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Trade, Economics and Environment

Book Symposium Investment Law: International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict

by Philipp Ambach

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.]

The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict.

Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established.

International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ – to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes.

Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.

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Book Symposium Investment Law: Comments on Gleider I. Hernandez

by William Burke-White

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.]

I am delighted to have this opportunity to engage with the excellent chapter by Gleider Hernandez on the interaction between investment law and the law of armed conflict. The chapter makes an important contribution to an under-studied area of law, namely the interplay of international investment law and other specialized subfields, particularly international humanitarian law. I am hopeful that this chapter will open a broader discussion in this space, which is of both significant jurisprudential and practical consequence.

Let me say at the start that I agree with Gleider’s overall approach. Both international investment law and international humanitarian law are specialized sub-fields of public international law, both fields frequently reference public international law generally, and both should be treated as part of the broader system of public international law. Perhaps as a consequence of the growing depth of particular subfields of international law or the nature of issue-specific scholarly inquiry today, all too often fields such as these are studied in isolation. As a result, their interactions are often overlooked and possibilities for mutual synergy (or conflict) are neglected. I credit Gleider (and the editors and contributors of the volume as a whole) for taking on these interactions directly and examining closely the way these fields overlap and interact.

Turning to the substantive question, however, I would take a somewhat different approach. (more…)

Book Symposium Investment Law: The Interaction Between Investment Law And The Law Of Armed Conflict In The Interpretation Of Full Protection And Security Clauses

by Gleider Hernandez

[Dr Gleider I. Hernandez is a Lecturer at Durham Law School]

I am grateful to the organisers of this symposium on the collection, edited by Dr Baetens, on the interaction of international investment law (‘IIL’) with other areas of public international law (‘PIL’). Broadly speaking, I identify as a ‘generalist’ international lawyer, one who is interested in the system as a whole and how its organs and agents grapple with emerging problems of global governance. As such, when I was approached in 2011 to consider and address the interaction between two specialised regimes within international law, I leapt at the opportunity to consider how the law of armed conflict, and specifically, international humanitarian law (jus in bello or ‘IHL’), a distinct legal regime that, in its modern form, has been developing through multilateral treaty practice for well over a century, would be considered within the sphere of international investment law, a relatively new area of international law that has blossomed in the last two decades, yet primarily through bilateral treaty practice and through a rich body of case law.

The results were very interesting. With abundant treaty practice in which bilateral investment treaties (BITs) embedded variously-termed clauses providing for protection and security in various forms, the interaction and possible conflict of norms between these two specialised regimes was inevitable. Indeed, factually speaking, a substantial portion of modern investment disputes have arisen precisely through the continued scourge of armed conflicts between and within States. As such, two questions needed to be considered: first, the manner through which public international law has addressed and considered the effects of armed conflicts on rights and obligations, and whether generalised, abstract rules and principles can be distilled; and secondly, whether practice in the area of investment law—specifically treaty practice in BITs and the interpretation of such treaties by specialised investment tribunals—could be said to be in harmony with the general international law framework.

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Book Symposium Investment Law: Comments on Vid Prislan’s Chapter

by Kathleen Claussen

[Kathleen Claussen is a Legal Counsel at the Permanent Court of Arbitration. The views expressed in this post are those of the author only and do not reflect any view of the Permanent Court of Arbitration or its staff.]

Vid Prislan’s chapter on non-investment-treaty obligations in investment treaty arbitration tackles a common issue in tribunal decisionmaking that has not been fully theorized or understood. His work advances that effort by examining ways in which tribunals take account of non-investment-treaty obligations and by acknowledging that these methods may be viewed as insufficient for responsible administrative governance on the part of state actors. Thus, he concludes that states should undertake efforts to amend treaty language so as to accommodate all their obligations and interests and to “ensure greater predictability and coherence in the interpretation of treaty terms.”

Prislan’s chapter touches on two important themes. On one hand, the chapter is a commentary on state obligations. It speaks to how states can better manage their international obligations, as well as their domestic obligations, with an eye toward avoiding conflicts between them. From a second angle, Prislan makes a contribution to the debate on the future of the international investment law “system” or “regime.” On either reading, the chapter provides some useful takeaways; this short post makes some brief comments on each.

