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Papers by Etienne Henry

Cambridge University Press eBooks, Oct 6, 2022

Revisiting the Geneva Conventions: 1949-2019, 2019

Le terme de 'necessite militaire' designe un fait juridique aussi bien qu'un principe... more Le terme de 'necessite militaire' designe un fait juridique aussi bien qu'un principe general du DIH qui a pour objet d'autoriser les belligerants a utiliser la force necessaire pour atteindre leurs objectifs. Celui-ci est concretise par de nombreuses dispositions du DIH. Mais le juge international n’est que rarement appele a juger de ce qui est militairement necessaire. Diverses revendications infructueuses ont ete formulees en vue d’empecher les prononces judiciaires sur ces questions. L'appreciation de la necessite militaire, par le recours a des criteres extra-juridiques qu’elle implique, n'est cependant pas une tâche aisee pour le juge. Sur un plan plus fondamental, la tendance a limiter la competence des tribunaux aux ques-tions relevant du DIH – a l’exclusion du jus contra bellum – ainsi que la structure interetatique du droit international risquent de transformer le juge en instance de legitimation de certaines conduites immorales, voire illegales.The term 'military necessity' designates a juridical fact as well as a general principle of IHL which has the object of authorizing the belligerent parties in an armed conflict to use the amount of force necessary to reach their objectives. It is concretized in numerous provisions of IHL. But the international judge is only rarely called to judge on what is militarily necessary. Various infructuous claims have been formulated with the view of avoiding judicial review on these matters. There is thus no legal ground barring international tribunals to adjudicate on cases involving the assessment of military necessities. But this assessment, given the necessary recourse to extra-legal criteria that it implies, causes some difficulties. In a more fundamental setting, the trend to limit the jurisdiction of courts to issues of jus in bello – thus excluding jus contra bellum – as well as the interstate nature of international law risk transforming the international judge in a legitimizing agent of immoral or even illegal conducts.

Récemment, la CIJ a eu l'occasion de réaffirmer l'état du droit international coutumier s... more Récemment, la CIJ a eu l'occasion de réaffirmer l'état du droit international coutumier sur certaines questions en matière d'immunités juridictionnelles. La CIJ a clarifié les conditions minimales dans lesquelles les Etats doivent accorder l'immunité d'exécution. Sur le plan de la CEDH par contre, la jurisprudence récente de la Cour de Strasbourg indique qu'un Etat qui garantirait l'immunité au-delà de ce minimum commet une atteinte disproportionnée au droit à l'exécution des décisions. La jurisprudence suisse actuelle accordant une immunité d'exécution au-delà de ce minimum, elle pourrait se révéler contraire à la CEDH. Kürzlich hat der Internationale Gerichtshof in Den Haag (IGH) den Status des internationalen Gewohnheitsrechts zu Fragen der Immunität von Staaten bekräftigt. Der IGH hat die Mindestbedingungen zur staatlichen Gewährung der Immunität bei Vollstreckung von Urteilen festgelegt. Die neuste Rechtsprechung des Europäischen Gerichtshofs...

Melbourne Journal of International Law, 2017

In the light of state practice with regard of the drafting of an international treaty, one may ob... more In the light of state practice with regard of the drafting of an international treaty, one may observe that most, if not all long treaties, comprise what is traditionally called ‘final provisions’. As a quick glance to the GCs will show, the latter make no exception in this respect, for they contain too a list of final provisions. The latter, as their very label clearly denotes, appear at the very end of the text of the treaty, thus after its normative content. These clauses, which quite naturally vary from one treaty to another, may generally refer to the duration of the treaty, the means by which it is adopted, the means by which states are allowed to express their consent to be bound by it, the conditions under which a state can – perhaps – denunciate it, the terms of its entry into force, the regime (if any) of reservations (and objections) to it, the official languages, the designation of the depository (if any), its recording – henceforth – with the UN secretariat, and so on. ...

Social Science Research Network, 2011

This paper first attempts to delineate the general framework of the general international law res... more This paper first attempts to delineate the general framework of the general international law respecting jurisdictional immunities of States, including the link between the concept of State sovereignty and the law of State immunity, the sources of the law of immunity, the ongoing debate and case law on the alleged conflict between the right to access to court and the law of state immunity, especially with respect to the case law of the European Court of Human Rights. It then presents the customary regime applicable to immunities from execution and highlights the divergences between customary law as codified in the UN Convention on on Jurisdictional Immunities of States and Their Property and customary as it is understood by the Federal Supreme Court of Switzerland.

