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The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change
Published online by Cambridge University Press: 23 January 2013
Abstract
The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.
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Footnotes
*
Deputy Public Prosecutor and State Counsel, Attorney-General's Chambers, Republic of Singapore; LL.B (Hons) National University of Singapore. This article is a revised version of a directed research paper I wrote earlier as part of the 2011 Centre of International Law—Attorney General's Chambers of Singapore (International Affairs Department) Summer Internship for Research on Public International Law. I am grateful for the invaluable patience and guidance of Ms Davinia Aziz, who provided very helpful comments and encouragement during my writing of this research paper. All errors, however, remain mine. The views expressed in this paper are entirely the author's own and do not reflect those of the Attorney-General's Chambers, Republic of Singapore.
References
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4. In this paper, I use the terms “armed conflict” and “outbreak of hostilities” interchangeably.
5. This is a very real scenario given that it is nowadays rare for states to consider, if ever, the possibility of armed conflicts when negotiating treaty terms. See for instance the comment by one state, that:
the criterion … [of] the intention of the parties to the treaty, was unlikely to be of much practical value: it was hard to imagine States, whenever they concluded an international treaty, asking themselves whether to incorporate provisions on the treaty's suspension or termination in the event of armed conflict.
See Official Records of the United Nations General Assembly (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2008) at para. 60.
6. Unless otherwise stated, all ensuing references to “armed conflict” in this paper refer to armed conflicts between states. Nevertheless, whether the issues and problems highlighted in this paper are also applicable to situations of internal armed conflicts is certainly food for thought.
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11. See Official Records of the UNGA, 66th Session, Supplement No. 10, Report of the ILC, UN Doc. A/66/10 (2011) [ILC Report 2011] at Part E.
12. Ibid., at 195, EACT Draft Article 18.
13. One notable exception is the delegation from Belarus, which country has twice questioned, in its interventions in 2008 and 2010, why the FCC and the SIP have not been given more attention as basic criteria in determining the effects of armed conflicts. See Official Records of the UNGA (Sixth Committee), 63 rdSession, Summary Record of the 16th Meeting, UN Doc. A/C.6/63/SR.16 (2008) at para. 40, and Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2008) at para. 60, respectively.
14. These controversies concern, inter alia, the definition of “armed conflicts”, the scope of the EACT Draft Articles, and the factors to identify treaties that continue in operation. See generally First Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 62nd Session, Report of L.Caflisch, UN Doc. A/CN.4/627 (2010) at para. 3 [Caflisch's First Report (2010)].
15. See Effects of Armed Conflicts on Treaties, UNGA Res. 66/99, UN Doc. A/RES/66/99 (2011) at paras. 3−4.
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20. Ibid., at para. 15.
21. Ibid., at para. 17.
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27. Para. 2 of the commentary to Article 73 of the VCLT mentions:
the Commission concluded that it was justified in considering the case of an outbreak of hostilities between parties to a treaty to be wholly outside the scope of the general law of treaties to be codified in the present articles. [emphasis added]
ILC, supra note 25 at 268. See also Aust, supra note 16 at 308, and Villiger, supra note 26 at 903. Note, however, that since only the outbreak of hostilities between states are excluded, the VCLT would still govern the situation of a treaty between States A and B, and where an internal armed conflict occurs in State A (see the main text accompanying supra note 6).
28. The Institut de Droit International (Institute of International Law) is a private organization devoted to the study and development of international law. For further information, see the Institute's official website, online: IDI 〈http://www.idi-iil.org〉.
29. Resolution Adopted by the Institute of International Law on the Effects of Armed Conflicts on Treaties (1986) Annuaire de I'Institut de droit international (“Resolution of the Institute of International Law”) 279 [IDI Resolution]. See also Rosenne, supra note 26 at 70−72.
30. IDI Resolution, supra note 29, Article 2.
31. Secretariat Memorandum, supra note 16 at para. 16.
32. IDI Resolution, supra note 29, “Preamble”. As a side note, the use of the term “prejudge” seems inappropriate given that the VCLT was adopted prior to the IDI Resolution.
33. Corten and Klein, supra note 1 at 1656−1657Google Scholar
34. Compare with Part I(B.1) above.
35. For a more detailed summary on the ILC's progress of work, see ILC, “Summary—Effects of Armed Conflicts on Treaties” ILC Summaries (10 October 2011), online: ILC 〈http://untreaty.un.org/ilc/summaries/1_10.htm〉.