Prislan focuses on the conflicts he perceives between and among treaties and domestic law. He outlines ways through which these perceived conflicts might be resolved using interpretative tools. Certainly, others would argue that investment treaties in particular are designed with that in mind to allow states to maintain many of their obligations through exception provisions or through clauses permitting a state to accept liability by compensating an investor in full, and thus, what Prislan views as “conflicts” are in fact provided for in the instruments themselves, even if only implicitly. Prislan nevertheless sets out to sketch a means of harmonizing state obligations in an effort to avoid asking arbitral tribunals to reconcile or resolve seemingly incompatible obligations.

In so doing, Prislan emphasizes the limited flexibility of arbitral tribunals – limited by the scope of interpretative methods. An equally interesting discussion could be raised as to who should decide how perceived conflicts among instruments will be resolved. Interpretative tools are not limited to the use of arbitral tribunals; rather, reconciliations among competing obligations are made by a wide range of actors. At least for purposes of his chapter, Prislan accepts that arbitral tribunals are the default interpreters without questioning the larger design that sets up tribunals as the front line of decisionmaking. Have states made a mistake in electing to have these matters resolved by a panel of three non-governmental decisionmakers rather than an apparatus among the government’s own administrative machinery? Perhaps what underlies Prislan’s analysis is a recommendation that states take themselves out of such now common dispute resolution mechanisms where such competing obligations are managed in these ways.

This consideration brings us to think about another reading of Prislan’s chapter: as a commentary on the future of the investment system. (more…)

Book Symposium Investment Law: Non-Investment Obligations in Investment Treaty Arbitration – Towards a Greater Role for States?

by Vid Prislan

[Vid Prislan is a Research Fellow PhD-candidate at the Grotius Centre for International Legal Studies of Leiden University]

First of all, I would like to thank the editors of Opinio Juris for providing me with the opportunity to briefly present the arguments which I raise in my chapter in Investment Law within International Law: Integrationist Perspectives.

My chapter deals very broadly with the issue of non-investment obligations in investment treaty arbitration. It does so by exploring how investment tribunals can consider (and take into account) arguments based on sources of obligations other than those under investment treaties.

The possibility of considering non-investment obligations has occasionally been questioned by reference to the limited jurisdictional competence of investment tribunals. Indeed, the jurisdiction of these tribunals is not unqualified, but limited by the extent to which the States assented to it in the underlying investment treaty – that is, potentially confined only to pronouncing upon alleged violations of the substantive rights under the treaty. Yet, I argue, first of all, that jurisdictional limitations do not necessarily restrict the scope of the law applicable to the dispute. In most cases, in fact, investment tribunals will enjoy broad latitude with regard to the scope of the legal rules that they are entitled to apply, which makes it possible for them to consider, and indeed apply, obligations other than those under the treaty. Second, I contend that investment agreements were not conceived as self-contained regimes, and therefore, cannot be applied in isolation of other rules and principles of international law. In particular, I argue that, at the very least, rules of customary international law, as well as general principles of law remain applicable, to the extent that their application has not been excluded by the investment treaty as lex specialis.

Even if one accepts that jurisdictional limitations potentially prevent investment tribunals from directly adjudicating upon claims based on non-investment obligations, there is no impediment for investment tribunals to consider these rules when constructing the meaning of the substantive protections laid down in an investment treaty. I suggest that some of the jurisdictional limitations may be overcome by taking account of non-investment obligations in the process of interpreting the provisions of the investment treaty. I focus specifically on three interpretative techniques that can be applied by investment tribunals for this purpose.
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Book Symposium Investment Law: A reply to Prof. Tullio Treves’ comments

by Nicolas Hachez and Jan Wouters

[Nicolas Hachez is a PhD student at the institute for International Law and Leuven Centre for Global Governance Studies and Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).]

First of all, we would like to thank Prof. Treves for his kind words on our chapter, and for his very interesting ‘think outside the box’ comments.

Prof. Treves’ observations contain three main points:

  • Alternative dispute resolution mechanisms as an alternative to arbitration
  • The recent denunciation of the ICSID convention by a number of state parties
  • The possibility to mirror the ‘prompt release’ procedure set out in art. 292 of the UN Law of the Sea Convention in international investment law.

