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Commentary - Denunciation
    [p.1107] Article 99 -- Denunciation


    [p.1108] General remarks

    3833 The idea that a State could free itself from the obligations imposed upon it by humanitarian law by means of a denunciation might seem to be incompatible with the very nature of that law. (1)

    3834 In view of the uncertainty of customary law and legal writings on the possibilities of denouncing a treaty when it does not have a specific clause for this purpose, it seemed preferable, already in the case of the Conventions (2) to provide for the right to denounce them, at the same time making this right subject to certain restrictions and adding a reminder that some obligations continue to exist in all circumstances. (3) The provisions adopted here reiterate the relevant clause of the Conventions, with some useful clarifications.

    3835 Finally, we should mention that no State has ever denounced the Conventions, and it is to be hoped that this article will also remain theoretical.

    3836 This article was adopted by consensus, both in Committee I and in plenary. (4)

    Paragraph 1

    3837 The period of one year from the date when the depositary received the written notification required by paragraph 2, in order for the denunciation to have effect, is taken from paragraph 3 of the above-mentioned article of the Conventions.

    3838 Nevertheless, the first part of the second sentence of this paragraph provides that the effect of a denunciation will be deferred if, on the expiry of that one year period, the denouncing Party is engaged in one of the situations referred to in Article 1 ' (General principles and scope of application) '. (5) This is an exception which is also made in the same paragraph of the Conventions. Unfortunately the wording of that paragraph is rather ambiguous.

    3839 Taken literally, that paragraph means that the effect of the denunciation will be deferred if the denouncing Power is involved in a conflict covered by the Conventions at the time when it notifies its denunciation.

    3840 This literal interpretation was not followed by the ICRC in its commentary on the Conventions, (6) since the spirit of the article means that it has to be applied in a broader sense: if denunciation is notified less than one year before an event which entails the application of the Conventions, its effect will again be deferred [p.1109] until the situation so started has come to an end and in any event until the release, repatriation and re-establishment operations referred to have been completed.

    3841 This interpretation, in accordance with the spirit of the article, was not contested. Even though there may have been some doubt in the past, there can be none now. In fact, it is difficult to imagine that the Protocol would continue to apply when the Conventions which it supplements had ceased to do so, as a result of allegedly divergent denunciation clauses. (7)

    3842 The effect of the denunciation will be deferred until the end of the armed conflict or occupation, and in any case, until operations connected with the final release, repatriation or re-establishment of the persons protected by the Conventions or the Protocol have been terminated: on these various concepts, we refer to the commentary on Article 3 ' (Beginning and end of application), ' sub-paragraph (b) (supra, p. 67).

    3843 The phrase used in the Protocol is not "until peace has been concluded", as in the common Article of the Conventions, but "not [...] before the end of the armed conflict or occupation". This takes into account the long period which may elapse between "the general close of military operations and [...] termination of the occupation" (Article 3 -- ' Beginning and end of application, ' sub-paragraph (b)) and the official conclusion of a peace treaty which even in some cases never happens. Yet when the period of one year has effectively elapsed, there is no need to further defer the effects of denunciation beyond the date when the Conventions and the Protocol cease to be applicable, i.e., the general close of military operations or the termination of occupation, without prejudice however to any subsequent operations for the final release, repatriation or re-establishment of protected persons.

    3844 One other problem arises with regard to the relation between postponement of the effect of denunciation in accordance with the relevant article of the Conventions and in accordance with this paragraph. For the Conventions the postponement takes place in situations provided for in their common Articles 2 and 3 (the latter relating to conflicts not of an international character): thus the Conventions as a whole remain on force even if the denouncing Party is only engaged in a non-international armed conflict. Should the postponement in that case apply to the Protocol? As the Protocol may be denounced without a denunciation of the Conventions, and as this paragraph refers to Article 1 of the Protocol ' (General principles and scope of application), ' this question must be answered in the negative.

    ' Conclusions on paragraph 1 '

    3845-- It is theoretically possible to denounce the Conventions and the Protocol.

    [p.1110] 3846-- A State Party to the Conventions and to the Protocol may denounce the Protocol without denouncing the Conventions; the converse is not possible.

    3847-- Denunciation of the Protocol alone, or of both the Conventions and the Protocol, is kept in abeyance if, at the time the denunciation is made, or during a period of one year thereafter, the denouncing Party is engaged in a situation referred to in Article 1 ' (General principles and scope of application), ' paragraphs 3 and 4, of the Protocol. Denunciation of only the Conventions is postponed if, during the same period, the denouncing Party is involved in a situation referred to by common Article 3 .

    3848-- The denunciation will remain in abeyance until the end of the situation referred to, and in any case until the operations for the final release, repatriation or re-establishment of protected persons have been terminated.

    Paragraph 2

    3849 Any denunciation must, like ratification and accession, be notified in writing to the depositary which will transmit it to all the High Contracting Parties.

