COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

RESERVES A LA CONVENTION
POUR LA PREVENTION ET LA
REPRESSION DU CRIME
DE GENOCIDE
AVIS CONSULTATIF DU 28 MAI 1951

1951

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

RESERVATIONS TO THE
CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE
CRIME OF GENOCIDE
ADVISORY OPINION OF MAY 28th, 1951

LEYDE LEYDEN
SOCIÉTÉ D’EDITIONS A. W. SIJTHOFF’S
A. W. SIJTHOFF PUBLISHING COMPANY
Le présent avis doit être cité comme suit:

« Réserves à la Convention sur le Génocide,
Avis consultatif : C. I. Jf. Recueil 1951, h. 15.»

This Opinion should be cited as follows:

“Reseryvations to the Convention on Genocide,
Advisory Opinion: I.C.]. Reports 1951, p. 15.”

N° de vente: 59
Sales number

15

INTERNATIONAL COURT OF JUSTICE

YEAR 1951.

1951
May 28th, 1951 May 28th

General List :

RESERVATIONS TO THE “oe
CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE
CRIME OF GENOCIDE

Advisory jurisdiction of the Court.—Objection based : on alleged
existence of a dispute ; on alleged exclusive right of the parties to the
Genocide Convention to interpret it ; on Article LX of the Convention.—
Rejection of objection.

Replies limited to Genocide Convention.—A bstract questions.

Reservations.— Objections thereio.— Right of a State which has made
a veservation to be a pariy to the Convention notwithstanding the objection
made to its reservation by certain parties.— Circumstances justifying a
relaxation of the rule of integrity. Faculty of making reservations to
the Convention ; intention of the General Assembly and of the contracting
States ; high ideals of the Convention.— Criterion of the compatibility
of the reservation with object and purpose of the Convention.—I ndividual
appraisal by States.—Absence of a rule of international law concerning
the effects of reservations.—Administrative practice of the League of
Nations and of the United Nations.

Effect of the reservation : between the State which makes it and the
State which objects thereto.—A pplication of the criterion of compatibility.

Objection made : by a State which has not signed the Convention ; by a
signatory which has not ratified.—Provisional status of signatory State.

ADVISORY OPINION

Present : President BASDEVANT; Vice-President GUERRERO;
Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC,
DE VISSCHER, Sir Arnold McNair, KLAESTAD, BADAWI
PasHa, Reap, Hsu Mo; Registrar HAMBRO.
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 16

Tue Court,
composed as above,

gives the following Advisory Opinion :

On November 16th, 1950, the General Assembly of the United
Nations adopted the following resolution :

“The General Assembly,

Having examined the report of the Secretary-General regarding
reservations to multilateral conventions,

Considering that certain reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide have been
objected to by some States,

Considering that the International Law Commission is studying
the whole subject of the law of treaties, including the question of
reservations,

Considering that different views regarding reservations have been
expressed during the fifth session of the General Assembly, and
particularly in the Sixth Committee,

1. Requests the International Court of Justice to give an Advisory
Opinion on the following questions :

In so far as concerns the Convention on the Prevention and
Punishment of the Crime of Genocide in the event of a State
ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature
followed by ratification :

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 I if an objection to a reservation is made :

(a) By a signatory which has not yet ratified ?
(6) By a State entitled to sign or accede but which has not
yet done so?

2. Invites the International Law Commission :

(a) In the course of its work on the codification of the law of
treaties, to study the question of reservations to multilateral
conventions both from the point of view of codification and from
that of the progressive development of international law ; to give
priority to this study and to report thereon, especially as regards
multilateral conventions of which the Secretary-General is the

5
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 17

depositary, this report to be considered by the General Assembly
at its sixth session ;

{b) In connection with this study, to take account of all the
views expressed during the fifth session of the Gencral Assembly,
and particularly in the Sixth Committee ;

3. Instructs the Secretary-General, pending the rendering of the
Advisory Opinion by the International Court of Justice, the receipt
of a report from the International Law Commission and further
action by the General Assembly, to follow his prior practice with
respect to the receipt of reservations to conventions and with
respect to the notification and solicitation of approvals thereof, all
without prejudice to the legal effect of objections to reservations to
conventions as it may be recommended by the General Assembly
at its sixth session.”

By a letter of November 17th, 1950, filed in the Registry on
November 20th, the Secretary-General of the United Nations
transmitted to the Court a certified true copy of the General
Assembly’s resolution.

On November 25th, 1950, in accordance with Article 66, para-
graph 1, of the Court’s Statute, the Registrar gave notice of the
request to all States entitled to appear before the Court.

On December Ist, 1950, the President—as the Court was not
sitting—made an order by which he appointed January 2oth, 1951,
as the date of expiry of the time-limit for the filing of written
statements and reserved the rest of the procedure for further
decision. Under the terms of this order, such statements could be
submitted to the Court by all States entitled to become parties to
the Genocide Convention, namely, any Member of the United
Nations as well as any non-member State to which an invitation
to this effect had been addressed by the General Assembly. Further-
more, written statements could also be submitted by any inter-
national organization considered by the Court as likely to be able
to furnish information on the questions referred to it for an Advis-
ory Opinion, namely, the International Labour Organization and
the Organization of American States. En

On the same date, the Registrar addressed the special and
direct communication provided for in Articlé 66, paragraph 2, of
the Statute to all States entitled to appear. before the Court, which
had been invited to sign and ratify or accede to the Genocide
Convention, either under Article XI of that Convention or by
virtue of a resolution adopted by the Gencral Assembly on Decem-
ber 3rd, 1949, which refers to Article XI; by application of the
provisions of Article 63, paragraph 1, and Article 68 of the Statute,
the same communication was addressed to other States invited to
sign and ratify or accede to the Convention, by virtue of the
resolution of the General Assembly, namely, the following States :
Albania, Austria, Bulgaria, Cambodia, Ceylon, Finland, Hungary,

6
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 18

Ireland, Italy, Jordan, Korea, Laos, Monaco, Portugal, Roma-
nia, and Viet-Nam. Finally, the Registrar’s communication was
addressed to the International Labour Organization and the
Organization of American States.

Written statements were deposited within the prescribed time-
limit by the following governments and international organizations :
the Organization of American States, the Union of Soviet Socialist
Republics, the Hashemite Kingdom of Jordan, the United States
of America, the United Kingdom of Great Britain and Northern
Ireland, the Secretary-General of the United Nations, Israel, the
International Labour Organization, Poland, Czechoslovakia, the
Netherlands, the People’s Republic of Romania, the Ukrainian
Soviet Socialist Republic, the People’s Republic of Bulgaria, the
Byelorussian Soviet Socialist Republic, the Republic of the Philip-

ines.

P By a despatch dated December 14th, 1950, and received on
January 29th, 1951, the Secretary-General of the United Nations
transmitted to the Registry the documents which he had been
requested to furnish pursuant to Article 65 of the Court’s Statute.
All these documents are enumerated in the list attached to the
present Opinion.

As the Federal German Republic had been invited on Decem-
ber 20th, 1950, to accede to the Genocide Convention, the Registrar,
by a telegram and a letter of January 17th, 1951, which constituted
the special and direct communication provided for under Article 66,
paragraph 2, of the Statute, informed the Federal German Govern-
ment that the Court was prepared to receive a written statement
and to hear an oral statement on its behalf; no action was taken
in pursuance of this suggestion.

By a letter dated March goth, 1951, filed in the Registry on
March 15th, the Secretary-General of the United Nations announced
that he had designated Dr. Ivan S. Kerno, Assistant Secretary-
General in charge of the Legal Department, as his representative
before the Court, and that Dr. Kerno was authorized to present
any statement likely to assist the Court.

The Government of the United Kingdom, the French Govern-
ment and the Government of Israel stated, in letters dated respec-
tively January 17th, March 12th and March igth, 1951, that they
intended to present oral statements.

