Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide - Advisory Opinion of the Court of 28 May 1951

The f~ll~wi~~~;"infom~~ation fm13 the Rcgistq- of th0 Intarri?.tional
Court nf Justice hns been cownmicatec! to tho lress :

Ta-dny, May 28th 1951, the Interncl.tionzl Cuurt. of Justicc rcndored
its ddvisory Opinion in the i:iattcrof rcscrv,?tions to the Convention on
the i'rcvcntion and lunishment of the Crhc of Gonocicic.

The question hac? been rcferrcd to it by th2 Gencrzl i~ssc~lbly of the
Unitcd Nations. By Rcsolutian of ïVovciiibc16th1950, thc following
questions werc put to the Court :

IlIn so far ~~s conccrns the C~lnvcntion on thc irevcntion ancl
Iunishmen tf the Crilnc of Genocidc in the ovont of a State ratifying
or ncccdingto the .Ccnven"tosn ubject to n rcscrvc?tion made either on
~atific?~tion or on ncccssion, or Qn sign?.turc followcd by rcltificntion :

1. Cnn thc rcservinz State bc rcgrdccl ns bcins a party to the
Conventio nrhile still ~izintnining its rcservation if the
rcsemation is objcctcd to by one or mor~ of the sartics to

the Convention but ncrt by othcrs ?

II. If the onswcr to questlon I is in thc ?dffirr~~~.tive,what is
thc effoct cf thc rcsorwtion ns 'scttrocnthe rcscrving Statc
2nd :
(2) Tho prirtics which objcct to thc r~scrvation ?
(ù) Tbosc which ?wccept it ?

III, Wh~t wciuld bo the lcssl effcct as rcgnrds the nnswer to
qucstion 1 if an objcction to n raçerv,.i.tionis Eic?de :

By cl.signatory r~~llicha.s no: yct rc-Liflcd ?
(a) By a Stateeniitlcd ta sign or accedebut vbich has
(b) not yct donc m?lt

Hrittsn st?tcmonts on thc mttor wore subnitted to the Court by the
following StntesnndOrgnnizations:

.. The Orgnnizntion of Aincricnn Stctcs,the Union of Soviet Socialist Republics,
Ghc Hnshcniite Kirigcloiof Jor~lan, the United St,ztGs of iinerica, the United
Kingdom of Great Britcin 2nd Northern Ireland, the Secretrry General of the
.
UnitedNations, Isrzel, the 1ntern;l'cional Lnbour Organizntion, lofand,
Czechoslovc?kfa, the Ncti-ierlands, the ieoplels Relmblic of Romnia, the
Ukrziizian Soviet Socialfst Republic, Lhc i eoplc rs Republicof Bulgaria, the
B;relorussinn Soviet Socizli st Rc$uhlic, thc Rep~blic of the 1 hilippines ,

Lqaddition, thc Court l~sri.ror21 stc?tcmen.ts submittedon behnlf
of the Sccretarj Generd of the United i4zutions and of the Wverments of
Isrnel, thc United Ilingc!.oanclFrnnce.

Bg 7 votes to 5 tho Court pWve the following rmswers to the
questions referred to :

On Questio-- f :

2 Stzte which hns imde and rnnint.?ined n reservp-tion which
has bean objectecl to bg one or morc of the ;~.r.tics to the Convention
but not hy others, can hz regzrdcd 3s hein2 n pa.rty to the Convention
if the rcservc?tion is coi~l~,?-tihwj-th the object ?.ndFursosc of the
Conv~ntion; othe~.~.rtscth2.t Stzte cannat be regardecl as bcing a
party to the Convention,
On ,..On Question ZI :

(a) if a pnrty ko the Convention objects to a rsservation
whichit considers to be incom~ztible with the ohject and purpose
of the Conventton, it can in fact consider that the reserving
State is not a pzrty to the Convention ;

