court: icj

doctype: rådgivande yttrande

identifier: ICJ 12 (Advisory opinion, 1951-05-28)

caseName: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

decisionType: advisory opinion

publisher: International Court of Justice

title: Advisory Opinion of 28 May 1951

text: Convention on the Prevention and Punishment of the Crime of Genocide

text: Genocide Convention, article I

text: Genocide Convention, article XI

text: INTERNATIONAL COURT O F JUSTICE

type: rubrik

text: YEAR 1951.

text: May z8th, 1951 May asth General List : No 17

type: stycke

text: RESERVATIONS TO THE

text: CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

text: Advisory jurisdiction of the Coztrt.-Objection based : o n nlleged existence of a dispztte ; o n alleged exclzrsive right of the parties to tlze

text: Genocide Convention

text: to interPret i t ; o n

text: Article I

text: X of the Conoewtion.- Rejection of objection. , Replies limited to

text: Genocide Convention

text: .-Abstract qztestiorzs.

text: Reseruations.-Objections thereto.-Right of a State i.ol~iclz hcls r~zade a reseruation to be a Party to the Convention notwithstanding the objection made to i t s reseruation by certain parties.-Circztr?zsta~zces i u s f i f y i n g a relaxation of the rule of integrity.-Faculty of nzalsing reservatio~zs to the Convention ; intention of the General Assembly and of the contvactirzg States ; high ideals of the Convention.-Criterion of the co~17patibility of the reservation with object and purpose of the C o n v e n t i o n . - I ~ z d i r ~ i d ~ ~ n l ap$waisal by States.-Absence of a rule of international lafa concer7zing the egects of reserua2ions.-Administrative practice of tlze League of Nations and of the United Nations. Egect of the reseruation : between the State zuhich makes i t and the State which objects t1lereto.-Application of the criterion of conzpatibility. Objection made :-by a State whiclt has not signed the Convention ; bv a signatory which Izas not ratifed.-l'rouisional status of signatory State.

text: ADVISORY OPINION

text: Present : President BASDEVANT ; Vice-President GUERRERO ;

text: Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, READ, HSU MO ; Registrar HAMBRO.

text: composed a s above,

text: gives the following Advisory Opinion :

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

text: "The General Assembly, Having examined the report of the Secretary-General regarding reservations to multilateral conventions, Considering that certain reservations to the

text: have been objected to by some States, Considering that the International Law Commission is studying the whole subject of the law of treaties, incliiding the qiiestion 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, I. Requests the International Court of Justice to give an Advisory Opinion on the following questions : In so far as concerns the

text: 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 : 1. 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 1 is in the affirmative, what is the effect of the reservation as between the reserving State and :

text: ( 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 1 if an objection to a reservation is made :

text: (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 ? 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

text: 5 depositary, this report to be considered by the General Assembly a t its sixth session ; (b) In connection with this study, to take account of al1 the views expressed during the fifth session of the General Assembly, and particularly in the Sixth Committee ; 3. Instnicts 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, al1 without prejudicc to the legal effect of objections to reservations to conventions as it may be recommended by the General Assembly a t its sixth session."

text: B y a letter of November 17th, 1950, filed in the Registry on November aoth, the Secretary-General of the Cnited Nations transmitted to the Court a certified true copy of the General Assembly's resolution. On November a5th, 1950, in accordance with Article 66, paragraph I, of the Court's Statute, the Registrar gave noticc of the request t o al1 States entitled to appear before the Court. On December ~ s t , 1950, the I'residcnt-as the Court was not sitting-made a n order by which he appoint-cd january zoth, 1951, a s the date of expiry of the time-limit f o the filing of written statements and reserved the rest of the proccdure for further decision. Under the terms of this order, such statements could be submitted to the Court by al1 States entitled to l~ccomc parties to the

text: Genocide Convention

text: , namely, any Member of the Lnited Nations as well as a n y non-member State to which a n invitation t o this effect had been addressed by the General Assembly. Furthermore, written statements could also be submitted by any international organization considered by the Court a s likely to be able t o furnish information on the questions referred to it for a n Advisory Opinion, namely, the International Labour Organization and the Organization of American States. On the same date, the Registrar addresséd the special and direct communication provided for in Article 66, paragraph a, of the Statute t o al1 States entitled to appear before the Court, which had been invited to sign and ratify or accede to the

text: Genocide Convention

text: , either under

text: Article XI

text: of t h a t Convention or by virtue of a resolution adopted by the General Assembly on December 3rd, 1949, which refers to Article X I ; 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

text: OPIN. OF 28 v 51 (REÇERVATIONS TO

text: GENOCIDE CONVENTION

text: ) 18

text: Ireland, Italy, Jordan, Korea, Laos, Monaco, Portugal, Romania, 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 timelimit by the following governments and international organizations : the Organization of American States, the Union of Soviet Socialist Rrpublirs, the Hashemite Kingdom of Jordan, the United States of Americâ, 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 SociaJist Republic, the People's Republic of Bulgaria, the Byeloriissian Soviet Socialist Republic, the Republic of the Philippines. By a despatch dated December 14th, 1950, and received on January zgth, 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. Al1 these documents are enumerated in the list attached to the present Opinion. As the Federal German Republic had been invited on December zoth, 1950, to accede to the

text: Genocide Convention

text: , 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 Government 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 gth, 1951, filed in the Registry on March rcjth, 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 Government and the Govemment of Israel stated, in letters dated respectively January 17th, March 12th and March ~ g t h , 1951, that they intended to present oral statements. At public sittings held from April 10th to 14th, 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

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

text: on behalf of the Govemment of the French Republic b y M. Charles Rousseau, Professor a t the Faculty of Law in Paris, Assistant Legal Adviser of the Ministry of Foreign Affairs.

text: I n the'communications which they have addressed to the Court, certain governments have contended that the Court is not competent 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

text: constitutes a dispute and that, in order to avoid adjudicating on that dispute, the Court should refrain from replying to Questions 1 and II. In this connection, the Court can confine itself to recalling the principles which it laid down in its Opinion of Rlarch 3oth, 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 provisions of the Statute which apply in contentious cases. The object of this request for an Opinion is to guide the LTnited Nations in respect of its own action. I t is indeed beyond dispute that the General Assembly, which drafted and adopted the

text: Genocide Convention

text: , 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 interference 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

text: Genocide Convention

text: , draw up its terms and open it for signature and accession by States, but that express provisions of the Convention (Articles X I 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

text: States as possible. III 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 t o the Convention enjoy the faculty of referring the matter to the Court in the manner provided in Article I X of the Convention. Another objection has been put forward to the exercise of the Court's advisory jurisdiction : it is based on Article I X of the Gênocide Convention which provides that disputes relating to the interpretation, application of fulfilment of that Convention shall he subniitted to the International Court of Justice a t the request of any of the parties to the dispute. I t has been contended that there exists no dispute in the present case and that, consequently, the effect of Article I X 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 itstlf exclude the Court's advisory jurisdiction, 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 question". Further, Article I X , 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. I n conclusion, the Court considers that none of the above-stated objections t o the exercise of its advisory function is well founded.

