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Commentary of 1987 
[p.1093] Article 97 -- Amendment

[p.1094] General remarks

3776 The inclusion in the Protocol of an article providing for the possibility of amendment corresponds with a general trend in recent multilateral treaties. (1) Part IV of the Vienna Convention on the Law of Treaties of 23 May 1969 (Amendment and modification of treaties -- Articles 39-41) contains some provisions on this subject which are applicable when a treaty does not provide otherwise. We will refer to these provisions below.

3777 The draft presented to the Conference (Article 86) did not give rise to any proposed amendment and only underwent one modification. Instead of making every amendment to the Protocol, including AnnexesI and II, subject exclusively to this article, the Conference laid down detailed rules separately for revision of Annex I (Article 98 -- ' Revision of Annex I '). The article under consideration here did not give rise to any discussion in Committee I or in the plenary Conference and was adopted by consensus in both. (2)

Paragraph 1

3778 In accordance with the terminology of the Vienna Convention, this article uses the term "amendment" and not "revision". In this context "amendment" usually means changes made to individual provisions,
while "revision" usually means changes affecting, rather, the whole of a treaty. However, this distinction is not always followed and has no legal significance. (3) Like the Vienna Convention, this article covers either case and is applicable to both isolated changes and all-embracing revisions.

3779 One distinction made by the Vienna Convention defines the scope of this article. An amendment changes a treaty so as to affect all the Parties; on the other hand, when the change to the treaty is only in the mutual relations of two or more Parties, the Vienna Convention refers to "modification". (4)

3780 It should be noted that this article only deals with amendments to the Protocol. However, a procedure for amending the Conventions could -- as they do not contain a provision to this effect -- apply this article by analogy and similarly make use of the remarks below.

[p.1095] 3781 The proposal for amendment may come from any Contracting Party, i.e., any Party to the Protocol, irrespective of the way in which it has become a Party. (5) This is not so for Parties to which the Protocol applies in relation to a conflict in progress, by virtue of an ' ad hoc ' acceptance on their part; (6) but this does not alter the fact that it would be desirable for such Parties to be invited as observers if a conference were to be called.

3782 The proposal may contain one or more amendments; it may come from one Contracting Party acting for itself or on behalf of several Parties, or it could come from two or more Contracting Parties acting jointly -- for example, following a meeting held in accordance with Article 7 ' (Meetings). '

3783 The fact that the depositary is designated to proceed to consult the Contracting Parties and the ICRC follows logically from its mandate. (7) That each Contracting Party has the right to participate in the decision about what is to be done regarding the proposed amendment does not require explanation; (8) the fact that the ICRC is also consulted is a recognition of its role in the codification and development of humanitarian law. Parties to the Conventions not bound by the Protocol are not consulted, but in accordance with Article 100 ' (Notifications), ' sub-paragraph (c), the depositary informs them of the proposed amendment and of the consultation relating to it.

3784 The consultation will in fact consist of submitting the proposed amendment and asking each of the Contracting Parties to give its opinion, within a given period, on convening a conference to examine the proposal. (9) If there are several proposed amendments, those consulted are free to give an overall view or to present their view on each proposal individually. (10)

3785 The article is silent regarding the way in which the depositary should decide, on the basis of the results of the consultation, whether it should convene a conference. (11) In the absence of any indications in the Official Records of the Conference it must be considered that the latter deliberately abstained from requiring approval by, for example, a third or by a majority of the Contracting [p.1096] Parties. (12) The decision of the depositary will be notified to the Contracting Parties, to the Parties to the Conventions, and to the ICRC.

Paragraph 2

3786 In the event of an affirmative decision, the depositary will invite all concerned to the conference, namely, the Parties to the Protocol and the Parties to the Conventions; it would be desirable also to invite Parties to which the Protocol applies by virtue of various types of declarations or acceptance as mentioned above. (13)

3787 The question of what rights the various delegations have is not explicitly resolved in this article. It might be thought that, as the Protocol is additional to the Conventions, all Parties to the Conventions should enjoy the right to make proposals, the right to take part in the discussions and the right to vote. (14) This would have the advantage of permitting every Party to the Conventions which is not bound by the Protocol -- but called upon to become a Party -- to take a decisive part in its evolution; that would undoubtedly help to avoid any development which might make it more difficult for such a Party to accept the Protocol later on.

3788 These arguments can be rightly countered with the argument that the Parties to the Protocol must be able to determine how this relatively autonomous treaty should be developed, a treaty by which they, and only they, are bound, and from which they alone derive rights and obligations.

