Ukraine Parliament to Amend Constitution Re: the Rome Statute

by Kevin Jon Heller

As I’ve noted before, Ukraine’s Constitutional Court has held that the Ukraine cannot ratify the Rome Statute because — in the words of the ICRC — “the administration of justice is the exclusive competence of the courts and… judicial functions cannot be delegated to other bodies or officials.” According to the Coalition for the International Criminal Court (on twitter), the Rada is now considering a bill that would amend Ukraine’s constitution to make ratification possible. The text of the bill is in Ukrainian; if anyone out there would like to provide a translation (the bill is short), I’d be most appreciative:

Проект
вноситься народним депутатом України
Ю. Б. Дерев’янком
та іншими народними депутатами України

ЗАКОН УКРАЇНИ
Про внесення змін до статті 124 Конституції України

Верховна Рада України постановляє:

1. Доповнити статтю 124 Конституції України (Відомості Верховної Ради України, 1996 р., № 30, ст. 141) частиною шостою такого змісту:

“Україна може визнати юрисдикцію Міжнародного кримінального суду на умовах, передбачених Римським статутом Міжнародного кримінального суду.”

2. Цей Закон набирає чинності з дня, наступного за днем його опублікування.

Голова Верховної Ради  О. ТУРЧИНОВ
України

I’m intrigued by the fact that Ukraine’s parliament believes it has to amend the constitution in order to ratify the Rome Statute, but is free to accept the ICC’s jurisdiction on an ad hoc basis. The decision of the Constitutional Court prohibits any delegation of Ukraine’s jurisdiction to an international tribunal — which would seem to include ad hoc delegations as well as permanent delegations. But I’m obviously not an expert on Ukrainian law!

http://opiniojuris.org/2014/05/20/ukraine-parliament-amend-constitution-re-rome-statute/

9 Responses

  1. Hi Kevin,

    Based on my general Slavic background(tm), the amendment basically says this:

    ‘1. The following is inserted into Art. 124 of the Ukrainian Constitution: “Ukraine may recognize the jurisdiction of the ICC in accordance with the conditions prescribed by the Rome Statute of the ICC.”
    2. This Law will come into effect on the day of its publication.’

    So the amendment seems to address the point you raise as well, since it speaks of the recognition of ICC jurisdiction generally, rather than just the ratification of the Statute (obviously without affecting whether ad hoc acceptance would be constitutionally valid today).

  2. Yep, Marko has got the text right (a very minor correction being that the Law shall “enter into force on the day following the day of its publication”).

    I would agree with Kevin that an acceptance of the ICC’s jurisdiction on an ad hoc basis seems to be just as difficult to reconcile with Ukraine’s Constitution (as construed by the Constitutional Court)as ratification of the Rome Statute. I am not sure that there is any meaningful difference between the two under Ukrainian law. At the end of the day, one can only regret the obscure judgment of Ukraine’s Constitutional Court which did not properly address – or so it seems – the question of whether the ICC would indeed interfere with the exclusive “administration of justice in Ukraine” by Ukrainian courts.

  3. Thanks to Marko and Anton for their comments!

    Anton, does it bother you that a Serb like Marko can translate Ukrainian so well?

  4. Kevin, I wish I could translate Serbian like that. To be honest, I suspect Marko might even be better in writing judgments in Ukrainian than judges of the Constitutional Court of Ukraine (that’s not too difficult).

  5. Fascinating issue, thanks for raising this Kevin.

    The ad hoc referral, which is retrospective, also seems in tension with the purely prospective constitutional amendment.

    Indeed, since the amendment is not about “joining” the ICC, but accepting its jurisdiction, it only strengthens the case that the referral is invalid.

  6. I wonder: would the OTP/ICC really care, from a purely jurisdictional point of view, whether the referral is made in contravention of the Constitution? It may be that ratifying the ICC Statue would be unconstitutional as a matter of internal law, but certainly effective as a matter of international law. At the most such declaration/ratification in violation of the Constitution can be invalidated by Ukraine, but until then it would be legally effective.

    A Head of Government/State is considered as representing the state for the purpose of concluding treaties (Art. 7(2)(a) VCLT), as well as for the purpose of making unilateral binding declarations (Principle 4 ILC Unilateral Declarations Principles) such as the one foreseen in Art. 12(3) RS. A State’s expression of consent to be bound can be invalidated when expressed in manifest violation of ‘internal law regarding competence to conclude treaties’, including ‘fundamental laws which are not susceptible of alteration except by a special procedure of constitutional amendment and which in that way indirectly impose restrictions upon the power of the executive to conclude treaties’ (ILC Draft Articles on Law of Treaties, Commentary to Art. 46, para 1).

    It is less clear, however, whether an Art. 12(3)-declaration submitted in violation of the Constitution is susceptible to a similar invalidation. There is no equivalent article in the ILC Unilateral Declaration Principles that seeks to achieve the same result in relation to unilateral acts done in violation of internal law of fundamental importance (the two cases at footnote 945 and 946 of the Commentaries are the only mention of this problem and these cases do not show a uniform approach). The UNSG Treaty Handbook (2102) and Summary of Practice (1999) do not provide any guidance here either, unfortunately. It would be safe to assume that Art. 46 VCLT applies by analogy to unilateral acts.

    Importantly, Art. 46 VCLT concerns a relative ground for invalidity; it would not render the ad hoc declaration without legal effect ab initio. It seems to me that a declaration/ratification would remain effective if Ukraine never wishes to invalidate it, despite the fact that it is done in contravention of her Constitution.

  7. Here is a complete translation of the amendment:

    Draft
    submitted by the People’s Deputy of Ukraine
    [Yuriy Bohdanovych] Derevyanko
    and other People’s Deputies of Ukraine

    LAW OF UKRAINE

    On Amendments to Article 124 of the Constitution of Ukraine

    The Parliament of Ukraine resolves:

    1. To amend Article 124 of the Constitution of Ukraine (Verkhovna Rada of Ukraine, 1996, № 30, p. 141) part six as follows:

    “Ukraine may recognize the jurisdiction of the International Criminal Court under the conditions stipulated by the Rome Statute of the International Criminal Court.”

    2. This Act comes into force on the day following the day of its publication.

    Parliament Speaker [Oleksandr Valentynovych] TURCHYNOV
    Ukraine

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