Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments.

Author:Kelly, Patrick
Position:Book review

Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments. By Michael P. Scharf. Cambridge, New York: Cambridge University Press, 2013. Pp. 220. Index. $103.

The concept of customary international law (CIL) has been the subject of much recent reexamination, debate, and controversy. (1) Several scholars have doubted the efficiency and effectiveness of CIL as a process to create norms in a diverse world of many different values, interests, and cultures. (2) Other scholars have attempted to invigorate CIL theory with an ethical dimension to clarify norms and reduce self-serving manipulation of its elements. (3)

The great advantage of CIL is that such norms are universal, applying to all nations whether they are willing to sign and ratify a treaty or not. In the traditional view, the elements of customary international law, state practice, and opinio juris are the means by which nations express their normative preferences in a decentralized system. State practice or conduct is the empirical element in customary international law formation, providing evidence of customary norms. The general acceptance of states or opinio juris determines whether a claimed norm embedded in state practice is legally binding. (4) Thus, it is the reaction of the states as a whole, not just that of the parties involved, that tells us how to interpret state practice. (5) The uniformity and generality of state practice may be an indication of opinio juris, that is, that a norm has been generally accepted as legally binding, but it is suggestive, not determinative. (6) The general acceptance of states also performs the critical function of legitimizing a norm by the relevant political community--the international community of states.

Professor Michael Scharf has written a thoughtful and innovative book explaining how CIL may develop with surprising rapidity in the context of fundamental change. These moments of change, which Professor Scharf refers to as Grotian Moments, (7) allow the accelerated formation of CIL without significant, indeed even any, state practice if there is a clear expression of opinio juris. In crafting his argument, he adopts to some degree the view of Frederic Kirgis (8) that there is a sliding scale between state practice and opinio juris. The greater the quantity of concordant state practice, the less need for clear evidence of opinio juris. More importantly for his theory, clear evidence of opinio juris may establish a rule of CIL with little or no state practice. (9) For Professor Scharf, there are special contexts in times of rapid change, such as the development of rocket technology to explore outer space, that constitute Grotian moments when CIL may be formed quickly if states announce rules by which they intend to be bound.

Professor Scharf then explores six case studies testing whether a particular context may qualify as a Grotian Moment when CIL developed rapidly, or whether the proposed new rules have not yet received sufficient acceptance to qualify as CIL. The case studies include: (1) the development of the Nuremberg Principles after World War II; (2) the law governing the continental shelf after the Truman Proclamation; (3) the development of space law; (4) the law of internal armed conflict, including joint enterprise liability through international criminal courts; (5) the legality of humanitarian intervention in the shadow of the NATO intervention in Kosovo; and (6) the right to use force in self-defense against nonstate actors within other sovereign states in the aftermath of the 9/11 terrorist attack. He concludes that the first four cases were Grotian moments where CIL formed quickly, whereas in the last two (humanitarian intervention after Kosovo and the use of force against nonstate actors), subsequent state practice and a contrary view from the International Court of Justice has slowed the development of new CIL rules.

In Professor Scharf's analysis, United Nations General Assembly (UNGA) resolutions, subsequent treaties, failure to protest, and decisions of international and domestic courts play leading roles. His first case study is Nuremberg, the paradigm-shifting series of events and trials that initiated concepts such as crimes against humanity and that of individual criminal responsibility under international law. In his view, the Nuremberg Principles, which were enunciated in the Nuremberg Charter, and the judgments of the Nuremberg tribunals became CIL upon the passage of the 1946 UNGA Resolution 95(1), which unanimously affirmed the principles set forth in the Chattel and judgments. (10) Prior to that expression of opinio juris, the Nuremberg Charter had been negotiated by only four states and acceded to by another nineteen states. In this view, the value of a resolution as opinio juris depends on the content and conditions of the resolution (p. 54). Here, the resolution was intended to affirm existing legal principles and was unanimous. The unique moral horror of the Nazi Holocaust, the development of Nuremberg Principles, and the establishment of an international tribunal to articulate and apply these principles had accelerated the formation of new CIL, making Nuremberg the prototypical Grotian Moment. Subsequent international, regional, and domestic...

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