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UPDATE: Introduction to Public International Law Research

 

By Vicenç Feliú

 

Vicenç Feliú is the Director of the Law Library and Assistant Professor of Law at the David A. Clarke School of Law of the University of the District of Columbia in Washington, DC. He received his JD and LLM in Intellectual Property from the Franklin Pierce Law Center, Concord, NH and his MLIS with an emphasis in Law Librarianship from the University of Washington, Seattle, WA. He is the author of Meeting the Informational Needs of Constitutionalist Patrons: A Guide for Reference Librarians. He is also the co-author of Louis Moreau Lislet: The Man behind the Code of 1808, a book on the life and work of the writer of the Louisiana Civil Code, and The English Fox in the Louisiana Chausse-Trappe: Civil Law Concepts in the English Language.

 

Published July 2010
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Table of Contents

Introduction

Major Players

                  United Nations

                  Subject Oriented Organization

European Union

Council of Europe

Sources of Public International Law

Introductory Materials

                  Treatises

                  Encyclopedias

                  Dictionaries

                  Online Research Guide

Treaties

                  Researching Treaties

                  Treaties to which the U.S. is a Party

                  Treaties to which the U.S. is not a Party

                  Guides to Treaty Research

Customary Law

                  Guides to Customary Law Research

Case Law

                  International Court of Justice

                  European Courts

                                    The Court System of the European Union

                                    The European Court of Human Rights

                  Other International Courts

                                    Inter-American Court of Human Rights

                                    International Criminal Court

Special Situation Courts

Journals

Useful Links

Introduction

Public International Law is composed of the laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with persons, whether natural or juridical. Public International Law is sometimes called the "law of nations" or just simply International Law. It should not be confused with Private International Law, which is primarily concerned with the resolution of conflict of laws in the international setting, determining the law of which country is applicable to specific situations. In researching this field of law, the researcher must also be aware of Comparative Law, the study of differences and similarities between the laws of different countries. Comparative Law is the study of the different legal systems in existence in the world, i.e.; common law, civil law, socialist law, Islamic law, Hindu law, and Chinese law.

 

As there is no central international body that creates public international law, research in this field requires the use of a wide variety of sources. In the U.S., a good starting point for research in this area is the Restatement of the Law (Third), the Foreign Relations of the United States as it explains how international law applies in the U.S. This guide is intended as an introduction to the topic and to help researchers find the most used sources and materials in the area with a primary focus on electronic research.

Major Players

Generally speaking, the representatives of nation states are the primary players in the creation of public international law. These representatives of the nation states include not only the heads of state, such as Presidents, Prime Ministers or Kings but also the bureaucratic bodies involved in foreign policy e.g.: State Departments, Foreign Ministries, or the military. Inter-Governmental Organizations (IGOs), such as the United Nations or the European Union, have also developed as primary fora for the creation of public international law through the codification of customary law by way of international treaties. The University of South Carolina School Of Library and Information Science maintains a comprehensive list of IGO websites. These IGO websites offer a vast array of information on how IGOs work and, in most cases, act as archives where organization documents and materials are stored.

United Nations

The UN is the largest and most complicated of the IGOs and acts as the umbrella organization for many other special subject oriented organizations. The UN develops, creates and enforces international law in many levels. The UN homepage is an excellent place to get an idea of how the organization functions. The UN at a glance page details the structure and function of the organization. There is also a page with links to all UN Departments with a sub page dedicated strictly to International Law. For researchers there are two pages that are invaluable: the Documentation Centre, and the International Law Research Guide page. The website makes finding UN materials easier as it archives materials going back to the inception of the UN.

Subject Oriented Organizations

As stated above, the UN serves as an umbrella for many subject-oriented organizations. These specialized agencies of the UN coordinate worldwide activities in specific subject areas.  They are organized in different ways with varying amounts of power and structures.  They are the result of treaties and sometimes serve to coordinate additional treaties in the same subject area.   Most of them produce some sort of legislation-like materials and have a form of representative body.  Some have adjudicative bodies with of limited jurisdiction but all produce documents such as treaties, records, regulations and decisions. The UN does not coordinate the publishing or distribution of these documents, which can become a challenge for the researcher. However, the UN maintains an Official Locator for UN Systems Organizations, which makes finding some of these documents a little easier.

