Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 

' Paragraph 1 ' gives any Contracting Power the right to withdraw unilaterally from the community of States parties to the Convention. If there were no such provision, withdrawal would not be possible except by consent of the other Contracting Powers.
Since the first Geneva Convention came into existence almost a century ago, no State has ever withdrawn. It is inconceivable that a Power could ever repudiate such elementary rules of humanity and civilization.
Even if a State were to denounce the Convention and were not party to either the 1907 or the 1899 Convention, it would still be morally bound by the principles of the present instrument, which are today the expression of valid international law in this sphere.

' Paragraph 2 ' provides a procedure for denunciation similar to that laid down for accession.

[p.282] ' Paragraph 3 ' states that under normal peace-time conditions a denunciation will take effect only after one year has elapsed.
If the denouncing Power is involved in a conflict (1), the waiting period will be prolonged until peace has been concluded (2), or where the case arises, until the release and repatriation of protected persons are completed.
Although according to the actual letter of the Convention, the prolongation of the waiting period affects only denunciations notified in the course of conflicts, it may be assumed that the prolongation should also be applied whenever denunciation is notified less than one year before a conflict breaks out; such a denunciation would then become effective only at the end of the conflict.

' Paragraph 4 ' relates to the omission of the clausula si omnes contained in Article 18 of the Tenth Hague Convention of 1907. The reminder that humanitarian principles continue to apply, despite denunciation, thus limiting the consequences of the latter, is obviously closely related to the eighth paragraph of the Preamble to the Fourth Hague Convention of 1907 -- the so-called Martens clause.
As is self-evident, the denunciation has effect only in respect of the denouncing Power. It does not impair the obligations which the Parties to the conflict remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
Vague though it is, the clause is useful in that it reaffirms the value and permanence of the lofty principles underlying the Convention. Those principles exist independently of the Convention and are not limited to the field covered by it. The clause shows clearly, as we have said above, that a Power which denounced the [p.283] Convention would nevertheless remain bound by the principles contained in it in so far as they are the expression of inalienable and universal rules of customary international law.

* (1) [(1) p.282] The word "conflict" must be understood as
covering the various situations described in Articles 2
and 3;

(2) [(2) p.282] The wording used shows clearly that it is the
formal conclusion of the peace treaty which is meant and
not merely the ending of military operations. In cases of
conflicts not of an international character, it will mean
the effective re-establishment of a state of peace;