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Commentary - Revision of Annex I
    [p.1099] Article 98 -- Revision of Annex I


    [p.1100] General remarks

    3791 This article sets out the procedure to be followed for the periodic revision of Annex I to this Protocol, which is entitled "Regulations concerning identification", hereafter referred to as Annex I. The procedure is sub-divided into six consecutive steps with which the six paragraphs of this article successively deal. Paragraphs 1 and 2 mention the role of the ICRC. (1)

    3792 Originally the report of the experts of the Technical Sub-Commission of Committee I of the Conference of Government Experts recommended in 1972 that "an international group of technical experts should review [...] to revise and update the identification and signalling standards, practices an procedures" proposed in the report for medical aircraft "in the light of technological advances". (2)

    3793 To this end Article 16 (Chapter V) of the draft Regulations concerning identification annexed to the 1973 draft of Protocol I provided for periodical revision.

    [p.1101] 3794 This procedure applies to all the provisions of Annex I and not only those concerning medical aircraft. In fact technical development and progress have an effect not only on the identification and signalling of medical units and transports in the air, but also on those at sea and on land, as military developments in the field of radio communications, detection, localization and identification cover all these: land, sea, air and even space.

    3795 All these technological advances have civilian uses, sometimes before being used for military purposes, which required the creation of specialized international organizations for regulating their use:

    -- the International Telecommunication Union (ITU) for the management of the electromagnetic frequencies spectrum, which is a natural resource;
    -- the International Maritime Organization (IMO) for maritime navigation (before 1 July 1982 the IMO was called the Inter-Governmental Maritime Consultative Organization (IMCO));
    -- The International Civil Aviation Organization (ICAO) for air navigation.

    3796 These three intergovernmental organizations each have a special procedure for the adoption and revision of rules which makes it possible for them to keep up with technological progress. For this purpose these organizations convene conferences of government experts of the member States. Furthermore, various other international conventions provide in advance for the possibility of amendment.

    3797 The recommendation of the experts of the Technical Sub-Commission for periodic revision and updating of the Regulations concerning identification annexed to Protocol I is therefore in accordance with established custom for technical rules. The usefulness of the regulations depends on their adaptation to technological development; this is what justifies the periodic meetings of technical experts and a special procedure for revision separate from that for amendment of the Protocol. (3)

    3798 When the 1973 draft had been considered at the first session, the Technical Sub-Commission thought that it was a legal matter within the terms of reference of Committee II which was sent the text of Chapter V (Article 16) together with the proposed amendments for consideration. (4)

    3799 In the course of the work of Committee II during the third session, Article 16 of the draft Annex became Article 18 bis of the Protocol; it was adopted by consensus and transferred to Part VI of the Protocol. The Conference also adopted it by consensus and it became Article 98 in the final version of the Protocol. (5)

    3800 Article 98 provides for revision of Annex I, after the ICRC has consulted the High Contracting Parties, four years after the entry into force of Protocol I and thereafter at intervals of not less than four years. As Protocol I entered into force on 7 December 1978, the ICRC consulted the Contracting Parties on 7 December [p.1102] 1982, in accordance with Article 98 , with regard to the question whether a meeting of technical experts should be convened in order to review the Regulations concerning identification.

    3801 For its part the ICRC did not propose such a meeting of experts as it considered that the number of States Parties to the Protocol was still too small in 1982 and that is was preferable to postpone the procedure for revision until later. Moreover, the international organizations to which the Diplomatic Conference had addressed its Resolutions 17, 18 and 19 in 1977, viz., respectively, ICAO, IMO and ITU, were still working on many important points.

    3802 As of June 1985 the results of the work undertaken by these organizations in response to these Resolutions had yielded already certain indispensable technical additions for the practical application of Annex I.

    3803 If henceforth the revision procedure, in accordance with Article 98 , modifies the existing rules, this commentary will also have to be updated.