 

Subject oriented organization websites include:

 

European Union

The EU consists of 27 member countries, with three candidates waiting for admission. EU rules and decisions have a direct effect on the citizens of the member states. Originally, the EU was organized for economic coordination and development of the member states, but it has evolved into social issues as well.

 

The rule making and judicial systems of the EU are tied in to a co-decision system involving the European Commission, the Council of the European Union , and the European Parliament. Everything you ever wanted to know, but were afraid to ask, about the EU can be found in the European Navigator, a very useful and informative site.

Council of Europe

The Council of Europe was founded in 1949 with the aim to develop common and democratic principles based on the European Convention on Human Rights. It has 47 member states and 5 observer countries: the Holy See, the United States, Canada, Japan, Mexico.

 

It is organized into three main bodies: the Committee of Ministers is the Council’s decision-making body, and is composed of the Foreign Ministers, or the Permanent Representatives, of the 47 member states; the Parliamentary Assembly, grouping 636 members (318 representatives and 318 substitutes) from the 47 national parliaments; and the Congress of Local and Regional Authorities, a consultative body representing local and regional authorities.

Sources of Public International Law

The Charter of the United Nations is the establishing document for the International Court of Justice (ICJ) as the principal judicial organ of the UN. Article 38(1) of the Statute of the International Court of Justice (the Statute), the treaty establishing the ICJ, lists the sources that the ICJ uses to resolve disputes. The sources listed in Article 38(1) include treaties, customary law, case law, academic writings, and general principles of law.

Introductory Materials

When researching Public International Law there are a several resources that will provide the researcher with an entry point to the issue. These sources include treatises, encyclopedias, and dictionaries specifically dedicated to the topic. There are also a series of research guides available online.

Treatises

The classic brief work on public international law is James Brierly’s The Law of Nations: an introduction to the international law of peace (Oxford University Press, 1963). It is dated, but it is also a short and well-written introduction to the field. International Law (Oxford University Press, 2007) by A.V. Lowe is the successor to Brierly’s work as the brief introduction to the field.   The leading current works on the field are Oppenheim's International Law, 9th ed., edited by Robert Jennings & Arthur Watts, and Ian Brownlie's Principles of Public International Law.

 

Other current standard works covering the spectrum of international law include:

 

·       Armstrong, David, Routledge Handbook of International Law, Routledge, 2009.

·       Brownlie, Ian, Principles of Public International Law, Oxford University Press, 2008.

·       Boyle, Alan, The Making of International Law, Oxford University Press, 2007.

·       International Law, edited by Malcolm Evans, Oxford University Press, 2006. 

·       Cassese, Antonio, International law, Oxford University Press, 2005. 

·       Aust, Anthony, Handbook of International Law, Cambridge University Press, 2005.

Encyclopedias

The Encyclopedia of Public International Law (Max Planck Institute for Comparative Public Law, 1990) (EPIL) is the comprehensive encyclopedia on the subject. The articles in the EPIL are written by experts in the areas of law covered and are accompanied by bibliographies on the topic of the article. These bibliographies are outdated in part but can provide an excellent springboard for basic research.

 

Other useful encyclopedias include:

 

·       Osmanczyk, Edmund, The Encyclopedia of the United Nations and International Agreements, Routledge, 2003

·       Forsythe, David, Encyclopedia of Human Rights, Oxford University Press, 2009

Dictionaries

Many of the specific terms used in International Public Law will be found in general law dictionaries, such as Black’s. However, the dictionaries listed below focus on specifically on international law.

 

  • Parry and Grant Encyclopedic Dictionary of International Law (Dobbs Ferry, NY: Oceana Publications,  2004) 
  • Fox, James, Dictionary of International and Comparative Law, 3rd edition, (Dobbs Ferry, NY: Oceana Publications,  2004)
  • Lindbergh, Ernest, Modern Dictionary of International Legal Terms: English, French, German. (Boston: Little, Brown, 1993)

Online Research Guides

In addition to the materials on International Law found here at GlobaLex there are other guides specializing on this topic.

