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Commentary - PART VI : Final provisions
    [p.1059] Part VI -- Final provisions


    Introduction

    3662 Basically this Part contains the technical clauses common to all treaties which, in the Protocol, are similar to those of all multilateral treaties. This applies for the procedure of becoming a Party to the treaty and for notifications, registration and the authentic texts. Finally, like many other treaties, the Protocol is silent with regard to reservations; thus these follow the rules of general international law and we will return to this question below.

    3663 Some special features in this Part follow from the "additional" character of the Protocol: thus signature and accession are open only to Parties to the Conventions, (1) and similarly there is an article devoted to the relations between the Conventions and the Protocol.

    3664 Another special feature is the existence of an article relating to amendments to the Protocol, and another providing for a simple procedure for revision of Annex I, which has a technical character.

    3665 Other special features are justified by the humanitarian aim of the Protocol; in this respect the small number of Parties necessary for its entry into force may be given as an example as well as the possibility of bringing it into force by means of a declaration or even by means of ' de facto ' application, and the restrictions that apply to the effects of denunciation.

    Reservations

    ' Definition '

    3666 We are familiar with the fact that, when States sign or ratify a treaty, or when they accede to one, (2) they frequently make unilateral statements, usually known as "reservations", "interpretativ declarations", "declarations" or also "communications". The object of such statements varies, mainly as a function of the kind of treaty concerned, and the rules on reservations in international law [p.1060] have enshrined considerably during the last thirty years -- it could even be said to have occurred between 1951 and 1969. (3) We will limit ourselves tooutlining the relevant aspects of the rules laid down in the Vienna Convention on the Law of Treaties, without dwelling on the prior divergent views and uncertainties; the reason why the Protocol does ot contain provisions on reservations, is precisely because the Conference preferred to rely on the Vienna Convention as a codification of the principles of customary law. (4)

    3667 Article 2, paragraph 1(d), of the Vienna Convention contains the following definition:

    'reservation' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State".

    3668 Thus a reservation is a unilateral act by one particular State, as opposed to the text of the treaty to which it refers, irrespective of whether that treaty was established or adopted by a special conference (such as the CDDH, for example), or under the auspices of an international organization, or perhaps within such an organization. The unilateral character remains when several States formulate similar or identical reservations to a particular treaty, whether or not they do this after consultation ' inter se '. (5)

    3669 Any declaration made by a State purporting "to exclude or modify the legal effect of certain provisions of the treaty in their application to that State" is a reservation within the meaning of the definition given above. As the name given to the declaration or its phraseology are not decisive, there may be two types of discrepancies between form and substance. In the first case a declaration which is not phrased or named as a reservation may nevertheless in fact constitute a reservation if it purports to exclude or modify the legal effect of certain provisions of the treaty; in the second case, where it cannot or is not meant to produce such an exclusion or modification of legal effect, a declaration may not be a reservation despite its wording or name. (6)

    3670 There is a difference between reservations and interpretative declarations. The former purport to exclude or modify the legal effect of certain provisions in their application to the State making them; the latter lay down the meaning or the scope which a State attributes to a particular provision, without claiming to [p.1061] exclude or modify its legal effect. (7) However, the practical importance or this distinction is rather limited; for, as we have just seen, the real nature of a declaration, beyond its wording or the name given to it, must be established in any case, and in addition, such a finding will have to be made by every other State concerned.

    3671 Finally, we refer to three types of declaration which may accompany signature, ratification or accession, though they differ in character from reservations and interpretative declarations:

    a) declarations of acceptance under optional clauses, for example, relating to recognition of competence or jurisdiction. (8)
    b) declarations by which States specify that their participation in a treaty must not be taken to imply recognition of another State which they do not recognize, or to entail treaty relations with it, irrespective of whether or not that other State is Party to the treaty at the time of the declaration. (9)
    c) declarations which do not relate to the treaty subject to signature, ratification or accession. (10)

    ' The rules on reservations ' (11)

    1. ' Principle '

    3672 The Vienna Convention provides that when a State signs, ratifies or accedes to a treaty, it may formulate a reservation unless "the reservation is incompatible with the object and purpose of the treaty" (Article 19).

    3673 Reservations must be formulated in writing and communicated to the Contracting States (12) and other States entitled to become Parties to the treaty (13) (Article 23, paragraph 1). A reservation formulated at the time a treaty is signed subject to ratification, (14) must, in order to be valid, be formally confirmed when [p.1062] the treaty is ratified by the State which formulated the reservation (Article 23, paragraph 2).