    Heading of the article

    3804 Annex I of the 1973 draft contained a Chapter V entitled "Periodical revision". That Chapter only contained one article, Article 16, entitled "Procedure".

    3805 Committee II transferred the amended Article 16 to Protocol I as Article 18bis entitled "Revision of the Annex" and deleted Chapter V of the draft. Article 18bis became the present Article 98 , of which the heading reads "Revision of Annex I". In fact it is concerned with the periodical revision and updating of the Regulations concerning identification annexed to Protocol I.

    Paragraph 1

    3806 Paragraph 1 lays down the intervals at which the revision should take place, and the role of the Contracting Parties and the ICRC in this process.

    3807 According to the sponsors of the amendment which the Technical Sub-Commission communicated to Committee II together with draft Article 16 of Annex I, an interval of four years would enable any meetings of technical experts to coincide with the sessions of the International Conference of the Red Cross. (6)

    3808 As we have seen, the ICRC carried out its task of consulting the High Contracting Parties regarding the revision of Annex I for the first time in 1982.

    3809 The proposal made by the ICRC to postpone the first revision of the Regulations did not meet with opposition. Thus the ICRC must again consult the Parties to the Protocol about revision of the Regulations at the next date due for revision, viz., not less than four years after 7 December 1982, i.e., after 7 December 1986; and similarly thereafter at intervals of not less than four years. The interval may be longer if the ICRC considers that technological developments justify this.

    [p.1103] 3810 When consulting the Contracting Parties regarding the need to convene a meeting of technical experts for the purpose of revising the Regulations, the ICRC may propose such a meeting or suggest that it be postponed to the next due date four years later. If the ICRC proposes that the meeting should take place, it may at the same time propose the amendments it deems desirable. On the other hand, if it proposes postponing the meeting, the ICRC must give reasons therefore. The purpose of Article 98 is the periodic revision of Annex I in order to maintain its effectiveness and thus it is this criterion of efficacy which must guide the ICRC's decision whether to convene or postpone a meeting of experts.

    3811 Paragraph 1 gives the ICRC the role of ensuring that the technical provisions of Annex I will always remain up to date. Therefore the ICRC undertakes to remain at all times informed of the views held by the experts of the Parties to the Protocol on technological developments in the fields covered by the Regulations. With the support of these experts it also undertakes to prepare the necessary amendments and to anticipate the needs in the light of technological progress.

    3812 Finally, the ICRC is to convene a meeting of technical experts six months after it has proposed such a meeting to the Contracting Parties. This interval gives those who may be opposed to the meeting the opportunity of expressing their view. The meeting of experts proposed by the ICRC will not be convened if one third of the Contracting Parties objects.

    3813 The "appropriate international organizations" must be invited by the ICRC in order that they may be represented by observers at the planned meeting. These are in particular the ITU, ICAO and IMO, the International Electro-Technical Commission (IEC), the International Commission on Illumination (CIE), as well as other organizations interested in future developments, such as the International Maritime Satellite Organization (INMARSAT).

    3814 The ICRC may be called upon to convene a meeting of technical experts at any time at the request of one third of the Contracting Parties. It is highly desirable that these Parties should add to their request the necessary explanations and the amendments they wish to make to Annex I, in order that the ICRC may advise the technical experts thereof in good time. The technical experts concerned in this paragraph are government experts to be appointed by the Contracting Parties.

    Paragraph 2

    3815 The second step in the revision procedure is the calling of a conference of the Parties to the Protocol and the Parties to the Conventions to consider the amendments proposed by the meeting of technical experts. For this purpose, at the end of the meeting of experts, the ICRC or one third of the Parties to the Protocol may request the federal Council (the Swiss government), the depositary of the Protocol, to convene the conference. (7)