text: The Court observes that the three questions which have been referred to it for an Opinioii have certain conimon characteristics. Al1 three questions are expressly limited by the terms of the Kesolutiori of the General Assembly to the Convention on the Prevention and Puiiishmerit 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 progressive 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 necessai-ily and strictly limited to that Convention. 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 multilateral conventions. 9

text: 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 1 is framed in the following terms :

text: "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 ?"

text: The Court observes that this question refers, not to the possibility of making reservations to the

text: Genocide Convention

text: , 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. I t is well established that in its treaty relations a State cannot be bound without its consent, and that consequently no reservation can be effective against any State without its agreement thereto. I t is also a generally recognized principle that a multilateral 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 traditional concept involved the proposition that no reservation was valid unless it was accepted by al1 the contracting parties without exception, as would have been the case if it had been stated during the negotiations.

text: This concept, which is directly inspired by the notion of contract, is of undisputed value as a principle. However, as regards the

text: Genocide Convention

text: , it is proper to refer to a variety of circumstances 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 participation 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 multilateral 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 which have been rejected by certain contracting parties is nevertheless to be regarded as a party to the convention in relation to those contracting parties that have accepted the reservations-al1 these factors are manifestations of a neur need for flexibility in the operation of multilateral conventions. I t must also be pointed out that although the

text: Genocide Convention

text: was finally approved unanimously, it is nevertheless the result of a series of maj ority votes. The majority principle, while facilitating the conclusion of multilateral conventions, may also make it necessary 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.

text: I n 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 prohibited 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 deçire not to invite a multiplicity of reservations. The character of a multilateral 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 possibility of making reservations, as well as their validity and effect.

text: 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 a t successive stages of the drafting of the Convention. I n this connection, the following passage may be quoted from the comments

text: I t 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

text: the General Assembly it will be possible to allow certain limited reservations." Even more deciside in this connection is the debate on reservations in the Sixth Committee a t the meetings (December 1st and znd, 1948) which immediately preceded the adoption of the

text: Genocide Convention

text: 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 Convention appears to be implicitly admitted by the very ternis of

text: Question 1.

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

text: Genocide Convention

text: and that it is permitted to conclude therefrom that States becoming parties to the Convention gave their assent thereto. I t must now determine what kind of reservations 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

text: Genocide Convention

text: . The origins and character 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 interpretation 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 (1) 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 universal 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

text: Genocide Convention

text: was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. I t 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. I t 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. I n such a convention the contracting States do not have any interests of their own ; they merely have, one and au, 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 maintenance 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 al1 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.

text: The object and purpose of the

text: Genocide Convention

text: 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 principles which are its basis. I t is inconceivable that the contracting parties readily contemplated that an objection to a minor reservation should produce such a result. But even less could the contracting 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. I t 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 reservations 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. I t has nevertheless been argued that any State entitled to become a party to the

text: Genocide Convention

text: may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. I t 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.

text: 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 al1 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 reservations thereto. I t does not appear, moreover, that the conception of the absolute integrity of a convention has been transformed into a rule of international law. The considerable part which tacit assent has always played in estimating the effect which is to-,be given to reservations

text: OPIN. O F 28 V 51 (RESERVATIONS TO

text: GENOCIDE CONVENTION

text: ) 2 5

text: scarcely permits one to state that such a rule exists, determining with sufficient precision the effect of objections made to reservations. 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. I t 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 concluded 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 z ~ s t , 1950 : "While it is universally recognized 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 t o the legal effect of a State's objecting to a reservation." I t may, however, be asked whether the General Assembly of the United Nations, in approving the

text: Genocide Convention

text: , 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

text: Genocide Convention

text: conditional on the assent of all the parties.

text: The Court does not consider that this view corresponds to reality. I t must be pointed out, first of all, that the existence of an administrative practice does not in itself constitute a decisive factor in ascertaining what views the contracting States to the

text: Genocide Convention

text: may have had concerning the rights and duties resulting therefrom. I t 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 irrespective of the nature of the reservations or of the objections raised by other contracting States. The preparatory work of the Convention 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

text: OPIN. O F 28 V 51 (RESERV.~TIONS TO

text: GENOCIDE CONVENTION

text: ) 26

text: 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 a t 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.

text: I t results from the foregoing considerations that Question 1, 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.

text: Having replied to Question 1, the Court will now examine Question I I , which is framed as follows :

text: "If the answer to Question 1 is in the affirmative, what is the

text: effect of the reservation as between the reserving State and :

text: (a) the parties which object to the reservation ? (b) those which accept it ?"

text: The considerations which form the basis of the Court's reply to Question 1 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 exercises 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 wiU not, on the basis of its individual appraisal within the limits of the criterion of the object alid purpose stated above, consider the reserving State to be a party to the Convention. I n 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 decision might aim a t 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

text: 15 object and purpose of the Convention. I t must clearly be assumed that the contracting States are desirous of preserving intact a t 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. I t may be that the divergence of views between parties as to the admissibility of a reservation will not in fact have any consequences. 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 divergence and to settle the dispute which thus arises either by special agreement or by the procedure laid down in Article I X of the Convention. Finally, it may be that a State, whilst not claiming that a reservation is incompatible with the object and purpose of the Convention, will nevertheless object to it, but that an understanding between that State and the reserving State will have the effect t h a t 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 a n d objections and notifying them.

text: Question I I I is framed in the following terms "What would be the legal effect as regards the answer to Question 1 if an objection to a reservation is made :

text: ( 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 7" The Court notes that the terms of this question link it to Question 1. This link is regarded by certain States as presupposing a negative reply to Question 1. The Court considers, however, that Question I I I could arise in

text: any case. Even should the reply to Question 1 not tend to exclude,

text: 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 reserving 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 (b) of Question I I I are entitled to bring about such a result by their objection.

text: An extreme view of the right of such States woiild appear to 3e that these two categories of States have a right to become parties to 16 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

text: Genocide Convention

text: 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 9th, 1948, until December p s t , 1949, followed by ratification, or accession as from January ~ s t , 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. I t is 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 bvhich 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 Convention. I t 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 rneted 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 exercise 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 provisional character. These would disappear if the signature were not followed by ratification, or they would become effective on ratification.

