TD: 2nd session

Reservations to the Convention on the Prevention and Punishment of

the Crime of Genocide

In November 1950, the General Assembly asked the Court a series of questions as to the
position of a State which attached reservations to its signature of the multilateral Convention
on Genocide if other States, signatories of the same Convention, objected to these
reservations. The Court considered, in its Advisory Opinion of 28 May 1951, that, even if a
convention contained no article on the subject of reservations, it did not follow that they were
prohibited. The character of the convention, its purposes and its provisions must be taken into
account. It was the compatibility of the reservation with the purpose of the convention which
must furnish the criterion of the attitude of the State making the reservation, and of the State
which objected thereto. The Court did not consider that it was possible to give an absolute
answer to the abstract question put to it. As regards the effects of the reservation in relations
between States, the Court considered that a State could not be bound by a reservation to
which it had not consented. Every State was therefore free to decide for itself whether the
State which formulated the reservation was or was not a party to the convention. The
situation presented real disadvantages, but they could only be remedied by the insertion in the
convention of an article on the use of reservations. A third question referred to the effects of
an objection by a State which was not yet a party to the convention, either because it had not
signed it or because it had signed but not ratified it.
The Court was of the opinion that, as regards the first case, it would be inconceivable that a
State which had not signed the convention should be able to exclude another State from it.
In the second case, the situation was different: the objection was valid, but it would not
produce an immediate legal effect; it would merely express and proclaim the attitude which a
signatory State would assume when it had become a party to the convention. In all the
foregoing, the Court adjudicated only on the specific case referred to it, namely, the Genocide
Convention.

Request for advisory opinion:

- Hague, 1950
- Certain reservations have been objected by some States
- Different views regarding reservations have been expressed

Written Proceedings:
- 288 pages

. The objection effectively prevents the reservation from applying to the objecting state's
relationship with the reserving state. In other words, the objecting state does not recognize the
validity of the reservation concerning its own obligations under the treaty.
Reservation is one form of consent by States.
Invention  reconciling 2 essential concerns: the integrity of the consent and of the treaty (=
better achievement of the objective: to bring together the greatest number of States.) - it is the
double requirement of appreciation.

Art 19: formulation of reservations

- May be entered at the time of conclusion or ratification.
Conditions for reservations:
- Not prohibited by the treaty
- Must not affect the very essence of the treaty - essential requirement of the ICJ
- 2006 ICJ ruling: jus cogens peremptory norm - not to commit genocide
- Whether a State may make a reservation depends on the treaty itself.

1. Facts:

A reservation: a declaration by a state made upon signing or ratifying a treaty that the state
reserves the right not to abide by certain provisions of the treaty

The convention on Genocide was unanimously adopted by the United Nations in 1951.
Several states made reservations to one or more of its provisions.
An opinion as to whether a party could express reservations and still be considered a
signatory was laid before the International Court of Justice.
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 General
Assembly of the United Nations (G.A. resolution of November 16, 1950).
They also stated that if any other state one should be able to it and come forward with it.
The GA invited the International Law commission to consider resolutions in the point of view
of its codification.

 confirms that genocide is a crime under internat. Law

 UK not a party to the convention, but opposing

2. Basis

- Article 65 of the Statute recognizes that the Court has the power to decide whether the
circumstances of a particular case are such as to lead the Court to decline to reply to
the request for an opinion.
- Articles 11 and 16 of the Genocide conventions, associate the General Assembly with
the life of the Convention
- Article 9 of the Genocide convention which provides that disputes relating to the
interpretation, application of fulfilment of that convention shall be submitted to the
ICK at the request of the parties  Some states didn’t agree and decided that this was
an important article, and no reservations could be made.
 - Article 96 of the Charter confers upon the General Assembly and the Security Council
in general terms the right to request this court to give an advisory opinion on “any
legal question”:
3. Legal issues/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 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 reservations?
b) Those which accept it?

III. What would be the legal effect as regards the answer to the question I if an
objection to a reservation is made:
a) By a signatory who has not yet ratified?
b) By a State entitled to sign or accede but which has not yet done so?

4. How the court addressed the legal issues:

The court said that even if the dispute settlement closed it doesn’t exclude the court from
giving a resolution.

Answer to question 1:

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.

