Obama’s Bizarre New Theory of Customary International Law

by Kevin Jon Heller

As readers of the blog no doubt know, Syria is is one of seven states that have not ratified the Chemical Weapons Convention (CWC). (The others are Angola, Egypt, Israel, Myanmar, North Korea, and South Sudan.) To consider Syria’s use of chemical weapons as a rationale for attacking the country, the USG obviously needs to assume that the use of such weapons is prohibited by customary international law. I have no doubt that they are; after all, the CWC has been ratified by 96% of the world’s states, and nearly all international scholars accept the idea that so-called “law-making” treaties like the CWC can generate custom. As Brownlie says in his Principles of International Law, “the number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to create a customary rule.”

The key is “the number of parties.” I have never seen a scholar suggest — much less an actual international court or tribunal — that whether a treaty gives rise to custom depends on the percentage of the world’s population that lives within the territorial confines of the parties to the treaty. Yet that is exactly what the Obama administration seems to be arguing. Here is what Obama said a few days ago to reporters in Sweden (emphasis mine):

“My credibility is not on the line. The international community’s credibility is on the line,” he said.

“America and Congress’s credibility is on the line, because we give lip-service to the notion that these international norms are important.”

Mr Obama, who has previously said the use of chemical weapons would cross a “red line”, told reporters it was not him who set this line but the world, “when governments representing 98% of the world’s population said the use of chemical weapons are abhorrent and passed a treaty forbidding their use even when countries are engaged in war”.

I thought Obama’s emphasis on population might have been an aberration, a slip of the tongue or a inartfully-written phrase. But Samantha Power said the same thing yesterday at the Center for American Progress (emphasis mine):

In arguing for limited military action in the wake of this mass casualty chemical weapons atrocity, we are not arguing that Syrian lives are worth protecting only when they are threatened with poison gas.

Rather, we are reaffirming what the world has already made plain in laying down its collective judgment on chemical weapons. There is something different about chemical warfare that raises the stakes for the United States and raises the stakes for the world.

There are many reasons the governments representing 98 percent of the world’s population, including all 15 members of the U.N. Security Council, agreed to ban chemical weapons. 

Is the Obama administration promoting a new theory of custom, one in which the customary status of  treaty depends upon the percentage of the world’s population represented by states that have ratified it, not the number of states themselves? It certainly seems to be. But why? Why not simply point out that the CWC has been ratified by 96% of states instead? Surely that must be enough to generate custom — perhaps even jus cogens!

May I venture a cynical answer? If the Obama administration had gone the black-letter route, arguing that Syria is bound by the CWC’s prohibition on the use of chemical weapons because 186 states have ratified the CWC, that would mean the US is bound as a matter of custom by a number of treaties that it has refused to ratify. The Convention on the Rights of the Child, for example, has been ratified by 190 states — 98%. So, too, the Biodiversity Convention. Even the much-maligned Kyoto Protocol has been ratified by 189 states, also 98%.

But now apply Obama’s new “98% of the world’s population” test for customary international law. Which treaties the US has refused to ratify reflect custom under that test? None of them — because the US represents 5% of the world’s population. Indeed, no treaty that does not include the US could ever cross the 98% threshold.

Magic! And convenient magic at that.

PS. I am not claiming it is 100% certain — or even 98%… — that Obama and Power are articulating a new view of the relationship between treaties and custom. It’s completely possible they are making nothing more than a political argument. But I assume that lawyers vet these speeches — especially given the surprisingly central role IL has played in the debate over Syria. I also assume that Obama and Power are aware that the CWC, which both have specifically invoked (not simply “norms” against the use of chemical weapons), does not directly bind Syria. So I think it’s fair to at least speculate that, in defending the supposed “red line” drawn by the CWC — itself illusory, as the CWC does not permit the use of force in response to breaches — it’s not an accident that neither Obama nor Power said “96% of the world’s states” but strangely emphasized 98% of the world’s population instead.

http://opiniojuris.org/2013/09/07/obamas-bizarre-new-theory-customary-international-law/

24 Responses

  1. Relax a bit. He isn’t making a technical legal argument, but instead a political argument to persuade. I would not read this as the announcement of a new view as to CIL.

