RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE

CRIME OF GENOCIDE (Advisory Opinion of 28 May 1951)

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations
General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force
on 12 January 1951. It defines genocide in legal terms and all participating countries are advised to prevent and
punish actions of genocide in war and in peacetime. The number of states that have ratified the convention is
currently 144.
Article 2 of the Convention defines genocide as:
...any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article 3 defines the crimes that can be punished under the convention:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

Competence of ICJ
Arguments:
I. making of an objection to a reservation made by a State to the Convention constitutes a dispute and the Court
should refrain from replying to Questions I and II;
II. the request for an opinion would constitute an inadmissible interference by the General Assembly and by States,
which are not ratified this Convention in the interpretation of the Convention. Only States, whit are already ratified
this Convention are entitled to interpret it.
III. under Article IX of the Genocide Convention disputes relating to the interpretation, application of fulfilment
shall be submitted to the ICJ at the request of any of the parties to the dispute. But there is no dispute in the present
case.
Courts findings:
I. under provision of Article 65 of the Statute of ICJ, 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. The object is to
guide the United Nations in respect of its own actionGeneral Assembly and the Secretary-General have an
interest in knowing the legal effects of reservations to that Convention and the legal effects of objections to such
reservations.
II. the power of the General Assembly to request an Advisory Opinion from the Court in no way impairs the
inherent right of States parties to the Convention in the matter of its interpretation.

The right is independent of the General Assemblys power and is exercisable in a parallel direction.
III. the existence of a procedure for the settlement of disputes does not in itself exclude the Courts advisory
jurisdiction. Under Article 96 of UN Charter the General Assembly and the Security Council has the right to
request ICJ to give an Advisory Opinion on any legal question.

Questions before the Court:

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 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?

Court decides:
I. a State which has made 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.
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 a party accepts the reservation as being compatible with the object and purpose of the Convention, it can
consider that the reserving State is a party to the Convention;
III. a) an objection to a reservation made by a signatory State which has not yet ratified the convention can have the
legal effect only upon ratification;
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.
Dissenting opinions

1) Dissenting opinion of M.Alvarez:

-social cataclysm
-the court should apply and interpret both old and new institutions in conformity with both this new order and this
new law
-establishment of four categories of multilateral conventions
-the Assembly of the UN is tending to become an actual international legislative power
-the Convention on Genocide cannot admit of reservations

2) Dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read, Hsu Mo

-role of the Court in this matter is a limited one
-questions are purely abstract
-without the consent of all the parties, a reservation cannot become effective and the reserving State cannot become
a party
-the States negotiating a convention are free to modify both the rule and the practice