text: 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. I t 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 t o a reservation would thus be amply safeguarded. The reserving State would be given notice that as soon as the constitutional or other processes, which cause the lapse of time before ratification, have been completed, it would be confronted with a valid objection which cames full legal effect and consequently, it would have to decide, when the objection is stated, whether it wishes to maintain or withdraw its reservation. I n 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.

text: For these reasons,

text: In so far as concerns the

text: , 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,

text: O n Question I :

text: 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 Convention 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.

text: O n Question I I :

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

text: O n Question I I I :

text: 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 1 only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State ; (b) 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.

text: Done in French and English, the French text being authoritative, a t 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.

text: (Signed) BASDEVANT,

text: President.

text: ( S i g n e d ) E. HAMBRO,

text: Registrar.

text: Vice-President GUERRERO, Judges Sir Arnold RICNAIR, 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 nght 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.

text: (Initialled) J. B.

text: (Initialled) E. H .

text: ANNEX

text: LIST OF DOCUMENTS SUBMITTED TO THE COURT

text: 1.-DOCUMEKTS SUBMITTED DURING T H E W R I T T E N PROCEEDINGS

text: (a) Documents transmitted with the Request (Article 65, para. 2, of

text: the Statute) (1) RECORDS OF THE GENERAL ASSEMBLY, 5TH SESSION a--Inclusion of the Item in the Agenda (Records of the proceedings)

text: I. Records of the General Committee : 69th meeting. Idem, 70th meeting. 2. Records of the General Assembly : 285th plenary meeting.

text: p-Inclusion of the Item in the Agenda (documents)

text: 3. Adoption of the Agenda of the 5th Session and allocation of items

text: to Committees : Report of the General Committee (extract).

text: 4. Allocation of items on the Agenda of the 5th Session : Letter dated Septenlber 26th, 1950, from the President of the General Assembly to the Chairman of the 6th Committee (extract). (11) DISCUSSION I N THE TH COMMITTEE A N D THE GENERAL ASSEMBLY (RECORDS OF THE PROCEEDINGS) 6th Committee : 5. 217th meeting. 6. 218th meeting. 7. 219th meeting. 8. 220th meeting. g. z z ~ s t meeting. IO. zzznd meeting. II. ~ ~ 3 r d meeting. 12. 224th meeting. 13. 225th meeting. II. Corrections to the summary records of the 221st, ~ ~ 2 n d and 225th meetings. General Assembly : 15. 305th plenary meeting. 45

text: (III) DISCUSSION I N THE TH COMMITTEE AND THE GENERAL ASSEMRLY (DOCUMENTS)

text: Report of the Secretary-General to the Assembly (first phase).

text: United States of America : draft resolution.

text: United States of America : revised draft resolution.

text: 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.

text: Uruguay : memorandum.

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

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

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

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

text: Note by the Secretary-General.

text: Note by the Secretary-General (addendum).

text: Egypt, France, Greece, Iran, United Kingdom : joint draft resolution.

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

text: Belgium, Chile, Denmark, Egypt, France, Greece, Iran, Netherlands, Norway, Sweden, United Kingdom, United States of America, Umguay : joint draft resolution replacing the foregoing documents.

text: 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.

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

text: 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.

text: Resolution adopted by the General Assembly a t its 305th plenary meeting on 16 November, 1950.

text: (b) Documents annexed to the written statement

text: Annexed document number English French PART ONE.-NOTIFICATION BY THE SECRETARY- GENERAL OF THE DEPOSIT OF TWENTY INSTRU- MENTS O F RATIFIC.4TION OR ACCESSION : 1. Notification (19 October, 1950) I 4 II. Procès-verbal (14 October, 1950) 2 2 III. Corrigendum to notification (1 November, 1950) 3 5 PART Two.-NOTIFICATIONS BY THE SECRETARY- GENERAL OF RESERVATIONS : 1. Notifications of reservations made at signature by the Union of Soviet Socialist Republics : A. Notification to States which had not yet ratified or acceded : I. Notification (30 December, 1949) 6 2 . Procès-verbal of signature (16 December, 1949) 7 3. Corrigendum to notification (13 January, 1950) 8 B. Notification to States which had already ratified : I. Notification (30 December, 1949) 12 2 . Procès-verbal of signature (16 December, 1949) 7 C. Letter of the Assistant Secretary-General to the Union of Soviet Socialist Republics (13 Januav. 1950) 13 II. Notifications of reservations made at signature by the Byelorussian Soviet Socialist Republic : A. Notification to States which had not yet ratified or acceded : I. Notification (30 December, 1949) 14 2. Procès-verbal of signature (16 December, 1949) 15 B. Notification to States which had already ratified : 1. Notification (30 December, 1949) I ô 2. Procès-verbal of signature (16 December, 1949) 15

text: Annexed document number Engliçh French C. Letter of the Assistant Secretary-General to the Byelorussian Soviet Socialist Republic (13 Janua-, 1950) 19 III. Notification of reservations made a t signature by the Ukrainian Soviet Socialist Republic : A. Notification to States which had not yet ratified or acceded : I. Notification (29 December, 1949) 20 22 2. Procès-verbal of signature (16 December, .1949) 2 1 23

text: 3. Corngendum to notification (13 January, 1950) 8 IO B. Notification to States which had already ratified : I. Notification (30 December, 1949) 2. Procès-verbal of signature (16 December, 1949) C. Letter of the Assistant Secretary-General to the Ukrainian Soviet Socialist Republic (13 January, 1950) IV. Notifications of reservations made a t signature by Czechoslovakia : A. Notification to States which had not yet ratified or acceded : I. Notification (29 December, 1949) 2. Procès-verbal of signature (28 December, 1949) B. Notification to States which had already ratified or acceded : I. Notification (30 December, 1949) 2. Procès-verbal of signature (28 December, 1949) C.. Letter of the Assistant Secretary-General to Czechoslovakia (13 January, 1950) V. Notifications of reservations in the instrument of ratification of the Philippines :

text: A. Notification to States which had not yet

text: ratified or acceded : I. Notification (21 July, 1950) 2. Instrument of ratification B. Notification to States which had already ratified or acceded : I. Notification (31 July, 1950) 2. Instrument of ratification

text: OPIK. O F 28 V 51 (RESERVATIONS T O G E K O C I D E CO~;VENTION) 60

text: Annexed document number English French C. Letter of the General Counsel and Principal Director to the Philippines (31 July, 1950) 38

text: VI. Notifications of reservations in the instrument of accession of Bulgaria : A. Notification to States which had not yet ratified or acceded : I. Notification (3 August, 1950) 39 2. Instrument of accession 40 B. Notification to States which had already ratified or acceded : I. Notification (3 August, 1950) 43 2. Instrument of accession 40 C. Letter of the General Counsel and Principal Director to Bulgaria (3 August, 1950)

text: VII. Notifications of reservations in the instrument of accession of Romania : A. Notification to States which had not yet ratified or acceded .

