In this final chapter of Part II, we analyse the key legal issues related to the allocation of international investment competence within the EU and examine their implications for policy efficiency and choices in external EU trade and investment relations. Following the Lisbon Treaty of 2009, the EU has gained competence for international investment treaty-making, which previously fell within the scope of the Member States’ competence. Given the relevance of international investment for the EU, on the one hand, and the cross-cutting nature of investment within the range of domestic policy areas on the other, the exercise of competences relating to foreign investment has been surrounded by controversies. Importantly, treaty-making procedure in the EU is not a matter of political inter-institutional preference but it is defined by the delineation of competences, grounded in primary law. The focus of our analysis in this chapter is placed on the internal EU institutional framework regarding competences between the EU and its Member States for investment and the conclusion of EU international investment agreements, and the role of the CJEU in defining the scope of EU policy. The content of EU international investment policy is then analysed in Part III.

The right to claim contribution in competition law is ensured by EU law but its exercise takes place under national laws. This Chapter investigates English, German, French and Polish rules on contribution and their application in the competition law context. On the one hand, the assessment is pragmatic. It analyses questions that are likely to appear when pursuing contribution claims. Does a right to claim contribution exist in a given legal order? On what basis and in which form can contribution be claimed? Against whom can contribution be claimed? What legal test must be met to receive contribution? What is the criterion for allocating liability between antitrust infringers? The analysis shows that the allocation of liability can be debated, as there are several possible methods of dividing liability: relative fault, causation, illicit gains, values of sales, market shares and pro capita. At the same time, the Chapter reflects on whether the requirements and modifications stemming from EU competition law require the adoption of a competition law-specific approach to contribution and makes proposals on how rules on contribution can be improved.

The concluding chapter draws together the key arguments and analysis raised throughout this book It offers some observations on the importance of articulating a legal basis for the ICC’s jurisdiction over nationals of non-States Parties that is grounded in State consent and recognised international legal principles.

Chapter 4 tests the delegation theory by applying it to a number of hypothetical case studies involving actual situations that have been considered by the ICC. Specifically, it uses scenarios that potentially involve procedural immunities to explore whether delegation of jurisdiction provides a legal basis for the ICC’s jurisdiction in different situations that could come before the Court via a State referral or Prosecutor-initiated investigation. The first case study is a hypothetical scenario in which a sitting Head of State from a non-State Party is wanted by the ICC for the commission of crimes on the territory of a State Party. Incumbent Heads of State are immune from prosecution in foreign domestic courts, which raises the question of how States Parties can be said to delegate jurisdiction to the ICC, when the exercise of such jurisdiction would be unlawful in the domestic context. The second and third case studies use the situations in Afghanistan and Palestine, each of which raises potential obstacles relating to curtailed domestic jurisdiction that could affect whether the ICC is able to lawfully prosecute nationals of non-States Parties for crimes committed on those territories.

The introductory chapter sets out the scope of the International Criminal Court’s jurisdiction over nationals of non-States Parties under the Rome Statute and explains the importance of articulating a legal basis for these provisions. It elaborates the aims and context of the book and provides a brief overview of the ensuing chapters.

Chapter 3 analyses the prevailing theory that the ICC’s jurisdiction is based on delegation from States Parties. It provides a review of scholarship published in the years following the adoption of the Rome Statute and adopts one of the principal conclusions from this early debate: that States may lawfully delegate jurisdiction to an international court. This chapter then proceeds to undertake a conceptual analysis of what delegation of jurisdiction actually entails in the context of the ICC. It explores how the concept of delegation is understood in international institutional law, which provides a framework for understanding how international institutions receive and exercise their powers. This is directly relevant for the ICC as an international organisation. The second part of this chapter demonstrates the utility of describing jurisdiction as ‘the legal right to exercise powers’. It also provides an overview of the principles of international law under which a State may exercise jurisdiction extraterritorially and explains how these apply to the Statute’s jurisdiction regime. It argues that delegation of jurisdiction is, in theory, a sound legal basis for the ICC’s jurisdiction when either the territorial State or the State of nationality has consented to the Statute.

Chapter 5 focuses on the ICC’s relationship with the UN Security Council. Under the Rome Statute, the Council has several important roles: Article 13(b) provides that the Security Council may trigger the jurisdiction of the Court (the ‘referral power’), and under Article 16 the Council may halt any ICC investigation for twelve months at a time (the ‘deferral power’). In the 2010 Kampala Amendments, the Security Council was given a third role with respect to the Court’s jurisdiction over the crime of aggression. The first part of Chapter 5 critically examines the ways in which the Council has used Article 16 in an attempt to limit the jurisdiction of the Court. It then discusses the Article 13(b) referral power by using the Darfur and Libya situations as case studies. It argues that the legal basis for the ICC’s authority in those situations is grounded in the implied consent of Sudan and Libya to the jurisdiction of the Court by virtue of their membership of the UN. The final part of Chapter 5 considers the role of the Security Council with respect to the crime of aggression and the consequences of this for States not party to the Rome Statute.

Chapter 6 addresses an alternative theory to delegation of territorial jurisdiction and implied consent. It explores whether the principle of universality can provide a coherent legal basis for the ICC’s jurisdiction in various situations allowed by the Rome Statute. It takes two different approaches to the possibility that universality provides a foundation for the ICC’s authority over nationals of non-States Parties. First is the idea that States are delegating universal jurisdiction to the ICC, along with jurisdiction based on territoriality and nationality. The second approach is one that envisages universal jurisdiction as inherent to the international community and exercisable by the ICC as an agent of this community. Ultimately this chapter argues that the limitations of both the delegated and inherent universal jurisdiction theories mean that there is no advantage to conceiving of the legal basis for the ICC’s jurisdiction as predicated on universal jurisdiction.