Professor Alexander Orakhelashvili
The Opinio Juris website has recently featured two posts regarding reservations made by States-parties to Article IX of the 1948 Genocide Convention, one by Yonah Diamond and another by Michael Becker. This comes at the time when the International Court of Justice is about to address the recently initiated Sudan v UAE case.
Diamond suggests that “The ICJ is the world’s only institution endowed with authority to examine State compliance with the Genocide Convention”. Becker suggests, in response, that “many states that sought to join the newly-adopted Genocide Convention had made Art. IX reservations when doing so” and that “the 1948 Genocide Convention, … has cemented the optional nature of ICJ dispute settlement”. This is, however, a complex issue that could be clarified only through the analysis of State practice and the general law governing treaty interpretation and reservations to treaties, to see whether the “give and take” attitude arguably manifested through the fact of making those reservations is one that is mandated by the law in force.
The starting point of the analysis is where Article IX stands in the structure of the Genocide Convention and what role it has in the achievement of the Convention’s overall object and purpose. Becker suggests that acting pursuant to Article VIII of the Genocide Convention, states can turn to the competent UN organs. However, neither of those organs are dispute settlement organs, nor are they (except, perhaps, the General Assembly) organs that can provide authoritative interpretation of the Genocide Convention. Becker further says that “it remains the case that most international human rights treaties treat third-party dispute settlement as optional”. However, that point works exactly against that approach that views the Article IX reservations as permissible; for, the Article IX compromissory clause differs from those under other human rights treaties such as Torture Convention 1984 or CERD 1965, in that it does not envisage adjudication as subsidiary to the use of other treaty-based fora. Instead, Article IX clearly designates the International Court, and no other body, as the organ in charge with “the interpretation, application or fulfilment” of the Genocide Convention. The Conventions’ purposes stated in its preamble cannot be attained if the law governing genocide were to lack authoritative judicial clarification and this is among the factors that require viewing Article IX as part of the Convention’s object and purpose. Under the law of treaties, as explained earlier, reservations contrary to a treaty’s object and purpose command no legal effect. In other words, they are severable. (It should be emphasised here that, writing on DRC v Rwanda (here, p.50), Hugh Thirlway has misinterpreted my view, presenting it as one favouring “annulling the convention relation between those [objecting] parties and the reserving State”.)
Concerns with the validity and legality of Article IX reservations are almost as old as the Convention itself. About two decades ago, I have commented on the International Court’s most relevant treatment of Article IX reservations in the DRC v Rwanda case, in which I highlighted the problems with the Court’s decision made in 2006 (both with regard to the object and purpose and to State practice). While the practice of reservations began shortly after the adoption of the Genocide Convention, so has the practice of objections to the reservations begun. At present there are about 16 reservations to Article IX (far less than before given that a substantial number of reservations have been withdrawn, including by Rwanda), and about 12 States’ objections to those reservations, including the UK five times (see id.) (Also, the Greek objection (p.89) has been incorrectly reproduced here.) It is therefore hardly accurate that “only a few States have objected” to Article IX reservations (Tams, here at 336), because a more complete view of State practice including reservations, objections and withdrawals could be more indicative and illustrative of the legal position.
In rather curious way, the Court in DRC v Rwanda managed to avoid the examination of both the State practice aspect and the object and purpose aspect as discussed above. The main point the Court dealt with regard to the Article IX argument was that based on jus cogens. That jus cogens could affect the validity of treaty reservations has has been discussed several judges in the North Sea Continental Shelf case (discussed here, Chapter 6). But the direct use of jus cogens could have been a somewhat long shot in this case that focused on the treaty-specific judicial regime. The Vienna Convention points were not substantially argued in the pleadings and did not form any substantial part of the Court’s decision to reject DRC’s claim relating to jus cogens (paragraphs 64 to 70 of the Judgment). Therefore, all this Judgment is worth of is the confirmation of the point that the involvement of jus cogens does not alone, i.e. without additional factors, establish or preserve the Court’s jurisdiction.
As for the subsequent cases, Legality of the Use of Force (FRY v USA) was about prima facie jurisdiction only; it was not a conclusive jurisdictional finding and cannot carry the same weight as though it were. The Court’s treatment of the US reservation to Article IX in the 2023 intervention order on Ukraine v Russia was somewhat akin to what the Court did in Norwegian Loans decades ago. In that case, the Court has let France’s reservation contrary to Article 36(6) of the Statute (cf. President Schwebel in Spain v Canada, para.5) be used against France; while in Ukraine v Russia, the overall effect was the same. Be that as it may, the most important factor is that the conclusions in both of the above post-DRC v Rwanda cases are either interim or incidental. Neither of those cases undertook a substantial assessment of compatibility of the relevant Article IX reservation with the Court’s Statute or with the Genocide Convention (and the same could be said about the backdoor use of the automatic reservation in Norwegian Loans). All this indicates, the judicial developments over the past two decades do not tie the Court’s hands as much as it could at times be imagined. It is difficult to predict what the Court will do in Sudan v UAE at the interim or the jurisdictional stage. As far as State practice is concerned, no one has expressly taken a favourable view to Article IX reservations or considered them lawful, perhaps except States who are the authors of such reservations. What is more important is that State practice is not of exclusive relevance because, in this area of law, States move within the legal context that is already regulated by the law of treaties, and the object and purpose of a multilateral treaty such as the Genocide Convention cannot be (re)defined by the position that the reserving States take when making reservations.