Reservations to treaties: Advisory Opinion on the Genocide Convention

3. The Advisory Opinion of 28 May 1951 on the Genocide Convention
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide.  The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.

The General Assembly raises the following questions:

I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?

II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?

III. What would be the legal effects 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?

3.1. Answers
On Question I:
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:
a. 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. 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:
a. 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 I, 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. 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.

3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.

As page 24 reads:

" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".

4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?

4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).

4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).

4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm  of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).

The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).

Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).

As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).

4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.

With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments  ("at the heart of the convenant system")" (para 21).

It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).