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Domestic and International Limitations on Treaty Withdrawal: Lessons from South Africa's Attempted Departure from the International Criminal Court

  • Hannah Woolaver (a1)
Extract

The questions surrounding the legality of states’ withdrawal from international treaties have traditionally received far less attention than those concerning states’ joining of treaties, from both the domestic and international legal perspectives. This neglect is now changing rapidly. In this contribution I focus on South Africa's stalled exit from the International Criminal Court (ICC) and the fundamental questions of constitutional and international law that arise from the episode.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 For further discussion of these issues see also the other contributions to this symposium.

3 Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1 (Mar. 4, 2009); Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC- ICC-02/05-01/09-95 (July 12, 2010).

4 Rome Statute of the International Criminal Court pt. IX, July 17, 1998, 2817 UNTS 331.

8 As required by Article 127 of the Rome Statute.

9 Democratic Alliance, supra note 2, at paras. 53, 84.

10 See South Africa: Withdrawal of Notification of Withdrawal, UN Doc. C.N.121.2017.TREATIES-XVIII.10 (Mar. 7, 2017).

11 See Gia Nicolaides, ANC Set on Withdrawing from the ICC, EyeWitness News (July 5, 2017).

12 S. Afr. Const. § 231(1), (2).

13 Democratic Alliance, supra note 2, at paras. 51–57.

14 Id. at para. 57.

15 Id. at para. 70.

16 “It should … be borne in mind that prior parliamentary approval is required before instruments of ratification may be deposited with the United Nations. From that perspective, there is a glaring difficulty in accepting that the reverse process of withdrawal should not be subject to the same parliamentary process.” Id. at para. 51.

17 See Anthony Aust, Modern Treaty Law and Practice 12 (3d ed. 2013).

18 See, e.g., discussion in Curtis A. Bradley & Laurence R. Helfer, Treaty Exit in the United States: Insights from the United Kingdom or South Africa?, 111 AJIL Unbound 428 (2017); and Jean Galbraith, The President's Power to Withdraw the United States from International Agreements at Present and in the Future, 111 AJIL Unbound 445 (2017) on the differential U.S. requirements for joining and withdrawing from treaties.

19 Compare, e.g., Vienna Convention on the Law of Treaties art. 7 with art. 67, May 23, 1969, 1155 UNTS 331, 345 (on authority to sign instruments of joining and terminating or withdrawing from treaties).

21 Democratic Alliance, supra note 2, at para. 55.

22 Id. at para. 72.

23 Id. at para 75–76.

24 But see Alexandra Huneeus & René Urueña, Treaty Exit and Latin America's Constitutional Courts, 111 AJIL Unbound 456 (2017).

25 See Laurence R. Helfer, Exiting Treaties, 91 Va. L. Rev. 1579, 1640–1644 (2005).

26 E.g., South Africa's required contribution to the ICC in 2016 was €848,490; the U.K.’s required ICC contribution for 2016 was €10,409,624: Assembly of State Parties, Financial Statements of the International Court for the Year Ended 31 December 2016, ICC-ASP/16/12 (Aug. 31, 2017).

27 See Southern Africa Litigation Centre, supra note 6.

28 Arguably, the court order to revoke the instrument of withdrawal indicates an assumption that it would have taken effect in international law despite the domestic invalidity—otherwise, revocation would not have been necessary.

29 The Head of State, Head of Government, Minister of Foreign Affairs, or others bearing full powers: Article 7 VLCT.

30 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), 2002 ICJ Rep. 303, para. 265 (Oct. 10).

31 Article 46(2) VCLT.

32 Cameroon v. Nigeria, supra note 30.

33 Humphrey Waldock (Special Rapporteur on the Law of Treaties, Second Report, 2 Y.B. Int'l L. Comm'n 85 (1963).

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AJIL Unbound
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  • EISSN: 2398-7723
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