    3816 The text of this paragraph, which provides that the Contracting Parties, as well as the Parties to the Conventions, must be invited to conferences convened to [p.1104] consider amendments proposed by the meeting of technical experts, is on the same lines as paragraph 2 of Article 97 ' (Amendment) ' of the Protocol. In addition, Article 7 ' (Meetings) ' of the Protocol provides for meetings of Parties to the Protocol. It may be thought that for all such meetings and conferences the arrangements regarding financing, rules of procedure, place and date of meeting etc. will be similar. According to this paragraph, the deliberations in the conference can only be about amendments proposed by the technical experts. Thus the participating States may only propose additions, deletions or modifications of the agenda if they are related to these amendments. Neither this Article nor Article 97 ' (Amendment) ' of the Protocol says anything about the question whether Parties to the Conventions which are not Parties to the Protocol are entitled to make proposals and to take part in the discussions. (8) However, for amendments to Annex I this right ought to be granted to all participants of the conference concerned. A decision on granting it should be taken by the Parties to the Protocol.

    3817 Paragraph 2 does not say whether the depositary State should also invite the above-mentioned international organizations as observers. This seems useful, and even indispensable, since the conference is called to consider technical provisions which sometimes involve the competence of one or other of these specialized organizations. The Swiss federal Council in its message to the federal Parliament on the additional Protocols did not express a view on this point.

    3818 After the adoption of Article 18bis in Committee, the representatives of four States at the diplomatic Conference made statements reserving the position of their governments on this article. These reservations regarding the article as a whole were prompted by their views on granting powers to the ICRC to convene meetings of technical experts and conferences of Contracting Parties in accordance with the provisions of paragraphs 1 and 2 of the article. They said that this did not belong to the authority of the ICRC in its capacity as an impartial international organization, and that the provisions of Article 18bis impinged upon the sovereignty of States. (9)

    3819 During the discussions in Committee II the ICRC representative emphasized that the sovereignty of States was not at issue. (10) The procedures laid down in paragraphs 4, 5 and 6 of Article 98 prove this: the sovereignty of States is respected.

    [p.1105] Paragraph 3

    3820 The majority of two-thirds of the High Contracting Parties present and voting as specified in this paragraph corresponds to the rule of the Diplomatic Conference on voting on questions of substance. (11)

    3821 The voting procedure to be used by the Parties to the Protocol on amendment to Annex I might logically be the same as that provided for in the Rules of procedure of the Diplomatic Conference. (12)

    Paragraph 4

    3822 The provisions of this paragraph leave intact the sovereign right of States to accept or reject an amendment to Annex I. In its message on the Protocols, the Swiss federal Council stated, with regard to this article, that every Contracting Party has the option of declaring within twelve months that it does not wish to be bound by the amendment (the so-called "opting-out system").

    3823 The number of Contracting Parties may change in the course of the one year period laid down for the acceptance or rejection of an amendment. On this point paragraph 2 of Article 95 ' (Entry into force) ' of the Protocol establishes the date when a State becomes Party to the Protocol, namely, six months after the deposit of its instrument of ratification or accession. On the other hand, the date when a Party denouncing the Protocol ceases to be a Party is laid down in Article 99 ' (Denunciation) ' of the Protocol.

    3824 In the case of new accessions or ratifications the number of Contracting Parties to take into account to calculate one third as laid down in this paragraph should be taken as six months prior to the end of the above-mentioned period of one year.

    3825 In fact for Parties ratifying or acceding to the Protocol during the last half of this year, the period of one year laid down in paragraph 4 lapses on the date when the Protocol enters into force for them. Thus such Parties are not taken into account in calculating the one third rejecting an amendment.

    Paragraph 5

    3826 There is a three month period following the date of acceptance, before an amendment enters into force for all Contracting Parties which have not made a declaration of non-acceptance. This three month period should permit States to issue national rules for the implementation of the amendment concerned. This period should also permit the depositary to make the notifications laid down in paragraph 6.

    [p.1106] 3827 During or after the one year period, a State which has made a declaration of non-acceptance may revoke its decision and accept the amendment. It will then enter into force for that State at the same time as for the other Contracting Parties if the non-acceptance is withdrawn before the expiry of the one-year period. If the withdrawal of the non-acceptance is communicated to the depositary State after the expiry of the one year period laid down in paragraph 4, the amendment enters into force three months after the notification of the withdrawal.

