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Commentary - Art. 59. Final provisions

    The object of this Article is to determine how the new rules are to succeed the old ones. By its terms, the 1949 Convention replaces the Conventions of 1864, 1906 and 1929, in relations between the Contracting Parties. That means that the new Convention will only have mandatory force between States which are parties to it. The earlier Conventions will continue to bind, in their mutual relations, States which are party to them without being parties to the 1949 Convention. In the same way, they will govern the mutual relations between Powers which are parties to the earlier Conventions only and those which are parties both to the 1949 Convention and earlier ones.
    As similar clauses are to be found in both the 1906 and 1929 Conventions, it follows that any two States will be bound in their mutual relations by the most recent of the Geneva Conventions to which both are parties.
    The successive Geneva Conventions may, therefore, be said to coexist in international law. Article 59 does not have the effect of abrogating the earlier Conventions. Even supposing a time came when the latter no longer bound any State at all, they would still preserve a latent existence. for, in the improbable event of a State denouncing the 1949 Convention, the earlier Conventions would become operative once more, and again bind the denouncing Power in its relations with other States. One of the Geneva Conventions would only really disappear, therefore, if all the Powers denounced it formally.
    Whit would be the position with regard to two States, one of which was party to the 1949 Convention only and the other to one of the earlier [p.408] Conventions only? In strict law, they are not bound in their mutual relations by any Convention. The third paragraph of Article 2 of the Convention bears this out.
    But the very nature of the Geneva Conventions demands a less academic and more humane interpretation. Everything points to the fact that we are not considering a number of different Conventions, but successive versions of one and the same Convention -- the Geneva Convention, whose principles are concepts of natural law and which merely gives expression to the dictates of the universal conscience. In the example we have given, the two States must therefore consider themselves bound, at any rate morally, by everything which is common to the two Conventions, beginning with the great humanitarian principles which they contain. An effort should be made to settle by special agreement matters dealt with differently in the two Conventions; (1) in the absence of such an agreement, the Parties would apply the provisions which entailed the least extensive obligations.

    * (1) [(1) p.408] We are thinking, for example, of the status of
    medical personnel who have fallen into the hands of the
    adverse Party;