  2. This is indeed an interesting and novel argument to be inferred from Obama’s and Power’s speeches by focusing on the *population* rather than the actual number of states that have ratified a treaty to state that such a treaty has given rise to a CIL norm. I wonder what the outcome would be if by population could be relied on to show the percentage of either the P5 in the UNSC or even the entire world, that oppose military intervention in Syria for instance – China (1.3 billion) Russia (143 million) United Kingdom 63 million and finally the catholic church (1.2 billion). 
    Furthermore, by relying on population, Obama and Power imply that the entire population of a country – including a state’s opposition, are always in agreement with the actions taken by that state’s government internationally. 
    In any case, this justification for the use of force appears to be a political – rather than a legal justification and it is common for the justifications for the use of force to change depending on the audience. It would indeed be interesting to see how the ICJ treat this argument…

  3. The 68th session of the UNGA Sixth Committe (legal) is just around the corner.. Make sure you forward this blog post to Sir Michael Wood.

  4. Commonsense tells us this is a speech for political consumption, not legal argument. It does repay such over-analysis.

  5. Yes, and of course legal analysis has no part in political argument. So the countless references by Obama and Power to international law must be completely meaningless — even, or perhaps particularly, when they make the same argument in almost exactly the same terms. Must be a coincidence. It’s not like they’re the President of the United States and the United States Ambassador to the UN and currently contemplating launching an illegal attack. In fact, we should probably formally adopt a canon of construction that says all statements made by an official of the Obama administration should be interpreted as innocuously as possible. After all, Obama has a Nobel Peace Prize. And it’s not like the US ever adopts unusual interpretations of international law or anything.

  6. If this way of phrasing it becomes a recorring phenomenon, I don’t see why it shouldn’t be legally relevant. (And cause for suspicion.)
     
    But something else: am I the only one who is troubled by the idea that CIL can operate to bind a state to a treaty-norm that it has explicitly and deliberately refused to ratify? Whatever happened to persistent objectors? As far as I’m concerned, CIL can only be legitimate it states can opt out of norms somehow. I’ll accept ius cogens as an exception, but otherwise no state should be bound by any norm without its consent. There is no majority rule voting in international law.

  7. 1.  Like several others here, I would have answered your original question — “Is the Obama administration promoting a new theory of custom, one in which the customary status of  treaty depends upon the percentage of the world’s population represented by states that have ratified it, not the number of states themselves?” — not with “It certainly seems to be,” as you did, but with “Almost certainly not.”  It can’t be excluded, of course, but if we’re sticking with percentages, I would attach something in the 1-2% range.  This is clearly a political appeal rather than a legal argument, and there are clear reasons why establishing a breach of CIL wouldn’t be the key to justifying military intervention.  It is highly unlikely that there is profit in moving discussion into the realm of international law, and also unlikely this was supposed to have theoretical import as opposed to being one more kind-of-factor.
    2.  Granted, there is always within political argument the possibility of legal theory.  If we had to explain the emphasis on 98% — versus, say, 96% of states — perhaps it’s that 98 is larger than 96.  If we had to shoehorn this into a theory of CIL, perhaps it would be that beyond establishing widespread commitment in terms of the number of states, it’s not irrelevant to cite other factors like representativeness or whether specially affected states are concerned, and ticking off Security Council members and a huge chunk of the world’s population isn’t a bad feature to note.  Again, though, it is not a claim that percentage of population is independently sufficient or that the number of states is irrelevant.
    3.  Here’s where I would come closest to your issue, and why I think it is helpful that you flagged it.  I do not think that the US would ever casually acquiesce in any theory suggesting that a high proportion of the states being party to a treaty automatically converted it into CIL; I assume the reasons go without saying.  So, citing other factors as being salient, including population, helps avoid aligning with any such proposition (with, as you say, the neat, perhaps inadvertent feature that 98% automatically excludes US-opposing scenarios — but, if I were advising anyone, I would say 98 is tomorrow’s 95, and the US may not be 5% for long).  This is more like theory negation than a new theory, though, and the clearer reservation for future purposes is that neither Obama nor Power put the point in terms of international law.

