Traités, États parties et Commentaires
Traités et Documents
Conventions de Genève de 1949 et Protocoles additionnels, et leurs Commentaires
Traités et Documents historiques
Convention (I) de Genève pour l'amélioration du sort des blessés et des malades dans les forces armées en campagne, 12 août 1949.
Article 57 : Ratification
Text of the provision*
(1) The present Convention shall be ratified as soon as possible and the ratifications shall be deposited at Berne.
(2) A record shall be drawn up of the deposit of each instrument of ratification and certified copies of this record shall be transmitted by the Swiss Federal Council to all the Powers in whose name the Convention has been signed, or whose accession has been notified.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
B. Historical background
C. Paragraph 1: Ratification
D. Paragraph 2: Record and communication
Only a State’s consent to be bound by a treaty can give it obligatory force and make it binding on that State. A State can express its consent to be bound by a treaty by different means, depending on the specific provisions of the treaty in question.
As used in Article 57, ratification is the formal act by which a State accepts a Convention it has signed previously, thereby establishing ‘on the international plane its consent to be bound’.
Article 57, which is a provision that is common to the four Conventions,
therefore complements the preceding article on signature.
For States not having previously signed the Convention, Article 60 provides for accession as the means of expressing consent to be bound.
Ratification becomes effective when the instrument of ratification is deposited with the depositary, which shows the will of the State concerned to be bound vis-à-vis the other States. Only the deposit of the instrument of ratification and not the authorization to ratify – which, under the law of most countries, must be given to the government by the parliament – has force under international law.
As signature does not bind a State definitively, its internal procedures are usually simpler, and the signature can be appended more easily. On the other hand, ratification commits the State, which must henceforth comply with all the obligations contained in the treaty once it enters into force. Ratification therefore requires a thorough examination of the treaty on its merits, and means that specific approval procedures laid down in a State’s domestic law must be followed.
However, the provisions of a treaty do not become legal obligations until it has entered into force in general and for the State concerned, pursuant to its provisions.
Nevertheless, the minimum obligation of every State, during the period between the deposit of its instrument of ratification and the entry into force of the treaty in general (and entry into force for that particular State) is to refrain from acts which would defeat the object and purpose of the treaty.
The provision contains two paragraphs addressed to different Parties. The first paragraph is addressed to the signatory States, whereas the second paragraph sets out procedural obligations for the depositary.
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B. Historical background
The wording of the provision is identical to that of the draft adopted by the 1948 International Conference of the Red Cross in Stockholm.
It was adopted by the Diplomatic Conference without much discussion.
The French term ‘
’ was changed to ‘record’ in the final English version of the provision.
The provision is substantially identical to provisions in the 1929 Conventions.
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C. Paragraph 1: Ratification
This paragraph contains, by means of the formulation ‘shall be ratified as soon as possible’, a pressing recommendation to each signatory to hasten the ratification procedure and not to intentionally delay its national approval procedures. However, notwithstanding the wording of the provision (‘shall be ratified’), the signature of a treaty subject to ratification, under general international law, does not legally obligate the signatory to ratify the treaty. It remains each State’s sovereign decision whether and when to ratify a treaty it has previously signed. The ratification process for the four Conventions was concluded in 1976, when the last signatory State deposited its instrument of ratification. Thereafter, States became party through accession or succession.
The provision also indicates where the instruments of ratification must be deposited. However, the formulation ‘at Berne’ is not very precise and is understandable only in conjunction with the second paragraph, the other final provisions and the final clause, by which the Swiss Federal Council is identified as the depositary of the Conventions.
The deposit can either be made in person by a representative of the State concerned, or the instrument can be transmitted to the depositary in writing through diplomatic channels. The current practice of the depositary, however, does not require these specific forms of transmittal. The instrument can also be sent by regular mail or other informal means.
The means of transmittal has no influence on the validity of the instrument.
The instrument of ratification must be signed on behalf of the State by a person authorized to represent the State for this purpose. Pursuant to international law and practice, heads of State, heads of government and ministers for foreign affairs are considered as representing their State in virtue of their functions and without having to produce full powers.
In line with the practice of the depositary of the Conventions and the Additional Protocols, as well as of other depositaries, instruments signed by other persons, e.g. a minister other than the foreign minister, or a deputy minister, must be accompanied by full powers.
The instrument of ratification must specify the treaty in question and clearly express the will of the State to be bound by the treaty and to comply with its obligations. If the signatory wishes to formulate one or more reservations, or has already done so at the time of signature, the instrument must also contain these reservations.
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At the time of the adoption of the Geneva Conventions, the international law on reservations was subject to controversy.
Based on the 1951 advisory opinion of the International Court of Justice in
Reservations to the Genocide Convention
, the 1969 Vienna Convention on the Law of Treaties provides that, when a State signs, ratifies or accedes to a treaty, it may formulate a reservation unless ‘the reservation is incompatible with the object and purpose of the treaty’ or the treaty contains specific provisions on the possibility of formulating reservations.
