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Commentary - Treaty relations upon entry into force of this Protocol
Article 12 - Treaty relations upon entry into force of this Protocol

1. Paragraph 1

The Protocols are instruments "additional" to the Geneva Conventions. As a result, their entry into force does not call into question the applicability of the Conventions – the Protocols supplement the Conventions, and do not subtract anything from them.
Article 12, paragraph 1, clarifies the rule on conflicts of applicable law in case of potential incompatibility between the Geneva Conventions and Additional Protocol III. Protocol III does not take a novel approach to the matter in question. Instead, it borrows the solution already recommended by Article 96, paragraph 1, of Additional Protocol I, which itself stems from a classic rule of the law of treaties already spelled out by the Vienna Convention of 1969, according to which the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.[70]

2. Paragraph 2

Article 12, paragraph 2, is derived mutatis mutandis from the third paragraph of Article 2 common to the Geneva Conventions (already replicated by Article 96, paragraph 2, of Additional Protocol I). The first sentence rejects the clausula si omnes or the clause of universal participation. Thus, a party to a conflict bound by Additional Protocol III remains obliged to apply it in its relations with an adverse party that is also bound by the Protocol, even if one or more parties (adversary or ally) are not bound by this instrument.
While the first sentence of Article 12, paragraph 2 (like the first paragraph), deals with the relations between parties having resorted to the classic methods of establishing treaty-based relationships (such as signature and then ratification, or accession), the second sentence provides for a particular means of entry into force of Additional Protocol III with respect to an ongoing conflict. This sentence entitles a State to consider the Protocol legally applicable between itself and the other parties to the conflict already bound by that instrument, even if that State was not able - at the time the armed conflict broke out – to complete the internal procedure to be bound by the Protocol. This provision is identical to Article 2, paragraph 3, of the Geneva Conventions. The conditions for this kind of undertaking are already set forth in the Commentaries on the Conventions and on Additional Protocol I [71].
Finally, while the two paragraphs of this provision are in all respects similar to Article 96, paragraphs 1 and 2, of Additional Protocol I, paragraph 3 of Article 96 establishes a special procedure allowing for such an undertaking by the authority representing a people engaged in armed conflict for self-determination against a High Contracting Party. This aspect was not considered relevant in the context of Additional Protocol III and was therefore not included in it.


Notes

70. Article 30, paragraph 3, of the Vienna Convention on the Law of Treaties states that "[w]hen all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated (…), the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty." In fact this is a modern reformulation of a general principle derived from Latin law, according to which the later law overrules the earlier law (lex posterior derogate lege priori). Article 30, paragraph 4, provides for cases in which the parties to the earlier treaty are not all parties to the later treaty and rules that in this particular case, "(a) as between States parties to both treaties the same rule applies as in paragraph 3; ( b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations."

71. See Commentary on the First Geneva Convention, above note 4, pp. 33-37. and will therefore not be discussed in detail here