Declarations and Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
(in particular respect to the United States)
Many of the parties that signed and ratified the Genocide Convention did so with what are referred to as "declarations and reservations." Statements of "problems" the countries found with the wording or intent of parts of the convention. Further elaborations are "understandings" where the nation explains what it understands the meaning of certain intents and wording to be. Finally, many countries voiced official objections to other nations' declarations and reservations.
Since the majority are in reference to article IX, I'll list those with notes if those countries had further declarations/reservations. After IX, VI and XII were the most often mentioned. As can be seen, several of the nations which had problems with article IX later withdrew their reservation.
The United States' "reservations and understandings" should be duly noted, not only because of the content and refusal to withdraw them despite numerous objections by other convention countries (see below) but when viewed in context of the length of time it took to ratify the convention even with those reservations and understandings.
The convention was approved for "signature and ratification or accession" in 1948. It was entered into force in 1951 after it had at least twenty signees (as stipulated in article XIII). While the US signed in 1948, it wasn't ratified until 1988. Also, by basically denying article IX, the United States is saying that the convention applies to other countries but only to itself if and when it chooses to allow itin effect trying to be both a signee of the convention and the ultimate arbiter of its expression and applicability (at least as far as the United States is concerned).
As noted by the objection by the Netherlands (below), this goes against international law:
The Statute of the Permanent Court of Justice (1945) claims within its jurisdiction "all matters specially provided for in the Charter of the United Nations or in treaties or Conventions in force" (Article 36.1.). Article 36.6 states: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court." (http://serendipity.magnet.ch/more/genocide.html)
As far as the United States is concerned, this also does not apply to itself. Further:
There simply is no other world court to decide.... The other objecting nations are simply affirming the right and necessity of the International Court of Justice as the interpreter of international treaties. By refusing to submit to the International Court of Justice's possible interpretation of the "Convention on Genocide" the United States is in effect, denying its own participation. (ibid.)
(This being hardly the first time the United States has ignored international law in deference to "foreign policy" and/or self-interestthough that goes beyond the scope of this writeup.)
Also of note is Article VI of the US Constitution which states that
and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.
Interestingly, the United States Code does have legislation concerning genocide. It uses the basic form of the convention but with minor alterations: mere "intent" (admittedly a point of contention in defining acts as genocidal) becomes "specific intent" and the "mental harm" provision (II b) becomes "permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques" (see under "Understandings" below), making it much more difficult to prosecute. The changes with "specific" and "mental harm" are enough to "mitigate" the United States' history in regard to slavery and its assimilationist policies toward the Indians, among other questionable domestic and foreign policies in the past and present. (I'll choose not to speculate whether or not this is deliberate or merely an attempt give itself more "freedom" in dealing with other nations/peoples.)
For reference, Article IX:
Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Declarations and Reservations of Article IX
(as of 11 June 2001; note these are countries that have signed/ratified the convention)
Albania (later withdrawn)
Algeria (also VI, except as an "exceptional measure")
(also stated that the ratification by Taiwan
local authorities in 1951 in the name of China was "illegal
and therefore null and void
." Upon the return of Hong Kong
, China extended the reservation/declaration to that territory)
(originally signed as Czechoslovakia
; later withdrawn)
(also understanding that under VII, extradition
can only take place in respect to "acts which are criminal under the law of both the requesting and the requested state")
(also VI: "Moroccan courts and tribunals alone have jurisdiction with respect to acts of genocide committed within the territory of the Kingdom of Morocco.")
(also: IV, VI, VII)
(originally signed as Czechoslovakia; later withdrawn)
- That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
- That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
- That the term `intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such' appearing in article II means the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.
- That the term `mental harm' in article II (b) means permanent impairment of mental faculties through drugs, torture or similar techniques.
- That the pledge to grant extradition in accordance with a state's laws and treaties in force found in article VII extends only to acts which are criminal under the laws of both the requesting and the requested state and nothing in article VI affects the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside a state.
- That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention.
- That with regard to the reference to an international penal tribunal in article VI of the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.
(also VI and VII)
Objections are almost universally in regard to other countries' "reservations" about article IX. Ten countries (Denmark, Estonia, Finland, Greece, Ireland, Mexico, the Netherlands, Norway, Sweden, and the United Kingdom) specifically addressed the United States' reservations (among those of other nations).
Some of the objections concerning the US:
"this reservation is subject to general principle of treaty interpretation according to which a party may not invoke the provisions of its internal law as justification for failure to perform a treaty."
"The Government of Ireland is unable to accept the second reservation made by the United States of America on the occasion of its ratification of the [said] Convention on the grounds that as a generally accepted rule of international law a party to an international agreement may not, by invoking the terms of its internal law, purport to override the provisions of the Agreement."
"The Government of the Kingdom of the Netherlands objects to this reservation on the ground that it creates uncertainty as to the extent of the obligations the Government of the United States of America is prepared to assume with regard to the Convention. Moreover, any failure by the United States of America to act upon the obligations contained in the Convention on the ground that such action would be prohibited by the constitution of the United States would be contrary to the generally accepted rule of international law, as laid down in article 27 of the Vienna Convention on the law of treaties (Vienna, 23 May 1969)."
(Sources: www.unhchr.ch/html/menu3/b/treaty1gen.htm, http://serendipity.magnet.ch/more/genocide.html, US Code can be found at www4.law.cornell.edu, also see Genocide Convention for the full text of the document)