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Commentary - Ratification
    [p.1071] Article 93 -- Ratification


    General remarks

    3700 Article 93 is the natural and indispensable complement to the preceding article relating to signature. Ratification is the act by which a State Party to the Conventions, which is a signatory to the Protocol, binds itself definitively to this instrument so that it applies to its relations with the other Contracting Parties. If the State concerned wishes to do so, these two steps can be replaced by the single act of accession.

    3701 Moreover, there is the possibility of "notification of succession"; by means of such notification a newly independent State continues its participation to a [p.1072] treaty established on his behalf, before it became independent, by the former administering power. This possibility exists even though it has not been laid down in the Protocol; (1) it was used for the Conventions in a large number of cases. (2) However, it does not seem very probable that a case of succession will arise for the Protocol.

    3702 The definitive undertaking in the form of ratification, accession or succession, should be distinguished, on the one hand, from the contingencies laid down in Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraphs 2 and 3, and, on the other, from notice of the provisional application of treaties by a newly independent State. (3)

    3703 The Swiss federal Council was the depositary of the Conventions of 1949 and of all their preceding Conventions, and it was obvious that its role should be extended to the Protocol aimed at supplementing them. (4)

    3704 This article was adopted by consensus, both in Committee I and in plenary. (5)

    Analysis of the article

    ' The nature of ratification '

    3705 The Conference chose for signature to be followed by ratification, and for accession, out of the various ways in which consent to be bound by a treaty can be expressed. (6)

    3706 As signature does not bind a State definitively, it can be appended fairly easily. On the other hand, ratification commits the State, which must henceforth comply with the obligations contained in the treaty; it therefore requires a thorough examination on the merits, and means that a number of domestic procedures laid down in the constitution of every State must be followed.

    3707 Preparing for ratification can in fact be accompanied by the development of measures for the execution of the obligations such as those envisaged in Article 80 ' (Measures for execution); ' at least a preliminary study of such measures is indispensable in the examination of ratification. On the other hand, their final drafting and implementation do not become legal obligations until the Protocol has been ratified or even not until it has entered into force with regard to the State concerned. (7)

    [p.1073] 3708 The minimum obligation of every State between depositing its ratification and the entry into force of the treaty for it, is to refrain from acts which would defeat the object and purpose of the treaty. (8)

    3709 The expression "as soon as possible" is not very common. It has been taken from the corresponding article of the Conventions (57 /56 /137 /152 ) and represents an exhortation without laying down a precise period. (9)

    ' The form of the ratification '

    3710 The instrument of ratification must be deposited by the diplomatic representatives of the country concerned with the Swiss federal Council, or transmitted in the form of a written communication.

    ' Reservations and declarations '

    3711 The instrument of ratification must also mention any reservations and declarations that may be made and, if the question arises, confirm declarations of any nature made at the time of the signature, if the State wishes to maintain these. (10) However, a declaration in accordance with Article 90 ' (International Fact-Finding Commission), ' paragraph 2(a), made at the time of signature, (11) does not need to be confirmed upon ratification in order to be maintained. Moreover, it can be made at any time after the ratification.

    ' Notification by the depositary '

    3712 The depositary will notify the deposit of every instrument of ratification, as well as any declarations and reservations, in accordance with Article 100 (' Notifications '), sub-paragraph (a) and (c). As of 31 December 1984, 18 of the 62 signatory States had ratified the Protocol, of which six did so with a declaration in accordance with Article 90 ' (International Fact-Finding Commission), ' paragraph 2(a), and seven with reservations or declarations (12)

    ' B.Z. '


    NOTES (1) [(1) p.1072] The question is dealt with in the Vienna Convention on Succession of States in Respect of Treaties of 23 August 1978;

    (2) [(2) p.1072] Cf. B. Zimmermann, "La succession d'Etats et les Conventions de Genève", in ' Studies and Essays in honour of Jean Pictet ', op. cit., p. 113;

    (3) [(3) p.1072] Ibid. Cf. also the above-mentioned Convention, supra note 1, Arts. 27-29;

    (4) [(4) p.1072] For an overall picture of the functions of the depositary, cf. commentary Art. 100, infra, p. 1114;

    (5) [(5) p.1072] O.R. IX, p. 473, CDDH/I/SR.76, para. 3; O.R. VI, p. 351, CDDH/SR.46, para. 67;

    (6) [(6) p.1072] Cf. Vienna Convention on the Law of Treaties of 23 May 1969, Arts. 11-16;

    (7) [(7) p.1072] Cf. Art. 95;

    (8) [(8) p.1073] Cf. Convention mentioned above, supra, note 6, Article 18 (Obligation not to defeat the object and purpose of a treaty prior to its entry into force), sub-para. (b);

    (9) [(9) p.1073] One delegation would have liked to delete this clause: O.R. X, p. 240, CDDH/405/Rev.1, Annex III (CDDH/I/350/Rev.1), para. 7; O.R. VI, p. 351, CDDH/SR.46, para. 68; p. 375, id., Annex (Indonesia);

    (10) [(10) p.1073] On the general question of reservations to the Protocol, cf. introduction to this Part, supra, pp. 1059-1065;

    (11) [(11) p.1073] This possibility was not used;

    (12) [(12) p.1073] For the list of ratifications, with references to all reservations or declarations, cf. infra, p. 1549;