CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ PROTOCOL MODERNISING THE CONVENTION FOR THE PROTECTION OF INDIVIDUALS… “urged member States and other Parties to the Convention to take without delay the necessary measures to allow the entry into force of the Protocol within three years from its opening for signature and to initiate immediately, but in any case no later than one year after the date on which the Protocol has been opened for signature, the process under their national law leading to ratification, approval or acceptance of this Protocol” 48 The Protocol itself then contains some rather innovative provisions on entry into force, designed to speed up the procedure as much as possible and prevent lengthy delays in case even a small number of original Parties to the Convention fails to ratify the Protocol. The standard clause for entry into force is conditional on all Parties expressing their consent: “This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol” . 49 Therefore, apart from this standard clause, the Protocol also contains an “enhanced” entry into force procedure, provided that five years elapsed since the opening for signature and at least 38 Parties ratified: “ In the event this Protocol has not entered into force (…), following the expiry of a period of five years after the date on which it has been opened for signature, the Protocol shall enter into force in respect of those States which have expressed their consent to be bound by it (…), provided that the Protocol has at least thirty-eight Parties . As between the Parties to the Protocol, all provisions of the amended Convention shall have effect immediately upon entry into force. ” 50 This solution, nevertheless, fully respects the rights of the Parties that have not ratified the Protocol within the five years deadline, and consequently would not be bound by it after its entry into force, until they have completed their own ratification procedure. As such, it does not raise any issues or problems in terms of the rules of international public law governing the treaty practice. 51 Finally, the Protocol also provides for a possibility for a provisional application on a voluntary basis: “ Pending the entry into force of this Protocol and without prejudice to the provisions regarding the entry into force and the accession by non-member States or international organisations, a Party to the Convention may, at the time of signature of this Protocol or at any later moment, declare that it will apply the provisions of this Protocol on a provisional basis . In such cases, the provisions of this Protocol shall apply only with respect to the other Parties to the Convention which have made a declaration to the same effect .” 52 Again, this possibility should contribute to application of the data protection standards of the modernised Convention as soon as possible, even before it enters into force for some of the Parties. Conclusion The modernised Convention would constitute one of the legal instruments produced by the Council of Europe that aims not only at harmonising rules and levels of protection across the European continent, but could be truly perceived as a universal standard. As such, it might attract also countries outside of Europe, which are willing to establish or strengthen their data protection systems, as an inherent part of fundamental right to privacy. VI.

48 CM Decision, para. 5. 49 Art. 37(1) of the Protocol. 50 Art. 37(2) of the Protocol. 51 Codified in the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969). 52 Art. 37(3) of the Protocol in fine (emphasis added).

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