Introduction
On 5 May, the International Court of Justice (‘Court’ or ‘ICJ’) issued an order in the case brought by Sudan against the United Arab Emirates (‘UAE’) (see commentaries here and here). The dispute concerned alleged violations of the 1948 Genocide Convention (‘the Convention’) arising from acts attributed to the UAE in its purported ‘direct support’ of the Rapid Support Forces militia and ‘in connection with the genocide against the Masalit group’ occurring in Sudan since 2023 (application). In addition, Sudan requested the Court to indicate provisional measures (‘PMs’) ‘in order to preserve the rights of the members of the Masalit group [in Sudan] […] from the genocidal acts protected under the [Convention],’ as well as the right of Sudan ‘to safeguard compliance with the Genocide Convention.’ As anticipated, the Court ultimately rejected Sudan’s request for the indication of PMs and decided to remove the case from the General List due to manifest lack of jurisdiction.
Procedural issues have centred on the applicability of the reservation submitted by the UAE to Article IX of the Convention. As known, this provision confers upon the ICJ jurisdiction over disputes relating to the:
‘relating to the interpretation, application or fulfilment of the […] Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.’
This post aims to provide analytical reflections on the legal character of the provisions at issue, particularly with regard to the interpretation of reservations to compromissory clauses such as Article IX of the Convention. It is contended that reservations of this nature ought to be declared incompatible with the object and purpose of treaties establishing erga omnes partes obligations and, hence, invalid.
Sudan’s Stance and the Court’s Decision on the UAE’s Reservation to Article IX of the Genocide Convention
Sudan argued that the reservation entered by the UAE was not, prima facie, capable of being interpreted as excluding the Court’s jurisdiction (Wordsworth’s pleading, paras. 10-27, p. 29 ff.). Even assuming that the reservation had such an effect, Sudan contended that it was, at the very least, prima facie incompatible with the object and purpose of the Convention, and therefore invalid. This is because:
‘the Genocide Convention is unique among the human rights conventions in allowing for ⎯ and depending upon ⎯ immediate direct access to the Court as the sole available international judicial forum in circumstances where there is no treaty body for the supervision of performance by States parties’ (Wordsworth’s pleading, para. 35, at 35).
The UAE replied that the reservation is clear in expressing the State’s intention not to be bound by Article IX; that the absence of an objection by Sudan signifies that it has accepted the reservation; and that the ICJ has consistently given full effect to reservations to Article IX.
The ICJ eventually held that the effect of the UAE’s reservation – excluding the Court’s jurisdiction over disputes arising from the interpretation and application of the Convention – was clear and did not conflict with the object and purpose of the Convention. According to the Court, the reservation:
‘does not affect substantive obligations relating to acts of genocide themselves under that Convention [and] […] is [only] meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention’ (para. 31 of the order – emphases added).
Having found the UAE’s reservation to be fully effective, the Court concluded that it lacked jurisdiction to indicate PMs, making it unnecessary to assess the remaining conditions required for such an indication. In reaching this conclusion, the Court replicated verbatim the language used in Armed Activities on the Territory of the Congo (2002 application), in which the applicant state had also objected the validity of the reservation submitted by Rwanda to Article IX on the ground, among others, that it conflicted with the object and purpose of the Convention. Applying the same criteria – namely, the absence of any impact on the Convention’s ‘substantive obligations’ and the reservation’s limitation to ‘a particular method of dispute settlement’ – the Court then concluded that Rwanda’s reservation was not incompatible with the object and purpose of the Convention (para. 67 ff.).
Efforts to Dispute the Legitimacy of Reservations to Human Rights Treaties in the Court’s Practice
The tension between the very nature of human rights treaties and the permissibility of reservations has repeatedly emerged in the Court’s practice. Nonetheless, the perspectives expressed by individual judges on this matter across previous cases have been framed in different ways and in broad terms, ultimately failing, in our view, to fully capture the essence of the issue.
