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Home EJIL Analysis Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression

Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression

Published on November 27, 2014        Author: 

Sometimes, it seems that it is the reality of international law that provides one with questions of treaty law that probably even a sophisticated international law professor would have had problems inventing.

On November 19, 2014, San Marino became the 19th State to have ratified the amendments to the Rome Statute on the crime of aggression. At the same time, Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in identical terms provide that “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties” and further provided that under Art. 15bis, para. 3 and Art. 15ter, para. 3 respectively, a decision has been adopted by the Assembly of States Parties to activate the Court’s jurisdiction concerning the crime of aggression, such decision to be taken at the earliest in 2017.

What is worth noting, however, is that by now there are also eleven States, namely Cabo Verde, Côte d’Ivoire, Grenada, Guatemala, the Maldives, the Phillipines, St. Lucia, Tunisia, Vanuatu, Moldova and the Seychelles that have ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted. All of those States, when ratifying the post-Kampala Rome Statute, did so without expressing an intention not to be bound by the treaty as amended. This raises the intriguing question whether 19 + 11 equal 30, i.e. whether these new contracting parties ought to be counted towards the quorum required, as mentioned, by Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in order for the Court to exercise its jurisdiction.

While this question might, at first glance, be perceived as a mere academic and hypothetical glass bead game, it might as early as 2017 become practically relevant provided that by then the number of ratifications of the Kampala amendment on the crime of aggression as such will not yet have reached the threshold of 30. Such situation might very well occur given that the momentum by which current contracting parties have ratified the Kampala amendment ever since its adoption in 2010 has been rather slow, amounting to less than five ratifications per year.

The question, which would then accordingly arise, is whether the then contracting parties, meeting in the Assembly of States Parties of the Rome Statute, would nevertheless be in a position to activate the Court’s jurisdiction with regard to the crime of aggression thanks to San Marino’s 19th ratification of the Kampala amendment in conjunction with the, so far, eleven post-Kampala ratifications of the Rome Statute.

In that regard it is first worth recalling that preambular paragraph 3 of RC/Res.5, adopted during the diplomatic conference and dealing with the amendments to article 8 of the Rome Statute, i.e. the inclusion of the war crime of using prohibited weapons in non-international armed conflicts specifically “[c]onfirm[ed] that, in light of the provision of article 40, paragraph 5, of the Vienna Convention on the Law of Treaties, States that subsequently become States Parties to the Statute will be allowed to decide whether to accept the amendment contained in this resolution at the time of ratification, acceptance or approval of, or accession to the Statute”. At the same time, resolution RC/Res 6, dealing with the crime of aggression, and simultaneously adopted in Kampala, does not contain a parallel provision to the same effect. Yet, given that the principle underlying Art. 40, para. 5 of the Vienna Convention on the Law of Treaties, to which RC/Res.5 had made reference, has codified customary law on the matter, the very same principle also applies with regard to the amendment on the crime of aggression, the lack of any specific reference to Art. 40, para. 5 Vienna Convention on the Law of Treaties in RC/Res 6 notwithstanding.

If that were true, this then however raises the further question, whether those States that have ratified the Rome Statute after the adoption of the amendment on the crime of aggression at the Kampala conference have, to use the formula contained in Art. 40, para. 5 of the Vienna Convention on the Law of Treaties, “become parties to the treaty after the entry into force of the amending agreement”.

Yet, for one, the enabling resolution adopted in Kampala, RC/Res 6 itself provides that the amendment on the crime of aggression “shall enter into force in accordance with article 121, paragraph 5”, i.e. by virtue of the very first ratification of the amendment, albeit for the States concerned only. Besides, Art. 15bis/ter, paragraph 2 both provide, as shown, that the Court will, subject to a further decision of the contracting parties, be able to exercise its jurisdiction once more than 30 States have “ratified or accepted” the amendment. This alternative wording implies that there are other ways of becoming bound by the amendment, than solely by way of ratification. Accordingly, it seems that States that have ratified the Rome Statute after the adoption of the Kampala amendment on the crime of aggression ought to be counted towards the quorum laid down in Art. 15bis/ter, paragraph 2 unless they, in line with Art. 40, para. 5 of the Vienna Convention on the Law of Treaties, have expressed a different intention. This result also stands in line with the object and purpose of Art. 15bis/ter, paragraph 2 of the Rome Statute, namely to only provide for the entry into force of the amendment provided once a sufficient high number of States have expressed their consent, one way or the other, to be bound by the amendment.

Accordingly, it indeed seems to be true that 19 + 11 equal 30 and that, by the same token, the Kampala amendment to the Rome Statute on the crime of aggression has, for good or for bad, now come a significant step closer to its entry into force – and with it the complex legal questions, to say the least, raised by the way the Rome Statute was amended at the first place.

At the same time, it is somewhat telling and, provided one shares the views taken here, misleading, that the Press Communiqué of the ICC distributed on the occasion of San Marino’s ratification of the amendment on the crime of aggression states that “[t]he Court may exercise jurisdiction over the crime of aggression once thirty States Parties have ratified the amendments” instead of using the more precise ‘ratified or accepted’ formula used in Art. 15bis/ter, para. 2.

