The State Obligation to Cooperate under International Law

Abstract

This chapter seeks to establish the extent to which States are entitled to assess if the ICC enjoys jurisdiction in order to determine whether they are obliged to surrender a suspect thereto. The ICC Statute only imposes direct obligations on States which have ratified such treaty. The ICC cooperation model is best described as slanted, neither vertical nor horizontal. There is no harmonised international procedure relating to the national execution of an ICC cooperation request. Although States cannot rely on the absence of domestic law to justify non-compliance, the effect of ICC requests largely hinges on the degree to which States have domestically promulgated procedures intended to facilitate cooperation. The complementarity regime prevailing therein endows States with some discretion. Non-State Parties may only be invited by the ICC to cooperate. Yet, even non-State Parties to the ICC would need to implement legislation to execute a UNSC Resolution which directly invokes the cooperation of States. The potential repercussions of the failure to cooperate by the State may lead to the finding of a violation either by the ICC and a referral of the matter to the ASP in terms of Article 87(7) of the ICC Statute and Regulation 109 of the ICC, or else to a referral to the UNSC when the case had been triggered by a UNSC Resolution. Notwithstanding recent jurisprudence, it is still unclear whether the ASP can take any action beyond making the finding of non-compliance. Some ideas to strengthen the fragile ICC cooperation regime are suggested.