무력충돌이 조약에 미치는 영향에 대한 연구

The Effects of Armed Conflicts on Treaties : A Focus on ILC's the second reading of the draft Articles

Despite an increase in the number of treaties and changes in the modality of armed conflict, the effects of armed conflict on treaties remains unsolved and lacks a clear legal doctrine. There are several reasons why this is so, including the ambiguity of the Vienna Convention on the Law of Treaties (1969), inconsistency of state practices, and the non-existence judgment established in international court. To solve these problems, the International Law Commission (ILC) included the topic “Effects of armed conflicts on treaties” in its of work in 2004 and adopted a second reading of 18 draft articles, and an annex, together with commentaries in 2011. During the working process, several argumentative legal issues arose, such as whether to include the treaty relations of international organizations, whether to include the effect on treaties of non-international armed conflict, whether to include the intention of the parties on treaty interpretation, and whether to include an indicative list of categories of treaties in the annex. The ILC finally adopted draft articles taking into account the comments and observations of Governments and International Organizations. These draft articles are significant to achieve greater conceptual clarity with regard to this subject. They contain important theoretical rules and a large number of procedural prescriptions that provide practical, detailed procedures applicable in armed conflict. In addition, by affirming the general principle that "the existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties," the draft articles make it possible both to preserve a maximum of the peace-time status quo on treaties during armed conflict and provide legal stability and continuity in state relations. Moreover, these drafts maintain uniformity with rules in other areas of international law which are largely accepted, such as the Vienna Convention on the Law of Treaties or UN Charters. The Commission the second-draft articles to the General Assembly, together with the recommendation that the Assembly should (a) take note of the draft articles on the effects of armed conflicts on treaties in a resolution, and annex them to the resolution and (b) consider, at a later stage, the elaboration of a convention on the basis of the draft articles. Many states have had positive remarks about the ILC's recommendation in the Sixth Committee. Considering their nature and scope, ILC's the second reading of the draft Articles on "Effects of armed conflicts on treaties" are proper to adopt as conventions. Further research on state practices is required to solve the limitations of these draft articles and to ensure that states find ways to implement them.