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Commentary - Treaty relations upon entry into force of this Protocol
    [p.1083] Article 96 -- Treaty relations upon entry into force of this Protocol


    [p.1084] General remarks

    3740 The three paragraphs of this article deal with related, though separate, questions. Paragraph 1 is applicable, as indicated by the heading of the article itself, upon entry into force of the Protocol with respect to each Party to this instrument; the questions dealt with in paragraphs 2 and 3, although they are of the same order, apply only in cases of conflict.

    3741 Paragraph 1 and the first sentence of paragraph 2 deal with treaty relations in the full sense of the term, i.e., the relations between Parties which have followed the prescribed procedures of signature followed by ratification or of accession, and are therefore fully and permanently bound by the Conventions and the Protocol. (1) The rest of the article provides for special ways in which the Protocol can enter into force in relation to a particular conflict.

    3742 It is appropriate to recall with regard to the three paragraphs that in relations between Parties to a conflict not governed by the Protocol (or even not governed by the Conventions), the customary law of international armed conflict is fully applicable from the outset.

    3743 Paragraphs 1 and 2 correspond to the draft submitted to the Conference (Article 84). Paragraph 3 is the result of a proposal presented during the Conference after the adoption of Article 1 ' (General principles and scope of application), ' paragraph 4, in Committee I.

    3744 Paragraph 3 was adopted immediately in Committee without being examined by the Working Group, which several delegations regretted. (2) After being examined by the Working Group paragraphs 1 and 2 were adopted in Committee I by consensus, as was the article as a whole. (3) The plenary Conference adopted the article in its entirety by roll-call. (4)

    [p.1085] Paragraph 1

    3745 The Conference's title indicated its purpose, namely to reaffirm and develop international humanitarian law applicable in armed conflicts, and the Protocol expresses the same idea in the third paragraph of the Preamble. The title of the Protocol proclaims that it is "Additional to the Geneva Conventions of 12 August 1949" and Article 1 ' (General principles and scope of application), ' paragraph 3, provides that it "supplements" these Conventions. (5)

    3746 The addition of a supplement to the Conventions entails the appearance of two separate, though basically overlapping treaty communities once the Protocol enters into force. (6) On the one hand, the virtually universal already existing community of Parties to the Conventions; on the other hand, that which came into existence on 7 December 1978 (7) of Parties bound by the Conventions and by the Protocol. (8)

    3747 Only this new treaty community is covered by the paragraph under consideration here. It lays down a rule that applies at all times, and not only in time of armed conflict within the meaning of Article 1 ' (General principles and scope of application), ' paragraphs 3 and 4. (9)

    3748 Basically the Protocol supplements the Conventions by extending the scope of their application, the categories of protected persons and objects and the protection conferred. Thus the Conventions remain and the Protocol adds to them without in principle removing anything. (10) When the recognized rules of interpretation reveal an incompatibility on a particular point between the provisions of the Conventions and those of the Protocol, the latter take precedence. In this respect this paragraph merely repeats, succinctly, the relevant rule of the law of treaties. (11)

    3749 The Protocol explains its relation to the Geneva Conventions of 1949; the latter do the same with regard to the conventions preceding them, which they replace, (12) [p.1086] and the Hague Regulations respecting the laws and customs of war on land (of 1899 or 1907), which they supplement. (13)

    3750 In the area which the Protocol and the law of The Hague have in common, but which is absent from the Conventions, the situation is as follows according to the above-mentioned rule: pre-existing law continues to apply as treaty law or customary law insofar as it is not modified or replaced by the Protocol.

    3751 In general the relation between the Protocol and all other relevant instruments is studied in this commentary with regard to each provision or group of provisions for which the question arises. (14)

    Paragraph 2

    3752 This paragraph is taken ' mutatis mutandis ' from paragraph 3 of Article 2 , common to the Conventions, and like the latter, deals with two aspects of the same assumption, namely that the Parties to a given conflict are not all bound by the same rules. Until such time as the Protocol is in force universally like the Conventions, it is necessary to determine what is the status in such a situation of the provisions of the Protocol insofar as they are not customary law.