36. Official Records of the UNGA, 59th Session, Supplement No. 10, Report of the ILC, UN Doc. A/59/10 (2004) at para. 364.
37. See Secretariat Memorandum, supra note 16.
38. First Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 57th Session, Report of Ian Brownlie, UN Doc. A/CN.4/552 (2005) [Brownlie's First Report (2005)].
39. Second Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 58th Session, Report of Ian Brownlie, UN Doc. A/CN.4/570 (2006); Third Report on the Effects of Armed Conflicts on Treaties, UNGA(ILC), 59th Session, Report of Ian Brownlie, UN Doc. A/CN.4/578 (2007); Fourth Report on the Effects of Armed Conflicts on Treaties, UNGA (ILC), 59th Session, Report of Ian Brownlie, UN Doc. A/CN.4/589 (2007) [Brownlie's Fourth Report (2007)].
40. Caflisch's First Report (2010), supra note 14.
41. ILC Report 2011 at Part E, supra note 11. See also UNGA Res 66/99, supra note 15 at Annex.
42. Supra note 11, EACT Draft Article 3. See also Official Records of the UNGA, 60th Session, Supplement No. 10, Report of the ILC, UN Doc. A/63/10 (2008) at 93 [ILC Report 2008]. (“[The formulation of Article 3] is a replication of Article 2 of the resolution adopted by the Institute of International Law in 1985.”) The EACT Draft Article covers not only situations of armed conflict between states, but also internal armed conflicts. Note, however, that this paper is only concerned with armed conflict between states (see supra notes 6 and 26).
43. ILC Report 2008, supra note 42, at 93.
44. Supra note 11, EACT Draft Article 6.
45. The initial purpose of listing indicative factors seemed to be towards discovering the intention of the parties vis-à-vis how the treaty is to be affected by an outbreak of hostilities. See Official Records of the UNGA, 57th Session, Supplement No. 10, Report of the ILC, UN Doc. A/60/10 (2005) at paras. 149−56; Brownlie's First Report (2005), supra note 38 at paras. 29−48). However, the idea of discovering the intention of the parties has subsequently been subject to objection, on the grounds of artificiality. The express reference to “intention of parties” was hence removed from the article (infra note 90). As such, the current rationale behind this article remains rather unclear. It may be surmised that these factors at least operate to ascertain objectively the effect of armed conflicts, perhaps by “imputing” intention.
46. Supra note 11, EACT Draft Article 7 and Annex (Indicative list of treaties referred to in Draft Article 7). This is a reflection of the “categorization” approach adopted by several modern scholars. See the main text accompanying supra notes 21−2.
47. Supra note 12.
48. Brownlie's First Report (2005), supra note 38 at para. 126. The commentary to this article in subsequent ILC reports maintains this position. See commentary to art. 17, ILC Report 2008, supra note 42 at 134; commentary to art. 18, ILC Report 2011, supra note 11 at 198.
49. See commentary to art. 17, ILC Report 2008, supra note 42 at 133, and commentary to art. 18, ILC Report 2011, supra note 11 at 198. Para. 2 of both commentaries further elaborates that the article also intends to avoid the possible implication that the occurrence of an armed conflict gives rise to a lex specialis precluding operation of other grounds of termination, withdrawal, or suspension.
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51. It is also in this sense that art. 18 seeks to avoid the possible implication that the outbreak of hostilities gives rise to a lex specialis and precludes the operation of other grounds for termination, withdrawal, or suspension. Another “non-relevance” interpretation is that the grounds of FCC and SIP under art. 18 are intended to be applicable only to non-interstates armed conflicts, i.e. internal armed conflicts (supra note 6), since such conflicts are also within the scope of the EACT Draft Articles (see arts. 3(b) and 6(b)). Such an interpretation may be dismissed immediately as the Second Rapporteur has expressly emphasized that FCC and SIP are to also apply in the context of interstate armed conflicts. See Caflisch's First Report (2010), supra note 14 at para. 6.
52. Secretariat Memorandum, supra note 16 at “Summary”.
53. Ibid., at para. 125.
54. Ibid., at para. 139.
55. The First Rapporteur may perhaps be taken to have agreed with the Secretariat when he noted in his fourth report that “the case of armed conflict is not a paradigm of the other cases of termination or suspension recognized in the [VCLT]”. See Brownlie's Fourth Report (2007), supra note 39 at para. 29.
