ICRC databases on international humanitarian law
  • Print page
Commentary - General principles and scope of application
    [p.33] Article 1 -- General principles and scope of application


    [p.34] General remarks

    35 This article lays down two general principles (paragraphs 1 and 2) and defines the material scope of application of the Protocol (paragraphs 3 and 4). Because of the diversity of the nature and historical background of these four paragraphs it seems justified to discuss them for each one separately, rather than for all paragraphs together. The article was adopted by roll call, both in Committee I and in the plenary Conference. (1)

    Paragraph 1

    36 This paragraph literally repeats Article 1 common to the Conventions, in which only the words "the present Convention" have been replaced by "this Protocol". As the Protocol is subject to the general provisions and principles of the Conventions, by virtue of the fact that it is an instrument additional to the Conventions, this general principle would have applied for the Protocol even if it had not been stated in so many words; for this reason the draft Protocol did not repeat Article 1 of the Conventions, following the opinion of the majority of [p.35] experts. (2) Nevertheless, the sponsors of the relevant proposal, (3) followed by the Conference, considered that it was appropriate to include a reminder of this principle.

    37 The commentary on Article 1 of the Conventions (4) continues to apply fully, and the reader is referred to it. We will merely reiterate the essential points below, adding a few new elements.

    "The High Contracting Parties undertake to respect"

    38 For the meaning of the expression "the High Contracting Parties", which, in the present context, differs from the usual meaning, reference should be made to the commentary on this expression in the Preamble. (5)

    39 The mere fact of becoming a Party to a treaty implies the obligation to apply it in good faith from the moment that it enters into force. This fundamental rule of international law originated in customary law, expressed in the maxim ' pacta sunt servanda, ' and is now set out in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969 which uses this maxim by way of a title; it reads: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith".

    40 Thus the import of this paragraph does not lie in the first part, but in the two elements which will be discussed below. As regards the word "undertake", which appears only occasionally in the Protocol, (6) this is a more solemn turn of phrase than the normal usage of "shall".

    "to ensure respect"

    41 At first sight this might seem to be superfluous: the duty to respect implies that of ensuring respect by civilian and military authorities, the members of the armed forces, and in general, by the population as a whole. This means not only that preparatory measures must be taken to permit the implementation of the Protocol, but also that such implementation should be supervised. In this respect, the phrase "to ensure respect" essentially anticipates the measures for execution and supervision laid down in Article 80 (' Measures for execution ').

    42 Though the preceding obligation is in fact already included in ' pacta sunt servanda, ' or the words "to respect", the phrase "to ensure respect" should also be considered to reflect another aspect, which is described in the Commentary on the Conventions as follows:

    [p.36] "In the event of a Power failing to fulfil its obligations, each of the other Contracting Parties, (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally." (7)

    43 This interpretation was not contested (8) and it is on this interpretation that the ICRC has taken a number of steps, confidentially or publicly, individually or generally, to encourage States, even those not Party to a conflict, to use their influence or offer their cooperation to ensure respect for humanitarian law. (9) Leaving aside any bilateral or multilateral measures taken by States, which rarely become known, it should be pointed out that the organized international community has frequently and emphatically manifested its concern that humanitarian law should be respected. (10)

    44 Finally, and most importantly, the Diplomatic Conference fully understood and wished to impose this duty on each Party to the Conventions, and therefore reaffirmed it in the Protocol as a general principle, adding in particular to the already existing implementation measures those of Articles 7 (' Meetings ') and 89 (' Co-operation ').

    45 In this way the Conference clearly demonstrated that humanitarian law creates for each State obligations towards the international community as a whole (' erga omnes '); in view of the importance of the rights concerned, each State can be considered to have a legal interest in the protection of such rights. (11)

    46 Neither the Diplomatic Conferences which drafted the Conventions and the Protocol, nor these instruments, defined very closely the measures which the Parties to these treaties should take to execute the obligation to "ensure respect" [p.37] by the other Parties, other than by means of the examples quoted above of Articles 7 (' Meetings ') and 89 (' Co-operation '). The limitations to such actions are obviously those imposed by general international law, particularly the prohibition on the use of force. (12) Even if the United Nations were to take coercive measures involving the use of armed force (13) in order to ensure respect for humanitarian law, the limitation would be that of the very respect due to this law in all circumstances. It suffices to say that whenever such measures are necessary, each Party to humanitarian law instruments should examine the wide range of diplomatic or legal measures which can be taken to ensure respect for that law.

    "in all circumstances"

    47 The expression "in all circumstances" does not mean that the Protocol as a whole applies at all times: for the distinction between provisions applicable at all times and those which become so only in the situations referred to in paragraphs 3 and 4 of this article, reference should be made to the commentary on Article 3 (' Beginning and end of application '). (14)

    48 "In all circumstances" prohibits all Parties from invoking any reason not to respect the Protocol as a whole, whether the reason is of a legal or other nature. The question whether the war concerned is "just" or "unjust", one of aggression or of self-defence, should not affect the application of the Protocol -- this type of discrimination is explicitly prohibited by the fifth paragraph of the Preamble. (15)

    49 Any idea of reciprocity should also be discarded, viz., a Party should be prevented from claiming to be exempt from the obligation to respect a particular provision, or the Protocol as a whole, because an adversary had not respected this provision or the Protocol as whole. As the Commentary to the Conventions states, treaties of humanitarian law do not constitute:

    "an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties". (16)

    50 Thus reciprocity invoked as an argument not to fulfil the obligations of humanitarian law is prohibited, but this does not apply to the type of reciprocity which could be termed "positive", by which the Parties mutually encourage each other to go beyond what is laid down by humanitarian law. Further, the concept of reciprocity on which the conclusion of any treaty is based also applies to the Conventions and the Protocol: they apply between the Parties which have [p.38] consented to be bound by them (17) -- and only in exceptional cases to a Party's own nationals, or to the nationals of a Party which is not bound. (18)

    51 The prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law is absolute. This applies irrespective of the violation allegedly committed by the adversary. It does not allow the suspension of the application of the law either in part or as a whole, even if this is aimed at obtaining reparations from the adversary or a return to a respect for the law from him. (19) This was confirmed quite unambiguously in Article 60 of the Vienna Convention on the Law of Treaties, which lays down under what conditions a material breach of a treaty can permit its suspension or termination; that article specifically exempts treaties of a humanitarian character. (20)

    Paragraph 2

    52 Except for a few details, this paragraph is taken from the famous clause, known as the "Martens clause", after the Russian diplomat who had proposed it; it was included by unanimous decision in the Preamble of the Hague Conventions of 1899 and 1907 respecting the laws and customs of war on land. (21)

    53 The 1949 Conventions did not contain a preamble, (22) and it was therefore considered appropriate to include a similar clause in their article on denunciation, in order to underline in a succint fashion that even denunciation could not result in a legal void. (23) The draft of the Protocol provided for a reaffirmation of this clause in the Preamble, (24) but the Conference supported a proposal to include it in Article 1. (25)

    54 In the initial context of 1899 and 1907, the Martens clause was obviously justified, as the Peace Conferences were aware that the Conventions that had been adopted had left a number of questions unanswered. (26) We referred above to the reason why it was taken up in the 1949 Conventions.

