The Reservations to the Genocide Convention Case (1951, ICJ)

Summary:
In 1950, the general assembly of the United Nations adopted this resolution, in
regards to disputes of the reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide.
• A state cannot be bound to a treaty without its consent.
• Once this agreement is made, the parties to it cannot change it, or make other
agreements that go against it.
○ The genocide convention was finally approved to unanimously, but it was
the result of a series of majority votes. So the need for reservations
(changes???) then arises.
• Intention of the Genocide Convention was to condemn and punish genocide under an
international law
○ Cooperation is essential to enforce it, and "liberate mankind" from
genocide
○ The cause is a basic moral one, no individual state has an actual interest
in the outcome, except as a common interest of morality and preserving human
rights
• Any state should be able to participate. But sometimes a minor reservation will
lead a state away from becoming involved - don’t want that. And on the other side,
they don’t want to sacrifice important aspects b/c they want more states to join.
○ A reservation is a modification of terms the participating state has
included with their acceptance of this convention.
• Resolution:
○ (7:5) If a state has accepted a reservation which has been objected to by
some, state still regarded part of the convention if the reservation is compatible
with the object and purpose of the convention. If not, state cannot be a party to
convention.
○ (7:5) (a) if a party objects to a reservation, which is considered
incompatible to objects and purpose of convention, then reserving state will not
be a party. (b) but if it is compatible, then reserving state will be party
• Dissent: No flexibility. "it would be better to lose a party a state which
insists in face of objections on a modification of the terms of the Convention,
then to permit it to become a party against the wish of a State or States which
have irrevocably and unconditionally accepted all the obligations of the
Convention."

Notes
• ICJ didn’t rely on Vienna Convention b/c not available yet.
• What makes a reservation legitimate?
• What is the effect of a reservation?
• This is just a particular case of how reservations are handled.

• First Question ICJ dealt with:

○ Whether or not a state can issue a reservation.
§ Reservations can't contravene the general purpose of the treaty,
especially in regards to human rights treaties
§ They want as many states as possible to sign on, and if there were no
reservations allowed, a lot of states wouldn’t sign on.
□ So if there are minor issues (like jurisdiction) they should
allow it, to get more states
□ But if too many minor reservations, it can change the purpose
of the treaty
• What if another state objects to the reservation?
○ Ques. 2: if one state objects to a reservation which contradicts the
purpose of the convention, then objecting state can view the reserving state as
not a party
§ No real practical purposes unless one party wants to point the finger
at another for breaching the treaty, b/c breaching state can say they don’t
recognize that state as a party to the treaty, so they can't condemn them