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World Court Digest

I. Substantive International Law - First Part
7. LAW OF TREATIES
7.4. Reservations

¤ Case Concerning Armed Activities
on the Territory of the Congo
(New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
Request for the Indication of Provisional Measures
Order of 10 July 2002

[p. 244 ] 65. Whereas both the Congo and Rwanda are parties to the Convention on Racial Discrimination; whereas the Congo acceded to that Convention on 21 April 1976 and Rwanda on 16 April 1975; whereas however Rwanda’s instrument of accession to the Convention, deposited with the United Nations Secretary-General, includes a reservation reading as follows: “The Rwandese Republic does not consider itself as bound by article 22 of the Convention”;

66. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 25 above);

67. Whereas the Convention on Racial Discrimination prohibits reservations incompatible with its object and purpose; whereas under Article 20, paragraph 2, of the Convention, “[a] reservation shall be considered incompatible . . . if at least two-thirds of the States Parties to this Convention object to it”; whereas such has not been the case in respect of Rwanda’s reservation concerning the jurisdiction of the Court; whereas that reservation does not appear incompatible with the object and purpose of the Convention; whereas the Congo did not object to that reservation when it acceded to the Convention; and whereas Rwanda’s reservation is prima facie applicable;

[pp. 245-246] 69. Whereas both the Congo and Rwanda are parties to the Genocide Convention; whereas the Congo acceded to that Convention on 31 May 1962 and Rwanda on 16 April 1975; whereas however Rwanda’s instrument of accession to the Convention, deposited with the United Nations Secretary-General, includes a reservation worded as follows: “The Rwandese Republic does not consider itself as bound by article IX of the Convention”;

70. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 22 above);

71. Whereas “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation” and whereas a consequence of the conception thus adopted 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)” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); whereas it follows “that the rights and obligations enshrined by the Convention are rights and obligations erga omnes” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31); whereas however, as the Court has already had occasion to point out, “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29); whereas it does not follow from the mere fact that rights and obligations erga omnes are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute; whereas, as the Court has noted above (paragraph 57), it has jurisdiction in respect of States only to the extent that they have consented thereto; and whereas, when a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out in that clause;

72. Whereas the Genocide Convention does not prohibit reservations; whereas the Congo did not object to Rwanda’s reservation when it was made; whereas that reservation does not bear on the substance of the law, but only on the Court’s jurisdiction; whereas it therefore does not appear contrary to the object and purpose of the Convention; whereas it is immaterial that different solutions have been adopted for courts of a different character; whereas, specifically, it is immaterial that the International Criminal Tribunal for crimes committed in Rwanda was established at Rwanda’s request by a mandatory decision of the Security Council or that Article 120 of the Statute of the International Criminal Court signed at Rome on 17 July 1998 prohibits all reservations to that Statute;

[pp. 286 -287 S.O. Mavungu] 53. It is well established that a reservation to an international treaty is acceptable only if it is not incompatible with the object and purpose of that treaty1. It is true, as the Court points out, that the Genocide Convention does not prohibit reservations (see paragraph 72 of the Order). But that does not mean that States may make whatever reservations they please. Moreover, the Court stated as much in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:

«It has nevertheless been argued that any State entitled to become a party to the Genocide Convention may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. It 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.“ (I.C.J. Reports 1951, p. 24.)

54. The object and purpose of the 1948 Convention is, on the one hand, to clarify the notion of genocide and, on the other, to induce States parties to prevent any act of genocide and, in the event of failure to do so, to punish it. The mechanism for the settlement of disputes between States provided for by the Convention is an essential element in its application, and thus in ensuring its respect by States parties.

1See Article 19 (c) of the Vienna Convention on the Laaw of Treaties of 23 May 1969. On reservations, see inter alia Suzanne Bastid, Les traités dans la vie internationale. Conclusion et effets, 1985, pp. 71-77. Pierre-Henri Imbert, Les réserves aux traités multilatéraux, 1979; Daniel Kappeler, Les réserves dans les traités internationaux, 1957; José-Maria Ruda, «Reservations to treaties», RCADI, vol. 146, 1975, pp. 139-148.