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Treaties and Documents
1949 Conventions and Additional Protocols, and their Commentaries
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Commentary -
Part V : Final provisions
[p.1483] Part V -- Final provisions
Introduction
Purpose and content
4895 The purpose of this Part is to lay down rules on the way in which States may express their will to be bound by the Protocol (
Article 20
-- ' Signature, ' Article 21
-- ' Ratification, ' Article 22
--
' Accession '), and on the way in which they are bound by this
instrument (Article 23
-- ' Entry into force, ' Article 24
--
' Amendment, ' Article 25
-- ' Denunciation '), on formalities of
notification and registration (Articles 26
-- ' Notifications ' and
27
-- ' Registration ') and on authentic texts (Article 28
--
' Authentic texts) '. (1) In addition, it lays down the principle
that the Protocol has to be disseminated, in Article 19
' (Dissemination). ' With the exception of the two provisions
relating to dissemination and denunciation, (2) these are formal
matters which are resolved and formulated in the same way as in
Protocol I, and the ICRC draft was adopted without modifications.
[p.1484] A brief historical note
4896 To a large extent the drawing up of the draft took into account the Vienna Convention on the Law of Treaties. The ICRC was guided, in
particular, by the work of the International Law Commission of the
United Nations in the field of the codification and progressive
development of the law of treaties. (3)
Adoption
4897 During the Diplomatic Conference the final clauses of the two Protocols were entrusted to Working Group C of Committee I. In view
of the fact that the wording of the provisions is identical, the
articles of Protocol II were adopted by consensus without any
discussion, after the corresponding articles of Protocol I had been
discussed, and these had not given rise to any great controversy
either. (4)
4898 As these articles are identical as regards their substance and structure, no separate commentary is necessary for Protocol II;
therefore the reader is referred to the commentary on Articles 92
' (Signature), ' 93
' (Ratification), ' 94
' (Accession), ' 95
' (Entry into force), ' 97
' (Amendment), ' 100
' (Notifications), '
101
' (Registration) ' and 102
' (Authentic texts) ' of Protocol I,
which also applies for the corresponding final provisions of Protocol
II.
4899 On the other hand, Article 19
' (Dissemination) ' and Article 25
' (Denunciation) ' are different, and therefore require a separate
commentary.
Dissemination
4900 Strictly speaking, Article 19
' (Dissemination) ' is not a final provision, but rather a measure of implementation. The draft
contained a part specifically devoted to execution. (5) Only the
article concerning dissemination was retained in the final version of
the Protocol. Therefore the Part, having lost its purpose,
disappeared, and the one provision retained was included in Part V,
"Final Provisions". This simplification did not have any effect on
the substance. In fact, it was provided, first of all, that parties
to the conflict should take measures to ensure observance of the
Protocol; (6) that obligation follows in any case from Article 1
' (Material field of application), ' paragraph 1, of the Protocol.
Next, this Part contained two reminders: on the one hand, the
possibility parties had to conclude special agreements, (7) and on
the other, the possibility of inviting an impartial
[p.1485] humanitarian organization such as the ICRC to co-operate in
he observance of the provisions of the Protocol. (8) These two rules
are already contained in common Article 3
, and consequently also
apply for Protocol II. (9)
Denunciation provision
4901 The ICRC did not consider it necessary to include a denunciation provision in the draft of Protocol II. Working Group C of Committee I
submitted a proposal (10) from a concern to maintain symmetry with
Protocol I. This was adopted by consensus and constitutes the present
Article 25
' (Denunciation). ' (11) In this respect it should be
noted that there is an omission in Articles 26
' (Notifications) '
and 27
' (Registration), ' as these do not mention notification of
denunciation to Parties to the Conventions and to the Secretariat of
the United Nations. As that article was adopted in Committee before
the proposal to include a provision on denunciation was submitted,
this was probably merely a technical error.
Reservations
4902 As in Protocol I, Protocol II does not contain a special provision concerning the possibility of making reservations. This
consequently remains subject to the law of treaties. On this point,
reference may also be made to the commentary on Protocol I. (12)
' S.J. '
* (1) [(1) p.1483] O.R. IX, p. 356, CDDH/I/SR.67, para. 8;
(2) [(2) p.1483] See infra, pp. 1487 and 1501;
(3) [(3) p.1484] See ' United Nations, United Nations Conference on the Law of Treaties ', Official Records, 1st
and 2nd sessions, New York, 1971. This work also contains
draft articles on the law of treaties with comments
adopted by the International Law Commission at its 18th
session. Cf. also ' Commentary Drafts, ' p. 171 and note
20 (Part VIII);
(4) [(4) p.1484] O.R. IX, p. 475, CDDH/I/SR.76, para. 8; O.R. X, pp. 202-205, CDDH/405/Rev.1, paras. 131-157;
(5) [(5) p.1484] Part VII of the draft (Execution of the present Protocol), Arts. 36-39;
(6) [(6) p.1484] Draft Art. 36 (Measures for execution);
(7) [(7) p.1484] Ibid., Art. 38 (Special agreements);
(8) [(8) p.1485] Ibid., Art. 39 (Co-operation in the observance of the present Protocol);
(9) [(9) p.1485] Common Art. 3, paras. 2-3. On this point see also introduction to Part I and Art. 18, para. 2, supra,
pp. 1343 and 1478;
(10) [(10) p.1485] O.R. IV, p. 118, CDDH/I/350/Rev.1;
(11) [(11) p.1485] See commentary Art. 25, infra, p. 1501;
(12) [(12) p.1485] Cf. introduction to Part VI, Protocol I, supra, p. 1059;