[Zachary Marcone is a U.S. lawyer and degree candidate at Stanford Law School.]
On 9 October 2026, the United States sanctioned the International Criminal Court (ICC) as an institution. Although the United States previously sanctioned individual ICC prosecutors and judges, this is the first time it has specifically targeted the institution itself. The U.S. sanctions are an existential threat to the ICC as they will make it extremely difficult for the Court to access services that are essential to its day-to-day operations. To protect the Court, several MEPs and member states such as Belgium have called on the European Union to use its blocking statute to neutralize some of the effects of the U.S. sanctions. The European Commission itself has threatened “to take any necessary measures to enable the Court to carry out its work,” possibly an implicit reference to the blocking statute.
The EU blocking statute is designed to protect entities within the European Union from the application of a third country’s extraterritorial laws. The blocking statute does this by making foreign court judgments that give effect to such extraterritorial laws unenforceable in European courts. The statute also prohibits EU operators from complying with the extraterritorial foreign law unless they obtain a waiver. Thus far, the European Union has used the blocking statute sparingly and only to block certain U.S. sanctions on Cuba and Iran.
Failed EU Efforts to Counteract Extraterritorial U.S. Tax Laws
This is not the first time the European Union has threatened tough action against the United States for the latter’s extraterritorial laws. In 2014, the United States unilaterally imposed an extraterritorial tax reporting regime on EU financial institutions and other entities. Financial institutions in the European Union are required to report the account information of U.S. persons to the U.S. Internal Revenue Service to aid U.S. authorities in the fight against tax evasion. However, the United States does not reciprocate by compelling U.S. banks to share the account information of EU persons to European tax authorities. This asymmetry in tax reporting obligations can be exploited by EU persons that want to avoid paying tax to their home governments.
The European Union has repeatedly attempted to get the United States to join the Common Reporting Standard (CRS), a multilateral standard that provides for the reciprocal exchange of tax information. For example, in 2018 the European Union threatened to put the United States on its list of non-cooperative tax jurisdictions, i.e. the tax blacklist, if the United States continued to refuse reciprocity in tax reporting. When the deadline came, the United States still had not joined CRS, and the European Union backed down from its blacklisting threat. To this day, the European Union is still trying to get the United States to reciprocate tax reporting. All the while, EU banks incur costs to ensure they comply with U.S. reporting obligations.
In 2022, a European Parliament report floated the idea of using the blocking statute against U.S. extraterritorial tax reporting as a way of pressuring the United States to join CRS or lose access to U.S. taxpayer account information in the European Union. Neither the European Commission nor the European Parliament have taken any action on this proposal. As a result of the European Union’s inaction, the United States has become the world’s worst tax haven. European persons can use secrecy laws in U.S. states such as South Dakota to hide money from European tax authorities such that the United States has ranked as the top secrecy jurisdiction for European countries.
Evidently, empty threats by EU officials do not deter the United States, or other countries, from imposing unilateral extraterritorial obligations on EU entities. This is now playing out with the U.S. sanctions against the ICC. The United States has provided a six month grace period before many of the sanctions against the ICC kick in. Ambiguous threats to impose the blocking statute are unlikely to be convincing, just as EU threats to blacklist the United States were ignored. The European Union may consider imposing the blocking statute before the six month period expires in order to strengthen its hand in negotiations with the United States and to make clear its commitment to the ICC. Strong action now may also deter the United States from imposing its extraterritorial will on the European Union in the future.
The European Union and its Member States Have a Legal Obligation to Protect the ICC
While using the blocking statute to protect the ICC may be advisable for its deterrent effect against the United States, it may also be obligatory under existing international commitments. In 2006, the European Union concluded the Agreement Between the ICC and EU on Cooperation and Assistance. In this agreement, the European Union and ICC committed to “cooperate closely” in order to facilitate “the effective discharge of their respective responsibilities” in Article 4. Article 14 commits the European Union to provide services to the ICC as needed.
The ICC is also located on EU territory with the European Union and the Netherlands functioning as hosts. Even in the absence of an international agreement, host states are “obliged to facilitate the work of the organization as much as possible.” The Netherlands has additional legal obligations to the ICC under its headquarters agreement including the obligation to ensure the “freedom of financial assets from restrictions.”
Other EU member states may have obligations to protect the ICC. Every EU member state is a party to the Rome Statute. Members of an international organization are obligated “to support the organization loyally in its functioning.” They have an intrinsic obligation to be good members as part of the duty to cooperate which is a general principle of law. This is connected to pacta sunt servanda and the obligation of treaty parties to perform in good faith.
Given that the ICC is under existential threat, all EU member states in their joint capacities as ICC member states, arguably have a legal obligation to protect the ICC. The blocking statute, implemented at the EU level, would help coordinate the response of EU member states to the U.S. sanctions. For example, without the blocking statute individual EU member states and their courts would be responsible for weighing in on the enforceability of U.S. sanctions. Some member states may take national-level action to prevent their enforcement, but others may leave it to the discretion of courts. Whether or not U.S. sanctions against the ICC are enforced in European courts may depend on individual judgments on the consistency of the U.S. sanctions with national public policy. This risks an uncoordinated and inconsistent response across Europe. Invocation of the blocking statute would immediately render the U.S. sanctions unenforceable in every court across the European Union.
Additionally, the European Union need not act alone. Other parties to the Rome Statute, such as Canada (a potential associate member of the European Union), have blocking statutes that they can deploy in concert with the European Union. These ICC member states similarly have an obligation to protect the ICC.
Conclusion
The latest U.S. sanctions against the ICC are part of a broader pattern of unilateral impositions of extraterritorial will by the United States on the rest of the international community. Whether it’s in international tax regulation or international criminal law, the United States has done this largely with impunity. Thus far, the European Union, despite possessing the tools to do so, has failed to take strong action against the United States. If there was ever a time to stand up to the United States this is it. The European Union and its member states have legal obligations to protect the ICC. While not without its flaws, the ICC should not be dismantled by the unilateral actions of a state that is not even a party to the Rome Statute.