text: I. Notification (21 November, 1950) 46 2. Reservations of Romania 47 B. Notification to States which had already ratified or acceded : I. Notification (21 November, 1950) 50 2. Reservations of Romania 47

text: VIII. Notifications of reservations in the instrument of accession of Poland : A. Notification to States which had not yet ratified or acceded : I. Notification (29 November, 1950) 52 2. Instrument of accession 53 B. Notification to States which had already ratified or acceded : I. Notification (18 December, 1950) 56 2. Instrument of accession 53 C. Letter of the Assistant Secretary-General to Poland (7 December, 1950) 57a

text: IX. Notifications of receipt of instrument of ratification of Czechoslovakia maintaining reservations :

text: Annexed document number English French A. Notification to al1 States concerned (5 January, 1951) 58 59 B. Letter of the Assistant Secretary-General to Czechoslovakia (12 January, 1951) 60 PART THREE.-INVITATIONS TO NON-MEMBER STATES TO BECOME PARTIES, CONTAINING NOTIFICATIONS O F RESERVATIONS : 1. Letter to Indonesia A. Letter (27 March, 1950) 61 B. Annexes to letter : I. Procès-verbal of signature of the U.S.S.R. (16 December, 1949) 7

text: 2 . Procès-verbal of signature of the Byelorussian S.S.R. (16 December, 1949) 13 3. Procès-verbal of signature of the Ukrainian S.S.R. (16 December, 1949) 18 4. Procès-verbal of signature of Czechoslovakia (28 December, 1949) 23

text: II. Letter to Liechtenstein : A. Letter (IO April, 1950) B. Annexes to letter (Identical with annexes to letter to Indonesia) III. Letter to Viet Nam, Cambodia and Laos :

text: A. Letter (31 May, 1950) B. Annexes to letter (Identical with annexes to letter to Liechtenstein) IV. Letter to the Federal Republic of Germany : A. Letter (20 December, 1950) 64 B. Annexes to letter (Identical with anQexes to letter to Indonesia with the addition of the following :)

text: I. Instrument of ratification of the Philippines 33 2. Instrument of accession of Bulgaria 40 3. Reservations of Romania 47 4. Instrument of accession of Poland 53

text: Annexed document number English French G A R T FOUR.-CORRESPONDENCE CONCERNING EX- PRESSION B Y GOVERKMEKTS O F D I S A G R E E X E X T W I T H , OR OBJECTION TO, T H E F O R E G O I S G RESERV- ATIONS : 1. Correspondence concerning the position of Ecuador : -4. Circular note (5 May, 1950) B. Annexes to circular note : I. Note of Ecuador (IO February, 1950) 2. Letter of the Assistant Secretary- General to Ecuador (21 March, 1950) 3. Note of Ecuador (31 March, 1950) C. Xote of Ecuador (16 August, 19j0) II. Correspondence concerning the position of the Union of Soviet Socialist Republics :

text: A. Letter of the Union of Soviet Socialist Republics (2 Rlarch, 1950) 74 B. Letter of the Secretary-General (23 March, 1950) 75 C. Letter of the Union of Soviet Socialist Republics ( I O October, 1950) 76 III. Correspondence concerning the position of Guatemala : A. Circular note (2 August, 19j0) / /

text: B. Annexes to circular note : I. Letter of the Assistant Secretarÿ- General to Guatemala (19 Janiiary, 1950) 7s 2. Note of Guatemala (16 June, 1950) 79 3. Letter of the General Counsel and Principal Director to Guatemala (14 J u l ~ , 1950) so C. Circular note (7 September, 1950) 85 D. Annex to circular note : Note of Guatemala (31 July, Igjo) SG E. Circular note (18 October, 1950) 89 F. Xnnex to circular note : Yote of Guatemala (36 September. 19.50) 90

text: Annexed document number English French IV. Letters from the United Kingdom : A. Letter of the United Kingdom (31 July. 1950) 93 B. Letter of the United Kingdom (30 September, 1950) 94 C. Letter of the United Kingdom (6 Deceniber, 1950) 95 V. Correspondence concerning the position of Australia : A. Circular note (4 October, 1950) 96 9s B. Annex to circular note : Letter of Australia (26 September, 1950) 97 99 C. Circular note ( I I December, 1950) 100 102 D. Annex to circular note : Letter of Australia (15 November, 1950) I O 1 103 E. Letter of the Philippines (15 December, 1950) 104 PART FIVE.-ACKNOWLEDGEMENTS OF GOVERN- MENTS R.4TIFYING OR ACCEDING, AFTER NOTICE O F RESERVATIONS, WITHOUT COMMENT THEREON : 1. Letter to Panama (13 January, 1950) 105 II. Letter to Guatemala (19 January, 1950) 78 S2 III. Letter to Israel (15 March, 1950) 106 IV. Letter to Monaco (IO April, 1950) 107 V. Letter to Hashemite Jordan (4 May, 1950) 108 VI. Letter to Liberia (19 June, 1950) 109 VII. Letter to Saiidi Arabia (21 July, 1950) IIO

text: VIII. Letter to Turkey (7 August, 1950) III IX. Letter to Viet Nam (30 August, 1950) 112 X. Letter to Yugoslavia (7 September, 1950) 113

text: XI. Letter to El Salvador (6 October, 1950) II4 XII. Letter to Ceylon (15 November, 1950) I I 5 XIII. Letter to Cambodia (15 November, 1950) 116 52

text: Annexed document niimber English French XIV. Letter to Costa Rica (15 November, 1950) 117 XV. Letter to France (15 November, 1950) 118 XVI. Letter to Haiti (15 November, 1950) 119 XVII. Letter to Korea (15 November, 1950) 120 XVIII. Letter to Laos (12 January, 1951) 121

text: PART SIX.-REPLIES OF GOVERNMENTS TO THE FOREGOING : 1. Correspondence concerning the position of El Salvador : A. Circular note (25 November, 1950) 122 124 B. Annex to circular note : Note of El Salvador (27 October, 1950) 123 125 II. Correspondence concerning the position of Viet Nam : A. Circular note (6 December, 1950) 126 128 B. Annex to circular note : Letter of Viet Nam (3 November, 1950) 127 129

