Professor Alexander Orakhelashvili
In an earlier post, I have discussed some aspects surrounding the use of jurisdictional clause under Article IX of the 1948 Genocide Convention in the pending case of Sudan v UAE.
A couple of recent blogposts on this case suggest that the Court’s adherence to UAE’s Article IX reservation in this case is a fait accompli and foregone conclusion, so that even the provisional measures request is bound to be rejected. The argument in both blogposts is, however, prevailingly statistical in referring to several cases in which Article IX reservations were acted upon one way or another. Predictions made are indeed likely to be fulfilled if statistics and casuistry is to prevail over nuance and content.
Submissions made to the Court
The Court has by now heard oral submissions from Sudan and UAE. Sudan’s case centres on two issues (here, para.6): interpretation of UAE’s reservation of Article IX (suggesting that the terms of this reservation are not concrete or specific enough to exclude the Court’s jurisdiction under Article IX); and validity the same reservation. The interpretation argument is made in the context of the argument about the Court’s prima facie jurisdiction in the interim proceedings which, as Sudan suggests, should be established through the using a threshold that is lower than one relevant in later proceedings on jurisdiction. With regard to the issue of validity, Sudan raises the issue of the reservation’s compatibility with the Convention’s object and purpose, especially given that resort to the International Court is the sole available institutional remedy or procedure (para.35; see also for earlier discussions of this matter here and here). It should be noted, however, that these suggestions should be enough to establish the Court’s jurisdiction not only prima facie as Sudan is arguing now (para.52), but also conclusively at the preliminary objections stage.
As could be expected, UAE’s argument is centred around the principle of consent as the basis of international dispute settlement (here, para. 3, Forteau, para. 3, Wood) When getting to specifics, however, Sudan does mention “règles bien établies du droit des traités” that arguably dictate that Article IX is inapplicable between the parties (para.10) but provides little explanation on detail. Similarly, UAE provides a brief overview of previous cases and considers it to be a “settled jurisprudence” (para. 29, Forteau, para. 20, Wood).
Previous cases on Article IX
The International Court has no authority to apply the doctrine of precedent (Article 59 of the Court’s Statute), and previous cases relating to Article IX do not have any binding force for Sudan v UAE. It is also relevant, however, what factors and reasons have led the Court to decide previous cases as they did. On closer inspection, previous cases had factual and legal constituents that make them different from Sudan v UAE.
To illustrate, in FRY v Spain, Yugoslavia did not challenge Spain’s Article IX reservation (here, p.2 and here, para.31). The FRY v USA dispute replicated the same pattern (here, para.23). The case of DRC v Rwanda (provisional measures) did not involve the argument on the Vienna Convention. DRC did not effectively challenge Rwanda’s Article IX reservation and the Court said that the latter “does not appear contrary to the object and purpose of the Convention” (here, para.72). In DRC v Rwanda (preliminary objections), the object and purpose argument was made in oral proceedings in a rather passing and perfunctory manner and without the allusion of grounds of the reservation’s invalidity under the 1969 Vienna Convention. Both DRC’s written and oral proceedings contain repeated references to the Vienna Convention in relation to a different point – one of Article 66 jurisdiction – as well as to general argument around jus cogens in relation to reservations, but they hardly ever focus on Articles 19 to 23 VCLT under which any reservation to a treaty such as the Genocide Convention ought to be assessed. The object and purpose point of DRC in this case was plainly underdeveloped and it was, in reality, not an important or central part of DRC’s submissions.
In the 2022 intervention proceedings in Ukraine v Russia, no feasible challenge could be made to the US reservation because, quite simply, there was no one to challenge it. Here, as in Norwegian Loans, the State author of the reservation would not be inclined to cast doubt on the validity of its own reservation. This does not mean’s however that, in either of those cases, the reservation in question cannot be scrutinised in the light of normative and statutory requirements that are applicable to that reservation (which was precisely Judge Schwebel’s point in Spain v Canada, para.5, citing Article 36(6) of the Court’s Statute).
Object and purpose of a treaty
Articles 19 to 23 VCLT create a complex regime of permissibility and consequences of reservations; and, as we saw, in no relevant case before has the Court had an opportunity to address this complex regime on its head.
