Treaties, States Parties and Commentaries
  • Print page
Commentary of 2020 
Article 136 : Signature
Text of the provision
The present Convention, which bears the date of this day, is open to signature until February 12, 1950, in the name of the Powers represented at the Conference which opened at Geneva on April 21, 1949; furthermore, by Powers not represented at that Conference, but which are parties to the Convention of July 27, 1929.
Reservations or declarations
None
Contents

A. Introduction
5380  Article 136 establishes the period during which the Convention is open for signature and indicates who is entitled to sign it. The other three Conventions contain a similar provision.[1]
5381  Signature does not bind States to the Conventions. For States signatory to the Conventions, this is achieved by ratification, dealt with in the subsequent article.[2] For non-signatory States, this can be achieved through accession.[3]
5382  By signing the Conventions, States undertake not to defeat the object and purpose of the treaty they have signed, even if it has not yet entered into force.[4] Even though the subsequent article provides that ‘[t]he present Convention shall be ratified’, there is no obligation to proceed to ratification.
5383  As regards the signature of the Final Act of the Conference, this merely amounted to authentication of the instruments drawn up by the Conference.[5]
Back to top
B. Historical background
5384  The wording of the provision is identical to that of the draft adopted by the 17th International Conference of the Red Cross in Stockholm in 1948.[6] It was adopted by the plenary of the Diplomatic Conference without much discussion.[7]
5385  The provision is nearly identical to provisions in the 1929 Geneva Conventions.[8] However, whereas the 1929 Conventions used the word ‘countries’, the draft as well as the text finally adopted by the Conference uses the term ‘Powers’. The documents do not indicate whether this difference was meant to be substantive. However, in the follow-up practice of the depositary and the Parties to the Conventions, ‘Powers’ was used to mean ‘States’. The only substantive difference with the two 1929 Conventions is that the latter were open to signature only by States represented at the Diplomatic Conference, whereas the present provision opens the possibility for a larger number of States to sign, in addition to those attending the Conference.[9] States that did not attend the Conference but were Parties to the 1929 Geneva Convention on Prisoners of War can also sign the Third Convention within a period of six months.[10]
5386  For the First Convention, the possibility of signing was extended to States that did not attend the Conference but were Parties to the 1864, 1906 or 1929 Geneva Conventions for the Relief of the Wounded and Sick in Armies in the Field. States that were Parties to these or to the 1907 Hague Convention (X) could sign the Second Convention. As mentioned, States that were Parties to the 1929 Geneva Convention on Prisoners of War could sign the Third Convention. This was not the case for the Fourth Convention because no convention on the protection of civilians existed before 1949.[11]
Back to top
C. Discussion
1. Date of the Convention
5387  Article 136 states that the Convention bears the date of the day mentioned in the final clause, namely 12 August 1949. The other three Geneva Conventions adopted by the Diplomatic Conference of 1949 also bear this date. The final vote on the Convention by a plenary meeting of the Conference was held one day earlier, on 11 August 1949.[12] On 12 August, the closing session of the Conference was held, during which the delegations signed the Final Act as a means of authenticating the text.[13] Those delegations that were mandated to do so by their governments could also sign the Convention.[14]
5388  The Swiss Federal Council assumed its responsibilities as depositary of the Geneva Conventions as from the time of the adoption of their texts on 12 August 1949.[15]
5389  The article gave States an opportunity to sign the Convention up to 12 February 1950 and 61 States signed the Convention during this period. This opportunity extended not only to Powers represented at the Conference, but also to those that, although absent from Geneva, were Parties to the 1929 Geneva Convention on Prisoners of War.[16] States that have not signed the Convention may become Parties to the Convention by acceding to it.[17]
5390  As several States at the Conference had asked for a delay to enable them to subject the adopted texts to a final examination before signing, it was decided to hold a second signing ceremony on 8 December 1949.[18]
Back to top
2. Effects of signature
5391  Signatory States are not bound by the Convention until they have ratified it. By providing for ratification in the subsequent Article 137, the Convention implicitly excludes the possibility for a State to express its consent to be bound solely by signature. Therefore, it was not necessary for the signatories to explicitly sign ‘subject to ratification’.
