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 http://memory.loc.gov/ammem/amlaw/lwsp.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

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 --http://unbisnet.un.org

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)

Review of some key sources

http://www.youtube.com/watch?v=KPvN9TrxHhs