Riserve

Riserve
A.G. 1950: Richiesta parere alla CIG
Richiesta in relazione alla Convenzione ONU sul genocidio 1948
Question I:
Can the reserving State be regarded as being a party to the
Convention while still maintaining its reservation if the
reservation is objected to by one or more of the parties to
the Convention but not by others ?
Richiesta parere
Question II:
If the answer to Question 1 is in the affirmative, what is the
effect of the reservation as between the reserving State and :
(a) The parties which object to the reservation ?
(b) Those which accept it ?
Parere CIG 1951
Portata del parere (p. 20)
“All three questions are expressly limited by the terms of the
Resolution of the General Assembly to the Convention on the
Prevention and Punishment of the Crime of Genocide (…)
The questions thus having a clearly defined object, the replies which
the Court is called upon to give to them are necessarily and strictly
limited to that Convention”.
Risposta al primo quesito
It is well established that in its treaty relations a State cannot be bound
without its consent, and that consequently no reservation can be
effective against any State without its agreement thereto.
It is also a generally recognized principle that a multilateral convention
is the result of an agreement freely concluded upon its clauses and that
consequently none of the contracting parties is entitled to frustrate or
impair, by means of unilateral decisions or particular agreements, the
purpose and raison d'être of the convention.
Diritto internazionale «classico»
To this principle was linked the notion of the
integrity of the convention as adopted, a notion which in its traditional
concept involved the proposition that no reservation was
valid unless it was accepted by all the contracting parties without
exception, as would have been the case if it had been stated during
the negotiations.
Particolare natura della Convenzione sul
genocidio
However, as regards the Genocide Convention, it is proper to
refer to a variety of circumstances which would lead to a more
flexible application of this principle. Among these
circumstances may be noted the clearly universal character of
the United Nations under whose auspices the Convention was
concluded, and the very wide degree of participation
envisaged by Article XI of the Convention.
Scopo della Convenzione
In such a convention the contracting
States do not have any interests of their own ;
they merely have, one and all, a common interest,
namely, the accomplishment
of those high purposes which are the raison d'être of
the convention.
Criterio dell’oggetto e dello scopo
The object and purpose of the Convention thus limit
both the freedom of making reservations and that of objecting to
them. It follows that it is the compatibility of a reservation with
the object and purpose of the Convention that must furnish the
criterion for the attitude of a State in making the reservation
on accession as well as for the appraisal by a State in objecting
to the reservation.
Risposta al secondo quesito (effetti della
riserva)
As no State can be bound by a reservation to which it
has not consented, it necessarily follows that each
State objecting to it will or will not, on the basis of its
individual appraisal within the limits of the criterion of
the object and purpose stated above, consider the
reserving State to be a party to the Convention.
Possibile una obiezione non collegata a
oggetto e scopo?
it may be that a State, whilst not claiming that a reservation
is incompatible with the object and purpose of the Convention,
will nevertheless object to it, but that an understanding
between that State and the reserving State will have the effect
that the Convention will enter into force between them, except
for the clauses affected by the reservation.
Convenzione di Vienna 1969
v. Artt. 19 ss.
Riserve USA a Convenzione genocidio
"(1) 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.
(2) 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."
Obiezione dell’Italia
The Government of the Republic of Italy objects
to the second reservation entered by the United
States of America. It creates uncertainty as to
the extent of the obligations which the
Government of the United States of America is
prepared to assume with regard to the
Convention.
Patto sui diritti civili e politici 1966
• Riserve USA
…
2) That the United States reserves the right, subject to its
Constitutional constraints, to impose capital punishment on any
person (other than a pregnant woman) duly convicted under existing or
future laws permitting the imposition of capital punishment, including
such punishment for crimes committed by persons below eighteen
years of age.
(pena di morte anche a minori di anni 18)
Obiezione dell’Italia
The Government of Italy, ..., objects to the reservation to art. 6
paragraph 5 which the United States of America included in its
instrument of ratification.
In the opinion of Italy reservations to the provisions contained in
art. 6 are not permitted, as specified in art.4, para 2, of the Covenant.
Therefore this reservation is null and void since it is
incompatible with the object and the purpose of art. 6
of the Covenant.
(art. 6 diritto alla vita. Par. 5: divieto pena capitale su minori di anni 18
e donne incinte)
Quali effetti di una riserva inammissibile?
Guide to practice on Rervations to Treaties (ILC 2011):
4.5.3 Status of the author of an invalid reservation in relation to the
treaty
1. The status of the author of an invalid reservation in relation to a
treaty depends on the intention expressed by the reserving State or
international organization on whether it intends to be bound by the
treaty without the benefit of the reservation or whether it considers
that it is not bound by the treaty.
2. Unless the author of the invalid reservation has expressed a
contrary intention or such an intention is otherwise
established, it is considered a contracting State or a
contracting organization without the benefit of the
reservation.
3. Notwithstanding paragraphs 1 and 2, the author of the
invalid reservation may express at any time its intention not
to be bound by the treaty without the benefit of the
reservation.
Esistenza di un organismo di controllo
4. If a treaty monitoring body expresses the view that
a reservation is invalid and the reserving State or
international organization intends not to be bound by
the treaty without the benefit of the reservation, it
should express its intention to that effect within a
period of twelve months from the date at which the
treaty monitoring body made its assessment.