    ' First sentence '

    3753 This has been a basic rule of the Geneva Conventions since 1929, (15) while the earlier Conventions of Geneva and The Hague included a ' clausula si omnes ' or clause of universal participation. According to that clause, if was sufficient for one of the Parties to the conflict not to be bound by a particular convention for all the other Parties to the conflict, even though they were bound by that convention, to be absolved from applying it, even between themselves. This had the effect that formally the conventions of humanitarian law in existence at the time were not applicable at the beginning of the First World War. (16)

    3754 Under the present sentence a Party to a conflict bound by the Protocol remains bound to apply it vis-à-vis the adverse Parties bound by the same instrument, even if one or several adverse or allied Parties are not bound by the Protocol. If necessary Article 1 ' (General principles and scope of application), ' paragraph 1, of the Protocol confirms that this applies in all circumstances despite practical difficulties which may arise, for example, in military alliances. (17)

    [p.1087] ' Second sentence '

    1. ' Conflicts between States '

    3755 The procedure by which a State binds itself to the terms of an international treaty is a lengthy one: apart from a thorough examination of the treaty it must carry out at least a preliminary study of the measures for execution which will follow from participation in the treaty in question. (18) Thus it may happen that a State gets involved in an international armed conflict without having completed the internal procedure of examining the Protocol. In that case, if the State concerned so desires, this is a way of making the Protocol legally applicable between itself and the other Parties to the conflict already bound by that instrument. (19) Although the sentence concerned only refers to one Party, the same procedure may of course be used by several Parties to a conflict which are not bound by the Protocol.

    3756 The way that is open to achieve this is limited in its effects. In fact, it does not definitively bind the Party concerned to all the obligations as does ratification or accession; acceptance (20) is limited to the current conflict and the Party making the declaration of acceptance retains total freedom as regards its formal participation in the Protocol.

    3757 This procedure is not unduly legalistic. The question when and precisely under what conditions the Conventions would become applicable according to their relevant provision (identical to the provision under consideration here), was discussed at length in 1949. We summarize below the conclusions of the commentary on the Conventions:

    -- it is highly desirable to have an official and explicit declaration from the accepting Party. However, this is not expressly required, and if the declaration is lacking or its transmission delayed, actual application implies acceptance (tacit acceptance). (21)
    -- the Parties bound by the Protocol engaged in a conflict with a non-contracting Party will presume that the latter intends to apply the Protocol and they will apply it themselves pending a possible declaration and above all until they have had the possibility of assessing the conduct of the non-contracting adverse Party; [p.1088]
    -- only in case the non-contracting Party manifestly fails to apply the Protocol in practice, may the Parties bound by the Protocol abandon applying it -- with regard to that non-contracting Party
    -- irrespective of whether or not there has been a declaration of acceptance.

    2. ' Armed conflict for self-determination ' (22)

    3758 The following paragraph lays down a special procedure for authorities representing peoples fighting for self-determination. If the authority concerned is fighting against a Party to the Protocol, recourse to paragraph 3 will have the advantage of greater clarity; the possibility laid down in this paragraph does not seem adequate. However, if communication with the depositary is difficult, slow or impossible, such a solution may still be envisaged, in which case the declaration should also relate to the Conventions, based on their common Article 2 , paragraph 3. (23)

    Paragraph 3

    3759 As the Protocol states in Article 1 ' (General principles and scope of application), ' paragraph 4, that armed conflicts for self-determination are international, the Conference considered it necessary to lay down a special procedure of acceptance for authorities representing peoples engaged in such conflicts. We will first examine the declaration laid down in this paragraph, and then study any further cases that may occur if all the conditions required here are not fulfilled.

    1. ' Conditions of application of the paragraph '

    3760-- In view of the reference to Article 1 ' (General principles and scope of application), ' paragraph 4, there must be an armed conflict "in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination [...]." (24)

    3761-- The armed conflict must be between a people fighting for self-determination and a Party to the Protocol. If the instrument of ratification or accession of the [p.1089] Party concerned was deposited less than six months before, a declaration by the authority representing the people engaged in the conflict remains possible by virtue of the provision on immediate effect included in the Conventions. (25)

    3762-- There must be a declaration addressed to the depositary. (26)

    3763-- The declaration must come from an authority representing the people engaged in the conflict concerned, which requires two points to be clarified:

    -- first, it has occurred in some conflicts for self-determination that two or more authorities were deemed to represent the people engaged in the conflict. (27) In such a case the present paragraph may be applied without difficulty if there is a common declaration or if there are concordant declarations from those authorities; if, on the other hand, one or other of the authorities does not make the declaration, this paragraph applies only between the Contracting Party and the authority or authorities making the declaration. (28)
    -- a proposal to require recognition by the competent regional intergovernmental organization, which was not included in Article 1 ' (General principles and scope of application), ' paragraph 4, was not adopted either for inclusion in the text of the present paragraph. (29)

    2. ' Nature of the declaration '

    3764-- The declaration which the authority concerned must make is unilateral since it produces its effects irrespective of the conduct of the Contracting Party. On the other hand, it does not create merely unilateral obligations; it brings into force rights and duties between the two Parties to the conflict which flow from the Conventions and the Protocol and it does so because of the fact that the Contracting Party against which the fight is directed had previously become a Party to the Protocol.