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5 Responses

  1. Sancho

    Interesting post. However, if States Parties nevertheless continue to insist that 30 States parties need to ratify the amendments, then could it not be said that this modifies the otherwise ordinary meaning of the text consistent with Article 31(3)(b) of the Vienna Convention on the Law of Treaties? In other words, through the practice of insisting on 30 ratifications States parties have in effect altered the meaning of “ratified or accepted” to simply “ratified”?

  2. Bruce Broomhall

    Kampala did much to add to the confusion around the Rome Statute’s already confused amendment procedures. Professor Zimmermann has shed some helpful light on the situation through basic treaty-law principles, notably in his JICJ article on the subject. That said, the amendment contained in RC/Res.6 has clearly not entered into force (except, at best and provisionally, “for those
    States Parties which have accepted the amendment” – art. 121(5)). That being so, art. 40(5) VCLT does not apply, and 19+11≠30. The otherwise valid question of whether the customary-law norm inscribed in VCLT 40(5) would apply to States that ratify the Statute after the aggression amendments enter into force would seem to me to be resolved, as well, by the opt-out language in 15bis(4). I am perhaps an insufficiently “sophisticated international lawyer”, but unless I am missing something, the situation seems tolerably clear.

  3. Andreas Zimmermann Andreas Zimmermann

    Dear Sancho,
    dear Bruce,

    thanks for your comments to my post.

    I agree that the States parties could by way of subsequent State practice take a different position as the one I have taken.

    I am afraid that I have to disagree, however, with the claim made by Bruce that “the amendment contained in RC/res 6 has clearly not entered into force”. Indeed, said resolution specifically makes reference to Art. 121(5) which provides that an amendment does indeed enter into force, albeit only for the States that have accepted the amendment, one year after their acceptance.

    This is confirmed by Art. 15bis/ter (2) and (3) which both only regulate the exercise of jurisdiction by the Court, but not the entry into force of the amendment as such and thus e contrario confirm that the amendment already entered into force by virtue of the very first ratification.

    Finally and obviously, I fully agree that even a State that becomes a contracting party after the amendment has entered into force may opt out under Art. 15bis (4).

  4. Dear Andreas,
    thank you for your post! A few thoughts on this from my perspective as a representative of a State Party that has already ratified the amendments (Liechtenstein):

    1.) The discussion is rather theoretical, because there is considerable momentum in the ratification process. We expect to cross the threshold of 20 ratifications by the end of the year, and to reach 30 already in the course of 2015. More info on the current status here: http://crimeofaggression.info/documents//1/Status_Report-ENG.pdf.

    2.) The phrase “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties” was meant to replicate the formulation contained in article 121(4) and 121(5), which refers to “after instrument(s) of ratification or acceptance have been deposited” . In drafting article 15 bis (2) and 15 ter (2), we omitted the reference to the deposition of instruments to be a bit more concise. In other words, by acceptance we meant “depositing an instrument of acceptance” – we thought it was clear.
    3.) That being said, the question remains whether a State that becomes party to the Rome Statute today thereby also ratifies or accepts the amendments. I agree that in principle article 40(5) VCLT should apply to the Kampala amendments, and thus that a State that ratifies the Rome Statute should be deemed to have ratified the 2010 version, not the 1998 version, unless it expresses a different intention. Alas, this is not the practice of the UN Office of Legal Affairs, which takes the position that new parties to the Rome Statute must explicitly ratify the amendments, otherwise they are deemed party to the 1998 version. One only has to look at the relevant depositary notifications, which refer to the 1998 Rome Statute, e.g. here in case of Cote d’Ivoire: https://treaties.un.org/doc/Publication/CN/2013/CN.150.2013-Eng.pdf. This practice relates to amendments that have not yet entered into force for ALL States Parties to a treaty, and is not specific to the Rome Statute and its amendments.
    4.) Indeed, the amendments have entered into force for the States Parties that have ratified them. This is also confirmed by the respective depositary notifications, e.g. this one (for Liechtenstein): https://treaties.un.org/doc/Publication/CN/2012/CN.249.2012-Eng.pdf (see the last sentence). The provisions requiring 30 ratifications and a separate decision by States Parties are about “activating” the Court’s jurisdiction, not about entry into force of the amendments as such.

  5. M.K.Raao

    Dear friends: At the outset I would like to compliment you all for your contributions. As an outsider, I may be allowed to join & think that perhaps for the 11 countries, esp., those which became parties soon after Kampala, the Rome Statute was just Rome, rather than Rome + Kampala. Mere adoption of amendments did not (&would not have) materially change the status; it would become Rome plus only upon (that time uncertain) amendments become effective, which eventually made subject to additional future acceptance/ agreement & conditional. Such uncertainty & conditionality was unique. For those which might have initiated the process to join the Rome, Kampala was (& even now) non-existent. They (& their silence) could not be assumed to be acceptance of Kampala; this is notwithstanding assertion of existence a customary rule. And now having become party to Rome, they are neither prevented from (nor compelled to) accepting the Kampala amends.