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  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:  Objective element  Subjective element --”opinio juris” [and no persistent objection]

Examples  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  Gap-filling  Drawn from national legal systems  Mostly procedural, jurisdictional, administrative, but also fairness

Examples  state responsibility for acts of agents  estoppel  waiver  reparations

How to find custom and general principles of IL?  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  treaties  decisions of national and international courts  national legislation  opinions of national legal advisors  diplomatic correspondence  practice of international organizations  and more…

Key Source  Sources of State Practice in International Law (Ralph Gaebler & Maria Smolka-Day, eds.)

Example of national source:

US Sources  American State Papers: Documents, Legislative and Executive, of the Congress of the United States wsp.html wsp.html  Papers Relating to the Foreign Relations of the United States  Foreign Relations of the United States (Washington, DC: GPO, 1861-)

Legislation concerning a country's international obligations  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  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  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  Yearbooks of IGOs, countries British Year Book of International Law Yearbook of the United Nations  UN resolutions –search via UNBISnet --

Writings of Publicists  Most highly-qualified  Authors of long-standing treatises  Scholarly organizations (e.g., American Law Institute)

Judicial decisions  Not binding, but  Can express and shape CIL  International tribunals  National tribunals (courts)

How to find decisions  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 Encyclopedia of Public International Law  Texts/treatises Customary International Humanitarian Law  Articles 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)81 N.Y.U. L. Rev. 351

Review of some key sources  KPvN9TrxHhs KPvN9TrxHhs