For instance, in his dissenting opinion appended to the 1951 Reservations to the Genocide Convention advisory opinion, Judge Álvarez observed that:
‘[t]hese conventions [including those which – in his words – aim to establish new and important principles of international law and regulate matters of a social or humanitarian interest with a view to improving the position of individuals], by reason of their nature and of the manner in which they have been formulated, constitute an indivisible whole. Therefore, they must not be made the subject of reservations, for that would be contrary to the purposes at which they are aimed, namely, the general interest and also the social interest’ (para. IV – emphases added).
More recently, in his dissenting opinion appended to the 2006 Armed Activities on the Territory of the Congo judgment on admissibility, Judge Koroma cast doubt on the compatibility with the object and purpose of the Convention of Rwanda’s reservation to Article IX. He stressed that Article IX should be regarded as the raison d’être of the treaty since the Court ‘is the only avenue for adjudicating the responsibilities of States’ for breaches of the Convention and reservation to that provision would prevent ‘the fulfilment of the object and purpose of the Convention, namely, the prevention and punishment of genocide’ (para. 13, emphasis in the original).
In her separate opinion appended to the order on PMs in The Gambia v. Myanmar genocide case, Judge Xue stated the following:
Lofty as it is, the raison d’être of the Genocide Convention […] does not, in and by itself, afford each State party a jurisdictional basis and the legal standing before the Court. Otherwise, it cannot be explained why reservation to the jurisdiction of the Court under Article IX of the Convention is permitted under international law. Those States which have made a reservation to Article IX are equally committed to the raison d’être of the Genocide Convention.
As we shall see, Judge Xue’s position is diametrically opposed to the one adopted in this piece, but it has the merit of acknowledging the dichotomy between the standing to initiate proceedings before the Court and the possibility of submitting reservations to Article IX of the Convention.
In the present case, Judge ad hoc Simma’s declaration warrants particular attention. He held that:
‘[r]eservations to Article IX of the Convention excluding the Court’s jurisdiction pure and simple must […] be regarded as serious obstacles [to the judicial competence of the Court] and a disgrace to the States parties concerned’ (para. 4)
and underscored, in this regard, both the significant evolution of international law on reservations to (human rights) treaties and the considerable growth of ‘the Court’s body of jurisprudence concerning obligations erga omnes (partes) and peremptory norms of general international law (jus cogens)’ (para. 6). Nonetheless, Judge Simma invoked these developments not to argue for possible incompatibility of reservations with the object and purpose of the Convention, but rather to highlight the inadequacy of addressing such complex legal issues at the provisional measures stage (ibid.). This view reflects what the Judge argued in his seminal Hague Academy course on community interests in international law, namely that:
‘reciprocal non-application of a human rights treaty provision [by way of reservations] would […] be inadmissible if, and to the degree that, such a provision embodies an obligation arising from jus cogens’ (at 343).
This statement clearly encompasses obligations erga omnes (partes).
The Crux of the Matter: Standing for Breaches of Obligations Erga Omnes Partes v. Reservations to Compromissory Clauses
It is here submitted that Sudan’s argument concerning the inapplicability of the UAE’s reservation, as well as the views expressed by the Court’s judges on various occasions, failed to take into account a critical dimension. Specifically, insufficient attention was paid to the procedural implications of the provisions of the Convention – including those invoked by Sudan, such as the obligations under Article I – for the applicant’s standing to invoke the UAE’s responsibility and request the indication of PMs and their functional relationship to the legal effects of reservations to Article IX.
It is known that the Court has constantly affirmed that all states parties to the Convention have a ‘common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention’ (The Gambia v. Myanmar, para. 107). This shared interest implies that obligations erga omnes partes are at stake, namely obligations ‘owed by any State party to all the other States parties’ (ibid). Consequently, any State party to the Convention possesses legal standing to bring a claim before the Court – both at the preliminary and merits stages – to ensure the prevention, suppression and punishment of genocide, irrespective of any specific interest or injury suffered. The Court has recognized that an analogous interest exists for States parties to the Torture Convention (Belgium v. Senegal, para. 68) and one might add, by logical extension, to other treaties containing such obligations. As noted, this acknowledgement marks a pivotal evolution in the law of international responsibility.