    3674 Just as it is the responsibility of every other State concerned to determine whether any particular declaration does or does not constitute a reservation, so every State determines individually whether a reservation formulated by another State is or is not compatible with the object and purpose of the treaty. (15)

    2. ' Acceptance and objection '

    3675 A State may ' accept ' the reservation formulated by another State either explicitly or tacitly. (16) Acceptance of the reservation by a Contracting State allows the treaty to enter into force between that State and the State which had made the reservation. The treaty applies between these two States as modified by the reservation (Article 20, paragraph 4(a) and (c), and paragraph 5; Article 21, paragraph 1(a) and (b); Article 23, paragraphs 1 and 3).

    3676 A State may make an ' objection ' to a reservation made by another State. Unless the State which formulated the objection clearly expressed its intention to the contrary, an objection by a Contracting State does not prevent the treaty from entering into force, as soon as at least one other Contracting State has accepted the reservation, between the State formulating the objection and the State which made the reservation; however, "the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation" (Article 20, paragraph 4(b) and (c); Article 21, paragraph 3; Article 23, paragraphs 1 and 3).

    3677 Thus, it is necessary for the objecting State clearly to express its intention for the treaty not to enter into force, as modified by the reservation, between itself and the State which had made the reservation once at least one other Contracting State has accepted a reservation. Otherwise, the State accepting a reservation and that objecting to it may find themselves in the same situation, depending on the specific object of the reservation. (17)

    3678 Is should be emphasized that a reservation only applies as between the State making it and other States bound by the treaty. The reservation does not modify the provisions of the treaty for the other Parties to the treaty ' inter se ' (Article 21, paragraph 2).

    3679 As we saw with regard to objections, the Vienna Convention provides that a ratification or accession containing a reservation is effective only if at least one other Contracting State has accepted the reservation. The twelve month period [p.1063] laid down for tacit acceptance by States which had previously consented to be bound by the treaty may be longer than the periods laid down by certain treaties for their entry into force for a State after depositing its instrument of ratification or accession. (18) This requires two comments. Although, as we have seen, the Vienna Convention codified customary law, this period of twelve months may, on the other hand, be seen as a new norm, strictly applicable only between States bound by the Vienna Convention at the time of concluding a particular treaty. (19) In any event, the uncertainty which may exist, as to whether a State making a reservation has the status of a Contracting State, is relative in view of the fact that the risk is slight that a reservation will not be accepted by any other Contracting State, either explicitly or tacitly, whether the expression of that State's consent to be bound by the treaty is given either before or after that of the State making the reservation.

    3. ' Withdrawal of reservations and objections '

    3680 A reservation or an objection to a reservation may be withdrawn at any time, in writing. The withdrawal of a reservation becomes operative in relation to all other Contracting States when they have received notice thereof; the withdrawal of an objection becomes operative when notice thereof has been received by the State which formulated the reservation (Article 22 and Article 23, paragraph 4).

    The work of the CDDH (20)

    3681 On the question of reservations the draft Protocol contained an article consisting of two paragraphs: the first listed the articles to which no reservation [p.1064] could be made, (21) and the second provided that any reservation would lose effect five years after it had been formulated, failing renewal by means of a declaration addressed to the depositary.

    3682 When introducing this draft, the ICRC specified that it should be checked whether the content of the articles listed were still the same as in the original draft and, above all, whether there were other basic provisions contained in the draft or added by the Conference that were not included in the list. Such a list was proposed to take into account the new trends in international law and the difficulty of prohibiting any reservation at all -- a prohibition which might have seemed to be the only solution for a multilateral instrument with a humanitarian aim. If it proved too difficult to reach agreement with regard to the list of articles to which no reservation could be made, the ICRC was ready, in order to complete the work, to support the views in favour of deleting any provision relating to reservations, and consequently to leave this matter to be governed by general international law. (22)

    3683 The Working Group deleted paragraph 2 of the draft article by consensus and also proposed the deletion of paragraph 1 or, failing that, a new formula drafted by a small informal group. (23) The proposal for deletion was adopted after a vote in Committee. (24) A new proposal was presented in the plenary Conference, (25) but this did not get the required two-thirds majority. (26)

    3684 The delegations which spoke against the various lists proposed, did so according to their statements, because these lists were incomplete and because, as no agreement was likely within a reasonable period, it was best to leave the question to be governed by the rules of general international law. Several of these delegations emphasized the fact that they did not intend to make reservations to the articles listed or that they had in mind making few, if any, reservations.