    55 There were two reasons why it was considered useful to include this clause yet again in the Protocol. First, despite the considerable increase in the number of [p.39] subjects covered by the law of armed conflicts, and despite the detail of its codification, it is not possible for any codification to be complete at any given moment; thus the Martens clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted. (27) Secondly, it should be seen as a dynamic factor proclaiming the applicability of the principles mentioned regardless of subsequent developments of types of situation or technology. (28)

    56 In conclusion, the Martens clause, which itself applies independently of participation in the treaties containing it, states that the principles of international law (29) apply in all armed conflicts, (30) whether or not a particular case is provided for by treaty law, and whether or not the relevant treaty law binds as such the Parties to the conflict.

    Paragraph 3

    57 This paragraph corresponds to the draft of Article 1 of the ICRC: the "additional" character of the Protocol justifies the definition of its scope of application in terms referring back to Article 2 , common to the Conventions. As regards the term "supplements", this reveals that there is a relation, though also a limitation imposed upon the Diplomatic Conference which, by reason of its own title, had the task of reaffirming and developing the pre-existing law, and not of endangering it. (31)

    58 The wording of this paragraph did not raise any difficulties in itself, but there was heated and lengthy debate regarding extending its scope to the conflicts referred to in paragraph 4. We will therefore deal separately with this aspect, including the question whether its inclusion represented a development or a codification of law (consequently whether or not such conflicts were already covered by Article 2 , common to the Conventions, referred to by this paragraph). With this reservation we will base our arguments below essentially on the commentary on this common Article 2. (32)

    59 ' Common Article 2 , paragraph 1, ' reads: "[...] the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".

    60 War which has been declared, or otherwise recognized as such, entails the application of humanitarian law; even in the absence of hostilities it can offer [p.40] valuable guarantees, in particular to enemy nationals in the territory of a State at war.

    61 Nevertheless, despite their title ("for the protection of war victims"), the Conventions are not applicable only in cases of declared war: the institution of the declaration of war (33) has been disregarded too often to make the application of humanitarian law dependent on this act. It is not necessary either that the existence of war be legally proved, as this concept is too prone to discussion, and too many armed conflicts would therefore be at risk of eluding humanitarian law. (34)

    62 Thus, as will most often be the case in practice, humanitarian law also covers any dispute between two States involving the use of their armed forces. Neither the duration of the conflict, nor its intensity, play a role: the law must be applied to the fullest extent required by the situation of the persons and the objects protected by it. (35)

    63 The Conventions cover the case in which one of the Parties to an armed conflict contests the state of war. The object and purpose of humanitarian law mean that this rule must be given a wider scope: even if the two Parties -- or all the Parties, if there are more than two -- deny that there is a state of war, this cannot enable them to impede the application of the law. It is aimed, above all, at protecting individuals, and not at serving the interests of States. (36)

    64 ' Common Article 2 , paragraph 2, ' reads: "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

    65 In fact, cases of occupation occurring in a war that has been declared or in another armed conflict are already covered by paragraph 1, as the declaration of war or the commencement of hostilities has rendered the humanitarian law applicable. The inhabitants of occupied territory become protected persons as they fall into the power of the enemy. Despite its wording, paragraph 2 only addresses itself to cases of occupation without a declaration of war, and without hostilities. (37)

    [p.41] Paragraph 4

    ' Origins of this rule '

    66 Because the Protocol is additional to the Conventions, it was logical, as we saw above with regard to paragraph 3, to define the scope of application of the Protocol by reference to Article 2 , common to the Conventions. On the other hand, the explicit inclusion within this scope of application of what is commonly known as "wars of national liberation", by means of the present paragraph 4 (cf. the word "included"), gave rise to heated controversy. A number of different aspects arose with regard to this question.

    67 Would the Protocol cover only the treatment of persons engaged in such a conflict and captured by the adverse Party, or would it generally clarify the status of such conflicts and the status of persons participating in them? The fact that international humanitarian law provides rules in two separate parts, depending on whether it concerns a situation limited to the territory of a single State or, on the contrary, affecting two or more States, in itself already gives rise to problems of interpretation in quite a number of specific situations. What sort of problems would arise if this distinction, based on a more or less objective criterion -- whether or not the conflict is between States -- were suppressed, or if it were made dependent also on factors which were considered by some to be objective and by others to be subjective?

    68 The 1949 Conference did not take up the idea of the ICRC which had been adopted by the XVIIth International Conference of the Red Cross (Stockholm, 1948) that the four Conventions as a whole should be declared applicable in all armed conflicts, whether internal or international. (38) for internal conflicts it retained only Article 3 , common to the Conventions, which still created an unprecedented inroad into the exclusive competence of governments to deal with their internal affairs, in that they bound themselves in advance to comply with certain fundamental rules. Gradually, however, what had generally constituted a remarkable achievement at the time, turned out to be incomplete (which led to the efforts resulting in Protocol II), and above all, for political and legal reasons, unsuited to the type of conflict which has characterized recent decades, i.e., wars of national liberation.

    ' Right of self-determination '

    1. ' Before the Charter of the United Nations '

    69 The concept of the right of self-determination of peoples only gradually emerged during the course of the nineteenth and twentieth centuries under a variety of names. Thus, at an early stage, what was known as the right of nationalities was created only for the benefit of peoples who described themselves [p.42] as "civilized". Similarly it was considered that colonization and the domination exercised over entire continents should permit them to be brought within the orbit of "civilization", though without disguising the economic or military interests at stake.

    70 The principle, which was proclaimed by the French Revolution, and was subsequently often denied, has from the outset constantly come up against the legal order; (39) this did not prevent it from being applied with increasing frequency and from growing in strength. It acquired a universal importance during the course of the First World War and narrowly missed becoming incorporated in the Covenant of the League of Nations on the proposal of the President of the United States, Woodrow Wilson. Even without being explicitly mentioned in this Covenant, the principle acquired the twofold value of a guiding principle in politics and of a rule of exception in international law. (40)

    2. ' The Charter of the United Nations '

    71 After a preamble laying down in particular "the equal rights [...] of nations large and small", the Charter defines the purposes of the United Nations in Article 1. The wording of paragraph 2 is as follows: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace". The same principle is affirmed in Article 55 of the Charter.

    72 The progress achieved by the Charter of the United Nations therefore consisted of turning this principle of self-determination of peoples into a right established in an instrument of universal application, in which almost all States participate today.

    73 The right of self-determination has been evoked a great many times, in the United Nations General Assembly, in Human Rights Commission and in other bodies. We will restrict ourselves here to the most important stages. (41)

    3. ' The Declaration on the Granting of Independence '

    74 A document which is considered as one of the most important is Resolution 1514 (XV) of 14 December 1960, entitled "Declaration on the Granting of Independence to Colonial Countries and Peoples".

    75 Following Resolutions 545 (VI) and 637 (VII) (42) in particular, this document reaffirms the right of all peoples and all nations to self-determination, including Non-Self-Governing and Trust Territories. (43)

    4. ' The concept of the legitimate struggle '

    76 With Resolution 2105 (XX) of 20 December 1965 the General Assembly recognized the legitimacy of the struggle of colonial peoples against colonial domination in the exercise of their right to self-determination and independence, and it invited all States to provide material and moral support to national liberation movements in colonial territories.

    77 These views were to be reiterated, in particular in Resolution 2621 (XXV) of 12 October 1970, claiming prisoner-of-war treatment under the Third Convention for freedom fighters under detention.