In this light, the permissibility of reservations to Article IX risks hollowing out the procedural mechanisms necessary to give effect to the Convention’s substantive guarantees and ultimately to ‘the accomplishment of [the] high purposes which are the raison d’être of the convention’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, p. 23). It is thus our contention that reservations to Article IX should be regarded as incompatible with the object and purpose of the treaty – and thus invalid pursuant to Article 19(c) of the Vienna Convention on the Law of Treaties – where a) the reservation seeks to exclude the jurisdiction of the Court either by removing the entire provision (as the UAE’s) or by making such jurisdiction conditional upon the consent of all parties to the dispute (e.g., the US’ and India’s); b) the dispute regards (for the most part) alleged breaches of obligations erga omnes partes. Allowing such reservations would indeed frustrate the procedural mechanisms necessary to give effect to the Convention’s core aims and, ultimately, undermine the effective protection of community interests embedded in obligations of this nature. As noted elsewhere, ‘without ICJ jurisdiction, the Genocide Convention has no teeth,’ at least in terms of interstate enforcement. This position stems from the understanding that – although the erga omnes partes nature of certain obligations included in the Convention primarily affects the standing of all States parties, rather than the jurisdiction of the Court per se – permitting reservations to Article IX effectively undermines the ability of the Court to adjudicate on breaches of such obligations. The result is equivalent: the responsibility of the alleged wrongdoer cannot be ascertained, and the ‘common interest’ in the prevention, suppression and punishment of genocide, which underpins the Convention, is left unprotected.
In this regard, it can be argued that such reservations affect ‘an essential element of the treaty [i.e., the erga omnes partes character of certain obligations under it] that is necessary to its general tenor [for they give rise to the possibility, for each state party, to bring a claim in the Court to invoke the responsibility of the wrongdoer and assert the common interest in compliance with those obligations]’ and, more specifically, that they ‘purport to exclude or modify the legal effect of a provision of the treaty essential to its raison d’être,’ as respectively articulated in rules 3.1.5 and 3.1.5.7, lett. a) of the ILC’s Guide to Practice on Reservations to Treaties. This argument gains further weight when considering that Article IX encompasses disputes concerning not only the interpretation and application of the Convention, but also its fulfilment, including ‘the responsibility of a State for genocide’ (see the position of judge Owada, at 5). The jurisdiction conferred by Article IX to the Court is thus functionally indispensable to the realization of the ‘common interest’ that underlies the Convention.
On this view, Article IX assumes the character of a ‘substantive obligation,’ integral to the treaty’s enforcement architecture, while the claim by the Court that the reservation ‘is [only] meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention’ loses much of its persuasive force. Where obligations erga omnes partes are at issue, the Court’s contentious jurisdiction under Article IX of the Convention serves not as a procedural option among many, but as the primary mechanism through which State responsibility for grave violations is invoked and adjudicated. The act of initiating proceedings before the ICJ is itself a vital element in safeguarding the public interest in preventing, suppressing and punishing genocide. We believe that this rationale may extend more broadly to other compromissory clauses embedded in treaties establishing obligations erga omnes partes. This holds true irrespective of the body designated to resolve the dispute. In this regard, it is true that Article IX of the Convention differs from other compromissory clauses contained in treaties encompassing obligations erga omnes partes (e.g., Article 30, para. 1 of the Torture Convention and Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination), in that it confers jurisdiction upon the Court only (this point is stressed here). However, this does not alter our conclusion that excluding any form of judicial competence in relation to alleged breaches of obligations erga omnes partes would run counter to the object and scope of the treaties that contain them.
