Cross-posted from EJIL:Talk!
The speech given on Monday by John Bolton, US National Security Adviser, threatening action by the US against the International Criminal Court (ICC) in response to potential ICC investigation of US personnel with regard to the situation in Afghanistan has generated a lot of interest (see here, here, here and here). There are a plethora of policy and political issues raised by the looming clash between the ICC and the US which have been set out on other blogs in recent days (here and here). In terms of the legal issues, we are back to the old debate about whether the ICC is entitled to exercise jurisdiction over nationals of non-party states, in the absence of a referral by the UN Security Council (on which see this 2003 article of mine and this recent post in response). This post addresses whether the actions that Bolton says the US will take against Judges and ICC officials would be lawful under international law. Bolton says that the US:
“… will respond against the ICC and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”
In particular, I wish to focus on whether the US would violate international law by banning ICC judges and officials from entering the US. Even if the US were to seek to prosecute ICC personnel, it is unlikely that it would obtain custody over them (unless other states cooperate with the US). The primary effect of such attempted prosecutions would be to prevent those people from entering the US, in fear of being arrested.
Barring ICC personnel from entry into the US is a significant issue because (i) the meetings of the ICC Assembly of States Parties are held at the United Nations Headquarters in New York every other year; (ii) the ICC Prosecutor goes to the Security Council, at its request, to report to the Council on the situations referred to the Court by the Council; and (iii) the President of the ICC presents a report, on the work of the Court, to the UN General Assembly annually. All of these activities and visits will have to stop if the threat by John Bolton (either to prosecute or to ban ICC judges and officials) were to be carried out.
Does the US have International Legal Obligations Preventing it from taking Retaliatory Action Against ICC Personnel?
To the extent that US retaliatory actions against ICC personnel take place within the US, the starting position would be the US can control entry into the US, prosecute people who in its view threaten US security (probably based on the protective principle of jurisdiction) and sanction funds in the US unless such acts are inconsistent with contrary obligations under international law.
The question then arises whether the US has obligations under international law which would prohibit these actions. If the US had remained a signatory to the ICC Statute, a good argument could have been made that prosecuting ICC officials for doing their job is an act that would defeat the object and purpose of the treaty since the acts are directed at preventing the Court from functioning in the way in which it was intended to function. Thus, these acts would have been in violation of the obligation imposed on signatories by Article 18 of the Vienna Convention of the Law of Treaties (VCLT, and the equivalent customary rule). However, John Bolton has already taken care of this potential argument, and released the US from the Article 18nobligation by “unsigning” the Statute, i.e indicating the intention of the US not to become a party to the Statute.
As the US is not a party to the Statute or to the Agreement on the Privileges and Immunities of the ICC, it is not obliged to accord immunity under either of those agreements.
US Obligations With Respect to ICC Personnel Under the US- UN Headquarters Agreement
However, the fact that the US is not bound by instruments relating to the ICC does not exhaust the possibility that the US has obligations to accord at least some privileges and immunities to judges and other personnel of the Court. It should be noted that the International Criminal Court is an independent international organization from the UN, but it has observer status at the UN (see UN General Assembly Resolution 58/318, 13 September 2004). The fact that the ICC is a UN observer, and also that its officials are invited to the UN to take part in the business of the UN, mean that, in principle, the personnel of the ICC, and others invited to the UN, are entitled to some of the privileges and immunities accorded under the 1947 Headquarters Agreement between the UN and the United States. In particular, they have rights of access to the United Nations Headquarters. Section 11 of the Agreement provides that:
“The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of: . . . (5) other persons invited to the head-quarters district by the United Nations . . . on official business. The appropriate American authorities shall afford any necessary protection to such persons while in transit to or from the headquarters district.”
Section 13(a) then provides that “Laws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11.”
There is nothing in the Headquarters Agreement itself that provides for any relevant exceptions to the privilege, provided for in Section 11, of entry into the US for the purpose of engaging in official business at the UN.
It should also be recalled that, under Section 21 of the agreement, a dispute between the United Nations and the United States concerning the interpretation or application of the Headquarters Agreement which is not settled by negotiation or other agreed mode of settlement, may be referred to an arbitral tribunal (and the International Court of Justice may be asked to decide on matters that arise in the course of proceedings before the tribunal, by way of a process that is similar to the preliminary reference procedure from national courts to the Court of Justice of the European Union).
Is there a Security Reservation Limiting US Obligations Under the Headquarters Agreement?
The US has, for decades, taken the view the Headquarters Agreement is subject to a security reservation which entitles the US to take action that is necessary to preserve the security of the US. If the US were to prevent the personnel of the ICC from gaining access to the UN Headquarters, it would likely seek to justify that move on the grounds of national security. In John Bolton’s speech he stated that, “the International Criminal Court unacceptably threatens American sovereignty and U.S. national security interests”.