    3765-- The declaration is a condition for sub-paragraphs (a)-(c) becoming applicable: the status recognized to liberation movements indeed gives them, as it gives States, the right to choose whether or not to submit to international humanitarian [p.1090] law, insofar as it goes beyond customary law. In this respect they are in a fundamentally different legal position from insurgents in a non-international armed conflict: if the State in whose territory such a conflict takes place is a Party to the Conventions and to Protocol II, Article 3 common to the Conventions and, as the case may be, Protocol II, will bind all the Parties to that armed conflict straightaway. (30)

    3766-- Any reservations the Contracting Party may have made will affect the relations between that Party and the authority making the declaration insofar as they are compatible with the object and purpose of the Conventions and of the Protocol. (31) The authority, too, could formulate reservations, subject to the general conditions relating thereto, if it considered it necessary to do so. (32) however, the greatest prudence is appropriate in order to avoid any controversy which might jeopardize the application of international humanitarian law in the conflict that has broken out.

    3. ' Effects of the declaration '

    3767-- The Conventions and the Protocol immediately come into force between the Contracting Party and the authority.

    3768-- In relation to the conflict taking place the authority making the declaration assumes the same rights and the same obligations as a Party to the Conventions and to the Protocol. (33) On the other hand, Article 7 ' (Meetings) ' and, with the exception of this article, the whole of Part VI, are not applicable to the authority. (34)

    769-- The Conventions and the Protocol bind all the Parties to the conflict equally: this is a reminder of a basic rule of this law, reaffirmed in the fifth paragraph of the Preamble, and in Article 1 ' (General principles and scope of application), ' paragraph 1, of the Protocol. "All Parties to the conflict" is to be understood subject to what we said regarding the case that two or more authorities represent the same people engaged in a conflict.

    [p.1091] 4. ' Cases when a declaration is impossible '

    3770 The declaration laid down in this paragraph is only possible if an armed conflict is conducted against a Party to the Protocol. What is the position if an armed conflict within the meaning of Article 1 ' (General principles and scope of application), ' paragraph 4, is conducted against a Party not bound by the Protocol?

    a) ' The State is a party to the Conventions '

    3771 The gradual recognition in international law of the right of self-determination and of the international nature of armed conflicts conducted in the exercise of this right had led to the view, even before the Protocol, that common Article 2 , paragraph 3, of the Conventions opened also to national liberation movements a possibility to accept the Conventions.

    3772 For the advocates of this solution the fact that the drafters of the 1949 Conventions had not intended to cover national liberation movements did not detract in the least from the need to interpret the term "Powers" in that article in a manner consistent with the whole of the legal system as in force at the time of interpretation. (35)

    3773 In fact the same majority of States had insisted on the international character of armed conflicts in the exercise of self-determination (36) already before the adoption of the Protocol, and had then proposed, defended and obtained the inclusion of paragraph 4 of Article 1 ' (General principles and scope of application) ' and paragraph 3 of the present Article 96 of the Protocol.

    3774 These States did not for one moment think of taking away from national liberation movements a right which they had recognized on many occasions as due to these movements and which will now be regulated and clarified in this article once the Protocol is in force for the State concerned. Consequently, for a very large majority of States the route of acceptance of the Conventions in accordance with their common Article 2 , paragraph 3, remains open to authorities representing peoples fighting for self-determination against a State which is a Party to only the Conventions. (37) In the same case a declaration of acceptance of [p.1092] the Protocol would only count as a unilateral undertaking of obligations in matters which are not covered by customary law. (38)

    b) ' The State is not a party to the Conventions '

    3775 In this situation, which is highly exceptional nowadays, any declaration by a liberation movement could only have the effect of a unilateral commitment in matters not covered by customary law.