Conclusions
In Armed Activities on the Territory of the Congo (2002 application), five judges, while concurring in the conclusion that the Court lacked jurisdiction to entertain Congo’s application, observed in their joint separate opinion that ‘it is […] not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention’ (para. 29). It is submitted here that the time has come for the Court to reconsider its approach of treating reservations to Article IX of the Genocide Convention – and more broadly, reservations to compromissory clauses in treaties safeguarding ‘common interests’ – as being compatible with the object and purpose of the treaty, where the reservation results in the exclusion of the Court’s jurisdiction and the dispute primarily concerns breaches of obligations erga omnes partes.
In treaties such as the Genocide Convention, which safeguard fundamental collective interests, jurisdictional clauses are not merely procedural – they are essential tools for ensuring compliance and accountability. The Court’s reluctance to scrutinize reservations more rigorously risks undermining the effectiveness of international adjudication in addressing the most serious violations of international law. In an ever-evolving international legal system, in which the very notions of object and purpose of a treaty do not remain immutable (ILC’s Guide commentary, at 214), the fact that ‘decades of practice under the 1948 Genocide Convention [have] cemented the optional nature of ICJ dispute settlement under that instrument’ (Becker) should not be considered an obstacle. The growing number of cases involving allegations of genocide and, more generally, actions brought in the public interest; the increasing tendency of third States to intervene in such proceedings; and, significantly, the widespread withdrawal by States of reservations to Article IX and objections thereto (see, i.e., the Netherlands’ and the United Kingdom’s), all strongly support a reassessment of the Court’s current stance.
As a final remark, it is undeniable that the Court would face considerable challenges in undertaking a significant change to its jurisprudence. Moreover, while a more rigorous scrutiny of reservations may strengthen treaty enforcement and safeguard collective interests, it could also affect States’ willingness to include compromissory clauses in future treaties and lead them to (further) limit or avoid judicial dispute settlement mechanisms in order to retain procedural discretion. Nevertheless, we submit that the approach outlined in this piece is the one to be followed to foster a coherent and effective system of Public International Law.
The Sudan Genocide Case and the Legal Effect of Reservations to Compromissory Clauses in Disputes Concerning Obligations Erga Omnes Partes
Written by Eugenio CarliIntroduction
On 5 May, the International Court of Justice (‘Court’ or ‘ICJ’) issued an order in the case brought by Sudan against the United Arab Emirates (‘UAE’) (see commentaries here and here). The dispute concerned alleged violations of the 1948 Genocide Convention (‘the Convention’) arising from acts attributed to the UAE in its purported ‘direct support’ of the Rapid Support Forces militia and ‘in connection with the genocide against the Masalit group’ occurring in Sudan since 2023 (application). In addition, Sudan requested the Court to indicate provisional measures (‘PMs’) ‘in order to preserve the rights of the members of the Masalit group [in Sudan] […] from the genocidal acts protected under the [Convention],’ as well as the right of Sudan ‘to safeguard compliance with the Genocide Convention.’ As anticipated, the Court ultimately rejected Sudan’s request for the indication of PMs and decided to remove the case from the General List due to manifest lack of jurisdiction.
Procedural issues have centred on the applicability of the reservation submitted by the UAE to Article IX of the Convention. As known, this provision confers upon the ICJ jurisdiction over disputes relating to the:
This post aims to provide analytical reflections on the legal character of the provisions at issue, particularly with regard to the interpretation of reservations to compromissory clauses such as Article IX of the Convention. It is contended that reservations of this nature ought to be declared incompatible with the object and purpose of treaties establishing erga omnes partes obligations and, hence, invalid.