At public sittings held from April roth to r4th, 1951, the Court
heard oral statements presented :

on behalf of the Secretary-General of the United Nations by
Dr. Ivan S. Kerno, Assistant Secretary-General in charge of the
Legal Department ;

on behalf of the Government of Israel by Mr. Shabtai Rosenne,
Legal Adviser to the Ministry of Foreign Affairs ;

on behalf of the Government of the United Kingdom of Great
Britain and Northern Ireland by the Right Honourable Sir Hartley

7
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 19

Shawcross, K.C., M.P., Attorney-General, and by Mr. G. G.
Fitzmaurice, C.M.G., Second Legal Adviser to the Foreign Office ;

on behalf of the Government of the French Republic by
M. Charles Rousseau, Professor at the Faculty of Law in Paris,
Assistant Legal Adviser of the Ministry of Foreign Affairs.

*
* *

In the communications which they have addressed to the Court,
certain governments have contended that the Court is not com-
petent to exercise its advisory functions in the present case.

A first objection is founded on the argument that the making of
an objection to a reservation made by a State to the Convention
on the Prevention and Punishment of the Crime of Genocide
constitutes a dispute and that, in order to avoid adjudicating on
that dispute, the Court should refrain from replying to Questions I
and II. In this connection, the Court can confine itself to recalling
the principles which it laid down in its Opinion of March 30th, 1950
(I.C.J. Reports 1950, p. 71). A reply to a request for an Opinion
should not, in principle, be refused. The permissive provision of
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.
At the same time, Article 68 of the Statute recognizes that the
Court has the power to decide to what extent the circumstances
of each case must lead it to apply to advisory proceedings the pro-
visions of the Statute which apply in contentious cases. The object
of this request for an Opinion is to guide the United Nations in
respect of its own action. It is indeed beyond dispute that the
General Assembly, which drafted and adopted the Genocide Con-
vention, and the Secretary-General, who is the depositary of the
instruments of ratification and accession, have an interest in knowing
the legal effects of reservations to that Convention and more
particularly the legal effects of objections to such reservations.

Following a similar line «' argument, it has been contended that
the request for an opinion would constitute an inadmissible inter-
ference by the General Assembly and by States hitherto strangers
to the Convention in the interpretation of that Convention, as only
States which are parties to the Convention are entitled to interpret
it or to seék an interpretation of it. It must be pointed out in this
connection that, not only did the General Assembly take the initiative
in respect of the Genocide Convention, draw up its terms and open
it for signature and accession by States, but that express provisions
of the Convention (Articles XI and XVI) associate the General
Assembly with the life of the Convention ; and finally, that the
General Assembly actually associated itself with it by endeavouring
to secure the adoption of the Convention by as great a number of

8
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 20

States as possible. In these circumstances, there can be no doubt
that the precise determination of the conditions for participation
in the Convention constitutes a permanent interest of direct concern
to the United Nations which has not disappeared with the entry
into force of the Convention. Moreover, 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. This right is independent of the
General Assembly’s power and is exercisable in a parallel direction.
Furthermore, States which are parties to the Convention enjoy the
faculty of referring the matter to the Court in the manner provided
in Article IX of the Convention.

Another objection has been put forward to the exercise of the
Court’s advisory jurisdiction: it is based on Article IX of the
Genocide Convention which provides that disputes relating to the
interpretation, application of fulfilment of that Convention shall
be submitted to the International Court of Justice at the request
of any of the parties to the dispute. It has been contended that
there exists no dispute in the present case and that, consequently,
the effect of Article IX is to deprive the Court, not only of any
contentious jurisdiction, but also of any power to give an Advisory
Opinion. The Court cannot share this view. The existence of a
procedure for the settlement of disputes, such as that provided by
Article IX, does not in itself exclude the Court’s advisory juris-
diction, for 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 ques-
tion”. Further, Article IX, before it can be applied, presupposes
the status of ‘‘contracting parties” ; consequently, it cannot be
invoked against a request for an Opinion the very object of which
is to determine, in relation to reservations and objections thereto,
the conditions in which a State can become a party.

In conclusion, the Court considers that none of the above-stated
objections to the exercise of its advisory function is well founded.

+
* *

The Court observes that the three questions which have been
referred to it for an Opinion have certain common characteristics.

All three questions are expressly limited by the terms of the
Resolution of the General Assembly to the Convention on the
Prevention and Punishment of the Crime of Genocide, and the same
Resolution invites the International Law Commission to study the
general question of reservations to multilateral conventions both
from the point of view of codification and from that of the progres-
sive development of international law. The questions thus having
a clearly defined object, the replies which the Court is called upon
to give to them are necessarily and strictly limited to that Conven-
tion. The Court will seek these replies in the rules of law relating
to the effect to be given to the intention of the parties to multi-
lateral conventions.

9
OPIN. OF 28 v 51 (RESERVATIONS TO GENOCIDE CONVENTION) 21

The three questions are purely abstract in character. They refer
neither to the reservations which have, in fact, been made to the
Convention by certain States, nor to the objections which have
been made to such reservations by other States. They do not
even refer to the reservations which may in future be made in
respect of any particular article ; nor do they refer to the objections
to which these reservations might give rise.

Question I is framed in the following terms :

“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 ?”

The Court observes that this question refers, not to the possi-
bility of making reservations to the Genocide Convention, but
solely to the question whether a contracting State which has made
a reservation can, while still maintaining it, be regarded as being
a party to the Convention, when there is a divergence of views
between the contracting parties concerning this reservation, some
accepting the reservation, others refusing to accept it.

It is well established that in its treaty relations a State cannot
be bound without its consent, and that consequently no reser-
vation can be effective against any State without its agreement
thereto. It is also a generally recognized principle that a multi-
lateral convention is the result of an agreement freely concluded
upon its clauses and that consequently none of the contracting
parties is entitled to frustrate or impair, by means of unilateral
decisions or particular agreements, the purpose and raison d’être
of the convention. To this principle was linked the notion of the
integrity of the convention as adopted, a notion which in its tradi-
tional concept involved the proposition that no reservation was
valid unless it was accepted by all the contracting parties without
exception, as would have been the case if it had been stated during
the negotiations.

This concept, which is directly inspired by the notion of contract,
is of undisputed value as a principle. However, as regards the
Genocide Convention, it is proper to refer to a variety of circum-
stances which would lead to a more flexible application of this
principle. Among these circumstances may be noted the clearly
universal character of the United Nations under whose auspices the
Convention was concluded, and the very wide degree of partici-
pation envisaged by Article XI of the Convention. Extensive
participation in conventions of this type has already given rise to
greater flexibility in the international practice concerning multi-
lateral conventions. More general resort to reservations, very great
allowance made for tacit assent to reservations, the existence of
practices which go so far as to admit that the author of reservations

10
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 22

which have been rejected by certain contracting parties is neverthe-
less to be regarded as a party to the convention in relation to
those contracting parties that have accepted the reservations—all
these factors are manifestations of a new need for flexibility in
the operation of multilateral conventions.

It must also be pointed out that although the Genocide Conven-
tion was finally approved unanimously, it is nevertheless the result
of a series of majority votes. The majority principle, while facilitating
the conclusion of multilateral conventions, may also make it neces-
sary for certain States to make reservations. This observation is
confirmed by the great number of reservations which have been
made of recent years to multilateral conventions.

In this state of international practice, it could certainly not be
inferred from the absence of an article providing for reservations
in a multilateral convention that the contracting States are pro-
hibited from making certain reservations. Account should also be
taken of the fact that the absence of such an article or even the
decision not to insert such an article can be explained by the desire
not to invite a multiplicity of reservations. The character of a multi-
lateral convention, its purpose, provisions, mode of preparation and
adoption, are factors which must be considered in determining,
in the absence of any express provision on the subject, the possi-
bility of making reservations, as well as their validity and effect.