    3685 As the Protocol does not contain an article relating to reservations, this question is subject to the rules of international law as codified in the Vienna Convention. The following may be hoped for:

    a) that the possibility of making reservations will facilitate the universal acceptance of the Protocol without adversely affecting its object and purpose, which is to improve the protection provided by the Conventions to the victims of international armed conflicts; (27) [p.1065]
    b) that any objections that may be raised to a reservation should not involve a refusal to enter into treaty relations with the State making the reservation;
    c) that States will not only study with the greatest caution the need to make a reservation but will regularly re-examine the need to maintain that reservation. (28)

    ' B.Z. '


    NOTES (1) [(1) p.1059] In this sense the Protocol might be considered as "restricted" treaty, since only specific States may become Parties to it; in fact, it is open-ended since, like the Conventions, it is intended to be universally applicable;

    (2) [(2) p.1059] For further information about such these legal procedures, in particular with respect to the Protocol, cf. articles 92-94 and the commentary thereon, infra, p. 1067;

    (3) [(3) p.1060] Advisory Opinion of the International Court of Justice on Reservations to the Convention on Genocide, ' ICJ Reports ', 1951, p. 15; Vienna Convention on the Law of Treaties of 23 May 1969, Art. 2, para. 1(d), and Arts. 19-23 (referred to below as "the Vienna Convention");

    (4) [(4) p.1060] For the work of the CDDH, cf. infra, pp. 1063-1065. As regards legal literature, we will limit ourselves to just one reference, to a work which inter alia also devotes numerous paragraphs to reservations to the Geneva Conventions: P.-H. Imbert, ' Les réserves aux traités multilatéraux ', Paris, 1979;

    (5) [(5) p.1060] As far as the Geneva Conventions are concerned, cf. C. Pilloud, "Reservations to the Geneva Conventions of 1949", op. cit., pp. 117-120, 164-168, 170-180 and 184-186;

    (6) [(6) p.1060] Ibid., pp. 117-123, 164-168 and 181-184; ' Commentary I ', pp. 116-117 (Art. 10), 301-302 (Art. 38); ' Commentary III ', pp. 114-115 (Art. 10); ' Commentary IV ', pp. 103-104 (Art. 11);

    (7) [(7) p.1061] This is different from the interpretation known as the "authentic" interpretation, i.e., the common interpretation on which States Parties to a treaty have agreed, whether in a formal treaty or otherwise. Cf. P. Reuter, ' Introduction au droit des traités ', op. cit., pp. 101-102 (para. 136);

    (8) [(8) p.1061] For example, Art. 90, para. 2(a) of the Protocol; the classic example is Article 36, paragraphs 2-3, of the Statute of the International Court of Justice;

    9) [(9) p.1061] It is to be hoped that declarations of this type relating to instruments of humanitarian law will never preclude their actual application; Art. 4 and Art. 5, para. 5, of the Protocol were adopted for this purpose and in order to remove any fear of unintended indirect effects;

    (10) [(10) p.1061] Cf., for example, the communication made by France on Protocol I at the time of its accession to Protocol II;

    (11) [(11) p.1061] Hereafter we only take treaties without provisions on reservations into account -- which is the case for the Protocol;

    (12) [(12) p.1061] I.e., according to Art. 2, para. 1 (f), "a State which has consented to be bound by the treaty, whether or not the treaty has entered into force";

    (13) [(13) p.1061] Below we will use the expression "States concerned" to designate these two categories of States collectively. According to Arts. 92 and 94, only Parties to the Conventions are entitled to become Parties to the Protocol. The various communications relating to the Protocol are made, in accordance with Art. 100, through the depositary;

    (14) [(14) p.1061] Procedure laid down in Arts. 92 and 93 of the Protocol;

    (15) [(15) p.1062] This does not preclude collective steps, in particular to obtain clarification of the meaning of a reservation. For an example of such a step through the intermediary of the depositary, cf. C. Pilloud, "Reservations to the Geneva Conventions of 1949", op. cit., pp. 171-173; ' Commentary III ', pp. 423-425 (Art. 85);

    (16) [(16) p.1062] A State is deemed to have accepted a reservation if it has not raised an objection to that reservation within twelve months from receiving notification of it, or by the date on which it ratified or acceded to the treaty, if this is later (Art. 20, para. 5);

