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Commentary - Title of the Protocole and Preamble
    [p.19] Title of the Protocol -- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)


    General remarks

    1 The title of a treaty does not have a substantial juridical function, but primarily a practical one. If it is properly worded, it will enable all those concerned, first of all to find a particular treaty easily and logically from the many existing treaties, and subsequently it will enable them to see at a glance whether it really is the treaty being sought. The title of the Protocol is worded in such a way as to satisfy these requirements, and for practical purposes a short title, but still an official title, is added in parentheses. This is common practice, particularly in national legislation.

    2 With the exception of the addition of this short title, the wording adopted by the Conference is the same as that used in the draft. (2) No amendments were [p.20] officially proposed and it was adopted by consensus, both in Committee I and in the plenary Conference. (3)

    "Additional Protocol"

    3 This Protocol is unquestionably a treaty, i.e., according to the Vienna Convention on the Law of Treaties of 23 May 1969, "an international agreement concluded between States in written form and governed by international law, [...] whatever its particular designation" (Article 2, paragraph 1(a) ). (4)

    4 The expressions "additional protocol" or "protocol" are widely used to refer to a treaty supplementing an already existing treaty, and it is in this sense that the word "additional" is used in the title here. (5) Nevertheless, for the sake of completeness, it should be noted that there are supplementary treaties which are not termed "protocols", as well as independent protocols.

    5 The additional character of the Protocol means that it is not an independent instrument. Apart from what is said below about its relation to the 1949 Conventions, this is clearly demonstrated by the fact that it is impossible to become a Party to the Protocol without already being a Party to the Conventions -- or without becoming a Party to the Conventions simultaneously. (6)

    "to the Geneva Conventions of 12 August 1949"

    6 The relationship with the Geneva Conventions is fundamental and is structural in nature. Essentially the Protocol supplements the four Geneva Conventions of 12 August 1949 for the protection of war victims. (7) It supplements their substantive rules and their implementation mechanisms. In turn it is governed by those of their provisions which are relevant and which it has not amended, particularly the general and final provisions, as well as by their general principles.

    7 Two points must be clarified: some of the provisions of the Protocol supplement all four Conventions, some supplement only one or some of them; the Protocol also reaffirms and develops other treaty norms, and it reaffirms and elucidates customary rules. Such questions will be dealt with in greater detail in the discussion of Article 1 ' (General principles and scope of application) ' and Article 96 ' (Treaty relations upon entry into force of this Protocol), ' and particularly with regard to other provisions concerned.

    [p.21] "and relating to the Protection of Victims of International Armed Conflicts"

    8 Each of the four Conventions for the protection of war victims has its own title. (8) The wording used here qualifies the Protocol (9) and shows that it supplements the whole of the four Conventions, while Protocol II supplements Article 3 common to the Conventions and relating to non-international armed conflicts. (10)

    9 As regards the expression "armed conflicts", this was preferred because of its more objective character to the term "war", which is still used, for example, in the title of some of the Conventions and in Article 2 , common to the Conventions. (11)

    ' B.Z. '


    NOTES

    (2) Except that the word "draft", which was the first word, was of course deleted. In English the date was worded according to normal modern usage, as in Articles 1, para. 3 ; 2 , sub-para. (a); 53;

    (3) O.R. IX, p. 478, CDDH/I/SR.76, para. 35. O.R. VII, pp. 52-53, CDDH/SR.48, para. 11. After it had been adopted by the Committee, the Drafting Committee retained the present wording in all languages, although the English version had previously started with the words "First Protocol Additional", and did not have a short title;

    (4) As P. Reuter remarks: It is well-known that there is no precise terminology to designate international treaties, and that terms such as: ' treaty, convention, agreement, protocol ' can be used interchangably (' Introduction au droit des traités ', Paris, 1972, p. 69, para. 62);

    (5) Cf. General introduction, supra, on the reasons which led to a preference for the choice of protocols additional to the Conventions rather than a revision of the Conventions;

    (6) Cf. in particular, commentary Arts. 92, 94 and 96, para. 2, infra, pp. 1068-1069, 1076 and 1087, note 19, respectively;

    (7) "The Conventions", according to the definition of Article 2, sub-para. (a);

    (8) Cf. Art 2, sub-para. (a);

    (9) To avoid any ambiguity in this respect the English version uses the conjunction "and";

    (10) As explicitly stated in the Preamble, first paragraph, and in Art. 1 , para. 1, of Protocol II;

    (11) For the title of the Conventions, cf. infra, commentary Art. 2, sub-para. (a), p. 59. Para. 2 of Art. 2, common to the Conventions, provides that: "the present Convention shall apply to all cases of declared war or of any other armed conflict". Cf. also infra, commentary Art. 1, para. 3, p. 39.