CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ STATES’ OBLIGATIONS UNDER COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS … mere “respect” part of Common Article 1, making the “ensure respect” part either repetitive or unnecessary. 18 There would be no need to repeat the pacta sunt servanda principle in the substantive articles of the conventions. Such an understanding would also follow the ut res magis valet quam pereat (or the “effet utile”) principle of interpretation, under which when in doubt the law should be interpreted as meaningful legislation instead of void and meaningless. 19 However, it is possible to regard the “ensure respect” part of the obligation as complementing the State’s duty to ensure that its organs and individuals under its jurisdiction follow IHL. 20 Furthermore, the obligation to ensure respect for the Geneva Conventions States might require States to take action outside of situations of armed conflict, such as educating populations or ensuring training of the military in IHL. 21 Similarly, considering Article 89 of Additional Protocol I stating that “ in situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter ”, 22 the differences in the language and wordings between Article 89 and Common Article 1 speak against the States’ intention to make Common Article 1 an obligation for States to ensure respect for Geneva Conventions of other High Contracting States. 23 The restrictive interpretation is also more on a par with similar clauses in human rights law and treaties which have never been understood as to refer to an obligation to ensure the respect of human rights outside the contracting party’s jurisdiction. 24 The exception in international law would be the Genocide Convention, which has an external character to its obligations. 25 However, the Genocide Convention was originally planned to include measures on prevention and international cooperation, so such an extensive interpretation was in the drafter’s mind at the drafting phase, unlike Common Article 1. 26 Therefore, it seems that Common Article 1 was originally not meant to have extensive obligations to bind (troop contributing) States into ensuring that the MMOs will follow IHL as well. 2.2 Subsequent practice of Common Article 1 Even if the original intent and the meaning of Common Article 1 would not allow the extensive interpretation and bring forward the obligations for TCSs to ensure the respect of IHL by the whole MMO, the understanding of the obligations might have developed later through state practice establishing an agreement between the High Contracting Parties, 27 as stated in the Vienna Convention on the Law of Treaties Article 31(3)(b). 28 Similarly 18 FOCARELLI. op. cit., p. 128. 19 Ibidem p. 138. 20 KALSHOVEN. op. cit., pp. 11-12. 21 HENCKAERTS, Jean-Marie, In DÖRMANN, Knut et al (eds), Commentary on the First Geneva Convention. Geneva: Cambridge University Press 2016 p. 41 (Art. 1 of the Convention). 22 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, Art 89. 23 ZYCH, Tomasz, The Scope of the Obligation to Respect and Ensure Respect for International Humanitarian Law. Windsor Yearbook of Access to Justice , 2009, Vol. 27, p. 260.

24 FOCARELLI. op. cit., 139. 25 GEISS. op. cit., pp. 423-424. 26 United Nations General Assembly. res. A/RES/96(I), 11 December 1946. 27 GEISS. op. cit., p. 425. 28 Vienna Convention on Law of Treaties. Vienna. 23 May 1969. Art. 31(3)(b).

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