Analysis of the Rome Statute and its Application
Analysis of the Rome Statute
1. Application of the Rome Statute: Sierra Leone and Afghanistan
Article 126 of the Rome Statute obliges signatory states to comply with its provisions from the first day of the 60th day after its entry into force. For Sierra Leone, this was July 1, 2002, and for Afghanistan, May 1, 2003.
2. Spain’s Internal Law and the Rome Statute Negotiations
According to Article 149.1.3 of the Spanish Constitution, the State has exclusive competence in international relations. This means the central government holds the power to conduct negotiations and participate in international treaties. The executive branch has the power to initiate and decide on negotiations, excluding the regional governments and the parliament from this process. The decision-making process involves ministers and the Council of State.
3. Spain’s Procedure for Becoming a Party to the Rome Statute
Spain’s procedure for becoming a party to the Rome Statute is outlined in Article 93 of the Constitution. This procedure involves the transfer of powers to international organizations. The Rome Statute required prior authorization from both houses of parliament and approval through an organic law. The agreement falls under Article 93, as it involves the transfer of judicial powers to the International Criminal Court.
4. The Rome Statute and Article 94.2 of the Spanish Constitution
Article 94.2 of the Spanish Constitution requires the parliament to be immediately informed of the conclusion of treaties not included in Articles 93 and 94.1. Treaties that do not fall under these articles are included in Article 94.2. In these cases, the executive branch does not need prior parliamentary authorization but must inform the chambers of the treaty’s conclusion.
5. The Lack of Formal Sanction and the Incorporation of the Rome Statute
Article 62 of the Constitution states that the King manifests the State’s consent to be bound by international treaties. Although there is no specific law for this, treaties are usually ratified solemnly. The doctrine suggests that only an extreme interpretation of the constitutional requirements could invalidate a treaty due to a lack of formal sanction. The Constitutional Court has clarified that the real need is the manifestation of the State’s will, and the intervention of the parliament is not required if the treaty falls under Articles 93 and 94.1. Therefore, whether a treaty is concluded in a simplified or solemn form, the lack of formal sanction does not invalidate it. The formal ratification is not a condition for the treaty’s validity.
1. Competent State Organs for Treaty Conclusion
International treaties must be concluded by individuals with full powers, which are granted through a document issued by the Minister of Foreign Affairs on behalf of the Head of State. This document is called plenipotencia, as recognized in Article 7 of the Vienna Convention on the Law of Treaties (VCLT). The Head of State, the Head of Government, and the Minister of Foreign Affairs have the authority to act due to their office and functions.
2. Signatories vs. Ratifiers of the Rome Statute
139 states signed the Rome Statute, indicating their intention to follow the treaty’s process. However, only 108 states have ratified it. Ratification is the act of confirming the initial signature through an official instrument signed by the Head of State or the Minister of Foreign Affairs. This indicates the executive branch’s confirmation of the treaty. Accession is a single act of consent for states that did not initially sign the treaty. International practice shows that treaties can be adopted through accession, without prior signature.
3. Entry into Force of the Rome Statute for Spain and Montenegro
The Rome Statute became binding for Spain on July 1, 2002. For Montenegro, it became binding on January 1, 2007. Both states are obligated to respect the provisions of the treaty.
4. Obligations of Signatory States: Israel and the United States
By signing the Rome Statute on December 31, 2000, Israel and the United States were obligated not to frustrate the treaty’s object and purpose, according to Article 18 of the VCLT. The signature is a simplified legal act that can have different meanings. It can authenticate the text or initiate the ratification process. The signature can be subject to parliamentary control, allowing for a later confirmation by the government. If the government does not confirm the signature, the effects of the signature are retroactively nullified.
5. Withdrawal from the Rome Statute and Reservations
The question of whether a formal declaration validates a state’s decision not to ratify a treaty is not valid. Ratification is always a prior act to signing. The signature is a preliminary act of authentication, and the manifestation of consent only occurs with ratification.
6. Bilateral Agreements and the Rome Statute
If Romania, a state party to the Rome Statute, enters into a bilateral agreement with the United States, stipulating that it will return a US citizen to the US instead of handing them over to the International Criminal Court, this would be a reservation that is incompatible with the object and purpose of the treaty. Reservations can only be made at the moment a state expresses its consent to be bound by the treaty.