56. See Part I(B.1) above.
57. See comments from the government of Portugal, noting that “[the matter of EACT] was intentionally excluded from the [VCLT]”. See Effects of Armed Conflicts on Treaties: Comments and Information Received from Governments, UNGA (ILC), 62nd Session, Report of the ILC, UN Doc. A/CN.4/622 (2010) at 11 [ILC Report 2010].
58. Caflisch's First Report (2010), supra note 14 at para. 46 (see also paras. 6 and 43). See further Official Records of the UNGA, 62nd Session, Supplement No. 10, Report of the ILC, UN Doc. A/65/10 (2010) at para. 220. The delegation from Belarus had earlier commented during one of its interventions that
some of the grounds cited in the [VCLT], such as a fundamental change in circumstances, should be viewed as basic criteria, in conjunction with the indicia set out in draft article 4, for determining whether treaties could be suspended or terminated in situations of armed conflict.
See supra note 13.
59. BROWNLIE, Ian, Principles of Public International Law, 7th ed. (New York: Oxford University Press, 2008) at 620Google Scholar
60. See the main text accompanying supra notes 32−3.
61. See the main text accompanying supra note 24.
62. See Secretariat Memorandum, supra note 16 at Parts VI.A and VI.E.
63. CONFORTI, Benedetto and LABELLA, Angelo, “Invalidity and Termination of Treaties: The Role of National Courts” (1990) 1 European Journal of International Law 44 at 58CrossRefGoogle Scholar
64. SONNENFELD, Renata, “Succession and Continuation, A Study on Treaty Practice in Post-War Germany” (1976) Netherlands Yearbook of International Law 91 at 109Google Scholar
65. Lanificio Branditex v. Società Azais e Vidal, Court of Cassation, Joint Sessions, No. 3147 (8 Nov 1971), reported in 1 Italian Yearbook of International Law 232−3. The Court also held that “a declaration of war only brings to an end those international conventions, observance of which would become absolutely and finally impossible as a result of the outbreak of hostilities”.
66. Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 25th Meeting, UN Doc. A/C.6/65/SR.25 (2008) at para. 30 [Republic of Korea].
67. Supra note 5 at para. 60.
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69. One example is when “the French Foreign Ministry argued that war constituted a changed circumstance sufficient to terminate its adhesion to the obligatory jurisdiction clause of the Permanent Court of International Justice in 1939”. The other is when “the Court of Paris held that hostilities created a changed circumstance creating special rights and duties for the belligerent State”. See Secretariat Memorandum, supra note 16 at para. 122.
70. BRIGGS, H.W., “The Attorney General Invokes Rebus Sic Stantibus” (1942) 36 American Journal of International Law 89CrossRefGoogle Scholar
71. See the main text accompanying supra note 68.
72. Supra note 68.
73. Aust, supra note 16 at 308Google Scholar
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75. Art. 61 (in extenso) states that:
- 1.
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.
- 2.
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
76. Art. 62 (in extenso) states that:
- 1.
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
- a)
a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
- b)
b) the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty.
- 2.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
- a)
a) if the treaty establishes a boundary; or
- b)
b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
- 3.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
77. Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 1 [Gabcikovo] at para. 99; Fisheries Jurisdiction case (Federal Republic of Germany v. Ireland), Judgment, 2 February 1973, [1973] ICJ Rep. 1 at para. 36.
78. Corten and Klein, supra note 1 at 1386Google Scholar
79. SINCLAIR, Ian, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984) at 191Google Scholar
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80. Aust, supra note 16 at 296Google Scholar
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81. Sinclair, supra note 79 at 191Google Scholar
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82. McIntyre, supra note 7 at 134Google Scholar
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83. This is barring exceptions such as where the armed conflict was initiated by a state intentionally to escape its treaty obligations. See e.g. supra note 11, EACT Draft Article 15.
84. Corten and Klein, supra note 1 at 1413−1415Google Scholar
85. Second Report on the Law of Treaties, supra note 84, at 59, para. 149.
86. Yearbook of the ILC (1966), Vol. II at 258.
87. Ibid.
88. Corten and Klein, supra note 1 at 1413Google Scholar
89. Supra note 5. See also the comments from Portugal during one of its interventions, that:
Parties are supposed to conclude treaties in good faith and with the intention to comply with them (pacta sunt servanda). It is thus very difficult to guess the parties’ intention at the time of the conclusion of the treaty in the case of an outbreak of hostilities.