Sudan’s Stance and the Court’s Decision on the UAE’s Reservation to Article IX of the Genocide Convention
Sudan argued that the reservation entered by the UAE was not, prima facie, capable of being interpreted as excluding the Court’s jurisdiction (Wordsworth’s pleading, paras. 10-27, p. 29 ff.). Even assuming that the reservation had such an effect, Sudan contended that it was, at the very least, prima facie incompatible with the object and purpose of the Convention, and therefore invalid. This is because:
The UAE replied that the reservation is clear in expressing the State’s intention not to be bound by Article IX; that the absence of an objection by Sudan signifies that it has accepted the reservation; and that the ICJ has consistently given full effect to reservations to Article IX.
The ICJ eventually held that the effect of the UAE’s reservation – excluding the Court’s jurisdiction over disputes arising from the interpretation and application of the Convention – was clear and did not conflict with the object and purpose of the Convention. According to the Court, the reservation:
Having found the UAE’s reservation to be fully effective, the Court concluded that it lacked jurisdiction to indicate PMs, making it unnecessary to assess the remaining conditions required for such an indication. In reaching this conclusion, the Court replicated verbatim the language used in Armed Activities on the Territory of the Congo (2002 application), in which the applicant state had also objected the validity of the reservation submitted by Rwanda to Article IX on the ground, among others, that it conflicted with the object and purpose of the Convention. Applying the same criteria – namely, the absence of any impact on the Convention’s ‘substantive obligations’ and the reservation’s limitation to ‘a particular method of dispute settlement’ – the Court then concluded that Rwanda’s reservation was not incompatible with the object and purpose of the Convention (para. 67 ff.).
Efforts to Dispute the Legitimacy of Reservations to Human Rights Treaties in the Court’s Practice
The tension between the very nature of human rights treaties and the permissibility of reservations has repeatedly emerged in the Court’s practice. Nonetheless, the perspectives expressed by individual judges on this matter across previous cases have been framed in different ways and in broad terms, ultimately failing, in our view, to fully capture the essence of the issue.
For instance, in his dissenting opinion appended to the 1951 Reservations to the Genocide Convention advisory opinion, Judge Álvarez observed that:
More recently, in his dissenting opinion appended to the 2006 Armed Activities on the Territory of the Congo judgment on admissibility, Judge Koroma cast doubt on the compatibility with the object and purpose of the Convention of Rwanda’s reservation to Article IX. He stressed that Article IX should be regarded as the raison d’être of the treaty since the Court ‘is the only avenue for adjudicating the responsibilities of States’ for breaches of the Convention and reservation to that provision would prevent ‘the fulfilment of the object and purpose of the Convention, namely, the prevention and punishment of genocide’ (para. 13, emphasis in the original).
In her separate opinion appended to the order on PMs in The Gambia v. Myanmar genocide case, Judge Xue stated the following:
As we shall see, Judge Xue’s position is diametrically opposed to the one adopted in this piece, but it has the merit of acknowledging the dichotomy between the standing to initiate proceedings before the Court and the possibility of submitting reservations to Article IX of the Convention.
In the present case, Judge ad hoc Simma’s declaration warrants particular attention. He held that:
and underscored, in this regard, both the significant evolution of international law on reservations to (human rights) treaties and the considerable growth of ‘the Court’s body of jurisprudence concerning obligations erga omnes (partes) and peremptory norms of general international law (jus cogens)’ (para. 6). Nonetheless, Judge Simma invoked these developments not to argue for possible incompatibility of reservations with the object and purpose of the Convention, but rather to highlight the inadequacy of addressing such complex legal issues at the provisional measures stage (ibid.). This view reflects what the Judge argued in his seminal Hague Academy course on community interests in international law, namely that:
This statement clearly encompasses obligations erga omnes (partes).
The Crux of the Matter: Standing for Breaches of Obligations Erga Omnes Partes v. Reservations to Compromissory Clauses
It is here submitted that Sudan’s argument concerning the inapplicability of the UAE’s reservation, as well as the views expressed by the Court’s judges on various occasions, failed to take into account a critical dimension. Specifically, insufficient attention was paid to the procedural implications of the provisions of the Convention – including those invoked by Sudan, such as the obligations under Article I – for the applicant’s standing to invoke the UAE’s responsibility and request the indication of PMs and their functional relationship to the legal effects of reservations to Article IX.