We will address Prof. Treves’ points in that order.

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Book Symposium Investment Law: Observations on Hachez and Wouters’ Chapter

by Tullio Treves

[Tullio Treves is a Professor of International Law at the University of Milano and a Public International Law Consultant at Curtis, Mallet-Prevost, Colt & Mosle LLP in Milan]

This chapter is entitled “International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?” It is a detailed and well reasoned review of the criticisms raised against arbitration as the  mechanism dominating the settlement of international investment disputes, of the steps already taken or underway to attenuate the negative aspects addressed by such criticism, and of the more ambitious reforms that have been proposed.

Among the criticisms addressed are the following: that the arbitral model “fails to live up to the basic precepts of democracy and the rule of law” and shows a lack of consideration of the public nature of the interests involved;  that there exists a real or perceived bias of arbitrators (and of the arbitrators’ appointing authorities) in favor of investors due inter alia to the fact that many arbitrators are at the same time practicing lawyers in law firms which may have to cater to the interests of other clients not involved in the specific dispute; that the process lacks transparency; that contradictory decisions  involve a risk of fragmentation. Notwithstanding these criticisms, the authors’ “interim conclusions” are that “arbitration works well most of the times” but that “in view of the requirements of the rule of law and in light of the public interest, ‘working well most of the time’ is not enough” (p. 434).

The  “current reforms” examined by the authors and aimed at overcoming the criticisms concern transparency and the participation in proceedings by “non-parties” such as public interest non-governmental organizations as amici curiae. The assessment of the authors is summarized in the relevant chapter’s title: “too little, too late” and further elaborated  explaining that: “these reforms are unlikely to resolve the legitimacy crisis by themselves. … the transparency reforms remain subject to the consent of the parties and therefore do not institutionalise transparency per se” (p. 438).

The more ambitious proposals for reforming the system are considered in a chapter entitled “Doing away with arbitration?”. As a matter of fact, only a short passage about alternative disputes resolution methods (as mentioned in the US Model BIT) concerns alternatives to arbitration. Most attention is given to the proposals, which are far from being accepted so far, for eliminating from investment agreements the exclusion of the exhaustion of local remedies rule and for introducing an appellate level, possibly through  an institutionalized permanent body. The newly acquired European Union competence in the field of investment is seen as a factor that  might change the present situation in which important reforms (including that concerning an appellate body) seem impossible. In a chapter on “Doing away with arbitration?”, one could have expected a discussion of the implication of recent denunciation, by various States, of the ICSID Convention and of BITs, which seems to me the most radical aspect of recent practice for “doing away with arbitration”.

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Book Symposium Investment Law: Comments on Freya Baetens’ Introductory Chapter

by Laurence Boisson de Chazournes

[Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva, Switzerland].

In her chapter, Freya Baetens notes that it is necessary to scrutinize “how concepts, principles and rules developed in the context of other sub-fields could (or should) inform the content of investment law.” This scrutiny is well-deserved, as the interrelations of other bodies of norms with the corpus of norms related to investment law have gained traction but remains ambiguous.

The notion of cross-fertilization and that of legal regimes informing one another are abundantly referred to. While I share this a-hierarchical vision (with the caveat of the possible application of jus cogens and erga omnes obligations) of the relationships among different bodies of law, one should be cautious so as not to transform a land of its own—i.e., international law—into an archipelago of islands more or less connected, which needs artificially created pathways.  There is no reason for international investment law, as a field of public international law à part entière, not to be incorporated in the universe of international law.

In addition to stressing the need for decision-makers to adopt a systemic view of such interrelationships, Freya highlights the key role that rules of interpretation play in promoting a more unitary approach.  Much more attention should be paid to the set of rules as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties.  These rules should be observed as a set of objective rules (to be interpreted in conformity with the rules they provide for) and not as a menu left to the taste and desire of tribunals.