text: C. Letter of Viet Nam (22 December, 1950) 130

text: D. Letter of the Assistant Secretary-General (12 January, 1951) 131 III. Correspondence concerning the position of France : A. Letter of France (6 December, 1950) 132

text: B. Letter of the Assistant Secretary-General (12 January, 1951) 133 IV. Correspondence concerning the position of Cambodia : A. Letter of Cambodia (6 December, 1950) 134

text: B. Letter of the Assistant Secretary-General (12 January, 1951) 135 Draft Convention on the Crime of Genocide 136 Communications received by the Secretary-General 137

text: Annexed document number English French Comments by Governments on the Draft Convention prepared by the Secretariat. Communications froni non-governmental Organizations 138

text: Report of the Ad Hoc Committee on Genocide 139 Summary Record of the 26th meeting of the Ad Hoc Committee on Genocide 140 Report of the Sixth Committee 141 The Ad Hoc Committee on Genocide : Final provisions 142

text: Ad Hoc Committee on Genocide. Siimmary Record

text: of the 23rd meeting 143 Genocide. Draft Convention and Report of the Economic and Social Council. Amendment 144 Genocide. Draft Convention and Report of the Economic and Social Council. Amendments 145

text: Ad Hoc Committee on Genocide. Summary

text: Record of the 20th Meeting 146

text: Ad Hoc Committee on Genocide. Summary

text: Record of the 24th Meeting 147 Genocide. Draft Convention and Report of the Economic and Social Council. Amendments 148 U.S.S.R. : amendments to the draft convention on the prevention and punishment of genocide proposed by the Sixth Committee 149 Ukrainian S.S.R. : amendment to the United Kingdom proposal for the addition to the Draft Convention on Genocide of a new article extending the application of the Convention to temtories 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 1. Plenary Meetings of the General Assembly. Summary Records of Meetings. 21 September-12 December, 1948

text: Official Records of the Third Session of the General Assembly. Part 1. Legal Questions. Sixth Committee. Summary Records of Meetings. 21 September-IO December, 1948

text: Idem. Annexes

text: B.-DOCUMENTS SUBMITTED BY THE INTERNATIONAL LABOUR ORGANIZ~~TION (1) Constitution of the International Labour Organization. (II) Conventions and recommendations 1919-1949 (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.

text: (a) Poland

text: I. Letter of June 16th, 1920, from the Minister of Labour of Poland to the Director of the I.L.O. 2. Reply from the Director of the I.L.O. to the Minister of Labour of Poland, Ju!y ~ o t h , 1920. 3. Summary of the above correspondence as communicated to the Members of the Organization in the "Official Bulletin of the International Labour Office".

text: (b) India

text: I. Extract from a letter from the Secretary of State for India to the Secretary-General of the League of Nations, July ~ z t h , 1921. 2. 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. 3. Letter from the Director of the International Labour Office to the Secretary of State for India of September 24th, 1921.

text: (c) Cuba

text: I. Letter from the Secretary-General of the League of Nations to the Director of the International Labour Office of July r ~ t h , 1928. 2. Letter from the Director of the I.L.O. to the Secretary- General of the League of Nations of July 31st, 1928. 3. Letter from the Secretary-General of the League of Kations to the Director of the I.L.O., August zgrd, 1928. 4. Letter from the Director of the I.L.O. to the Under-Secretary of State for Foreign Affairs of Cuba, August 3rd, 1928. 5. Letter from the Director of the I.L.O. to the Secretary for Agriculture, Commerce and Labour of Cuba of August 3rd, 1928. 6. Letter from the Under-Secretary of State for Foreign Affairs of Cuba to the Director of the I.L.O., February zoth, 1930.

text: (d) Peru

text: I. Decision of the Peruvian Government dated 6th March, 1936.

text: 5 5

text: QPIN. O F 28 V 51 (RESERVATIONS TO

text: GENOCIDE CONVENTION

text: ) 67

text: 2. Letter from the Acting Director of the I.L.O. to the Rfinister for Foreign Affairs of Peru, May 15th, 1936. 3. Reply from the Minister for External Relations of Peru, 8th July, 1936.

text: ( I V ) Memorandum submitted by the Director of the I.L.O. to the Committee of Experts for the progressive codification of international law and extract from the report subnzitted by the Committee to the Council of the Lengue of Nations, 1927.

text: ( a ) Text of the Menorandum submitted by the Director of the I.L.O. to the Committee of Experts for the progressive codification 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.

text: IV) Extract from the report submitted to the Governing Body of the I . L. O., ut its 60th session (Madrid, October 1g32), by its Standing Orders Committee, and document submitted by the I . L . O . to the Committee.

text: (a) Extract from the report of the Standing Orders Committee. ( b ) Document submitted by the I.L.O. to the Standing Orders Committee.

text: (VI) Communications from the I . L . O . to the Secretary-Geneval of the LTnited Nations concerning the registration of international labour conventions.

text: ( a ) Letter from the Legal Adviser of the I.L.O. to the Secretary- General of the United Nations dated 10th 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.

text: (VII) Examples of ratifications of International Labour Conventions subject to sus$ensive conditions, geogra$hical linzitations and understandings @?hich haoe not been regarded as constituting reservations.

text: (a) Example of ratification subject to suspensive conditions: 1. Conditional ratification by the IJnited Kingdom of Great Britain and Korthern 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 : I. Formal ratification by India of the conventions concerning workmen's compensation for occupational diseases, 1925 (Convention No. 18), and equality oi treatinent 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.

text: 3. Formal ratification by the United Kingdoni 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 Rritain and Northern Ireland of the Convention concerning seamen's Articles of Agreement, 1926 (Convention No. 22).

text: 2. Formal ratification by India of the Convention concerning seamen's Articles of Agreement, 1926 (C.onvention No. 22).

text: 3.. Fornial ratification by Australia of the Convention conceriiing hours of work on board ship and manning, 1936 (Convention Xo, 57). 4. Formal ratification by the United States of America of the Conventions concerning the minimun; requirement of professional capacity for masters and officers on board merchant ships, 1936 (Convention Xo. 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 ceamen, 1936 (Convention No. jj) ; concerning hours of work on board ship and manning. 193G (Convention No. j7) ; fixing the minimum age for the admission of children to employment at sea (revised 1936) (Convention No. 58).