It is known that the Court has constantly affirmed that all states parties to the Convention have a ‘common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention’ (The Gambia v. Myanmar, para. 107). This shared interest implies that obligations erga omnes partes are at stake, namely obligations ‘owed by any State party to all the other States parties’ (ibid). Consequently, any State party to the Convention possesses legal standing to bring a claim before the Court – both at the preliminary and merits stages – to ensure the prevention, suppression and punishment of genocide, irrespective of any specific interest or injury suffered. The Court has recognized that an analogous interest exists for States parties to the Torture Convention (Belgium v. Senegal, para. 68) and one might add, by logical extension, to other treaties containing such obligations. As noted, this acknowledgement marks a pivotal evolution in the law of international responsibility.
In this light, the permissibility of reservations to Article IX risks hollowing out the procedural mechanisms necessary to give effect to the Convention’s substantive guarantees and ultimately to ‘the accomplishment of [the] high purposes which are the raison d’être of the convention’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, p. 23). It is thus our contention that reservations to Article IX should be regarded as incompatible with the object and purpose of the treaty – and thus invalid pursuant to Article 19(c) of the Vienna Convention on the Law of Treaties – where a) the reservation seeks to exclude the jurisdiction of the Court either by removing the entire provision (as the UAE’s) or by making such jurisdiction conditional upon the consent of all parties to the dispute (e.g., the US’ and India’s); b) the dispute regards (for the most part) alleged breaches of obligations erga omnes partes. Allowing such reservations would indeed frustrate the procedural mechanisms necessary to give effect to the Convention’s core aims and, ultimately, undermine the effective protection of community interests embedded in obligations of this nature. As noted elsewhere, ‘without ICJ jurisdiction, the Genocide Convention has no teeth,’ at least in terms of interstate enforcement. This position stems from the understanding that – although the erga omnes partes nature of certain obligations included in the Convention primarily affects the standing of all States parties, rather than the jurisdiction of the Court per se – permitting reservations to Article IX effectively undermines the ability of the Court to adjudicate on breaches of such obligations. The result is equivalent: the responsibility of the alleged wrongdoer cannot be ascertained, and the ‘common interest’ in the prevention, suppression and punishment of genocide, which underpins the Convention, is left unprotected.
In this regard, it can be argued that such reservations affect ‘an essential element of the treaty [i.e., the erga omnes partes character of certain obligations under it] that is necessary to its general tenor [for they give rise to the possibility, for each state party, to bring a claim in the Court to invoke the responsibility of the wrongdoer and assert the common interest in compliance with those obligations]’ and, more specifically, that they ‘purport to exclude or modify the legal effect of a provision of the treaty essential to its raison d’être,’ as respectively articulated in rules 3.1.5 and 3.1.5.7, lett. a) of the ILC’s Guide to Practice on Reservations to Treaties. This argument gains further weight when considering that Article IX encompasses disputes concerning not only the interpretation and application of the Convention, but also its fulfilment, including ‘the responsibility of a State for genocide’ (see the position of judge Owada, at 5). The jurisdiction conferred by Article IX to the Court is thus functionally indispensable to the realization of the ‘common interest’ that underlies the Convention.
On this view, Article IX assumes the character of a ‘substantive obligation,’ integral to the treaty’s enforcement architecture, while the claim by the Court that the reservation ‘is [only] meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention’ loses much of its persuasive force. Where obligations erga omnes partes are at issue, the Court’s contentious jurisdiction under Article IX of the Convention serves not as a procedural option among many, but as the primary mechanism through which State responsibility for grave violations is invoked and adjudicated. The act of initiating proceedings before the ICJ is itself a vital element in safeguarding the public interest in preventing, suppressing and punishing genocide. We believe that this rationale may extend more broadly to other compromissory clauses embedded in treaties establishing obligations erga omnes partes. This holds true irrespective of the body designated to resolve the dispute. In this regard, it is true that Article IX of the Convention differs from other compromissory clauses contained in treaties encompassing obligations erga omnes partes (e.g., Article 30, para. 1 of the Torture Convention and Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination), in that it confers jurisdiction upon the Court only (this point is stressed here). However, this does not alter our conclusion that excluding any form of judicial competence in relation to alleged breaches of obligations erga omnes partes would run counter to the object and scope of the treaties that contain them.