It may be right that, as the Court has repeatedly stated across its jurisprudence, the Genocide Convention does not prohibit reservations. But that only proves that the Genocide Convention does not fall within the scope of Article 19(a) of the Vienna Convention. The compatibility of a reservation with a treaty’s object and purpose is an entirely separate matter that arises under Article 19(c). The object and purpose of a treaty is a complex notion whose relevance depends on the content and structure of the treaty in question (for detail see here, pp.97-103). The examination of Article 19(c) issues should not be prevented by certain States’ failure to object to that reservation. As explained earlier, Articles 20 to 22 VCLT are not relevant to reservations incompatible with a treaty’s object and purpose (otherwise, Article 19 would not be referenced in Article 21). Apart from the law of treaties issues, from the adjudication point of view, if (the lack of) objections had conclusive relevance, then the judge of the validity of a reservation would be the individual State, not the organ deciding the case – here the International Court.
In the 2006 DRC v Rwanda judgment, the Court has stated that “Rwanda’s reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention.” It was “meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention,” and was hence not “to be regarded as being incompatible with the object and purpose of the Convention” (para.72). This point inevitably involves a far-reaching assumption or assertion that monitoring, adjudication or enforcement provisions of a treaty are inherently, or generically, unsuitable to be viewed as part of a treaty’s object and purpose and that, hence, it is beyond the gift of States-parties as authors and creators of the relevant treaty to make such provisions part of its object and purpose; or that the Convention’s object and purpose would be perfectly well attainable even if Article IX had not been included in the Convention,[1] notwithstanding the fact the Convention operates in the public interest (discussed in detail here, Chapter 4), and the Court’s role is essential for its authoritative interpretation and consistent application, indeed for the effective attainment of the Convention’s object and purpose. Inseparable as the above assumptions or assertions are from the approach the Court took back in 2006 (doing so, again, in a somewhat different factual and legal context), they cannot stand scrutiny against the background of the relevant evidence.
ILC Guide to reservations states in sections 3.1.5 the obvious that “A reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general tenour, in such a way that the reservation impairs the raison d’être of the treaty.” The same approach is reiterated in sections 3.1.5.6 and 3.1.5.7. Also, the ILC’s Guide is not favourable to any across the board conclusion (or indeed prejudice) that a dispute settlement mechanism aimed at securing clarity about State-party’s obligations, and legality of their conduct, under the relevant treaty is generically unsuitable to form part of a treaty’s object and purpose. Paragraph 72 of the Court’s 2006 judgment is phrased on generic terms and as one relevant across the board. The ILC, however, proposes a more nuanced position. The Commission’s commentary, adopted five years after the Court’s 2006 judgment and obviously in the awareness of it, focuses on both the majority judgment and individual opinions in DRC v Rwanda and, as a synthesis or compromise solution, concludes that a reservation purporting to remove a court’s jurisdiction could be contrary to the relevant treaty’s object and purpose if “the regulation or monitoring in question is the purpose of the treaty instrument to which a reservation is being made” (Commentary to 3.1.5.7, paras 3 and 6). Hence, sections 3.1.5.6 and 3.1.5.7 accept that judicial jurisdiction could be part of a treaty’s object and purpose in certain cases; all that remains to assess whether Article IX of the Genocide Convention is one of such cases.
The practice of multilateral treaty-making has adopted a somewhat differentiated pattern to determining the role of monitoring or adjudicative organs in the structure of the relevant treaty. To illustrate, under CERD 1965 and CAT 1984 the International Court’s jurisdiction is one of the elements of a treaty’s enforcement, complementing its other elements such as negotiation and the role of other institutions; Article 38 of the 1951 Refugees Convention contains words “which cannot be settled by other means” that do not feature in Article IX of the Genocide Convention; in VCDR 1961 and VCCR 1963, the Court’s role is regulated not by the main convention but by an optional protocol attached to it, so that States-parties are expressly allowed to be part to the relevant convention, yet evade the Court’s involvement in disputes involving them. The Court’s role under Article IX of the Genocide Convention is different from all those arrangements, in the sense that the Court is the only dispute settlement organ provided for under the Convention.[2] This context also evidences that Article IX is the part of the object and purpose of the Genocide Convention.
