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Commentary - Part V : Final provisions
    [p.1483] Part V -- Final provisions


    Introduction

    Purpose and content

    4895 The purpose of this Part is to lay down rules on the way in which States may express their will to be bound by the Protocol (Article 20 -- ' Signature, ' Article 21 -- ' Ratification, ' Article 22 -- ' Accession '), and on the way in which they are bound by this instrument (Article 23 -- ' Entry into force, ' Article 24 -- ' Amendment, ' Article 25 -- ' Denunciation '), on formalities of notification and registration (Articles 26 -- ' Notifications ' and 27 -- ' Registration ') and on authentic texts (Article 28 -- ' Authentic texts) '. (1) In addition, it lays down the principle that the Protocol has to be disseminated, in Article 19 ' (Dissemination). ' With the exception of the two provisions relating to dissemination and denunciation, (2) these are formal matters which are resolved and formulated in the same way as in Protocol I, and the ICRC draft was adopted without modifications.

    [p.1484] A brief historical note

    4896 To a large extent the drawing up of the draft took into account the Vienna Convention on the Law of Treaties. The ICRC was guided, in particular, by the work of the International Law Commission of the United Nations in the field of the codification and progressive
    development of the law of treaties. (3)

    Adoption

    4897 During the Diplomatic Conference the final clauses of the two Protocols were entrusted to Working Group C of Committee I. In view of the fact that the wording of the provisions is identical, the articles of Protocol II were adopted by consensus without any discussion, after the corresponding articles of Protocol I had been discussed, and these had not given rise to any great controversy either. (4)

    4898 As these articles are identical as regards their substance and structure, no separate commentary is necessary for Protocol II; therefore the reader is referred to the commentary on Articles 92 ' (Signature), ' 93 ' (Ratification), ' 94 ' (Accession), ' 95 ' (Entry into force), ' 97 ' (Amendment), ' 100 ' (Notifications), ' 101 ' (Registration) ' and 102 ' (Authentic texts) ' of Protocol I, which also applies for the corresponding final provisions of Protocol
    II.

    4899 On the other hand, Article 19 ' (Dissemination) ' and Article 25 ' (Denunciation) ' are different, and therefore require a separate commentary.

    Dissemination

    4900 Strictly speaking, Article 19 ' (Dissemination) ' is not a final provision, but rather a measure of implementation. The draft contained a part specifically devoted to execution. (5) Only the article concerning dissemination was retained in the final version of the Protocol. Therefore the Part, having lost its purpose, disappeared, and the one provision retained was included in Part V, "Final Provisions". This simplification did not have any effect on the substance. In fact, it was provided, first of all, that parties to the conflict should take measures to ensure observance of the Protocol; (6) that obligation follows in any case from Article 1 ' (Material field of application), ' paragraph 1, of the Protocol. Next, this Part contained two reminders: on the one hand, the possibility parties had to conclude special agreements, (7) and on the other, the possibility of inviting an impartial [p.1485] humanitarian organization such as the ICRC to co-operate in he observance of the provisions of the Protocol. (8) These two rules are already contained in common Article 3 , and consequently also apply for Protocol II. (9)

    Denunciation provision

    4901 The ICRC did not consider it necessary to include a denunciation provision in the draft of Protocol II. Working Group C of Committee I submitted a proposal (10) from a concern to maintain symmetry with Protocol I. This was adopted by consensus and constitutes the present Article 25 ' (Denunciation). ' (11) In this respect it should be noted that there is an omission in Articles 26 ' (Notifications) ' and 27 ' (Registration), ' as these do not mention notification of denunciation to Parties to the Conventions and to the Secretariat of the United Nations. As that article was adopted in Committee before the proposal to include a provision on denunciation was submitted, this was probably merely a technical error.

    Reservations

    4902 As in Protocol I, Protocol II does not contain a special provision concerning the possibility of making reservations. This consequently remains subject to the law of treaties. On this point, reference may also be made to the commentary on Protocol I. (12)

    ' S.J. '


    * (1) [(1) p.1483] O.R. IX, p. 356, CDDH/I/SR.67, para. 8;

    (2) [(2) p.1483] See infra, pp. 1487 and 1501;

    (3) [(3) p.1484] See ' United Nations, United Nations Conference on the Law of Treaties ', Official Records, 1st and 2nd sessions, New York, 1971. This work also contains draft articles on the law of treaties with comments adopted by the International Law Commission at its 18th session. Cf. also ' Commentary Drafts, ' p. 171 and note 20 (Part VIII);

    (4) [(4) p.1484] O.R. IX, p. 475, CDDH/I/SR.76, para. 8; O.R. X, pp. 202-205, CDDH/405/Rev.1, paras. 131-157;

    (5) [(5) p.1484] Part VII of the draft (Execution of the present Protocol), Arts. 36-39;

    (6) [(6) p.1484] Draft Art. 36 (Measures for execution);

    (7) [(7) p.1484] Ibid., Art. 38 (Special agreements);

    (8) [(8) p.1485] Ibid., Art. 39 (Co-operation in the observance of the present Protocol);

    (9) [(9) p.1485] Common Art. 3, paras. 2-3. On this point see also introduction to Part I and Art. 18, para. 2, supra, pp. 1343 and 1478;

    (10) [(10) p.1485] O.R. IV, p. 118, CDDH/I/350/Rev.1;

    (11) [(11) p.1485] See commentary Art. 25, infra, p. 1501;

    (12) [(12) p.1485] Cf. introduction to Part VI, Protocol I, supra, p. 1059;