Commentary: Yves Sandoz

• Author: Yves Sandoz
• Pages: 273

A s I have been Director of International Law and Communication at the International Committee of the Red Cross (ICRC), an institution which devotes much energy to promote the Geneva Conventions of 1949 and their Additional Protocols of 1977, for 16 years and as I am co-editor of the Commentary to those Protocols, you will not be surprised that I don't share the negative views expressed by John Murphy, echoing those of Hays Parks, on both the Additional Protocols and their Commentary, even if they are certainly far from being perfect.

What can at least be said about the Additional Protocols of 1977 in a few words is that it is not possible simply to affirm that they are or that they are not part of international customary law. As stated in the title of the Diplomatic Conference of 1974-1977, which negotiated and adopted the Protocols, this Conference had the double ambition to reaffirm and to develop international humanitarian law (IHL). That means that in part the Protocols reaffirm and clarify customary rules of IHL and in part they develop that law. For the first part their rules bind all States, for the second only the States parties to the Protocols are bound. But the borderline is not always easy to determine for two reasons. The first is that the Diplomatic Conference has not clearly declared what was reaffirmation and what was development. The second is that some rules which were considered as a development in 1977 may be considered today as part of customary law. But being commentator I will now base my next points on the very good papers presented by John Murphy and Ove Bring and enter into discussion on the Protocols and their Commentary only on the occasion of remarks to those papers.

Let me start with some words on international customary law. John Murphy has quoted an author who went as far as questioning even the existence of international customary law. I will not comment on this not very serious declaration, but I would have something to add on the description given by John Murphy on how to establish that there is customary law, with a particular focus on the difficulty of establishing State practice.

A reference to the notion of 'specially affected States' by the ICJ in the North Sea Continental Shelf case would be, for example, an important additional element to mention. I will not go further here and now on that question, but I wish to mention that lawyers from the ICRC are finalizing a broad study on the customary rules of IHL, done with the contribution of legal and governmental experts, and based on the work of working groups, from all regions of the world. This study will be published next year. Of course, the question to know how to establish the practice and the opinio juris of States is discussed in that study to determine the existence of customary rules and the criteria taken into account will be explained. That being said and without entering into the substance of this study, I would like to stress three points. First, the aim of the study is to determine if a rule can or cannot be considered as a customary rule, but not to give an in-depth interpretation of that rule. For that reason we cannot expect too much from this study for the clarification of the exact and practical meaning of existing rules, which is the central problem debated by this colloquium. Secondly, there will always remain a certain degree of uncertainty as to the customary nature of certain rules, and therefore customary law is not a substitute to the formal adoption by States of treaties aiming to be universally accepted, as those of IHL. Thirdly, the problem of the existence or not of a normative restriction is particularly delicate with the emergence of new weapons, due to the fact that there cannot be a largely established practice during a long period of time in...