Supra note 57 at 13. See further Secretariat Memorandum, supra note 16 at para. 11; Collected Writings of Sir Robert Jennings, Vol 1 (The Hague; Boston: Kluwer Law International, 1998) at 237 [Jennings].
90. See Statement of the Chairman of the Drafting Committee (17 May 2011) accompanying EACT Draft Articles at 10, that:
The question remained as to whether there ought to be a reference to the criterion of intention … Upon reflection, the Committee decided not to make such a reference. It was of the view that the drafters of treaties rarely provide an indication of their intentions should the parties to the treaties ever become engaged in an armed conflict.
91. Supra note 11, EACT Draft Article 6.
92. McIntyre, supra note 7 at 359−360Google Scholar
93. Delbruck, supra note 82 at 1369Google Scholar
94. Restatement 3rd, supra note 68.
95. Delbruck, supra note 82Google Scholar
96. Starke, supra note 22 at 409Google Scholar
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97. Art. 62(1), subpara. (a) of the VCLT, supra note 76.
98. Secretariat Memorandum, supra note 16 at paras. 126 and 139.
99. Ibid., at Summary and paras. 125 and 139.
100. RANK, Richard, “Modern War and the Validity of Treaties: A Comparative Study (Part I)” (1952−53) 38 Cornell Law Quarterly 321 at 338−339Google Scholar
101. Ibid., at 340−1. It is precisely for this reason that Rank contends that the US erred in raising rebus vis-à-vis the 1930 International Load Line Convention following the outbreak of World War II.
102. Compare Part I(A) above.
103. Brownlie's Fourth Report (2007), supra note 39 at para. 30.
104. Ibid., at paras. 30−4.
105. Ibid., at para. 32. See also ILC Report 2010, supra note 57 at 18 (Poland):
[The regime of notification] reflects the idea that a State may not unilaterally terminate, withdrawal from or suspend the operation of a treaty as a consequence of its engagement in an armed conflict. What it may do is to invoke the occurrence of an armed conflict as a ground for expressing its intent to terminate, withdraw from or suspend the operation of a treaty. If so, such a notification has no effects on the treaty until the other State so agrees. The only effect the notification has is to inform the other State or States of the relevant intent of the notifying State. [emphasis added]
106. Brownlie's Fourth Report (2007), supra note 39, at para. 33.
107. See e.g. ILC Report 2010, supra note 57 at 19 (Switzerland) (“Switzerland commends the decision to include a duty of notification as an element supporting the principle of stability pursuant to draft article 3”); UN Doc. A/C.6/65/SR.23, supra note 5 at para. 97 (Poland) (“Poland agreed that under current international law, there was no rule providing for automatic suspension or termination of treaties”); Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 17th Meeting, UN Doc. A/C.6/63/SR.17 (2008) at para. 32 (Hungary); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 26th Meeting, UN Doc. A/C.6/65/SR.26 at para. 10 (2010) (Chile); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 (2011) at para. 3 (Chile). While some states have raised difficulties regarding giving notice to opposing state party or parties, it should be stressed that these concerns are not with respect to the decision to treat EACT as non-automatic, but rather with the practical difficulties of abiding by the procedure, such as its formalistic nature. See Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/65/SR.24 (2010) at para. 40 (Greece); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 at para. 14 (Greece); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 26th Meeting, UN Doc. A/C.6/65/SR.26 at para. 41 (Sri Lanka). But there are a few states who are uncomfortable with the strict notification requirements. See e.g. Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/65/SR.24 (2010) at para. 62 (UK); Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2010) at para. 43 (Netherlands).
108. Rank would likely agree to this, as he himself qualified his position by earlier noting that “[i]t might be both theoretically and practically better … to consider the problem of whether the changes brought about by a war … in the existing status quo would automatically warrant the invocation of … rebus sic stantibus” [emphasis added] (Rank, supra note 100 at 336). See also the qualification of the ILC Secretariat that “it is still an open question whether the effect of armed conflicts on treaties operate automatically—thus distinguishing it from [FCC and SIP]—or whether it must also be invoked by the State parties concerned” (Secretariat Memorandum, supra note 16 at para. 139).
