Chapter 1: Public International Legal Research

Chapter 1: Public International Legal Research
 Introduction and Foundation Principles

o There are considerable differences in the value and weight of authority ascribed to
the sources of international law; two of the primary sources of law, treaties and
custom, are equally positioned in the hierarchy; some of the primary sources of
law have no official publication and can only be demonstrated through the use of
subsidiary sources of law.
o There is also no hierarchical structure for international tribunals, often no
compulsory jurisdiction, and no formal recognition of the doctrine of stare decisis.
 Definition of Public International Law
o Public international law has been defined as a body of rules governing the
relations between and among States.
o Historically, public international law has had its roots in matters related to
wartime and the law of the sea.
o More recently, it has grown to cover a variety of subject areas from contracts to
the environment, human rights, labor, patents, and trademark, among others.
o The definition of international law has grown and expanded to include the law
that governs relations not only between States but also among international
organizations, private entities and even, at times, individuals.
o States are the principal actors on the international stage.
 States are considered sovereign in the sense that they control what
happens within their borders.
 Sovereignty implies that States recognize and respect that they cannot
compel another State to take a certain action within its own borders.
 Legal Personality: States, International Organizations, and Individuals
o The creation, development, and enforcement of law on the international stage is
not akin to the creation, development, and enforcement of U.S. law.
o Grasping the concept of horizontal law-making is one of the challenges that U.S.
legal researchers encounter as they prepare to conduct public international legal
research.
o Another fundamental difference between U.S. legal research and international
legal research is the distinction between a source of law as binding authority and a
source of law as a publication that represents or contains that binding authority.
 Sources of Public International Law
o Article 38(1) of the Statute of the ICJ
 From a legal research perspective, soft law may be reflected in: (1) The
language of Article 38(1) does not explicitly create a hierarchy of
authority.
 For research purposes, it is generally best to proceed in the order listed as
treaties tend to create a more specific legal obligation than customary
international law or general principles and therefore will ordinarily prevail
under the legal maxim lex specialis derogat legi generali.
 While every subsidiary source may fairly be characterized a secondary
source, not every secondary source may be use as a subsidiary source.
o Jus cogens
 Latin phrase generally interpreted in English to mean “compelling law.”
 Article 53 of the Vienna Convention on the Law of Treaties (VCLT)
recognizes jus cogens as a source of public international law that preempts
the other five enumerated sources of law.
o U.N. General Assembly Resolutions Passed (Nearly) Unanimously
 The International Law Commission (ILC), which was established by the
U.N. General Assembly to study and codify international law, recently
concluded that resolutions of international organizations cannot
themselves constitute international law or serve as conclusive evidence of
a rule of customary international law.
o Soft Law
1. Treaties not yet in force
2. Some provisions of international conventions (those that are advisory or
aspirational in nature)
3. Political declarations made by two or more states; that is, voluntarily
observed standards
4. U.N. General Assembly resolutions, particularly when they are unanimous
or near unanimous
5. In codes of conduct and codes of practice that govern international players
6. Action plans
7. Final acts of international conferences
 Conclusion
o Researchers should remember that these sources are categorized as either primary
sources, subsidiary sources of law, or peremptory norms.
o The primary sources of public international law include (1) treaties, (2) custom,
and (3) general principles.
o Subsidiary sources include (4) judicial decisions and the (5) writings of highly
qualified publicists.
o Peremptory norms are (6) norms that are so fundamental to the international
community that no derogation from them is permitted.
Chapter 2: US Legal Research Basics

Chapter 4: Customary International Law
 Sources of international law

o Article 38 of the International Court of Justice statute states:
o 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.
 Treaties vs. executive agreement
o Treaties require 2/3 Senate majority
o Executive agreements or order are signed by the President without the
Senate’s consent
 Signing vs. Ratifying

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Chapter 1: Public International Legal Research

 Introduction and Foundation Principles

Chapter 2: US Legal Research Basics

 Sources of international law

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