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International Law

by Bob Menanteaux

Introduction

Research in international law is complicated by several factors. As Elizabeth Byerly has pointed out, "...[public international law] materials tend to retain research and reference value over decades and even centuries." The viability of international resources over time demands that users have sophisticated manual and computerized research skills. In addition, assessing treaty status; determining the existence of customary law; or discovering applicable general principles have no counterpart in U.S. legal research procedure. Although experience with domestic legal research is useful, international legal research offers new challenges.

This guide to selected sources in international law is designed to reflect the hardcopy and electronic research collections available through the Seattle University Law School Library. The basis for this bibliography is Article 38 of the Statute of the International Court of Justice (1945). This section of the statute enumerates the sources which have been widely adopted by the world community as identifying the means for resolving disputes arising under international law. Whether the authorities as presented in the statute are all-inclusive or listed in order of importance, is still the subject of debate. Nevertheless, Article 38 (in conjunction with Article 59) provides a reasonable foundation for the consideration of this topic. In this bibliography, the text of the statute is given in italics, followed by a brief review and a list of resources.

Treaties

Article 38

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;

Treaties - United States

Treaties of the United States are collected and published in a set called United States Treaties and Other International Agreements. This series of volumes is updated by irregularly issued pamphlets entitled Treaties and Other International Acts Series. A wide variety of U.S. treaties as well as business and trade related instruments are also available through Lexis (INTLAW;USTRTY) or Westlaw (database: USTREATIES).

In order to determine whether a treaty is currently binding on the United States, consult Treaties in Force, a softbound volume which is revised every year. The Internet version is updated on the same schedule as the print volume. You'll find Current Treaty Actions on the Web up to date as of the last four to six months. For the latest treaty action information, consult the Treaty Affairs Office at the United States Department of State, (202) 647.1345. The progress of treaties submitted to the U.S. Senate for advice and consent can be followed by using the "Treaties" tab in vol. 2 of Commerce Clearing House's Congressional Index or online through THOMAS beginning with treaties from the 90th Congress.

Two new services have made U.S. treaty research simpler and more timely. The United States Treaty Index: 1776-1990 Consolidation, organized chronologically, indexes all U.S. treaties by subject and country and provides a complete description for each document covered. The Current Treaty Index from the same publisher updates the consolidated edition at least twice a year. Hein OnLine now has a treaty library which brings a large selection of treaty instrument to the desktop. It comprises compilations covering instruments starting from 1776 and includes comprehensive coverage of the United States Treaties series as well as a complete collection of Treaties in Force. Use Hein's United States Treaties and Other International Agreements Current Service to locate current treaty texts. This microform set offers ready access to treaties and agreements in advance of State Department publication. New treaties are added frequently.

Treaties-Non-U.S.

The bilateral and multilateral treaties, to which the U.S. is a party, represent only a small fraction of the global treaty system. Use Bowman and Harris' Multilateral Treaties: Index and Current Status for locating references to the world's multilateral treaties beginning in 1856. The most current supplement brings the main volume up to date for treaties concluded by January 1, 1994. Witkor's Multilateral Treaty Calendar, which covers treaties from 1648 to 1995, accomplishes the same goal as Bowman and Harris, except that it does not indicate treaty signatories. An alternate, albeit less comprehensive resource, is Multilateral Treaties Deposited with the Secretary-General. This United Nations publication tracks U.N. instruments as well as those developed by its predecessor, the League of Nations, that are still in effect.

Although somewhat out of date, the World Treaty Index covers both the United Nations and League of Nations treaty series in addition to over 6,000 bilateral and multilateral instruments from over 40 different national collections. Use it to discover those treaties to which the United States is not a party. Access the online service with updated information. The United Nations Cumulative Treaty Index represents another approach to finding non-U.S. bilateral and multilateral instruments. A variety of both types of treaties are registered with the U.N. and this multivolume index provides several access points including subject and country indexes. References are to the United Nations Treaty Series or UNTS (see below). The official Cumulative Treaty Index published by the United Nations is available through the United Nations Treaty Service database (must be used within the law school building).

Securing the text of a bilateral foreign treaty may present difficulties of both availability and language. The Library holds the major treaty sets: Consolidated Treaty Series, League of Nations Treaty Series, and the United Nations Treaty Series. Out of all three, the Consolidated Treaty Series offers the greatest depth of coverage, extending back to the beginnings of the modern nation state (1648). Outside of the English-speaking nations, you will find that most treaties are in the languages of the contracting parties. The Internet and other online resources have made it easier to gather selected treaty texts for selected foreign states. For example, a government office or ministry may make such texts available. These are most easily located using the Nations of the World Web site which aggregates legislative, executive, and judicial sites for most states. Northwestern University's International Documents site also provides an excellent list of foreign government Web services.

