'Quid' not 'quantum': a comment on 'How the International Criminal Court threatens treaty norms'.

• Author: O'Keefe, Roger
• Position: Article by Michael A. Newton in this issue, p. 371

TABLE OF CONTENTS I. INTRODUCTION II. THE ROME STATUTE'S DELICATE BALANCE III. A STATE'S "JURISDICTION" AND THE DELEGATION OF ITS EXERCISE TO THE COURT . IV. CONCLUSION I. INTRODUCTION

It is hard not to sympathize with the thrust of Michael A. Newton's impressive article "How the International Criminal Court Threatens Treaty Norms." A friend of the ICC keen to see it thrive, Newton offers some home truths with a view to correcting what he suggests is a damaging tendency towards jurisdictional overreach on the part of the Office of the Prosecutor (OTP) and, through the OTP, the Court. Many readers may find themselves nodding along to the gist of the argument, which puts its finger on something in claiming that the Court is insufficiently sensitive to the finely wrought framework of jurisdictional allocation reflected in the Rome Statute. Sure, one may wonder whether the blame lies solely or even chiefly on the OTP. The Al Bashir debacle, (1) for one, is at least as much the fault of the Pre-Trial Chambers and Registrar as of the Prosecutor, although it is true that this tussle involves the Court's competence to proceed with a request for surrender, rather than to entertain proceedings; and when it comes to Newton's examples of the situations in Afghanistan and Palestine, the Prosecutor is yet to proceed beyond preliminary examination. One may equally wish to reflect on some of the article's more detailed reasoning. But there is evident sense in Newton's call for prosecutorial respect for the terms of States Parties' conferral of power on the Court, in particular as it relates to their other treaty arrangements.

Where the reader may differ from the approach taken in the article, even if not necessarily with its practical upshot in specific circumstances, is in its analysis of the jurisdiction conferred by States Parties on the Court in respect of their territory. The maxim nemo plus iuris transferre potest quam ipse habet emphasized by Newton cannot be gainsaid. The question, however, is less quantum iuris, or how much right a state possesses and passes on, than quid ius or quia iura, or which right or rights. Jurisdiction is not a solid block of "right." It is a subtle layering of different rights, whose existence, moreover, must be distinguished from their exercise. While a state may undertake by treaty to refrain from exercising one or more of these rights, it still retains them and is competent to confer them in their plenitude on the ICC. True, the state will be obliged to the extent of its other treaty undertaking to refrain from the exercise of these rights through the medium of the Court. But Article 98 of the Rome Statute provides a purpose-built mechanism to prevent the Court from obliging a State Party to act in breach of a treaty undertaking not to exercise one or more of its jurisdictional rights. In short, the Court may not ride roughshod over a variety of other treaty-based jurisdictional arrangements agreed by States Parties. The Court remains competent, however, to entertain proceedings in such cases, whatever this may mean for breach by the state of its other treaties.

2. THE ROME STATUTE'S DELICATE BALANCE

   Mike Newton's article performs a considerable service in reminding the reader of some incontrovertible tenets of the law of international organizations (loosely so called in the case of an organ like the ICC) and of the law of treaties. First, the ICC is competent to exercise only that power vested in it by the States Parties to its Statute. In turn, the States Parties are not competent to transfer to the Court a power that they do not possess. Nemo plus iuris transferre potest quam ipse habet, as Cicero may or may not have put it. Secondly, a treaty may not lawfully diminish the international legal rights of states not party to it (2)--that is, of what the law of treaties refers to as "third states." (3) States Parties to an agreement that infringes the rights under international law of a third state commit an internationally wrongful act against that state. Thirdly, while specific treaty provisions, the customary international rules of treaty interpretation, and canons of treaty application such as the lex specialis and lex posterior maxims may go some way to avoiding conflict between a state's multiple treaty obligations, customary international law contains no legal means of deciding which of two unavoidably conflicting treaty obligations is to take priority. A state that becomes party to more than one treaty on the same subject may render itself the servant of two unrelenting masters.

   More to the point, Newton is probably right to suggest that the OTP has shown less care than advisable towards the delicate balance struck in the Rome Statute between States Parties' obligations in relation to the ICC and their jurisdictional obligations to third states. The incaution, however, has arguably related more to the Court's competence to proceed with requests for surrender than to its competence to exercise jurisdiction over given persons and to states' customary obligations under the law of jurisdictional immunities than to their jurisdictional arrangements under treaties. But be that as it may. There is, one cannot help feel, a large grain of truth in Newton's argument that the Prosecutor would do well to be more solicitous of the terms of the delegation by States Parties of power on the Court.

3. A STATE'S "JURISDICTION" AND THE DELEGATION OF ITS EXERCISE TO THE COURT

   Where one might beg to differ with Newton is in his analysis of the jurisdiction in respect of their territory conferred by States Parties on the Court. There is no doubting the maxim nemo plus iuris transferre potest quam...