(b) if, on the other hand, a party accepts the reserv2tioui As
betng compatible with the abject 2nd ~urpdse of ths 'Conventiot~,
it can in fact consider that the reserving Siateis a party to
the Convention ;

On Question III :

(a) an objection to u reservztion hy 2 signetory State
which hs not yet ratified the Conventio2 can have the legal
effect indicatcd in the reply to Ciuestion 1 only uFon rutifica-
tion, Untilthztmoment itmerely serves as a nctice to the

other State of the svontul attitude of the signatory State ;

(b) an objection to a reser~rztiorimade by a State which is
entitled t\o sign or accede but which hns nat yet done so, is
without legel eff ect.

Two dissenthg opinions were zppended to the Opinion : one by
Vice-Fresiden Gtuerrero and Judges Sir Arnold McNair, Read and Hzu 140,
the other by J~dge Alvarez.

, In its Ophion, the Court begins by refutingthe nrgments put
fommrd by certain Goverment s againçf; it s co~illjetcnce toexercise its
advisory fwictionsin the ~resent cnsc, The Court then dealt with the

questions raf~lred to it, 2.fter hz.vir?g notedthat they were e,~ressly
lirnited to the Convention on G,nocide end were purely abstr2c-L In character.

The first question refars to ivhether 2 State which has mde a ..
reseriintion can, ?hile maintaining it,be regarded as a partg to the Con-
vention on Genocide, when some of the parties abject to the reservation.
In its treaty relations , State cannot bc bound without .itsconsent. 8-
reservatioia c2n bc effected only with its agreenent, on the other hand,
it is a recognised principle that a multilatera lonvention 5s the result
of an agreementfroely concluded. To this ~'rinciple ms linked the notion
of integrity of the Convention as adopted, a notion which,in its tradi-
tioml concept, involved the psopositioh thzt no feservation vas valid
unless it ~ms accepted by al1 contracking parties. This conceptretains
undisputed e~lue as a principle, Sut as regards the Genocide Convention, its
application is mde more flexi'nle by n vs.riety of circumstances ainong which
my àe notod the miversal character of the United Nations mder Fihose
auspices the Convention 'ms cancluded and the ir¢q wide degree of participa-
tion rhich the Convention itself has anvlsaged, This participation in con-
ventions of this type hcs already given riseto greater flexibility in
practice, More gcnernl resosts to re~er~tians, very gsent allomnce mde
to tacit assent to reserv~~tions, the xlmission of the State vrhich has made
the reservatioa ns a party to the Convention in relation to the States
which haveaccepted it, al1 these factors are of a new need
for flexibility in the operation of multilateral conventions, Mareover,

the ,,. the Convention on Genocide, although ndoptcd unanimously, is neverthcless
the result of a series of majority votcs - which ri~y rakc it necessnry for
, certain States to mke rescrvations,

In the abscncc of an article in the Convention-providing for
rescrmtions, one cannot inf cr thnt they nre prohibitcd, In the absence
of any expressprovisions on the subjcct, to detemaine the possibility of
making reservations as well-as thcir effccts, one must ansider their

chara-cter, thcir purpose, thcir provisions, their mode of prcpar~tion and
ndoption, Thc psepnrntion of theConventioo nn Gcnocidc shows thnt an
undertaking was reached within the G,nerzl Iisscmbiy en thc faculty to mke
reservztion 2nsd th?t It is permittcd to conclude therofrom th2.tStates,
becoming psrtics to the Convention, eavctheir ~ssent thercto.