Finally, the consequence of incompatible reservation is that it is disapplied without affecting the status of the relevant State-party to the relevant treaty. In its 2011 guidelines, the ILC’s approach is somewhat more flexible than it was in 1996. However, the endorsement, under section 4.5.3, of the reserving State’s discretion to retain or withdraw the reservation or to withdraw from the treaty altogether, as the ILC and US, UK and France suggested in 1990s with regard to the Human Rights Committee’s General Comment No.24, is plainly not among the options that the 1969 Vienna Convention envisages. Withdrawal is an issue separate from reservations, and is regulated by VCLT provisions on treaty termination. In compliance with those provisions, any State could withdraw from any treaty (also provided that the treaty in question allows for withdrawal) for any reason whether connected with reservations or not. A decision on and timing of such withdrawal does not prejudice the issue of whether the reservation in question is valid or not.
The interim nature of proceedings
The above evidence demonstrates that reservations to Article IX of the Genocide Convention are contrary to the latter’s object and purpose, have no legal force and do not affect either the treaty’s content or the status of any State-party. At the stage of interim proceedings definitive findings on this matter may not be required or made. It is obvious that the matter is very contentious and divisive in the international legal discourse and that the loud slogans invoking the bare principle of consent still carry the weight in certain quarters. But those slogans have not always carried the day. To illustrate, at the provisional measures stage in Interhandel, the Court was handling the US automatic reservation which raised the issues not less contentious than UAE’s reservation raises. That did not lead the Court to decline indicating provisional measures, and it did so over severe objections raised by Judge Lauterpacht. The Court noted that the US invoked its automatic reservation, but relied on the Swiss suggestion that it should not, at that stage, adjudicate “upon so complex and delicate a question as the validity of the American reservation”. There is no reason why UAE’s Article IX reservation should command a greater judicial deference (whether at all or at the interim proceedings stage).
UAE’s request to remove the case from the Court’s General List
UAE also requests the Court to dismiss Sudan’s case in limine and remove it from the General List, suggesting that Sudan’s argument on Article IX reservations is so unfounded as to be deprived of any legal merit and that, as a result, Sudan is weaponizing the use of international judiciary. As evidence, UAE merely invoked the Court’s 1995 decision on New Zealand v France. This a totally atypical case, it did not involve jurisdictional dispute or the use of other relevant provisions of the Court’s Statute, and New Zealand had asked the Court to treat underground nuclear tests (which were not the subject-matter of the Court’s 1974 decision) in the same way as atmospheric nuclear tests (which were the subject-matter of that decision). Sudan v UAE does not involve anything getting near to those eccentricities. It involves a dispute on the interpretation and application of a compromissory clause under Article IX and the underlying legal argument. The dismissal in limine argument has also failed in the recent Nicaragua v Germany case that has involved the much-debated indispensable third party doctrine (discussed here). This shows that the Court is there to resolve issues that appear to be controversial, rather than avoid dealing with them (as also witnessed in FRY v NATO States, DRC v Belgium, and indeed DRC v Rwanda in which the applicant State’s argument on Article IX was far less developed than it is in Sudan v UAE).
Conclusion
Principle of consent (discussed here and here) provides a general tool through which States assume international legal obligations. The law of reservations operates on a more specific plane, giving effect to aspects of the principle of consent, yet being independent from its broad and mystifying interpretations (e.g. Thirlway here, pp.53-54). The law of treaty reservations does allow for will or “consent” of a State to be disregarded in certain cases and the abstract principle of consent does precious little to obstruct that outcome.
To sum up the legal position, it should be observed that:
- Previous cases on Article IX are not precedents and the Court is not under any obligation to defer to outcomes reached in those cases;
- Reservations to Article IX are contrary to the Genocide Convention’s object and purpose; they do not remove the Court’s jurisdiction established under Article IX;
- State practice provides enough evidence that reservations to Article IX are not generally treated as permissible or valid;
- The effect that UAE’s reservation is argued to have should not be allowed to radiate as far as to have any decisive effect on the outcome of interim proceedings; and
- There are no grounds for the case to be dismissed in limine.
[1] Here I speak about an assumption with regard to the actual Genocide Convention. Had the drafters in fact omitted Article IX, it would have been a different convention from the actual one.
[2] It should be observed here that Article VIII is not about a method of determining rights, obligations, responsibilities of States-parties to the Convention, and hence not analogous to those mechanisms to whose role other human rights treaties refer to alongside with that of the International Court. The prospects of its use are open-ended and depend on the discretion of the relevant UN organ and the political consensus within that organ. This is why the Court has said in its 2007 Bosnia v Serbia Judgment (para.159) that Article VIII is a political instrument. The use of this provision is discretionary and no concrete determination or settlement of a dispute is to be expected from it.