Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
A state which makes a reservation to a treaty can be regarded as a party if the reservation is compatible with the object and purpose of the treaty, even if some parties object to it.
Facts
Several states made reservations to the Genocide Convention when ratifying it, to which other states objected. The Convention did not contain any provision about reservations. The United Nations General Assembly asked the International Court of Justice for an advisory opinion on whether a state which made a reservation could be regarded as a party to the Convention if other parties objected, and on the effect of the reservation as between the reserving state and the objecting states.
Legal principle
The International Court of Justice advised that a state which has made and maintained a reservation which has been objected to by one or more of the parties, 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. The court rejected the traditional rule that a reservation required the consent of all the parties, because of the universal and humanitarian character of the Convention, whose purpose was to secure the widest possible participation. The court also said that the principles underlying the Convention are recognised by civilised nations as binding on states even without any conventional obligation. The object and purpose test was adopted in the Vienna Convention on the Law of Treaties 1969.
Related cases on sources of international law and its place in domestic courts
- Anglo-Norwegian Fisheries Case (United Kingdom v Norway) (1951) ICJ Reports 116
- Colombian-Peruvian Asylum Case (Colombia v Peru) (1950) ICJ Reports 266
- JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (International Tin Council) [1990] 2 AC 418
- North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands) (1969) ICJ Reports 3
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61
- R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136
- Reference by the Attorney General and the Advocate General for Scotland: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42
- Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529
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