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Commentary of 1987 
Accession
[p.1075] Article 94 -- Accession


General remarks

3713 Accession gives the Parties to the Conventions the possibility to bind themselves in a single act instead of doing so by the two-stage process of signature followed by ratification, as laid down in Articles 92 ' (Signature) ' and 93 ' (Ratification). ' It remains the only possible way for States which are not [p.1076] signatories, as the Protocol has no longer been open for signature since 13 December 1978. (1)

3714 This article was adopted by consensus both in Committee I and in plenary. (2)

Analysis of the article

' States entitled to accede '

3715 Only Parties to the Conventions are entitled to accede; by means of a reasonable and not unduly strict interpretation of this requirement of prior adherence to the Conventions, (3) there were three accessions to the Conventions and the Protocol simultaneously. (4)

3716 In view of the differences between accession, on the one hand, and signature followed by ratification, on the other hand, it is also self-evident that only a State which is not a signatory to the Protocol can accede to it.

' Opening the Protocol for accession '

3717 Traditionally treaties were opened for accession only at the end of the period that they were open for signature, or sometimes only after the treaty had entered into force. For example, the Conventions had adopted the latter solution. (5) In accordance with the current trend in treaty law, the Protocol provided some latitude in allowing accession even while it was still possible to sign.

3718 Contemporary multilateral treaties frequently require the participation of a fairly large number of States in order to enter into force. (6) In view of the relative brevity of the period when signature was possible, States which were not signatories would run the risk of being prevented from acceding for a long time if they could only do so after the entry into force, which itself would then depend on achieving the given number of ratifications alone.

3719 So as not to stand in the way of States wishing to bind themselves at an early date, the Protocol therefore provided the possibility of accession, not only before it entered into force, but from the time it was open for signature. Article 94 does not explicitly mention the deferment period, as does Article 92 ' (Signature). ' [p.1077] However, it was understood by the Conference that the Protocol would not be open for accession before being open for signature. (7)

3720 As it happens, the arguments given above for such flexible arrangements in treaties in general do not necessarily explain why this facility exists here, as the participation of only two States was sufficient for the Protocol to enter into force in accordance with Article 95 ' (Entry into force), ' paragraph 1. On the other hand, the deferment period of six months before opening the Protocol for signature constituted an argument in favour of opening it at the same time for accession: during this period States could evaluate the consequences of participating in the Protocol to their own satisfaction and decide to accede to it. One may recall that one instrument of accession was indeed deposited during the period that the Protocol was open for signature. (8)

' The nature of accession '

3721 Accession is the single act definitively expressing the consent of a State to be bound by the Protocol and making it applicable to that State's relations with the other Contracting Parties. Thus, like ratification, it requires a thorough examination on the merits, and a number of internal procedures laid down by the constitution of every State must be carried out.

3722 Moreover, the preparations for accession can already be accompanied by the development of measures for the execution of obligations such as those envisaged in Article 80 ' (Measures for execution); ' at least a preliminary study of such measures is indispensable in the examination of accession. On the other hand, their final preparation and implementation do not become legal obligations until the Protocol has been acceded to or even until it has entered into force for the State concerned. (9)

' The form of accession '

3723 The instrument of accession must be deposited by the diplomatic representatives of the country concerned with the Swiss federal Council, or transmitted in the form of a written communication. (10)

[p.1078] ' Reservations and declarations '

3724 The instrument of accession must also mention any reservations and declarations that may be made. (11) A declaration in accordance with Article 90 ' (International Fact-Finding Commission), ' paragraph 2 (a), can be made at the time of accession, or at any time thereafter.

' Notification by the depositary '

3725 The depositary will notify the deposit of every instrument of accession, as well as any reservations and declarations made on accession in accordance with Article 100 ' (Notifications), ' sub-paragraphs (a) and (c). As of 31 December 1984, there were 30 accessions to the Protocol, without any declarations in accordance with Article 90 ' (International Fact-Finding Commission), ' paragraph 2 (a), and five were with reservations or declarations. (12)

' B.Z. '


NOTES (1) [(1) p.1076] Cf. commentary Art. 93, supra, pp. 1071-1072, for the other ways in which the Protocol can be made applicable in a definitive manner, ad hoc, or provisionally;

(2) [(2) p.1076] O.R. IX, p. 473, CDDH/I/SR.76, para. 3; O.R. VI, p. 351, CDDH/SR.46, para. 68;

(3) [(3) p.1076] On this point, cf. commentary Art. 92, supra, pp. 1068-1069;

(4) [(4) p.1076] As of 31 December 1984. One State simultaneously succeeded to the Conventions and acceded to the Protocol, but this is even less debatable;

(5) [(5) p.1076] Art. 60/59/139/155 common to the Conventions;

(6) [(6) p.1076] Thus for example, the Vienna Convention on the Law of Treaties of 23 May 1969 itself requires 35, in accordance with Art. 84 (Entry into force), para. 1;

(7) [(7) p.1077] O.R. VI, p. 351, CDDH/SR.46. para. 69; pp. 361 and 378-379, id., Annex (Australia and Japan);

(8) [(8) p.1077] Libya, 7 June 1978;

(9) [(9) p.1077] Cf. Art. 95;

(10) [(10) p.1077] For an overall picture of the functions of the depositary, cf. commentary Art. 100, infra, p. 1113;

(11) [(11) p.1078] On the general question of reservations to the Protocol, cf. introduction to this Part, ' supra, ' pp. 1059-1065;

(12) [(12) p.1078] For the list of accessions, with references to all reservations or declarations made, cf. infra, p. 1549;



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