Treaties, States Parties and Commentaries
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Commentary of 1958 


1. ' First and second sentences -- Conditions, costs '

After laying down the general principle and defining the procedure for applying it, Article 36 sets forth a number of safeguards which apply to individual and collective departures alike. It should be noted, however, that individual departures will in most cases be impossible; in the interests both of protected persons and of the Detaining Power, their departure will almost always be organized on a collective basis. Article 36 is primarily intended to meet such cases.
It begins by laying down that departures -- that is the actual movement of those concerned -- are to be carried out under satisfactory conditions as regards safety, hygiene, sanitation and food. At the beginning of a war it should be possible to meet these requirements without any difficulty; the destruction of means of transport and the economic disorganization of the country may, however, soon make it difficult to carry out the measures prescribed by the Convention. Whatever the circumstances, the State of residence must take all [p.240] necessary precautions to avoid endangering the life and health of the protected persons and to ensure that their journey takes place under satisfactory conditions as regards food and health.
As a rule the cost of transport is borne by the individuals concerned and there is no need for the State to take action as long as transport facilities are working normally (2).
During former wars financial difficulties, however, sometimes delayed repatriation operations and in 1949 the Diplomatic Conference, acting on a suggestion by the Central Office for International Transport by Rail (3), decided that all costs incurred from the point of exit in the territory of the Detaining Power were to be borne either by the country of destination or by the country of which the protected persons were nationals.
This system of financing is important where the journeys are long or take place by sea, as the expenditure involved is then often considerable. It will prevent protected persons from being in practice deprived, through lack of financial resources, of their right to leave the territory.
The Convention makes no stipulation concerning the cost of travel to the frontier of the Detaining Power. It must be concluded, therefore, that in general they are to be borne by the protected persons. However, if lack of financial resources were to prove an obstacle to their departure it would be incumbent on public authorities of the country in which the people concerned were still living to take all necessary measures to facilitate their departure, either by reducing their fares or by informing the Protecting Power for possible action.

2. ' Third sentence -- Special agreements '

In many cases the departure of protected persons will be able to take place without any action on the part of States, in particular when they leave individually at the beginning of a war, during the period which may elapse between the declaration of war and the opening of actual hostilities. Departures may also be easier if there is a neutral country bordering on the country of residence.
The position is more difficult when there has been no declaration of war or if departures have to take place during hostilities, and it will be particularly, awkward when the frontiers are closed as a result of military operations. Under such circumstances the protected persons will only be able to leave the territory where they have been [p.241] living in organized groups, and that of course implies action and assistance by the States concerned.
The last sentence of the paragraph refers to this contingency when it envisages the possibility of settling the practical details of such movements by special agreements between the Powers concerned. The complicated practical problems connected with such moves demand that the greatest possible use be made of this procedure which will in many cases be a necessity. Although the Article does not expressly state that the assistance of a neutral intermediary is to be sought, it is tacitly assumed. The neutral country called in may be the Protecting Power or any other neutral power, and its good offices will be required not only in negotiating the agreements but also in supervising their execution. The same role might also be assumed by an organization such as the International Committee of the Red Cross which was, in fact, called upon on several occasions to render services of this nature during the Second World War. It should be noted that the Convention speaks of the "Powers concerned" and not simply of the "Parties to the conflict", thus implying
that special agreements may, if necessary, be concluded between the Detaining Power and a neutral State.


This paragraph was added by the Diplomatic Conference.
Although the point was not brought out very clearly in the discussions, it is reasonable to assume that the agreements referred to in this clause cover a wider field than those mentioned in the previous paragraph. The special agreements referred to in paragraph 1 are intended to make possible the departures authorized under Article 35 by settling certain practical details, whereas those referred to in paragraph 2 concern the whole group of problems connected with the repatriation of civilians. They are treaties in which the Parties to the conflict reach agreement on a general plan for the repatriation and exchange of their respective nationals. Belligerents might, for example, agree to exchange all their subjects living on the territory of the other Party, and for this purpose make financial arrangements different from those laid down in paragraph 1. Nor are such agreements necessarily confined to civilians; they may, for example, include wounded and sick prisoners of war. Reference should be made on this point to Articles 109 to 117 of theThird Geneva Convention of 1949. This reservation was introduced in order to make it clear that the arrangements provided for in paragraph 1 do not conflict with such agreements.
[p.242] It is nevertheless important to note that such special agreements cannot be allowed under any circumstances to limit the right accorded to all protected persons to leave the territory of the State in which they are residing, in accordance with the conditions laid down in Article 35 . That follows from the basic principle proclaimed in Article 7 which states that "no special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them".
Finally, it should be noted that the Convention contains a clause providing for the conclusion of special agreements for the release and repatriation of certain classes of internees (4).

Notes: (1) [(1) p.239] See ' Final Record, ' Vol. I, p. 119; Vol.
II-A, pp. 655, 739 and 823; Vol. II-B, p. 406; Vol. III,
p. 122;

(2) [(1) p.240] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 655;

(3) [(2) p.240] Ibid., Vol. III, p. 38;

(4) [(1) p.242] See Article 132, p. 510;