29 October 2008
H. E. Mr. Mohammad Khazaee
Ambassador and Permanent Representative
Of the Islamic Republic of Iran to the United Nations
Before the 6th Committee
On Agenda item 75
Report of the International Law Commission
On the work of its Sixtieth Session
Chapter V: The effects of armed conflicts on treaties
New York, 29 October 2008
In the name of God, the Compassionate, the Merciful
The delegation of the Islamic Republic of Iran would like to begin by acknowledging the outstanding contributions the International Law Commission has made to the codification and progressive development of international law. My delegation wishes to thank the Chairman of the International Law Commission, Mr. Edmundo Vargas Carreñ o, for his presentation of the report of the Commission on the work of its 60th session. We appreciate the significant achievements of the Commission in its 60th session.
I will concentrate on Chapter V of the report.
My delegation wishes to congratulate the Commission and the Special Rapporteur Professor Ian Brownlie, for having concluded the text of the draft articles on “Effects of armed conflicts on treaties” on first reading. The Commission managed to adopt on first reading at its last session, a set of 18 draft articles annexed by an indicative list of categories of treaties referred to in draft article 5. May I make a few comments regarding the draft articles as follows:
1. As we have stated in previous occasions, preserving the sanctity and integrity of international treaties is a recognized principle in international law, and any act inconsistent with the purposes and principles of the United Nations Charter should not affect their continuity and sustainability. My delegation reiterates its position that the mandate of the International Law Commission in considering the effects of armed conflicts on treaties is to supplement, and not to contradict or prejudice, the existing international instruments regarding the law of treaties, particularly the 1969 Vienna Convention on the Law of Treaties. We also endorse the announcement that “The emphasis of the effects is on the application or operation of the treaty rather than the treaty itself.”
2. However, the draft articles do not seem to duly reflect the achievements of international law as regards the legal stability and continuity of international boundaries. The treaty which establishes a boundary belongs, by its nature, to the category of treaties creating permanent regime or status. Such treaties create erga omnes obligations to which the international community as a whole, indeed all States, and not only the States parties to the treaty, are bound. As such, even a fundamental change of circumstances, armed conflict being one of them, may not be invoked as a ground for terminating or withdrawing from these treaties. I am referring here to the Vienna Convention of 23 May 1969 on the Law of Treaties and the Vienna Convention of 23 August 1978 on Succession of States in respect of Treaties. The drafters of these two instruments have made a clear distinction between treaties establishing boundaries and other treaties. For example, Article 62 of the Vienna Convention on the Law of Treaties, relating to a fundamental change of circumstances, makes it clear that such a change would not affect this category of treaties, and, thus, can not be invoked as a ground for terminating such treaties.
Similarly, Article 11 of the Vienna Convention on Succession of States in respect of Treaties relating to “Boundary regimes” specifies that “A succession of States does not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary”. In both instances, the sanctity of boundaries and their inviolability constitute the main premise of those provisions.
3. We regret that the Commission did not follow this approach in preparing the draft articles on the effects of armed conflicts on treaties, and did not use this opportunity to highlight, once again, the exceptional status of this category of treaties. It is true that “treaties establishing or modifying land and maritime boundaries” – to which should be added the treaties establishing or modifying river boundaries – figure prominently in the list of categories of treaties listed in article 5, meaning that these treaties, due to their subject matter and purpose, continue to apply even after the outbreak of hostilities. However, the mere reference to such treaties in an annex would not obligate the parties to an armed conflict, as it is an annexed “indicative” list whose legal status remains to be determined. We would have preferred that a specific reference is made to this category of treaties in draft article 3. Such reference would make it clear that treaties establishing boundaries are an exception. By doing so, the Commission would avoid the risk of sending a wrong message to any State which, for one reason or another, has ambitions to effect changes in the demarcation of its borders. It is imperative to note the critical function of treaties establishing boundaries in maintenance of peace and security.