    5. ' The Human Rights Covenants '

    78 In a series of successive resolutions relating to the drafts of International Covenants on Human Rights, the General Assembly requested that an article should be included on the right of peoples to self-determination, which would also provide that all States should contribute to ensuring the exercise of this right: in fact, the right to self-determination is a precondition for the enjoyment of all fundamental human rights. (44)

    79 The International Covenants on Human Rights, viz., the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights complied with this request. (45)

    [p.44] 6. ' Human Rights Conference '

    80 The International Conference on Human Rights held in Teheran in 1968 under the auspices of the United Nations considered in its Resolution XXIII that persons fighting against minority racist régimes or colonial régimes should, if they were detained, be treated as prisoners of war or as political prisoners, in accordance with international law. (46)

    7. ' Friendly Relations Declaration '(47)

    81 On 24 October 1970, on the occasion of the 25th anniversary of the United Nations, the General Assembly adopted by consensus the Declaration on Principles of International Law concerning friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. (48) The preparatory negotiations on this declaration had taken place in the General Assembly and a Special Committee, (49) and contained, in particular, the examination of the principle of equal rights and self-determination of peoples. From the beginning the General Assembly was concerned with tackling the progressive development and codification of principles already contained in the Charter in order to ensure that they would be applied more effectively.

    82 In the eight paragraphs devoted to "the principle of equal rights and self-determination of peoples", the Declaration states in particular that:

    a) all peoples have the right freely to determine their political status;
    b) every State has the duty to respect this right and to promote its realization;
    c) every State has the duty to refrain from any forcible action which deprives peoples of this right;
    d) in their actions against, and resistance to, such forcible action, peoples are entitled lo seek and receive support in accordance with the purposes and principles of the Charter;
    e) under the Charter, the territory of a colony or other non-self-governing territory has a status separate and distinct from that of the State administering it. (50)

    8. ' The basic principles '

    83 The last resolution adopted by the United Nations General Assembly before the opening of the CDDH was Resolution 3103 (XXVIII) of 12 December 1973 entitled "Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist régimes". (51)

    84 The preamble referred to a large number of previous statements on this issue (52). it states in particular that:

    -- combatants struggling for freedom and self-determination are entitled to the application of the provisions of the Third and Fourth Geneva Conventions of 1949 (the resolutions referred to were formulated in more precise terms, requiring, on the one hand, the application of the Third Convention to combatants, and on the other hand, compliance with the fourth Convention relative to the protection of civilians);
    -- it is necessary to draft "additional instruments and norms envisaging, inter alia, the increase of the protection of personsstruggling for freedom against colonial and alien domination and racist régimes".

    85 The principles laid down in the operative paragraphs of the resolution, though this was to be "without prejudice to their elaboration in future within the framework of the development of international law applying to the the protection of human rights in armed conflicts", may be summarized as follows:
    [p.46]
    -- the struggle of peoples under colonial and alien domination and racist régimes for the implementation of their right to self-determination is legitimate; (53)
    -- any attempt to suppress such a struggle is incompatible with the Charter, the friendly Relations Declaration, the Universal Declaration of Human Rights, and the Declaration on the Granting of Independence, and constitutes a threat to international peace an security;
    -- armed conflicts resulting from such a struggle are international armed conflicts in the sense of the Geneva Conventions;
    -- combatants engaged in such struggles should enjoy prisoner-of-war status in the sense of the Third Convention;
    -- violation of such status entails the full responsibility of those committing it.

    ' Historical background of this paragraph '

    1. ' The 1949 Conventions '

    86 Article 2 of the draft Conventions, adopted by the XVIIth International Conference of the Red Cross (Stockholm, 1948), provided that the Conventions would apply in all cases of armed conflict which did not have an international character, and which arose in the territory of one or more of the High Contracting Parties. This was stated in the text of the draft submitted to the Conference by the ICRC, except that one phrase relating to "cases of civil war, colonial conflicts, or wars of religion" had been deleted; this enumeration was intended to be illustrative, not exhaustive.

    87 After lengthy debates, the Diplomatic Conference adopted common Article 3 to deal with conflicts not of an international character. This article enumerates a restricted number of rules applicable in all conflicts of this kind. In accordance with the intention of its authors, common Article 3 would cover all armed conflicts not of an international (inter States) character, i.e., in accordance with the ideas prevailing at the time, particularly colonial wars. The main arguments advanced against the mandatory application of the Conventions as a whole to all conflicts were less concerned with the practical impossibility of such a task than with the risk, in conflicts not of an international character, of granting such rebels a degree of recognition de facto, or of undermining government action aimed at defending the existing structure of the State. (54)

    [p.47] 2. ' Evolution until 1969 '

    88 The progressive development of the concept of the right of self-determination and its various consequences took place essentially within the framework of the United Nations, given the responsibilities of this organization. For its part, the Red Cross movement evinced its concern for the fate of victims of armed struggles for self-determination. In this respect resolution XVIII of the XXIst International Conference of the Red Cross (Istanbul, 1969) should be noted. This gave priority to pragmatic measures but also expressed the need for a thorough legal examination of the question.

    3. ' Reaffirmation and development -- preliminary discussions '

    89 During the various meetings of experts devoted specifically to the reaffirmation and development of international humanitarian law applicable in armed conflicts, whether these were consultations in groups with restricted participation or the Conferences of Government Experts or Red Cross experts, the majority of experts considered that wars of national liberation were conflicts not of an international character. Indeed, although they all recognized the need for improving the protection provided by humanitarian law to victims of the armed conflicts for self-determination -- and those of other conflicts qualified as not having an international character -- only a minority advocated the extension of the mandatory legal application of the whole of the Conventions and of Protocol I to such conflicts.

    90 The following trends can be discerned from the many different views: (55)

    a) common Article 2 can, and should be interpreted as covering wars of liberation, since, although they do not take place between States, they are certainly of an international character, according to the United Nations; thus the term "Power" does not refer only to States, but also to non-State entities which enjoy the right to self-determination; (56)
    b) the international character of wars of liberation should be proclaimed by the Preamble or by Article 1 of Protocol I; (57)
    c) it is not possible to dismiss the fundamental distinction between international conflicts (in the sense of inter-State conflicts) and conflicts not of an international character, i.e., the sole distinction that rests on the basis of objective and legal criteria, in order to take into account the reasons underlying the armed conflict. (58) [p.48]
    d) wars of national liberation are conflicts not of an international character, but some of these conflicts should involve the application of the law of armed conflicts as a whole because of their intensity or because of certain other characteristics. (59)

    91 The various successive proposals of the ICRC can be summarized as follows:

    a) In 1969 the ICRC reaffirmed, on the one hand, that when hostilities were such that they resembled a war, it has always attempted to obtain in actual practice treatment for captured combatants as similar as possible to that accorded prisoners of war under the Third Convention; on the other hand, it noted resolutions of the United Nations General Assembly proclaiming the right of "freedom fighters" to be treated as prisoners of war in case of capture, and the international character of their struggle. The ICRC suggested that an attempt should be made to obtain the treatment, but not the status of prisoner of war. This solution seemed to have the best chances of being accepted, as it operated on a strictly humanitarian basis, without political or legal repercussions. (60)
    b) The ICRC was aware of the fact that, if the struggle for self-determination were to be declared international, the problem would still arise how to establish whether any particular conflict should be designated as such a struggle; the ICRC in 1971 therefore proposed developing rules of humanitarian law that would apply in situations where the law of armed conflicts as a whole would not automatically and incontrovertibly apply. (61)
    c) In 1972 the question of the struggle for self-determination was broached in two ways:
    -- Article 1 of the draft of Protocol I defined the scope of the Protocol by referring to Article 2 of the Conventions, but Article 38 laid down prisoner-of-war treatment for combatants of organized independence movements, provided in particular that they belonged to a Party to the conflict, even if this were a government or an authority not recognized by the Detaining Power; (62)
    -- a preliminary draft of a Declaration on the Application of International Humanitarian Law in Armed Struggles for Self-Determination proclaimed that international humanitarian law as a whole should apply to such struggles; failing which, the Parties involved in such struggles should at least [p.49] apply by analogy Article 3 , common to the Conventions, and Protocol II, or otherwise they should comply with a set of special rules which were to be annexed to the Declaration. (63)

