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STATEMENT BY MR. KOICHI HASEGAWA
DELEGATION OF JAPAN
ON ITEM 80: REPORT OF THE INTERNATIONAL LAW COMMISSION
ON THE WORK OF ITS SIXTIETH SESSION
3 NOVEMBER 2005
UNITED NATIONS, NEW YORK
In my statement, I would like to address the two items, namely the Effects of Armed Conflict on Treaties and the Fragmentation of International Law.
EFFECTS OF ARMED CONFLICT ON TREATIES
My delegation appreciates the dedication shown by the distinguished Special Rapporteur, Professor Ian Brownlie, in dealing with the complex topic of "Effects of Armed Conflicts on Treaties". We also appreciate the Secretariat for the memorandum it has submitted, which will surely contribute to the understanding of the issue.
It came as a pleasant surprise for us to see an entire set of draft articles in the first report submitted by the Special Rapporteur this year. Even though the Special Rapporteur repeatedly cautioned that these draft articles were still at the preliminary stage, they provided a basis for discussion at the Commission and served as a useful guide in gaining an overview of this subject.
My delegation would like to make a brief comment on the proposed draft articles.
First, we are not certain whether it is correct under the United Nations Charter to assume that there is no difference in the legal effect concerning treaty relations between an aggressor State and a self-defending State. We expect careful consideration to be given to this point at the Commission next year.
Second, as to Article 4, we wish to note that, in the treaty-making process, it is usually not the case that States concluding treaties anticipate the possibility of armed conflict occurring between them, and consider the potential legal effects of such a situation. Therefore, it seems necessary to consider criteria other than "intention" as the Special Rapporteur proposed.
Third, as to the mode of suspension or termination proposed in Article 8, it is not clear whether it is appropriate to deal with these two concepts in a single article. We think it necessary for the Commission to study the possible difference between the legal effects of suspension and those of termination in this context, and decide whether there is a need to distinguish these concepts.
Having raised the foregoing points, we agree with the Special Rapporteur that the draft articles are still at the preliminary stage, and are not yet ready to be referred to the Drafting Committee. We are at this point satisfied with the work of the Commission on this topic, and are looking forward to the next report from the Special Rapporteur, taking into account the discussion conducted this year.
FRAGMENTATION OF INTERNATIONAL LAW
Now, let me turn to the topic of "Fragmentation of International Law."
I would like to commend the Study Group and its Chairman, Professor Koskeniemmi, for the progress they have made this year on the subject of "Fragmentation of International Law". My delegation would like to make a brief comment on this subject.
In recent years, as the issues covered by international instruments have become progressively more diverse and the number of international instruments has grown, it has become increasingly difficult to avoid the occurrence of overlap or conflict among different legal regimes. We notice, in particular, potential overlap or conflict between the rules concerning international trade issues and the rules concerning environmental issues and cultural issues. From the practitioner's viewpoint, the issue of fragmentation is not a subject of academic interest alone, but an important problem that must be addressed in the negotiations on new rules which may affect rules in other areas of international law. Therefore, we continue to pay close attention to this very ambitious topic.
States involved in the rule-making process should make effort to avoid overlap or conflict with other international instruments. However, even if such an effort is made, ambiguity in certain rules governing the law of treaties, especially those relating to lex specialis, can cause problems in producing new rules which are consistent with other international rules. Conflict among different sets of rules negatively affects the stability and credibility of international law. It is therefore essential for practitioners to have a clear understanding of the relationships among various legal instruments. In this regard, we appreciate the approach taken by the Study Group of concentrating on the issues relating to the Vienna Convention on the Law of Treaties.
In this year's session, the Commission exchanged views on the question of fragmentation, and the report of the Study Group has focused on three studies. We hope that the proposed program of work of the Study Group will facilitate our understanding on this topic, and we look forward to reading the outcome document.
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