text: II.-DOCUMENTS SUBMITTED D U R I N G T H E ORAL PROCEEDINGS

text: (1) Report on the Law of Treaties compiled by Professor Brierley for the International Law Commission. (2) Analytical Report of the j3rd Meeting of the Commission. (3) Report of the International Law Commission on the proceedings of the and Session (June- July, 19 50). (4) Letter from the Assistant Secretary-General, Legal Department, of February 5th, 1951, regarding conimunication from Ecuador. (5) Letter from the Assistant Secretary-General, Legal Department, of February jth, 1951, regarding commiinication from Ecuador. (6) Letter from the Minister for Foreign Affairs of Iran to the Secretary General of January ~ j t h , 1951. (7) Letter from the Assistant Secretary-General, Legal Department, to the Minister for Foreign Xffairs of Iran. (8) Letter from the Assistant Secretary-General, Legal Department, of February &th, 1951, regarding communications by Australia. (9) Letter from the Acting Permanent Australian Representative to the United Nations to the Secretary-General of March ~ g t l i , 1951.

text: OPIN. O F 28 V 51 (RESERVATIONS TO

text: GENOCIDE CONVENTION

text: (IO) Letter from the Permanent Secretary, Ministry for Foreign Affairs, Ceylon, to the Assistant Secretary-General, Legal Department, of January 27th, 1951. (II) Letter from the Assistant Secretary-General, 1,egal Department, t o 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 Nonvegian Permanent Delegation to the United Nations to the Assistant Secretary-General, Legal Department, Febmary gth, 1951. (14) Letter from the~hssistant Secretary-General, Legal Department, to the Permanent Representative of Nonvay to the United Nations, February 16th, 1951.

text: (1) Translation into English of the Israel Crime of Genocide (prevention and punirhhrne~,t) law. 5710-1950. (2) "The

text: Genocide Convention

text: , its Ongin and Interpretation", by Nehemiah Robinson. 1949. Institute of Jewish Affairs of the World Jewish Congress.

text: C.-CORRESPONDENCE ADRESSED TO THE REGISTRY BP THE AUSTRALIAN EMBASSY AT THE HAGUE, ANP THE CHARGÉ D'AFFAIRES, PHILIPPINES MISSION TO THE UNITED NATIQNS

text: (1) Letter from the Australian Embassy at The Hague to the Registrar, Apnl 3rd, 1951. (2) Telegram from the Chargé d'affaires, Philippines Mission to the United Nations, to tbe Registrar, April 6th, 1951.

title: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide


doctype: dom

caseName: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru)

decisionType: judgment

procedure: (including the text of the declaration of Judge ad hoc Caicedo Castilla)

title: Judgment of 27 November 1950

text: INTERNATIONAL COURT O F JUSTICE

text: November 27th General List :

text: YEAR 1950 NO. 13

text: November 27th, 1950

text: REQUEST FOR INTERPRETATION OF THE JUDGMENT OF NOVEMBER zoth, 1950, IN THE ASYLUM CASE

text: (COLOMBIA / PERU)

text: JUDGMENT

text: Present : Presid8n.t BASDEVANT ; Vice-President GUERRERO ;

text: Judges ALVAREZ, HACKWORTH, WINIAKSKI, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, KRYLOV, READ, HSU Mo ;NM. ALAYZA Y PAZ SOLDAN and CAICEDO CASTILLA, Judges ad hoc ; Mr. HAMBRO, Registrar.

text: I n the case concerning the request for interpretation of the Judgment of November zoth, 1950,

text: between

text: the Republic of Colombia, represented by : M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal Adviser to the Ministry for Foreign Affairs of Colombia, former Senator, as Agent ;

text: 4 assisted by M. Eduardo Zuleta Angel, former Minister for Foreign Affairs, Ambassador in Washington, as Counsel : and, as Advacates, M. Francisco Urratia Holguin, Ambassador, Delegate to the United Nations, M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-General of the Ministry for Foreign Affairs of Colombia ;

text: and

text: the Republic of Peru, represented by : M. Carlos Saykn Alvarez, Barrister, Ambassador, former Minister, former President of the Peruvian Chamber of Deputies, as Agent ; assisted by RI. Felipe Tudela y Barreda, Barrister, Professor of Constitutional Law a t Lima, M. Raid Miro Quezada Laos, Barrister, M. Fernando Morales Macedo R., Parliamentary Interpreter, M. Juan José Calle y Calle, Secretary of Embassy ; and, as Counsel, M. Georges Scelle, Honorary Professor of the University of Paris, and M. Julio L6pez Olivkn, Ambassador.

text: composed as above, delivers the following Judgment : On November zoth, 1950, the Court delivered its Judgment in the asylum case between Colombia and Peru. On the very day on which the Judgment was delivered, the Agent of the Government of Colombia transmitted to the Registry of the Court a letter in which, under instructions of his Government, he informed the Court that the Colombian Government wished to obtain an interpretation of the said Judgment, in conformity with Articles 60 of the Statute and 79 and 80 of the Rules.

text: The letter of the Agent of the Colombian Government reads a s follows :

text: [Translation]

text: By order of my Govemment 1 have the honour to inform you of the following :

text: The Government of the Republic of Colombia, faithful to the international undertakings which it has signed and ratified and, in particular, the obligation which is laid upon it by Article 94, paragraph 1, of the Charter of the United Nations, declares its intention of complying with the decision of the International Court of Justice in the Colombian-Peruvian asylum case.

text: However, the manner in which the Court has ruled in its

text: Judgment of November zoth, 1950, had led my Government to the conclusion that this decision, as has been notified, contains gaps of such a nature as to render its execution impossible. This conclusion is based on the following grounds :

text: In its Judgment the Court makes the following statement : 'It is evident that the diplomatic representative who has to determine whether a refugee is to be granted asylum or not must have the competence to make such a provisional qualification of any offence alleged to have been committed by the refugee. He must in fact examine the question whether the conditions required for granting asylum are fulfilled. The territorial State would not thereby be depnved of its right to contest the qualification. I n case of disagreement between the two States, a dispute would arise which migkt be settled by the methods provided by the Parties for the settlement of their disputes' (Judgment, page 274).

text: I n the present case i t is beyond doubt that the Parties have in fact proceeded as the Court indicates in the above-mentioned text : the Colombian Ambassador in Lima qualified the offence attnbuted to the refugee ; the Government of Peru, for its part, contested this qualification and the dispute which arose on this point between the two States was brought before the International Court of Justice.

text: The Court has confirmed the qualification made by the Colombian Ambassador in a manner which is both clear and emphatic. I t has, in fact, declared : 'the Court considers that the Government of Peru has not proved that the acts of which the refugee was accused before January 3rdi4th, 1949, constitute common crimes' (Judgment, page 281). As a consequence of this declaration, the Court has rejected the counter-claim 'in so far as i t is founded on a violation of Article 1, paragraph 1, of the Convention on Asylum signed a t Havana in 1928' (Judgment, page 288).