    4. ' The Diplomatic Conference '

    92 The draft of Article 1 submitted by the ICRC to the CDDH, though worded differently, repeated the substance of the 1972 draft: the Protocol would apply in the situations referred to in Article 2 common to the Conventions. The commentary on this draft reveals that the majority of experts were opposed to the inclusion of a paragraph to the effect that the situations referred to in the said common Article 2 would include armed struggles by peoples for the exercise of their right to self-determination. The opposition was based on various different and contradictory reasons: a refusal to qualify specific conflicts; the desire to retain this type of conflict within the scope of application of common Article 3 , and of the draft of Protocol II; a preference for other solutions, such as the proclamation of the international character of such conflicts in the Preamble, or by mentioning members of movements struggling for self-determination in draft Article 42 (New category of prisoners of war). One remark relating to this draft article, as well as the commentary thereon, suggested that if the CDDH wished to comply with the desire of numerous governments, it should add a third paragraph covering members of organized liberation movements; this was intended to grant them prisoner-of-war treatment, and not prisoner-of-war status, so as to avoid the problem of qualifying specific conflicts.

    93 The problem of struggles for self-determination was raised mainly with respect to four questions:

    -- during the initial plenary meetings of the CDDH the question arose whether national liberation movements should be invited to participate in the Conference. (64) In its resolution 3 (I) the CDDH decided by consensus (65) "to [p.50] invite the national liberation movements, which are recognized by the regional intergovernmental organizations concerned, to participate fully in the deliberations of the Conference and its Main Committees". (66)
    -- a close relationship linked the rules on such struggles to Part III of Protocol I;
    -- if liberation struggles were to fall under Protocol I, it would be appropriate to lay down how liberation movements could undertake to apply this Protocol and the Conventions; the solution adopted is Article 96 (' Treaty relations upon entry into force of this Protocol '), paragraph 3; (67)
    -- finally, and this was a fundamental point, it had to be determined whether such struggles were international conflicts, and as such required the application of the Conventions and of Protocol I as a whole. This is the point with which we are concerned here.

    94 After its introduction by the ICRC, (68) the draft of Article 1 formed the object of various proposals for amendments. (69) Most of these proposals were more or less directly linked to paragraph 4, and it was because of this paragraph that the article was adopted by a vote and not by consensus. (70)

    ' Analysis of paragraph 4 '

    95 In describing the historical background of this paragraph it was not possible to give a detailed account of each of the arguments advanced for and against the wording that was finally adopted, or of each of the proposals submitted in the Conference: the sum total would have been out of proportion. The same applies with regard to the extent of information found in legal and other literature, either [p.51] in general on the right of peoples to self-determination, or on the struggles conducted in excercising this right. (71)

    96 Despite the many instruments and texts available, it should be noted that some discrepancies remain, and that the general character of texts which were unanimously approved does not always lead to undisputed conclusions.

    1. ' International instruments invoked '

    97 The majority of delegations emphasized the need for ensuring the unity of international law and refused to accept or to maintain a humanitarian law which did not take into account existing general international law. In this respect reference was made to the Charter of the United Nations, the International Covenants on Human Rights, and to resolutions of the United Nations General Assembly, especially to Nos. 1514 (XV), 2625 (XXV), and 3103 (XXVIII). Recommendations were made to adapt the law expressly, without prejudice to an interpretation of existing instruments in the light of the subsequent development of the law and the entire legal system in force at the time of interpretation, in accordance with the principles expressed by the International Court of Justice with regard to Namibia. (72) for one delegation the adaptation of humanitarian law was essential: it could not remain an isolated branch of law, and had to conform to general international law, including ' jus cogens '. (73)

    [p.52] 98 In contrast, some delegations intervened to claim that the right of peoples to self-determination was not a right but a principle; (74) some contested that one could properly refer to instruments which were not treaties, such as resolutions, even those which had been adopted unanimously. (75)

    2. ' The meaning of the right of peoples to self-determination '

    99 As shown above, this right is, according to the International Covenants on Human Rights, the right of all peoples to "freely determine their political status and freely pursue their economic, social and cultural development". (76)

    100 The struggle of peoples against any forcible action aimed at depriving them of their right to self-determination is legitimate; in this case they are entitled to seek and receive support in accordance with the purposes and principles of the Charter of the United Nations. (77)

    101 Any non-self-governing territory possesses a status separate and distinct from that of the territory of the State administering it. (78)

    3. ' Those entitled to the right of peoples to self-determination '

    102 The only unanimously agreed certainty is that those who are entitled to this right are "all peoples", but what is uncertain is the definition of the term "people". For some, the term is defined in the Charter and the International Covenants on Human Rights; (79) for others it is an elastic concept, as various examples have shown. (80)

    103 In international law there is no definition of what constitutes a people; there are only instruments listing the rights it is recognized all peoples hold. Nor is there an objective or infallible criterion which makes it possible to recognize a group as a people: apart from a defined territory, other criteria could be taken into account such as that of a common language, common culture or ethnic lies. The territory may not be a single unit geographically or politically, and a people can comprise various linguistic, cultural or ethnic groups. The essential factor is a common sentiment of forming a people, and a political will to live together as such. Such a sentiment and will are the result of one or more of the criteria indicated, and are generally highlighted and reinforced by a common history. This means simultaneously that there is a bond between the persons belonging to this people and something that separates them from other peoples: there is a common element and a distinctive element.

    [p.53] 104 The definition of a group as a people does not arise from a decision by a regional or worldwide intergovernmental organization: by their declarations such organizations can take note of and proclaim the existence of peoples, but they cannot create them. While a group of population declared to be a "people" by an intergovernmental organization may in fact be considered to be such, the contrary conclusion does not necessarily follow from the absence of such a declaration, as the reasons for the absence may vary. (81)

    105 The idea that a national liberation movement must be recognized by the regional intergovernmental organization concerned (82) for paragraph 4 to apply was advanced but was not adopted. (83)

    106 It should be noted that, under the Charter and the Covenants, only peoples have the right to self-determination as defined by these instruments. This is not the case for ethnic, religious or linguistic minorities which, for example, under the Covenant on Civil and Political Rights, are merely entitled to enjoy their own culture, to profess and practise their own religion, or to use their own language (Article 27). Thus it is clear that the difficulty in individual cases lies entirely in the qualification that is chosen: is the case in question one of a people, with a right to self-determination and all the attendant consequences, or is it a minority entitled to protection, but not to self-determination?

    4. ' The peoples covered by paragraph 4 '

    107 A twofold requirement results from the merging of the various amendments proposed, for the paragraph to apply:

    -- there must be an armed conflict in which a people is struggling against colonial domination, alien occupation or a racist régime;
    [p.54]
    -- the struggle of that people must be in order to exercise its right to self-determination.

    108 However, one delegation considered that in interpreting the word "include" literally, the list following it is not exhaustive. (84) In contrast, another delegation expressed regret that the paragraph remained selective and does not cover all situations entering the concept of the right of peoples to self-determination. (85)
    109 As no delegation had specified what armed conflicts for self-determination would be implicitly included or excluded (depending on which of the two above-mentioned interpretations is chosen) by the formulation of the paragraph, it is necessary to study the paragraph and the texts on which it is based.

