RESERVATIONS
A reservation as it is defined under Article
2(1) of Vienna Convention is a unilateral statement made by State when
signing, ratifying, accepting approving or acceding to a treaty where the state
purports to exclude or modify the legal effect of certain provisions of the of
the treaty in their application to that state. Effect of a reservation depends
upon whether it is accepted or rejected by the states concerned. Traditionally,
for reservations to be valid the treaty concerned had to permit them and the
state parties had accepted them. Article 19 of Vienna Convention, a
State may when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless the treaty prohibits.
Kenya
signed the Rome Statute, the
founding the International Criminal Court(ICC),on on 11 August 1999 and
ratified it on 15th March 2005,allowing
the court jurisdiction over war crimes
against and genocide committed by Kenyan nationals or on Kenyan territory after
July 1 2002 when the statute entered into force. However in such a situation
when Kenya is dissatisfied with implementation of the Statute, it cannot rely
on reservations as an avenue to rectify the situation since under Article
120 of the statute, no reservations are permitted to be made to it .the
fact that during its ratifying the statute, Kenya did not formulate any
declaration to the effect. Declarations are usually deposited at the time of
signature or at the time of deposit of the instrument of ratification,
acceptance, approval or accession. Optional and mandatory declarations impose
legal obligations on the declarant .Must be signed by the Head of State, Head
of Government or Minister for Foreign Affairs .Kenya failed to observe this in
the appropriate time. Despite Rome Statute creating no room for reservations it’s
silent on declarations. Australia which is a party to the statute after ratifying
it on 2002, made a declaration to the effect that “The Government of Australia
after considering the Statute ratified it with the following declaration the
terms of which have full effect in Australian law, and which is not a reservation:
Australia notes that a case will be inadmissible before the International
Criminal Court where it is being investigated or prosecuted by a State. Australia reaffirms the primacy of its criminal
jurisdiction in relation to crimes within the
jurisdiction of the Court. To enable Australia to exercise its jurisdiction
effectively, and fully adhering to its obligations
under the Statute of the Court, no person will
be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes.
For this purpose, the procedure under
Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the
Australian Attorney-General issues a certificate allowing surrender. Australian
law also provides that no person can be
arrested pursuant to an arrest warrant issued by the Court without a certificate from the Attorney-General. Australia
further declares its understanding that the offences in Article 6, 7 and 8 will
be interpreted and applied in a way that accords with the way they are
implemented in Australian domestic law."
This position leaves Kenya having no
possibilities of depending on neither reservations nor declarations to try settling
the mayhem in Kenya.
TRANSITIONAL PROVISIONS
Article 124 of the Rome Statute provides that after
a State becomes a party it may declare that, for a period of seven years after
entry into force of this Statute, State does not accept the jurisdiction of the
court with respect to the categories of the rimes referred to in Article 8(Willful killing,
torture or inhuman treatment, willfully causing great suffering) when the crime is alleged to have been committed by its
nationals or on its territory. Its long past seven years after the Rome Statute
came into force in Kenya thus can use this provision to rectify its dissatisfaction
on the statute.
Participant
Signature Ra
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