109. This distinction could explain why the Special Rapporteur of the draft articles that subsequently formed the basis of the VCLT (see the main text accompanying supra note 23) decided that the situation of severance of diplomatic or consular relations under art. 63 is a “separate matter” from those governed by arts. 61 and 62 of the VCLT (Yearbook of the ILC (1966), Vol. I, Part 2 at para. 94).
110. Brownlie's Fourth Report (2007), supra note 39 at para. 29. See also Brownlie's Fourth Report (2007), supra note 39 at para. 28 (“the case of armed conflict … is essentially different from what may be called the standard cases … [of] termination or suspension represented in Part V of the [VCLT]”).
111. The statement was made in the context of comparing notification procedures in the event of armed conflicts affecting treaties and non-armed conflict changes affecting treaties, and not so much directly between the principles behind EACT and rebus sic stantibus.
112. UN Doc. A/C.6/65/SR.23, supra note 5 at para. 4. See similar position adopted by Portugal earlier in Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 19th Meeting, UN Doc. A/C.6/63/SR.19 (2008) at para. 26; ILC Report 2010, supra note 57 at 5 (Portugal).
113. Contrast this with the intervention by the Republic of Korea delegation (see the main text accompanying supra note 66), which does not distinguish between a situation where two or more contracting states are parties to a conflict, and where merely one of them was a party to the conflict. In both cases, the armed conflict may cause difficulty or impossibility of performing treaty obligations.
114. Compare Part II(A) above.
115. Aust, supra note 16 at 310Google Scholar
The situation created by the outbreak of hostilities might be regarded … as somewhat analogous to that of severance of diplomatic relations, treaties continuing to apply except in so far as their continuation or operation is not possible during a period of hostilities.
116. See Yearbook of the ILC (1966), Vol. I, Part 2 at 212, para. 11, where the Special Rapporteur noted that in relation to severance of diplomatic or consular relations, a “State wishing to invoke supervening impossibility of performance would have to make out a case in accordance with the conditions laid down in article [61]”. Theoretically speaking, the severance of diplomatic or consular relations could also affect treaties if it qualifies as FCC. However, the drafters of the VCLT did not appear to have intended such an application. This is arguably due to the desire to ensure treaties are only affected by severance of diplomatic or consular relations if the strictest threshold of “impossibility” is met. In other words, the omission of applicability of FCC to art. 63 was a policy decision, and not due to theoretical incompatibility.
117. Supra note 77.
118. See Official Records of the UNGA (Sixth Committee), 65th Session, Summary Record of the 23rd Meeting, UN Doc. A/C.6/65/SR.23 (2010) at para. 93 (Cuba); ILC Report 2010, supra note 57, UN Doc. A/CN.4/622 (2010) at 24 (Cuba); Official Records of the UNGA (Sixth Committee), 66th Session, Summary Record of the 24th Meeting, UN Doc. A/C.6/66/SR.24 (2011) at para. 29 (Cuba).
119. Caflisch's First Report (2010), supra note 14 at para. 46.
120. Compare Part I(B.1) above.
121. Interestingly, with respect to the definition of “armed conflict” under art. 2 (Use of Terms) of the EACT Draft Articles, the Second Rapporteur was himself uncomfortable with mere cross-referencing to another international instrument. He opined that “[such an] approach would not be ideal; references to other texts make the draft articles abstract and difficult to digest” (Caflisch's First Report (2010), supra note 14 at para. 20). It is not clear why this same concern did not bother him with respect to art. 18.
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127. Vienna Convention on the Law of Treaties between State and International Organizations or Between International Organizations, 21 March 1986, UN Doc. A/CONF.129/15 [VCLTSIO].
128. Commentary to art. 61 of VCLTSIO, Yearbook of the ILC (1982), Vol. II, Part 2 at 59, para. 3.
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130. See supra note 82, and the main text accompanying supra notes 111−12. See also Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 18th Meeting, UN Doc. A/C.6/63/SR.18 (2008) at para. 21 (USA).