    110 The Charter of the United Nations and the friendly Relations Declaration, which were examined above, grant the right to self-determination to all peoples equally and in every respect.

    111 As regards the wording of the paragraph, what meaning should be ascribed to the word "include"? We consider that it should be interpreted as introducing an exhaustive list of cases which are considered to form part of the situations covered by the preceding paragraph.

    112 However, do the cases listed essentially cover all possible circumstances in which peoples are struggling for the exercise of their right to self-determination? The expression "colonial domination" certainly covers the most frequently occurring case in recent years, where a people has had to take up arms to free itself from the domination of another people; it is not necessary to explain this in greater detail here. The expression "alien occupation" in the sense of this paragraph -- as distinct from belligerent occupation in the traditional sense of all or part of the territory of one State being occupied by another State (86) -- covers cases of partial or total occupation of a territory which has not yet been fully formed as a State (87) finally, the expression "racist régimes" covers cases of régimes founded on racist criteria. The first two situations imply the existence of distinct peoples. The third implies, if not the existence of two completely distinct peoples, at least a rift within a people which ensures hegemony of one section in accordance with racist ideas. It should be added that a specific situation may correspond simultaneously with two of the situations listed, or even with all three. (88)

    113 In our opinion, it must be concluded that the list is exhaustive and complete: it certainly covers all cases in which a people, in order to exercise its right of self-determination, must resort to the use of armed force against the interference [p.55] of another people, or against a racist régime. On the other hand, it does not include cases in which, without one of these elements, a people takes up arms against authorities which it contests, as such a situation is not considered to be international.

    5. ' The application of humanitarian law '

    114 At what moment does humanitarian law as a whole become applicable in pursuance of this paragraph? This is not stated here, but the preceding paragraph, which it supplements, refers to Article 2 common to the Conventions in this respect. The latter is as concise as it is clear: application is required in all cases of armed conflict which may arise between two or more High Contracting Parties, or in case of the total or partial occupation of the territory of a High Contracting Party -- even if it meets with no armed resistance. The same rule applies here, in accordance with Article 96 (' Treaty relations upon entry into force of this Protocol '), paragraph 3, which provides for the way in which an authority representing a people engaged in a struggle may undertake to apply the Conventions and the Protocol and make them applicable to the conflict.

    115 Although some considered that in the absence of a definition of the concept of armed conflict, reference should be made to Article 1 of Protocol II (89) (' Material field of application '), which could be applied by analogy, or a certain degree of intensity should be required, (90) this is not expressed in either paragraph 4 or the Conventions: according to the Conventions and the Protocol, the only real requirements for the correct application of the law when persons in such a conflict are protected persons within the meaning of these instruments are an authority representing the people engaged in the struggle and an organized structure of its armed forces, including a responsible command, in accordance with the requirements of Article 43 (' Armed forces '). (91)

    116 The objection that only States would be capable of applying such heavy norms (92) was not taken into account for the same reasons: apart from the innovations introduced in Part III, the only requirement considered truly necessary was the setting up in Article 96 (' Treaty relations upon entry into force of this Protocol ') of an ad hoc mechanism by which an authority representing a people engaged in a struggle may make an undertaking. (93)

    [p.56] 117 The actual adoption of this last provision, and of the paragraph under consideration here, suffices to entail the obligation in the situations referred to of interpreting certain criteria used in humanitarian law, such as that of nationality, in a new way. In fact, to insist on the "official" nationality would result in depriving these provisions of a large part of their purpose, and it is therefore necessary to resort to concepts such as "belonging" or "allegiance".

    118 One thing is certain: the characteristics of a conflict, especially its intensity or its length, may justify the application of the Conventions and of the Protocol as a whole, or a part of these instruments, but this is merely a question of common sense, which also applies to any conflict between States. It should also be emphasized that contrary to the fears expressed by certain delegations, (94) all the Parties to the conflict will have the same obligations and enjoy the same rights, (95) without any adverse distinction: neither the fifth paragraph of the Preamble nor paragraph 3 of Article 96 (' Treaty relations upon entry into force of this protocol ') leaves any room for doubt on this point. As regards the crucial question of the inevitable disputes regarding the qualification of a specific conflict, one must assume that the Parties concerned will carry out their obligations in good faith, and count on the positive influence of all the High Contracting Parties. (96)

    ' B.Z. '


    NOTES

    (1) Vote in Committee: 70-21-13, cf. O.R. VIII, p. 102, CDDH/I/SR. 13, para. 42; vote in plenary Conference, 87-1-11, cf. O.R. VI, pp. 40-41, CDDH/SR.36, para. 58;

    (2) O.R. VIII, p. 48, CDDH/I/SR.6, para. 28. On the additional character and its consequences, cf. mainly infra, commentary para. 3 (p. 39) and Art. 96, para. 1 (pp. 1085-1086) and supra, commentary on the title (pp. 20-21) and the Preamble, third paragraph (p. 27);

    (3) O.R. III, p. 6, CDDH/I/12 and Corr. 1 and Add. 1;

    (4) The best researched study of Article 1 of the Conventions and of this paragraph is by L. Condorelli and L. Boisson de Chazournes, "Quelques remarques à propos de l'obligation de "respecter et faire respecter" le droit international humanitaire "en toutes circonstances"", in in ' Studies and Essays in Honour of Jean Pictet ', Geneva-The Hague, 1984, p. 18;

    (5) Supra, p. 25;

    (6) In addition to this article, cf. Arts. 83, para. 1; 89 and 96, para. 3;

    (7) ' Commentary III ', p. 18 (Art. 1);

    (8) The International Conference on Human Rights (Teheran, 1968) adopted it in Resolution XXIII. The Preamble of this resolution reminds States Parties to the Geneva Conventions of their responsibility "to take the necessary measures to ensure respect for such rules of humanitarian law by other States in all circumstances, even if they are not themselves directly involved in armed conflict". The same applies to almost all governments which made a statement on this subject during the reaffirmation and development procedure; cf. ' Government replies ', 2nd ed., pp. 19-33 ("Question 2"). For recent literature, cf. L. Condorelli and L. Boisson de Chazournes, op. cit., pp. 26-32 and K. Obradovic, "Que faire face aux violations du droit humanitaire? Quelques réflexions sur le rôle possible du CICR", in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 483, especially pp. 487-490;

    (9) For the policy of the ICRC on its action in the event of breaches of humanitarian law, see ' IRRC ', March-April 1981, pp. 76-83. For a diplomatic appeal by the ICRC to all the Parties to the Conventions, cf. ibid., July-August 1983, pp. 220-223. This same appeal is examined in the study of L. Condorelli and L. Boisson de Chazournes, op. cit., p. 28, and K. Obradovic, op. cit., p. 493, and also by Y. Sandoz, "Appel du CICR dans le cadre du conflit entre l'Irak et l'Iran", 29 ' AFDI ', 1983, p. 161;

    (10) See also commentary Art. 89, infra, p. 1034;

    (11) For a general description of these norms which formed the inspiration for this passage, cf. the judgment of the International Court of Justice in the ' Barcelona Traction ' case, second phase, ' ICJ Reports ', 1970, p. 32; reference is made to this case in the studies by L. Condorelli and L. Boisson de Chazournes, op. cit., p. 29, and K. Obradovic, op. cit., p. 489;

    (12) Including "humanitarian intervention", generally considered to be covered by this prohibition; on this subject, cf. U. Beyerlin, "Humanitarian Intervention", in R. Bernhardt (ed.), ' Encyclopedia of Public International Law ', Instalment 3, 1982, p. 211;

