Transcript 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.
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Objective element
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Subjective element --“opinio juris”
[and no persistent objection]
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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
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Uniquely among sources of law, CIL is found
in facts, i.e.,
◦ evidence of how states behave (“state practice”)
and
◦ evidence of why they behave that way (“opinio
juris”)
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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…
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Sources of State Practice in International Law
(Ralph Gaebler & Maria Smolka-Day, eds.)
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Treaties may codify existing CIL
Emerging principles of CIL may begin to
appear in treaties
◦ e.g., “right to intervene” art. 4(h) AU Constitutive
Act
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Treaty provisions used as evidence to show
existence of CIL
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Dictionaries—esp. Parry and Grant
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Encyclopedias—esp. Max Planck
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Encyclopaedic Dictionary of International Law
Encyclopaedia of Public International Law
(MPEPIL)
Specialized int’l law dictionaries and
encyclopedias
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Watch for synonyms and related concepts
Emerging CIL principles prone to changes in
terminology
◦ R2P—humanitarian intervention, and briefly, Annan
Doctrine
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Restatement of the Law, Third, Foreign
Relations Law of the United States
◦ not good on cutting-edge topics
◦ but new CIL principles relate to old—e.g., territorial
sovereignty
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Restatement =“writing of publicists”
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Prefer “learned societies”—best example for
US = Restatement
Multi-edition int’l law treatises good too
◦ (Shaw, Oppenheim, Akehurst…)
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MPEPIL has bibliographies
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LCSH headings
◦ some correspond to CIL concepts:
 R2P under humanitarian intervention
◦ some are close: diplomatic immunity = LCSH
Diplomatic Privileges and Immunities
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Full-text law review databases
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[your CIL concept] /s CIL OR “international custom” OR
“customary international law”
Consider modifying to reflect specialized part of IL
◦ e.g., “customary international humanitarian”
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legal periodical indexes
Peace Palace Library catalogue—books and
articles
news sources for current state behavior
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(Start with cases mentioned in sources above,
right?)
Useful sources
◦ International Law Reports
◦ Oxford Reports on International Law
◦ World Court Digest
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Multinational—UN, TIARA
National —e.g., Australian
Specialized—e.g., humanitarian law—ICRC
database
Look for relevant provisions
◦ multilateral—count the parties
◦ bilateral—count total number of treaties/total
number of different parties
—Digests of United States Practice
 digests
in International Law
 yearbooks
◦ national
◦ topical—Yearbook of
International Humanitarian Law
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Practice of intergovernmental organizations
◦ Smaller states often can only express views this way
—e.g., by voting on UN res
◦ Example: UN resolutions on use of force, used by
ICJ in Nicaragua case to show norm of CIL.
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Focus on UN, then regional
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UNBisnet; UN Yearbook
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Recent topics—may be Googleable
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national laws
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topical collections of legislation
◦ e.g., for CIL on terrorism, UN’s database of national
laws on terrorism
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court opinions
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To find them
◦ subject research guides (e.g., at GlobaLex)
◦ texts on int’l/foreign legal research
◦ web searches
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Identify examples of international situations
where CIL principle might have arisen
◦ e.g. for R2P—Rwanda, Libya, Syria, Côte d’Ivoire
◦ e.g. for use of unmanned drones—Pakistan
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Use keywords from these situations as search
terms in news databases, on web, etc.
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Gap-filling
Drawn from national legal systems
Mostly procedural, jurisdictional,
administrative, but also fairness
Bin Cheng, General Principles of Law (1953)
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state responsibility for acts of agents
estoppel
waiver
reparations
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http://www.youtube.com/watch?v=pxTqQSb
4RmI