    3850 According to Article 100 ' (Notifications), ' sub-paragraph (e), and Article 101 ' (Registration), ' paragraph 2, the depositary must also inform the Parties to the Conventions whether or not they are signatories of the Protocol, as well as the Secretariat of the United Nations. (8)

    Paragraph 3

    3851 "The denunciation shall have effect only in respect of the denouncing Party", that is to say, in its relations with other States bound by the Protocol; relations between the latter are not affected by it.

    3852 This provision is taken from paragraph 4 of the relevant article of the Conventions and follows from the fact that universal participation is not a requirement: regardless of whether one Party to the conflict is not, or is no longer bound by the Protocol, Parties to that instrument nevertheless remain bound by it in their mutual relations.

    3853 This concept is the same as that underlying the first sentence of paragraph 2 of Article 2 common to the Conventions, as well as the first sentence of paragraph 2 of Article 96 of the Protocol ' (Treaty relations upon entry into force of this Protocol). '

    [p.1111] Paragraph 4

    3854 This paragraph restates a rule of customary law codified in the Vienna Convention on the Law of Treaties of 23 May 1969. (9) The period referred to, i.e., the period after denunciation has taken effect in accordance with paragraph 1, and the expression "any act committed", clearly show that this paragraph refers to the obligation to prosecute breaches (Article 85 -- ' Repression of breaches of this protocol, ' Article 86 -- ' Failure to act, ' Article 88 -- ' Mutual assistance in criminal matters, ' Article 89 -- ' Co-operation ' and Article 90 -- ' International Fact-Finding Commission ') and to pay compensation (Article 91 -- ' Responsibility ').

    3855 As this rule applies even without explicit confirmation, and as the Protocol is additional to the Conventions, the relevant articles of the Conventions (10) should also be taken into account, whether or not the Conventions have been denounced.

    Other residual obligations

    3856 Apart from the obligations examined above, there are other duties which remain to be discharged by the denouncing Party, irrespective of whether it has denounced only the Protocol, or both the Protocol and the Conventions. The corresponding article of the Conventions provides for this in a formula based on a clause known as the "Martens clause", which is in turn adopted in Article 1 ' (General principles and scope of application), ' paragraph 2 of the Protocol. Even in the absence of any treaty clause, "civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience". (11)

    3857 Even after the denunciation has taken effect, the denouncing Party remains bound therefore by the obligations referred to in paragraph 4, by other treaties in force with respect to it, by the whole of the relevant customary law, including the clauses of the Conventions and the Protocol which represent a codification of customary law, and in particular by ' jus cogens ' (12)

    ' B.Z. '


    NOTES (1) [(1) p.1108] Cf. O.R. VII, p. 35, CDDH/SR.47, para. 106;

    (2) [(2) p.1108] Art. 63/62/142/158 common to the Conventions. We should add that Protocol II, too, has a denunciation clause (Art. 25), although it was not included in the draft;

    (3) [(3) p.1108] On the question of denunciation of treaties, cf. Art. 56 of the Vienna Convention on the Law of Treaties of 23 May 1969. See also, among others, M. Akehurst, "Treaties, Termination", in ' Encyclopedia of Public International Law ', op. cit., Instalment 7 (1984), p. 507;

    (4) [(4) p.1108] O.R. IX, p. 474, CDDH/I/SR.76, para. 7; O.R. VII, p. 35, CDDH/SR.47, para. 105;

    (5) [(5) p.1108] Cf. paras. 3 and 4 of that article on scope of application;

    (6) [(6) p.1108] Cf., e.g., ' Commentary I ', p. 412 (Art. 63, para. 3);

    (7) [(7) p.1109] To apply the Protocol on its own in this way
    is anyway conceivable only for some of its provisions,
    e.g. of Parts III and IV;

    (8) [(8) p.1110] We refer to the commentary on Art. 100, infra, p. 1114, for a summary of the depositary's functions;

    (9) [(9) p.1111] Art. 70 (Consequences of the termination of a treaty): denunciation of a multilateral treaty by a State "does not affect any right, obligation or legal situation of the parties created through the execution of the treaty" prior to the date when the denunciation takes effect;

    (10) [(10) p.1111] Arts. 49-52/50-53/129-132/146-149;

    (11) [(11) p.1111] Cf. also Art. 43 (Obligations imposed by international law independently of a treaty) of the above-mentioned Vienna Convention;

    (12) [(12) p.1111] ' Jus cogens ' means peremptory norms of general international law, which are defined as follows by Art. 53 (Treaties conflicting with a peremptory norm of general international law (' jus cogens ')) of the above-mentioned Vienna Convention: "a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". Cf. for example, L.A. Alexidze, "Legal Nature of Jus Cogens in Contemporary International Law", 172 ' Hague Recueil ', 1981/III, pp. 219-270;