 

·       University of Bologna - International Law on the Internet

·       University of Washington School of Law Library - International Law Resources

·       Brooklyn Law School - Introduction to International Law Research

·       New York University School of Law Library - Guide to Foreign and International Legal Databases

·       Columbia Law School - Researching Public International Law

·       University of Chicago - Legal Research on International Law Issues Using the Internet

·       Georgetown Law Library - Introduction to International Law Research

·       The Harvard Law School Library - International Legal Research

·       The University of Utrecht - Conducting Research in Public International Law

Treaties

The 1648 Peace Treaties of Westphalia, reproduced by the Avalon Project at Yale Law School, established the framework for modern treaties and recognized the right of the sovereign to govern free from outside interference. By the 20th century, the subject matter of treaties had been expanded to include humanitarian law, criminal law, intellectual property, the sale of goods, the environment, outer space, among other topics. Today, treaties have become the principal source of Public International Law and can also include the creation of rights for individuals.

 

Treaties may be bilateral (between two countries), or multilateral (between three or more countries). The treaty text may provide for the manner by which it takes effect. Generally, treaties will enter into force when it has been signed and ratified by a certain number of parties. Parties to a treaty may ratify a treaty with reservations or other declarations unless the terms of the treaty place restrictions on those actions. A reservation is a country's attempt to modify certain terms of the treaty, as it applies between itself and other countries. The Vienna Convention on the Law of Treaties is the UN agreement that governs the law relating to treaties and it can be used as a guide on how treaties and other fundamental concepts are made.

Researching Treaties

Treaty research is a topic that can be the subject of its own detailed guide. However, when doing treaty research the researcher needs to ask some key questions to determine who best tackles the question.

 

These questions should be:

 

·       Is it a bilateral or multilateral treaty?

·       Who are the parties to the treaty?

·       Is the treaty in force?

·       Has the treaty been signed, ratified, repudiated, or modified?

·       Are there reservations to the treaty?

·       Is there an international organization that oversees or administers international law in the subject area of the treaty?

Treaties to which the U.S. is a Party

Treaties in force to which the U.S. is a party are compiled in Treaties In Force; a List of Treaties and Other International Agreements of The United States (U.S. Dept. of State, USGPO, 1955- ); or A Guide to the United States Treaties in Force (Buffalo, N.Y., W.S. Hein Co., 1982). These treaties can be found online at the U.S. State Department’s Treaty Affairs website, which contains not only a link to the treaties in force but also those under consideration. They can also be found in commercial databases such as HeinOnline, LexisNexis (INTLAW: USTRTY), and Westlaw (USTREATIES). A Guide to the United States Treaties in Force is also published commercially in an electronic format by HeinOnline.

 

If the treaty is out of force, it can be found in the United States Treaty Index (Buffalo, N.Y., W.S. Hein, 1991- ). This work is also published electronically in commercial databases such as HeinOnline, TIARA, Lexis, or Westlaw.

Treaties to which the U.S. is not a Party

Researching treaties to which the United States is not party can present a larger challenge to the researcher.

 

Multilateral treaties are published in sets like the United Nations Treaty Series (UNTS), and in some cases on the web. However, only treaties deposited with the UN Secretary General become part of the UNTS. Although most multilateral (and many bilateral) treaties are deposited with the UN as a matter of course, states are under no specific obligation to do so. A good source of information on the role of the UN as a treaty depository is the Summary of Practice of the Secretary-General as Depository of Multilateral Treaties on the UN website. The Treaty Handbook (United Nations, 2001), written by the Treaty Section of the U.N. Office of Legal Affairs, is another excellent source of information on this topic. The UNTS is available at the United Nations Treaty Collection website, which is available without subscription using the Username: treaties and the Password: 12345. This searchable database includes over 40,000 bilateral and multilateral treaties in scanned format. The text of over 200 international multilateral treaties and other instruments are available through Tufts University’s The Fletcher School Multilaterals Project. This is an ongoing project, so the number of instruments included will expand. Most of the texts date from 1945 or later, but the collection also includes historical texts, from the 1648 Treaty of Westphalia to the Covenant of the League of Nations.