There have been previous occasions when the US has, on grounds of security, barred persons invited to the UN, from entry to the US. The most famous such incident occurred in 1988, when the US denied a visa to Yasser Arafat, then Chairman of the Palestinian Liberation Organization (PLO), who had been invited to address the UN General Assembly. That dispute raised the question of whether the US is entitled to take action which derogates from the Headquarters Agreement with the UN on account of security considerations. A similar dispute between the US, on the one hand, and the UN (and other UN members), on the other hand, arose in 1953, when the US refused visas to members of NGOs who had been invited to take part in meetings of the Economic and Social Commission. Similar disputes have arisen from time to time. [The article by Reisman, “The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion (1989) 83 AJIL519 and, a less convincing one, by Zoller, “The National Security of the United States as the Host State for the United Nations”, (1989) 1 Pace Y.B. Int’l L. 127 provide a good discussion of the 1988 incident. In addition to the Reisman and Zoller articles, analysis of the 1953 dispute can also be found in Leo Gross “Immunities and Privileges of Delegations to the United Nations”, (1963) 16 International Organization 483. Documents regarding the I953 incident can be found in Foreign Relations of the United States, 1952-54, United Nations Affairs, Volume III]
Whether the US is entitled to prevent those invited to the UN, despite the provisions of Section 11 of the Headquarters Agreement, depends on the answer to fundamental questions whether that agreement entered into force free from reservations, whether it is possible to have a reservation to a bilateral treaty, and even to the question whether the agreement entered into force at all?
The US claims that there is a security reservation to the Headquarters Agreement has been contested by the UN on the previous occasions when it has been raised. In the incident regarding Arafat, the UN Legal Counsel issued a statement which not only set out the history and contours of that particular dispute, and its wider context, but also stated that:
“For the record, I wish to state that the United Nations has not acquiesced in such a practice. It is true that, on certain occasions, the United States has declined to issue visas to representatives of States or to persons invited to the United Nations, and the United Nations has not insisted where the requesting State itself, for reasons of its own, did not pursue the matter. The United Nations legal position regarding the obligation of the host country to grant, visas has at all times been perfectly clear to the host country, as was the United Nations position with respect to the so-called security reservation.” (para. 10, A/C.6/43/7, 29 Nov. 1988)
Whether there is actually a security reservation to the Headquarters agreement depends on an understanding of the way in which the US and the UN brought the Headquarters Agreement into force. By Public Law 80-357 (1947), the United States Congress authorised the President of the United States to bring the agreement into force, it included in that Law, Section 6, which provides that:
“Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity … and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries.”
The Agreement was brought into force by an exchange of notes between the UN Secretary-General and the representative of the US. The US note of 21 November 1947 included the following sentence:
“Pursuant to instruction from my Government, I have the honor to inform you that the Government of the United States of America is prepared to apply the above-mentioned Headquarters Agreement subject to the provisions of Public Law 357.”
The questions that arise with regard to so-called reservation are whether (i) it is in fact a reservation (and thus what its legal effects are), and, (ii) what is its scope. It is sometimes thought that one should consider the questions in that order: first what is the legal nature of the US so-called security reservation and then second, what is its scope. However, it is probably more productive to consider those questions in the reverse order. Under Art 2 of the VCLT, a reservation is “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” If the US statement in Section 6 simply sets out what is really an agreed understanding of the provisions of the agreement and does not in fact exclude or modify the legal effect of the provisions of the agreement then it is probably not a reservation at all. So, scope will affect the characterization of the security “exception”.
What does the US Security “Reservation” Cover?
When one undertakes a careful examination of the instances where disputes have arisen between the US and UN on this issue, particularly the 1988 Arafat visa dispute and the earlier dispute in 1953, one sees that what underlies the disagreements is a dispute about what the security “reservation” actually covers. In both of those instances one of the primary contentions of the UN has been that even if the US had intended to formulate a reservation, section 6 “refers to control by the United States of the entrance of aliens into any territory of the United States other than the Headquarters District, its immediate vicinity, and the necessary area of transit.” (Memorandum of UN Legal Department, UN Doc. E/ 2397, April 10, 1953, para. 11. UN Doc. E) The contention is thus that the so-called reservation does not actually derogate from Section 11 of Headquarters Agreement and so even if the US had intended to enter a reservation, this would still not allow the US to deny entry, on security grounds, to person who were invited to the Headquarters. If the UN is right that this is all the “reservation” is about, then all the US would be entitled to do would be to restrict entry to the US to entry to the Headquarters district, its immediate vicinity and the necessary areas of transit. It could not lawfully bar entry completely.