Finding multilateral treaty texts may be somewhat easier. The Fletcher School's Multilaterals Project has collected instruments representing a variety of subjects. An additional avenue of search is available through the directorates for treaty regimes. Use Northwestern's extensive list of international governmental organizations to find the site for an IGO or treaty secretariat. Non-governmental organizations with an international focus can also make treaties available for topics which coincide with their subject interests. A list of over 2,000 organizations in consultative status with the Economic and Social Council of the United Nations can be used to identify many NGOs. See the last section of this Starting Point (International Law on the World Wide Web) for additional information on locating non-governmental organizations. Other sources such as the University of Minnesota's Human Rights Library makes available extensive documentation in human rights while Lex Mercatoria at the University of Oslo does the same for trade-related issues. See the reference librarian for additional assistance.

Before relying on any Internet resources, make sure you are downloading an authentic text from a reputable organization. For those who require more detailed information, reference should be made to Edward Grosek's comprehensive guide to treaties (both online and print) at 20 Loy. L.A. Int'l & Comp. L.J. 641 (1998). An updated version of this article, focusing on multi-jurisdictional and international organization sources, is available in the last chapter of Sources of State Practice in International Law.

Suggested Subject Headings (for use in the library catalog)

For information on treaties as legal instruments, see the subheadings under the term "treaties" or try any of the following headings:

International obligations

Treaty-Making Power

Commercial Treaties

Additional Links

ASIL Guide to Electronic Resources for International Law: Treaties

International Custom

(b) International custom as evidence of a general practice accepted as law;

One of the methods for establishing the existence of custom in international law is through evidence of a state's conduct in international affairs. In the United States, published documentation which confirms our national practices primarily (although not exclusively) emanates from the Department of State. The Digest of International Law has served as the print expression of this purpose beginning with the first edition by Cadwalader in 1877. Successive volumes by Wharton, Moore, Hackworth, and Whiteman have covered the ensuing years through 1973. The current set which collects national practices is called the Digest of United States Practice in International Law and is published annually. Regular articles appearing in the American Journal of International Law under the title "Contemporary Practice of the United States Relating to International Law," update material appearing between volumes of the Digest. This periodical is searchable on both Westlaw (AMJIL) or Lexis (library: INTLAW; file: AJIL). An adjunct to the Digest can be found in Sean Murphy’s United States Practice in International Law. This set, which started with volumes covering 2002, includes hard-to-find document extracts, additional references, tables of cases and treaties, and, a detailed index.

The Restatements have garnered a reputation as authoritative statements of the common law reflecting current U.S. practice. Practitioners, scholars and judges have cited its texts as persuasive authority. Both the Restatement of the Law, Second: Conflict of Laws 2d (1971) and the Restatement of the Law, the Foreign Relations Law of the United States 3d (1987) can be useful adjuncts to researching customary international law as developed and applied by the courts. The Conflicts Restatement covers international conflicts rules while the foreign relations title concentrates on such areas as jurisdiction, judgments, international human rights, the rights of aliens, and international economic law. Both titles are also available on Westlaw and Lexis.

Foreign Relations of the United States and American Foreign Policy: Current Documents both provide an overview and background to major developments in United States foreign policy. The documents of American foreign policy and foreign relations as well as information on the economic, political, and social conditions in foreign states are indexed selectively in the Public Affairs Information Service (available on Westlaw as PAIS). Although it does not exhaustively cover these topics, it includes citations to a wide variety of U.S. and foreign periodicals as well as pertinent U.S. government documents.

Cases in the municipal law of nations often play a role in the interpretation of treaties or as evidence of custom in the general application of law. As such, they are a source that should not be overlooked. Recourse to the case law of other countries can be pursued using resources available on the Internet. The Law Library of Congress' Guide: Nations of the World would be a good place to begin a search for foreign case law. An excellent print source for international municipal case law as well as the reports of other international and arbitral panels can be found in International Law Reports. Lexis is particularly strong in United Kingdom case law and statutes. To focus on U.S. case law discussing international legal issues use American International Law Cases. Online resources such as Lexis have case files covering international law issues in U.S. courts ( see contents of the INTLAW library). The same material is covered on Westlaw in the FINT-CS (federal international law-cases) database.

The practices of other states also contribute to the formation of custom in the international arena. Although most compilations are in the language of the country being researched, you might try, for example, the British Digest of International Law to sample how the British Government might view a particular international problem. Several volumes are available at the University of Washington Law Library. In addition to this service, various yearbooks published in different countries also contain articles reviewing state practice. Examples of this genre include: Netherlands Yearbook of International Law, Japanese Annual of International Law, and the German Yearbook of International Law. A more exhaustive list of these yearbooks can be found in the Guide to International Legal Research. The Index to Foreign Legal Periodicals indexes many of the yearbooks by subject. You’ll find it available online in Sullivan Hall from any networked connection in the building.

Sources of State Practice in International Law tracks materials from a number of industrialized countries. Covering 16 states, each entry begins with an essay explaining issues of succession and treaty implementation and also includes information on treaty collections, indexes and national yearbooks.