 

Bilateral, obscure, or historic treaties can be more difficult to find. These treaties are generally published only in the treaty series or gazettes of the signatories, or in commercially produced, topical compilations. In these cases the researcher needs to have as much information as possible on the treaty before beginning research.

Guides to Treaty Research

·       New York University School of Law Library - International Treaties Guide

·       University of Washington School of Law Library - Treaties and Other International Agreements

·       The Harvard Law School Library - Finding Treaties without a Citation and Finding Treaties with a Citation

·       Columbia Law School - Guide to Treaty Research

·       University of Chicago - Fundamentals of Treaty Research

·       Duke Law Library - Treaties

Customary Law

In the field of international law, customary law refers to the Law of Nations. The Law of Nations is composed of the legal norms that have developed through the interactions between states over a period of time. The concept implies that states are expected to carry out their affairs consistently with past-accepted conduct. Customary law can change based on the acceptance or rejection by states of particular acts. Norms that achieve universal acceptance can become peremptory norms that cannot be violated or changed except by a norm of comparable strength. Many international treaties are attempts to codify existing customary law.

 

To find customary law, start by searching for relevant texts and treatises, law review articles, and judicial decisions from national and international tribunals. Statements made in landmark resolutions and declarations of the UN can also be helpful. International legal matters are frequently litigated in American courts, so check federal and regional digests for cases. Legal encyclopedias such as Corpus Juris Secundum (CJS) and American Jurisprudence, 2d (Am Jur 2d) may also contain relevant materials.

Guides to Customary Law Research

Case Law

International Court of Justice

As stated above, the UN Charter designates the ICJ as the international law court for the world. Its main mission is to settle disputes between nations and its holdings are the strongest statement of what international law is in a particular situation. The ICJ has a dual jurisdiction: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction).

 

The ICJ maintains an archive on its website of all contentious cases and advisory proceedings going back to 1947. This page also includes a list of all pending cases before the court.

 

The Registry is the official publication of the court and it consists of a series of materials covering the range of documents created by the court. The decisions of the Court, in both the English and French, are published in the I.C.J. Reports. Each decision is published as soon as possible after it has been given, in an unbound fascicle, and early each year an analytical index is published of the previous year’s decisions.  Official citation of the series:  I.C.J. Reports, with an indication of the year, e.g. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432.

 

Pleadings and oral arguments are published after the termination of each case and contain the documentation relating to the case in the original language, i.e. English or French.  This set comprises the document instituting proceedings, the written pleadings and (selected) annexes, the verbatim record of the oral proceedings, any documents submitted to the Court after the closure of the written proceedings, and selected correspondence Official citation:  I.C.J. Pleadings, with the short title of the case, e.g. I.C.J. Pleadings, Elettronica Sicula S.p.A. (ELSI), Vol. I.

In addition, the Registry also publishes Acts and Documents, the I.C.J. Yearbook, and the I.C.J. Bibliography. Acts and Documents is a series containing the basic texts pertaining to the court. The Yearbook gives and account of the work of the Court during the period from 1 August of the preceding year to 31 July of the current year.  There is also a French edition of this publication, the Annuaire. The Bibliography is a listing of such works and documents relating to the Court as have come to its attention during the previous year.

European Courts

There are tow distinct and separate systems of courts with in the European framework. The first court system, the European Court of Justice (ECJ), based in Luxembourg, is associated with the EU handling commercial and social effect issues within the EU. The second court system, the European Court of Human Rights, based in Strasbourg, is the system associated with the Council of Europe and dealing principally with human rights issues. These two systems bear no relationship to each other.

The Court System of the European Union

The ECJ is set up as a two-step procedure centering on the Court of the First Instance and the ECJ itself. Decisions within the European Union system may be from the Commission, the Court of the First Instance, or the ECJ. However, older cases may have had an opinion of the Advocate-General as well, but the ECJ has stopped printing those decisions in the official reporter. Since 2005, cases involving EU civil service have been heard by the Civil Service Tribunal. These cases where originally heard by the ECJ and following its creation in 1989, by the Court of First Instance. The Civil Service Tribunal may not hear and determine cases between national administrations and their employees.