Conclusions
In Armed Activities on the Territory of the Congo (2002 application), five judges, while concurring in the conclusion that the Court lacked jurisdiction to entertain Congo’s application, observed in their joint separate opinion that ‘it is […] not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention’ (para. 29). It is submitted here that the time has come for the Court to reconsider its approach of treating reservations to Article IX of the Genocide Convention – and more broadly, reservations to compromissory clauses in treaties safeguarding ‘common interests’ – as being compatible with the object and purpose of the treaty, where the reservation results in the exclusion of the Court’s jurisdiction and the dispute primarily concerns breaches of obligations erga omnes partes.
In treaties such as the Genocide Convention, which safeguard fundamental collective interests, jurisdictional clauses are not merely procedural – they are essential tools for ensuring compliance and accountability. The Court’s reluctance to scrutinize reservations more rigorously risks undermining the effectiveness of international adjudication in addressing the most serious violations of international law. In an ever-evolving international legal system, in which the very notions of object and purpose of a treaty do not remain immutable (ILC’s Guide commentary, at 214), the fact that ‘decades of practice under the 1948 Genocide Convention [have] cemented the optional nature of ICJ dispute settlement under that instrument’ (Becker) should not be considered an obstacle. The growing number of cases involving allegations of genocide and, more generally, actions brought in the public interest; the increasing tendency of third States to intervene in such proceedings; and, significantly, the widespread withdrawal by States of reservations to Article IX and objections thereto (see, i.e., the Netherlands’ and the United Kingdom’s), all strongly support a reassessment of the Court’s current stance.
As a final remark, it is undeniable that the Court would face considerable challenges in undertaking a significant change to its jurisprudence. Moreover, while a more rigorous scrutiny of reservations may strengthen treaty enforcement and safeguard collective interests, it could also affect States’ willingness to include compromissory clauses in future treaties and lead them to (further) limit or avoid judicial dispute settlement mechanisms in order to retain procedural discretion. Nevertheless, we submit that the approach outlined in this piece is the one to be followed to foster a coherent and effective system of Public International Law.
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Marco Longobardo says
June 3, 2025
Dear Eugenio,
Interesting post.
I'm not sure I agree on one point. You say: "The result is equivalent: the responsibility of the alleged wrongdoer cannot be ascertained, and the ‘common interest’ in the prevention, suppression and punishment of genocide, which underpins the Convention, is left unprotected". You also say that "On this view, Article IX assumes the character of a ‘substantive obligation,’ integral to the treaty’s enforcement architecture".
I think we should consider that the erga omnes / erga omnes partes character of the Genocide Convention does not have only consequences for standing before the ICJ. It has broader consequences for state responsibility and the invocation of state responsibility. For instance, arguably there could be consequences in relation to countermeasures (leaving aside all the debate about Art. 54 ARSIWA).
What I mean is that you see the possibility to bring a claim before the ICJ as the only way to protect the community interests of the states parties to the Convention. I think that there could be potentially other ways to be assessed.
And if there are other ways to be assessed, I'm not sure that excluding Article IX through a reservation undermines the object and purpose of the Convention in relation to the protection of a specific community interest.
Unfortunately, I think that the infamous distinction between procedural rules (jurisdiction of the ICJ) and substantive rules (interests at stake in the Genocide Convention) is not undermined by your argument. This distinction can be overcome in relation to standing only because jurisdiction is based on more traditional grounds.