  8. Kevin,
    Regarding the Security Council reference, I think the President is referring to UNSCRs 1540, 1673 and 1977, in which the Security Council “decided” that states must prevent and implement effective measures to prevent the production, acquisition or use of nuclear, biological and chemical weapons (hereinafter, WMD) by non-state actors.  Query whether that adds anything at all to the alleged norms against production, stockpiling and use of WMD by states.
    Maybe one can make an argument that Syria has failed to comply with these decisions (and therefore legal obligations via Art. 25 of the Charter) by negligently maintaining and intentionally using the weapons.  Both seem to have resulted in alleged uses of such weapons by the rebels.  Or, perhaps if the U.S. recognizes the opposition as the government of Syria and the Assad regime becomes a non-state actor, U.S. actions would be designed to implement these UNSCRs in light of the “recognized” Syrian government’s failure or inability to do so (or even at their request for assistance in doing so).
    Of course, neither of these arguments are all that persuasive given the Art. 2(4) prohibition on the use of force between states and the fact that no treaty (as you mentioned) or Security Council decision authorizes force in response to violations of these obligations.  Then again, “implied Security Council authority” arguments for Kosovo and Iraq were equally shaky.
    One other thing worth mentioning in relation to your post, though, is that while the U.S. regularly avoids ratifying various treaties it often does so while (often ambiguously) declaring that the treaty in question largely, but not fully or accurately, reflects customary law.  Naturally (and no doubt intentionally) this allows picking and choosing, and sometimes selective redefinition, of its view of customary norms.  I am not sure whether this is an irresponsible approach, or at least any less responsible than a state ratifying a treaty that with which it has no intention of fully complying.

  9. Blackstone: “The law of nations … [is] established by universal consent of the civilized inhabitants of the world.” [but, of course, today, in part by general patterns of opinio juris, not consent as such and not merely by universal consent. 
    United States v. von Leeb (The High Command Case) (1948): “Since international common law grows out of the common reactions and the composite thinking…, it is pertient to consider the general attitude of the citizens of states….”
    And recall that states are not the only formal actors in the international legal process (e.g., there have also been nations, peoples, tribes, cities, belligerents, etc.).

  10. One other item of note.  The website of the Organization for the Prohibition of Chemical Weapons (OPCW, established pursuant to the Chemical Weapons Convention) uses the same statistic, 98% instead of 96%.  The administration might just be parroting that.  In fact the OPCW website goes even further, “98% of the global population and landmass, as well as 98% of the worldwide chemical industry….”

  11. Blackstone mentioned civilized inhabitants of the world; U.S. von Leeb mentioned citizens re: relevant opinio

  12. If a state party to the CWC abstains from using chemical weapons, that doesn’t show that it considers itself bound by CIL to abstain, since its abstention is sufficiently explained as compliance with the treaty.  To demonstrate a customary prohibition, the relevant practice would be that of states not party.

  13. Neither Barack Obama nor Samantha Power refer explicitly to the Chemical Weapons Convention. They are most likely referring to the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925, which was ratified by Syria in 1968 : http://www.icrc.org/ihl/INTRO/280?OpenDocument

  14. Diallobe,

    They have referred to the CWC numerous times over the past few weeks. And I would hope they are not referring to the 1925 convention, given that it applies only in international armed conflict.