text: The qualification made by the Colombian Ambassador of the political character of the offence attributed to the refugee having thus been confirmed by the Court, the theoretical question of the

text: 6 right appertaining to the State granting asylum may be left to one side because it ceases to have any practical effect. As is evident from the diplomatic correspondence between the Parties, if i t is true that Colombia, from the very beginning of this dispute, has claimed the right of qualification, it is equally certain that she has always affirmed that, even if this right could be contested, the qualification was in fact correct and could not be disregarded because i t had not been proved that M. Haya de la Torre was a common criminal.

text: In stating that the Government of Peru has not proved that the offence with which the refugee was charged wa's a common crime, the Court has admitted that the qualification made by Colombia was well founded. In the circumstances a question anses : must this qualification, which has been declared correct and approved by the Court, be considered nevertheless as null and void because a dispute has arisen on the preliminary and theoretical question of the right to qualification in matters of asylum ?

text: In deciding on the counter-claim of Peru, the Court has found, on the one hand, 'that the grant of asylum by the Colombian Government to Victor Raul Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that Convention' [Convention of Havana] (Judgment, page 288).

text: IO. The Court has declared, on the other hand, not only that 'the grant of asylum is not an instantaneous act which terminates with the admission, at a given moment, of a refugee to an embassy or a legation', but that asylum 'is granted as long as the continued presence of the refugee in the embassy prolongs this protection'.

text: II. I t would appear, consequently, that the idea of the Court, in deciding on one of the aspects of the counter-claim, is that Colombia might violate the provisions of Article 2, paragraph 2, of the Havana Convention if she does not surrender the refugee to the Peruvian authorities.

text: The Court declares, however, that M. Haya de la Torre is a political refugee and not a common criminal. I t declares at the same time that the Havana Convention, which is the only agreement regulating the relations between Colombia and Peru in matters of asylum, contains no clause providing for the surrender of a political refugee.

text: I t follows from the foregoing consideration that Colombia has no obligation to surrender the refugee to the Peruvian authorities and that, if she abstains from doing so, she in no way violates the Havana Convention.

text: Furthermore, the Court expressly states 'that the question of the possible surrender of the refugee to the territorial authorities

text: 7 is in no way raised in the counter-claim' and adds that 'this question was not raised either in the diplomatic correspondence submitted by the Parties or a t any moment in the proceedings before the Court, and in fact the Government of Peru has not requested that the refugee should be surrendered' (Judgment, page 280).

text: On the basis of the foregoing considerations, it does not seem possible to suppose that the Court, in deciding that the grant of asylum was not made in conformity with Article z, paragraph z , of the Havana Convention, intended to order, even in an indirect manner, that the refugee should be surrendered, or even lesç that i t intended to declare that Colombia would violate an international undertaking if she abstained from making the surrender which has not been ordered by the Court.

text: III

text: Consequently, the Governnlent of the Republic of Colombia has the honour to make a request for an interpretation of the Judgment of November zoth, 1950, as follows :

text: MAY IT PLEASE THE COURT, In accordance with Articles 60 of the Statute and 79 and 80 of the Rules of Court, to answer the following questions : First.-Must the Judgment of November zoth, 1950, be interpreted in the sense that the qualification made by the Colombian Ambassador of the offence attributed to M. Haya de la Torre, was correct, and that, consequently, it is necessafy to attribute legal effect to the above-mentioned qualification, in so far as i t has been confirmed by the Court ? Second.-Must the Judgment of November zoth, 1950, be interpreted in the sense that the Government of Peru is not entitled to demand the surrender of the political refugee M. Haya de la Torre, and that, consequently, the Government of Colombia is not bound to surrender him even in the event of this surrender being requested ?

text: Thid-Or, on the contrary, does the Court's decision on the counter-claim of Peru imply that Colombia is bound t o surrender the refugee Victor Raul Haya de la Torre to the Peruvian authorities, even if the latter do not so demand, in spite of the fact that he is a political offender and not a common criminal, and that the only convention applicable to the present case does not order the surrender of political offenders ?"

text: As the Court dit not include upon the Bench a n y judge of the nationality of the Parties, the latter availed themselves of the right provided by Article 31, paragraph 3, of the Statute. The Judges ad hoc designated were M. José Joaquin Caicedo Castilla, Doctor of Law, Professor, former Deputy and former President of the Senate, Ambassador, for the Government of Colombia. a n d RI. Luis Alayza y Paz Soldan, Doctor of Law, Professor, former hlinister,

text: Ambassador, for the Government of Peru. These Judges made the solemn declaration provided in Article 20 of the Statute in a public meeting held on November 23rd, 1950. The letter of the Agent of the C:olombian Government of November zoth, 1950, was communicated on the same day to the Agent of the Government of Peru, who submitted his observations in the following letter, dated November zznd :

text: [Translation]

text: "In reply to your letter of November zznd, 1950, No. 12125, following your communication of November zoth, No. 12084, 1 have the honour to inform you that it was not my intention to present observations on the request of the Colombian Agent because that request is clearly inadmissible.

text: However, in deference to the implied invitation contained in your second letter, 1 shall make the following statements : 1.-The Judgment of November zoth, 1950, is perfectly clear, except for those who would have made up their minds beforehand not to understand it. I t gives a decision in the clearest way possible on al1 submissions presented by both Parties. Therefore, we consider that the Judgment does not call for interpretation. 2.-Moreover the request of the Colombian Agent is inadmissible for legal reasons : ( a ) because i t is not a request for interpretation. In wrongly alleging that the Judgment contains 'gaps', it seeks, in fact, to obtain a new ,decision, supplementing the first ; (b) because the conditions laid down in Article 60 of the Statute of the Court concerning a request for interpretation have thereby been disregarded. In fact, the Colombian request is an attempt to disregard the statutory provision of Article 60, whereby the Court's judgments are final and without appeal.

text: 3.-In those conditions, the hidden purpose of the Colombian Agent's request is obviously an attempt to escape the legal consequences necessarily deriving from the Judgnient.

text: +-This intention seems al1 the more probable because, in a case of this importance, it would have seemed logical and natural for the two Governments concerned to take time for careful study of the text of the decision, whereas the request of the Colombian Agent came only a few hours after the public hearing, and its contents had even been comriunicated to the press beforehand. Personally, 1 would not have bei:n in a position to take such responsibilities before my own Government.

text: Asking you to transmit to the Court the foregoing observations,

text: 1 have, etc."