    ' B.Z. '


    NOTES (1) [(1) p.1084] For the Protocol, cf. Arts. 92-94. Cf. also the comments on the expression "the High Contracting Parties" in commentary Preamble, supra, p. 25;

    (2) [(2) p.1084] O.R. IX, pp. 364-367, CDDH/I/SR.67, paras. 56-85; pp. 369-376, CDDH/I/SR.68, paras. 1-33; the vote was 50-0-14 (ibid., p. 365, CDDH/I/SR.67, para. 71);

    (3) [(3) p.1084] Ibid., pp. 473-474, CDDH/I/SR.76, paras. 3-4;

    (4) [(4) p.1084] O.R. VI, p. 354, CDDH/SR.46, para. 76 (vote: 93-1-2);

    (5) [(5) p.1085] See also the commentary on the title (supra, pp. 20-21); on the third paragraph of the Preamble (p. 27) and on Art. 1, para. 3 (p. 39);

    (6) [(6) p.1085] We do not consider here the community of States Parties to Protocol II which has its own particular features;

    (7) [(7) p.1085] I.e., the date of entry into force of Protocol I, in accordance with Art. 95, para. 1 thereof;

    (8) [(8) p.1085] It is impossible to be bound by the Protocol without being bound by the Convention (cf. commentary Arts. 92 and 94, supra, pp. 1068-1069 and 1076). Cf. infra, p. 1549 for a list of the Parties to the Conventions and the Parties to the Protocol;

    (9) [(9) p.1085] Cf. commentary Art. 3, supra, pp. 66-67, on the different points in time when the provisions of the Protocol become applicable or may become applicable;

    10) [(10) p.1085] Cf., however, the case of mercenaries, who are dealt with specifically in Art. 47 of the Protocol; they are now entitled only to a limited degree of protection, while under the Third Convention they were not dealt with as a separate category;

    (11) [(11) p.1085] The Vienna Convention on the Law of Treaties of 23 May 1969, Art. 30, paras. 3-4; the rule in question is the general rule ' lex posterior derogat priori ', i.e., the later law prevails over the earlier law;

    (12) [(12) p.1085] Cf. Art. 59/58/134 of the First, Second and Third Conventions, respectively. We note that only one country, Burma, is still bound by the two Geneva Conventions of 1929 (on the wounded and sick; and on prisoners of war, respectively) without being bound by the 1949 Conventions;

    (13) [(13) p.1086] Cf. Art. 135 of the Third Convention and Art. 154 of the Fourth Convention;

    (14) [(14) p.1086] Basically these are questions arising from Part III and Part IV, Section I. Among the other instruments we could mention, for instance, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 1954 and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, of 1976;

    (15) [(15) p.1086] The same rule also applies to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (Art. 18, par. 3, first sentence) and to the United Nations Convention on the use of certain conventional weapons of 1980 (Art. 7, para. 1);

    (16) [(16) p.1086] Cf. Commentary I, pp. 33-34 (Art. 2, para. 3);

    (17) [(17) p.1086] Cf. ibid., for treatment in greater depth;

    (18) [(18) p.1087] Cf. supra, commentary Arts. 80 (p. 929), 93 (p. 1072) and 94 (p. 1077);

    (19) [(19) p.1087] Cf. ' Commentary III ', p. 35, note 1 (Art. 2, para. 3, in fine), for an example of how the corresponding provision of the Conventions has been applied. In the now highly exceptional case that a State Party to the conflict would not be bound by the Conventions, acceptance of the Protocol within the meaning of the present paragraph must be accompanied by acceptance of the Conventions within the meaning of common Art. 2, para. 3 thereof;

    (20) [(20) p.1087] Acceptance as meant here is different from acceptance as mentioned in various treaties, in particular the Vienna Convention on the Law of Treaties (Art. 16); in that sense acceptance is one of the methods whereby a State may become Party to a treaty and it has the same legal effect as ratification, approval and accession;

    (21) [(21) p.1087] The Hague Convention of 1954 requires a declaration (Art. 18, para. 3, second sentence); the United Nations Convention of 1980 requires a notification of acceptance addressed to the depositary (Art. 7, para. 2);

    (22) [(22) p.1088] On this point and on paragraph 3 we refer primarily to the commentary on Art. 1, para. 4, supra, p. 41 and to the literature referred to in note 71, especially to: W.T. Mallison and S.V. Mallison, op. cit., pp. 13-14; J.J.A. Salmon, op. cit., pp. 71-73, 82, 102-103; D. Schindler, "The Different Types of Armed Conflict...", op. cit., pp. 135-137, 140-144; G. Abi-Saab, "Wars of National Liberation...", op. cit., pp. 400-415, 433-434; E. Kussbach, "Die Rechtsstellung nationaler Befreiungsbewegungen...", op. cit., pp. 501-516; J.A. Barberis, op. cit., pp. 244, 251-259, 267-268; A. Cassese, "Wars of National Liberation...", op. cit., pp. 315-316, 320-324;