Social Science Research Network, 2017

This paper is a commentary of Article 16 of the 1978 Vienna Convention on the Succession of State... more This paper is a commentary of Article 16 of the 1978 Vienna Convention on the Succession of States in respect of Treaties. Its aim is mainly to put Article 16 of the 1978 Vienna Convention into its historical and legal context, namely (1) to provide information related to the drafting process both at the International Law Commission and at the Diplomatic Conference, (2) to assess the customary character of the principle of "clean slate" it allegedly enshrines and (3) the personnel as well as (4) the material scope of application of Article 16. It also provides (5) a survey of the subsequent practice and (6) deals with the question of the application by analogy to categories of States that were not envisaged in the redaction of the Convention. While the application of the clean slate principle and the so-called "free choice doctrine" in cases of succession outside the framework of decolonization is not to be excluded for the future, there is no trace of it in toda...

Journal of the History of International Law / Revue d’histoire du droit international

This article argues that the quest for ‘peaceful coexistence’, sometimes depicted as an inherent ... more This article argues that the quest for ‘peaceful coexistence’, sometimes depicted as an inherent quality of Soviet foreign policy, rather reflects a re-interpretation of actual practice in the light of subsequent developments – in connection with the emergence of Joseph Stalin’s doctrine of Socialism in one country. The latter was primarily inspired by tactical necessities rather than doctrinal dogmas. Even though Soviet Russia was perceived and sometimes acted as an outsider, if not a disrupting agent, until the accession of the USSR to membership in the League of Nations in 1934, Soviet foreign legal policy discourse in the 1920s and early 1930s, with its increasing focus on ‘peaceful coexistence’ and collective security rather than world proletarian revolution, contributed substantively to the emergence and development of modern ius contra bellum.

SSRN Electronic Journal

This contribution discusses the application of jus contra bellum in the 1982 Falklands/Malvinas c... more This contribution discusses the application of jus contra bellum in the 1982 Falklands/Malvinas conflict. After briefly setting out the relevant facts, it provides a summary of the positions of the main protagonists of the conflict as well as the UN Security Council and General Assembly and other member States, both on the initial invasion of the archipelago by Argentina and on the ensuing measures of self-defence adopted by the United Kingdom. It then assesses the legal issues raised by the application of Article 2(3) and 2(4) of the UN Charter — including with regard to the alleged exception for recourses to military force aimed at the recovery of pre-colonial titles and the thesis of the exhaustion of the obligation to settle international disputes peacefully — and Article 51 of the UN Charter — with particular attention to the relationship between collective security and the exercise of the right of self-defence and the effect of the cessation of hostilities ordered by UN Security Council Resolution 502 (1982) on the exercise of the right by the United Kingdom. Finally, the contribution evaluates the precedential impact of the case on the jus contra bellum regime.

Russian Law Journal, 2016

SSRN Electronic Journal, 2000

There is a broad consensus that the protracted inaction of states faced with the conduct of other... more There is a broad consensus that the protracted inaction of states faced with the conduct of other states can sometimes be analysed as evidence of acceptance as law (opinio juris) for the purpose of identifying rules of customary international law. This issue has become highly topical in the context of the alleged 'acquiescence' of the international community to innovative interpretations of the right of self-defence formulated by some of the states currently conducting a military intervention against the Islamic State in Syria and the Levant ('ISIL') on Syrian territory. While the question has been recently discussed by the International Law Commission in the context of its work on the identification of international customary law, the precise circumstances in which acceptance as law can be inferred from inaction remain largely uncertain. Analogies with the concept of acquiescence, as developed in the context of the creation, modification or extinction of subjective rights and obligations, can arguably provide useful guidance in this respect. States whose interests are directly affected by a given conduct can reasonably be expected to express their view on its legality. If they remain silent and if other contextual elements do not indicate otherwise, they can therefore be presumed to have acquiesced to the claims accompanying the concerned conduct. But the lack of reaction of third states whose interests are not directly affected should not be lightly assimilated with the manifestation of a benevolent opinio juris. Even the fact that erga omnes rights and obligations are affected by a given conduct does not create an expectation of near universal reaction, failing which the continuing validity of the underlying customary norm would be eventually undermined. Furthermore, other legal and extra-legal factors must be carefully assessed before assimilating the failure to react as the evidence of a nascent opinio juris. CONTENTS

Le Juge en Droit Européen et International-The Judge …, 2013

Basel/Neuchâtel, Helbing & Lichtenhahn, Jan 1, 2012

The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case, 2012

Russian Law Journal by Etienne Henry

Cambridge University Press eBooks, Oct 6, 2022

Revisiting the Geneva Conventions: 1949-2019, 2019

Melbourne Journal of International Law, 2017

Social Science Research Network, 2011

Social Science Research Network, 2017

Journal of the History of International Law / Revue d’histoire du droit international

SSRN Electronic Journal

Russian Law Journal, 2016

SSRN Electronic Journal, 2000

Le Juge en Droit Européen et International-The Judge …, 2013

Basel/Neuchâtel, Helbing & Lichtenhahn, Jan 1, 2012

The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case, 2012

Speaking notes for the International Law Workshop: The Interaction between Treaty and Custom, org... more Speaking notes for the International Law Workshop: The Interaction between Treaty and Custom, organized by the Centre for International & Public Law, ANU College of Law, 8 March 2018.