Although it was decided during the preparatory work not to
insert a special article on reservations, it is none the less true that
the faculty for States to make reservations was contemplated at
successive stages of the drafting of the Convention. In this con-
nection, the following passage may be quoted from the comments
on the draft Convention prepared by the Secretary-General: “‘.... (I)
It would seem that reservations of a general scope have no place
in a convention of this kind which does not deal with the private
interests of a State, but with the preservation of an element of
international order....; (2) perhaps in the course of discussion in
the General Assembly it will be possible to allow certain limited
reservations.”

Even more decisive in this connection is the debate on reser-
vations in the Sixth Committee at the meetings (December 1st and
2nd, 1948) which immediately preceded the adoption of the Geno-
cide Convention by the General Assembly. Certain delegates clearly
announced that their governments could only sign or ratify the
Convention subject to certain reservations.

Furthermore, the faculty to make reservations to the Con-
vention appears to be implicitly admitted by the very terms of
Question I.

The Court recognizes that an understanding was reached
within the General Assembly on the faculty to make reservations

II
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 23

to the Genocide Convention and that it is permitted to conclude
therefrom that States becoming parties to the Convention gave
their assent thereto. It must now determine what kind of reser-
vations may be made and what kind of objections may be taken to
them.

The solution of these problems must be found in the special
characteristics of the Genocide Convention. The origins and char-
acter of that Convention, the objects pursued by the General
Assembly and the contracting parties, the relations which exist
between the provisions of the Convention, inter se, and between
those provisions and these objects, furnish elements of interpret-
ation of the will of the General Assembly and the parties. The
origins of the Convention show that it was the intention of the
United Nations to condemn and punish genocide as ‘‘a crime under
international law’’ involving a denial of the right of existence of
entire human groups, a denial which shocks the conscience of
mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations (Resolution 96 (I) of the General Assembly, December 11th
1946). The first consequence arising from this conception is that
the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without
any conventional obligation. A second consequence is the uni-
versal character both of the condemnation of genocide and of the
co-operation required ‘‘in order to liberate mankind from such an
odious scourge’? (Preamble to the Convention). The Genocide
Convention was therefore intended by the General Assembly and
by the contracting parties to be definitely universal in scope. It
was in fact approved on December gth, 1948, by a resolution which
was unanimously adopted by fifty-six States.

The objects of such a convention must also be considered. The
Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention
that might have this dual character to a greater degree, since its
object on the one hand is to safeguard the very existence of certain
human groups and on the other to confirm and endorse the most
elementary principles of morality. In such a convention the con-
tracting States do not have any interests of their own ; they merely
have, one and all, a common interest, namely, the accomplishment
of those high purposes which are the raison d'être of the convention.
Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the main-
tenance of a perfect contractual balance between rights and duties.
The high ideals which inspired the Convention provide, by virtue
of the common will of the parties, the foundation and measure of
all its provisions.

The foregoing considerations, when applied to the question of
reservations, and more particularly to the effects of objections to
reservations, lead to the following conclusions.

IZ
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 24

The object and purpose of the Genocide Convention imply that
it was the intention of the General Assembly and of the States which
adopted it that as many States as possible should participate.
The complete exclusion from the Convention of one or more States
would not only restrict the scope of its application, but would
detract from the authority of the moral and humanitarian prin-
ciples which are its basis. It is inconceivable that the contracting
parties readily contemplated that an objection to a minor reser-
vation should produce such a result. But even less could the con-
tracting parties have intended to sacrifice the very object of the
Convention in favour of a vain desire to secure as many participants
as possible. The object and purpose of the Convention thus limit
both the freedom of making reservations and that of objecting to
them. It follows that it is the compatibility of a reservation with
the object and purpose of the Convention that must furnish the
criterion for the attitude of a State in making the reservation
on accession as well as for the appraisal by a State in objecting
to the reservation. Such is the rule of conduct which must guide
every State in the appraisal which it must make, individually and
from its own standpoint, of the admissibility of any reservation.

Any other view would lead either to the acceptance of reser-
vations which frustrate the purposes which the General Assembly
and the contracting parties had in mind, or to recognition that
the parties to the Convention have the power of excluding from
it the author of a reservation, even a minor one, which may be
quite compatible with those purposes.

It has nevertheless been argued that any State entitled to become
a party to the Genocide Convention may do so while making
any reservation it chooses by virtue of its sovereignty. The Court
cannot share this view. It is obvious that so extreme an application
of the idea of State sovereignty could lead to a complete disregard
of the object and purpose of the Convention.

On the other hand, it has been argued that there exists a rule of
international law subjecting the effect of a reservation to the express
or tacit assent of all the contracting parties. This theory rests
essentially on a contractual conception of the absolute integrity of
the convention as adopted. This view, however, cannot prevail if,
having regard to the character of the convention, its purpose and
its mode of adoption, it can be established that the parties intended
to derogate from that rule by admitting the faculty to make reser-
vations thereto.

It does not appear, moreover, that the conception of the absolute
integrity of a convention has been transformed into a rule of inter-
national law. The considerable part which tacit assent has always
played in estimating the effect which is to-be given to reservations

13
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 25

scarcely permits one to state that such a rule exists, determining
with sufficient precision the effect of objections made to reser-
vations. In fact, the examples of objections made to reservations
appear to be too rare in international practice to have given rise
to such a rule. It cannot be recognized that the report which was
adopted on the subject by the Council of the League of Nations on
June 17th, 1927, has had this effect. At best, the recommendation
made on that date by the Council constitutes the point of departure
of an administrative practice which, after being observed by the
Secretariat of the League of Nations, imposed itself, so to speak,
in the ordinary course of things on the Secretary-General of the
United Nations in his capacity of depositary of conventions con-
cluded under the auspices of the League. But it cannot be concluded
that the legal problem of the effect of objections to reservations has
in this way been solved. The opinion of the Secretary-General of
the United Nations himself is embodied in the following passage of
his report of September 21st, 1950 : ‘“While it is universally recog-
nized that the consent of the other governments concerned must
be sought before they can be bound by the terms of a reservation,
there has not been unanimity either as to the procedure to be
followed by a depositary in obtaining the necessary consent or as
to the legal effect of a State’s objecting to a reservation.”

It may, however, be asked whether the General Assembly of the
United Nations, in approving the Genocide Convention, had in
mind the practice according to which the Secretary-General, in
exercising his functions as a depositary, did not regard a reservation
as definitively accepted until it had been established that none of
the other contracting States objected to it. If this were the case,
it might be argued that the implied intention of the contracting
parties was to make the effectiveness of any reservation to the
Genocide Convention conditional on the assent of all the parties.

The Court does not consider that this view corresponds to reality.
It must be pointed out, first of all, that the existence of an adminis-
trative practice does not in itself constitute a decisive factor in
ascertaining what views the contracting States to the Genocide
Convention may have had concerning the rights and duties result-
ing therefrom. It must also be pointed out that there existed among
the American States members both of the United Nations and of
the Organization of American States, a different practice which
goes so far as to permit a reserving State to become a party irre-
spective of the nature of the reservations or of the objections raised
by other contracting States. The preparatory work of the Conven-
tion contains nothing to justify the statement that the contracting
States implicitly had any definite practice in mind. Nor is there
any such indication in the subsequent attitude of the contracting
States: neither the reservations made by certain States nor the
position adopted by other States towards those reservations permit

14
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 26

the conclusion that assent to one or the other of these practices
had been given. Finally, it is not without interest to note, in
view of the preference generally said to attach to an established
practice, that the debate on reservations to multilateral treaties
which took place in the Sixth Committee at the fifth session of
the General Assembly reveals a profound divergence of views, some
delegations being attached to the idea of the absolute integrity of
the Convention, others favouring a more flexible practice which
would bring about the participation of as many States as possible.

