CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION 3.4 Agreement to modify Unlike the primary means of interpretation, the agreements to modify provisions (rejected as a status confirming instrument by Heller 32 ) expressly accept that the agreement can be agreed upon between two or more of the state parties, i.e. not all. However, as was previously mentioned, the procedure for adopting the Understandings is unclear under the Rome Statute (if it actually exists in current textual version), and so it cannot be convincingly said that all the parties to the Rome Statute (and above-all the Definition) are as well parties to the Understandings. And for those that are not parties to it, it is not a binding source of law, because “[t] he amending agreement does not bind any State already a party to the treaty which The last but most convincing role for the Understandings nowadays is as supplementary means of interpretation. Those do not need to be agreed upon by all the State Parties, but, what is important, they can be disregarded because, according to article 32 VCLT, recourse to them “may” be applied. Though the Understandings are most likely supplementary means of interpretation, it is unlikely that in case of a clear difference in the approach of the Statute and the Understandings to any issue, the Understandings would play any relevant role. 4. Conclusion In this context one can only agree with Heller that, unless the next review conference adopts the Understandings by votes of all the State Parties (and so changes them into a binding subsequent agreement), the Understandings are nothing more than a supplementary means of interpretation and the ICC can disregard them. Since, as was discussed above, the Understandings (if in binding force) have the potential to change the interpretation of the Rome Statute and the amendments themselves, the status needs to be dealt with in order to answer at least one of the very important issues that the crime of aggression amendments has opened but failed to answer. does not become a party to the amending agreement. ” 33 3.5 Supplementary means of interpretation

32 HELLER, K.J. The Uncertain Legal Status of the Aggression Understandings, p. 16. 33 Article 40 (4) VCLT.

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