Presentation text of the workshop from the website of the organizers:
The possible interactions between treaty and custom are generally considered by reference to the well-established framework set out by the International Court of Justice in the North Sea Continental Shelf Cases of 1969; namely, the declaratory, crystallising and generating effects of a treaty (as for a resolution) on a customary rule. The impact of codification on the time it takes for a customary rule to develop, as well as the nature of the substantive rules that treaty codification might generate (obligations of means in addition to those of result; as a consequence of the acceleration in the rule formation process) are also well canvassed. But other issues relative to the treaty-custom interplay warrant consideration today.

With the International Law Commission focussed on the proper identification of customary international law, and separately on the role of subsequent practice in treaty interpretation, one question that arises is how do we differentiate between what might be practice for the purposes of custom as opposed practice for the purposes of treaty interpretation? Each type of practice is different, with its own conditions, thresholds and effects.

Second, some codification issues stand out as being of particular contemporary relevance, even if they are not new. For instance, one can still ask in relation to the ever-flourishing field of international investment law when and whether an investment treaty operates to derogate from or generate customary rules (‘Baxter’s paradox’). Other issues of codification pose practical dilemmas, such as the out-sourcing of codification projects today, especially where the private codifier’s product (such as the NATO Cooperative Cyber Defence Centre for Excellence’s Tallinn Manual 2.0) appears to carry more weight than that of a United Nations organ (specifically, the UN Group of Governmental Experts). Another enduring issue, as ever highlighted by current State behaviour, is the question of custom’s potential scope beyond the treaties when it comes to the laws of armed conflict.

This draft chapter on the application of jus contra bellum to issues of cybersecurity is divided ... more This draft chapter on the application of jus contra bellum to issues of cybersecurity is divided in three main parts. The first part is devoted to the political context and institutional framework relevant to the emergence of debates on the issue of the hostile use of information and communication technologies (ICTs). The opposing approaches of some Western States and a group of States comprising, among others, China and Russia are exposed. This divide concerns not only the interpretation of international law as it stands (lex lata), but also the preferred policies designed to cope with the risks posed by computer network attacks (CNAs). In this regard, whereas Russia, despite huge challenges, champions the disarmament approach, the United States and other like-minded States express satisfaction with the law as it stands, even though important uncertainties subsist surrounding the precise modalities of application of jus contra bellum in the context of ICTs.

The second part deals with the notion of ‘force’ under Article 2(4) of the UN Charter and its applicability to CNAs. While the text of the Charter leaves open the possibility to interpret the concept as encompassing coercive measures beyond purely military means, subsequent practice tends to support the view that this is not the case. Thus, measures of economic coercion—although prohibited by other rules and principles of international law—do not fall in the material scope of application of Article 2(4) of the UN Charter. As far as cyberattacks are concerned, the applicability of said provision is supported by a substantive body of verbal State practice and remains virtually unopposed. It seems therefore, that subsequent practice buttresses the idea that the prohibition of the use of force applies to cyber-attacks that have equivalent effects to that of more classic military operations. Caution is nevertheless called for in this regard, as no precedent has given raise to explicit invocations of Article 2(4) of the UN Charter up to this day. CNAs directed against critical infrastructure, however, do not amount per se as uses of force if they do not cause damages comparable to conventional military operations.

In the orthodox understanding as it notably ensues from the case law of the International Court of Justice as well as State practice, the application of the right of self-defence—being the focus of attention of the third part of this draft chapter—, requires an ‘armed attack’ reaching a certain threshold of gravity. Although the United States of America reject this requirement, their view remains fairly isolated. It is certainly possible to conceive of CNAs that would reach such a threshold of gravity and some States have expressly affirmed this view. But here again, there is no decisive precedent to this date. The problems of the use of proxies and the technical difficulties in collecting evidence of attribution of CNAs to third States pose huge challenges. The conditions of necessity and proportionality of the reaction pose also some problems that are specific to the field of ICTs. It is submitted, in conclusion of this chapter that the abovementioned paralysis of the debate in the UN is caused by attempts, on behalf of the United States of America, to mention the right of self-defence without, at the same time, agreeing on the conditions and modalities of applications of such right. Major disagreements seem indeed to subsist concerning CNAs committed by non-State actors, the evidentiary thresholds as well as the temporal application of the right of self-defence—some States forcefully arguing for the permissibility of preventive self-defence.

