Switch to text version Researching Public International Law ARTHUR W DIAMOND LAW LIBRARY Researching Public International Law Written by Kent McKeever Table of contents Definitions of International law Institutions Involved in the process Identification of Authoritative Texts General Introductory Materials Recent research guides Treatie Publication of u s. treaties Private and electronic sources Treaty Index Treaty Citation Approaching Treaty Material Custom and State Practice Breadth and Context Historical General Principles of Law Case Law and Secondary materials International Courts The International Court of justice European Courts
[switch to text version] Researching Public International Law ARTHUR W. DIAMOND LAW LIBRARY Researching Public International Law Written by Kent McKeever Last Updated June 24, 2003 Table of Contents Background Definitions of International Law Institutions Involved in the Process Identification of Authoritative Texts How International Law Texts are Created General Introductory Materials Dictionaries Encyclopedias Key Treatises Recent Research Guides Treaties Publication of U.S. Treaties Private and Electronic Sources Treaty Indexing Treaty Citation Approaching Treaty Material Phone Numbers Custom and State Practice Breadth and Context Historical General Principles of Law Case Law and Secondary Materials Background International Courts The International Court of Justice European Courts
Other International Courts International Criminal Court Courts Generated by Particular Situation Secondary materials International Organizations United Nations World Trade Organization(ex-GATT European Union Council of Europe UR Comparative Law Basics Other Useful Websites Networ king This guide is designed to enable you to do research in international law. It will introduce you to the basic concepts, institutions, texts, and research tools and give you a framework to knit these together as needed to solve individual problems. Underlying the guide is the principle that in order to understand what you need to find, you have to understand the institutions which are in a position to"create"international law. The guide is not intended to teach substantive law, but the framework within which the law is disseminated BACKGROUND The background material provides a context for learning about the specific tools used in Definitions of international law
Other International Courts International Criminal Court Courts Generated by Particular Situation Secondary Materials International Organizations United Nations World Trade Organization (ex-GATT) European Union Council of Europe MERCOSUR Comparative Law Basics Other Useful Websites Networking This guide is designed to enable you to do research in international law. It will introduce you to the basic concepts, institutions, texts, and research tools and give you a framework to knit these together as needed to solve individual problems. Underlying the guide is the principle that in order to understand what you need to find, you have to understand the institutions which are in a position to "create" international law. The guide is not intended to teach substantive law, but the framework within which the law is disseminated. -------------------------------------------------------------------------------- BACKGROUND The background material provides a context for learning about the specific tools used in International Law research. Definitions of International Law
Public International Law is the law of the political system of nation-states. It is a distinct and self-contained system of law, independent of the national systems with which it interacts, and dealing with relations which they do not effectively govern Since there is no overall legislature or law-creating body in the international political system, the rules, principles, and processes of international law must be identified through a variety of sources and mechanisms. This can make international law appear difficult to pin down. Students and scholars in the United States often use the Restatement of the Law (Third), the Foreign Relations of the United States as a guide to identifying international law as applied in the US ALI Restatement 3 rd. Section 101. International Law Defined International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or From the Oxford English Dictionary [International law, the law of nations, under which nations are regarded as individual members of a common polity, bound by a common rule of agreement or custom; opposed to municipal law the rules binding in local jurisdictions Institutions Involved in the process As international law developed in the 17 th and 18 th centuries, it was widely understood that it was a tool for relations between nation-states. Individuals had no role in the process which resolved disputes between states except as representatives of the states, such as diplomats or naval officers. The classic 'player'is the sovereign body of the nation in whatever form it takes for a given state. It can be the President, Prime Minister, King, or Queen, but it is now often the bureaucratic representation of the sovereign power, such as the State Department, the Foreign Ministry, the military, etc. Until the middle of the 20th Century, international law consisted primarily of custom. More recently, customary international law has been increasingly codified While that part of the governmental entity charged with foreign relations will have the lead role in developing international law for the country, in practice each subunit of a government has some ability to create what can be recognized as International Law. In the United States, for example the Executive Branch(acting through the State Department) may sign a treaty, but the President ratifies it with the "advice and consent "of the Senate, and the Congress as a whole may pass laws implementing it In addition, administrative agencies can make and enforce regulations non-treaty related international law as an exercise of their judicial powr y of the above and use implementing the treaty and the statutes, and the courts can interpret ar On the global scale, international organizations such as the United Nations and the European
Public International Law is the law of the political system of nation-states. It is a distinct and self-contained system of law, independent of the national systems with which it interacts, and dealing with relations which they do not effectively govern. Since there is no overall legislature or law-creating body in the international political system, the rules, principles, and processes of international law must be identified through a variety of sources and mechanisms. This can make international law appear difficult to pin down. Students and scholars in the United States often use the Restatement of the Law (Third), the Foreign Relations of the United States as a guide to identifying international law as applied in the US. ALI Restatement 3 rd , Section 101, International Law Defined "International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical." From the Oxford English Dictionary : "[I]nternational law, the law of nations, under which nations are regarded as individual members of a common polity, bound by a common rule of agreement or custom; opposed to municipal law , the rules binding in local jurisdictions." Institutions Involved in the Process As international law developed in the 17 th and 18 th centuries, it was widely understood that it was a tool for relations between nation-states. Individuals had no role in the process which resolved disputes between states except as representatives of the states, such as diplomats or naval officers. The classic ‘player’ is the sovereign body of the nation in whatever form it takes