How War Affects Treaties between Belligerents: A Case Study of the Gulf War
![handle is hein.journals/emint7 and id is 213 raw text is: HOW WAR AFFECTS TREATIES BETWEEN
BELLIGERENTS: A CASE STUDY OF THE GULF
WAR
by
Michael K. Prescott*
I. INTRODUCTION
The effect of war on treaties between belligerent parties poses
one of the unsettled problems of international law.1 Legal scholars
consider this issue an obscure topic with only the vaguest guiding
principles.2 In the nineteenth century, most commentators con-
sidered war to ipso facto terminate treaties between belligerents.'
Since then, the prevailing view has changed tremendously to the
point where authorities now consider war to have only an occa-
sional impact on treaties. Currently, three theories exist regarding
the effect of war on treaties: First, treaties are ipso facto termi-
nated by war; second, treaties never terminate because of war; and
finally, some treaties terminate, others are suspended during war,
while still others are unaffected by war. The Vienna Convention on
the Law of Treaties4 does not address the effects of war upon ex-
isting treaties because the drafters considered the issue too com-
plex.5 The failure of the Convention to codify the law on this sub-
ject has added to the complexity of the matter.
War's effect upon treaties between belligerents, while a subject
on which much has been written, has been discussed only sporadi-
* B.A. in History and Political Science, Northwestern University, Evanston, Illinois
(1988); Candidate for J.D., Emory University School of Law, Atlanta, Georgia (1993); Sum-
mer Associate (1992) and starting as an Associate (September 1993) in the Corporate and
Banking Law Groups with the law firm of Licht & Semonoff, Providence, Rhode Island.
Techt v. Hughes, 128 N.E. 185, 191 (1920), cert. denied, 254 U.S. 643 (1920).
2 DANIEL P. O'CONNELL, 1 INTERNATIONAL LAW 286 (1965).
3 For the purposes of this Comment, war is defined as a contention between two or
more states through their armed forces, for the purpose of overpowering each other, and
imposing such conditions of peace as the victor pleases. LASSA OPPENHEIM, 2 OPPENHEIM
INTERNATIONAL LAW 202 (7th ed. 1952).
4 Vienna Convention on the Law of Treaties, May 23, 1969, art. 73, 1155 U.N.T.S. 331,
350, 8 I.L.M. 679, 707 [hereinafter Vienna Convention].
' Report of the International Law Commission on the Work of its Eighteenth Session,
[1966] 2 Y.B.INT'L' L. COMM'N 176, para. 29, U.N. Doc.A/CN.4/Ser.A/1966/Add.1.](ViewImageLocal?handle=hein.journals/emint7&div=15&collection=journals&method=preview&ext=.png&size=3)
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How War Affects Treaties between Belligerents: A Case Study of the Gulf War
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