131. This was a major concern during the debates regarding art. 63 of the VCLT. See e.g. Yearbook of the ILC (1966), Vol. I, Part 2 at 108−11, paras. 70, 73, 85, 101. This is also a concern of a few states regarding the EACT Draft Articles. See e.g. ILC Report 2010, supra note 57 at 2 (China) (“[The draft articles on EACT] should be used only to supplement the [VCLT] and not to change the content of that Convention.”); Effects of Armed Conflicts on Treaties: Comments and Information Received from Governments (Addendum), UNGA (ILC), 62nd Session, Report of the ILC, UN Doc. A/CN.4/622/Add.1 (2011) at 2 (Iran).
132. See para. 5 of Commentary to Article 63 (then 65A) that “it … seems necessary to recognized that cases of supervening impossibility of performance may occur in consequence of the severance of diplomatic relations” (Yearbook of the ILC (1964), Vol II at 45).
133. Yearbook of the ILC (1966), Vol. II at 77 (Comments by the Government of the United Kingdom) and 108, paras. 60, 73, 94.
134. Ibid., at 78, para. 4, and Yearbook of the ILC (1966), Vol. I, Part 2 at 106, para. 39. The Rapporteur considered either (i) expanding the article codifying SIP to go beyond “disappearance or destruction of object”, or (ii) rephrasing the article governing severance of diplomatic or consular relations to cover disappearance of “the means necessary” for the application of the treaty.
135. Yearbook of the ILC (1966), Vol II, supra note 133, at 212, para. 10.
136. Supra note 116.
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138. Compare Part II(B.1(b)) above.
139. Ibid.
140. See e.g. Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 18th Meeting, UN Doc. A/C.6/63/SR.18 (2008) at para. 43 (Greece); Official Records of the UNGA (Sixth Committee), 63rd Session, Summary Record of the 16th Meeting, UN Doc. A/C.6/63/SR.16 (2008) at para. 74 (Italy).
141. In fact, if the objective standard of “incompatibility” with the treaty was also applicable, any reference to FCC would be rendered completely otiose, since the former does not require establishing the additional element of a radical transformation of the extent of obligations. But as things currently stand, the test of “incompatibility” is only expressly provided for vis-à-vis a state exercising its inherent right of self-defence. See supra note 11, EACT Draft Article 14. It is not clear whether such a standard is also concurrently applicable in non-self-defence instances.
142. See Caflisch's First Report (2010), supra note 14 at para. 46, where the Second Rapporteur responded that the changes proposed by the Belarus delegation “seem unnecessary”.
143. Compare Part II(B.1.(b)) above.
144. This is to prevent the difficulty highlighted in Part I(C.2) above from arising in the future.
145. The effect of the “categorization” approach is that certain treaties, by virtue of their subject matter, are implied or presumed to subsist in their operation. See supra note 11, EACT Draft Article 7. But how can such a presumption be rebutted? As the Second Rapporteur himself admitted:
“treaties do not continue in operation simply because they fall into one of the listed categories” and that any list is “indicative and does not suggest that the kinds of treaties mentioned would never be affected by the outbreak of an armed conflict”.
Caflisch's First Report 2010, supra note 14 at para. 53. It is submitted that the presumption may be rebutted if the requirements of either subparas. (a) or (b) are fulfilled.
146. Supra note 58.
147. Official Records of the UNGA (Sixth Committee), 62nd Session, Summary Record of the 20th Meeting, UN Doc. A/C.6/62/SR.20 (2007) at para. 32.
148. See the main text accompanying supra note 131.
149. Official Records of the UNGA (Sixth Committee), 60th Session, Summary Record of the 19th Meeting, UN Doc. A/C.6/60/SR.19 (2005) at para. 6.
150. See supra note 11, EACT Draft Article 15.
151. Compare quote accompanying supra note 1. See also UN Doc. A/C.6/65/SR.23, supra note 5 at para. 55 (Russian Federation):
Some ambiguities concerning the operation of treaties during armed conflict could not be resolved in the draft articles because of the lack of settled customary norms and consistent practice. However, the draft articles could provided guidance that would make it possible for future practice to evolve within a clearer framework. [emphasis added]
152. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 56th Session, Supplement No. 10, Report of the ILC on the Work of its Fifty-third Session, Official Records of the UNGA, UN Doc. A/56/10 (2001) at 43.
153. Supra note 15.
154. Rosenne, supra note 26 at 69Google Scholar
Corten and Klein, supra note 1 at 1396Google Scholar
155. UN Doc. A/C.6/65/SR.23, supra note 5 at para. 51.
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