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Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Signature
[p.1067] Article 92
-- Signature
General remarks
3686 In view of the wording of the subsequent article ("This Protocolshall be ratified"), Article 92
deals with "signature subject to
ratification", as in fact did the corresponding article common to the
four Conventions (56
/55
/136
/151
).
[p.1068] 3687 Signature does not definitively bind States to the Protocol; this is achieved by ratification and accession (1) dealt with in Articles
93
' (Ratification) ' and 94
' (Accession) '. (2) By signing the
Protocol, States undertake to seriously consider the possibility of
ratifying it; they are not obliged to proceed to ratification if they
come across major obstacles in the interim. (3)
3688 As regards the signature of the final Act of the Conference, this merely amounted to authentication of the instruments drawn up by the
Conference. (4)
3689 Article 92
was adopted by consensus both in Committee I and in a plenary meeting. (5)
Analysis of the article
' States entitled to sign '
3690 The Diplomatic Conference allowed all States Parties to the Conventions of 1949, and Members of the United Nations to participate
on an equal basis. It also admitted national liberation movements as
observers, insofar as they were recognized by the regional
intergovernmental organizations concerned. The same States and
liberation movements were entitled to sign the final Act in two
separate groups. (6)
3691 On the other hand, States not Parties to the Conventions, and liberation movements, are not permitted to sign and ratify the
Protocol or to accede to it. In fact:
a) as the Protocol is additional to the Conventions, it is not possible to be bound by the Protocol without being bound by the
Conventions; (7)
b) the fact that liberation movements do not have the status of
States explains the drafting of Article 96
' (Treaty relations
upon entry into force of this Protocol), ' paragraph 3, which
provides for a special procedure for them to accept the
Conventions and the Protocol.
[p.1069] 3692 This does not in any way alter the fact that the Protocol is a treaty open to universal membership, as are the Conventions which it
supplements; it should be noted that in fact the Conventions are at
this time the multilateral treaties which have the largest
participation (161 States as of 31 December 1984).
3693 The Protocol can only be signed by Parties to the Conventions. In view of the period of time which precedes their entry into force for
a State, this means that States must have ratified the Conventions or
have acceded to them at least six months previously. (8) Since 13
February 1950 it has no longer been possible to sign the Conventions,
and all signatories ratified them a long time ago. On the other hand,
despite the strict interpretation mentioned above, it may be conceded
that a State not Party to the Conventions could have simultaneously
acceded to the Conventions and signed the Protocol: (9) the Vienna
Convention on the Law of Treaties (10), common sense and humanitarian
considerations justify this interpretation.
' Period of deferment '
3694 The six month waiting period before the Protocol is open for signature is a rather exceptional feature: (11) in general a treaty
is open for signature from the moment it is adopted. Some delegations
explained how long it would take to complete the domestic procedures
to consider the acceptability of such a complex treaty, even at the
stage of signature, and the other delegations agreed. (12)
3695 Thus the idea of such a deferment was accepted to ensure a greater number of signatories as soon as the Protocol would be open
to signature. However, one delegation expressed the fear that such
deferral could have the opposite effect as Protocol I would be
forgotten by the ministries concerned. (13)
' Opening the protocol for signature '
3696 The adoption of an instrument produced at a Conference and the signature of its final Act often take place on the same day. In the
case of the Protocol it was [p.1070] adopted on 8 June 1977, (14)
which is regarded as the date of the Protocol, while the final Act
was signed on 10 June 1977. (15)
3697 The Protocol was opened for signature from 12 December 1977 to 12 December 1978; during this time 62 States signed it. (16)
' Reservations and declarations '
3698 At the time of signature of the Protocol, reservations or declarations could be made and some have actually been made. (17) If
they affect the undertaking of a State to be bound by the Protocol or
the interpretation which it intends to give to it, such reservations
and declarations must be confirmed at the time of ratification, if
they are to have effect. (18) However, this is not the case with
regard to the declarations under Article 90
' (International
Fact-Finding Commission), ' paragraph 2, sub-paragraph (a), which can
be validly made upon signature, (19) ratification or accession, or at
any time thereafter.
' Notification by the depositary '
3699 The signatures, as well as the reservations and declarations made at the time of signature, were notified by the depositary designated
in Article 93
' (Ratification) ' in accordance with Article 100
' (Notifications), ' sub-paragraphs (a) and (c). (20)
' B.Z. '
NOTES (1) [(1) p.1068] In this respect, refer to Articles 14 and 15 of the Vienna Convention on the Law of Treaties of 23 May
1969;
(2) [(2) p.1068] For the concepts of ratification, accession and succession, cf. the commentary on these articles,
infra, pp. 1071-1072 and 1077;
(3) [(3) p.1068] According to Article 18 (Obligation not to defeat the object and purpose of a treaty prior to its
entry into force), sub-para. (a), of the above-mentioned
Vienna Convention, a signatory State must refrain from
acts which would defeat the object and purpose of a treaty
until it shall have made its intention clear not to become
a party to the treaty;
(4) [(4) p.1068] Cf., in this respect, Article 10 (Authentication of the text), sub-para. (b), of the said
Vienna Convention;
(5) [(5) p.1068] O.R. IX, p. 473, CDDH/I/SR.76, para. 3; O.R. VI, p. 350, CDDH/SR.46, para. 62;
(6) [(6) p.1068] For the list of States and liberation movements participating in the CDDH, cf. O.R. I, Part I, pp. 4-7 and 15-113, Final Act, paras. 2-3, and appended signatures (the signatures of the Final Act also appear in
O.R. VII, pp. 336-337, CDDH/SR.59, para. 5);
(7) [(7) p.1068] On the additional character of the Protocol, cf. also the commentary on its title, supra, pp. 20-21 and
commentary Article 1, para. 3, supra, p. 39, and Art. 96,
para. 1, infra, pp. 1085- 1086;
(8) [(8) p.1069] Art. 58 61/57, 60/138, 140/153, 156 of the Conventions;
(9) [(9) p.1069] We will see below that the period during which the Protocol was open for signature has also
terminated. The possibility envisaged here has not arisen
during this period; however, an analagous case did arise,
namely the simultaneous accession to the Conventions and
the Protocol (cf. commentary Art. 94, infra., p. 1076);
(10) [(10) p.1069] Art. 40 (Amendment of multilateral treaties), para. 3;
(11) [(11) p.1069] The Convention of 10 October 1980 on the use of certain conventional weapons laid down the same
deferment period in Art. 3;
(12) [(12) p.1069] O.R. X, p. 240, CDDH/405/Rev.1, Annex III (CDDH/I/350/Rev.1), paras. 5-6;
(13) [(13) p.1069] O.R. IX, p. 508, CDDH/I/SR.77, Annex (Syria); O.R. VI, p. 385, CDDDH/SR.46, Annex (Syria);
(14) [(14) p.1070] By consensus, cf. O.R. VII, p. 194, CDDH/SR.56, para. 4;
(15) [(15) p.1070] Ibid., pp. 336-337, CDDH/SR.59, para. 5;
(16) [(16) p.1070] For the list of signatories, cf. infra, p. 1549;
(17) [(17) p.1070] Seven of the ten countries which made reservations or declarations only actually reserved the
right to formulate reservations or declarations on
ratification;
(18) [(18) p.1070] For the question of reservations and declarations as a whole, cf. the introduction to this
Part, supra, pp. 1059-1065;
(19) [(19) p.1070] This possibility was not used;
(20) [(20) p.1070] For the functions of the depositary in their entirety, refer to the commentary on this article, infra,
p. 1114;
GVALNWB2/ICRC
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