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2.2 The Genocide Convention Case
This case
9
, from the beginning of the 1950's, arose from the question whether the
UN Secretary-General should count the instruments of ratification or accession
accompanied by reservations among the twenty such instruments required for the
convention to enter into force. The Secretary-General asked the General
Assembly (GA) for advice, and submitted a report in which he recommended the
practice of requiring unanimous consent to reservations should continue, but that
only state parties, not signatories, should have the right of objection.
10
In the
discussion that followed, several different opinions were expressed and several
draft resolutions submitted. The east states maintained their view that states had
an inalienable right to make reservations and yet become party to the treaty.
Provisions covered by the reservation would simply not apply between the
reserving state and the states that objected to the reservation. The Latin American
states wanted their regional system to be the applicable rules, and the United
Kingdom and Australia favoured a collegiate or majority system, that would
require acceptance of reservations by a given proportion of the other states. They
believed that signatories as well as parties should have the right of objection.
11
While this discussion was in progress, five new submissions of ratification, without
any complicated reservations, came to the Secretary-General, and the
Convention could enter into force even if the question about the reservations
remained unsolved. The GA adopted a resolution, requesting an advisory opinion
from the ICJ on the effect of the reservations to the Convention.
8
The Pan American Union was established in 1910. The 
Pan-American System
was a
regional system established by the Union as a particular system of their own regarding the
admissibility of reservations to the multilateral treaties drawn up under the auspices of the
Organization of American States. “This method […] has had considerable influence in
bringing about the changes which were due to take place to the basic and very well-
established norm in force in the 1920s, that a reservation to be admissible had to be
accepted by all signatories, according to some, or by all state parties, according to others,
i.e., the so-called unanimity rule.” Ruda, p. 115. For more on the Pan –American System, see
.i.e. Ruda, pp. 115-133.
9
ICJ Rep. 1951 28 May.
10 
Secretary-General's Report, 5 UN GAOR Annex 2 (agenda item 56) at 2-16, UN Doc.
A/1372 (1950).
11
Mr Fitzmaurice for the U.K., and Mr Ballard for Australia, in their submissions to the ICJ
on the case, Clark, p.292, note 72.

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11
The Court adopted its advisory opinion by seven to five. It found that the classical
theory of unanimous consent could not be applied to the Genocide Convention.
"The character of a multilateral convention, its purpose […] and adoption, are
factors which must be considered in determining […] the possibility of making
reservations."
12
In the preparatory works of the convention the Court found
evidence to support the fact that reservations had been contemplated, and since it
was the GA's and the state parties’ intention that as many states as possible
would participate, it was inconceivable to enable an objection to a minor
reservation to exclude one or more states, and thus to restrict the scope of the
Convention and detract from the authority of the principle upon which it was
based.
13
The Court rejected an interpretation that would result in excluding a state for
making a minor reservation, and said: "But even less could the contracting parties
have intended to sacrifice the very object of the Convention in favor (sic!) of a
vain desire to secure as many participants as possible."
14
The object and purpose
of a convention limited both the freedom to make reservations and the freedom to
object to them. The Court identified two evils between which the application of
the "object and purpose test" would steer. Reservations are accepted that
frustrates the purpose of the treaty. Objections have the effect of excluding the
reserving state even when the reservations are minor and compatible with the
purpose of the treaty. By saying "but even less", the Court implied that the evils
are not equal, implying that the former is somewhat greater. The conclusion of the
Court was that there was no absolute answer. The answer depended on the
circumstances of each case.
15
The Court said that if it finds the reservation to be incompatible with the object
and purpose of the treaty, the objecting state may consider that the reserving state
is not a party. Each state is entitled individually to appraise the validity of a
reservation, and since no state can be bound by a reservation to which it has not
consented, each objecting state will consider either that the reserving state is a
party to the treaty or that it is not. This decision will only affect the relationship
between the objecting and the reserving states. Thus, in the opinion of the Court,
the objection of a single contracting party could not prevent another contracting