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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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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
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International custom requires: Objective element Subjective element --”opinio juris” [and no persistent objection]
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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
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General Principles Gap-filling Drawn from national legal systems Mostly procedural, jurisdictional, administrative, but also fairness
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Examples state responsibility for acts of agents estoppel waiver reparations
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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)
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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…
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Key Source Sources of State Practice in International Law (Ralph Gaebler & Maria Smolka-Day, eds.)
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Example of national source:
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US Sources American State Papers: Documents, Legislative and Executive, of the Congress of the United States http://memory.loc.gov/ammem/amlaw/l wsp.html 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
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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
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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.
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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
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Finding the practice –continued Yearbooks of IGOs, countries British Year Book of International Law Yearbook of the United Nations UN resolutions –search via UNBISnet --http://unbisnet.un.org
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Writings of Publicists Most highly-qualified Authors of long-standing treatises Scholarly organizations (e.g., American Law Institute)
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Judicial decisions Not binding, but Can express and shape CIL International tribunals National tribunals (courts)
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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
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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
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Review of some key sources http://www.youtube.com/watch?v= KPvN9TrxHhs http://www.youtube.com/watch?v= KPvN9TrxHhs
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