NEW YORK, 1 NOVEMBER 2005
STATEMENT BY MR. LUÍS SERRADAS TAVARES, DIRECTOR OF THE DEPARTMENT OF LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE 60th SESSION OF THE GENERAL ASSEMBLY - Item 80: Report of the International Law Commission on the work of its Fifty-Seventh Session (Chapter V: Effects of Armed Conflicts on Treaties; Chapter VII: Diplomatic Protection; Chapter XI: Fragmentation of International Law)
I shall comment today on the topic of the Effects of Armed Conflicts on Treaties and also, very briefly, on the topics of Diplomatic Protection and Fragmentation of International Law.
Effects of Armed Conflicts on Treaties (Chapter V of the Report)
The International Law Commission (ILC) had before it the First Report of the Special Rapporteur, Professor Ian Brownlie, where, an overall view of the topic with 14 draft articles were presented, though without prejudice to the final form of the topic.
My delegation appreciates and commends the efforts of the Rapporteur in presenting a full picture of the topic, especially when the full set of draft articles was written in a single year. Yet, and because of the open-mindedness expressed by the Rapporteur itself, we would not like to turn down the opportunity to share our initial remarks on his approach to certain fundamental questions.
While draft article 1 poses no questions - as it is a single description of the topic - draft article 2 concerning the "Use of terms" for the purpose of the present draft articles contains two key terms defined therein: "Treaty" and "Armed Conflict". Let us look at one at a time.
The Rapporteur, in accordance to draft article 1, limits the term "Treaty" to agreements between States. Both in the Vienna Convention on the Law of Treaties of 1969 and in the Vienna Convention on the Law of Treaties between States and International Organisations or International Organisations of 1986, respectively in articles 73 and 74 and 76, this very question is - in very similar terms - considered not to be prejudged.
We ask, therefore, whether there are very strong arguments not to mirror also both definitions in this topic, to which the Vienna Conventions of 1969 and 1986 open the door to. Or, in a more pragmatic approach, if any definition is really necessary.
As to the proposed definition of "Armed Conflict", we also like to express our doubts. Not only there is always a risk in attempting to define what is an armed conflict, and in this regard we note that the above mentioned Vienna Conventions talk about the "outbreak of hostilities", the definition now in analysis seems also too ancient and not attending, for example, to the report of the High Level Panel on Threats, Challenges and Change, which gives a more updated notion.
To have a definition, which we are not sure to be the best option, it might be better to have one broader and comprehensive to leave to the applicator of the draft articles the task to determine, in a case-by-case basis, the kind of hostilities that might me suitable to have any kind of effect on a given treaty (war between States, civil war, UN military intervention, systematic international terrorism, etc).
In short, we vividly share the same hesitations as stated by some members of the Commission in paragraphs 138 to 140 of the ILC Report.
If the definition is maintained, more general and theoretical questions will arise, although extremely important, both concerning the coherence of a set of draft articles and its own practical application, as again as discussed in the ILC Report - namely in paragraphs 115 and 119.
In fact, it is yet to be determined if the topic and the draft articles are placed under the general subject of the law of treaties or under the one regarding the law on the use of force. Issues regarding what set of general principles of law will guide these draft articles, and the role of customary law in each field have to be careful looked upon.
We would also like to share our concerns and hesitations regarding draft article 3 entitled "Ipso facto termination or suspension". In this draft article, the Special Rapporteur proposes to replace the earlier position, according to which armed conflict automatically abrogated treaty relations, by a more contemporary view according to which the mere outbreak of armed conflict did not ipso facto terminate or suspend treaties in force between the parties to the conflict.
It appears that the traditional effect is indeed overturned. In fact, and taking as example the World War II, most treaties terminated or were suspended. We remain to be convinced, namely by recent and significant practice, that such a change has operated in the international community.
The parties to an armed conflict are not obviously in a position to comply with the rules of a treaty concluded with the actual or former enemy. And even if there is convincing practice as to the continuity of treaties, we are still of the opinion that the drafting technique should be different. A general principle of continuity in such cases sounds rather unrealistic.
As the Special Rapporteur himself recognises in paragraph 142 of the Report of the ILC draft article 3 may not be strictly necessary.
These first three draft articles just commented that put forward the general approach of the Rapporteur, raise - in our view - three questions of major importance, although interconnected, that are of concern to our delegation and play a key role in the future of the draft articles and the topic itself.
This is the reason why we feel that it would too soon to address the remaining draft articles this year, but look forward to see how the Special Rapporteur will progresses on his work.
These questions are:
First, the one already referred to about draft article 2, whether the topic would better be placed under the law of treaties or under the law of armed conflict. For the Portuguese delegation placing the topic in its proper subject matter is crucial, as stated.
The second, deals with the traditional idea that kept treaties out of the armed conflict discussions due to the general assertion that resort to war between States, being illegal, moved itself out of any international law framework. So, in this respect, as we underline the Rapporteur's will to move into new fields, a cautious approach will advisable.
In third place, and linked with the previous question, we do have some doubts relating to the need or even the utility of the topic, taking into account the task of the International Law Commission. A subject matter like this one, already with fourteen draft articles does not seem to go in the proper direction. More than progressive development of international law or codification of previous existing rules, we think that this exercise may be better qualified as hard innovation.
Diplomatic Protection (Chapter VII of the Report)
The approval last year on first reading of 19 articles on Diplomatic Protection was welcomed by my delegation. We believe that the text of the draft articles accomplished so far is an excellent starting basis for the further work of the Commission, in spite of the doubts we may have concerning specific articles.
This year we followed the discussion in the Commission on the issue of "clean hands" and express our agreement with the approach taken by the Special Rapporteur.
The ILC has now requested States to comment on the full set of draft articles and its commentaries by
1 January 2006before a second reading is embarked upon and we hope to contribute to this endeavour.
Fragmentation of International Law (Chapter XI of the Report)
Concerning the topic of "Fragmentation of International Law", we continue to believe that it is a fascinating field and to welcome the innovative way in which the Commission is dealing with this.
The Commission is exploring new subjects, not often dealt with by doctrine, and working methods that may also produce a significant contribution to the progressive development of international law.
We welcome the intention of the Commission to present by next year a consolidated study with a set of conclusions, guidelines and principles and we look forward to having the opportunity to offer our views on it.
Thank you, Mr. Chairman.