3789 Reference to the Vienna Convention, in particular to the concept of amendment as given above, provides two additional arguments in favour of the last-mentioned solution. The first is that an amendment to a treaty is intended to change it with regard to the relations between all the Parties to that treaty; thus it relates only to Parties bound by the Protocol. The second argument is that the Vienna Convention grants Parties to a treaty the right to decide on the action to be taken with regard to a proposed amendment and to participate in any negotiations that may be held on that proposal; (15) with regard to the Protocol it must be deduced from this that the group of Parties which have a voice in the matter must be the same in both paragraphs of this article, and therefore it concerns only the Parties to the Protocol. (16)

3790 This solution leaves open what right, if any, other participants in the conference will have to put forward proposals and to take part in deliberations. This must be decided by the Parties to the Protocol, at the latest at the beginning of the conference; the same is true for the question of the majority needed for adopting [p.1097] any proposed amendment. On this point, unless the Parties to the Protocol decide otherwise, the required majority will be two-thirds of the Parties to the Protocol present and voting, i.e., without taking into account abstentions. (17) The amending agreement will decide on the question of the entry into force of the amendments with respect to Parties already bound by the Protocol and with respect to those which may become bound in due course. (18)

' B.Z. '

NOTES (1) [(1) p.1094] On amendment, revision or modification of treaties, cf. P. Reuter, ' Introduction au droit des traités ', op. cit., pp. 131-135 (paras. 193-201) and 151-152 (Notes 193-201); W.G. Grewe, "Treaties, Revision", ' Encyclopedia of Public International Law ', op. cit., Instalment 7, 1984, p. 499;

(2) [(2) p.1094] Cf. respectively, O.R. IX, p. 474, CDDH/I/SR.76, para. 5; O.R. VII, p. 16, CDDH/SR.47, para. 5;

(3) [(3) p.1094] On this subject, and particularly on the reasons for retaining the word "amendment" rather than "revision" in the Vienna Convention, cf. P. Reuter, ' Introduction au droit des traités ', op. cit., p. 151 (note 193); W.G. Grewe, op. cit., p. 501;

(4) [(4) p.1094] On such "modifications" of the Conventions and the Protocol, cf. commentary Art. 4, supra, p. 74;

(5) [(5) p.1095] Cf. commentary Arts. 93 and 94, supra, pp. 1071-1072 and 1075. The answer is less clear for a newly independent State which has made a declaration on provisional application of treaties, but this is rather unlikely in the case of the Protocol; if a meeting were called, such a State should nevertheless be invited in any case;

(6) [(6) p.1095] Cf. commentary Art. 96, paras. 2 and 3, supra, p. 1086;

(7) [(7) p.1095] For a summary of this mandate, cf. commentary Art. 100, infra, p. 1114;

(8) [(8) p.1095] This is confirmed by Article 40, para. 2(a), of the Vienna Convention;

(9) [(9) p.1095] Although it does not refer to this, the present article does not exclude the possibility that those consulted are also given a choice between a meeting and a written procedure in the case of minor amendments;

(10) [(10) p.1095] On the possibility of conditional approval of proposals in such cases, cf. commentary Art. 7, supra, p. 106;

(11) [(11) p.1095] No indication can be found either in the Vienna Convention, nor in the message sent by the Swiss Federal Council to the Swiss Federal Parliament on 18 February 1981, Chapter 211.73. The Convention on the use of certain conventional weapons of 10 October 1980 which required participation by 20 States to enter into force Art. 5, para.1) requires in this respect a majority consisting of at least 18 Contracting Parties (Art. 8,paras. 1 and 2). On conditional approval, cf. note 10;

(12) [(12) p.1096] Solutions adopted respectively by Art. 98, para. 2 (which gives the same right to the ICRC), and by Art. 7;

(13) [(13) p.1096] Cf. supra, pp. 1094-1095, and notes 5 and 6;

(14) [(14) p.1096] It may be recalled that in the Diplomatic Conference these rights were also granted States which, while not being Parties to the Conventions, were Members of the United Nations;

(15) [(15) p.1096] Vienna Convention, Art. 40, para. 2;

(16) [(16) p.1096] In the same sense, reference should be made to the Convention on conventional weapons, Art. 8, paras.1-2;

(17) [(17) p.1097] Cf. Vienna Convention, Arts. 39 and 9, para. 2. Similarly, the above-mentioned message from the Swiss Federal Council, chapter 211.73;

(18) [(18) p.1097] See the rules of the Vienna Convention which are applicable unless a different intention is expressed, Art. 40, para. 5;