    (23) [(23) p.1088] In this connection, cf. point 4, infra, p. 1091. E. Kussbach thinks that paragraph 2 is also open to the authorities in question together with an acceptance under common Art. 2, para. 3 ("Die Rechtsstellung nationaler Befreiungsbewegungen...", op. cit., p. 502, note 5);

    (24) [(24) p.1088] Cf. commentary Art. 1, para. 4, supra, p. 43 for further developments on such conflicts;

    (25) [(25) p.1089] Art. 62/61/141/157; cf. also commentary Art. 95, para. 2, supra, p. 1081;

    (26) [(26) p.1089] The depositary in turn will communicate the declaration by the quickest methods to the Parties to the Conventions, in accordance with Art. 100, sub-para. (d);

    (27) [(27) p.1089] Cf. D. Schindler, "The Different Types of Armed Conflicts...", op. cit., pp. 143-144 and G. Abi-Saab, "Wars of National Liberation...", op. cit., p. 409, on the existence of more than one movement and the application of the present paragraph;

    (28) [(28) p.1089] It is difficult to see how any other solution could in fact be compatible with sub-para. (c) or with the rejection of the clausula si omnes in para. 2;

    (29) [(29) p.1089] Cf. commentary Art. 1, para. 4, supra, p. 43. On this point, cf. also J.J.A. Salmon, op. cit., pp. 83-84; D. Schindler, "The Different Types of Armed Conflicts...", op. cit., pp. 141-142; G. Abi-Saab, "Wars of National Liberation...", op. cit., pp. 408-409; E. Kussbach, "Die Rechtsstellung nationaler Befreiungsbewegungen...", op. cit., p. 511 (all these authors remark on the value of such recognition but they think it is not required by the present article); see also J.A. Barberis, op. cit., pp. 248-251, 267. We may add that such a requirement was put forward by the United Kingdom in a declaration it made when it signed the Protocol, and by the Republic of Korea in a declaration made when ratifying the Protocol;

    (30) [(30) p.1090] Cf. commentary Protocol II, general introduction, infra, p. 1325, and introduction to Part I, infra, p. 1343. Notwithstanding this description of the legal situation, nobody would support the contention that there could be any conflict which would not be subject to at least common Article 3; and to Protocol II, too, however different the views may be on the nature of the conflict, provided that Protocol II applies to the territory in question and all material conditions are met for that Protocol to apply;

    (31) [(31) p.1090] Cf. introduction to Part VI, supra, pp. 1059-1065;

    (32) [(32) p.1090] In this sense E. Kussbach, "Die Rechtsstellung nationaler Befreiungsbewegungen...", op. cit., p. 510; he refers to the fact that the Conventions and the Protocol are silent on the question of reservations, and to the equality of rights and obligations of all concerned under the terms of sub-para. (b) of the present paragraph 3;

    (33) [(33) p.1090] In order to emphasize the importance of implementing Art. 80 forthwith, the Commission decided after adopting the present paragraph to use the formula "The High Contracting Parties and the Parties to theconflict" in both paras. of Art. 80. However, see commentary Preamble, supra, p. 25, on the meaning of the term "High Contracting Parties";

    (34) [(34) p.1090] However, cf. commentary Art. 7, supra, p. 103, and Art. 97, infra, pp. 1094-1096;

    (35) [(35) p.1091] Cf. commentary Art. 1, para. 4, supra, p. 47 and note 56) and p. 51 (with notes 72 and 73);

    (36) [(36) p.1091] And thus by implication the interpretation given above which may be considered as a question of procedure;

    (37) [(37) p.1091] On the interpretation of common Art. 2, cf. J.J.A. Salmon, op. cit., pp. 71-72; D. Schindler, "The Different Types of Armed Conflicts...", op. cit., pp. 135-136, thinks that it is a question of interpretation rather than a rule of customary law, having regard to the opposition of several States in addition to the States concerned; G. Abi-Saab, "Wars of National Liberation...", op. cit., pp. 400-403, 433, thinks that this rule applies vis-à-vis all States and that the present paragraph onfirms the validity of this rule; A. Cassesse; "Wars of National Liberation...", op. cit., p. 332, is of the opinion that the international character of these conflicts has become a rule of customary law as a result of the decision of the Conference and that this right applies vis-à-vis all States which were represented there, with the exception of the one which consistently opposed the formulation of such a rule. See also E. Kussbach, supra, p. 1088, note 23;

    (38) [(38) p.1092] In this respect, cf. the 1980 Convention on the use of certain conventional weapons, Art. 7, para. 4(b);