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).
Posts tonen met het label reservations to treaties. Alle posts tonen
Posts tonen met het label reservations to treaties. Alle posts tonen
zaterdag 25 februari 2017
Reservations to treaties and the legal effects of either acceptance or objection by other States (part II)
2.3. Article 19 of the VCLT: different scenarios
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
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