Is the U.S. Still a Signatory to the ICC Statute? It Depends on Who You Ask

by Julian Ku

The International Criminal Court Assembly of States Parties has opened their second session in the Hague this week. The Assembly of States Parties is composed of representatives of all of the governments party to the ICC Statute, that is to say, those countries that have signed and ratified the ICC Statute.

Of course, the U.S. has famously revoked its signature to the ICC Statute. Or has it? According to the ICC’s official statement, the U.S. is a “observatory signatory.” That is, the U.S. is not a party “to the Statute but ha[s] signed either the Statute or the Final Act of the Rome Conference. . .” As such, it “may be [an] observer[] in the Assembly. Observer States are allowed to participate in the deliberations of the Assembly, but may not participate in the taking of decisions.”

Does “unsigning” even matter if the U.S. is not a party to the treaty? It might, because states that sign a treaty generally have an obligation to try to comply with the treaty until it ratifies. This obligation is one of the reasons the U.S. tried to “unsign” back in 2001. In any case, it looks like the ICC hasn’t accepted the U.S. revocation of its signature. This might or might not matter, but it is certainly a strange situation. Perhaps it represents the ICC’s wishful thinking — if they can just hold on until 2008 and President Hillary…

2 Responses

  1. Julian,
    a look into the Vienna Convention on the Law of Treaties, Article 18, solves your puzzle. “Unsigning” does not exist in international law, it is just a shortcut for ‘not promising to ratify and therefor not being bound by the obligation not to destroy object and purpose of a treaty’. The US letter of “unsigning” does not say so, but simply states what Article 18 says. By the way, another example for the US recogniztion of the customary nature of most of the Vienna Convention provisions. You cannot ‘unsign’ a treaty, but you can wipe out the practical consequences of it (sadly, in that case) …
    Best, Andreas

  2. Marko,
    That is just what the Americans want; to be able to stick their noses into other people’s business and influence the decision their way. this is pathetic somebody should teach the states some manners or get them out of the ICC. hasn’t America already done enough damage to countries that can barely protect themselves? and now they want to tear Serbia apart

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