Traités, États parties et Commentaires
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Commentaire of 2016 
Article 62 : Immediate effect
Text of the provision
The situations provided for in Articles 2 and 3 shall give immediate effect to ratifications deposited and accessions notified by the Parties to the conflict before or after the beginning of hostilities or occupation. The Swiss Federal Council shall communicate by the quickest method any ratifications or accessions received from Parties to the conflict.
Reservations or declarations
None
Contents

A. Introduction
3240  According to common Articles 2 and 3, the Convention is applicable in the following cases:
(a) declared war or any other armed conflict between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them (Article 2(1));[1]
(b) partial or total occupation of the territory of a High Contracting Party, even if the occupation meets with no armed resistance (Article 2(2));
(c) armed conflict not of an international character occurring in the territory of one of the High Contracting Parties (Article 3(1)).
Should one of these situations arise, Article 62 provides that the six-month interval which normally separates the ratification or accession of a State from the entry into force of the Convention[2] is dispensed with for any State party to that conflict.
3241  This provision is common to the four Conventions.[3] The rule of immediate effect therefore applies to all four Conventions.
3242  It should be noted that the Additional Protocols do not contain a corresponding provision. The question therefore arises as to whether the immediate effect principle would apply also to the Protocols and, in the affirmative, under which conditions.[4]
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B. Historical background
3243  Both of the 1929 Geneva Conventions contained similar provisions, but they referred only to ‘a state of war’.[5] The draft conventions adopted by the 1948 International Conference of the Red Cross in Stockholm expanded on the idea by referring to the situations defined in draft common article 2, which had not yet been divided into the current common Articles 2 and 3.[6]
3244  The Conference’s decision to divide draft common article 2 into two separate provisions raised the question of whether the provision regarding immediate effect should be modified to encompass situations of ‘civil war’ too.[7] The Conference voted on the issue and the decision was taken to make the provision also applicable to situations of armed conflict not of an international character.[8]
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C. Discussion
1. Immediate effect
3245  When a State is a Party to one of the situations provided for in common Articles 2 and 3, its ratification of or accession to the Convention takes effect immediately. Accordingly, the Convention enters into force for that State on the day of receipt by the depositary of the instrument of ratification or accession,[9] without the usual six-month delay.[10]
3246  If a State has already deposited its instrument of ratification or accession, and hostilities are breaking out or an occupation is under way before the expiry of the six-month waiting period, the Convention enters into force from the outbreak of hostilities or the beginning of the occupation.[11]
3247  Moreover, the wording of this provision does not seem to exclude the possibility of a ratification or accession taking immediate effect in a situation of ‘declared war’ in which no hostilities or occupation have yet taken place.[12]
3248  In line with the principle set forth in common Article 2, a ratification or accession takes effect immediately, even when another Party to the conflict is not party to the Conventions, regardless of whether or not that Party accepts to apply the Conventions on an ad hoc basis in accordance with Article 2(3). Even if no other Party to the conflict is party to the Conventions, the ratifying or acceding State becomes bound by the obligations incumbent on all High Contracting Parties.[13]
3249  The ‘immediate effect’ provided in the Geneva Conventions was applied by the depositary in the following cases:
– accession to the four Geneva Conventions by the Republic of Korea on 16 August 1966;
– accession to the four Geneva Conventions by the State of Eritrea on 14 August 2000;
– accession to the four Geneva Conventions and to the three Additional Protocols[14] by the Republic of South Sudan on 25 January 2013;[15]
– accession to the four Geneva Conventions and Additional Protocol I by the State of Palestine on 2 April 2014, as well as to Additional Protocol III on 4 January 2015.
2. The quality of ‘Party to the conflict’
3250  Under general international law, one of the tasks of the depositary of a treaty is to determine not only the initial date of entry into force of the treaty, but also the date at which the treaty enters into force for States becoming Parties at a later time.[16] Therefore, in view of Article 62, the depositary, while staying impartial,[17] also has to make a preliminary assessment of whether a State is a Party to a conflict at the time of the deposit of its instrument of ratification or accession in order to set the date of entry into force of the Convention for that Party.
