2 - The Doctrine of the Effects of Armed Conflicts on Treaties

Summary

The general continuity of investment treaties stands in contrast to traditional rules, according to which the outbreak of war abrogated treaties between belligerents. Even today, it remains a common narrative that specialised customary rules exist on the (dis-)continuity of treaties at the outbreak of armed conflict. Chapter 2 critically scrutinises and ultimately rejects this doctrine of the effects of armed conflicts on treaties. While investment treaties also continue to operate under the International Law Commission’s ‘Draft Articles on the Effects of Armed Conflicts on Treaties’, remaining uncertainties as to the state of the law render a comprehensive examination necessary. The chapter argues that the Draft Articles and the doctrine they incorporate suffer from severe shortcomings. The better approach towards the effects of armed conflicts on treaties and more appropriate reading of contemporary international law, the chapter submits, is to discontinue the traditional invocation of specialised customary rules and reorient the debate exclusively toward general treaty law and the Vienna Convention on the Law of Treaties.