Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 59 : Relation to previous Conventions
Text of the provision
The present Convention replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations between the High Contracting Parties.
Reservations or declarations
None
Contents

A. Introduction
3191  Article 59 governs the relation of the First Convention to the 1864 Geneva Convention, the 1906 Geneva Convention and the 1929 Geneva Convention on the Wounded and Sick by providing that the First Convention ‘replaces’ these earlier Conventions in relations between States party to it.
3192  The Second, Third and Fourth Conventions contain similar provisions regulating the relation of these Conventions to previous treaties or parts of treaties with similar subject matter.[1]
3193  Additional Protocols I, II and III also include provisions clarifying the relation between them and the Geneva Conventions.[2]
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B. Historical background
3194  Beginning with the 1906 Geneva Convention, the earlier Conventions listed in Article 59 themselves contained provisions comparable to Article 59, governing the relation of these Conventions to their respective precursors.[3]
3195  The draft article that ultimately became Article 59 was submitted by the ICRC to the 1948 International Conference of the Red Cross in Stockholm. It reproduced the wording of the 1929 Geneva Convention on the Wounded and Sick, while adding the 1929 Convention to the list of earlier Conventions referenced.[4] The draft article was adopted by the Stockholm Conference and subsequently by the 1949 Diplomatic Conference without substantive changes.[5]
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C. Discussion
3196  Unlike the Additional Protocols,[6] none of the successive Geneva Conventions on the Wounded and Sick contains a provision prescribing a process for its amendment. If a treaty does not lay down a specific procedure for its amendment, it may be amended by agreement between its Parties.[7] Amendment is understood to refer not only to the partial, but also to the complete amendment of a treaty, a process sometimes referred to as ‘revision’ of the treaty.[8] The amendment of a treaty needs to be distinguished from the modification of a treaty.[9] Amendments are in principle meant to be applicable ‘as between all the Parties’ to the original treaty and all the Parties to the original treaty are entitled to become a Party to the amended treaty, even though not all of them may decide to do so. Modifications, in contrast, are agreements concluded by some Parties to a treaty with the intention to change the treaty ‘as between themselves alone’ (inter se).[10]
3197  Since the adoption of the very first Geneva Convention in 1864, the regulation of its subject matter, the ‘Amelioration of the Condition of the Wounded in Armies in the Field’,[11] was successively amended (or revised) by the 1906 Geneva Convention, the 1929 Geneva Convention on the Wounded and Sick and the 1949 First Convention. The First Convention’s purpose of ‘revising’ the earlier ones is specifically mentioned in the preamble.[12]
3198  When a treaty is amended, the consequences for the States party to the earlier treaty need to be considered. This is especially important with respect to multilateral treaties, such as the Geneva Conventions, where, at least initially, not all States party to the earlier treaty may decide to become party to the later treaty.[13]
3199  For that purpose, Article 59 provides that the First Convention ‘replaces’ the previous Conventions dealing with its subject matter ‘in relations between the High Contracting Parties’. Thus, between States party to the First Convention, that Convention prevails over the previous Conventions mentioned in Article 59 to which they may also be party, superseding those previous Conventions in their mutual relations.[14]
3200  At the time of writing of this commentary, Article 59 has fulfilled its purpose. With the 1949 Geneva Conventions having achieved universal ratification, the First Convention has become applicable in relations between all States, whether as the first convention on the wounded and sick to which a State has become party or in replacement of earlier conventions by virtue of Article 59. Potential new States which in the future may become party to the 1949 Geneva Conventions will normally not have been party to their precursors, so that a situation requiring governance by Article 59 will not arise.
3201  The universal ratification of the 1949 Geneva Conventions also means that earlier Conventions cannot be revived if a State party decides to denounce any of the 1949 Conventions, as these earlier conventions have been effectively replaced.[15] Rather, upon denunciation, a State, whether a Party to earlier conventions or not, would remain bound by customary international humanitarian law.[16]
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Select bibliography
Ardault, Karine and Dormoy, Daniel, ‘Article 40: Amendment of multilateral treaties’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II, Oxford University Press, 2011, pp. 978–984.
Aust, Anthony, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 192–204 (successive treaties) and 232–244 (amendment).
Benvenuti, Paolo, ‘Relationship with Prior and Subsequent Treaties and Conventions’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 689–700.
Brunnée, Jutta, ‘Treaty Amendments’, in Duncan B. Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 347–366.
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.
Dubuisson, François, ‘Article 59: Termination or suspension of the operation of a treaty implied by conclusion of a later treaty’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II, Oxford University Press, 2011, pp. 1325–1347.
ILC, Draft Articles on the Law of Treaties with Commentaries, text adopted by the International Law Commission at its eighteenth session, in 1966, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 38); see also Yearbook of the International Law Commission, 1966, Vol. II, pp. 187–274.
Rigaux, Anne and Simon, Denys, ‘Article 41: Agreement to modify multilateral treaties between certain parties only’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II, Oxford University Press, 2011, pp. 986–1008.

1 - See Second Convention, Article 58; Third Convention, Articles 134–135; and Fourth Convention, Article 154.
2 - See Additional Protocol I, Article 1(3); Additional Protocol II, Article 1(1); Additional Protocol III, Article 1(2).
3 - See Article 31 of the 1906 Geneva Convention and Article 34 of the 1929 Geneva Convention on the Wounded and Sick. For a similar provision, see also Article 4 of the 1907 Hague Convention IV, regulating the relation of that Convention to the 1899 Hague Convention II.
4 - See Draft Conventions submitted to the 1948 Stockholm Conference, draft article 47, p. 31.
5 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 47, p. 28, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, p. 217.
6 - See Article 97 of Additional Protocol I and Article 24 of Additional Protocol II, regulating the procedure for the amendment of the Protocols.
7 - A principle codified in Articles 39 and 40 of the 1969 Vienna Convention on the Law of Treaties; for a discussion, see e.g. Ardault/Dormoy; Aust, pp. 232–244; and Brunnée.
8 - See International Law Commission, p. 232, para. 3.
9 - See Vienna Convention on the Law of Treaties (1969), Article 41.
10 - For further details, see Rigaux/Simon, pp. 989–990, and Aust, p. 242. The successive Geneva Conventions on the Wounded and Sick were adopted with a view to the possible ratification or accession by all States party to earlier Conventions, as well as by other States; they are therefore not mere inter se modifications of the earlier Conventions.
11 - See the title of the 1864 Geneva Convention.
12 - See the commentary on the Preamble, section C. See also the documents sent to the States party to the 1929 Geneva Conventions and the 1907 Hague Convention (X) in preparation for the 1949 Diplomatic Conference, notifying them of the intention to convene a Diplomatic Conference on, inter alia, the revision of these Conventions; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 145–151.
13 - See ILC, Draft Articles on the Law of Treaties with Commentaries, p. 232, para. 1 (expressly referring to the amendment of the 1864 Geneva Convention).
14 - See ibid. p. 215, para. 6, with fn. 112, expressly referring to Article 59 of the First Convention.
15 - For details on the denunciation of the Geneva Conventions, see the commentary on Article 63. The conditions for an implied termination of a treaty by conclusion of a later treaty on the same subject matter between all States party to the earlier treaty are now codified in Article 59 of the 1969 Vienna Convention on the Law of Treaties; for a detailed discussion, see e.g. Dubuisson.
16 - See also Article 63(4).