CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION

treaty

. KevinHeller also considers whether the Understandings could be an amendment

of the Rome Statute

and quite logically finds that they cannot.

Any of these categories need to be discussed in order to find out the legal status

of the Understandings (i.e. to find out which one they fit in).

3.1 Amendments to the treaty

The Understandings do not actually seem to amend anything.

Though the

Understandings attempt to change the interpretation of the Statute (Definition),

there is no doubt that they are not an amendment to the treaty. The Rome Statute

requires a specific procedure for adoption, ratification / acceptance of amendments,

and the Understandings do not fit in; resolution RC/Res. 6 only requires annex I to be

ratified, not the Understandings, and so they cannot be considered as amendments.

For similar reasons, they also do not amend any other relevant document, such as

those mentioned in article 21 RC.

3.2 Article 31 (2) VCLT

There might of course be a question of whether VCLT requires this kind of agreement

(those made together with the treaty) to be concluded in connection with the treaty only

(the Rome Statute),

the amendments to the treaty as well (annex I of the resolution

RC/Res. 6). To conclude that a primary means of interpretation under art. 31(2)

VCLT can only be related to the original text of the treaty would, however, lead to

illogical results. An amendment to a treaty (when successfully in force) is a part of the

treaty, even though it was adopted as an amendment.

Anyway, the Understandings do not fit within the category of agreements

between

all the parties

relating to the treaty under art. 31 (2) (a) VCLT simply because it

is not an agreement between all the parties.

They were not all present when the

Understandings were adopted. McDougall argues that it is not possible to interpret

the term

between all the parties

restrictively, because they are not yet parties at the time

of adopting of an interpretative agreement because the interpreted treaty has not yet

been ratified by them (the interpretative agreement is being made together with it).

Though I agree with her on this point, I see stronger logic in interpreting the term

“all the parties” as encompassing all future parties rather than all those present at the

conference. It would definitely not make sense in relation to interpretative agreements

HELLER, K. J. The Uncertain Legal Status of the Aggression Understandings, p. 2.

HELLER, K. J. The Uncertain Legal Status of the Aggression Understandings, p. 6.

Similarly argued by MCDOUGALL, Carrie. The Crime of Aggression under the Rome Statute of the

International Criminal Court, p. 115.

HELLER, K. J. The Uncertain Legal Status of the Aggression Understandings, p. 9.

MCDOUGALL, Carrie. The Crime of Aggression under the Rome Statute of the International

Criminal Court, pp. 115-116.