for a given state. It can be the President, Prime Minister, King, or Queen, but it is now often the bureaucratic representation of the sovereign power, such as the State Department, the Foreign Ministry, the military, etc. Until the middle of the 20th Century, international law consisted primarily of custom. More recently, customary international law has been increasingly codified. While that part of the governmental entity charged with foreign relations will have the lead role in developing international law for the country, in practice each subunit of a government has some ability to create what can be recognized as International Law. In the United States, for example, the Executive Branch (acting through the State Department) may sign a treaty, but the President ratifies it with the "advice and consent" of the Senate, and the Congress as a whole may pass laws implementing it. In addition, administrative agencies can make and enforce regulations implementing the treaty and the statutes, and the courts can interpret any of the above and use non-treaty related international law as an exercise of their judicial power. On the global scale, international organizations such as the United Nations and the European
Union have become extremely important as forums for creating international law The most recent development in this area has been the recognition that there is a role, within the sphere of public international law, for individuals to pursue remedies against sovereign nations Identification of Authoritative Texts The Charter of the United Nations establishes the International Court of Justice (ICJ)as the principal judicial organ of the UN. The treaty which establishes the ICJ is informally known as the Statute. "Article 38 of this"Statute" furnishes an indirect answer to the question: What are the texts of international law? The article is written in terms of what sources the court will use in order to resolve a dispute. These sources include treaties, customary law, case law, academic writings, and general principles of law. Article 38 read 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply 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 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. a different presentation of these ideas can be found in the Restatement of the Law 3d: Foreign Relations Law of the United States, Articles 102(Sources of International Law) and 103 Evidence of International Law) s 102 Sources of International Law (1)A rule of international law is one that has been accepted h by the international community of states (a)in the form of( (b) by international agreement;or (c)by derivation from general principles common to the major legal systems of the world (2)Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation (3)International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted
Union have become extremely important as forums for creating international law. The most recent development in this area has been the recognition that there is a role, within the sphere of public international law, for individuals to pursue remedies against sovereign nations. Identification of Authoritative Texts The Charter of the United Nations establishes the International Court of Justice (ICJ) as the principal judicial organ of the UN. The treaty which establishes the ICJ is informally known as the " Statute ." Article 38 of this "Statute" furnishes an indirect answer to the question: What are the texts of international law? The article is written in terms of what sources the court will use in order to resolve a dispute. These sources include treaties, customary law, case law, academic writings, and general principles of law. Article 38 reads: "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono , if the parties agree thereto." A different presentation of these ideas can be found in the Restatement of the Law 3d: Foreign Relations Law of the United States , Articles 102 (Sources of International Law) and 103 (Evidence of International Law). § 102 Sources of International Law (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted
(4)General principles common to the major legal systems, even if not incorporated or reflected customary law or international agreement, may be invoked as supplementary rules of international law where appropriate S 103 Evidence of International Law (1)Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive($ 102) (2)In determining whether a rule has become international law, substantial weight is accorded to (a)judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c)the writings of scholars (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states Since the adoption of the ICJ statute in 1946, the post World War Il growth of a wide variety of Inter-Governmental Organizations(IGOs) has injected the work product of these IGOs into the mix as well How International Law Norms and Principles are Created The IC statute shows that International Law does not have an easily identifiable "law-giver Under these circumstances, how do we find out if something is a rule in international law? What is it we are looking for? The ways norms are identified as international law include agreements negotiated by the affected parties, deference to a third-party decision-maker, academic persuasion and consensus, and custom(state practice and the opinion that the practice is dictated It is important to remember that there are two allied meanings of the word"source". One sense is related to the origins of the relevant, substantive norms and principles. The other sense is grounded in identifying the actual texts involved in the process Agreements Negotiated by the Affected Parties Treaties Enactments by bodies established by treaties Resolutions of the United Nations General Assembly Directives of the European Union Commission Similar enactments by regional or subject-specific organizations Resolution of a dispute through mediation Deference to a Third Party Decision-Maker
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate. § 103 Evidence of International Law (1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive (§ 102). (2) In determining whether a rule has become international law, substantial weight is accorded to (a) judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c) the writings of scholars; (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states. Since the adoption of the ICJ statute in 1946, the post World War II growth of a wide variety of Inter-Governmental Organizations (IGOs) has injected the work product of these IGOs into the mix as well. How International Law Norms and Principles are Created The ICJ statute shows that International Law does not have an easily identifiable ‘law-giver". Under these circumstances, how do we find out if something is a rule in international law? What is it we are looking for? The ways norms are identified as international law include agreements negotiated by the affected parties , deference to a third-party decision-maker , academic persuasion and consensus , and custom (state practice and the opinion that the practice is dictated by a legal obligation). It is important to remember that there are two allied meanings of the word "source". One sense is related to the origins of the relevant, substantive norms and principles. The other sense is grounded in identifying the actual texts involved in the process. Agreements Negotiated by the Affected Parties Treaties Enactments by bodies established by treaties Resolutions of the United Nations General Assembly Directives of the European Union Commission Similar enactments by regional or subject-specific organizations Resolution of a dispute through mediation Deference to a Third Party Decision-Maker Case Law