3251  This task can be easy if the ratifying or acceding State declares itself to be a Party to a conflict; in that case, the depositary will probably take the same view.
3252  However, the depositary has no competence to make a final determination either of the quality of a State as a Party to a conflict or, in consequence, on the date of entry into force of the Conventions for that State, which would be binding upon the State concerned as well as on the other States Parties. Therefore, the depositary’s assessment may be challenged by another State, or even by the ratifying or acceding State itself if it had not publicly expressed its legal reading of the situation. At the time of writing, this has never arisen, but in such a case the depositary would have to ‘bring the question to the attention of the signatory States and the contracting States’, pursuant to Article 77(2) of the 1969 Vienna Convention on the Law of Treaties.[18]
3253  As regards the accession of the Republic of Korea on 16 August 1966, the depositary received a note verbale from the Korean embassy in Switzerland on 21 September 1966 stating that ‘the Republic of Korea, in view of the actual participation of its Armed Forces in the Vietnamese war, comes under the category of “the Parties to [the] conflict” prescribed in the respective provisions of Article 62 [of the First Convention, of Article 61 of the Second Convention, of Article 141 of the Third Convention, and of Article 157 of the Fourth Convention]’. The acceding State itself ‘therefore requested that the accession … shall take immediate effect, invoking the respective provisions of the said Articles’.[19]
3254  When depositing its instrument of accession on 14 August 2000, the State of Eritrea did not publicly express its position regarding its immediate effect. Nevertheless, on 4 September 2000 the depositary notified States Parties of this accession as follows:
On 14 August 2000, the State of Eritrea deposited with the Swiss Federal Council its instrument of accession to the Geneva Conventions of 12 August 1949 for the protection of war victims. According to Articles 62, respectively 61, 141 and 157 of the four Conventions, the situations provided for in Articles 2 and 3 shall give immediate effect to ratifications deposited and accessions notified by the parties to the conflict before or after the beginning of hostilities or occupation.
It is interesting to note that the depositary cited the provision on immediate effect without mentioning the actual date of entry into force of the Convention for the State of Eritrea.
3255  In its notification of 7 February 2013 following the accession of the Republic of South Sudan, the depositary set the date of entry into force of the Convention for that State as follows:
On 25 January 2013, the Republic of South Sudan deposited with the Swiss Federal Council its instrument of accession to the four Geneva Conventions and to their three Additional Protocols. Pursuant to Articles 62, respectively 61, 141 and 157 of the four Conventions, the accession by the Republic of South Sudan to the four Conventions and to their three Additional Protocols took effect on 25 January 2013.
3256  Similarly, the notification of the accession of the State of Palestine made on 10 April 2014 stated:
On 2 April 2014, the State of Palestine deposited with the Swiss Federal Council its instrument of accession to the four Geneva Conventions … and to their Additional Protocol [I]. Pursuant to Articles 62, respectively 61, 141 and 157 of the four Conventions, the accession of the State of Palestine to the four Conventions and to the Protocol I took effect on 2 April 2014.
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3. Communication by the quickest method
3257  As depositary, the Swiss Federal Council is to ‘communicate by the quickest method any ratifications or accessions’ to which immediate effect is given. This communication is made to all governments of the States party to the Conventions. Formerly, the depositary would transmit a draft text to the Swiss diplomatic representations to be communicated by them via note verbale to the governments concerned. Since the end of the 1960s, the depositary has prepared the final document itself, entitled ‘Notification’, dated and stamped, which is then transmitted to governments as is by the Swiss diplomatic representations.
3258  In the case of the immediate effect of a ratification or accession, the depositary deals with the instrument as quickly as possible and informs the Swiss representations of the urgency of its transmission. The representations should use the quickest method available.
3259  The ‘quickest method’ has evolved along with technological progress, as has the practice of depositaries; while at one time the quickest method would have been the telegram, nowadays it is email.
