Brazilian reservation at the protocol to the american convention on human rights to abolish the death penalty
| Autor | Cláudia Noblat de Aguiar |
| Cargo | Mestranda em Direito pela Universidade de Utrecht, Holanda ? 'Human Rights and Criminal Justice' |
| Páginas | 51-72 |
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BRAZILIAN RESERVATION AT THE PROTOCOL TO THE AMERICAN
CONVENTION ON HUMAN RIGHTS TO ABOLISH THE DEATH
PENALTY
Cláudia Noblat de Aguiar43
ABSTRACT: The present article aims to discuss the institute of reservations,
by giving a general overview and discussing further the aspect of
reservations on human right treaties. Besides that, it analyzes the Brazilian
reservation at the Protocol to the American Convention on Human Rights
to Abolish t he Death Penalty, in this matter, tries to understand the
settings that led the country to make such reservation and how it fits in the
present environment. After going over some important international
documentation, such as United Nations Resolutions and the Rome Statute,
it concludes that this specific reservation has become obsolete.
KEYWORDS: reservation, death penalty, human rights, Rome Statute.
1. Introduction
Reservations have long been discussed in international level
being adopted in practice by the League of Nations with the
condition of unanimity acceptance of the reservation by the other
parties of the treat y. Such was the main notion of reservations until
early fifties, when the International Court of Justice was asked by
the General Assembly to give an Advisory Opinion about legal
effects of reservations to the Genocide Case. It was then that the
current notion of reservat ions begun to be built.
In this Advisory Opinion the ICJ claimed that a St ate could
be a party of a treaty even if the reservat ion had not been accepted
unanimously, as long as it did not defeat the purpose or object of
the treaty. Subsequently, this was the notion adopted by the Vienna
43 Μεστρανδα εµ ∆ιρειτο πελα Υνιϖερσιδαδε δε Υτρεχητ, Ηολανδα Ηυµαν
Ριγητσ ανδ Χριµιναλ ϑυστιχε.
52
Convention on Law of Treaties in 1969.
Regarding Human Right Treaties, even though the majority
opinion accepts the reservation in such treaties, t here are strong
dissident opinions which argue that a reservation in this kind of
treaties would per se be contrary to the object and purpose of such
treaty. This essay will take intoaccount all the developing theory in
reservation and try to apply it, and its dissident opinions in the
practical case of the Brazilian Reservation on the American Protocol
on Human Rights to Abolish the Death Penalty.
The Death Penalty has long been a subject of discussion in
the Human Rights field. Since the Universal Declaration of Human
Rights, the international community has settled in its majority t hat
such penalty is a grave violat ion of Human Rights.
The American Protocol on Human Rights to Abolish the
Death Penalty was approved by the Organization of American States
General Assembly in June 1990, just one year after the Second
Optional Protocol on the Covenant on Civil and Political Rights that
aimed for the abolition of death penalty in the universal system. The
main purpose of the American Protocol was t o extend such
abolition to at the regional system since many of our States have
not, to the present date, signed or ratified the Second Protocol.
Although it is established also as an optional protocol, by bringing it
up the death penalty issue at the OAS, the Protocol encourages the
American countries to debate further on such issue and to state
their nat ional position towards it.
In this environment, t he Brazilian State has always made
clear that it was against the death penalty by signing and ratifying
the Protocol, even though it has made a reservat ion permitted by
the protocol, which states that in time of war the death penalty can
be established according to international law.
Besides both treaties mentioned above, and the
international customary law, which is against death penalty, it also
has to be considerate the Rome Statute, which established the
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