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Home EJIL Analysis The Territorial Scope of the Rome Statute

The Territorial Scope of the Rome Statute

Published on August 11, 2010        Author: 

On his blog, Bill Schabas raises a fascinating issue regarding the territorial scope of application of the Rome Statute of the ICC:

On 11 March 2010, the United Kingdom informed the Secretary-General that it wished that its ratification of the Rome Statute of the International Criminal Court ‘be extended to the following territories for whose international relations the United Kingdom is responsible: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands’. The declaration added that the United Kingdom ‘considers the extension of the aforesaid Statute … to take effect from the date of deposit of this notification…’

The Argentine government then quite quickly objected to the UK declaration, because of their long-standing dispute over the Falklands/Malvinas. This has been the Argentine practice for quite some time (see, e..g, the similar UK and Argentine declarations with regard to the ICCPR (at the very end of the page)). But more interesting, as Bill notes, is the issue of the territorial scope of UK obligations:

Did the United Kingdom leave anything out of its declaration? What about Diego Garcia, which is part of the Chagos Archipelago in the British Indian Ocean Territory. After expelling the inhabitants of the islands, the British then essentially handed over the base to the United States, which uses it as a kind of a fixed aircraft carrier. Is the Diego Garcia military base subject to the Rome Statute because it forms part of the ‘territory’ of the United Kingdom? Or does the recent declaration attempt to confirm that it is not subject to the jurisdiction of the Court, because the United Kingdom has not made a declaration to that effect?
Aside from jurisdiction over territory, there is also the issue of responsibility for arrest and other cooperation obligations under the Rome Statute. By its declaration, was the United Kingdom suggesting that it was not previously responsible for cooperation with the Court with respect to the territories listed in the declaration?

The formulation of the UK’s declaration certainly indicated that hitherto it considered itself bound by the Rome Statute only with respect to its metropolitan territory. But was this indeed the case? Or did the UK have all of the Rome Statute obligations conditioned by territory with regard to, say, Bermuda, from the moment of ratification? And what of the territorial jurisdiction of the ICC?

Up until the end of its empire after the Second World War the UK had a rather stringent policy of including so-called colonial clauses in the multilateral treaties to which it was a party. Thus, for example, it had the negotiating power to have such clauses included in the ECHR and the Genocide Convention. The UK was motivated in this partially by a policy desire to avoid assuming burdensome obligations for territories in which it did not want to apply them, and partially by a constitutional convention that it needed the assent of its dependencies for the extension of treaties to them. The UK’s efforts were resisted, however, in respect of other treaties, such as the ICCPR. With regard to those treaties, the UK employed the practice of filing a declaration that would specify the territories to which the the treaty would apply – as with the ICCPR, and now the Rome Statute.

(For general background on all of this (and some fantastic scholarship), see Brian Simpson’s Human Rights and the End of Empire (OUP, 2004), as well as L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, (2006) 76 BYBIL 121.)

Now, the big question is whether such declarations have any effect – and in particular, whether the UK’s declaration with regard to the Rome Statute has such an effect. What these declarations try to do is to avoid the application of Article 29 VCLT, which reads ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’

As explained by the ILC in its Draft Articles on the Law of Treaties, the ‘entire territory’ bit encompasses all territories over which a state has title, and not just its metropolitan territory. Art. 29 thus creates a rebuttable presumption that a treaty applies to all of the territories that belong to a state party.

Now, Art. 29 doesn’t explicitly deal with declarations of territorial scope as those routinely used by the UK. The Draft Articles do say, however, that:

One Government [I imagine the UK, but I haven’t checked] proposed that a second paragraph should be added to the article providing specifically that a State, which is composed of distinct autonomous parts, should have the right to declare to which of the constituent parts of the State a treaty is to apply. Under this proposal the declaration was not to be considered a reservation but a limitation of the consent to certain parts only of the State. The Commission was of the opinion that such a provision, however formulated, might raise as many problems as it would solve. It further considered that the words “unless a different intention appears from the treaty or is otherwise established” in the text now proposed give the necessary flexibility to the rule to cover all legitimate requirements in regard to the application of treaties to territory.

So what are then we to do with the UK’s declarations? First, it does not regard them as reservations, but as ‘limitations on its consent’ only to parts of its territory. But isn’t a reservation precisely a limitation on state consent? A mere interpretative declaration cannot as such have direct effect on state obligations, as this territorial declaration purports to. Second, Art. 120 of the Rome Statute explicitly forbids any reservations. Third, whatever their nature, they might reflect the UK’s intention, but they certainly do not reflect that of the other parties, which is the Art. 29 VCLT criterion. Finally, and quite oddly, unless I am mistaken from my quick skim of the UN treaty collection, the UK made the ICC declaration only some 12 years after it ratified the Statute. How can this affect the consent that it had already given? It is only if a general rule existed to the effect that states can vary the territorial scope of their obligations via declarations – but as we have seen the ILC was quite explicitly opposed to such a rule, and the instability it potentially brings seems very much undesirable, and unsupported by state practice.

