Problem I.C.4.: Evaluating and Interpreting Treaties Notes and Questions (Page 61) 5. Article 4(h) of the African Union Constitutive Act of 2000 identifies as one of the Union’s operative principles “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” The subsequent Protocol Relating to the Establishment of the Peace and Security Council of the African Union contains provisions establishing an AU Peace and Security Council that may among other things “authorize the mounting and deployment of peace support missions.” Are these provisions consistent with the UN Charter and peremptory norms governing the use of force? Problem I.C.6.: Consequences of Denouncing or Breaching a Treaty (Page 68) On May 1, 2004, Cyprus was admitted as a member of the European Union (EU). However, the operation of EU laws has been suspended in the north, pending reunification. Settlement talks between Greek and Turkish Cypriot leaders resumed in 2008, and in June 2009, Greek and Turkish Cypriot leaders agreed to open a new border crossing in north-west Cyprus to facilitate interaction between the two communities. D. Reservations to Treaties In 2006, the International Court of Justice had occasion to revisit its 1951 judgment on the permissibility of reservations to the Genocide Convention. In Democratic Republic of Congo v. Rwanda, the Court had to determine whether Rwanda’s reservation to Article IX of the Genocide Convention, which refers disputes under that Convention to the ICJ, precluded the exercise of the Court’s jurisdiction over the DRC’s complaint. The Court held that it could not “conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention.” In a separate joint opinion, five judges expressed concern at the “laissez faire” approach to treaty reservations followed by many states in the wake of the Court’s 1951 opinion and suggested it might be necessary to revisit the validity of reservations to Article IX in the future. The joint separate opinion is excerpted in the update to Chapter 7.Problem II.B.: Background on the Formation of Customary International Law As described at pages 582-84 of the casebook, the International Committee of the Red Cross (ICRC) released a 5000 page study on customary international humanitarian law in 2005. The study is based on a detailed review of state practice in nearly fifty countries over the last 30 years. As indicated in the text, some experts have criticized certain aspects of the study’s methodology and some of its conclusions. In March 2005, Jean-Marie Henckaerts, one of the study’s co-authors, summarized the study’s methodology in an article published in the International Review of the Red Cross, excerpted below. Methodology It is widely agreed that the existence of a rule of customary international law requires the presence of two elements, namely State practice ( usus ) and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law ( opinio juris sive necessitatis ). . . State practice State practice must be looked at from two angles: firstly, what practice contributes to the creation of customary international law (selection of State practice); and secondly whether this practice establishes a rule of customary international law (assessment of State practice). Selection of State practice Both physical and verbal acts of States constitute practice that contributes to the creation of customary international law. Physical acts include, for example, battlefield behaviour, the use of certain weapons and the treatment afforded to different categories of persons. Verbal acts include military manuals, national legislation, national case-law, instructions to armed and security forces, military communiqués during war, diplomatic protests, opinions of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international fora, and government positions on resolutions adopted by international organizations. This list shows that the practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law. The negotiation and adoption of resolutions by international organizations or conferences, together with the explanations of vote, are acts of the States involved. It is recognized that, with a few exceptions, resolutions are normally not binding in themselves and therefore the value accorded to any particular resolution in the assessment of the formation of a rule of customary international law depends on its content, its degree of acceptance and the consistency of related State practice. The greater the support for the resolution, the more importance it is to be accorded. Although decisions of international courts are subsidiary sources of international law, they do not constitute State practice. This is because, unlike national courts, international courts are not State organs. Decisions of international courts are nevertheless significant because a finding by an international court that a rule of customary international law exists constitutes persuasive evidence to that effect. In addition, because of the precedential value of their decisions, international courts can also contribute to the emergence of a rule of customary international law by influencing the subsequent practice of States and international organizations. . . . Assessment of State practice State practice has to be weighed to assess whether it is sufficiently “dense” to create a rule of customary international law. To establish a rule of customary international law, State practice has to be virtually uniform, extensive and representative. Let us look more closely at what this means. First, for State practice to create a rule of customary international law, it must be virtually uniform . Different States must not have engaged in substantially different conduct. The jurisprudence of the International Court of Justice shows that contrary practice which, at first sight, appears to undermine the uniformity of the practice concerned, does not prevent the formation of a rule of customary international law as long as this contrary practice is condemned by other States or denied by the government itself. Through such condemnation or denial, the rule in question is actually confirmed. . . . Second, for a rule of general customary international law to come into existence, the State practice concerned must be both extensive and representative . It does not, however, need to be universal; a “general” practice suffices. No precise number or percentage of States is required. One reason it is impossible to put an exact figure on the extent of participation required is that the criterion is in a sense qualitative rather than quantitative. That is to say, it is not simply a question of how many States participate in the practice, but also which States. In the words of the International Court of Justice in the North Sea Continental Shelf cases , the practice must “include that of States whose interests are specially affected.” This consideration has two implications: (1) if all “specially affected States” are represented, it is not essential for a majority of States to have actively participated, but they must have at least acquiesced in the practice of “specially affected States”; and (2) if “specially affected States” do not accept the practice, it cannot mature into a rule of customary international law, even though unanimity is not required as explained. Who is “specially affected” under international humanitarian law may vary according to circumstances. Concerning the legality of the use of blinding laser weapons, for example, “specially affected States” include those identified as having been in the process of developing such weapons, even though other States could potentially suffer from their use. . . . While some time will normally elapse before a rule of customary international law emerges, there is no specified timeframe. Rather, it is the accumulation of a practice of sufficient density, in terms of uniformity, extent and representativeness, which is the determining factor. Opinio juris The requirement of opinio juris in establishing the existence of a rule of customary international law refers to the legal conviction that a particular practice is carried out “as of right”. The form in which the practice and the legal conviction are expressed may well differ depending on whether the rule concerned contains a prohibition, an obligation or merely a right to behave in a certain manner. During work on the study, it proved very difficult and largely theoretical to strictly separate elements of practice and legal conviction. Often, the same act reflects both practice and legal conviction. As the International Law Association pointed out, the International Court of Justice “has not in fact said in so many words that just because there are (allegedly) distinct elements in customary law the same conduct cannot manifest both. It is in fact often difficult or even impossible to disentangle the two elements.” This is particularly so because verbal acts, such as military manuals, count as State practice and often reflect the legal conviction of the State involved at the same time. When there is sufficiently dense practice, an opinio juris is generally contained within that practice and, as a result, it is not usually necessary to demonstrate separately the existence of an opinio juris . In situations where practice is ambiguous, however, opinio juris plays an important role in determining whether or not that practice counts towards the formation of custom. This is often the case with omissions, when States do not act or react but it is not clear why. It is in such cases that both the International Court of Justice and its predecessor, the Permanent Court of International Justice, have sought to establish the separate existence of an opinio juris in order to determine whether instances of ambiguous practice counted towards the establishment of customary international law. In the area of international humanitarian law, where many rules require abstention from certain conduct, omissions pose a particular problem in the assessment of opinio juris because it has to be proved that the abstention is not a coincidence but based on a legitimate expectation. When such a requirement of abstention is indicated in international instruments and official statements, the existence of a legal requirement to abstain from the conduct in question can usually be proved. In addition, such abstentions may occur after the behavior in question created a certain controversy, which also helps to show that the abstention was not coincidental, although it is not always easy to prove that the abstention occurred out of a sense of legal obligation. Jean-Marie Henckaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, 87 Int’l Rev. of the Red Cross175, 178-83 (2005). In November 2006, John Bellinger III, the Legal Adviser to the U.S. Department of State, and William Haynes II, the General Counsel to the U.S. Department of Defense, wrote a joint letter to Jakob Kellenberger, the President of the ICRC, providing the “U.S. Government’s initial reactions” to the ICRC study. The letter expressed concern about the methodology employed and the facts and evidence relied upon by the authors. Therefore, wrote Bellinger and Haynes, the United States was “not in a position to accept without further analysis the Study’s conclusions that particular rules related to the laws and customs of war in fact reflect customary international law.” Excerpts of the letter follow. State practice Although the Study’s introduction describes what is generally an appropriate approach to assessing State practice, the Study frequently fails to apply this approach in a rigorous way.
