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Commentary - Entry into force
    [p.1079] Article 95 -- Entry into force


    General remarks

    3726 The principal object of paragraph I is to determine the decisive moment at which, by its entry into force, the Protocol becomes really part of international law. This moment is also that at which the Protocol enters into force for the first two Parties, i.e., its legal effects can be applied with respect to these Parties.

    [p.1080] 3727 Paragraph 2 determines the moment of the Protocol's entry into force for States ratifying or acceding lo it after the deposit of the second instrument of ratification or accession.

    3728 Article 95 was adopted by consensus, both in Committee I and in plenary. (1)

    Analysis of the article

    ' Paragraph 1 '

    3729 Even when it has been adopted by the competent body, a treaty really only commences to exist as an instrument of international law when a specific number of States accept being bound by it in accordance with the agreed conditions.

    3730 The number of two ratifications had been adopted for this purpose by the Conventions. (2) The Conference welcomed the ICRC proposal to keep to this minimum number of two for the Protocol: (3) this meant that it would quickly become applicable, at least between the Contracting States. Moreover, it could accelerate the rate of
    ratifications and accessions. Following this point of view in a consistent fashion, the Conference also decided to permit one or two instruments of accession to determine the entry into force of the Protocol, or to contribute to this. In fact, the Protocol entered into force on 7 December 1978 while it was still open for signature, after one ratification and one accession. (4) On this date it became an integral part of international law.

    3731 There is an interval of six months between the deposit of the second instrument of ratification or accession and the Protocol's entry into force for the first two Contracting Parties. This period serves to allow the States involved to prepare any legislative or administrative measures for implementing their new obligations. (5) It also serves to permit the depositary to make the notifications required by Article 100 ' (Notifications), ' sub-paragraphs (a), (b) and (c) (accessions, ratifications, entry into force of the Protocol, and any declarations in accordance with Article 90 -- ' International Fact-Finding Commission, ' paragraph 2(a)).

    ' Paragraph 2 '

    3732 This applies to States other than the first two Contracting Parties. There is an interval of six months identical to that laid down in paragraph 1, for the same reasons, between the deposit by a State of its instrument of ratification or [p.1081] accession and the entry into force of the Protocol between that State and the other Contracting Parties.

    ' Entry into force and application '

    3733 This article deals with the moment from which the legal effects of the Protocol will be applicable to the Contracting Parties, but this requires three clarifications.

    3734 First, the provisions relating to the entry into force of the Protocol and to certain functions of the depositary are obviously applicable from the outset.

    3735 Secondly, the respective points in time at which the other provisions become effectively applicable may vary: in this respect, one may refer to the commentary on Article 3 ' (Beginning and end of application) '. (6)

    3736 finally, only Contracting Parties, i.e., States, are taken into consideration in this context, and not the authorities covered by Article 96 ' (Treaty relations upon entry into force of this protocol), ' paragraph 3: sub-paragraph (a) of this paragraph provides for a special solution for the situations it covers.

    ' Immediate effect '

    3737 The Conventions contain a common article (7) by virtue of which the situations covered in their Article 2 will give immediate effect to ratifications and accessions deposited by the Parties to the conflict before or after the beginning of such situations. Thus, for obvious humanitarian reasons, the six month interval which normally separates the ratification or accession by a State from the entry into force of the Conventions for that State, is dispensed with if the conditions for their application are fulfilled.

    3738 Because the Protocol is an instrument additional to the Conventions, (8) the ICRC had considered that the clause concerned would apply to the Protocol and that it would not even be necessary to repeat it. However, upon reflection it was considered useful to ask Committee I whether there might be any doubt on this point. (9)

    3739 As no organ of the Conference requested a debate on this question, it may be concluded that, by virtue of Article 62 /61 /141 /157 common to the Conventions, the existence of a situation covered by Article 1 of the Protocol ' (General principles and scope of application) ' will give immediate effect to the ratifications and accessions of the Parties to the conflict. If this has not already been done, the depositary will give notification of such ratifications and accessions by the quickest means available.

    ' B.Z. '


    NOTES (1) [(1) p.1080] O.R. IX, p. 473, CDDH/I/SR.76, para. 3; O.R. VI, p. 351, CDDH/SR.46, para. 69;

    (2) [(2) p.1080] Art. 58/57/138/153 common to the Conventions;

    (3) [(3) p.1080] Nevertheless one State would have preferred that the entry into force of the Protocol had required half of the Parties to the Conventions, plus one, to be bound by it; cf. O.R. VI, p. 375, CDDH/SR.46, Annex Indonesia);

    (4) [(4) p.1080] Ratification by Ghana on 28 February 1978, and accession by Libya on 7 June 1978;

    (5) [(5) p.1080] Cf. commentary Art. 80, supra, p. 929;

    (6) [(6) p.1081] Supra, pp. 66-67;

    (7) [(7) p.1081] Art. 62/61/141/157;

    (8) [(8) p.1081] On this subject, cf. commentary on the title of the Protocol, supra, pp. 20-21, and on Art. 1, para. 3, supra, p. 39, and on Art. 96, para. 1, infra, pp. 1085-1086;

    (9) [(9) p.1081] O.R. IX, p. 359, CDDH/I/SR.67, para. 24;