5392  Even though signature was therefore not the final expression of the consent to be bound, it was nevertheless not without legal effect. The act of signature marks the agreement of the signatories to a text which cannot thereafter be altered in substance.
5393  Moreover, pursuant to customary international law and the 1969 Vienna Convention on the Law of Treaties, signatories have an obligation not to defeat the object and purpose of the treaty they have signed, even if it has not yet entered into force.[19] The importance of this act cannot therefore be disregarded.
5394  Certain delegations made reservations at the time of signature.[20] These reservations did not remain in force, however, unless they were confirmed when the instrument of ratification was deposited.[21]
Back to top
3. Authorization to sign
5395  For a treaty signature to be valid, it must be made by a duly authorized representative of the State. Heads of State, heads of government and ministers for foreign affairs are considered as representing their State without having to produce full powers for the purpose of performing all acts relating to the conclusion of a treaty.[22] All other representatives have to produce full powers emanating from the competent authority of the State.[23] The Diplomatic Conference of 1949 elected a Credentials Committee, consisting of the representatives of seven States, which had to verify the credentials of the delegations wishing to sign the Conventions. This committee was unable to accomplish its task during the Conference but did so in time for the signing ceremony held on 8 December 1949.[24]
5396  For States which signed the Conventions after the second signing ceremony, the credentials were verified by the Swiss Federal Council in its capacity as depositary.
Back to top
Select bibliography
Aust, Anthony, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 89–92 (Signature) and 107–109 (Obligation not to defeat the object and purpose of a treaty prior to its entry into force).
Boisson de Chazournes, Laurence, La Rosa, Anne-Marie and Mbengue, Makane Moïse, ‘Article 18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force’, in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. I, Oxford University Press, 2011, pp. 369–403.
Bradley, Curtis A., ‘Treaty Signature’, in Duncan B. Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 208–219.
Distefano, Giovanni, and Henry, Etienne, ‘Final Provisions, Including the Martens Clause’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 155–188.
Rosenne, Shabtai, ‘Participation in the Geneva Conventions (1864–1949) and the Additional Protocols of 1977’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff, The Hague, 1984, pp. 803–812.
Schenker, Claude, Practice Guide to International Treaties, Federal Department of Foreign Affairs, Bern, 2015, pp. 22–24, https://www.fdfa.admin.ch/treaties.
Sinclair, Ian, The Vienna Convention on the Law of Treaties, 2nd edition, Manchester University Press, 1984, pp. 29–44 (The conclusion and entry into force of treaties).
United Nations, Office of Legal Affairs, Treaty Section, Summary of practice of the Secretary-General as depositary of multilateral treaties, UN Doc. ST/LEG/7/Rev.l, United Nations, New York, 1999, paras 101–119 (Full powers and signatures).
Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, pp. 132–146 (Article 7), 154–164 (Article 9), 165–171 (Article 10), 242–253 (Article 18), 320–338 (Articles 19–23 – Subsequent developments) and 339–348 (Article 24).

1 - See First Convention, Article 56; Second Convention, Article 55; and Fourth Convention, Article 151. These provisions differ in respect of the additional Powers that may sign the Convention.
2 - On ratification, see First Convention, Article 57; Second Convention, Article 56; Third Convention, Article 137; and Fourth Convention, Article 152.
3 - On accession, see First Convention, Article 60; Second Convention, Article 59; Third Convention, Article 139; and Fourth Convention, Article 155.
4 - Vienna Convention on the Law of Treaties (1969), Article 18(a), which may be considered declaratory of customary international law (Villiger, p. 252).
5 - See Vienna Convention on the Law of Treaties (1969), Article 10, which is declaratory of customary international law (Villiger, p. 171).
6 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 123, p. 100.