Opinio juris The United States also has concerns about the Study’s approach to the opinio juris requirement. In examining particular rules, the Study tends to merge the practice and opinio juris requirements into a single test. . . . The United States does not believe that this is an appropriate methodological approach. Although the same action may serve as evidence both of State practice and opinio juris, the United States does not agree that opinio juris simply can be inferred from practice. Both elements instead must be assessed separately in order to determine the presence of a norm of customary international law. For example, Additional Protocols I and II to the Geneva Conventions contain far-reaching provisions, but States did not at the time of their adoption believe that all of those instruments’ provisions reflected rules that already had crystallized into customary international law; indeed, many provisions were considered ground-breaking and gap-filling at the time. One therefore must be cautious in drawing conclusions as to opinio juris from the practice of States that are parties to conventions, since their actions often are taken pursuant to their treaty obligations, particularly inter se, and not in contemplation of independently binding customary international law norms. Even if one were to accept the merger of these distinct requirements, the Study fails to articulate or apply any test for determining when state practice is ‘‘sufficiently dense’’ so as to excuse the failure to substantiate opinio juris, and offers few examples of evidence that might even conceivably satisfy that burden. John B. Bellinger III & William J. Haynes II, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law, 89 Int’l Rev. of the Red Cross 443, 444-48 (2007). In June 2007, Henckaerts published a response to the Bellinger-Haynes letter, excerpted below. 1. State practice Density of practice While it is agreed that practice has to be ‘‘extensive and virtually uniform’’ in order to establish a rule of customary international law, 5 there is no specific mathematical threshold for how extensive practice has to be. This is because the density of practice depends primarily on the subject-matter. Some issues arise more often than others and generate more practice. One only has to compare, for example, the practice with regard to targeting and to the white flag of truce. Questions of targeting – for example the distinction between civilians and combatants and between civilian objects and military objectives – are discussed every day in connection with various armed conflicts, are addressed in nearly every military manual, analysed in international fora, in judgments, and so forth. Practice on the protection of the white flag of truce, on the other hand, is rather sparse. In general, the topic is rarely discussed, as there are relatively few concrete cases. Nevertheless, whatever practice there is on the protection of the white flag of truce is uniform and confirms the continued validity of the rule, regardless of limited practice. Such a differentiated approach is inevitable in any area of international law. Furthermore, in order to correctly quantify the density of practice it is necessary to determine the correct value of each element of practice. While some elements of practice may constitute single precedents, other elements may reflect numerous precedents. This is particularly the case of military orders, instructions and manuals, which reflect what armed forces are trained and instructed to do and what they end up doing most of the time. Hence, a single military manual may represent numerous precedents and thus a substantial quantum of practice. In addition, the nature of the rule has to be taken into account – whether it is prohibitive, obligatory or permissive. Prohibitive rules for example, of which there are many in humanitarian law, are supported not only by statements recalling the prohibition in question but also by abstention from the prohibited act. Hence, rules such as the prohibition of use of certain weapons, for example blinding laser weapons, are supported by the continued abstention from using such weapons. However, it is difficult to quantify this abstention, which occurs every day in every conflict in the world. Permissive rules, on the other hand, are supported by acts that recognize the right to behave in a given way but that do not, however, require such behaviour. This will typically take the form of states taking action in accordance with those rules, together with the absence of protests by other states. The rule that states have the right to vest universal jurisdiction in their courts over war crimes (Rule 157) is such a rule. There are now numerous cases of national prosecution on the basis of universal jurisdiction, without objection from the state concerned – in particular the state of nationality of the accused, for war crimes in both international and non-international armed conflicts. It is true that there are relatively few cases of prosecution on the basis of universal jurisdiction, compared to the number of war crimes possibly committed. But this is so because a foreign court is not necessarily a convenient forum to investigate and prosecute persons suspected of