The Conventions contain no such provisions.
Reservations must be made in writing and sent to the contracting States and other States entitled to become Parties to the treaty.
A reservation made at the time that a treaty is signed subject to ratification must, in order to be valid, be formally confirmed when the treaty is ratified by the State which formulated the reservation.
On the other hand, it is not possible to formulate reservations later than upon ratification or accession.
It is the responsibility of every State concerned to determine whether any particular statement by another State constitutes a reservation.
In addition, every State also determines individually whether a reservation formulated by another State is compatible with the object and purpose of the treaty and, consequently, whether it wants to formulate an objection to that reservation.
A State may enter an objection to a reservation made by another State. Unless the State which formulates the objection clearly expresses its intention to the contrary, an objection by a contracting State does not prevent the treaty from entering into force between the State formulating the objection and the State which made the reservation, provided that at least one other contracting State has accepted the reservation.
However, ‘the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation’.
States which do not raise objections to a reservation are considered to have accepted it after a period of 12 months.
This is intended to give States enough time, once they have expressed their consent to be bound by a treaty – or, if they are already party to it, once they are notified of a reservation by another State – to examine the admissibility of reservations and to decide on a possible objection.
A reservation only applies as between the State making it and other States bound by the treaty that have accepted it. It therefore modifies the provisions to which it refers only in the relations between the Parties concerned.
The reservation does not modify the treaty provisions for the other Parties to the treaty
A reservation or an objection to a reservation may be withdrawn in writing at any time.
The withdrawal of a reservation becomes operative in relation to all other contracting States when they have received notice thereof.
The withdrawal of an objection becomes operative when notice thereof has been received by the State which formulated the reservation.
For a more detailed discussion of the reservations to the Geneva Conventions, see the commentaries on the specific provisions. In the case of the First Convention, reservations have been made with respect to Articles 3, 10, 11, 13, 38, 44 and 53.
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D. Paragraph 2: Record and communication
This paragraph provides instructions to the depositary on the procedures to be followed when a signatory deposits its instrument of ratification. The intention is to ensure that all signatories and acceding States are informed of the ratifications the depositary receives.
Pursuant to this provision, whenever an instrument of ratification was deposited, the depositary established a record signed by the head of the Treaty Section of the Swiss Ministry of Foreign Affairs, confirming the receipt of an instrument of ratification that was found to be in good and due form, and the date on which it was received. The original of this record was deposited, together with the instrument, in the depositary’s archives. Certified copies were transmitted to all signatories and acceding States, pursuant to the provision.
More recent conventions generally no longer require a record to be drawn up for every deposit of an instrument of ratification, which means that no formal document certifying the deposit of the instrument is established. Instead, simple notification to the States Parties by the depositary is considered to be sufficient. Such notification is usually provided in the form of a diplomatic note, informing the Parties to the treaty of the action that has taken place.
This is also the case for the Additional Protocols.
Lastly, Article 64 of the Convention requires the depositary to inform the United Nations Secretariat of all ratifications, accessions and denunciations received.
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Modern Treaty Law and Practice
, 3rd edition, Cambridge University Press, 2013, pp. 95–100 (Ratification), 114–144 (Reservations) and 283–296 (The depositary).
Boudreault, Lise S., ‘Les réserves apportées au Protocole additionnel I aux Conventions de Genève sur le droit humanitaire’,
Revue québécoise de droit international
, Vol. 6, No. 2, 1989–90, pp. 105–119, at 108–112.
Distefano, Giovanni, and Henry, Etienne, ‘Final Provisions, Including the Martens Clause’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds),
The 1949 Geneva Conventions: A Commentary
, Oxford University Press, 2015, pp. 155–188.
Pilloud, Claude, ‘Reservations to the Geneva Conventions of 1949’,
International Review of the Red Cross
, Vol. 16, No. 180, March 1976, pp. 107–124.
– ‘Reservations to the Geneva Conventions of 1949 (II)’,
International Review of the Red Cross
, Vol. 16, No. 181, April 1976, pp. 163–187.
Introduction to the Law of Treaties
, 2nd edition, Graduate Institute of International Studies, Geneva, 1995, pp. 77–84 (Reservations).
Practice Guide to International Treaties
, Federal Department of Foreign Affairs, Bern, 2015, pp. 29–30, available at
The Vienna Convention on the Law of Treaties
, 2nd edition, Manchester University Press, 1984, pp. 39–42 (Expression of consent to be bound by a treaty) and 51–82 (Reservations).
Swaine, Edward T., ‘Treaty Reservations’, in Duncan B. Hollis (ed.),
The Oxford Guide to Treaties
, Oxford University Press, 2012, pp. 277–301.
United Nations, Office of Legal Affairs, Treaty Section,
Summary of practice of the Secretary-General as depositary of multilateral treaties
, UN Doc. ST/LEG/7/Rev.l, United Nations, New York, 1999, paras 120–133 (Deposit of binding instruments).