This draft chapter on the use of force in the context of peacekeeping operations is divided in th... more This draft chapter on the use of force in the context of peacekeeping operations is divided in three main parts. In the first part, the paper provides a survey of the historical origins of the concept of peacekeeping in the 1950s and some of its immediate precursors in the League of Nations era, shedding light on the broader political and institutional context of the emergence of this innovative technique. The evolution of the institution of UN peacekeeping in the 1960s and 1970s is retraced, including the hiatus of the late 1970s to late 1980s resulting from the tensions of the Cold War, resulting in the emergence of non-UN peacekeeping operations. Close attention is then devoted to the new developments following the fall of the Berlin Wall and the end of the East-West opposition in the 1990s up to present days, including the increasingly frequent creation of operations tasked with multiple functions and entrusted with an enforcement mandate under Chapter VII of the UN Charter. The second part focuses on the institutional framework of peacekeeping. The respective competencies of the UN Security Council and of the UN General Assembly in the field of peacekeeping are discussed, particularly in the context of the creation of UNEF I and ONUC and the ensuing dispute regarding the funding and constitutional basis of peacekeeping operations. This section includes a thorough discussion of the Advisory Opinion of the International Court of Justice in the Certain Expenses case. The role and the limits of the competence of the UN Secretary-General is also examined, special attention being paid to the meaning of the principle of neutrality and impartiality of peacekeeping operations. The various roles of UN member States, whether as host State, troop contributing State or participant to so-called ‘peace support’ operations authorized by the UN Security Council is assessed. The legal significance of the requirement of host State consent is assessed in the light of the law on military assistance on request. The third part deals more specifically with the principle of non-use of force except in self-defence. After establishing a clear distinction between individual self-defence and defence of the force, the progressive expansion of the notion under the heading of defence or fulfilment of the mandate is critically analyzed in the light of its practical application, first in the context of ‘classical peacekeeping’—especially in the cases of UNEF I, ONUC, UNFICYP and UNIFIL—and then in the context of the more recent evolution towards so-called ‘robust peacekeeping’, first in the mid 1990s with UNOSOM II, UNPROFOR and UNAMIR and then with the practice of robust mandates that followed the adoption of the Brahimi Report in 2000. Finally, a critical assessment of the most recent experiments in peace enforcement, as with the establishment of the MINUSCA, the creation of the ‘Intervention Brigade’ inside MONUSCO and MINUSMA. In conclusion, the paper submits that the institution of peacekeeping, despite its potential efficacy for the stabilization of post-conflict situations, is undergoing a denaturation turning it into a tool for State building and peace enforcement. The lack of doctrinal clarity accompanying these major changes threatens to deprive the whole peacekeeping endeavour of its primary purpose.

The present chapter analyses the prohibition of deportation and forcible transfer of civilian pop... more The present chapter analyses the prohibition of deportation and forcible transfer of civilian population set forth in Article 49(1) of the Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949 in the light of the travaux préparatoires and subsequent practice—including Article 17(1) of Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977. After a brief survey of historic precedents supporting the customary nature of the prohibition at the time of the adoption of the Convention, the attention is then concentrated on Article 49 GC IV. The peculiar legal nature of the provision is analysed both as a peremptory norm of international law (jus cogens) and as a rule the violation of which entails individual criminal responsibility. The scope of application of the prohibition is then carefully examined in its temporal, personal, geographical and material dimensions, with special attention to the case law of international criminal tribunals. In a third section, the limits of the prohibition of the prohibition are explored, starting with the cases of displacement that fall outside the scope of the prohibition—because they result from a genuine choice of the concerned civilian persons. The notion of temporary evacuation on ground of security of the population or imperative military grounds is then explored.

Compte-rendu du livre d'Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in ... more Compte-rendu du livre d'Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (Cambridge, CUP, 2015)

Speaking notes on issues of jus contra bellum for the 'Syria, chemical weapons and international ... more Speaking notes on issues of jus contra bellum for the 'Syria, chemical weapons and international law' Centre of International and Public Law (CIPL) Seminar, ANU College Law, 21 May 2018.

From the organiser's website:
The 14 April 2018 military strikes against Syria by France, the United Kingdom and the United States in response to the use of chemical weapons by the Assad regime raise a number of issues of international law. This panel of international law specialists will consider some of these; specifically, the roles of both the United Nations Security Council and the Organization for the Prohibition of Chemical Weapons (OPCW), as well as issues of international criminal law, and the prohibition on the use of force and its exceptions.

https://law.anu.edu.au/event/cipl-seminar/syria-chemical-weapons-and-international-law