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Are Agreements for the Suspension of Hostilities Treaties?

Under the Vienna Convention on the Law of Treaties,[1]

“‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.[2]

The first question that must be asked of agreements for the suspension of hostilities is whether they are “international agreement(s) concluded between States”. The only answer that can be given to this question is that some purport to be while others are quite clearly not. The general armistice often is an international agreement, in the sense of being concluded by and being binding upon States, and it thus affords an instance of a treaty concluded between enemies in time of war. But what amounts to a general armistice, as in the Korean Armistice Agreement signed in 1953, may be only an agreement concluded between military forces and is thus, on the face of it, not an “international agreement concluded between States”. Nevertheless, the States whose armed forces conclude such agreements generally regard themselves as being bound by and as benefiting from the terms of such agreements. In any event, the military provisions of such an agreement could, as a rule, be violated only by the armed forces, and these are the very entities that purport to be parties to and bound by the agreement.

The second requirement is that a “treaty” in the sense of the Vienna Convention be in written form. Agreements for the suspension of hostilities often are written instruments, but we tend not to hear of the oral agreements for the surrender of forces or for a cessation ofhostilities to permit succour to the wounded and sick and the burial of the dead, because these are not recorded.

The Nuclear Tests cases[3] have provided a basis for thinking that there are many forms of international commitments that are not treaties in the technical sense of the Vienna Convention, and it may very well be that a customary international law of treaties, embracing a much wider range of international agreements than under the Convention, continues to exist and to give binding force to international undertakings of one sort or another.

If one looks to the policy of States with respect to the registration of agreements for the suspension of hostilities with the Secretariat of the United Nations under Article 102 of the Charter, one finds very scant evidence that States look up such agreements as treaties. The United Nations Treaty Series includes in the early volumes the armistices with Bulgaria,[4] Hungary,[5] and Finland,[6] the Instrument of Surrender signed by Japan,[7] the General Armistice Agreements (but not the preliminary truces) between the Arab States and Israel,[8] and the agreement between the Military Representatives of India and Pakistan regarding the establishment of a cease-fire line in Jammu and Kashmir[9] (but not the text of the cease-fire to which it gave effect). The indices to later volumes contain no references to armistices. In the case of the United States, the publication Treaties in Force for 197668 lists the armistices with Romania, Bulgaria, and Hungary, two agreements with Germany, and the Military Armistice Agreement in Korea—the last despite the fact that it was an agreement between commanders of armed forces. The Korean Armistice is there, but not the Paris Peace Agreements with Vietnam, which were signed on behalf of the United States by its Secretary of State and on behalf of the other three entities by foreign ministers. For the rest, one has to search the United Nations documentation, various collections of government documents, and privately compiled repertories of State practice in order to find the texts of various armistices and other instruments for the cessation of hostilities.

At least to the extent that certain of the agreements for the suspension of hostilities contain political terms and are concluded by States in written form, it would seem that they are treaties, even within the narrow definition of the Vienna Convention, and should be registered with the United Nations Secretariat and be printed in national treaty series. The casualness of States about discharging their obligation under Article 102 to register such treaties is such that the record with respect to agreements for the suspension of hostilities may be no worse than the record with respect to various forms of declarations, communiques and other political agreements which never find their way to registration.

In State practice and in national courts, the tendency is to treat armistice agreements as if they were treaties. National courts have done so,69 and the canons of interpretation that have been applied to the armistices of 1949 between Israel and the Arab States are those generally applied to treaties. Perhaps the only conclusion that can be drawn is that most general armistices and some agreements for the suspension of hostilities, concluded between States or governments, are treaties. That leaves unresolved what law governs those agreements not falling strictly in the category of treaties.

  • [1] Opened for signature at Vienna, 23 May 1969, UN Doc. A/CONF. 39/27 (1969).
  • [2] Art. 2, subpara. 1 (a).
  • [3] (Australia v. France), Judgment of 20 Dec. 1974, ICJ Reports 1974, p. 253 at p. 267;(New Zealand v. France), Judgment of 20 Dec. 1974, ICJ Reports 1974, p. 457 at p. 472.
  • [4] UNTS, Vol. 123, p. 223. 63 UNTS, Vol. 140, p. 397.
  • [5] 64 UNTS, Vol. 45, p. 311. 65 UNTS, Vol. 139, p. 387.
  • [6] 66 As cited note 23, supra. 67 UNTS, Vol. 81, p. 273.
  • [7] 68 Department of State Publication 8847 (1976), p. 388.
  • [8] 69 See, e.g., Garnier v. Sable (Tribunal correctionnel de Mayenne, 11 June 1941), in Kiss, Repertoire
  • [9] de la pratique frangaise en matiere de droit international public, Vol. 6 (1969), p. 991.
 
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