It results from the foregoing considerations that Question I,
on account of its abstract character, cannot be given an absolute
answer. The appraisal of a reservation and the effect of objections
that might be made to it depend upon the particular circumstances
of each individual case.

*
* *

Having replied to Question I, the Court will now examine Ques-
tion II, which is framed as follows:

“Tf 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 ?”

The considerations which form the basis of the Court’s reply to
Question I are to a large extent equally applicable here. As has been
pointed out above, each State which is a party to the Convention
is entitled to appraise the validity of the reservation, and it exer-
cises this right individually and from its own standpoint. As no
State can be bound by a reservation to which it has not consented,
it necessarily follows that each State objecting to it will or will not,
on the basis of its individual appraisal within the limits of the
criterion of the object and purpose stated above, consider the
reserving State to be a party to the Convention. In the ordinary
course of events, such a decision will only affect the relationship
between the State making the reservation and the objecting
State ; on the other hand, as will be pointed out later, such a deci-
sion might aim at the complete exclusion from the Convention
in a case where it was expressed by the adoption of a position on
the jurisdictional plane.

The disadvantages which result from this possible divergence of
views—-which an article concerning the making of reservations
could have obviated—are real ; they are mitigated by the common
duty of the contracting States to be guided in their judgment by
the compatibility or incompatibility of the reservation with the

15
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION] 27

object and purpose of the Convention. It must clearly be assumed
that the contracting States are desirous of preserving intact at
least what is essential to the object of the Convention ; should
this desire be absent, it is quite clear that the Convention itself
would be impaired both in its principle and in its application.

It may be that the divergence of views between parties as to
the admissibility of a reservation will not in fact have any conse-
quences. On the other hand, it may be that certain parties who
consider that the assent given by other parties to a reservation is
incompatible with the purpose of the Convention, will decide to
adopt a position on the jurisdictional plane in respect of this diver-
gence and to settle the dispute which thus arises either by special
agreement or by the procedure laid down in Article IX of the
Convention.

Finally, it may be that a State, whilst not claiming that a reser-
vation is incompatible with the cbject and purpose of the Conven-
tion, will nevertheless object to it, but that an understanding
between that State and the reserving State will have the effect
that the Convention will enter into force between them, except
for the clauses affected by the reservation.

Such being the situation, the task of the Secretary-General
would be simplified and would be confined to receiving reservations
and objections and notifying them.

*
* *

Question III is framed in the following terms:

“What would be the legal effect as regards the answer to Ques-
tion I 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 ?”’

The Court notes that the terms of this question link it to Ques-
tion I. This link is regarded by certain States as presupposing a
negative reply to Question I.

The Court considers, however, that Question III could arise in
any case, Even should the reply to Question I not tend to exclude,
from being a party to the Convention, a State which has made a
reservation to which another State has objected, the fact remains
that the Convention does not enter into force as between the reserv-
ing State and the objecting State. Even if the objection has this
reduced legal effect, the question would still arise whether the
States mentioned under (a) and (0) of Question III are entitled to
bring about such a result by their objection.

An extreme view of the right of such States would appear to be
that these two categories of States have a right to become parties to

16
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 28

the Convention, and that by virtue of this right they may object
to reservations in the same way as any State which is a party to
the Convention with full legal effect, i.e. the exclusion from the
Convention of the reserving State. By denying them this right, it
is said, they would be obliged either to renounce entirely their right
of participating in the Convention, or to become a party to what is,
in fact, a different convention. The dilemma does not correspond to
reality, as the States concerned have always a right to be parties
to the Convention in their relations with other contracting States.

From the date when the Genocide Convention was opened for
signature, any Member of the United Nations and any non-member
State to which an invitation to sign had been addressed by the
General Assembly, had the right to be a party to the Convention.
Two courses of action were possible to this end: either signature,
from December gth, 1948, until December 31st, 1949, followed by
ratification, or accession as from January Ist, 1950 (Article XI of
the Convention). The Court would point out that the right to
become a party to the Convention does not express any very clear
notion. It 1s inconceivable that a State, even if it has participated in
the preparation of the Convention, could, before taking one or the
other of the two courses of action provided for becoming a party
to the Convention, exclude another State. Possessing no rights which
derive from the Convention, that State cannot claim such a right
from its status as a Member of the United Nations or from the
invitation to sign which has been addressed to it by the General
Assembly.

The case of a signatory State is different. Without going into
the question of the legal effect of signing an international convention,
which necessarily varies in individual cases, the Court considers
that signature constitutes a first step to participation in the Conven-
tion.

It is evident that without ratification, signature does not make
the signatory State a party to the Convention ; nevertheless, it
establishes a provisional status in favour of that State. This status
may decrease in value and importance after the Convention enters
into force. But, both before and after the entry into force, this
status would justify more favourable treatment being meted out
to signatory States in respect of objections than to States which
have neither signed nor acceded.

As distinct from the latter States, signatory States have taken
certain of the steps necessary for the éxercise of the right of being
a party. Pending ratification, the provisional status created by
signature confers upon the signatory a right to formulate as a
precautionary measure objections which have themselves a provi-
sional character. These would disappear if the signature were not
followed by ratification, or they would become effective on rati-
fication.

17
OPIN, OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 29

Until this ratification is made, the objection of a signatory State
can therefore not have an immediate legal effect in regard to the
reserving State. It would merely express and proclaim the eventual
attitude of the signatory State when it becomes a party to the
Convention.

The legal interest of a signatory State in objecting to a reserva-
tion would thus be amply safeguarded. The reserving State would
be given notice that as soon as the constitutional or other pro-
cesses, which cause the lapse of time before ratification, have
been completed, it would be confronted with a valid objection
which carries full legal effect and consequently, it would have to
decide, when the objection is stated, whether it wishes to maintain
or withdraw its reservation. In the circumstances, it is of little
importance whether the ratification occurs within a more or less
long time-limit. The resulting situation will always be that of a
ratification accompanied by an objection to the reservation. In
the event of no ratification occurring, the notice would merely
have been in vain.

For these reasons,
THE COURT IS OF OPINION,

In so far as concerns the Convention on the Prevention and
Punishment of the Crime of Genocide, in the event of a State
ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature followed
by ratification,

On Question I:

by seven votes to five,

that a State which has made and maintained a reservation which
has been objected to by one or more of the parties to the Conven-
tion 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.

On Question II:

by seven votes to five,

(a) that 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) that if, on the other hand, a party accepts the reservation
as being compatible with the object and purpose of the Convention,

18
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 30

it can in fact consider that the reserving State is a party to the
Convention ;

On Question III:

by seven votes to five,

(a) that 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 ;

(6) that 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.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-eight day of May,
one thousand nine hundred and fifty-one, in two copies, one of
which will be placed in the archives of the Court and the other
transmitted to the Secretary-General of the United Nations.

(Signed) BASDEVANT,

President.

(Signed) E. HAMBRO,
Registrar.

Vice-President GUERRERO, Judges Sir Arnold McNair, READ
and Hsu Mo, while agreeing that the Court has competence to
give an Opinion, declare that they are unable to concur in the
Opinion of the Court and have availed themselves of the right
conferred on them by Articles 57 and 68 of the Statute and appended
to the Opinion the common statement of their dissenting opinion.

Judge ALvAREz, declaring that he is unable to concur in the
Opinion of the Court, has availed himself of the right conferred
on him by Articles 57 and 68 of the Statute and has appended to
the Opinion the statement of his dissenting opinion.

(Initialled) J. B.
(Initialled) E. H.

XQ
50

ANNEX

————

LIST OF DOCUMENTS SUBMITTED TO THE COURT

I.—DOCUMENTS SUBMITTED DURING THE WRITTEN PROCEEDINGS

A.—DOCUMENTS SUBMITTED BY THE SECRETARY-GENERAL OF THE
UNITED NATIONS

(a) Documents transmitted with the Request (Article 65, para. 2, of
the Statute}

(I) RECORDS OF THE GENERAL ASSEMBLY, 5TH SESSION

a-—Inclusion of the Item in the Agenda (Records of the proceedings)

‘1. Records of the General Committee : 69th meeting.
Idem, 7oth meeting.