 

The ECJ’s website offers detailed descriptions of the institutions within the Court and is a great place to get a general understanding of how it works. It also includes a section with case law since the inception of the Court. ECJ case law is also available through Eur-Lex, the portal for EU legal materials. The official reporter for the ECJ is Court of Justice of the European Communities, Reports of Cases Before the Court.

The European Court of Human Rights

The ECHR is the result of the European Convention on Human Rights and is administered through the Council of Europe. The Court, as presently constituted, was brought into being by Protocol No. 11 on 1 November 1998. This amendment made the Convention process wholly judicial, as the Commission’s function of screening applications was entrusted to the Court itself, whose jurisdiction became mandatory.

 

Access to the European Court of Human Rights case-law database is through the HUDOC Portal. This is a powerful and user-friendly system, which provides free online access to the judgments, decisions, resolutions and reports of the European Court of Human Rights, the European Commission of Human Rights and the Committee of Ministers. The database is updated regularly making it an efficient research tool.

 

The official reporters for the court are the Publications de la Cour Européenne des Droits de l'Homme. Série A, Arrêts et Décisions = Publications of the European Court of Human Rights. Series A, Judgments and Decisions. (Strasbourg: Greffe de la Cour, Conseil de l'Europe, 1961-1996) and Recueil des Arrêts et Décisions (Köln: Carl Heymanns Verlag, 1996- ).

Other International Courts

Inter-American Court of Human Rights

Created in 1979 under the umbrella of the Organization of American States (OAS), The Inter-American Court of Human Rights is the OAS’ autonomous judicial institution. The Court’s objective is the application and interpretation of the American Convention on Human Rights and other treaties concerning this issue. The Court’s website has a Jurisprudence page with links to decisions and advisory opinions. It also maintains an instruments page with a comprehensive collection of treaties, conventions, and protocols materials relating to human rights for the Universal, Inter-American, European, and African systems. The University of Minnesota maintains a mirror site to the Courts website.

 

Official reports for the Court are Inter-American Court of Human Rights Serie A, Fallos y Opiniones/ Series A, Judgments and Opinions (San José, Costa Rica: Secretaría de la Corte, 1982- ). Serie B, Memorias, Argumentos Orales y Documentos / Series B, Pleadings, Oral Arguments and Documents. Serie C--Resoluciones y Sentencias/ Series C--Decisions And Judgments

International Criminal Court

The International Criminal Court (ICC) is an independent, permanent court established by the Rome Statute of the International Criminal Court. The ICC tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. It is a court of last resort and will not act if a case is investigated or prosecuted by a national judicial system, unless the national proceedings are not found to be genuine. Today, 111 countries are parties to the Rome Statute, but the U.S. is not one of them.

 

The Court’s Official Journal is published electronically and the website contains a wealth of materials and information on the Court.

Special Situation Courts

Since the creation of special courts to address the issues of war crimes after World War II there have been a series of other courts created to handle particular issues of international concern. The following is a list of the most prominent of those courts.

 

·       Nuremberg Trials: The Avalon Project at Yale Law School

·       International Criminal Tribunal for Rwanda: Official site

·       International Criminal Tribunal for the Former Yugoslavia: Official site

·       Iran-U.S. Claims Tribunal: Official site

Journals

The list of journals on the topic of international law is exhaustive and the researcher would be well served to begin with an index, such as the Current Index to Legal Periodicals or the Index to Foreign Legal Periodicals, to find articles on topic. The following is a small list of journals specializing on international law to help the researcher get started. They are available commercially through LexisNexis, Westlaw, or HeinOnline although some have links to the full text of some articles in their websites.

 

·       Fordham International Law Journal (full-text from vol. 32)

·       The European Journal of International Law (full-text)

·       Harvard International Law Journal

·       Cornell International Law Journal (full-text)

·       American University International Law Review (full-text)

·       NYU Journal of International Law and Politics (full text from vol. 36)

·       Columbia Journal of Transnational Law (current issue)

·       Leiden Journal of International Law

Useful links

·       Babson College: Public International Law. A brief guide with links and resources.

·       UC Berkeley School of Law and Duke University School of Law: International Legal Research Tutorial. A collaborative project designed to teach research strategies for print and electronic resources on international legal materials.