Riserve

A.G. 1950: Richiesta parere alla CIGRichiesta in relazione alla Convenzione ONU sul genocidio 1948Question I:Can the reserving State be regarded as being a party to theConvention while still maintaining its reservation if thereservation is objected to by one or more of the parties tothe Convention but not by others ?

Richiesta parere

Question II:If the answer to Question 1 is in the affirmative, what is theeffect 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 theintegrity of the convention as adopted, a notion which in its traditionalconcept involved the proposition that no reservation wasvalid unless it was accepted by all the contracting parties withoutexception, as would have been the case if it had been stated duringthe negotiations.

Particolare natura della Convenzione sul genocidioHowever, 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 contractingStates do not have any interests of their own ; they merely have, one and all, a common interest, namely, the accomplishmentof 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 limitboth the freedom of making reservations and that of objecting tothem. It follows that it is the compatibility of a reservation withthe object and purpose of the Convention that must furnish thecriterion for the attitude of a State in making the reservationon accession as well as for the appraisal by a State in objectingto 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 reservationis incompatible with the object and purpose of the Convention,will nevertheless object to it, but that an understandingbetween that State and the reserving State will have the effectthat the Convention will enter into force between them, exceptfor 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 treaty1. 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 controllo4. 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.