Transcript Other Sources of International Law

Other Sources of International Law
Statute of the ICJ, Article 38(1) The Court…shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the
determination of rules of law.
International Custom
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principles that are customarily
applied among states may be
binding upon states that are not
parties to the treaties or
conventions from which the
principles arise
International custom requires:
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Objective element
Subjective element --”opinio
juris”
[and no persistent objection]
Examples
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All states considered bound by a jus
cogens or peremptory norm –e.g.,
“no slavery”
International norm preventing
discrimination on basis of sex in
transmitting citizenship to children
US persistently objecting to 18 as
minimum age for soldiers
General Principles
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Gap-filling
Drawn from national legal systems
Mostly procedural, jurisdictional,
administrative, but also fairness
Examples
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state responsibility for acts of
agents
estoppel
waiver
reparations
How to find custom and general
principles of IL?
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Look at STATE PRACTICE
State practice = “any act or
statement by a state from which
views about customary law may be
inferred.” (Akehurst)
Sources of state practice
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treaties
decisions of national and international
courts
national legislation
opinions of national legal advisors
diplomatic correspondence
practice of international organizations
and more…
Key Source
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Sources of State Practice in
International Law (Ralph Gaebler
& Maria Smolka-Day, eds.)
Example of national source:
US Sources
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American State Papers: Documents,
Legislative and Executive, of the Congress
of the United States
http://memory.loc.gov/ammem/amlaw/l
wsp.html
Papers Relating to the Foreign Relations
of the United States
Foreign Relations of the United States
(Washington, DC: GPO, 1861-)
http://www.state.gov/www/about_state/history/frus.html
Legislation concerning a country's
international obligations
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treaty-implementing legislation -e.g., for CITES (treaty on
endangered species)
other topics --search for relevant
legislation
United Nations Legislative Series
Practice of international organizations
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Resolutions, declarations of IGOs
UN, UN subsidiary bodies, regional
bodies
Example: UN resolutions on use of
force, used by ICJ in Nicaragua case
to show norm of CIL.
Finding the practice
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Digests of practice in international
law. Example: Whiteman, Digest
of International Law.
Restatement of the Law, Third,
Foreign Relations
Repertories of IGOs. Example:
Repertory of Practice of United
Nations Organs
Finding the practice –continued
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Yearbooks of IGOs, countries
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British Year Book of International Law
Yearbook of the United Nations
UN resolutions –search via
UNBISnet --http://unbisnet.un.org
Writings of Publicists
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Most highly-qualified
Authors of long-standing treatises
Scholarly organizations (e.g.,
American Law Institute)
Judicial decisions
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Not binding, but
Can express and shape CIL
International tribunals
National tribunals (courts)
How to find decisions
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Search databases (e.g., ICJ
decisions on Westlaw or Lexis;
International Law Reports, Oxford
Reports on International Law)
Use indexes and digests (e.g.,
World Court Digest)
Use secondary sources
Making life easier
Secondary sources
 Encyclopedias
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Texts/treatises
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Encyclopedia of Public International Law
Customary International Humanitarian Law
Articles
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Sixty Years in Limbo: The Duty of Host States
to Integrate Palestinian Refugees under
Customary International Law, 81 N.Y.U. L.
Rev. 351 (2006)
Review of some key sources
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http://www.youtube.com/watch?v=
KPvN9TrxHhs