2. Records of the General Assembly : 285th plenary meeting.

B—Inclusion of the Item in the Agenda (documents)

3. Adoption of the Agenda of the 5th Session and allocation of items
to Committees : Report of the General Committee (extract).

4. Allocation of items on the Agenda of the 5th Session : Letter dated
September 26th, 1950, from the President of the General Assembly
to the Chairman of the 6th Committee (extract).

{IT} DISCUSSION IN THE 6TH COMMITTEE AND THE GENERAL ASSEMBLY
(RECORDS OF THE PROCEEDINGS)
6th Committee :
5. 217th meeting.
6. 218th meeting.
7. 219th meeting.
8. 220th meeting.
9. 221st meeting.
Io. 222nd meeting.
11. 223rd meeting.
12. 224th meeting.
13. 225th meeting.
14. Corrections to the summary records of the 221st, 222nd and 225th
meetings.
General Assembly :
I5. 305th plenary meeting.
45
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 57

(HT) DISCUSSION IN THE 6TH COMMITTEE AND THE GENERAL ASSEMBLY
(DOCUMENTS)

16. Report of the Secretary-General to the Assembly (first phase).
17. United States of America: draft resolution.
18. United States of America: revised draft resolution.

19. United Kingdom : amendments to the draft resolution submitted by
the United States of America.

20. Uruguay: amendments to the draft resolution submitted by the
United States of America.

21. Uruguay : memorandum.

22, France: amendments to the draft resolution submitted by the
United States of America.

23. Iran : amendments to the draft resolution submitted by the United
States of America.

24. Chile: amendment to the draft resolution amended by Uruguay.

25. Sweden: amendment to the United Kingdom amendments to the
draft resolution submitted by the United States of America.

26. Note by the Secretary-General.
27. Note by the Secretary-General (addendum).
28. Egypt, France, Greece, Iran, United Kingdom : joint draft resolution.

29. Belgium, Denmark, Netherlands, Norway, Sweden : amendment to
the joint draft resolution submitted by Egypt, France, Greece, Iran,
United Kingdom.

30. Belgium, Chile, Denmark, Egypt, France, Greece, Iran, Nether-
lands, Norway, Sweden, United Kingdom, United States of America,
Uruguay : joint draft resolution replacing the foregoing documents.

31. Union of Soviet Socialist Republics : amendment to the joint draft
resolution of Belgium, Chile, Denmark, Egypt, France, Greece, Iran,
Netherlands, Norway, Sweden, United Kingdom, United States of
America and Uruguay.

32. Report of the Sixth Committee to the General Assembly (final
phase).

33. Belgium, Chile, Denmark, Egypt, France, Greece, Iran, Netherlands,
Norway, Sweden, United Kingdom, United States of America,
Uruguay : amendment to the draft resolution submitted by the
Sixth Committee.

34. Resolution adopted by the General Assembly at its 305th plenary
meeting on 16 November, 1950.

46
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 58

(b) Documents annexed to the written statement

PART ONE.—NOTIFICATION BY THE SECRETARY-
GENERAL OF THE DEPOSIT OF TWENTY INSTRU-
MENTS OF RATIFICATION OR ACCESSION :

I. Notification (19 October, 1950)
II. Procès-verbal (14 October, 1950)
III. Corrigendum to notification (1 November,

1950)

PART TWo.—NOTIFICATIONS BY THE SECRETARY-
GENERAL OF RESERVATIONS :

I. Notifications of reservations made at sig-
nature by the Union of Soviet Socialist
Republics :

IT.

A.

Notification to States which had not yet
ratified or acceded :

1. Notification (30 December, 1949)

2. Procés-verbal of signature (16 Decem-
ber, 1949)

3. Corrigendum to notification (13 Janu-
ary, 1950)

Notification to States which had already

ratified :

1. Notification (30 December, 1949)

2. Procés-verbal of signature (16 Decem-
ber, 1949)

Letter of the Assistant Secretary-General

to the Union of Soviet Socialist Republics

(13 January, 1950)

Notifications of reservations made at sig-
nature by the Byelorussian Soviet Socialist
Republic :

A.

Notification to States which had not yet
ratified or acceded :

1. Notification (30 December, 1949)
2. Procés-verbal of signature (16 Decem-
ber, 1949)

Notification to States which had already
ratified :

1. Notification (30 December, 1949)

2. Procès-verbal of signature (16 Decem-
ber, 1949)

Annexed document

English

T2

13

14

15

18

15

number
French

It

10

16

17

47
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 59

Annexed document
number
English French

C. Letter of the Assistant Secretary-General
to the Byelorussian Soviet Socialist
Republic (13 January, 1950) Ig
III. Notification of reservations made at signature
by the Ukrainian Soviet Socialist Republic :
A. Notification to States which had not yet
ratified or acceded :
1. Notification (29 December, 1949) 20 22
2. Procés-verbal of signature (16 Decem-
ber, 1049) 21 23
3. Corrigendum to notification (13 Janu-
ary, 1950) 8 10
B. Notification to States which had already
ratified :
1. Notification (30 December, 1949) 24
2. Procès-verbal of signature (16 Decem-
ber, 1949) al - 23
C. Letter of the Assistant Secretary-General
to the Ukrainian Soviet Socialist Republic
(13 January, 1950) 25
IV. Notifications of reservations made at sig-
nature by Czechoslovakia :
A. Notification to States which had not yet
ratified or acceded :
1. Notification (29 December, 1949) 26 28
2. Procès-verbal of signature (28 Decem-
ber, 1949) 27 29
B. Notification to States which had already
ratified or acceded :
1. Notification (30 December, 1949) 30
2. Procès-verbal of signature (28 Decem-
ber, 1949) 27 29
C. Letter of the Assistant Secretary-General
to Czechoslovakia (13 January, 1950) 31

V. Notifications of reservations in the instru-
ment of ratification of the Philippines :
A. Notification to States which had not yet
ratified or acceded :
1. Notification (21 July, 1950) 32 34
2. Instrument of ratification 33 35
B. Notification to States which had already
ratified or acceded :

1. Notification (31 July, 1950) 36 37
2. Instrument of ratification 33 35

48
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION)

VIL

VII.

VIII.

IX.

C. Letter of the General Counsel and Prin-
cipal Director to the Philippines (31 July,

1950)

Notifications of reservations in the instru-
ment of accession of Bulgaria :

A. Notification to States which had not yet
ratified or acceded :
x. Notification (3 August, 1950)
2. Instrument of accession

B. Notification to States which had already
_ratified or acceded :

1. Notification (3 August, 1950)
2. Instrument of accession

C. Letter of the General Counsel and Prin-
cipal Director to Bulgaria (3 August, 1950)

Notifications of reservations in the instru-
ment of accession of Romania :

A. Notification to States which had not yet
ratified or acceded .

1. Notification (21 November, 1950)
2. Reservations of Romania

B. Notification to States which had already
ratified or acceded :

1. Notification (21 November, 1950)
2. Reservations of Romania

Notifications of reservations in the instru-
ment of accession of Poland :

À. Notification to States which had not yet
ratified or acceded :
1. Notification (29 November, 1950)
2. Instrument of accession

B. Notification to States which had already
ratified or acceded :
1. Notification (18 December, 1950)
2. Instrument of accession

C. Letter of the Assistant Secretary-General
to Poland (7 December, 1050)

Notifications of receipt of instrument of rati-
fication of Czechoslovakia maintaining
reservations :

60

Annexed document

number
English French
38
39 AT
40 42
43 44
40 42
45
46 48
47 49
50 ST
47 49
52 54
53 55
56 57
53 55
574

49
OPIN.

Part THREE.—INVITATIONS TO NON-MEMBER STATES
‘TO BECOME PARTIES, CONTAINING NOTIFICATIONS

OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION)

A. Notification to all States concerned
(5 January, 1951)

B. Letter of the Assistant Secretary-General
to Czechoslovakia (12 January, 1951)

OF RESERVATIONS :

I.