 The criterion is that the reservation is compatible with the object and purpose of the
Convention!
 a State which has made a reservation can be regarded as a party when some parties object
to the reservation.
Convention is the result of an agreement freely concluded. – universal scope, its purpose is
purely humanitarian and civilizing – common interest – as many States as possible should
participate.
No article on reservations  they are not prohibited.

Answer to question 2:

(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 accept the reservations 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
 if there is an objection on the reservation which is considered incompatible with the
Convention = then that State is not considered as a party

Answer to question 3:

(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.

 if a state ratified + objection = legal effect

 if state not yet ratified + objection = only attitude, no legal effect

Understanding and declarations

5 topics for presentation

Requirements for report:

- 5 questions instead of 4
- 5th question is the critical analysis – the most important part!

3 points if not active + report without 5th question = enough to pass but only 10/20

List of attendance
4th group = judicial decision – what was the final decision + arguments mentioned by the
court only in general, legal basis of the decision
Prepare the case for next week.

SOURCES OF INTERNATIONAL LAW

21.3.

Art 38-1 statute of the international court of justice

- Conventions
- Custom
- The general principles of law recognized by civilized nations
- Judicial decisions
- Teachings of the most highly qualified publicists of the various nations

Art 38-2 Statute of ICJ

 - Find the article
- Possibility when there is a conflict between the states
- Can agree to disregard any of those sources if they find that it will be better but can be
started only by the parties, the court may but does not have to agree on the position of
the countries will
Conflict of norms in IL
No traditional hierarchy of norms (rules of ius cogens)
Conflicting regulations:
- Lex posterior derogate legi priori = 2 regulations on the same subject, later one
derogates the earlier one
- Lex specialis derogate legi generali = 2 norms, priority is given to the more specific
one
- Lex posteriori generalis not derogate legi priori speciali

Registration of treaties – art 122 united nations

Exception = ius cogens – fundamental principles

Prohibition of : genocide, war, torture, slavery are ius cogens norms

Customs:
- Opinion iusiris

General principles of law : example - rule of not punishing twice for the same act, pacta sund
servanda, lex retro not agit, res judicata

Judicial decisions : art 59 of Statute ICJ – no binding precedent

Next week: treaties 28.3.

28.3. – 3RD SESSION

1969 Vienna Convention on the law of treaties

- The roots: work of the UN international law commission
- Art 102 UN Charter – registration of treaties, UN Secretary General

NOT in. UN countries

- Vatican City and Palestine

Result of failure to such obligation (registration)?

 the country cannot plead such treaty before any organ bcs not registered
 no effect between non-UN members

Most important act is Vienna Convention

- Limited in its scope only covers treaties and agreements in written form.
 Other types of treaties are not treaties under the VCLT
 consequence is Art 3 + 5: application to 2 types of treaties, internat organization +
concluded within such organization

- Art 4 not retroactive in its effect, 1980 came into force, date can be different
depending on the Country’s signature, LUX signed 1969 ratified 2003. France not
part
 Exception : the provisions od the convention may apply to states that are not
parties to it, and to treaties concluded before the Convention, if the provisions
contrain rules that reflect customary internat law

What is a treaty?
- Internat agreement
- Concluded between states
- In written form
- Governed by internat law
- Whether embodied in a single instrument or in two or more related docs, whether its
particular designation

Conclusion of a treaty – art 7 section 2 of Vienna Convention

2 types of legal persons who can make country come into the treaty – representatives of states
who don’t need any special document to prove the special power

Art 9-16
Signing and ratification difference – pay attention
Accession = entered later country
Date in which the treaty will enter into force = depends on the treaty, indicated based on the
number of signatures for example.

The United States participation in Rome, criminal, withdrawing from agreement – not party

Reservations to treaties art 2 section 1 point d

Art 19§1
- Not prohibited by the treaty
- treaty provides that only specified reservations can be made
- Reservation is incompatible with object and purpose of the treaty = prohibited

Relationship between domestic law and treaties

Art 26 the general principle – pacta sund servanda
Art 27 a part may not invoke the provision if its intenat law as a justification for a failure to
perform a treaty

Interpretation of the treaties

Art 31 + 32 + 34 + 35 + 36 + 38 right and obligations to a third party upon a customary rule
of internat law
Art 53 ! conflict with ius cogens norms

Art 42 + 43

Art 54 + 56