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Summary of the Summary of the Advisory Opinion of 28 May 1951RESERVATIOS TO T!E "OVETIO O T!E #REVETIO

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Advisory Opinion of 28 May 1951

 The question concerning reservations to the Convention on the Prevention andPunishment 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 !"#$%& in the follo'ing terms)*n so far as concerns the Convention on the Prevention and Punishment of the Crime ofGenocide in the event of a +tate ratifying or acceding to the Convention sub,ect to areservation made either on rati-cation or on accession" or on signature follo'ed byrati-cation)*. Can the reserving +tate be regarded as being a party to the Convention 'hile stillmaintaining its reservation if the reservation is ob,ected to by one or more of the partiesto the Convention but not by others)**. *f the ans'er to question * is in the a/rmative" 'hat is the e0ect of the reservation asbet'een the reserving +tate and(a) The parties 'hich ob,ect to the reservation(b) Those 'hich accept it)***. 1hat 'ould be the legal e0ect as regards the ans'er to question * if an ob,ection toa reservation is made(a) 2y a signatory 'hich has not yet rati-ed(b) 2y a +tate entitled to sign or accede but 'hich has not yet done so)1ritten statements on the matter 'ere submitted to the Court by the follo'ing +tatesand 3rgani4ations The 3rgani4ation of American +tates" the Union of +oviet +ocialist 5epublics" the6ashemite 7ingdom of 8ordan" the United +tates of America" the United 7ingdom of

Great 2ritain and Northern *reland" the +ecretary9General of the United Nations" *srael"the *nternational :abour 3rganisation" Poland" C4echoslova;ia" the Netherlands" thePeople

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rati-cation. Until that moment it merely serves as a notice to the other +tate of theeventual attitude of the signatory +tate?(b) an ob,ection to a reservation made by a +tate 'hich is entitled to sign or accede but'hich has not yet done so is 'ithout legal e0ect. T'o dissenting opinions 'ere appended to the 3pinion one by ice9President Guerreroand 8udges +ir Arnold BcNair" 5ead and 6su Bo" the other by 8udge Alvare4.

*n its 3pinion" the Court begins by refuting the arguments put for'ard by certainGovernments against its competence to eDercise its advisory functions in the presentcase. The Court then dealt 'ith the questions referred to it" after having noted that they'ere eDpressly limited to the Convention on Genocide and 'ere purely abstract incharacter. The -rst question refers to 'hether a +tate 'hich has made a reservation can" 'hilemaintaining it" be regarded as a party to the Convention on Genocide" 'hen some of theparties ob,ect to the reservation. *n its treaty relations" a +tate cannot be bound 'ithoutits consent. A reservation can be e0ected only 'ith its agreement. 3n the other hand" itis a recognised principle that a multilateral Convention is the result of an agreementfreely concluded. To this principle 'as lin;ed the notion of integrity of the Convention asadopted" a notion 'hich" in its traditional concept" involved the proposition that noreservation 'as valid unless it 'as accepted by all contracting parties. This conceptretains undisputed value as a principle" but as regards the Genocide Convention" itsapplication is made more EeDible by a variety of circumstances among 'hich may benoted the universal character of the United Nations under 'hose auspices theConvention 'as concluded and the very 'ide degree of participation 'hich theConvention itself has envisaged. This participation in conventions of this type hasalready given rise to greater EeDibility in practice. Bore general resorts to reservations"very great allo'ance made to tacit assent to reservations" the admission of the +tate