I would like to draw attention to the concept of mutual supportiveness which has emerged as an interpretative tool. Freya’s viewpoint evokes it. It constitutes a lens through which international law is increasingly observed. Mutual supportiveness implies that States and arbitrators should refrain, whenever possible, from construing conflicts between international investment obligations and other legal interests. Moreover, there should be mutual adjustments: on each side, there should be an attempt to prevent the eruption of a conflict. This can be done in an ex ante manner at the time of the negotiation. Freya’s chapter provides some examples in this respect. States bear an important responsibility in this context. The prevention of the eruption of a conflict can also be done in an ex post manner when a dispute is to be settled.  This is where the rules of interpretation play a key role.  It undoubtedly focuses attention on the powers of tribunals.  The wording and content of investment treaties is of crucial importance in an interpretative context.

The principle of mutual supportiveness has most prominently emerged in the relationships between international trade and the environment, but is not limited to this area.  For example, the OECD has incorporated mutual supportiveness as a primary principle in its Green Growth Strategy Report (2011), encouraging Member States to foster compatibility between their investment-related and environmental policy goals.

I then would like to make two observations related to two so-called sub-fields. One of these deals with human rights considerations, while the other one concerns international humanitarian law.  (more…)

Book Symposium Investment Law: No Law is an Island, Entire of Itself – How International Investment Law Interacts with Other Fields of International Law

by Freya Baetens

[Dr Freya Baetens is Associate Professor of Law at Leiden Law School, Director of Studies at Leiden University College (LUC) and Head of the LUC Research Centre at Leiden University.]

The last two decades have witnessed an exponential increase in investor-State arbitrations. Investment tribunals now regularly render binding decisions as to whether States have violated protection standards guaranteed under various investment treaties. The pace by which these tribunals deliver their awards has turned investment law into one of the most dynamic fields of public international law. Developments in other sub-fields of international law influence the development of international investment law, but also vice versa, changes in investment law have an impact on the evolution of other fields of international law.

As the majority of publications focuses on the application and interpretation of investment protection standards, the interaction of international investment law with other sub-fields of international law has not been so extensively explored yet. To fill this gap, academics and practitioners contributing to this collection examine specific links between investment law and such other rules of international law. In particular, this book scrutinizes how concepts, principles and rules developed in the context of other sub-fields of international law could (or should) inform the content of investment law. Solutions conceived for resolving problems in other settings may provide instructive examples for addressing current problems in the field of investment law, and vice versa. This serves as an aid for several contributors to determine whether various sub-fields of public international law, particularly international investment law, are open to cross-fertilisation, or, whether they are evolving ever further into self-contained regimes.

This book contains a peer-reviewed selection of the most innovative and outstanding papers resulting from presentations at the international conference on ‘The Interaction of International Investment Law with Other Fields of Public International Law’ which took place on 8 and 9 April 2011 at Leiden University. This conference brought together experts from the field of international investment law with renowned scholars and practitioners from other sub-fields of international law. The five parts of this volume each address one particular interrelationship: the authors of each part have had the opportunity to examine each other’s ideas so as to guarantee a coherent approach to the matter, thereby avoiding a fragmented discussion.

One important comment received in the course of preparing this book/volume was that a book such as this one could pursue two goals: (1) an overall – single volume – assessment of the literature ‘with some extra edge’; or (2) a selection of the most relevant issues. So, in which category does this work belong? (more…)

Kiobel and the Resurgence of the Traditional Bases of Jurisdiction in the Alien Tort Statute

by Kenneth Anderson

Reading Roger’s post last week about how lower courts are interpreting the Supreme Court’s ATS ruling in Kiobel made me recall that I’ve fallen down in posting papers to SSRN – including a new one in the Cato Supreme Court Review 2012-2013, “The Alien Tort Statute’s Jurisidictional Universalism in Retreat.”  The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities.  It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on “international law ” through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel’s return to traditional jurisdictional categories.

Whether the Chief Justice’s application of the presumption against extraterritoriality or Justice Breyer’s more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter.  One could say, of course, that this has been true for a while.  After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn’t take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law – well, that isn’t making any sweeping assertions about being international law or universal jurisdiction for the application of international law.  It’s just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be.

International law in the subjunctive mood, maybe we could say.  But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a “law of nations” that we don’t mean the way other people mean it, argues strongly for a traditional approach to jurisdiction – it’s not universal jurisdiction anymore, because we’re not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality.  So it doesn’t seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn’t truly a claim of universality, either. (more…)

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

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.