Then again, Denmark also made a similar declaration with respect to the Faroe Islands and Greenland, which it later withdrew, as did the Netherlands. No state objected to such declarations in principle, which might be taken as a inference that they are permissible, and would thus serve to rebut the Art. 29 VCLT presumption. This is, in short, quite a vexing little problem – and one that I doubt the Court will ever have the opportunity to resolve.

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3 Responses

  1. Michail Vagias

    One cannot but generally agree with the comment posted. However, the problem of the overseas territories seems to be much more complicated, one that divided the ILC in its discussions in the 1960s.
    It is perhaps useful to note that the Special Rapporteur Sir Humphey Waldock made a specific proposal in his Third Report on the Law of Treaties in ILC Yearbook 1964-II that as regards overseas territories, the rule of what later became article 29 VCLT should be slightly modified, so as to read as follows;
    “in the absence of a territorial clause or other indication of a contrary intention, a treaty is presumed to apply to all the territories for which the contracting States are internationally responsible.” (ILC Yearbook 1964-II, A/CN.4/167 and Add. 1-3, at 13, para. 4).
    His proposal was rejected by the Commission (ILC Yearbook 1964-II, at 179-180, para. 4). This rejection and subsequent state practice does not seem to encourage unequivocal affirmations, particularly taking into account that it is quite difficult to transpose without qualifications the state practice and treaty provisions of one system (e.g. ECHR) to another (ICC) – not least without considering any claims of self-containment of the systems involved…
    In my view, it is up to the Court in the interpretation of article 12 of the Statute to decide what weight to afford to such ‘declarations’ – and the intricate questions raised by their over- and under-inclusiveness…The Court’s kompetenz kompetenz in this regard is decisive. Perhaps in the end of the day it is more a question of affirming British sovereignty over certain territories, rather than an issue likely to trouble the Court for the prosecution and punishment of crimes within its jurisdiction. To the extent that one remains unaware of the reasons that made necessary this declaration at the time that it was made, this issue seems to be open to speculation.

  2. Marko Milanovic Marko Milanovic

    Michail,

    Thank you for the comments. I agree entirely that this is a matter that the ICC would need to resolve – but it is unlikely that it will ever be faced with such a case.

    I disagree, however, that the issue of the territorial application of treaties to overseas or non-metropolitan territories is ‘much more complicated,’ as you say. The ILC did reject Waldock’s formulation, but only for reasons of terminology – it did not want the draft articles, and later the VCLT, to use the term ‘territories for which the contracting States are internationally responsible’, because it was evocative of the colonial clause, and thus of colonialism itself. (This is incidentally why the UK was unable to introduce colonial clauses into the non-European treaties that it was negotiating.) The ILC chose to replace Waldock’s formulation with ‘entire territory of each party’, but the two formulations mean exactly the same thing – see the ILC Draft Articles, at 213, para. 3. This later wording encompasses all overseas territories.

    In other words, when the UK becomes a party to any treaty, there is a rebuttable presumption that this treaty will apply to all of its overseas territories, e.g. Bermuda or the Caymans. That presumption can be rebutted either by explicit language in the treaty, or implicitly. Thus, practically all Council of Europe treaties (and not just the ECHR) contain a variant of the colonial clause, allowing parties to designate those territories to which they will apply, and hence overcoming the presumption in Art. 29 VCLT. (See art. d of the CoE Model Final Clauses, at http://conventions.coe.int/treaty/en/Treaties/Html/clausesfinales.htm).

    The problem with the UK’s declaration with regard to the Rome Statute is that (1) there is no language in the Statute which expressly allows it to make such a declaration, i.e. it does not have a colonial clause of any variety; and on the other hand (2) the Statute does explicitly forbid any and all reservations. The UK’s declaration hence runs head on into the Art. 29 presumption – the ILC was quite clear that there was no general rule that would allow states to vary the territorial scope of their obligations by unilateral declarations. The only argument that I can see in the UK’s favour is that the state’s parties agreed implicitly that territorial declarations would be permissible, and that this is demonstrated by the lack of any objection to the declarations filed by Denmark, the Netherlands, and the UK.

  3. It seems to me as if the UK Government cunningly attempts to establish a series of territorial issues on areas which are explicitly mentioned and thus included and areas which are not explicitly mentioned and thus excluded. However, I believe that the issue of the ICC territorial jurisdiction is particularly clear on this respect in the ICC statute and should not require any further ‘elucidation’.

    P.S. An (un)important correction: the forename of Professor Schabas is William