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Commentary - Signature
    [p.1067] Article 92 -- Signature

    General remarks

    3686 In view of the wording of the subsequent article ("This Protocolshall be ratified"), Article 92 deals with "signature subject to ratification", as in fact did the corresponding article common to the four Conventions (56 /55 /136 /151 ).

    [p.1068] 3687 Signature does not definitively bind States to the Protocol; this is achieved by ratification and accession (1) dealt with in Articles 93 ' (Ratification) ' and 94 ' (Accession) '. (2) By signing the Protocol, States undertake to seriously consider the possibility of ratifying it; they are not obliged to proceed to ratification if they come across major obstacles in the interim. (3)

    3688 As regards the signature of the final Act of the Conference, this merely amounted to authentication of the instruments drawn up by the Conference. (4)

    3689 Article 92 was adopted by consensus both in Committee I and in a plenary meeting. (5)

    Analysis of the article

    ' States entitled to sign '

    3690 The Diplomatic Conference allowed all States Parties to the Conventions of 1949, and Members of the United Nations to participate on an equal basis. It also admitted national liberation movements as observers, insofar as they were recognized by the regional intergovernmental organizations concerned. The same States and liberation movements were entitled to sign the final Act in two separate groups. (6)

    3691 On the other hand, States not Parties to the Conventions, and liberation movements, are not permitted to sign and ratify the Protocol or to accede to it. In fact:

    a) as the Protocol is additional to the Conventions, it is not possible to be bound by the Protocol without being bound by the Conventions; (7)
    b) the fact that liberation movements do not have the status of States explains the drafting of Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraph 3, which provides for a special procedure for them to accept the Conventions and the Protocol.

    [p.1069] 3692 This does not in any way alter the fact that the Protocol is a treaty open to universal membership, as are the Conventions which it supplements; it should be noted that in fact the Conventions are at this time the multilateral treaties which have the largest participation (161 States as of 31 December 1984).

    3693 The Protocol can only be signed by Parties to the Conventions. In view of the period of time which precedes their entry into force for a State, this means that States must have ratified the Conventions or have acceded to them at least six months previously. (8) Since 13 February 1950 it has no longer been possible to sign the Conventions, and all signatories ratified them a long time ago. On the other hand, despite the strict interpretation mentioned above, it may be conceded that a State not Party to the Conventions could have simultaneously acceded to the Conventions and signed the Protocol: (9) the Vienna Convention on the Law of Treaties (10), common sense and humanitarian considerations justify this interpretation.

    ' Period of deferment '

    3694 The six month waiting period before the Protocol is open for signature is a rather exceptional feature: (11) in general a treaty is open for signature from the moment it is adopted. Some delegations explained how long it would take to complete the domestic procedures to consider the acceptability of such a complex treaty, even at the stage of signature, and the other delegations agreed. (12)

    3695 Thus the idea of such a deferment was accepted to ensure a greater number of signatories as soon as the Protocol would be open to signature. However, one delegation expressed the fear that such deferral could have the opposite effect as Protocol I would be forgotten by the ministries concerned. (13)

    ' Opening the protocol for signature '

    3696 The adoption of an instrument produced at a Conference and the signature of its final Act often take place on the same day. In the case of the Protocol it was [p.1070] adopted on 8 June 1977, (14) which is regarded as the date of the Protocol, while the final Act was signed on 10 June 1977. (15)

    3697 The Protocol was opened for signature from 12 December 1977 to 12 December 1978; during this time 62 States signed it. (16)

    ' Reservations and declarations '

    3698 At the time of signature of the Protocol, reservations or declarations could be made and some have actually been made. (17) If they affect the undertaking of a State to be bound by the Protocol or the interpretation which it intends to give to it, such reservations and declarations must be confirmed at the time of ratification, if they are to have effect. (18) However, this is not the case with regard to the declarations under Article 90 ' (International Fact-Finding Commission), ' paragraph 2, sub-paragraph (a), which can be validly made upon signature, (19) ratification or accession, or at any time thereafter.

    ' Notification by the depositary '

    3699 The signatures, as well as the reservations and declarations made at the time of signature, were notified by the depositary designated in Article 93 ' (Ratification) ' in accordance with Article 100 ' (Notifications), ' sub-paragraphs (a) and (c). (20)

    ' B.Z. '

    NOTES (1) [(1) p.1068] In this respect, refer to Articles 14 and 15 of the Vienna Convention on the Law of Treaties of 23 May 1969;

    (2) [(2) p.1068] For the concepts of ratification, accession and succession, cf. the commentary on these articles, infra, pp. 1071-1072 and 1077;

    (3) [(3) p.1068] According to Article 18 (Obligation not to defeat the object and purpose of a treaty prior to its entry into force), sub-para. (a), of the above-mentioned Vienna Convention, a signatory State must refrain from acts which would defeat the object and purpose of a treaty until it shall have made its intention clear not to become a party to the treaty;

    (4) [(4) p.1068] Cf., in this respect, Article 10 (Authentication of the text), sub-para. (b), of the said Vienna Convention;

    (5) [(5) p.1068] O.R. IX, p. 473, CDDH/I/SR.76, para. 3; O.R. VI, p. 350, CDDH/SR.46, para. 62;

    (6) [(6) p.1068] For the list of States and liberation movements participating in the CDDH, cf. O.R. I, Part I, pp. 4-7 and 15-113, Final Act, paras. 2-3, and appended signatures (the signatures of the Final Act also appear in O.R. VII, pp. 336-337, CDDH/SR.59, para. 5);

    (7) [(7) p.1068] On the additional character of the Protocol, cf. also the commentary on its title, supra, pp. 20-21 and commentary Article 1, para. 3, supra, p. 39, and Art. 96, para. 1, infra, pp. 1085- 1086;

    (8) [(8) p.1069] Art. 58 61/57, 60/138, 140/153, 156 of the Conventions;

    (9) [(9) p.1069] We will see below that the period during which the Protocol was open for signature has also terminated. The possibility envisaged here has not arisen during this period; however, an analagous case did arise, namely the simultaneous accession to the Conventions and the Protocol (cf. commentary Art. 94, infra., p. 1076);

    (10) [(10) p.1069] Art. 40 (Amendment of multilateral treaties), para. 3;

    (11) [(11) p.1069] The Convention of 10 October 1980 on the use of certain conventional weapons laid down the same deferment period in Art. 3;

    (12) [(12) p.1069] O.R. X, p. 240, CDDH/405/Rev.1, Annex III (CDDH/I/350/Rev.1), paras. 5-6;

    (13) [(13) p.1069] O.R. IX, p. 508, CDDH/I/SR.77, Annex (Syria); O.R. VI, p. 385, CDDDH/SR.46, Annex (Syria);

    (14) [(14) p.1070] By consensus, cf. O.R. VII, p. 194, CDDH/SR.56, para. 4;

    (15) [(15) p.1070] Ibid., pp. 336-337, CDDH/SR.59, para. 5;

    (16) [(16) p.1070] For the list of signatories, cf. infra, p. 1549;

    (17) [(17) p.1070] Seven of the ten countries which made reservations or declarations only actually reserved the right to formulate reservations or declarations on ratification;

    (18) [(18) p.1070] For the question of reservations and declarations as a whole, cf. the introduction to this Part, supra, pp. 1059-1065;

    (19) [(19) p.1070] This possibility was not used;

    (20) [(20) p.1070] For the functions of the depositary in their entirety, refer to the commentary on this article, infra, p. 1114;