MTA Law Working Papers


Anikó Szalai: The dichotomy of the laws of war and peace through the lens of the law of treaties

Relationship between the members of the international community and the law governing their affairs had been defined for centuries by whether they were in a state of war or in peace with each other. Differing and more abundant law pertained to the peaceful periods, which has been terminated or modified by the start of the state of war. Such sharp division between the state of peace and war is not apparent in the modern system of international law created in 1945. In practice we see that states do not always abide by international law and they can get “entangled” in many different kinds of armed conflict. In the time of armed conflict it is not only the law of armed conflicts that is applicable for them, but a wide array of treaty obligations. It is a clear aim by the beginning of the 21st century that armed conflicts shall have the least possible effect on the globalized relations of the international community. Nevertheless, when a state is involved in an armed conflict, the performance of certain international obligations would fully be incompatible with its national security- and war-interests. Furthermore, it can also be imagined that even if it would like to perform the formerly undertaken obligations, it cannot do so owing to the war situation. The sharp separation, dichotomy of the law of peace and war cannot be maintained in the 21st century.