  15. Ed,

    Your points are well argued and well taken, especially (3). I simply think there are enough knowledgeable lawyers in the Obama administration to assume that they’re aware Syria’s use of CWs does violate the CWC unless its provisions bind them — which they only do if the CWC reflects custom. Maybe the administration doesn’t care about that point, just as they don’t care about Art. 2(4) of the Charter. But I’m skeptical.

  16. John,

    All fair points…

    (And congrats on the new job!)

  17. I beg to respectfully differ. In the French Senate, the conventional wisdom is that Syria violated the Geneva Protocol of 1925, which implies that it applies to civil wars. See the address by Senator Rebsamen on 4 September 2013 : « Le régime de Bachar al-Assad a violé la convention internationale signée en 1925 » http://www.senat.fr/cra/s20130904/s20130904_mono.html#par_121

  18. According to the ICRC, UNGA Resolution 2603 (XXIV), adopted 80-3 in 1969, provides the definitive interpretation of the Geneva Protocol of 1925. According to that resolution, the Protocol “embodies the generally recognized rules of international law prohibiting the use in international armed conflicts of all biological and chemical methods of warfare.” Rule 74 of the ICRC’s study of custom also lists the Geneva Protocol only in the section concerning international armed conflict. 

  19. See also Christopher Greenwood, “The Law of Weaponry at the Start of the New Millenium”, International Law Studies, US Naval War College, Rhode Island, USA, volume 71, 1998, p. 212 :
    “While it had been argued by some States and commentators that the prohibition in the 1925 Protocol was also applicable to non-international conflicts <126>, the matter was not free from doubt and the greater clarity of the new Convention is thus most welcome.”
    and note <126> : “see e.g., the statement by the Government of the United Kingdom condemning Iraq’s use of gas against Iraqi civilians at Halabja in 1988, 59 BRIT. Y.B. INT’L L.579 (1988), quoted with approval by the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia in Prosecutro v. Tadic (Jurisdiction), supra note 45, at 517-18.”
    https://www.usnwc.edu/getattachment/22b2d5a6-3faa-4e95-a36e-f664e7e67560/The-Law-of-Weaponry-at-the-Start-of-the-New-Millen.aspx

  20. Those sources mention a grand total of two states that believed the Geneva Protocol applied to civil wars: the UK and Germany. Against that we have the 80 states that voted in favor of the UNGA Resolution and the ICRC’s formal position. I know which one I’m going with.

  21. Kevin: a “belligerency” (as in the case of the U.S. Civil War), as opposed to an “insurgency” is an armed conflict to which all of the customary laws of war apply (as known at least since the U.S. Civil War and creation of the 1863 Lieber Code).  There are, of course, other actors than “the state,” and in this special circumstance the SNC has been recognized as the legitimate representative of the Syrian people.
    Kerry and Obama and others have also spoken of a prohibition around for 100 years — presumably the 1907 HC No. IV, annex,, art. 23 (which has roots in the 1863 Lieber Code) and perhaps they mean the 1925 Geneva Protocol, which also reflects CIL.

  22. Perhaps what we colloquially call the “Syrian civil war” is actually an international conflict, as the Syrian rebellion is a Saudi Arabia/Qatar/Turkey proxy.
     
    The UNGA resolution seems to be a minimal agreement between the nations. It doesn’t seem that the nations that have a broader view as regards the application of the 1925 Protocol renounce their broader view while they express that their broader view intersects the narrower view of the narrow-minded nations, if there is any such narrow-minded nation.

     
    Part B of the UNGA resolution calls for “universal applicability”. This sounds consistent with a broad approach. Also If the use of chemical weapons in civil wars were legitimate, why should Part B call for the “elimination” of chemical weapons ? The call for “elimination” seems equivalent to judging that the use of such weapons is legitimate under no circumstance whatsoever.
     
     
     

  23. Obama used this formulation again twice in his speech just now. ‘Percentage of humanity’ – it’s an awkward, unnatural construction. I share Kevin’s reading that this is meant to be of legal significance.

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