28th November 2012
On 27th November 2012,Mr. Robert Amsterdam, UDD solicitor to ICC at the Hague, sent a letter to H.E. Surapong Tovijakchaikul, Minister of Foreign Affair of Kingdom of Thailand, urging Thailand to accept ICC jurisdiction over he case of massacre of Red Shirts in 2010.
............
28th November 2012
Your Excellency,
The Government is considering whether to make a Declaration accepting the jurisdiction of the International Criminal Court (ICC) over the crimes against humanity of 2010. In an effort to block the Government from making this Declaration under Article 12.3 of the ICC Statute, some Thai lawyers argue that it is a “treaty” requiring royal and parliamentary approval under section 190 of the 2007 Thai Constitution.
Their argument is nonsense. It has already been rejected by ICC Prosecutor Fatou Bensouda. When she recently met with the Government in Bangkok, they asked her whether a Declaration under Article 12.3 of the ICC Statute is a treaty. Her answer was unequivocal: an Article 12.3 Declaration is not a treaty.
She is clearly correct. Under international law, the essence of a treaty is an agreement between two or more parties. In contrast, an Article 12.3 Declaration is a unilateral statement by a government. It does not need or involve any agreement by the ICC. It is instead an exercise of the Government’s sovereign power over its international relations. Under the ICC Statute, the Declaration becomes legally effective as soon as the Government files it with the ICC – with no need for any response from the ICC. The only signature on the Declaration is by the Government. The only document is the Government’s Declaration. There is no counter-signature by the ICC.
Prosecutor Bensouda’s argument is also supported by precedent. When Cote D’Ivoire made Article 12.3 Declarations accepting ICC jurisdiction on three separate occasions, that country had no need to follow its constitutional procedures for approving treaties. It simply filed unilateral declarations, signed by a Minister. Those unilateral statements gave the ICC jurisdiction to look into the particular situations in that country (which the ICC has now done).
In short, under international law a unilateral Declaration is not a treaty. But some Thai lawyers argue that “treaty” has a different meaning under Thai law. This is sheer desperation on their part. Treaties govern international relations. They cannot mean one thing in one country and something different in another country. Because all countries rely on treaties, they must have the same meaning everywhere. So “treaty” is and must be defined by international law.
And under international law, a treaty by definition involves an agreement between two or more parties – not a unilateral Declaration by a single government, such as an Article 12.3 Declaration accepting ICC jurisdiction over the crimes against humanity of 2010.
Sincerely Yours,
Robert Amsterdam
UDD Solicitor to ICC
