Article 75 AP I and US Opinio Juris

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:

International law is a system, regarded as a legal system, dealing with international persons, events and transactions existing in time.  Presumably therefore one starts with international law as at a given time.  If one is concerned to resolve a problem arising at that time, one applies the international law of that time.  The inter-temporal rule requires one to select the international law of the time of the transaction in question. If one is concerned to resolve a problem arising after that time, one asks how it is that international law may have changed since then, and whether the change makes any difference.  In either case, the starting point is clear, definite, unassailable – international law at a given time.

We would like to explore this idea, so pervasive in legal thought.  To give the exploration point we will take a point in time, 29 September 1945.  It was a Saturday.  We want to ask what international law was, or rather what it contained, on that day.  To simplify the analysis, we will ignore the possibility that international law may have changed during that day.  If international law exists in time, as it does, and if it changes, as it does, then it must change in time.  But for it to change within the confines of a single day may seem sudden, unsettling, untrustworthy.  Let us assume that international law takes no account of fractions of days, or that it was in fact stable on that day.  On that assumption, all we need to do is to discover its content then.

It will be clear that we could not answer that question within the confines of a single article.  The result would be a textbook, International Law as it was on 29 September 1945, which people could read who had a problem arising on that day.  No doubt some might read it who had a problem arising on the day after, or the day after that (although they would have to ask the second question, ‘what has changed?’, a question which the book would not answer).  So we will not ask what all of international law was on that day – in Joseph Raz’s terms, the content of the momentary legal system that was international law on that day. To take another simplifying step, we will limit ourselves to asking what one particular proposition of international law was on that day.  The proposition we have chosen is the proposition that a state has, or does not have, a continental shelf.  What did international law have to say about that proposition on that day?

Before discussing that question, we should point out that 29 September 1945 was the day after 28 September, the day on which President Truman of the United States issued two proclamations.  One, which is well-known as the Truman Proclamation, was a Proclamation with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf. The second was a Proclamation with respect to Coastal Fisheries in Certain Areas of the High Seas.

…

Thus the question is not whether the norms articulated in the Continental Shelf Proclamation came to be recognized as norms of general international law.  It is clear that they did so.  The question is what the status of those norms was the day after they were made.  That is a normative and not a historical question, but like most normative questions in international law, and all normative questions as to matters morally indifferent, it cannot be answered without detailed historical inquiry.

And from the conclusion:

It is difficult to draw from a single case [that of the Truman Proclamation] conclusions about the difficult and diffuse processes of the creation of customary norms.  But some observations may be made.

First, opinio juris was lacking, if by opinio juris is meant the opinio of the state in question as to the existing law.  The relevant officials of the United States (those who addressed their minds to that issue) did not believe that the content of the Proclamation was already international law, although understandably they did not stress that belief at the time the proclamation was issued.

On the other hand, opinio existed at a different level, i.e. as to the immediate future.  The Proclamation articulated a rule which the United States was prepared to live by in the future, i.e. from that moment onwards, for itself and for others.  In this sense a proclamation was necessary in order to establish a rule that a continental shelf would be attributed to each coastal state without the need for a proclamation.  The opinio took the form of a settled conviction as to what the law should be, and would be for the proclaiming state.  It was in no sense divorced from policy considerations; on the other hand, it contained no element of paradox.  One can without contradiction announce the intention to live by a certain rule, if one does live by it from that time.

But escaping one paradox seems to lead to another.  On the one hand, it cannot be the case that the Proclamation had the immediate effect of a piece of legislation.  In the international system there is no central legislative authority, not even the President of the United States.  On the other hand, it would be odd to treat the Continental Shelf Proclamation, a rational attempt to develop the law based on an articulation of principle that came to be widely accepted, as unlawful at the time.  Not only would this raise the question how unlawful conduct could lead to a change in the law (ex injuria jus non oritur).  It also overlooks the reaction to the Proclamation, which was one of caution in some quarters, welcome in others, but so far as governments were concerned, in no case one of condemnation.  If the Continental Shelf Proclamation was unlawful, why was it not protested?  If it was unlawful, at what point did it become lawful?  We seem to have a case, within the momentary legal system of international law as it was on 29 September 1945, of a question that cannot be answered, of conduct that was neither lawful nor unlawful (or perhaps contingently both).

We are pushed back to the idea of the momentary legal system itself.  At least in the context of a custom-based system, that idea seems to make no sense.  Or rather, it is an ex post facto construct.  One cannot tell what all of international law was on a given day until after that day.  Custom is developed by a dialogue in time. By definition, therefore, instant custom is excluded.  Like good coffee, international law has to be brewed.

This does not mean that a court could not have answered a question about the Continental Shelf Proclamation by reference to 29 September 1945.  How that question would have been answered would have depended, inter alia, on the wisdom of the Court.  It might, as the International Court did in the Fisheries Jurisdiction cases, have refused to anticipate the law before the law-maker had laid it down, although that statement related more to the interaction between the Court and a major UN lawmaking conference than to the processes of the development of custom as such.  Moreover, despite its protestations, the Court did then develop the law in the direction in which it was going.

In the context of our putative case about the Continental Shelf Proclamation, other reactions would have been possible.  The court could have resorted to a bilateral determination of rights and duties, leaving the multilateral position flexible.  In other words, like the International Court in the Fisheries Jurisdiction cases, it could have used the language of opposability rather than legality.  Its decision could have been made as fact-specific as possible, avoiding determinations of general principle.  Or it might have grasped the nettle, endorsed the reasons for the continental shelf doctrine given by the United States, and discerned from the reaction to the Proclamation the actual or prospective acceptance by governments of the doctrine.  Whatever its approach, the decision would have referred implicitly or explicitly to the whole body of material which was relevant to the status of the Proclamation.  It would not have been limited to the material evidence of a single day.

We do not mean to infer that rules of customary international law are merely generalizations which dissolve on scrutiny.  But when existing rules are challenged with the kind of opinio which the United States manifested in the Proclamation – opinio not as to the meaning or application of an existing rule but as to the content of the law – the content of the law is placed in question, and the answer to the question can be neither immediate nor automatic.

The subsidiary and secondary character of momentary legal systems was accepted by Raz himself.  He did not suggest ‘that momentary legal systems can be analysed independently of the legal systems to which they belong’. On the contrary ‘both the identity and the existence of momentary systems can be determined only by reference to other momentary systems of the same legal system’ – we would prefer to say, only by reference to the processes of the legal system which enable one to tell, more or less, what the law was at a given time.  This is at any rate the case with customary law in a decentralized system.  ‘A legal system exists at any given moment if this moment is part of a period in which it exists.’ In a way, it is the movement of the system across time (the continuing attitude of the actors to it across time) which comes first.  Its content at a given time is its product.

[all footnotes omitted]