text: The observations of the Agent of the Peruvian Government were communicated t o the Agent of the Government of Colombia. The 9 latter, b y a letter dated November 24th, 1950, replied in the following terms :

text: [Translation]

text: "1 have the honour to acknowledge receipt of your communication No. 12114 of 23rd instant, transmitting to nie a certified true copy of the letter from the Agent of the Peruvian Government, dated November zznd, 1950.

text: 1 shall disregard certain remarks and insinuations contained in this letter, because, out of respect for the Court, 1 consider that it should not be made use of for the transmission of disparaging remarks concerning any govemment. The Peruvian Agent declares that the Judgment of November 20th, 1950, is 'perfectly clear'. The Colombian Govemment, on the contrary, as indicated in the request for interpretation, declares that it is not. Therefore, there is a manifest dispute between the Parties as to the meaning and scope of the Judgment. The Peruvian Agent also sa'ys that 'the hidden purpose of the Colombian Agent's request is obviously an attempt to escape the legal consequences necessarily deriving from the Judgment'. If the Peruvian Agent means by this that the legal consequences which Colombia is trying to evade consist in the obligation to surrender M. Haya de la Torre, the opposition between the two Govemments could not be indicated more clearly, because Colombia considers that no such conclusion can be drawn from the Judgment. If, on the other hand, the Peruvian Agent believes that Colombia is not under the obligation to surrender the refugee, he must say so clearly and indicate what would then be 'the necessary legal consequences' which Colombia is trying to evade.

text: 1 take the liberty of pointing out that the main purpose of the request for interpretation is to obtain a declaration stating whether, in rejecting the Peruvian counter-claim 'as far as it is founded on a violation of Article 1, paragraph 1, of the Convention on Asylum signed a t Havana in :1928', it was the Court's intention t o say that Colombia is not bound to surrender M. Haya de la Torre to the Peruvian authorities. 1 further point out that the request for interpretation also endeavours to obtain a declaration as to whether the Court, when it 'found that the grant of asylum by the Colombian Government to Victor Raul Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that Convention', meant that the Government of Peru has t:he right to demand the surrender of M. Haya de la Torre. This is a divergence of views, a difference of opinion, a dispute as to the meaning and scope of the Judgment of November zoth, the binding force of which 1 have asked the Court to define."

text: The request for interpretation now before the Court is based on Article 60 of the Statute which reads a s follows :

text: I O

text: "The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall contrue it upon the request of any party."

text: Thus it lays down two conditions for the admissibility of such a request : (1) The real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal. (2) I n addition, it is necessary that there should exist a dispute as to the meaning or scope of the judgment.

text: To decide whether the first requirement stated above is fulfilled, one must bear in mind the principle that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions.

text: The three questions raised in this proceeding by the Colombian Government must be considered in the light of this principle.

text: The first question concerns the qualification which was in fact made by the Colombian Ambassador a t Lima of the offence imputed to the refugee. I t seeks to obtain from the Court a declaration that this qualification was correct and that legal effect should be attributed to it. The Court finds that this point was not raised in the submissions of the Colombian Government in the proceedings leading up to the Judgment of November zoth, 1950. I n those submissions, the Court was asked to pronounce only on the claim expressed in abstract and general terms, that Colombia as the country granting asylum, was competent to qualify the offence .by a unilateral and final decision binding on Peru.

text: The circumstance that, before the proceedings in Court in the principal case, the qualification which was in fact made by the Colombian Ambassador had given rise to discussions between the two Governments through a diplomatic correspondence is irrelevant. As regards that part of the counter-claim of the Peruvian Government which was based on a violation of Article 1, paragraph 1, of the Havana Convention of 1928, it is to be noted that, in order to decide this question, it was sufficient for the Court to examine whether the Peruvian Government had proved that Haya de la Torre was accused of common crimes prior to the granting of

text: II asylum, namely, January 3rd, 1949. The Court found that this had not been proved by the Peruvian Government. The Court did not decide any other question on this point.

text: Questions 2 and 3 are submitted as alternatives, and may be dealt with together. Both concern the surrender of the refugee to the Peruvian Government and the possible obligations resulting in this connexion, for Colombia, from the Judgment of November zoth, 1950. The Court can only refer to what it declared in its Judgment in perfectly definite terms : this question was completely left outside the submissions of the Parties. The Judgment in no way decided it, nor could it do so. I t was for the Parties to present their respective claims on this point. The Court finds that they did nothing of the kind.

text: The "gaps" which the Colombian Government claims to have discovered in the Court's Judgment in reality are new questions, which cannot be decided by means of interpretation. Interpretation can in no way go beyond the limits of the Judgment, fixed in advance by the Parties themselves in their submissions. I n reality, the object of the questions submitted by the Colombian Government is to obtain, by the indirect means of interpretation, a decision on questions which the Court was not called upon by the Parties to answer. Article 60 of the Statute provides, moreover, that interpretation may be asked only if there is a "dispute as to the meaning or scope of the judgment". Obviously, one cannot treat as a dispute, in the sense of that provision, the mere fact that one Party finds the judgment obscure when the other considers it to be perfectly clear. A dispute requires a divergence of views between the parties on definite points ; Article 79, paragraph 2 , of the Rules confirms this condition by stating that the application for interpretation "shall specify the precise point or points in dispute".

text: I t is evident that this condition does not exist in the present case. Not only has the existence of a dispute between the Parties not been brought to the attention of the Court, but the very date of the Colombian Government's request for interpretation shows that such a dispute could not possibly have arisen in any way whatever.

text: The Court thus finds that the requirements of Article 60 of the Statute and of Article 79, paragraph 2 , of the Rules of Court, have not been satisfied.

text: by twelve votes to one,

text: Declares the request for interpretation of the Judgment of November aoth, 1950, presented on the same day by the Government of the Republic of Colombia, to be inadmissible.

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this twenty-seventh day of November, one thousand nine hundred and fifty, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Governments of the Republic of Colombia a n d of the Republic of Peru respectively.

text: ( S i g n e d ) BASDEVANT, President .

text: ( S i g n e d ) E. HAMBRO, Registrar.

text: M. CAICEDO GASTILLA, Judge ad hoc, declares that he is unable t o concur in the Judgment of the Court because, in his opinion, Article 60 of the Statute can be interpreted more liberally, as shown by the Permanent Court of International Justice in the Chorzow Factory case. He recognizes, however, that it is open to the Parties to come before the Court if a divergence of views satisfying the precise conditions required by this Judgment were to be submitted to it.

text: (Initialled) J. B.

text: (Initialled) E. H.

type: avgorande