    (13) On this subject, cf. commentary Art. 89, infra, pp. 1034-1035;

    (14) Infra, pp. 66-67;

    (15) Cf. the commentary thereon, supra, pp. 28-29;

    (16) ' Commentary I ', p. 25 (Art. 1);

    (17) For the meaning of the expression "the High Contracting Parties", cf. commentary Preamble, supra, p. 25. Also see the study by J. de Preux,"The Geneva Conventions and Reciprocity", ' IRRC ', January-February 1985, p. 25, especially pp. 25-26;

    (18) Cf. in particular, Fourth Convention, Part II (Art. 13 in contrast with Art. 4), and Protocol I, Art. 75;

    (19) Cf. the passage relating to reprisals, introduction to Part V, Section II, infra, pp. 981-987;

    (20) Cf. para. 5 and also para. 4, which has a more general scope, of this article, entitled "Termination or suspension of the operation of a treaty as a consequence of its breach";

    (21) On the subject o this clause, cf. H. Strebel, "Martens' clause", in R. Bernhardt (ed.), op. cit., Instalment 3, pp. 252-253 (and references cited); S. Miyazaki, "The Martens Clause and International Humanitarian Law", in ' Studies and Essays in Honour of Jean Pictet ', op. cit., p. 433;

    (22) Cf. commentary Preamble, supra, p. 24;

    (23) Cf. para. 4 of common Art. 63/62/142/158 and the commentary thereon, on pp. 413, 282, 648 and 625-626 respectively;

    (24) ' Commentary Drafts ', p. 5 (Preamble, third paragraph);

    (25) Cf. supra, note 3. The 1980 Convention on conventional weapons also reaffirms this clause (Preamble, fifth paragraph);

    (26) Cf. H. Strebel, op. cit., p. 252, and F. Kalshoven, ' Belligerent Reprisals ', Leyden, 1971, p. 58;

    (27) Cf. H. Strebel, op. cit.; also O.R. VIII, p. 18, CDDH/I/SR.3, para. 11;

    (28) Cf. H. Strebel, op. cit., p. 252, and S. Miyazaki, op. cit., p. 441;

    (29) Similar to the expression "general principles of law" used in Art. 38, para. 1(c) of the Statute of the International Court of Justice;

    (30) It should be noted that Protocol II uses different wording (cf. its Preamble, fourth paragraph, and the commentary thereon, infra, p. 1341);

    (31) ' Commentary Drafts ', p. 6 (Art. 1). On the general relationship between the Conventions and the Protocol, cf. commentary on the title and on the Preamble, third paragraph, supra, pp. 20-21 and 27, and in particular, commentary Art. 96, para. 1, infra, pp. 1085-1086;

    (32) Pp. 27-33, 26-29, 19-23, and 17-22 respectively (without para. 3, which corresponds to Art. 96, para. 2, of the Protocol);

    (33) Required by the Hague Convention Relative to the Opening of Hostilities (Convention III of 1907);

    (34) For definitions of "war" and "armed conflict", cf. in particular D. Schindler, "The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols", 163 ' Hague Recueil ', 1979/II, p. 128; K.J. Partsch, "Armed Conflict" in R. Bernhardt (ed.), op. cit., Instalment 3, p. 25; K. Skubiszewski, "Peace and War", ibid., Instalment 4, p. 74; W. Meng, "War", ibid., p. 282; Ch. Rousseau, ' Le droit des conflits armés ', Paris, 1983, pp. 2-16;

    (35) ' Cf. Commentaries I, II, III ' and ' IV ', pp. 34, 27-28, 22-23 and 21 respectively;

    (36) ' Cf. Commentaries III ' and ' IV ', pp. 22-23 and 21 respectively;

    (37) ' Cf. Commentary IV ', pp. 21-22. It should be noted that the definition of occupation given in Article 42 of the Hague Regulations of 1907 Concerning the Laws and Customs of War on Land reads: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.";

    (38) Cf. infra, p. 46;

    (39) S. Calogeropoulos-Stratis, ' Le droit des peuples à disposer d'eux-mêmes ', Brussels, 1973, p. 11;

    (40) Ibid., p. 11; K.J. Partsch, "Fundamental Principles of Human Rights, Self-Determination, Equality and Non-Discrimination", in ' The International Dimensions of Human Rights ', Paris, 1982, pp. 63-64, gives some examples;

    (41) For a more detailed historical background, cf. i.a., A. Cristescu, ' The Right to Self-Determination -- Historical and Current Development on the Basis of United Nations Instruments ', United Nations publication, 1981, paras. 14-87;

    (42) Cf. infra, point 5;

    (43) The last preambular paragraph and operative paras. 1 and 4 of this resolution read as follows: "[...] all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory."
    "1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation."
    "4. All armed action and repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence and the integrity of their national territory shall be respected.";

    (44) Cf. in particular. Resolutions 545 (VI) and 637 (VII) mentioned above;

    (45) Adopted by Resolution 2200 (XXI) of the General Assembly of 16 December 1966, the Covenants have been in force since 1976, binding 80 and 83 States respectively as of 31 December 1984. Their common Article 1 reads as follows:
    "1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
    2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based on the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
    3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.";

    (46) The same Conference had formerly adopted Resolution VIII in which, with particular reference to two specific cases, it claimed similarly that captured freedom fighters should be treated as prisoners of war in the sense of the Third Geneva Convention of 1949. The objectives of Resolution XXIII were reiterated in Resolution 2444 (XXIII) of the General Assembly, the first of a long series devoted to the "Respect for human rights in armed conflicts" (cf. infra, pp. 1573-1576);

    (47) ' Resolution 2625 (XXV), Annex ';

    (48) ' For an account of the preparatory work of this Declaration and its evaluation ', cf. in particular, M. Sahovic, "Codification des principes du droit international des relations amicales et de la coopération entre les Etats", 137 ' Hague Recueil. ' 1972/III, p. 243; G. Arangio-Ruiz, "Codification of the Principles of International Law on Friendly Relations and Co-operation Between States", ibid., p. 419;

    (49) Cf. Resolution 1815 (XVII), based on Article 13 of the Charter. The Special Committee on the principles of international law on friendly relations and co-operation among States, created pursuant to Resolution 1966 (XVIII), and reconstituted pursuant to Resolution 2103 A (XX), met for seven sessions. The idea of a declaration on this subject was suggested by the Second Conference of Heads of State or Government of Non-Aligned Countries, held in Cairo in 1964 (cf. the fifth preambular paragraph of Resolution 2103 A (XX));

    (50) The 7th paragraph is quoted in full: "Nothing
    in the foregoing paragraphs shall be construed as
    authorizing or encouraging any action which would
    dismember or impair, totally or in part, the territorial
    integrity or political unity of sovereign and independent
    States conducting themselves in compliance with the
    principle of equal rights and self-determination of
    peoples as described above and thus possessed of a
    government representing the whole people belonging to the
    territory without distinction as to race, creed or
    colour.";

    (51) It was adopted with 83 votes for, 13 against
    and 19 abstentions;

