Two days ago the US President issued a new executive order on the detention policy in Guantanamo (see this post by Bobby Chesney at Lawfare for a summary and analysis). The President also made several important statements; among these was the following:
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.
Over at Opinio Juris, Ken Anderson rightly points out that this is an expression of, well, opinio juris by the United States that the rule contained in Art. 75 AP I, even though not binding on the US as a matter of treaty obligation, was now binding on it and all other states as a matter of custom. Of course most scholars, the ICRC etc. have claimed that Art. 75 has a customary status, and the same conclusion was reached by a plurality (but not a majority) of four justices of the US Supreme Court in Hamdan. This affirmation by the executive is certainly a welcome development in US detention policy, but of course its practical effects (if any) yet remain to be seen.
Also at Lawfare, John Bellinger, who has long advocated that the US accept Art. 75 as reflective of customary law, has some additional comments which are well worth reading. The one that I found most interesting was the following:
It is also important to note that (contrary to the views of four present or past justices of the Supreme Court) the Administration has not concluded that Article 75 already constitutes “customary international law.” This would have required the Administration to determine that almost all the states in the world accept Article 75 as a legally binding obligation, which would have been difficult to do. Instead, the Administration has announced that it will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual detained in an international armed conflict, and expects all other nations to adhere to these principles as well.” In other words, the Administration is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.
There are I think several important points of principle raised by John’s comment, all about the nature of opinio juris, that pithy piece of legalese Latin. First, contrary to what John seems to argue, an official statement by a state that a rule is of a customary nature does not actually require that state to examine the practice of other states and establish its uniformity; its own belief (which may well be mistaken) is enough. Second, the US statement is indeed an example of opinio juris, not state practice – at least not unless practice can be purely verbal in nature, which is a contentious point; the real practice that needs to be established is the actual treatment of prisoners in state custody. This of course brings us to the issue as to what the exact ‘mix’ of opinio juris and actual practice needs to be in order to create a rule of custom.
The most interesting point, however, is that John interprets the statement not as being declaratory of existing custom, i.e. of a rule that was binding on the US even before the statement was made, but as constitutive of a new, future custom, that would bind the US from this point onwards. This is I think a perfectly valid interpretation, but is not the only possible one. Note of course that if Art 75 already was customary in nature, then the US statement would be neither here nor there, as the rule would already have been binding on the United States. If, on the other hand, Art. 75 was not customary at the time of the US statement, then the expression of US opinio juris might take it over the tipping point. The question, therefore, is whether Art. 75 reflected customary law in the morning of 7 March 2011, before the statement was made.
This raises the fundamental issue as to how the existence of rule formed through a heterogeneous, decentralized process like custom can be determined at any given time. Can this even be done? Can an official statement by a government be taken as a declaration of what the law is, or as what it should be, and how do we tell the difference? I was immediately struck by a parallel between this statement and the famous Truman Proclamation, whereby the United States asserted the existence of a customary rule that recognizes the rights of states over their appurtenant continental shelf.
In that regard, in 1994 James Crawford and Thomas Viles wrote a superb piece called ‘International Law on a Given Day’, originally published in K Ginther & ors, Völkerrecht zwischen normativen Anspruch und politischer Realität. Festschrift für Karl Zemanek zum 65. Geburtstag (Duncker & Humblot, Berlin, 1994) 45-68 and later reprinted in a collection of Crawford’s essays. It is regrettably not available online, but I will now reproduce some of its extraordinarily insightful (and beautifully written) passages from its introduction:
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