ASIL ICC Task Force Report Now Available

by Duncan Hollis

Back in February, I noted that the ASIL Task Force on U.S. Policy Toward the International Criminal Court had adopted a set of recommendations for how the Obama Administration could take steps to engage with the ICC in new, more positive ways than the preceding Bush Administration.  As part of the ASIL Conference last week, the Task Force released a Report to support their earlier Recommendations (full disclosure–I was asked for, and provided advice to, the Task Force, on the legal effects of John Bolton’s 2002 letter indicating the United States did not intend to ratify the Rome Statute).  

Here’s the quick take-away version from the Report’s Executive Summary:

The Court is in the early stage of development, now convening its first trial. And yet, it has an emerging track record of engagement in situations of great interest to the United States. In 2010, the Assembly of States Parties to the Rome Statute will convene its first Review Conference to consider the future direction of the Court. Among the issues to be addressed at the Review Conference are defining the crime of aggression and setting out the conditions under which the Court shall exercise jurisdiction over allegations of aggression—steps that inevitably implicate U.S. interests. The time is ripe for a review of U.S. policy toward the Court, to assess its performance to date and identify ways in which the United States might, in its own interests as well as those of the international community, more effectively contribute to the development of the Court.

This Task Force has undertaken such a review, hearing from more than a dozen experts and officials representing a variety of perspectives on the ICC. Our conclusion—detailed in the recommendations in this report—is that the United States should announce a policy of positive engagement with the Court, and that this policy should be reflected in concrete support for the Court’s efforts and the elimination of legal and other obstacles to such support. The Task Force does not recommend U.S. ratification of the Rome Statute at this time. But it urges engagement with the ICC and the Assembly of States Parties in a manner that enables the United States to help further shape the Court into an effective accountability mechanism. The Task Force believes that such engagement will also facilitate future consideration of whether the United States should join the Court.

The Report goes on to talk about a host of ICC-related issues, including the Rome Statute’s consistency with other rules of international law, the legal effects of the 2002 Bolton letter on U.S. obligations under the “object and purpose” rule found in Article 18 of the Vienna Convention on the Law of Treaties, the constraints of the American Service-Members’ Protection Act of 2002, Article 98 Agreements, complimentarity, as well as U.S. constitutional questions relating to due process and the construction of domestic courts. For those interested in the ICC, and more particularly, the future of U.S. relations with the Court, there’s a lot to digest here.  Given the expertise and bipartisan nature of the Task Force, I’ll be interested to see how the State Department responds to the Report and its recommendations.

http://opiniojuris.org/2009/04/01/asil-icc-task-force-report-now-available/

7 Responses

  1. I am mystified by the implication that Ambassador Bolton’s letter might have a legal effect on “U.S. obligations under …  the Vienna Convention”.

    The United States has no obligation under a treaty unless the treaty has been ratified in accordance with the Constitution.

    The United States has not ratified either the Vienna Convention or the Rome Statute. Consequently, it has no obligations under either, whatever their “object and purpose” may be.

  2. I haven’t read the report yet and thus can’t comment on the reasoning behind invoking Art. 18 VCLT but I wonder if not the obligation not to defeat the object&purpose of a treaty prior to its entry into force reflects customary international law hence making it irrelevant if the US has ratified the VCLT…

  3. International Lawyer,

    US would have obligations under the VCLT in the period between the signing and unsigning of the treaty:

     Article 18
          Obligation not to defeat the object and purpose of a treaty prior to its entry into force
    A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
      (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
     (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
    It is to be noted that most of the VCLT provisions are of a customary nature anyway, even if the US have never ratified it.

  4. International Lawyer,

    US would have obligations under the VCLT in the period between the signing and unsigning of the treaty:

     Article 18
          Obligation not to defeat the object and purpose of a treaty prior to its entry into force
    A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
      (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
     (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
    It is to be noted that most of the VCLT provisions are of a customary nature anyway, even if the US have never ratified it.
    OH! You’re my new favorite blogger fyi

  5. Just to clarify — I used the phrase “found in Article 18″ to reflect the fact that even though the VCLT itself does not bind the United States, it can (and in this case likely does) encapsulate the relevant U.S. customary international law obligations associated with treaty signature.   Indeed, the State Department has repeatedly acknowledged that Article 18 is customary international law. 

  6. The US would have obligations under Article 18 of the Vienna Convention only if the Convention had been ratified by the Senate. It is not been ratified, and it is contrary to the US Constitution.

    Whether it is a custom is irrelevant, as are assertions by the executive that it may make treaties without the Advice and Consent of the Senate.

    It is contrary to the Constitution, which (with “the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States”) is “the supreme Law of the Land”.

  7. International Lawyer:

    This is one of those circumstances in which it’s important to distinguish between the possibility that the US assumes international obligations by virtue of its signature (the Article 18/CIL point) and your constitutional concerns.  I think you would also have pretty substantial misgivings about executive agreements, congressional-executive agreements, and customary international law in general.

    If you are interested in this narrower topic, Curt Bradley wrote a piece in the HJIL that discussed the constitutional questions posed by the so-called interim obligation, and there are some student notes on the topic too, one in Wash. U. L. Rev. and another in U. Chi. L. Rev.  I don’t have the precise cites at hand, but I’m pretty sure these and others touch on some of your concerns.

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