8. What is State practice? Where can it be found?

int. committee of the red cross CUSTOMARY INTERNATIONAL HUMANITARIAN LAW VOLUME I RULES, Jean-Marie Henckaerts and Louise Doswald-Beck

Selection of State practice

was selected on the basis of the following criteria.

1) Both physical and verbal acts of States constitute practice that contributes to the creation of customary int. Law.

Physical acts: battlefield behaviour, the use of certain weapons and the treatment provided to different categories of persons.

Verbal acts: military manuals, national legislation, national case-law, instructions to armed and security forces, military communiqu´es during war, diplomatic protests, opinions of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international organisations and at international conferences and government positions taken with respect to resolutions of international organisations.

The ICJ has taken into consideration official statements as State practice in a number of cases, including the Fisheries Jurisdiction cases (ICJ, Fisheries Jurisdiction case (United Kingdom v. Iceland), Joint separate opinion of Judges Forster, Bengzon, Jiménez de Aréchaga, Singh and Ruda, 25 July 1974, ICJ Reports 1974, p. 47), the Nicaragua case ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgement, 27 June 1986, ICJ Reports 1986, p. 100, ß 190. and the Gabˇc´ıkovo-Nagymaros Project case (ICJ, Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, ICJ Reports 1997).

The International Law Commission has similarly considered verbal acts of States as contributing towards the creation of customary international law. It did so, for example, in the context of the Draft Articles on State Responsibility where it considered the concept of a “state of necessity” to be customary.16

The International Criminal Tribunal for the Former Yugoslavia has stated that in appraising the formation of customary rules of international humanitarian law, “reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions”.17

The International Law Association considers that “verbal acts, and not only physical acts, of States count as State practice” and points out that “the practice of the international tribunals is replete with examples of verbal acts being treated as examples of practice.18

2) The practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law.

3) Acts do not contribute to the formation of customary international law if they are never disclosed. This is so as long as such acts are not known to other States and, consequently, do not give them an opportunity, if they so wished, to react to them. In order to count, practice has to be public or communicated to some extent (to one other State or relevant international organisation).

4) Although decisions of international courts are subsidiary sources of international law, they do not constitute State practice because international courts are not State organs. Their decisions have nevertheless been included because a finding by an international court that a rule of customary international law exists constitutes persuasive evidence to that effect. In addition, because of the precedential value of their decisions, international courts can also contribute to the emergence of a rule of customary international law by influencing the subsequent practice of States and international organisations.

What States claim before international courts, however, is clearly a form of State practice.

5) International organisations have international legal personality and can participate in international relations in their own capacity, independently of their member States. In this respect, their practice can contribute to the formation of customary international law.

The view that ICRC (red cross) practice counts is also adopted by the International Criminal Tribunal for the Former Yugoslavia, which has regarded the organisation’s practice as an important factor in the emergence of customary rules applicable to non-international armed conflicts (ICTY, Tadic′ case, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995).

In addition, the official reactions which ICRC statements elicit are State practice.

(vi) The negotiation and adoption of resolutions by international organisations or conferences, together with the explanations of vote, are acts of the States involved. With a few exceptions, it is recognised that resolutions are normally not binding in themselves and therefore the value accorded to any particular resolution depends on its content, its degree of acceptance and the consistency of State practice outside it. The greater the support for the resolution, the more importance it is to be accorded.

6) The practice of armed opposition groups, such as codes of conduct, commitments made to observe certain rules of international humanitarian law and other statements, does not constitute State practice as such. While

such practice may contain evidence of the acceptance of certain rules in noninternational armed conflicts. (???)

Assessment of State practice

State practice has to be weighed to assess whether it is sufficiently “dense” (плотной) to create a rule of customary international law.29

To establish a rule of customary international law, State practice has to be:

1) virtually uniform

2) extensive

3) representative.

Although some time will normally elapse before there is sufficient practice to satisfy these criteria, no precise amount of time is required (as stated by the ICJ in the North Sea Continental Shelf cases).

1) State practice must be virtually uniform. (практически единообразной) Different States must not have engaged in substantially different conduct.

In the Asylum case , the ICJ was presented with a situation in which practice was not sufficiently uniform to establish a rule of customary international law with respect to the exercise of diplomatic asylum. (ICJ, Asylum case (Colombia v. Peru), Judgement, 20 November 1950, ICJ Reports 1950, p. 277).

In the Fisheries case, the ICJ dealt with a similar situation with respect to a ten-mile closing line for bays in which it considered that, although such a line had been adopted by certain States both in their national law and in their treaties and conventions the ten-mile rule has not acquired the authority of a general rule of international law. (ICJ, Fisheries case (United Kingdom v. Norway), Judgement, 18 December 1951, ICJ Reports 1951, p. 131.)

However, the Court in this case also considered that “too much importance need not be attached to a few uncertainties or contradictions, real or apparent” in a State’s practice when making an evaluation.33 It is enough that the practice is sufficiently similar.

It was on the basis of such sufficient similarity that the ICJ found in the Continental Shelf cases that the concept of the exclusive economic zone had become part of customary law. Even though the various proclamations of such a zone were not identical, they were sufficiently similar for the Court to reach this conclusion. (ICJ, Continental Shelf case (Tunisia v. Libyan Arab Jamahiriya), Judgement, 24 February

1982, ICJ Reports 1982, p. 74, ß 100 and Continental Shelf case, p. 33, ß 34.)

The jurisprudence of the ICJ shows that contrary practice which appears to undermine the uniformity of the practice concerned, does not prevent the formation of a rule of customary international law as long as this contrary practice is condemned by other States or denied by the government itself and therefore does not represent its official practice. Example: ICJ Nicaragua case: the customary nature of the principles of non-use of force and non-intervention. (ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, supra примечание 14, p. 98, ß 186.)

This finding is particularly relevant for a number of rules of international humanitarian law where there is overwhelming evidence of verbal State practice supporting a certain rule found alongside repeated evidence of violations of that rule. Where this has been accompanied by excuses or justifications by the actors and/or condemnations by other States, such violations are not of a nature to challenge the existence of the rule in question. States wishing to change an existing rule of customary international law have to do so through their official practice and claim to be acting as of right.