However, the US has taken a broader view of Section 6 of Public Law 80-357. In its view that section is not just about preserving the right of the US to restrict entry into the US. In its view, that provision has two parts. It contends that the first part is a general reservation which allows the US “to safeguard its own security” and then there is a second, and separate part which preserves the right of the US to “completely to control the entrance of aliens into any territory of the United States other than the headquarters district …” This point about the “reservation” having two parts, a general and a separate does not come out so clearly when one reads the UN documentation. It becomes clearer when one reads the memos prepared by US government lawyers during the 1953 dispute. The final paragraphs of a Memorandum Prepared in the Office of the Assistant Legal Adviser for United Nations Affairs [US State Department] (15 April 1953) set out, by reference to the legislative history of Section 6, the US view that it contains two distinct parts (with one, apparently, introduced by the US Senate, and the other by the US House of Representatives). It is accepted in that memo that the wording dealing with the right of the US to control entrance of aliens into the US other than the Headquarters district “is more in the nature of an understanding than a reservation, in that it merely restates the provisions already contained in Article 13(d) of the [Headquarters] Agreement.” However, it is argued that the reference to safeguarding security is intended to apply to allow control, on security grounds, “to entrance of aliens into the Headquarters District and its immediate vicinity” (emphasis added).
A Memorandum Prepared Jointly by the Department of State and the Department of Justice (4 May 1953) also contends that the US considered Section 6 as having two parts. But this time, the US adopted an even broader view of what it considered the first part. This part was regarded as “an interpretation, an understanding, and a reservation on the part of the United States with respect to the whole of the Agreement and not to any one part thereof, in so far as the security of the United States is concerned. It applies, therefore, not only to the provisions of the Agreement relating to the issuance of visas and to the admission of aliens into the United States but also to other provisions of the Agreement, including that part providing for the arbitration of disputes …” (emphasis added). Thus, it was not just about restricting entrance of alien into the Headquarters District.
Thus, the first critical question is whether the two parts of Section 6 are separate and apply to different matters or whether they are actually linked such that all that is preserved by the entirety of that Section is “the right of the United States to safeguard its own security and [thus to] completely to control the entrance of aliens into any territory of the United States other than the headquarters district …” (italicised words added). In short a right to control, on grounds of security, entrance of aliens to the territory of the US outside the Headquarters district.
To answer this question a more detailed examination of the drafting history of this provision would, in the first place, be required so as to allow one to determine what the intention of the US is. If the US position is correct, then the US would potentially be able to rely on this “reservation” to deny entry into the US, including to the UN, to ICC personnel.
A Reservation to a Bilateral Agreement?
If the US view that Section 6 is a reservation is correct, questions would also arise as to whether it is possible to have a reservation to a bilateral agreement, for that is what the Headquarters Agreement is (one between the US and the UN). It has been accepted by both sides and in the literature that an attempt to introduce a reservation into a bilateral agreement is really a call for renegotiation and such a reservation cannot take effect unless it is accepted by the other side. This then raises the question of whether the “reservation” was accepted by the UN at the time the Agreement was brought into effect. As pointed out above, the US representative did make it clear at the time they were bringing the Agreement into effect subject to the provisions of Public Law 80-357. The US has asserted that by not contesting the reservation at the time of entry into force, the UN tacitly accepted the “reservation”. Although the UN has subsequently asserted that Section 6 was not brought to the attention of the General Assembly when it approved the Headquarters Agreement, the State Department Memorandum of 15 April 1953 referred to above makes a strong case that this is incorrect.
The US has also asserted that if the reservation was not in fact accepted by the UN, that would put in doubt whether the Headquarters Agreement actually entered into force. This point is legally compelling, if the facts are accurate. However, such a conclusion would have startling consequences. If it were right, 70 years of assumptions, by all concerned, that the Headquarters Agreement was binding on the US would be overturned. This would prove so destabilizing that it is hard to see that were the matter to reach a tribunal, it would come to this conclusion. It seems more likely that the conclusion that would be reached that the so-called reservation was indeed “accepted” by the UN with the focus then on what exactly it means.
The fact that the legal effect of the so-called reservation would require acceptance by the UN also has an effect on the interpretation, in international law, of this so-called reservation. Ordinarily, a reservation as a unilateral instrument is to be interpreted with “a certain emphasis on the intention of the depositing State” (See Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432, para 48). However, where what is under consideration is an attempt to vary a bilateral agreement, with such variation only taking effect by agreement of the other party, it would seem inappropriate to place the special emphasis on the intention of the state that proposes the variation. What is sought to be found is the common intention of the parties in the same way as one would seek to find it in a treaty provision. With this in mind, it seems unlikely that the UN would have accepted such a broad derogation from the provisions of the Headquarters agreement.
It has been shown that whether it would be lawful, as a matter of international law, for the US to carry out the threats by John Bolton against the ICC will depend, in part, on the correct interpretation of the US/UN Headquarters Agreement. It has also been shown that the correct interpretation depends on how the declarations made by the US, at the time the Agreement was brought into effect, are to be interpreted. Were there to be an attempt to carry out the threat, these issues will be matters for US courts, which may, as in the case of the attempt to close the PLO office in the late 1980s choose to interpret US law so as to avoid conflict with the US’ international obligations [USA v. PLO, 695 F Supp 1456 (SDNY, US, 1988)]. They may also, ultimately be matters that lead to arbitration between the US and the UN under the Headquarters Agreement.