    (52) The contents of the Resolutions mentioned are
    briefly outlined here: 2383 (XXIII): Third Convention,
    Southern Rhodesia; 2508 (XXIV): Third and Fourth
    Conventions, Southern Rhodesia; 2547 (XXIV): Third and
    Fourth Conventions, Southern Rhodesia, territories under
    Portuguese administration, Namibia; 2652 (XXV): Third and
    Fourth Conventions, Southern Rhodesia; 2678 (XXV): Third
    and Fourth Conventions, Namibia; 2707 (XXV): Third and
    Fourth Conventions, territories under Portuguese
    administration; 2795 (XXVI): Third and Fourth Conventions,
    territories under Portuguese administration; 2796 (XXVI):
    Third and Fourth Conventions, Southern Rhodesia; 2871
    (XXVI): Third and Fourth Conventions, Namibia. Amongst
    other relevant resolutions not mentioned above, but
    alluded to by the words "inter alia", we would recall, for
    example, Resolution 2396 (XXIII) which demands that the
    population of South Africa as a whole should be able to
    exercise its right of self-determination and that, as
    their struggle is legitimate, the freedom fighters there
    should be treated as prisoners of war under the terms of
    international law, particularly the Third Geneva
    Convention of 1949;

    (53) On 14 December 1974, viz., after the adoption
    of Article 1 by the relevant Committee of the CDDH, the
    General Assembly once again confirmed its views with
    regard to the concept of aggression. Article 7 of the
    Definition of Aggression, adopted by consensus (Resolution
    3314 (XXIX), Annex) reserves the right of peoples
    forcefully deprived of their right to self-determination
    to struggle to that end; the right to self-determination
    is also mentioned in the Preamble to this definition;

    (54) For further information on the historical
    background to common Art. 3, and on its scope, see
    ' Commentaries I, II, III ' and ' IV ';

    (55) The first two trends underlined the need for
    preventing the creation of two separate legal orders,
    United Nations law and humanitarian law, as there can only
    be one international law. With respect to the negotiations
    as a whole, this view was upheld particularly by the
    representative of the United Nations Secretary-General:
    Secretary-General: ' CE 1971, Report ', p. 119, para. 601;

    (56) Cf. for example, ' CE 1972, Report ', Vol. I,
    p. 175, para. 4.25;

    (57) Cf. for example, ' Preliminary Report on the
    Consultation of Experts concerning Non-International
    Conflicts and Guerilla Warfare ', Geneva, 1970, 1st part,
    pp. 19-20; ' CE 1971, Report ', p. 35, para. 113; p. 36,
    para. 133, ' CE 1972, Report ', Vol I, p. 175, para. 4.26;
    p. 200, para. 4.215; p. 205, para. 5.22;

    (58) Cf. for example, ' CE 1972, Report ', Vol. I,
    p. 64, para. 2.26; p. 66, para. 2.38;

    (59) Cf. for example, ' CRCE 1971, Report ', p. 43
    (para. 2); ' CE 1971, Report ', pp. 48-50, paras. 282-289;
    282-289; ' CE 1972, Report ', Vol. I, pp. 97-100, Chapter
    VIII;

    (60) ' Protection of Victims of Non-International
    Conflicts ', Report submitted at the XXIst International
    Conference of the Red Cross (Istanbul, 1969), ICRC,
    Geneva, pp. 7-8;

    (61) ' CE/5b ', pp. 30-35 (Conclusions and
    proposals);

    (62) ' CE 1972, Report ', Vol. II, p. 1 (Art. 1,
    para. 2) and p. 6 (Art. 38, para. 1) of the draft Protocol
    I of the ICRC. The French text reads "non reconnue", using
    the feminine form of the adjective, which may seem to
    refer only to the authority; this seems to be an error;
    the report does not refer to any discussion on this point,
    but the 1973 draft uses the plural adjective "no reconnus"
    (Art. 42), as indeed does Art. 4 A(3) of the Third
    Convention;

    (63) For the text of this preliminary draft of the
    Declaration, ' cf. CE 1972, Report ', Vol. II, p. 23. The
    great majority of experts were opposed to such a
    declaration for various contradictory reasons, some
    considering it to be insufficient, while others considered
    that the cases covered came under common Art. 3 and the
    draft of Protocol II; for the text of the preliminary
    draft and the report on the discussions, cf. ibid., Vol.
    I, pp. 200-201, paras. 4.216-4.224;

    (64) The wish to invite them had been expressed by
    the XXIInd International Conference of the Red Cross
    (Teheran, 1973) in its Resolution XIII, operative para. 3;
    similarly, the United Nations General Assembly in its
    Resolution 3102 (XXVIII), operative para. 2;

    (65) O.R. V, p. 65, CDDH/SR.7, para. 4. The list of
    movements invited for this purpose can be found in O.R. V,
    p. 56, CDDH/SR.6, para. 11; the list of movements that
    participated can be found in O.R. II, pp. 351-358; the
    list of movements which signed the Final Act is in O.R.
    VII, p. 336, CDDH/SR.59, para. 5; the status of these
    movements in the Conference was governed by Chapter X of
    the Rules of Procedure: cf. O.R. II, p. 15, CDDH/2/Rev. 3,
    Art. 58;

    (66) Para. 1, cf. O.R. I, Part II, p. 5, CDDH/55,
    Resolution 3 (I);

    (67) Paragraph added to draft Art. 84;

    (68) O.R. VIII, p. 7, CDDH/I/SR.2, paras. 2-6;

    (69) O.R. III, pp. 5-9, CDDH/I/5, and Add. 1-2
    (withdrawn in favour of document CDDH/I/41), CDDH/I/11 and
    Add. 1-3, CDDH/I/12 and Corr. 1 and Add. 1, CDDH/I/13
    (withdrawn in favour of document CDDH/I/41), CDDH/I/41 and
    Add. 1-7, CDDH/I/42, CDDH/I/71. A draft resolution
    requesting that an intersessional working group should be
    entrusted with examining the question was not passed
    (CDDH/I/78, not reproduced in the Official Records;
    introduction: O.R. VIII, pp. 97-98, CDDH/I/SR.13, paras.
    1-5). The text finally adopted for paragraph 4 is that of
    paragraph 2 of CDDH/I/71, a revision of the corresponding
    paragraph of CDDH/I/41, which was itself a merger of
    CDDH/I/5 and 11. The order of paragraphs was modified by
    the Drafting Committee: paras. 1 and 2 became 3 and 4, and
    paras. 3 and 4 became 1 and 2. In the French text,
    "populations" was replaced by "peuples", and "de leur
    droit à l'auto-détermination" by "du droit des peuples à
    disposer d'eux-mêmes": cf. O.R. VIII, p. 100,
    CDDH/I/SR.13, paras. 19-20. In all the versions "colonial
    and alien occupation" was replaced by "colonial domination
    and alien occupation"; cf ibid., paras. 18 and 20;

    (70) Cf. supra, note 1;

    (71) For further details, reference may be made in
    the first place to the bibliographies of S.
    Calogeropoulous-Stratis, op. cit., and of H. Gros Espiell,
    Espiell, ' The Right to Self-Determination --
    Implementation of United Nations' Resolutions ', United
    Nations publication, 1979. The numerous publications
    relating to paragraph 4 include: W.T. Mallison and S.V.
    Mallison, "The Juridical Status of Privileged Combatants
    under the Geneva Protocol of 1977 concerning International
    Conflicts", 62 ' Law and Contemporary Problems ' 2, Duke
    University, 1978, p. 10; W.D. Verwey, "Decolonization and
    Ius ad Bellum: A Case Study on the Impact of the United
    Nations General Assembly on International Law", in
    in ' Declarations of Principles -- A Quest for Universal
    Peace ', Leyden, 1977, p. 121; J.J.A. Salmon, "Les guerres
    de libération nationale", in A. Cassese (ed.), ' The New
    Humanitarian Law of Armed Conflict ', Naples, 1979, p. 55;
    D. Schindler, "The Different Types of Armed Conflicts...",
    op. cit., pp. 118-119, 132-145, 152-157; G. Abi-Saab,
    "Wars of National Liberation in the Geneva Conventions and
    Protocols", 165 ' Hague Recueil ', 1979/IV, p. 357; E.
    Kussbach, "Die Rechtsstellung nationaler
    Befreiungsbewegungen im humanitären Völkerrecht", in ' Ius
    Humanitatis, Festschrift zum 90. Geburtstag von Alfred
    Verdross ', Berlin, 1980, p. 499; J.A. Barberis,
    "Nouvelles questions concernant la personnalité juridique
    internationale", 179 ' Hague Recueil ', 1983/I, p. 239; A.
    Cassese, "Wars of National Liberation and Humanitarian
    Law", in ' Studies and Essays in Honour of Jean Pictet ',
    op. cit., p. 313;

