Tuesday, 10 August 2010

Territorial Declarations and the Rome Statute

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…’
 On 19 May 2010, Argentina deposited the following declaration:
[The Argentine Government refers] to the attempt to extend the application of the Rome Statute to the Islas Malvinas, Georgias del Sur and Sandwich del Sur on the part of the United Kingdom of Great Britain and Northern Ireland dated 11 March 2010.

       The Argentine Government recalls that the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime areas are an integral part of the Argentine national territory and are illegally occupied by the United Kingdom of Great Britain and Northern Ireland, being the subject of a sovereignty dispute between both countries which is recognized by several international organizations.

       The General Assembly of the United Nations adopted resolutions 2065 (XX), 316[0] (XXVIII), 31/49, 37/9, 38/12, 39/6, 40/21, 41/40, 42/19 and 43/25, in which the sovereignty dispute referred to as the “Question of the Malvinas Islands” is recognized and the Governments of the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland are urged to resume negotiations in order to find as soon as possible a peaceful and lasting solution to the dispute.  Concurrently, the Special Committee on Decolonization of the United Nations has repeatedly affirmed this view.  Also, the General Assembly of the Organization of American States adopted, on 4 June 2009, a new pronouncement, in similar terms, on the question.

       Therefore, the Argentine Government objects and rejects the British attempt to extend the application of the Rome Statute of the International Criminal Court to the Islas Malvinas.

       The Argentine Government reaffirms its legitimate sovereign rights over the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime areas.

       The Argentine Government requests the Secretary-General that this note and its English text be notified to the States Parties and Contracting States to the Rome Statute of the International Criminal Court.

There is no precise provision in the Rome Statute allowing for States to extend the scope of the treaty to territories ‘for whose international relations they are responsible’. It is a concept that is not contemplated by the Statute. The Statute provides that a State that ratifies or accedes to the treaty confers jurisdiction on the Court with respect to its ‘territory’ (see art. 12(2)(a)). For example, when it ratified the Statute, Cyprus gave jurisdiction over its ‘territory’ which is the island of Cyprus. That means that the northern part of the island, which has been occupied by Turkey since 1974, is also within the jurisdiction of the Court. Depending upon the legal status of the two ‘sovereign base areas’ within Cyprus, the ratification also extended the Statute to them as well. It is a consequence of the fact that the ‘sovereign base areas’ are part of the ‘territory’ of Cyprus.
And what of the Malvinas/Falkland Islands? The declaration of Argentina is not clear on the subject, but shouldn’t Argentina take the position that the islands were already subject to the jurisdiction of the Court from the moment that Argentina ratified the Statute (because Argentina ratified in 2001, the Statute is in force for Argentina as of 1 July 2002)?
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?
These territorial issues merit further study. They are not without relevance to the simmering issue of the Palestinian declaration pursuant to article 12(3), which is still being considered by the Office of the Prosecutor. They also seem to be pertinent to similar debates within the framework of human rights treaties about the territorial scope of obligations. This has arisen with respect to applications before the European Court of Human Rights directed against the United Kingdom with respect to its conduct in Iraq, and with respect to the obligations of the United States under the International Covenant on Civil and Political Rights with respect to Guantanamo in Cuba. The issue of territorial application of the Rome Statute would make a fine doctoral project.

Marko Milanovic has commented on this on the EJIL blog.


Giorgi said...

It likes situation in Georgia, where abkhazia and south osetia are to be considered as essential parts of the country and prosecutor is exercising jurisdiction by conducting preliminary examination.

Victor Tsilonis said...

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 and should not require any further 'elucidation'.