Accelerated Formation of Customary International Law
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Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2014 Accelerated Formation of Customary International Law Michael P. Scharf Case Western Reserve University - School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Criminal Law Commons, and the International Law Commons Repository Citation Scharf, Michael P., "Accelerated Formation of Customary International Law" (2014). Faculty Publications. 1167. https://scholarlycommons.law.case.edu/faculty_publications/1167 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. ACCELERATED FORMATION OF CUSTOMARY INTERNATIONAL LAW Michael P. Scharf* I. INTRODUCTION ............................................................................... 305 II. PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW FORMATION .. 308 A. The Contemporary Importance of Customary International Law ......................................................................................... 308 B. The Elements of Customary International Law ...................... 310 1. The Objective Element ................................................... 312 a. Claim and Response Verses Articulation and Act ..... 313 b. General Verses Constant and Uniform Practice ....... 315 c. The Persistent Objector Rule ..................................... 317 d. Treaties as Source of Custom .................................... 318 e. The Role of Judicial Decisions ................................... 320 2. The Subjective Element .................................................. 322 3. The Role of General Assembly Resolutions ................... 324 4. The Sliding Scale Theory................................................ 328 III. THE GROTIAN MOMENT CONCEPT ................................................. 329 A. Nuremberg as Grotian Moment .............................................. 330 B. Other Examples of Grotian Moments Since World War II ..... 335 IV. CONCLUSION ................................................................................... 341 I. INTRODUCTION By tradition, jurists, statesmen, and scholars have looked exclusively to two factors to define whether an emergent rule has attained customary international law status: 1) widespread State practice and 2) manifestations of a conviction that the practice is required by international law.1 As a * Interim Dean and John Deaver Drinko—Baker & Hostetler Professor of Law, Case Western Reserve University School of Law. This article was based on a speech about my latest book, CUSTOMARY INTERNATIONAL LAW IN TIMES OF FUNDAMENTAL CHANGE: RECOGNIZING GROTIAN MOMENTS (Cambridge University Press, 2013), delivered at International Law Weekend 2013, sponsored by the American Branch of the International Law Association, on October 26, 2013. 1. On the international plane, customary international law is just as binding on a state as treaty law. A growing number of states’ constitutions automatically incorporate customary law as part of the law of the land and even accord it a ranking higher than domestic statutes. Bruno Simma, International Human Rights and General International Law: A Comparative Analysis, in COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW 153, 213 (1995). In the United States, customary international law is deemed incorporated into the federal common law of the United States, but some courts consider it controlling only where there is no contradictory treaty, statute, or executive act. See Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986) (holding that Attorney General’s decision to 306 ILSA Journal of International & Comparative Law [Vol. 20:2 companion to my book, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments, this article examines the largely overlooked role of a third factor—a context of fundamental change—that can serve as an accelerating agent, enabling customary international law to form much more rapidly and with less State practice than is normally thought to be possible. In these circumstances, General Assembly Resolutions and judgments of international tribunals often play a heightened role in “crystallizing” the newly emergent rule. Historically, crystallization of new rules of customary international law was viewed as a protracted process that took decades, if not centuries, to complete. French jurisprudence generally required the passage of at least forty years for the emergence of an international custom, while German doctrine generally required thirty years.2 The International Law Commission (ILC), at the beginning of its work, demanded State practice “over a considerable period of time” for a customary norm to emerge.3 Indeed, the term crystallization is often employed by the International Court of Justice (ICJ) and scholars to equate formation of customary rules with the slow growth of crystalline minerals. But, as the ICJ noted in North Sea Continental Shelf,4 sometimes customary international law has formed much more rapidly, thus challenging this geologic metaphor. detain Mariel Cuban refugees indefinitely without a hearing trumped any contrary rules of customary international law). 2. Vincy Fon & Franscesco Parisi, The Formation of Customary Law 5 (George Mason Univ. Law, Working Paper No. 02–24, 2000), available at www.law.gmu.edu/assets/files/publications/working_papers/02-24.pdf (last visited Feb. 22, 2014); see G.I. Tunkin, Remarks on the Judicial Nature of Customary Norms in International Law, 49 CALIF. L. REV. 419, 420 (1961). 3. Manley O. Hudson, Special Rapporteur on Article 24 of the Statute of the Int’l Law Comm’n, Ways and Means for Making the Evidence of Customary International Law More Readily Available, Y.B. Int’l L. Comm’n, U.N. Doc. A/CN.4/16 (Mar. 3, 1950). 4. North Sea Continental Shelf (Ger. v. Den., Ger. v. Neth.), Merits, 1969 I.C.J. 3, ¶¶ 71, 73– 74 (Feb. 20) [hereinafter North Sea Continental Shelf]. The Court stated: Although the passage of only a short period of time is not necessarily . a bar to the formation of a new rule of customary international law . an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Id. ¶ 74. While recognizing that some norms can quickly become customary international law, the ICJ held that the equidistance principle contained in Article 6 of the 1958 Convention on the Continental Shelf had not done so as of 1969 because so few States recognized and applied the principle. At the same time, the Court did find that that Articles 1 and 3 of the Convention (concerning the regime of the continental shelf) did have the status of established customary law. 2014] Scharf 307 In 2012, I was invited to tour the headquarters of the Kyocera Corporation in Kyoto, Japan, which is headed by the patron of Case Western Reserve University’s Inamori Ethics Prize. Among the products Kyocera manufactures are re-crystallized gem stones. When looking at these artificially created diamonds, emeralds, and rubies, it occurred to me that just as Kyocera is able to create precious gem stones in a short time under intense heat and pressure, so too can a context of fundamental change intensify and accelerate the formation of customary international law. Drawing from the writings of Professor Bruce Ackerman, who used the phrase “constitutional moment” to describe the New Deal transformation in American constitutional law,5 some international law scholars have used the phrase “international constitutional moment” to describe rapid paradigm shifts6 and transformative moments in international law. Stanford Law Professor Jenny Martinez, for example, has written that the drafting of the United Nations (U.N.) Charter was a “constitutional moment” in the history of international law.7 Washington University Law Professor Leila Sadat has similarly described Nuremberg as a “constitutional moment for international law.”8 Dean Anne Marie Slaughter from Princeton’s Woodrow Wilson School and University of Pennsylvania Law School Professor William Burke-White have used the term “constitutional moment” in making the case that the September 11th attacks on the United States evidence a change in the nature of the threats confronting the international community, thereby paving the way for rapid development of new rules of customary international law.9 While the phrase “international constitutional moment” might be quite useful with 5. See generally BRUCE ACKERMAN, RECONSTRUCTING AMERICAN LAW 19 (1984); see also BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 385, 409 (1991). 6. THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 150 (2d ed. 1970) (coining the phrase “paradigm shift”). 7. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 463 (2003). 8. Leila Nadya Sadat, Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1206–07 (2007). 9. Anne-Marie Slaughter & William Burke-White,