    (72) Cf. "Legal Consequences for States of the
    Continued Presence of South Africa in Namibia (South West
    Africa), notwithstanding Security Council Resolution 276
    (1970), Advisory Opinion", ' ICJ Reports ', 1971, p. 16
    (particularly pp. 31-32, para. 53). Similarly the Vienna
    Convention on the Law of Treaties, Art. 31 (General rule
    of interpretation), para. 3, particularly sub-para. (c);

    (73) O.R. VIII, p. 21, CDDH/I/SR.3, para. 30. For
    H. Gros Espiell, op. cit., paras. 70-87, the right of
    peoples to self-determination is ' jus cogens ', even
    though this view still meets with some opposition;

    (74) O.R. VIII, pp. 13-14, CDDH/I/SR.2, para. 46;
    pp. 28-29, CDDH/I/SR.4, para. 25;

    (75) For example, ibid, p. 26, CDDH/I/SR.4, para.
    7; p. 28, para. 21; p. 39, CDDH/I/SR.5, para. 43;

    (76) Art. 1, para. 1; cf. supra, p. 43, point 5;

    (77) Resolutions 2105 (XX), 2625 (XXV), and 3103
    (XXVIII), cf. supra, pp. 43 and 44, points 4, 7 and 8;

    (78) Resolution 2625 (XXVIII), cf. supra, p. 44,
    point 7;

    (79) For example, O.R. VIII, p. 15, CDDH/I/SR.2,
    para. 53;

    (80) For example, ibid., pp. 13-14, para. 46;

    (81) Chapter III (paras. 251-261) in H. Gros
    Espiell, op. cit., is entitled "Specific situations
    concerning the right of peoples under colonial and alien
    domination to self-determination which have been or are
    being dealt with the United Nations". Here is the list of
    States and territories in alphabetical order: Algeria,
    American Samoa, Angola, Antigua, Bahamas, Barbados,
    Belize, Bermuda, Botswana, British Virgin Islands, Brunei,
    Burundi, Cambodia, Cameroon, Cape Verde, Cayman Islands,
    Central African Republic, Chad, Cocos (Keeling) Islands,
    Comoro Archipelago, Congo, Cook Islands, Cyprus, Dahomey,
    Djibouti, Dominica, Equatorial Guinea, Eritrea, Falkland
    Islands (Malvinas), Fiji, Gabon, Gambia, Ghana, Gibraltar,
    Gilbert and Ellis Islands, Grenada, Guam, Guinea,
    Guinea-Bissau, Guyana, Hungary, Ifni, Indonesia, Ivory
    Coast, Jamaica, Kenya, Laos, Lesotho, Libya, Madagascar,
    Malaysia, Malawi, Mali, Malta, Mariana Islands,
    Mauritania, Mauritius, Montserrat, Morocco, Mozambique,
    Namibia, Nauru, New Hebrides, Niger, Nigeria, Niue, Oman,
    Palestine, Papua New Guinea, Pitcairn, Puerto Rico,
    Rwanda, St. Kitts-Nevis-Anguilla, St. Helena, St. Lucia,
    St. Vincent, Sao Tome and Principe, Senegal, Seychelles,
    Sierra Leone, Singapore, Solomon Islands, Somalia, South
    Africa, Southern Rhodesia, Southern Yemen, Suriname,
    Swaziland, Tanzania, Tibet, Timor, Togo, Tokelau Islands,
    Trinidad and Tobago, Tunisia, Turks and Caicos Islands,
    Tuvalu, Uganda, United States Virgin Islands, Upper Volta,
    Western Sahara, Western Samoa, West New Guinea (West
    Irian), Zaire, Zambia;

    (82) Criterion used for inviting liberation
    movements to the CDDH, cf. supra, pp. 49-50, and note 66.
    Cf. also commentary Art. 96, infra, p. 1089 and note 29;

    (83) O.R. III, p. 8, CDDH/I/42, quoted above. In
    favour of this proposal, in addition to its sponsor: O.R.
    VI, pp. 62-63, CDDH/SR.36, Annex (Indonesia); O.R. VII, p.
    324, CDDH/SR.58, Annex (Mauritania) (after adoption in the
    Plenary Conference); against: cf. O.R. VIII, p. 105,
    CDDH/I/SR.14, para. 4 (after adoption by Committee I);

    (84) O.R. V, p. 228, CDDH/SR.22, para. 14;

    (85) O.R. VII, p. 246, CDDH/SR.56, Annex (Syria).
    Other declarations can also be noted which are less
    conclusive with regard to the question whether the
    paragraph covers only one of the aspects of the right of
    peoples to self-determination: O.R. VIII, p. 11,
    CDDH/I/SR.2, para. 34; p. 20, CDDH/I/SR.3, para. 21; p.
    106, CDDH/I/SR.14, para. 8;

    (86) A situation already covered by the law of The
    Hague and Geneva; cf. commentary para. 3, supra, p. 40;

    (87) Cf. for example, O.R. V, pp. 314-315,
    CDDH/SR.27, paras. 5 and 14, with regard to resolution 7
    (II);

    (88) In this sense, cf. O.R. VI, p. 53, CDDH/SR.36,
    para. 114;

    (89) Ibid., p. 47, CDDH/SR.36, paras. 87-88; such a
    requirement was formulated in a declaration made by the
    United Kingdom upon signing the Protocol;

    (90) Cf. O.R. VI, pp. 59-60, CDDH/SR.36, Annex
    (Australia);

    (91) Cf. the comparison with organized resistance
    movements in totally occupied countries: O.R. VIII, p. 34,
    CDDH/I/SR.5, para. 7; O.R. VI, p. 354, CDDH/SR.46, para.
    77;

    (92) Amongst other statements, cf. O.R. VIII, p.
    11, CDDH/I/SR.2, para. 32; pp. 28-29, CDDH/I/SR.4, para.
    25; after the adoption of Art. 1 in plenary: O.R. VII, p.
    217, CDDH/SR.56, para. 114;

    (93) Cf. the indication that an unofficial working
    group in which all the regional groups were represented
    unanimously arrived at this conclusion during the second
    session, while studying the repercussions of Art. 1: O.R.
    VI, pp. 43-44, CDDDH/SR.36, para. 69;

    (94) For example O.R. V, p. 101, CDDH/SR.11, para.
    5; pp. 109-110, paras. 46-47;

    (95) For example O.R. VIII, p. 32, CDDH/I/SR.4,
    para. 45; O.R. VI, p. 354, CDDH/SR.46, paras. 76-77;

    (96) Cf. in particular Art. 1, common to the
    Conventions, para. 1 of this article, as well as Art. 89
    of Protocol I;