I.

ITI.

IV.

Letter to Indonesia :
A. Letter (27 March, 1950)
B. Annexes to letter:

1. Procès-verbal of signature of the
U.S.S.R. (16. December, 1949)

2. Procés-verbal of signature of the Byelo-
russian S.S.R. (16 December, 1949)

3. Procès-verbal of signature of the Ukrai-
nian S.S.R. (16 December, 1949)

4. Procès-verbal of signature of Czecho-
slovakia (28 December, 1949)

Letter to Liechtenstein :
A. Letter (10 April, 1950)

B. Annexes to letter
(Identical with annexes to letter to
Indonesia)

Letter to Viet Nam, Cambodia and Laos:

A. Letter (31 May, 1950)

B. Annexes to letter
(Identical with annexes to letter to
Liechtenstein)

Letter to the Federal Republic of Germany :
A. Letter (20 December, 1950)

B. Annexes to letter
(Identical with annexes to letter to Indo-
nesia with the addition of the following :)

1. Instrument of ratification of the Phi-
lippines

2. Instrument of accession of Bulgaria

. Reservations of Romania

4. Instrument of accession of Poland

Ww

61

Annexed document
number

English
58

60

61

18

23

64

33
40
47
53

French

59

62

63

50
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION)

bart Four.—CORRESPONDENCE CONCERNING EX-
PRESSION BY GOVERNMENTS OF DISAGREEMENT
WITH, OR OBJECTION TO, THE FOREGOING RESERV-
ATIONS :

L

IT.

ITT.

Correspondence concerning the position of
Ecuador :

A. Circular note (5 May, 1950)

B. Annexes to circular note:

x. Note of Ecuador (10 February, 1950)

2. Letter of the Assistant Secretary-
General to Ecuador (21 March, 1950)

3. Note of Ecuador (31 March, 1050)
C. Note of Ecuador (16 August, 1950)

Correspondence concerning the position of
the Union of Soviet Socialist Republics :

A. Letter of the Union of Soviet Socialist
Republics (2 March, 1950)

B. Letter of the Secretary-General (23 March,
1950)

C. Letter of the Union of Soviet Socialist
Republics (10 October, 1950)

Correspondence concerning the position of
Guatemala :

A. Circular note (2 August, 1950)
B. Annexes to circular note:

1. Letter of the Assistant Secretary-
General to Guatemala (19 January,

1950)
2. Note of Guatemala (16 June, 1950)

3. Letter of the General Counsel and
Principal Director to Guatemala

(14 July, 1950)
C. Circular note (7 September, 1950)
D. Annex to circular note:

Note of Guatemala (3: July, 1950)
E. Circular note (78 October, 1950)
F. Annex to circular note:

Note of Guatemala (26 September,
1950)

62

Annexed document
number
English French

65 69
66 70
67 7I
68 72

73
74
75
76
77 Sr
78 82
79 83
80 84
85 87
86 88
89 OI
go 92

on
e
OPIN. OF 28 V 5I (RESERVATIONS TO GENOCIDE CONVENTION) 63

IV. Letters from the United Kingdom :

A. Letter of the United Kingdom (31 July,
1950)

B. Letter of the United Kingdom (30 Sep-
tember, 1950)

C. Letter of the United Kingdom (6 Decem-
ber, 1950)
V. Correspondence concerning the position of

Australia :

A. Circular note (4 October, 1950)

B. Annex to circular note:
Letter of Australia (26 September,
1950)

C. Circular note (11 December, 1950)

D. Annex to circular note:
Letter of Australia (15 November,
1950)
E. Letter of the Philippines (15 December,
1950)

PART FIVE.—ACKNOWLEDGEMENTS OF GOVERN-
MENTS RATIFYING OR ACCEDING, AFTER NOTICE OF
RESERVATIONS, WITHOUT COMMENT THEREON :

I. Letter to Panama (13 January, 1950)
Il. Letter to Guatemala (19 January, 1950)
III. Letter to Israel (15 March, 1950)
IV. Letter to Monaco (10 April, 1950)

V. Letter to Hashemite Jordan (4 May,
1950)
VI. Letter to Liberia (19 June, 1950)
VII. Letter to Saudi Arabia (21 July, 1950)

VIII. Letter to Turkey (7 August, 1950)
IX. Letter to Viet Nam (30 August, 1950)
X. Letter to Yugoslavia (7 September, 1950)

XI. Letter to El Salvador (6 October, 1950)
XII. Letter to Ceylon (15 November, 1950)
XIII. Letter to Cambodia (15 November, 1950)

English

93
94

95

TOI

104

105

78
106

108
109
IIO

III

113

II4
II5

98

99
102

103

82

107

II2

116

Annexed document

French

52
OPIN. OF

XIV. Letter to Costa Rica (15 November,

1950)

XV. Letter to France {15 November, 1950)
XVI. Letter to Haiti (15 November, 1950)
XVII. Letter to Korea (15 November, 1950)

XVIII. Letter to Laos (12 January, 1951)

Part S1x.—REPLIES OF GOVERNMENTS TO THE
FOREGOING :

I.

Il,

Il.

IV.

Correspondence concerning the position of
El Salvador :

A. Circular note (25 November, 1950)

B. Annex to circular note:
Note of EI Saivador (27 October, 1950)

Correspondence concerning the position of
Viet Nam:
A. Circular note (6 December, 1950)

B. Annex to circular note:
Letter of Viet Nam (3 November, 1950)

C. Letter of Viet Nam (22 December, 1950)

D. Letter of the Assistant Secretary-General
{12 January, 1951)

Correspondence concerning the position of
France :
A. Letter of France (6 December, 1950)

B. Letter of the Assistant Secretary-General
(12 January, 1951)

Correspondence concerning the position of
Cambodia :

A. Letter of Cambodia (6 December, 1950)

B. Letter of the Assistant Secretary-General
(12 January, 1951)

Draft Convention on the Crime of Genocide

Communications received by the Secretary-General

117

120

122

123

126

127

28 v 51 (RESERVATIONS TO GENOCIDE CONVENTION)

118
119

121

124

125

128
129

130

131

132

133

134

135

136
137

64

Annexed document
number

English French

53
OPIN. OF 28 V51 (RESERVATIONS TO GENOCIDE CONVENTION)

Comments by Governments. on the Draft Conven-
tion prepared by the Secretariat. Communica-
tions from non-governmental Organizations

Report of the Ad Hoc Committee on Genocide

Summary Record of the 26th meeting of the
Ad Hoc Committee on Genocide

Report of the Sixth Committee

The Ad Hoc Committee on Genocide: Final pro-
visions

Ad Hoc Committee on Genocide. Summary Record
of the 23rd meeting

Genocide. Draft Convention and Report of the
Economic and Social Council. Amendment

Genocide. Draft Convention and Report of the
Economic and Social Council. Amendments

Ad Hoc Committee on Genocide. Summary
Record of the 20th Meeting

Ad Hoc Committee on Genocide. Summary
Record of the 24th Meeting

Genocide. Draft Convention and Report of the
Economic and Social Council. Amendments

U.S.S.R. : amendments to the draft convention on
the prevention and punishment of genocide
proposed by the Sixth Committee

Ukrainian S.S.R.: amendment to the United
Kingdom proposal for the addition to the Draft
Convention on Genocide of a new article extend-
ing the application of the Convention to territo-
ries in regard to which any State performs the
functions of the governing and administering
authority

Official Records of the Third Session of the General
Assembly. Part I. Plenary Meetings of the
General Assembly. Summary Records of Meet-
ings. 21 September-12 December, 1948

Official Records of the Third Session of the General
Assembly. Part I. Legal Questions. Sixth Com-
mittee. Summary Records of Meetings. 21 Sep-
tember-10 December, 1948

I dem. Annexes

138
139

140
141

142
143
144
145
146
147

148

149

150

ISI

65

Annexed document
number
French

54
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 66

B.—DOCUMENTS SUBMITTED BY THE INTERNATIONAL LABOUR

ORGANIZATION

(I) Constitution of the International Labour Organization.

