Treaties, States Parties and Commentaries
  • Print page
Commentary of 2016 
Article 61 : Notification of accessions
Text of the provision*
(1) Accessions shall be notified in writing to the Swiss Federal Council, and shall take effect six months after the date on which they are received.
(2) The Swiss Federal Council shall communicate the accessions 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
None
Contents

A. Introduction
3228  This article determines the time of entry into force of the Convention for an acceding State and contains two elements of a procedural nature: the form of accession and the tasks of the depositary in the context of accessions.[1]
3229  Since declarations of succession follow the same procedural rules as accessions,[2] the legal principles and practice described in the commentary on this article are also applicable to successions.
3230  This provision is common to the four Conventions.[3] The process for accession and the date of entry into force of the Conventions after accession by a State have been the same for the four Conventions.
Back to top
B. Historical background
3231  This provision is substantively the same as the corresponding provisions in the 1929 Geneva Conventions.[4] The ICRC draft adopted by the 1948 International Conference of the Red Cross in Stockholm submitted to the Diplomatic Conference used identical language but did not specify the six-month timeline.[5] This was added, as in Article 58 on entry into force after ratification, during the discussions in the Joint Committee of the Conference.[6] The provision thus completed was adopted unanimously.[7]
Back to top
C. Paragraph 1: Formal requirements for and effect of accession
1. Formal requirements for accession
3232  According to Article 61(1), accessions ‘shall be notified in writing’. This formulation is different from that in Article 57 on ratification, which requires instruments of ratification to be ‘deposited’.[8] This raises the question of whether the formal requirements for a valid accession are different from those for ratification.
3233  The term ‘notified’ might suggest that the document by which a State declares its accession to the Convention does not need to be as formal as an instrument of ratification. However, to express a State’s consent to be bound in a legally valid manner, the instrument has to contain the same basic elements as an instrument of ratification, irrespective of its form: a clear denomination of the treaty to which the State wishes to accede; the expression of its consent to be bound; possible reservations or declarations; and the original signature of a person authorized to represent the State for that purpose.[9]
3234  As the requirements for a valid accession are the same as for ratification, the depositary does not differentiate between instruments of ratification and instruments of accession when specifying the form or mode of transmission. In 1976, the ratification process for the Convention was concluded with the last signatory State depositing its instrument of ratification.[10]
Back to top
2. Effect of accession
3235  Like ratifications, an accession takes effect six months after it has been received by the depositary. Indeed, since a State becomes bound by the Conventions through an accession in the same way as a signatory through ratification, there would be no reason to stipulate a different timeline.
Back to top
D. Paragraph 2: Communication by the depositary
3236  Article 61 does not specify, as Article 57 does in the case of ratification, 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.[11] The depositary applies this differentiation between ratification and accession in its practice: while it draws up records of ratifications and sends them to States Parties, it does not follow this procedure for accessions. Besides the fact that establishing such records of accessions is not foreseen by the Convention, it is neither a task of depositaries under Article 77 of the 1969 Vienna Convention on the Law of Treaties or under customary international law, nor a common feature of other depositaries’ practice in this regard.
3237  Usually, the depositary confirms the receipt of an instrument of accession, the date of the deposit and the date of the entry into force of the Convention for the acceding State by means of a diplomatic note sent to that State.
3238  In addition, Article 61(2) requires that the depositary communicate an accession ‘to all the Powers in whose name the Convention has been signed, or whose accession has been notified’. In practice today, the depositary transmits a notification of the deposit of the instrument of accession to all States party to the Conventions through diplomatic channels. This notification contains information about the acceding State, the date of deposit, the date of entry into force of the Convention for the State in question and, if applicable, reservations and declarations of the acceding State. Nowadays, more and more depositaries, including the depositary of the Geneva Conventions, are using electronic means to make such notifications to States agreeing to this mode of transmission.
3239  According to Article 64 of the Convention, the depositary must inform the Secretariat of the United Nations of all ratifications, accessions and denunciations received.[12]
Back to top
Select bibliography
Aust, Anthony, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 101–103 (Accession) and 289–293 (Functions of the depositary).
Daillier, Patrick, Forteau, Mathias, Pellet, Alain, Müller, Daniel and Nguyen, Quoc Dinh, Droit international public, 8th edition, Librairie générale de droit et de jurisprudence (LGDJ), Paris, 2009, pp. 599–619 (State succession).
Schenker, Claude, Practice Guide to International Treaties, Federal Department of Foreign Affairs, Bern, 2015, pp. 18–19, available at https://www.fdfa.admin.ch/treaties.
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.
Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, pp. 934–954 (Article 77).

1 - On the nature and effect of accession, see the commentary on Article 60, section C.2.
2 - On succession, see the commentary on Article 60, section C.4.
3 - See also Second Convention, Article 60; Third Convention, Article 140; and Fourth Convention, Article 156.
4 - Geneva Convention on the Wounded and Sick (1929), Article 36; Geneva Convention on Prisoners of War (1929), Article 94.
5 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 49, p. 28.
6 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 71 (United States).
7 - See ibid. pp. 30, 113 and 373.
8 - The wording used in Article 57 is ‘ratifications shall be deposited’ (paragraph 1) and ‘the deposit of each instrument of ratification’ (paragraph 2).
9 - See also the commentary on Article 57, section C.1.
10 - This was the ratification by Bolivia, which had signed the Conventions on 8 December 1949, on 10 December 1976.
11 - On the content of such a record, see the commentary on Article 57, para. 3174.
12 - This obligation of the depositary stems from the fact that the Convention is registered with the Secretariat of the United Nations pursuant to Article 64 and to Article 102(1) of the 1945 UN Charter, according to which ‘[e]very treaty and every international agreement entered into by any Member of the United Nations … shall as soon as possible be registered with the Secretariat and published by it’.