InJhatis the chzracter of the rcservations which niay be'wdo and
the objections which my be rciscd thercto ? Thc 'solutio nust bc fo~d '
in the specicil characteristics of thc Convention on Gcnoclde. The princi-
ples undcrlying the Convcntion arc rccogniscdby civiliscd nations as '
lsinding on ,States cvcn without any coi~vcntionnl obligation, It ~fzs in-
tendcd that th'cConvention would bè univcrsal in scopc. 3ts purpose is
w purely humnitarian 2nd civilising, The contracting Stntcs do nat have

nny individual t?dvc!ntzg~$ or disndvmtages nar intcrosts of thcir own, but
merelgr a comn interest. This leads to th¢ conclusion that thc abject
2nd purpose of tlîe Convention hply tht it VT~Sthe intkntio nf the Gcncrill
Assernbiy and of the Statcs which nclopted it, that ns many States ns p~ssiblc
shoÜLd participatc. This purposc would be defeated if an objection tb a
r~~nor rcscrvation should producc cornpletc cxclusion from the Convention.
On the othcr hand, the contrncting partics could not hzvc intendcd to
sacrifice the vcry obj~ct of thc Conventibn in favour of s vague clcsircto
sccurc as riany pnrticipants os possible. It follows that the coL~pr?tibility
of the reservatlo n nd the ob jcct 2nd the 2urpose of the Convention is the
criterion to dctermine the attitude of the Stcte which mkes the resarvation

and of the Stntc which objccts. Consequently question1, on accountof
its nbstract chsracter, cannot lx givcn an absolute answer, The sppraisal
.of a rescrvation and the effect of objcctions,depend upon tho circumstnnccs
of each individual c2 sv,

The Court than examincd question II by which it wns requested to
3 SP-ywhat was the effcct of n rcscrvatio ns between the reservuig State and
the parties which'o cct to it 2.nd those which nc~ept it, The saine con-
siderationa spply, No Stste can be bound by a rescrvation to whichTt
has not consentcd, and thercfore ench State, on the basis of its individual
appraisalsof the reservationsw ,ithin the lirxits of thc criterion of thc
object and purpose stntcd nbove, v2ll'or vdll not consldcr the resembg '
State 'to be a party to the Convention, In the ordimry course'af events,

asscnt tri11only nff cct bhe rehtionship bclween the two States, It night
aim, howev-er, at the cornpletc exclusionfrom the Convention in s casc rdhere
it was expressed by the adoption of a position on the jurisdiction>p llane:
certain parties might consider the ~sscnt as incompatible with the purpose
of the Convention, and r-~ght wish to scttlcthe dispute cithcr b$ spccial.
agreement or by the procedure laicldom in thc Convention itselt.

Thc disxdvantagcs which result from this possiblc divcrgcncc of .
views-are rcnl, They codd hnm bea rcmedieu by ail article on reservc-
tions, Thcy arc mitigqted l~y the corimorrcEuty of the contrncting Stntcs
to be h-uidedin their judpcnt tj the coriz~~ntibilityor incompntibilit oy
the rcscrvation with thc objcct nildpuTase of thc Convcntion. It rmst

clcariy ..,clcnrly be assw~ed that the contracting States me desirous of prc-
scrvingintact nt lenst whatis csscntial to the object of the Convention .

The Courtfinslly turned to qu~stion III concernirq the effect of
2n objection mde by a Stateentitlcd to siyn 2nd mtify but which hid not
yet donc so, or by a Statc which hns siencd but has not yet ratified. In
the fon:~cr case, it would be inconcoivablc thnt a State'posscssinn go

rightsundertheConventioncould exc,ludeanotherStt~te. Thecaseof
the signatory ~tntes is norc favourolsle. Thcy have taken certain steps
neccssnryfor the exerciscof the rightof being n pnrty, This provisional
status conf ersuFon thcn a ri~ht to f0m1ül?~te as ?.prrcaiitionary masure
objections which hzve themselvcs n prorrisIon(cl1 chnrnctcr, If signaturc is
followed by mtif ic~.tion, the objection bccoiies Zinzd. Otherwlsc, it
disappears. Therefore, tho objoction doos not have an ir-mediat o lcynl
effcct but expressci anclproc1ab.1~ the nttitucle of ecch sifimutory Statc
on beconing a party,

The Hague, PIzy 28th,1951*