Marko Milanovic on Understandings
Marko posted the following long response to my previous post on understandings. I’m promoting it to the main page to make sure everyone reads it.
Thanks so much for your post. Not only is this issue fascinating in its own right, there are also several fundamental, more conceptual questions here that sort of poke their head through. Let me try to respond:
(1) First, the word ‘binding’ that I used in my previous comment was inappropriate, or at the very least misleading. I didn’t mean to say that the understandings were themselves binding as a source of applicable law. Rather, they are relevant considerations for the interpretation of the amendments, which are binding. In other words, an understanding of this type is not itself ‘law’, but it is something that helps us see what the law means. They are ‘binding’ on the Court itself to the extent that the process of interpretation makes them such, not because they constitute applicable law. And because they are not ‘law’, they are neither valid nor invalid, but just constitute the agreement of states on how a particular text, which they adopted, is to be interpreted.
This brings me to two fundamental points: how does one conceptualize the Statute vis-a-vis general international law; and how does one conceptualize the process of interpreting the Statute.
(2) In your response to my comment in the previous thread, you said that the Rome Statute is a ’self-enclosed system,’ and that it could not be amended by understandings. I do agree on the amendment point – but note the philosophical or ideological position that you take with regard to the Statute, that it is ’self-enclosed.’ I myself do not consider it such. Rather, my own ideological position is that it forms a part of a reasonably coherent system of international law, and that the rules of that system apply to it as well, both within and without. This is also, I think, how states see it.
But however you look at it, the basic ‘rule’ about interpreting the Statute (or indeed any legal instrument, domestic or international) must be external to it, because one would first need to interpret the Statute to see what that rule was, which would logically be a circular operation. Similarly, it is entirely circular for a treaty such as the Vienna Convention on the Law of Treaties to contain a ‘rule’ on how treaties are to be interpreted, when the VCLT itself has to be interpreted for us to find out what the rule of interpretation is.
Thus, the Statute could never be entirely self-contained, as the basic ‘rule’ about interpreting it would necessarily have to be prior to it. (Similarly, to distinguish between law and non-law we necessarily need to look for a criterion outside the law). But again, to my mind, the Statute is not self-contained. The methodology of hermeneutics aside, I doubt that the Court itself will disagree that Arts 31-32 VCLT sets out the appropriate framework for interpreting the Statute. (And isn’t this framework a part of the ‘rules and principles of international law’ per Art. 21(b) of the Statute? But again you see the circularity problem.)
(3) If we are within that framework, then the understandings become a part of the ‘context’ that the Court has to take into account when interpreting the amendments. Again, that does not mean that they are themselves formally binding – apologies again for using that word – but that they must be taken into account in the process of interpretation (unlike, for example, the travaux, to which the Court might or might not have recourse).
Thus, to use your example, if we interpret the words ‘manifest violation of the Charter’, that process can lead us to several possible results. The understandings come in by favouring one of those results, by stipulating that all three components of character, gravity and scale have to be taken into account. (But are, say, two of them enough, as the final clause would imply when saying that one is not enough?).
Again, for practical purposes, it is very unlikely that the Court will depart from the understandings, unless they directly contradict the text of the Statute or its object and purpose. At least prima facie, I don’t think they do.
(4) Finally, on you amendment point – again, the word ‘binding’ was misleading on my part. And again, the understandings are unlike the amendments not law themselves. They are an agreement between states as to how that law is to be interpreted. And if the states parties adopted subsequent understandings say with respect to Arts. 7 or 8 of the Statute, the Court would have to take them into account in its process of interpretation, but they would not themselves be amendments, nor could they override the clear text of the treaty.
On your broader point – could the states parties have amended the Statute even before the deadline set out in Art. 121, had they agreed to do so – I would simply say yes! But they would all have had to agree on that. They could have even terminated the Rome Statute altogether if they wanted to. Art. 121 would not have been irrelevant, but within the consensualist paradigm of treaty-making it is axiomatic that a prior agreement cannot bind them from reaching a new one, if all of the parties are the same. Just as, for example, in the Westminster system Parliament can’t pass a law preventing a future Parliament from amending it, or requiring a qualified majority, or what have you. Rather, it could, but it would simply be ineffective. You would have to change the paradigm itself, the extra-legal criterion which tells you what is law, and what isn’t, in order to do that.