Saturday, May 17, 2014

ICJ Advisory Opinion on Making Reservations to the Genocide Convention case brief summary

ICJ Advisory Opinion on Making Reservations to the Genocide Convention
Issue: Genocide Convention silent as to reservations. Are they allowed?
You can ratify with reservations and maintain status as being a party to a treaty but only as long as these are compatible with the object and purpose of the Convention. The object and purpose was to get as many states to sign – so “universal ratification” is more important.
Rule:  a reservation could not be accepted if it was incompatible with the object and purpose of the Convention.
Conflicting Considerations: If you do not permit reservation you will have fewer ratifications; but if permit them, you are weakening the treaty in some way. In light of the nature of the treaty in question, the Court decided that the former consideration should take precedence
US general reservation to the Genocide Convention—the treaty prohibited inciting genocide and there are constitutional impediments to the enactment of such laws in the US, freedom of speech as long as there is no imminent danger ensuing from your talk. Is this reservation permissible?—purpose and object is prevention of genocide
Article 27A State may not invoke domestic law as a justification for not performing a treaty the State has ratified. (domestic law is not a defense to our treaty obligations)
What is the relationship between a reserving State and the State that objects to the reservation: Article 21(3)the provisions to which the reservations relates do not apply as between the two States, to the extent of the reservation but otherwise the treaty applies. The situation is analogous when a State simply accepts the reservation. RECIPROCITY
Who decides whether a reservation is permissible—treaties often have provisions as to whom the dispute would be referred to; one possible tribunal is the ICJ. If not tribunal has been agreed on, States decide for themselves.

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