    3828 During the discussion of the provision laid down in paragraph 5, the Chairman of Committee II noted that in accordance with Article 32 of the Vienna Convention on the Law of Treaties the records of the Conference may, in general, be used as a means of interpreting the text when there is doubt about its precise meaning. Furthermore, the representative of the United Kingdom, explaining paragraph 5 on behalf of the sponsors of amendment CDDH/II/359, said that

    "they had taken as their model some recent international instruments with technical annexes, in particular the IMCO Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil (1973). In
    order to speed up the entry into force of amendments to such technical annexes, [...] the traditional principle was merely reversed, a State being deemed to accept an amendment unless it rejected it." (13)

    Paragraph 6

    3829 The efficacy of Annex I depends on the provisions to be adopted by specialized international organizations following Resolutions 17, 18 and 19 addressed to those organizations by the Diplomatic Conference.

    3830 Annex I may therefore have to align itself with the rules and regulations of the competent international organizations, in particular as regards light signals, radio communications, identification by radar and electronic identification.

    3831 Thus it will be useful for such specialized international organization also receive the information provided by the depositary in accordance with paragraph 6.

    3832 This article does not deal explicitly with States which become Parties to the Protocol after the entry into force of an amendment to Annex I. However, Article 40, paragraph 5, of the above-mentioned Vienna Convention lays down a rule, applicable if there is no specific rule in the treaty in question, similar to that of paragraph 5 above. According to that article, such States become Parties to the Protocol with Annex I as amended unless they express an intention to the contrary.

    ' Ph. E. '


    NOTES (1) [(1) p.1100] Cf. introduction to Annex I, infra, p. 1137;

    (2) [(2) p.1100] ' CE 1972, Report ', Vol. I, p. 55, Annex III, para. 14;

    (3) [(3) p.1101] Cf. commentary Art. 97, supra, p. 1093;

    (4) [(4) p.1101] O.R. XIII, p. 34, CDDH/49/Rev.1, paras. 69-72. O.R. III, pp. 91-92, CDDH/II/68; pp. 92-93, CDDH/II/357 and 359; p. 378, Chapter V, Art. 16; p. 401, note;

    (5) [(5) p.1101] O.R. XII, pp. 246-247, CDDH/II/SR.77, para. 69; O.R. VII, p. 55, CDDH/II/SR.48;

    (6) [(6) p.1102] Cf. O.R. XII, p. 208, CDDH/II/SR.74, para. 5;

    (7) [(7) p.1103] For a summary of the depositary's functions, cf. commentary Art. 100, infra, p. 1113;

    (8) [(8) p.1104] Cf. commentary Art. 97, supra, p. 1093;

    (9) [(9) p.1104] Cf. O.R. XII, p. 258, CDDH/II/SR.79, paras. 8-10; O.R. XIII, p. 269, CDDH/235/Rev.1, paras. 64-65;

    (10) [(10) p.1104] Cf. O.R. XII, p. 209, CDDH/II/SR.74, para. 13; p. 211, paras. 26, 30; p. 241, CDDH/II/SR.77, para. 30; p. 242, para. 38;

    (11) [(11) p.1105] Rule 36 of the Rules of procedure clarifies the meaning of the expression "representatives present and voting"; the expression "High Contracting Parties present and voting" has the same meaning. Cf. O.R. II, p. 10, CDDH/2/Rev.3, Rule 36;

    (12) [(12) p.1105] Cf. ibid., pp. 9-11, Rules 34-40;

    (13) [(13) p.1106] Cf. O.R. XII, pp. 213-214, CDDH/II /SR.74, paras. 42-45. See also the 1969 IMO International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION 1969) and the 1973 Protocol relating to Intervention on the High Seas in Case of Marine Pollution by Substances other than Oil (INTERVENTION PROT 1973);