Heller: The Uncertain Legal Status of the Aggression Understandings

Kevin Jon Heller (Univ. of Melbourne - Law) has posted The Uncertain Legal Status of the Aggression Understandings (Journal of International Criminal Justice, forthcoming). Here's the abstract:

Annex III of Resolution RC/Res.6, adopted by consensus at Kampala on 12 June 2010, contains seven “Understandings” concerning the amendments that add the crime of aggression to the Rome Statute. The legal status of the Understandings, however, was never discussed during the Review Conference, leading scholars to acknowledge that it is difficult to determine how they will influence the Court once the aggression amendments enter into force. Indeed, no scholar to date has attempted to systematically analyze the Understandings.

This essay attempts to fill that lacuna in the burgeoning literature on the aggression amendments. It considers four possible interpretations of the Understandings: (1) that they are amendments to the Rome Statute; (2) that they are a primary means of interpreting the aggression amendments under Article 31 of the Vienna Convention on the Law of Treaties (VCLT); (3) that they are an agreement to modify by one or more parties to the Rome Statute under Article 41 of the VCLT; and (4) that they are supplementary means of interpreting the aggression amendments under Article 32 of the VCLT. It concludes that, unless they are adopted by all of the States Parties to the Rome Statute at the 2017 Review Conference, the Understandings are nothing more than supplementary means of interpretation that the Court would have the right to ignore once the aggression amendments enter into force.