Villiger, Mark E.,
Commentary on the 1969 Vienna Convention on the Law of Treaties
, Martinus Nijhoff Publishers, Leiden, 2009.
- See Vienna Convention on the Law of Treaties (1969), Articles 11–15. Although the Vienna Convention is dated 20 years after the Geneva Conventions and does not as such apply to treaties concluded before its entry into force (see Article 4), it is generally considered to codify customary international law.
- See Second Convention, Article 56; Third Convention, Article 137; and Fourth Convention, Article 152.
- For further details on signature, see the commentary on Article 56.
- For further details on accession, see the commentary on Article 60. States coming into being following a separation from another State or the dissolution of a State can also, instead of acceding, declare their succession to the preceding State with respect to an international treaty. The main difference between the two forms is that, with accession, the treaty obligations enter into force pursuant to the provisions of the treaty, whereas with succession, the obligations continue to be applicable to the new State as from the date of its coming into being, even if succession is declared at a later stage. This possibility, as a general principle, is not explicitly mentioned in the Convention, as is the case with most international treaties. For further information on succession, see also the commentary on Article 60. For the current status of the Conventions, see:
- According to Article 46 of the 1969 Vienna Convention on the Law of Treaties, ‘[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance’. This article can be assumed to be declaratory of customary international law (Villiger, p. 594).
- For details on the coming into force of the Convention, see the commentary on Article 58.
- On the effects of signature, see the commentary on Article 56, as well as Vienna Convention on the Law of Treaties (1969), Article 18, which may be considered as declaratory of customary international law (Villiger, p. 252).
Draft Conventions adopted by the 1948 Stockholm Conference
, draft article 45, p. 27.
Final Record of the Diplomatic Conference of Geneva of 1949
, Vol. II-B, pp. 25, 30, 71, 113 and 373.
- See Geneva Convention on the Wounded and Sick (1929), Article 32, and Geneva Convention on Prisoners of War (1929), Article 91.
- On accession, see Article 60.
- It can, for example, be deposited at the depositary’s office by an employee of the embassy of the State concerned, by private courier service, or by other means. It can also be deposited through an ICRC delegation. However, as with every other method of transmittal, the deposit will only be considered effective once the instrument reaches the depositary.
- See Vienna Convention on the Law of Treaties (1969), Article 7(2), which reflects customary international law (Villiger, p. 146).
- For a description of the form and content of instruments of ratification, see Aust, pp. 99–100.
- See Pictet (ed.),
Commentary on the First Geneva Convention
, ICRC, 1952, p. 404, and Villiger, pp. 262–264.
- Vienna Convention on the Law of Treaties (1969), Article 19. Although the Vienna Convention is dated 20 years after the Geneva Conventions and does not as such apply to treaties concluded before its entry into force (see Article 4), it is generally considered to codify customary international law. The articles on reservations, Articles 19–22 in particular, appear meanwhile to be well established as customary international law (Villiger, p. 325). For a more detailed description of the law on reservations and further references, see Aust, pp. 114–144; Reuter, pp. 77–84; Sinclair, pp. 51–82; and Swaine.
- Vienna Convention on the Law of Treaties (1969), Article 23(1). Usually, a State sends its reservations, as well as any objections or withdrawals of reservations and objections, to the depositary, which then informs the other contracting States and signatories in accordance with the duties entrusted to it by the specific treaty or by general international law.
- The 1969 Vienna Convention on the Law of Treaties defines a reservation as ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’ (Article 2(1)(d)).
- This does not preclude collective steps, in particular to obtain clarification of the meaning of a reservation. For an example of such a step through the intermediary of the depositary, see Pilloud, pp. 171–173; see also Pictet (ed.),
Commentary on the Third Geneva Convention
, ICRC, 1960, pp. 423–425 (in relation to Article 85 of the Third Convention). Nor does it preclude a court or tribunal from deciding on the admissibility of a reservation in a specific case, if it has jurisdiction.
- Vienna Convention on the Law of Treaties (1969), Article 20(4).
Article 22(3)(a). For example, Switzerland withdrew its reservations with regard to Articles 57 and 58 of Additional Protocol I on 17 June 2005, and Ukraine withdrew its reservations with regard to several articles of the Conventions on 30 June 2006.
- On the procedure followed for accessions or successions, see the commentary on Articles 60 and 61. Article 61 does not specify, as Article 57 does in the case of ratifications, that the Swiss Federal Council is to draw up a record of each accession, nor that it must transmit a copy of the record to other States. The depositary of the Geneva Conventions observes this distinction between ratification and accession in its practice.
- The depositary of the Geneva Conventions, like most depositaries nowadays, sends its notifications by electronic means. The depositary notifications since 1977 are available on
- See Additional Protocol I, Article 100; Additional Protocol II, Article 26; and Additional Protocol III, Article 15.
Voir le Commentaire de 1952