7 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 25, 30, 71, 113 and 373.
8 - See Geneva Convention on the Wounded and Sick (1929), Article 31, and Geneva Convention on Prisoners of War (1929), Article 90.
9 - A list of the ‘Powers represented at the Diplomatic Conference which opened at Geneva on April 21, 1949’ can be found in Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 158–170.
10 - Article 136 does not expressly identify the 1929 Convention on Prisoners of War as opposed to the 1929 Convention on the Wounded and Sick, both having been concluded on 27 July 1929. However, it is clear from the drafting history and surrounding provisions of the Third Convention that it was intended to be open for signature by Parties to the 1929 Convention on Prisoners of War.
11 - There were, however, the 1934 Tokyo Draft Convention on the Protection of Civilians and the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War. The Tokyo Draft Convention in particular served as an important basis for the discussions which led to the adoption of the Fourth Geneva Convention of 1949.
12 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 519. On the adoption of a treaty, see Vienna Convention on the Law of Treaties (1969), Article 9. On the customary status of Article 9, see Villiger, p. 163.
13 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 527–528. On the authentication of a treaty text, see Vienna Convention on the Law of Treaties (1969), Article 10, which is declaratory of customary international law (Villiger, p. 171).
14 - On that day, the four Conventions were signed by 16 countries. Additionally, one country signed the first three Conventions and another one the First, Third and Fourth Conventions. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 528.
15 - Vienna Convention on the Law of Treaties (1969), Article 24(4), which is declaratory of customary international law (Villiger, p. 348).
16 - This option was used by the Philippines and Poland, which were not present at the Conference, but which, as Parties to the 1929 Conventions, exercised their right to sign the 1949 Conventions on 8 December 1949. Furthermore, Paraguay, as a Party to the 1906 and 1864 Conventions, also made use of this option on 10 December 1949. Sri Lanka (then Ceylon) is not listed as having sent a delegation to the Conference, but it signed the Final Act and, on 8 December 1949, also signed the Conventions, without having been a Party to the earlier Conventions. This seems to indicate that partial attendance at the Conference was considered to be sufficient to fulfil the conditions for signature.
17 - See Articles 139 and 140 of the Convention. On accession to treaties in general, see Vienna Convention on the Law of Treaties (1969), Article 15.
18 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 526–527 and 532–537. On this occasion, the Convention was signed by 27 States.
19 - Vienna Convention on the Law of Treaties (1969), Article 18(a), which may be considered as declaratory of customary international law (Villiger, p. 252). This rule applies until a State ‘shall have made its intention clear not to become a party to the treaty’. For further commentary, see Boisson de Chazournes/La Rosa/Mbengue and Villiger, pp. 242–253 (Article 18).
20 - Reservations at the time of signature were made to: First Geneva Convention, Articles 3, 10, 11, 13 and 38; Second Geneva Convention, Articles 3, 10, 11 and 41; Third Geneva Convention, Articles 3, 4, 10, 11, 12, 60, 66, 85, 99, 100, 101 and 118(1); and Fourth Geneva Convention, Articles 3, 11, 12, 44, 45, 46 and 68. For the text of these reservations, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 342–357. A substantive discussion of the reservations appears in the commentaries on the articles concerned. See also the commentary on Article 137, section C.2.
21 - See, in general, Vienna Convention on the Law of Treaties (1969), Article 23(2), which appears well established as customary international law (Villiger, p. 325). For a further discussion of reservations to the Geneva Conventions, see the commentary on Article 137, section C.2. The text of the reservations is available on the websites of the depositary (https://www.fdfa.admin.ch/depositary) and the ICRC (https://www.icrc.org/ihl).
22 - Vienna Convention on the Law of Treaties (1969), Article 7(2), which reflects customary international law (Villiger, p. 146).
23 - For a definition of the term ‘full powers’, see Vienna Convention on the Law of Treaties (1969), Article 2(1)(c).
24 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 518 and 532–533.