Vanderbilt Journal of Transnational Law


Roger O'Keefe

First Page



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--that is, of what the law of treaties refers to as "third states." 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.