4. This risk is even greater since the scope of the draft articles is not limited to international armed conflicts on treaties but also includes the effects of noninternational armed conflicts. In this regard, I reiterate the position of the Islamic Republic of Iran, which has always opposed the inclusion of non-international armed conflicts in the draft articles. Iran strongly believes that the draft articles should only govern the effects of international armed conflicts on treaty relations of a State. We note that internal armed conflicts may adversely affect the operation and implementation of treaties by impairing the ability of the concerned State to honour its treaty obligations vis a vis other State(s). We believe, however, that “the draft
articles on responsibility of States for internationally wrongful acts”, adopted in 2001 by the International Law Commission, particularly the provisions on the circumstances precluding wrongfulness, could cover situations resulting from the nonapplication of treaties in a non-international armed conflict.
5. Iran fully supports the presumption of legal stability and continuity of treaty relations and deems it to be central to the whole topic in question. We acknowledge the intention of the Commission to secure this principle by making a general statement in draft article 3 that “the outbreak of an armed conflict does not necessarily terminate or suspend the operation of treaties.” However, the use of two different terms in the title and in the chapeau of the draft article 3, I.e., “non-automatic” and “necessarily”, may contradict the Commission’s intention and compromise the aforementioned principle. To avoid any confusion as such, we would submit that the draft article 3 should be redrafted affirmatively.
6. As regards draft article 4, Iran cautions against the introduction of “the nature and extent of the armed conflict” as indicia of susceptibility to termination or suspension of treaties. The inclusion of such indicia may give the wrong impression that the more intensive and expanded an armed conflict becomes, the more probable it would be that the treaty relations between the belligerent States might be terminated or suspended. “The effect of the armed conflict on the treaty” could not be a viable determining factor, either. They are eventually left undefined, and the use of similar terms and phrases in draft article 2 (b) without providing clear definition has produced a sort of circular ambiguity, if I may say, as to the exact meaning of the terms.
Moreover, we don’t deem it appropriate to allow for “withdrawal” in this draft article, since it contradicts the content of draft article 3.
7. We also regret that the draft article 8 on “Notification of termination, withdrawal or suspension” makes no distinction between different categories of treaties. This seems to apply, unless stated otherwise, to all treaties, including treaties establishing boundaries. It can be interpreted, in our opinion, as a kind of invitation to “a State engaged in armed conflict intending to terminate or withdraw from a treaty”, to quote the term used in this draft article, to declare its intention for opening of hostilities. There seems to be a certain inconsistency between this provision and the annexed indicative list. Wouldn’t it be more rational if the initial right of the party to an armed conflict, namely notification, be limited to treaties other than those the subject matter of which involves the implication that they continue in operation, during armed conflict?
8. My delegation favors the inclusion of draft article 15. Clear distinction should be made between the situations of unlawful use of force by a State and that of selfdefense. It has been our principled position that the State resorting to unlawful use of force must not be allowed to benefit from consequences of its unlawful act.
9. Finally, we believe, Mr. Chairman, that the “without prejudice clause” contained in article 14 of the draft articles is not only superfluous, considering Articles 25 and 103 of the Charter of the United Nations, but also deals with a subject matter that falls outside the mandate of International Law Commission and should, therefore, be deleted. We are even more convinced that the practice of the Security Council at the recent international armed conflicts has always been consistent with respect for the
territorial integrity of States involved in armed conflicts. The numerous Security Council resolutions that require the parties to armed conflict to withdraw their armed forces to internationally recognized borders are indicative of such practice.
10. In conclusion, Mr. Chairman, my delegation underlines, once again, the critical importance of this topic, and hopes that the International Law Commission will take the concerns expressed in the 6th Committee into account while considering the second reading of the draft articles, and reaffirm the principles of territorial integrity of States and inviolability of borders and, thus, contribute to maintenance of international peace and security.
I thank you, Mr. Chairman.