On Serbia’s Legal Interest in Article IX of the Genocide Convention – Indian Blog of International Law

Sarthak Sahoo

Introduction

On 25 April 2025, the Republic of Serbia filed an intervention in Prevention and Punishment of Genocide (Sudan v. United Arab Emirates) (‘Genocide’). This intervention has been filed under Article 63 of the Statute of the ICJ (‘Statute’). Under that Article, whenever a treaty is interpreted by the International Court of Justice (‘Court’), all States parties to it are notified of this fact, should they choose to intervene in the case with respect to the construction of the treaty. As a corollary, whatever construction the Court affords to the construction is binding on all such parties.

In Genocide, the Court is seized with allegations of genocide against the United Arab Emirates (‘UAE’) under the 1951 Genocide Convention (‘Convention’). Some authors find it possible that the Court remove the case from its general list at the provisional measures stage itself. This is because UAE has lodged a reservation to Article IX of the Convention, which is the compromissory clause under which Sudan has invoked the Court’s jurisdiction.

One of Sudan’s arguments to escape this hurdle has been that a reservation to article IX is incompatible with the object and purpose of the 1951 Convention. See Verbatim Record 2025/1 (paras 28-46). This argument arises from the longstanding customary rule that a reservation against the object and purpose of a treaty would not be permitted. See eg Article 20(c) of the VCLT.

Interestingly, the Court has previously declared that reservations to Article IX are not incompatible with the Convention (see Prevention of Genocide p. 22; see also Armed Activities para 67).  Sudan is effectively asking the Court to rule differently in this case. Readers may note that at the time of writing, the Court has reserved judgment on the indication of provisional measures.

The Serbian Intervention

It is in this context that we may locate Serbia’s intervention application. Article 63 leads with the implicature that every State party to a treaty has a legal interest in its construction, and thus must have standing to make submissions before the Court.

For Serbia, it is concerned with the construction of Article IX. This is because it has itself expressed a reservation to Article IX of the Convention, which has been in force since March of 2001. Since the Court will (hypothetically) redecide whether a reservation to Article IX is compatible with its object and purpose or not, Serbia would want to argue that the Court maintain its current position; that a State may continue to reserve Article IX of the Convention. This makes political sense too, as Serbia’s history in its Yugoslav years has subjected it to a variety of Article IX interpretative issues (see Prevention and Punishment of Genocide (Crotia v. Serbia) Prelim. Obj. paras 94, 96, 117).

Legally, Serbia’s position makes intuitive sense as well. If the Court is determining whether a reservation to a treaty provision has the effect of vitiating the treaty’s object and purpose altogether, it is difficult to imagine a class of States may be more interested than others who have also reserved that provision.

The Ukraine Admissibility Order

However, it is likely that the Court will have to hold that Serbia’s application is inadmissible in the instant proceedings. This is because of its 2023 Order in the Prevention and Punishment of Genocide (Ukraine v. Russian Federation).

In that case, thirty three State parties to the 1951 Convention submitted intervention applications under Article 63 of the Statute (See Paragraph 13 et seq. of the Order). All but one intervention was found admissible. The sole intervention found inadmissible belonged to the United States of America (See Operative Paragraph 2 of the Dispositif). The Russian Federation argued that the United States could not make submissions to the construction of Article IX of the 1951 Convention as it had itself reserved that Article so as to exclude its legal effect. The Court agreed with this view, stating that:

95. The Court considers that the United States may not intervene in relation to the construction of Article IX of the Convention while it is not bound by that provision. The reservation of the United States excludes the legal effect of that Article in relation to that State. Consequently, the legal interest that the United States is presumed to have in the construction of the Genocide Convention, as a party to that instrument, does not exist in respect of Article IX. Moreover, by declaring that it “recognizes that, by availing itself of the right to intervene under Article 63 of the Statute, the construction of the Convention given by the judgment in this case will be equally binding upon [it]”, the United States cannot overcome the fact that it has entered a reservation to Article IX of the Convention, which is thus not binding upon it.

96. In the Court’s view, the declaration of intervention of the United States, in so far as it concerns the construction of Article IX, does not fall within the scope of Article 63 of the Statute, which permits States parties to a convention to intervene in relation to the construction of any of its provisions in question before the Court, provided that they are bound by the provision in question. Therefore, when a State seeks to intervene under Article 63 but is not bound by a provision of the convention due to a reservation, its declaration under Article 63 cannot be found admissible in respect of the construction of that provision. Thus, the Court finds that the declaration of the United States is inadmissible in so far as it concerns Article IX of the Genocide Convention. [emphases mine]

Here, the Court implicitly found a reciprocity obligation in Article 63. Merely because the United States was a party to the Convention did not mean that it had a legal interest ipso facto, but rather itslegal interest was vitiated by its reservation. Thus, it could no longer make submissions to the reserved provision’s construction.

The Court’s reasoning has been criticised for being contrary to the text of Article 63, which does not present such a restriction. Rather, it appears to have been an elevated extrapolation from scholarship that analogises them to Article 62 interventions, which do in turn require the demonstration of a legal interest. The Article reads as follows:

Article 63

1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it. [emphases mine]

Furthermore, the Court might have been too vague with the effects ofArticle 63. The question of whether a State party is bound by a provision is fundamentally distinct from whether it is bound by its construction. If the United States’ intervention were admissible, it would remain bound by the construction afforded to Article IX by the Court. The fact that the United States elected to reserve the provision itself operates on a different legal plane, and does not affect its obligations.

The Serbia Redux

Notwithstanding the merits of these arguments, the biggest faultline in the Court’s 2023 Order is now exposed by Serbia’s application. Per the Order, the fact that Serbia has expressed a reservation to Article IX of the 1951 Convention would make its Article 63 intervention inadmissible. The 2023 Order assumed wrongly that merely because a State party reserves a provision does not mean its construction is irrelevant to it. As Serbia’s case demonstrates, it has a patent legal interest in its construction of Article IX, for the Court’s judgment may decide the validity of Serbia’s reservations for future proceedings as well.

It is plausible that the Court engages in formal gymnastics to admit Serbia’s application, while holding the line on its 2023 Order. However, the more productive (but unlikely) route would be to hold that Article 63 interventions are ipso facto demonstrative ofinterest, and would not warrant engagement with the question of whether the intervenors have reserved the provision or not.