Uppsatsmall doc

2.
Historical Background
In the following, a short overview of the system that prevailed before the League
of Nations and the system in operation during the period up until the famous
Genocide Convention case in 1951 given as an Advisory Opinion by the ICJ, are
presented. There was thus no automatic adoption or development of a new
regime caused by the formation of the United Nations directly after the end of the
Second World War.
 
Although
 
the Advisory Opinion of the ICJ did not set forth a
system of reservations, it clearly merits attention here not only as a background
for the system to be analysed below, but also because it represents the historical
moment at which the rhetoric and reasoning of all discussion of reservations
fundamentally changed.
 
The adoption of, and the rules in the Vienna Convention
are dealt with after this retrospection, in chapter 3 below.
2.1 Practice Prior to the Vienna Convention
Prior to The League of Nations in 1914, the rule was that (unless the treaty itself
provided otherwise) the unanimous consent of the other signatories was required
for a reservation to be admitted,
5
the so-called 
Unanimity rule
. The reservation
was valid only if the treaty concerned permitted them and if it was accepted by all
the other parties. On this basis, a reservation constituted a counteroffer that
required a new acceptance, failing which the state making the counteroffer had the
option of withdrawing the reservation or refraining from becoming party to the
treaty. This view rested on a contractual conception of the absolute integrity of the
treaty as adopted.
This rule of unanimity was certainly accepted in Western Europe, and Sir William
Malkin wrote in 1926 that after a thorough examination of contemporary practice,
it was clear that the rule was established as international practice, customary law.
6
But, to say that it was a settled rule of customary international law would not be
entirely true. Some states, principally in the eastern of Europe, put more emphasis
on the view that all states had the sovereign right to make reservations unilaterally
and at will, and to become a party to treaties subject to such reservations even if
they were objected to by other contracting states.
7
The U.S. had their own
5 
Clark,B.,
 The Vienna Convention Reservations Regime and the Convention on
Discrimination Against Women
, AJIL, Vol. 85, 1991, p. 289, (referring to Sinclair, The Vienna
Convention on the Law of Treaties 55 2nd ed., 1984, Kearney & Dalton, The Treaty on
Treaties, AJIL, Vol. 64, p. 495, 509 (1970) etc.)
6
Malkin, referred to in Clark, p. 290
7
The USSR maintained this position in their submission to the ICJ on the Genocide
Convention Case, Clark, p. 290, note 61.

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regional system in the Pan American Union
8
, but they did clearly accept the
unanimous rule, according to Malkin. Nonetheless, the rule was applied in the
practice of the League of Nations. The UN Secretariat followed League practice
until the Genocide Convention Case in 1951.