    (17) [(17) p.1062] For views to the effect that such situations are identical or that there is a possible difference, cf. P.-H. Imbert, op. cit., pp. 260-268;

    (18) [(18) p.1063] The Protocol lays down a period of six months for this purpose (Art. 95, para. 2);

    (19) [(19) p.1063] On this subject, cf. P.-H. Imbert, op. cit., pp. 103-108. Art. 4 of the Vienna Convention reads as follows: "' Non-retroactivity of the present Convention ': Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which re concluded by States after the entry into force of the present Convention with regard to such States.";

    (20) [(20) p.1063] References: Draft Article 85. Commentary Drafts, pp. 103-106 (Art. 85). O.R. III, pp. 357-358, CDDH/I/74, CDDH/I/87, CDDH/I/87/Rev. 1, CDDH/421. O.R. VI, pp. 355-359, CDDH/SR.46, paras. 82-101; pp. 362-364, id., Annex Australia, Austria, Belgium); pp. 366-367 (Democratic Yemen); p. 368 (Ecuador); p. 370 (Finland); pp. 371-372 France); pp. 373-374 (Holy See, Honduras, Hungary); pp. 380-381 (Mozambique); p. 383 (Republic of Korea); p. 385 yria); p. 387 (Uruguay). O.R. VII, pp. 15-16, CDDH SR.47, paras. 1-5; p. 39, id., Annex (Chile); pp. 234-235, CDDH/SR.56, Annex (Democratic Yemen); p. 238 (German Democratic Republic); pp. 247-250 (Tunisia, Turkey); pp. 295-296, CDDH/SR.58, para. 86. O.R. IX, pp. 359-360, CDDH/I/SR.67, paras. 30-32; p. 363, paras. 49-50, 52-53; p. 473,CDDH/I/SR.76, paras. 1-2; p. 479, para. 39; pp. 498-499, CDDH/I/SR.77, Annex (Egypt); pp. 501-502 (Indonesia, Japan); pp. 504-505 (Poland, Republic of Korea); p. 509 (Syria); p. 511 (Cameroon); p. 512 (Zaire). O.R. X, p. 3, CDDH/48/ Rev.1, para. 2; p. 4, paras. 5C, 6; p. 64, CDDH/219/Rev.1, Annex; p. 140, CDDH/234/Rev. 1, Annex; p. 181, CDDH/405/Rev.1, para. 4; p. 182, paras. 11-12; pp. 195-196, paras. 81-86; pp. 237-239, id., Annex III, paras. 1-3; pp. 251-252, paras. 39-46;

    (21) [(21) p.1064] Articles of the draft corresponding to the following Articles of the final text: 5, 10, 20, 35, 37 (para. 1, first sentence), 41 (para. 1, first sentence), 43, 48, 51 and 52;

    (22) [(22) p.1064] O.R. IX, pp. 359-360, CDDH/I/SR.67, paras. 30-32;

    (23) [(23) p.1064] O.R. X pp. 251-252, CDDH/405/Rev.1, Annex III (CDDH/I/350/Rev.1), paras. 39-47. Reservations which were "incompatible with the humanitarian object and purpose of this Protocol, and in particular" those to Articles 1, 3, 5, 10, 20, 35, 43-45, 47, 51-56, 75, 85, 89, 91 and 96, para. 3 of the final text, were prohibited;

    (24) [(24) p.1064] O.R. IX, p. 479, CDDH/I/SR.76, para. 39. Vote: 47-34-4;

    (25) [(25) p.1064] O.R. III, p. 358, CDDH/421. Reservations "incompatible with the humanitarian aim and purpose of this Protocol, and in particular" those to Articles 1, 43, 44, 47 and 96, para. 3 of the final text, were prohibited;

    (26) [(26) p.1064] O.R. VI p. 359 CDDH/SR.46, para. 101. Voteby roll call: 42-36-17;

    (27) [(27) p.1064] Cf. infra, p. 1549, the list of Parties to the Protocol which indicates whether any reservations or declarations have been made. The text of reservations and declarations relating to the Conventions and the Protocols are available in reports which are regularly updated by the ICRC;

    (28) [(28) p.1065] On withdrawal of reservations to the Conventions, cf. C. Pilloud, "Reservations to the Geneva Conventions of 1949", op. cit., p. 184; several other cases of withdrawal have occured since then;