{II) Conventions and recommendations 1019-1949 (volume containing
conventions and recommendations adopted by the International
Labour Conference from 1919 to 1949).

(III) Official correspondence concerning the ratification of certain
international labour conventions.

(a) Poland

I.

2.

Letter of June 16th, 1920, from the Minister of Labour
of Poland to the Director of the I.L.0.

Reply from the Director of the I.L.O. to the Minister of
Labour of Poland, July roth, 1920.

Summary of the above correspondence as communicated
to the Members of the Organization in the “Official Bulletin
of the International Labour Office’.

(b) India

I.

3.

Extract from a letter from the Secretary of State for India
to the Secretary-General of the League of Nations, July 12th,
1921.

. Extract from the reply of the Acting Secretary-General of

the League of Nations to the Secretary of State for India
of July 22nd, 1921.

Letter from the Director of the International Labour Office
to the Secretary of State for India of September 24th, 1021.

(c) Cuba

I.

Letter from the Secretary-General of the League of Nations
to the Director of the International Labour Office of
July rith, 1928.

. Letter from the Director of the I.L.O. to the Secretary-

General of the League of Nations of July 31st, 1928.

. Letter from the Secretary-General of the League of Nations

to the Director of the I.L.O., August 23rd, 1928.

. Letter from the Director of the I.L.O. to the Under-Secretary

of State for Foreign Affairs of Cuba, August 3rd, 1928.

. Letter from the Director of the I.L.O. to the Secretary

for Agriculture, Commerce and Labour of Cuba of
August 3rd, 1928.

Letter from the Under-Secretary of State for Foreign
Affairs of Cuba to the Director of the I.L.O., February 20th,

1930.

(d) Peru

I.

Decision of the Peruvian Government dated 6th March,
1936.
55
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 67

2. Letter from the Acting Director of the I.L.O. to the Minister
for Foreign Affairs of Peru, May 15th, 1936.

3. Reply from the Minister for External Relations of Peru,
8th July, 1936.

{IV) Memorandum submitted by the Director of the I.L.O. to the Com-
mittee of Experts for the progressive codification of international
law and extract from the report submitted by the Committee to the
Council of the League of Nations, 1927.

(a) Text of the Memorandum submitted by the Director of the
I.L.O. to the Committee of Experts for the progressive codi-
fication of international law.

(b) Extract from the report by the Committee of Experts for the
progressive codification of international law concerning the
admissibility of reservations to general conventions, submitted
to the Council of the League of Nations, June 15th, 1927.

(c) Extract from the Resolution adopted by the Council of the
League of Nations on June 17th, 1927.

{V) Extract from the report submitted to the Governing Body of the
I.L.O., at tts 60th session (Madrid, October 1932), by tts Standing
Orders Committee, and document submitted by the I.L.O. to the
Committee.

(a) Extract from the report of the Standing Orders Committee.

(b) Document submitted by the I.L.O. to the Standing Orders
Committee.

(VI) Communications from the I.L.O. to the Secretary-General of the
United Nations concerning the registration of international labour
conventions.

{a} Letter from the Legal Adviser of the I.L.O. to the Secretary-
General of the United Nations dated roth August, 1949.

(b) Letter from the Legal Adviser of the I.L.O. to the Secretary-
General of the United Nations dated 27th June, 1950.

(VII) Examples of rati fications of International Labour Conventions subject
to suspensive conditions, geographical limitations and under-
standings which have not been regarded as constituting reservations.

(a) Example of ratification subject to suspensive conditions :
1. Conditional ratification by the United Kingdom of Great
Britain and Northern Ireland of the Convention concerning

the simplification of the inspection of emigrants on board
ship, 1926 (Convention No. 21).

(b) Examples of ratifications subject to geographical limitations :
1. Formal ratification by India of the conventions concerning
workmen’s compensation for occupational diseases, 1925
(Convention No. 18), and equality of treatment for national
and foreign workers as regards workmen’s compensation
for accidents, 1925 (Convention No. 19).
2. Formal ratification by Australia of certain International
Labour Conventions.

56
OPIN, OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 68

3. Formal ratification by the United Kingdom of Great
Britain and Northern Ireland of the Convention concerning
Freedom of Association and Protection of the Right to
organize, 1948 (Convention No. 87).

(c) Examples of ratifications subject to understandings which
have not been regarded as constituting reservations :

I. Formal ratification by. the United Kingdom of Great
Britain and Northern Ireland of the Convention concerning
seamen’s Articles of Agreement, 1926 (Convention No. 22).

2. Formal ratification by India of the Convention concerning
seamen’s Articles of Agreement, 1926 (Convention No. 22).

3.. Formal ratification by Australia of the Convention concern-
ing hours of work on board ship and manning, 1936
{Convention No. 57).

4. Formal ratification by the United States of America of the
Conventions concerning the minimum requirement of
professional capacity for masters and officers on board
merchant ships, 1936 (Convention No. 53); concerning
annual holidays with pay for seamen, 1936 (Convention
No. 54) ; concerning the liability of the shipowner in case
of sickness, injury or death of seamen, 1936 (Convention
No. 55); concerning hours of work on board ship and
manning, 1936 (Convention No. 57) ; fixing the minimum
age for the admission of children to employment at sea
(revised 1936) (Convention No. 58).

II._DOCUMENTS SUBMITTED DURING THE ORAL PROCEEDINGS

A.—DOCUMENTS SUBMITTED BY THE SECRETARY-GENERAL OF THE
UNITED NATIONS

(1) Report on the Law of Treaties compiled by Professor Brierley for
the International Law Commission.

(2) Analytical Report of the 53rd Meeting of the Commission.

(3) Report of the International Law Commission on the proceedings of
the 2nd Session (June-July, 1950).

(4) Letter from the Assistant Secretarv-General, Legal Department, of
February 5th, 1951, regarding communication from Ecuador.

(5) Letter from the Assistant Secretary-General, Legal Department, of
February 5th, 1051, regarding communication from Ecuador.

(6) Letter from the Minister for Foreign Affairs of Iran to the Secretary
General of January 15th, 1051.

(7) Letter from the Assistant Secretary-General, Legal Department, to
the Minister for Foreign Affairs of Iran.

(8) Letter from the Assistant Secretary-General, Legal Department,
of February 28th, 1951, regarding communications by Australia.

(9) Letter from the Acting Permanent Australian Representative to
the United Nations to the Secretary-General of March 1gth, 1957.

57
OPIN. OF 28 V 51 (RESERVATIONS TO GENOCIDE CONVENTION) 69

(10) Letter from the Permanent Secretary, Ministry for Foreign Affairs,
Ceylon, to the Assistant Secretary-General, Legal Department, of
January 27th, 1951.

(11) Letter from the Assistant Secretary-General, Legal Department, to
the Minister for External Affairs, Ceylon, of March 5th, 1951.

(12) Letter from the Assistant Secretary-General, Legal Department,
on the communication from Ceylon, March 7th, 1951.

(13) Letter from the Norwegian Permanent Delegation to the United
Nations to the Assistant Secretary-General, Legal Department,
February gth, 1951.

(14) Letter from the Assistant Secretary-General, Legal Department,
to the Permanent Representative of Norway to the United Nations,
February 16th, 1951.

B.--DOCUMENTS SUBMITTED BY THE REPRESENTATIVE OF ISRAEL

(x) Translation into English of the Israel Crime of Genocide (prevention
and punishhment) law. 5710-1950.