'hich has made the reservation as a party to the Convention in relation to the +tates'hich have accepted it" all these factors are manifestations of a ne' need for EeDibilityin the operation of multilateral conventions. Boreover" the Convention on Genocide"although adopted unanimously" is nevertheless the result of a series of ma,orityvotes 9 'hich may ma;e it necessary for certain +tates to ma;e reservations.*n the absence of an article in the Convention providing for reservations" one cannotinfer that they are prohibited. *n the absence of any eDpress provisions on the sub,ect" todetermine the possibility of ma;ing reservations as 'ell as their e0ects" one mustconsider their character" their purpose" their provisions" their mode of preparation andadoption. The preparation of the Convention on Genocide sho's that an underta;ing 'asreached 'ithin the General Assembly on the faculty to ma;e reservations and that it is

permitted to conclude therefrom that +tates" becoming parties to the Convention" gavetheir assent thereto.1hat is the character of the reservations 'hich may be made and the ob,ections 'hichmay be raised thereto The solution must be found in the special characteristics of theConvention on Genocide. The principles underlying the Convention are recognised bycivilised nations as binding on +tates even 'ithout any conventional obligation. *t 'asintended that the Convention 'ould be universal in scope. *ts purpose is purelyhumanitarian and civilising. The contracting +tates do not have any individualadvantages or disadvantages nor interests of their o'n" but merely a common interest. This leads to the conclusion that the ob,ect and purpose of the Convention imply that it'as the intention of the General Assembly and of the +tates 'hich adopted it" that asmany +tates as possible should participate. This purpose 'ould be defeated if anob,ection to a minor reservation should produce complete eDclusion from theConvention. 3n the other hand" the contracting parties could not have intended tosacri-ce the very ob,ect of the Convention in favour of a vague desire to secure as many

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participants as possible. *t follo's that the compatibility of the reservation and the ob,ectand the purpose of the Convention is the criterion to determine the attitude of the +tate'hich ma;es the reservation and of the +tate 'hich ob,ects. Consequently" question *"on account of its abstract character" cannot be given an absolute ans'er. The appraisalof a reservation and the e0ect of ob,ections depend upon the circumstances of eachindividual case. The Court then eDamined question ** by 'hich it 'as requested to say 'hat 'as the

e0ect of a reservation as bet'een the reserving +tate and the parties 'hich ob,ect to itand those 'hich accept it. The same considerations apply. No +tate can be bound by areservation to 'hich it has not consented" and therefore each +tate" on the basis of itsindividual appraisals of the reservations" 'ithin the limits of the criterion of the ob,ectand purpose stated above" 'ill or 'ill not consider the reserving +tate to be a party tothe Convention. *n the ordinary course of events" assent 'ill only a0ect the relationshipbet'een the t'o +tates. *t might aim" ho'ever" at the complete eDclusion from theConvention in a case 'here it 'as eDpressed by the adoption of a position on the ,urisdictional plane certain parties might consider the assent as incompatible 'ith thepurpose of the Convention" and might 'ish to settle the dispute either by specialagreement or by the procedure laid do'n in the Convention itself. The disadvantages 'hich result from this possible divergence of vie's are real. Theycould have been remedied by an article on reservations. They are mitigated by thecommon duty of the contracting +tates to be guided in their ,udgment by thecompatibility or incompatibility of the reservation 'ith the ob,ect and purpose of theConvention. *t must clearly be assumed that the contracting +tates are desirous ofpreserving intact at least 'hat is essential to the ob,ect of the Convention. The Court -nally turned to question *** concerning the e0ect of an ob,ection made by a+tate entitled to sign and ratify but 'hich had not yet done so" or by a +tate 'hich hassigned but has not yet rati-ed. *n the former case" it 'ould be inconceivable that a +tatepossessing no rights under the Convention could eDclude another +tate. The case of the

signatory +tates is more favourable. They have ta;en certain steps necessary for theeDercise of the right of being a party. This provisional status confers upon them a right toformulate as a precautionary measure ob,ections 'hich have themselves a provisionalcharacter. *f signature is follo'ed by rati-cation" the ob,ection becomes -nal. 3ther'ise"it disappears. Therefore" the ob,ection does not have an immediate legal e0ect buteDpresses and proclaims the attitude of each signatory +tate on becoming a party.