All the best,
Marco
Eugenio Carli says
June 4, 2025
Dear Marco,
Many thanks for your comment.
Certainly, initiating proceedings before the ICJ is not the only way to protect collective interests. However, in my view, it is the PRINCIPAL avenue – and, more importantly, the only one (unless one wishes to contemplate the unlikely establishment of arbitration between the States involved in the dispute) – that can lead to a definitive and binding international judgment. Indeed, in the post I note that the Court’s jurisdictional competence under Article IX of the Convention is ‘the primary mechanism through which State responsibility for grave violations is invoked and adjudicated’.
That said, it is clear that the idea expressed in the post is a bold one and open to criticism, both from a strictly legal standpoint and, if you’ll allow the term, a “political” one. Yet, IF states are truly committed to fostering an international community willing to defend such fundamental collective interests, the entire framework of rules – BOTH substantive and procedural – underpinning those interests must move in the same direction. In my view, this is necessary even at the cost of challenging certain aspects which have come to be seen as untouchable, such as the one discussed in the post.
All the best,
Eugenio
Mike Becker says
June 4, 2025
Dear Eugenio
Thank you for this post. As I noted in the Opinio Juris piece that you reference, I share the view that treaties that enshrine jus cogens norms or establish obligations erga omnes partes should not be designed to allow states to opt-out of third-party dispute settlement. Going forward, I would encourage states to expressly disallow such reservations in human rights-related treaties. Nonetheless, many international human rights treaties were drafted and adopted when international adjudication remained exotic, at least in terms of human rights. And most such treaties made third-party dispute settlement optional.
As for the Genocide Convention, I remain sceptical that the answer lies in asking the ICJ to overturn decades of practice. The passage that you quote from Judge Simma’s declaration includes his view that Article IX reservations are ‘a disgrace to the States parties concerned’. I agree. There is good reason to question the level of commitment of those States to the principles embodied by the Genocide Convention, and it is right to call them out on this point.
But I think the correct response is through the political arena rather than the ICJ. As you note, several states have withdrawn their Article IX reservations. This is a positive development. The sixteen states that maintain some version of an Article IX reservation are Algeria, Argentina, Bahrain, Bangladesh, China, India, Malaysia, Montenegro, Morocco, Serbia, Singapore, UAE, United States, Venezuela, Vietnam, and Yemen. These states should face continuing pressure to withdraw those reservations and consent to compulsory ICJ jurisdiction over Genocide Convention disputes.
Best regards
Mike
Eugenio Carli says
June 6, 2025
Dear Mike,
Many thanks for your comment.
As previously contended, in my view the primary mechanism for safeguarding collective interests, such as those protected under the Genocide Convention, resides in judicial action, notably through the authoritative influence that a pronouncement by the ICJ may exert in this context. Leaving aside strategic considerations, I believe that the increasing number of proceedings initiated before the Court (especially those in the pursuit of 'collective interests') reflects the growing trust that states place in international justice.
I see no harm – and indeed, no genuine legal impediment – in the Court choosing to change (or rather, to evolve) its jurisprudence in response to the doctrinal and procedural developments concerning collective obligations, as already done in the past (South West Africa and Barcelona Traction cases serve as paradigmatic examples). This is especially compelling if one accepts the idea that the object and purpose of the Genocide Convention may have themselves evolved over time.
In this regard, I agree with your point that many international human rights treaties, including the Genocide Convention, were adopted in an era when international adjudication played only a marginal role. However, given the significant and welcome developments in this field, I believe that jurisprudence must also evolve accordingly.
After all, Law is a living instrument. It must respond to contemporary international challenges and reflect the evolving needs of the international community. Therefore, the ICJ’s (and other international courts’ and tribunals’) ability to develop and adapt their jurisprudence in order to protect collective interests is, in my view, not only desirable but also a legally sound and necessary evolution.
All the best,
Eugenio