Introduction and background
The Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Sudan (Sudan v. United Arab Emirates) or Sudan v. UAE case presents a new opportunity for the International Court of Justice (ICJ or Court) to examine the significance of treaty reservations under international law. In its contentious case filed with the ICJ on 5 March 2025, Sudan accused the UAE of complicity in acts of genocide against the Masalit group in West Darfur by supporting Rapid Support Forces (RSF) and other rebel groups since 2023. Sudan has also alleged that the RSF backed by the UAE, has committed acts of genocide, murder, theft of property, rape, forcible displacement, trespassing, vandalism of public properties, and violations of human rights against the Masalit group. The allegations have highlighted incidents of acute torture, random bombings, sexual violence, poisoning drinking water and refusing access to medical supplies. Sudan has also requested the Court to proceed with the hearing irrespective of the reservations raised by the UAE under Article IX of the Genocide Convention which allows disputes over its interpretation or application to be brought before the ICJ.
Reservations to international treaties, including the Genocide Convention
This case has reignited the issue of reservations to the Genocide Convention and the extent to which a State can avoid liability by invoking reservations. Against this backdrop, this post attempts to highlight the functionality of reservations and explore an academic debate on the viability of the case instituted by Sudan. Reservations play a crucial role in convincing States to sign, adhere to or ratify a treaty. As per Vienna Convention on the Law of the Treaties, 1969, (VCLT), reservations are formal declarations which allows the participating state to exclude or modify certain provisions of the treaty which are incompatible with their laws or policies. This gives the States certain flexibility and protects their sovereignty while engaging in international cooperation.
The controversy on valid or invalid reservations continues
According to Michael A. Becker, in his Opinio Juris post (“Art. IX Reservations to the Genocide Convention Are Here To Stay: A Response To Diamond”), reservations to a treaty are a “necessary cost” to ensures broader participation of States in international agreements. Becker also added that since the entry into force of the Genocide Convention, the ICJ has not questioned the validity of Article IX reservations. He referenced Yugoslavia v. Spain (ICJ) and Yugoslavia v. United States of America (ICJ) as an example to substantiate his argument. Connecting the dots, in the instant case, the UAE has raised reservation to Article IX of the Genocide Convention and therefore, it appears unlikely that the ICJ will exercise jurisdiction over the matter.
While this remains significant, one could argue that reservations may compromise the effectiveness of the treaty and defeat its object and purpose. This is highlighted by Yonah Diamond in his Opinio Juris post (“The Invalidity of Art. IX Reservations to the Genocide Convention”) by pinpointing at the downside of raising reservations to Article IX of the Genocide Convention. In his opinion, a contracting State will avoid scrutiny and liability under the Convention by raising reservations and breach the substantive obligations without consequences. Diamond also articulated that since the ICJ is the sole authority to decide cases under the Genocide Convention, reservations to Article IX will compromise the Convention’s cohesive enforcement and compromise its overarching goals.
In his response, Becker dismissed Diamond’s normative arguments by highlighting the necessity of allowing reservations to Article IX of the Genocide Convention. Becker articulated that reservations to Article IX are valid as a matter of treaty law. He also added that no State will be devoid of remedies because – by virtue of Article VIII of the Convention – a State can call upon the competent organs of United Nations to take appropriate action for prevention and suppression of the acts of genocide. Becker summarised that a state need not depend solely on the ICJ for a remedy as they can seek compliance of the Convention also through their domestic forums.
Concluding remarks
The debate over treaty reservations is never-ending. Nonetheless, it has to be kept in mind that the ICJ has on multiple occasions held, that the prohibition of genocide is a peremptory norm. However, the ICJ has also refrained from adjudicating a case where a reservation to Article IX of the Genocide Convention was in place. In the instant case, with Sudan’s allegation that the UAE’s reservation to Article IX has undermined the treaty’s object and purpose, the decisive question remains whether the ICJ will adjudicate the matter or dismiss it due to a lack of jurisdiction. The Court will have to decide on this matter soon and hopefully clarify it once and for all.
Sources referred to:
a. 1948 Convention of the Prevention and Punishment of the Crime of Genocide.
b. Vienna Convention on the Law of Treaties, 1969.
c. ICJ Press Release No. 2025/11, 6 March 2025- Sudan institutes proceedings against the United Arab Emirates and requests the Court to indicate provisional measures–
d. Sudan, Request for the Indication of Provisional Measures, 5 March 2025.
e. Michael A. Becker, Opinio Juris, “Art. IX Reservations to the Genocide Convention Are Here To Stay: A Response to Diamond”, 14 March 2025.
f. Reuters- ‘Sudan launches case against United Arab Emirates at World Court’ by Maha El Dahan, Nafisa Eltahir and Stephanie van den Berg, 6 March 2025.
g. Yonah Diamond, Opinio Juris, “The Invalidity of Art. IX Reservations to the Genocide Convention”, 12 March 2025.
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