3260  In the four above examples in which accessions took immediate effect, the depositary notified the States Parties within a period ranging from a couple of days to a couple of weeks.[20]
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Select bibliography
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.
Ouguergouz, Fatsah, Villalpando, Santiago and Morgan-Foster, Jason, ‘Article 77: Functions of depositaries’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II, Oxford University Press, 2011, pp. 1715–1753.
Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, pp. 934–946 (Article 77).

1 - Article 2(1) also explicitly provides that the applicability of the Conventions in case of war, other armed conflict between High Contracting Parties or occupation is ‘[i]n addition to the provisions which shall be implemented in peacetime’.
2 - See Article 58(2) (Coming into force) and Article 61(1) (Notification and communication of accessions).
3 - See also Second Convention, Article 61; Third Convention, Article 141; and Fourth Convention, Article 157.
4 - See the commentaries on Article 95 of Additional Protocol I and Article 23 of Additional Protocol II.
5 - Geneva Convention on the Wounded and Sick (1929), Article 37; Geneva Convention on Prisoners of War (1929), Article 95.
6 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 50, p. 28.
7 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 373 (Romania).
8 - After some doubts were expressed (ibid. pp. 374–375 (Canada)), the vote on the issue was deferred to the Plenary Meeting. The decision of the Conference to include non-international armed conflict in the scope of the provision was passed by 28 votes to 2 with 10 abstentions and the article as a whole was adopted by 38 votes to none, with 2 abstentions (ibid. p. 386).
9 - Despite what the formulation of Article 62 might suggest, there is no difference between ‘deposit’ (of a ratification) and ‘notification’ (of an accession). The terms used merely reflect the wording of Articles 57 (Ratification) and 61 (Notification and communication of accessions); see the commentary on the latter, section C.1.
10 - For a discussion of this delay, see the commentaries on Article 58, section D, and Article 61, section C.2.
11 - For a discussion of these conditions, see the commentaries on common Article 2, sections D and E and common Article 3, section C. Hostilities amounting to a non-international armed conflict in the sense of common Article 3 would trigger the immediate applicability of the Convention as a whole, even though not all provisions are applicable to non-international armed conflicts.
12 - On the concept of ‘declared war’, see the commentary on common Article 2, section D.1.
13 - See Articles 1, 6, 23, 26, 40–43, 47–49 and 54.
14 - Regarding the Protocols, see the commentaries on Article 95 of Additional Protocol I and on Article 23 of Additional Protocol II.
15 - In addition, the Republic of South Sudan had already accepted the application of the Conventions on the basis of Article 2(3) (de facto application of the Conventions by a State not party); for further details see the commentary on that article, section F.2.
16 - See Vienna Convention on the Law of Treaties (1969), Article 77(f), which appears generally to reflect a codification of customary international law (Villiger, p. 945), and Ouguergouz/Villalpando/Morgan-Foster, pp. 1747–1748. On entry into force of the Conventions, see also the commentary on Article 58.
17 - See Vienna Convention on the Law of Treaties (1969), Article 76(2), which is an established rule of customary international law (Villiger, p. 932).
18 - See also Ouguergouz/Villalpando/Morgan-Foster, p. 1745.
19 - In its subsequent communication of 23 September 1966 to the States Parties, the depositary stated that the accession of the Republic of Korea took effect immediately following the request of the Korean Government, by note of its embassy of 21 September 1966 and pursuant to Articles 62, respectively 61, 141 and 157 of the four Conventions, and attached a copy of the instrument of accession and of the note verbale.
20 - Communication to the Swiss representations two days after receiving the note verbale of 21 September 1966 from the Republic of South Korea making clear its position; and notifications 21 days after the deposit of the instrument of accession by the State of Eritrea on 14 August 2000, 13 days after the deposit of the instrument of accession by the Republic of South Sudan on 25 January 2013, and 8 days after the deposit of the instrument of accession by the State of Palestine on 2 April 2014. Some more days might then be necessary for the information to reach the governments of the States Parties.