become the exception. The Secretariat Memorandum, pertinently observes that modern consideration of the topic generally uses a combination of the subjective test of the intention of the Parties towards the Treaty and an objective test of the compatibility of the treaty with national policy during an armed conflict. The compatibility test could be particularly useful when there are inherent difficulties in inferring the intention of the Parties. I would therefore support the proposal to resort to a range of criteria adverted to by several speakers this morning.

(ii) On the question of the operation of Treaties on the basis of necessary implication from their object and purpose (Draft Article 7), it is noted that the Sp. Rapporteur. has presented the list of Treaties in Sub-paragraph (2), as an ‘indicative list’ of treaties (‘not a closed legislative list’) the object and purpose of which would involve the necessary implication that they would continue in operation during an armed conflict.

There is a substantial degree of convergence in the categories set out in draft Article 7(2) and those set out in the Secretariat Momorandum.

While the degree of support some of these categories enjoy by way of State practice and legal doctrine may vary, I would agree with the Sp. Rapporteur that the draft Article as presently formulated would provide a useful starting point for further dissension.

In this regard, I also wish to add that the system of categorization employed in the Sectariat Memorandum, (Sect: III A-D) would be an extremely useful guide in our further deliberations on this issue. Rather than a broad categorisation, giving closer attention to specific provisions of a treaty may also merit consideration. Professor McRay referred to this morning to dispute settlement provision in investment protection and FCN Treaties as an example.

Accordingly, I would support the maintenance of the draft Article in its present form, pending further discussion. Possible variations in the identification of appropriate categories of Treaties could be considered, taking also into account the system of categorization used in the Secretariat Memorandum.

In the event however, of a decision being taken to delete draft Article 7, I agree with the Sp. Rapporteur‘s suggestion that this must be accompanied by the preparation of an Annex which would constitute a valuable repository of State practice and case law on the subject. I agree with the suggestion made by Professor Gaja that it would be useful to make a collation of such practice for purposes of further analysis by the Special Rapporteur.

(iii) The question of the impact of domestic hostilities on treaties has been raised in relation to the use of the term ‘armed conflict’ in Draft Art. 2(b). The issue is also dealt with in detail under the theme ‘other contemporary issues’ in S.Vii(B) of the Memorandum of the Secretariat.

The applicability of IHL and human rights law on non-international or internal armed conflict and their role in affording maximum protection to the victims of such conflict, is today well-established both in practice and doctrine. However, it would take a quantum leap from this position to draw the inference that such conflicts involving states and non-state actors or non-state actors inter-se, would have a substantial impact on Treaties concluded between states. This aspect was well elaborated this morning by Prof. Gaja. The thrust must be on the impact of armed conflict on treaties between state parties to such conflict.

In this regard one must pose the crucial question, is it possible to draw the inference that such conflicts by their nature or extent are likely to affect the operation of Treaties between a state party to an internal armed conflict and another state Party or a third State. This should be the central factor, rather than the frequency of internal conflicts, in addressing this issue within the scope of the present study.
The Secretariat study in S VII-B cites illustrations given by certain authors of possible situations where domestic conflicts could have an impact on Treaties and also some concrete situations. However, there is some doubt as to whether these could be viewed as constituting a significant state practice or established doctrine. As the Memorandum itself observes in para (146) , ‘if the effect of armed conflict on Treaties remains a vague area of international law, the effect of domestic hostilities on Treaties is even more so’.
I am of the view therefore, that the inclusion of this issue at the present stage is premature and could lead to further ambiguities and problems in the treatment of this complex topic. It should await the further evolution and precise identification of applicable norms and principles in relation to the effect of armed conflict of an international character on Treaties concluded between State Parties to an armed conflict or between such State Party and Third States.
Finally Mr. Chairman, I would support the proposal made to constitute a WG on the topic to further oonsider these and other key issues that have been made in the Plenary debate on this item.