having committed war crimes in their own or a third country, not because of a belief that states are not entitled to prosecute on the basis of universal jurisdiction. This is understandable and explains why states chose to set up ad hoc tribunals and courts and finally a permanent International Criminal Court to deal with this issue. But this does not mean that the practice is not dense enough, as suggested, to demonstrate the existence of a customary rule, in particular as we are dealing with a permissive rule. . . . Types of practice considered A study on customary international law has to look at the combined effect of what states say and what they actually do. As a result, ‘‘operational State practice in connection with actual military operations’’ was collected and analysed. . . . But an examination of operational practice alone is not enough. In order to arrive at an accurate assessment of customary international law one has to look beyond a mere description of actual military operations and examine the legal assessment of such operations. This requires an analysis of official positions taken by the parties involved, as well as other states. When a given operational practice is generally accepted – for example military installations are targeted – this supports the proposition underlying that practice, namely that military installations constitute lawful military targets. But when an operational practice is generally considered to be a violation of existing rules – for example civilian installations are targeted – that is all it is, a violation. Such violations are not of a nature to modify existing rules; they cannot dictate the law. This explains why acts such as attacks against civilians, pillage and sexual violence remain prohibited notwithstanding numerous reports of their commission. The conclusion that these acts are considered to be violations of existing rules can be derived only from the way they are received by the international community through verbal acts, such as military manuals, national legislation, national and international case-law, resolutions of international organizations and official statements. These verbal acts provide the lens through which to look at operational practice. [Henckaerts goes on to address the remaining U.S. criticisms. He notes that the value of a resolution “depends on its content, its degree of acceptance and the consistency of State practice outside it,” and defends use of ICRC statements as “relevant practice because the ICRC has international legal personality.” Henckaerts observes that NGO statements were not treated as evidence of custom, and that the Study does consider the negative practice of non-party states. On the practice of specially affected states, Henckaerts observes:] [I]t is clear that there are states that have contributed more practice than others because they have been ‘‘specially affected’’ by armed conflict. Whether, as a result of this, their practice counts more than the practice of other states is a separate question. [On the subject of opinio juris, Henckaerts adds:] 2. opinio juris [T]he Study did not simply infer opinio juris from practice. The conclusion that practice established a rule of law and not merely a policy was never based on any single instance or type of practice but was the result of consideration of all the relevant practice. . . . [M]ilitary manuals and teaching manuals may put forward propositions that are based on law, but may also contain instructions based on policy or military considerations that go beyond the law (although they may never fall below the law). This distinction was always kept in mind. Rules that were supported by military manuals were, considering the totality of practice, supported by practice of such a nature as to conclude that a rule of law was involved and not merely a policy consideration or a consideration of military or political expediency that can change from one conflict to the next. For example, the fact that the United States has decided, as a matter of policy rather than law, that it ‘‘will apply the rules in its manuals whether the conflict is characterized as international or non-international’’ was recognized as a policy decision in the Study. Hence, US military manuals are never cited as supporting evidence for rules applicable in non-international armed conflicts. Jean-Marie Henckaerts, Customary international humanitarian law: A response to US comments, 89 Int’l Rev. of the Red Cross 473, 475-83 (2005). Problem II.C.: Discerning and Applying Custom: Foreign Direct Investment (FDI) and Expropriation Although FDI declined substantially during the global financial crisis that began in fall 2008, FDI remains a major driver of the international economy. Moreover, despite the proliferation of BITS and related agreements specifying prompt, adequate, and effective as the standard of compensation for expropriated assets, disputes over expropriation continue. In recent years, for example, President Hugo Chavez of Venezuela has ordered the nationalization of an increasingly broad range of companies and assets, in industries such as oil, cement, and food processing. In May 2009, Venezuela’s National Assembly passed legislation empowering President Chavez to extend the government’s control over the oil industry. The legislation states that foreign service firms should be paid book value for their assets, less deductions for labor and environmental costs, that payment might take the form of bonds rather than cash, and that disputes should be resolved exclusively in Venezuelan courts.
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