Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

Advisory Opinion of 28 May 1951

The question concerning reservations to the Convention on the Prevention and Punishment of the Crime of Genocide had been referred
for an advisory opinion to the Court by the UN GA (GA resolution of 16 November 1950)

The questions brought before the Court were the following:
I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation
is objected to by one or more of the parties to the Convention but not by others?
"II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?
"III. What would be the legal effect as regards the answer to question I if an objection to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"

The reserving State is still regarded a party to the Convention despite its reservation and the objection by one or more parties to such
reservation. (Question I)

Establishing principles:
It is well established in treaty relations that a State cannot be bound without its consent, and consequently, no reservation can be
effective against any State without its agreement thereto.
Multi-lateral conventions: result of an agreement freely concluded, thus no State may unilaterally frustrate or impair said
agreement.

Considering the aforementioned principles, a State who has expressed its reservations to a treaty which have been rejected by another State
party to the same treaty, is nevertheless regarded as a party to the convention with respect to those contracting parties that have accepted
the reservations. This is considered as flexibility in the operation of multilateral conventions.

The Genocide Convention was approved through a series of majority votes, thus it is necessary for certain States to make reservations.

What about just putting an article within the treaty providing for reservations in a multilateral convention? Court says it is against the
nature of multilateral conventions. And the absence of such article is due to the desire to prevent multiplicity of reservations.

GA itself has concluded implicitly that reservations may be made by any State to the Genocide Convention and that to conclude that State
becoming parties to the Convention gave their assent to such reservations.

New question: What kind of reservations may be made and what kind of objections may be taken to them?

Court considered the characteristics of the Genocide Convention:
Origins and character: UN intended to condemn and punish genocide as a crime under IL
Consequence: (1) Principles underlying the Convention are principles which are recognized by civilized nations as binding on
States, even without any conventional obligation; (2) universal character both of the condemnation of genocide and of the
cooperation required to liberate mankind from such an odious scourge.
Intent: Universal in scope
Objects pursued: Purely humanitarian and civil purpose; common interest
It may be inferred that the intent of the GA and the States which adopted the Convention that as many States as possible should
participate.
Relations between the provisions of the Convention and that between the parties to the GA
It is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the
attitude of a State in making the reservation as well as for the appraisal by a State in objecting to the reservation.

What about the Sec-Gen? Isnt there an established practice that the Sec-Gen may not regard a reservation as definitively accepted until it
had been established that none of the other contracting States objected to it? Court says that this view does not correspond to reality. An
administrative practice does not in itself constitute a decisive factor in ascertaining the views of contracting States to the Genocide
Convention. Even GA itself had divergent views: absolute integrity (remove all those opposed) v. flexible practice, bringing about the
participation of as many States as possible.

CONCLUSION AS TO Q. 1: No absolute answer *sigh* but depends on particular circumstances of each case.

Those who object to the reservation and those who accept it must live in harmony (Question 2)

It must be assumed that the contracting States desire preservation of, at least, what is essential to the object of the Convention. Should this
desire be absent, it would impair the entirety of the Convention.

The admissibility of the reservations will not have any consequences. An understanding between the opposing State and the reserving State
will have the effect that the Convention will enter into force between them, except for the clauses affected by the reservation.

States who have signed but not ratified (A): God help their souls. States who are entitled to sign or accede but have not done so (B): Who
cares, theyre not parties to the Convention. (Question 3)

A State which has made a reservation to which another State has objected: the fact remains that the Convention does not enter into force
as between the reserving State and the objecting State.

Extreme view: A & B have the right to become parties to the Convention, and by virtue of this right, they may object to the reservations in
the same way as any State which is a party to the Convention with full legal effect. Denying them this right would be renouncing their right
of participating in the Convention.

Court says that the extreme view does not correspond to reality. From the moment the Genocide Convention was opened for signature, all
States had the right to be a party to the Convention.

Those who have not signed the Convention possess no rights to exclude another State. A signatory State, however, is different. Their
signing is the first step to participation in the Convention. Although it is not a party, it still establishes a provisional status in favor of the
signatory State. Until such State has ratified the Convention, its objection does not have any immediate legal effect in regard to the
reserving State.

Summary of answers
On Question I : by seven votes to five,
that a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but
not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and purpose of the Convention ; otherwise, that State cannot be regarded as
being a party to the Convention.

On Question II : by seven votes to five,
(a) that if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the
Convention, it can in fact consider that the reserving State is not a party to the Convention ;
(b) that if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in
fact consider that the reserving State is a party to the Convention ;

On Question III : by seven votes to five,
(a) that an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated
in the reply to Question 1 only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude
of the signatory State ;
(b) that an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal
effect.

Paula P.