(2) “The Genocide Convention, its Origin and Interpretation”, by
Nehemiah Robinson. 1949. Institute of Jewish Affairs of the
World Jewish Congress.

C.—CORRESPONDENCE ADRESSED TO THE REGISTRY BY THE AUSTRALIAN
EmBassy AT THE HAGUE, AND THE CHARGE D’AFFAIRES, PHILIPPINES
MISSION TO THE UNITED NATIONS

(x) Letter from the Australian Embassy at The Hague to the Registrar,
April 3rd, 1951.

(2) Telegram from the Chargé d’affaires, Philippines Mission to the
United Nations, to the Registrar, April 6th, 1951.

58


          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

  APPEL CONCERNANT LA COMPÉTENCE
         DU CONSEIL DE L’OACI
  EN VERTU DE L’ARTICLE II, SECTION 2,
DE L’ACCORD DE 1944 RELATIF AU TRANSIT
DES SERVICES AÉRIENS INTERNATIONAUX
              (BAHREÏN, ÉGYPTE
       ET ÉMIRATS ARABES UNIS c. QATAR)

         ORDONNANCE DU 27 MARS 2019

                 2019
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

APPEAL RELATING TO THE JURISDICTION
        OF THE ICAO COUNCIL
     UNDER ARTICLE II, SECTION 2,
     OF THE 1944 INTERNATIONAL
  AIR SERVICES TRANSIT AGREEMENT
               (BAHRAIN, EGYPT
      AND UNITED ARAB EMIRATES v. QATAR)

            ORDER OF 27 MARCH 2019

                            Mode oﬃciel de citation :
  Appel concernant la compétence du Conseil de l’OACI en vertu de l’article II,
section 2, de l’accord de 1944 relatif au transit des services aériens internationaux
                (Bahreïn, Egypte et Emirats arabes unis c. Qatar),
            ordonnance du 27 mars 2019, C.I.J. Recueil 2019, p. 348

                                 Oﬃcial citation :
   Appeal relating to the Jurisdiction of the ICAO Council under Article II,
     Section 2, of the 1944 International Air Services Transit Agreement
           (Bahrain, Egypt and United Arab Emirates v. Qatar),
            Order of 27 March 2019, I.C.J. Reports 2019, p. 348

                                                                  1166
                                                  No de vente:
ISSN 0074-4441                                    Sales number
ISBN 978-92-1-157368-8

                                 27 MARS 2019

                                ORDONNANCE

  APPEL CONCERNANT LA COMPÉTENCE
         DU CONSEIL DE L’OACI
  EN VERTU DE L’ARTICLE II, SECTION 2,
DE L’ACCORD DE 1944 RELATIF AU TRANSIT
DES SERVICES AÉRIENS INTERNATIONAUX
          (BAHREÏN, ÉGYPTE
   ET ÉMIRATS ARABES UNIS c. QATAR)

APPEAL RELATING TO THE JURISDICTION
        OF THE ICAO COUNCIL
     UNDER ARTICLE II, SECTION 2,
     OF THE 1944 INTERNATIONAL
  AIR SERVICES TRANSIT AGREEMENT
          (BAHRAIN, EGYPT
 AND UNITED ARAB EMIRATES v. QATAR)

                                27 MARCH 2019

                                      ORDER

                                                                    348

             INTERNATIONAL COURT OF JUSTICE
                              YEAR 2019
                                                                              2019
                            27 March 2019                                   27 March
                                                                           General List
                                                                             No. 174
 APPEAL RELATING TO THE JURISDICTION
         OF THE ICAO COUNCIL
      UNDER ARTICLE II, SECTION 2,
      OF THE 1944 INTERNATIONAL
   AIR SERVICES TRANSIT AGREEMENT
                    (BAHRAIN, EGYPT
           AND UNITED ARAB EMIRATES v. QATAR)

                               ORDER

Present: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
         Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde,
         Bhandari, Crawford, Gevorgian, Salam, Iwasawa; Deputy-
         Registrar Fomété.

  The International Court of Justice,
   Composed as above,
   After deliberation,
   Having regard to Article 48 of the Statute of the Court and to Arti-
cles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
   Having regard to the Application ﬁled in the Registry of the Court on
4 July 2018, instituting an appeal by the Kingdom of Bahrain, the
Arab Republic of Egypt and the United Arab Emirates (hereinafter col-
lectively referred to as the “Applicants”) from the decision rendered by
the Council of the International Civil Aviation Organization on 29 June
2018 in proceedings commenced by the State of Qatar (hereinafter
referred to as “Qatar” or the “Respondent”) against these States on

                                                                      4

                     icao council (order 27 III 19)                    349

30 October 2017 pursuant to Article II, Section 2, of the 1944 Interna-
tional Air Services Transit Agreement,
   Having regard to the Order dated 25 July 2018, whereby the President
of the Court ﬁxed 27 December 2018 and 27 May 2019 as the respective
time-limits for the ﬁling of a Memorial by the Applicants, and a Counter-
Memorial by the Respondent,
   Having regard to the Memorial ﬁled by the Applicants on 27 December
2018 and the Counter-Memorial ﬁled by the Respondent on 25 February
2019;
   Whereas the President of the Court convened a meeting with the Agents
of the Parties on 15 March 2019 in order to ascertain their views with
regard to certain questions of procedure; whereas, ahead of that meeting,
in a letter dated 11 March 2019, the Applicants requested the Court to
authorize or direct a second round of written pleadings, in view of “the
nature, complexity and importance of the legal and factual issues arising
for consideration in this case”; and whereas, in a letter dated 12 March
2019, the Agent of the Respondent indicated that the views of Qatar with
regard to questions of procedure would be presented at the forthcoming
meeting;
   Whereas, at that meeting, the Applicants reiterated that, in their view,
a second round of written pleadings was warranted in the circumstances
of the case; whereas they stated, in particular, that in its Counter-
Memorial the Respondent had introduced a considerable amount of new
factual material, which raised a number of evidentiary issues, as well as
new legal arguments, with respect to which, as a matter of due process,
the Applicants should be given an opportunity to respond in writing; and
whereas, in terms of the time frame, the Applicants requested a minimum
period of four months for the preparation of their Reply;
   Whereas, at the same meeting, the Respondent stated that, in its view,
a second round was not deemed necessary; whereas it considered that the
scope of the case was limited by virtue of its very nature, namely, an
appeal from a decision of the Council of the International Civil Aviation
Organization; whereas the Respondent maintained that the Court was
already suﬃciently informed about the factual and legal issues raised in
the case; and whereas the Respondent indicated that, in the event that the
Court were to direct a second round of written pleadings, the Applicants
and the Respondent should each be given one month for the preparation
of a Reply and a Rejoinder, respectively;
   Taking into account the views of the Parties,
  Directs the submission of a Reply by the Kingdom of Bahrain, the
Arab Republic of Egypt, and the United Arab Emirates, and a Rejoinder
by the State of Qatar;
  Fixes the following time-limits for the ﬁling of these written pleadings:

                                                                          5

                    icao council (order 27 III 19)                   350

   27 May 2019 for the Reply of the Kingdom of Bahrain, the Arab Repub-
lic of Egypt and the United Arab Emirates;
   29 July 2019 for the Rejoinder of the State of Qatar; and
  Reserves the subsequent procedure for further decision.

   Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of March, two
thousand and nineteen, in ﬁve copies, one of which will be placed in the
archives of the Court and the others transmitted to the Governments of
the Kingdom of Bahrain, the Arab Republic of Egypt and the United
Arab Emirates, and to the Government of the State of Qatar, respec-
tively.

                                  (Signed) Abdulqawi Ahmed Yusuf,
                                                  President.
                                      (Signed) Jean-Pelé Fomété,
                                               Deputy-Registrar.

                                                                       6