International organizations make a significant contribution to the development of custom in international law, the United Nations being the most prominent among them. The important roles of the Security Council and the General Assembly are chronicled almost daily in the media. These institutions and their associated organs, enable the nations of the world to "...establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained...," in the words of the UN Charter. Through the UN's International Law Commission, customary practices are codified and new initiatives in the development of the international rule of law are undertaken. The International Court of Justice and its associated chambers continue to play a important role in the peaceful resolution of disputes between states. These and other institutions generate a considerable body of information daily. The Law Library has been systematically collecting key UN documentation on microform since 1985 including much of the material produced by the Security Council, General Assembly, Economic and Social Council, and Trusteeship Council. Special emphasis has been placed on developing materials in the areas of human rights and international trade. AccessUN, available through the Research Portal database list, provides the most comprehensive index to this material.

Finally, evidence of custom can be ascertained by consulting the writings of commentators and jurists, some of whom have written classic treatments on various international law topics. Bibliographies by Delupis, Merrills, and Kleckner are older and should be used to develop retrospective sources for identifying customary practice. In addition, Beyerly's Public International Law: A Guide to Information Sources lists non-U.S. materials that can be used to support the existence of custom. Update these works using the bibliography of articles and books published twice annually by the Max Planck Institute, Public International Law. The strong topical coverage of international legal materials in Germain's Transnational Law Research make it an especially useful tool in which to begin a research project. Search the Law Library's collection for references by using the Law Library Catalog, using your own computer or from the library terminals on the second floor. See the reference librarian for assistance in selecting the most appropriate headings to use for your research.

Suggested Subject Heading (for use in the library catalog)

Customary law, international

General Principles of Law

(c) the general principles of law recognized by civilized nations;

Occasionally, a case will arise that cannot be easily resolved by applying international custom or treaty law either separately or in combination. Section (c) of the Statute allows the Court to distill from the municipal practices of states, those broad principles most applicable to the controversy before them. In that sense, this section of the statute prescribes more of a methodology, for example, the techniques of comparative law research, than a set of informational resources. In addition, this section has been interpreted as allowing for theories of natural law, jus cogens, and equity to be brought into play where the case at hand defies the rules of custom or strict treaty interpretation.

Section (c) of the Statute is rife with research problems for the student. For this reason secondary sources assume a more prominent role in research involving general principles. Using textbooks, survey literature, classic treatises, or encyclopedias can help you make an important start in discerning those principles which cannot be discovered directly through primary sources. These works can be located using either the bibliographies mentioned in the last paragraph on international custom above or our online catalog. Actual books on "general principles" are few and far between. In addition to a small book on this topic by Geza Herczegh, the library holds one of the major works on the general principles of law by Bin Cheng. For an overview of comparative law see Glendon's Comparative Legal Traditions In a Nutshell. De Cruz's Comparative Law in a Changing World or Zweigert and Kotz's An Introduction to Comparative Law provide an insight into the methodology and techniques of comparative law as well as a review of the world's basic legal families.

Judicial Decisons and Legal Publications

(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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.

Decisions of courts and tribunals can be an important and useful source of international law. Despite the fact that Article 59 does not bind the International Court to follow any previous decision, judicial consistency is still important. Decisions of the International Court of Justice and its predecessor, the Permanent Court of International Justice, compete in significance with those of various arbitral panels, regional courts, claims tribunals, and other adjudicatory bodies which have proliferated of late under the aegis of various treaty regimes. The Project on International Courts and Tribunals Web site will give you an idea of the courts, tribunals and panels currently involved in international adjudications. Each contributes incrementally to the development of international jurisprudence. For example, the Iran-United States Claims Tribunal has been cited as advancing the law of remedies and state responsibility.

The decisions of international tribunals can be especially lengthy. For this reason, many practitioners rely on publicists found through secondary sources for assistance in locating appropriate cases. Titles which summarize and / or index the case law can be especially helpful in locating the right information. An example of an enhanced index is the Systematic Guide to the Case-Law of the European Court of Human Rights. More extensive summaries can be found on the work of the International Court of Justice for cases before 1967 itself or in a set by Giuliana Ziocardi Capaldo. The Global Community: Yearbook of International Law and Jurisprudence, which recently began publication, features case summaries and indexes for a wide variety of international dispute forums.

Resources for locating opinions of some selected adjudicatory bodies on the Web are given below. In addition, the library receives regular court reports in print from the Court of Justice and the Court of First Instance of the European Union; the European Court of Human Rights; and, arbitral reports made available through the United Nations in the Reports of International Arbitral Awards. Selected cases related to international law can also be found in periodicals such as International Legal Materials, Human Rights Law Journal, and International Human Rights Reports. Decisions. National case compilations are also important sources for texts and selected titles are noted in the section of this bibliography on international custom.

Although the decisions of courts and tribunals are given greater prominence in the Statute, the writings of "highly qualified publicists" cannot and should not be ignored. Their value as explanatory texts or as a method for bringing together various disparate threads to illustrate a common principle, cannot be underestimated. A similar pattern of scholarly publication exists in international legal scholarship as it does in the U.S. domestic academic circles. Journal articles and treatises dominate the communication process followed closely by essay collections. Thematic essay compilations or festschriften (collections of essays assembled to honor an individual) play a much more prominent role in disseminating ideas than they do in the U.S. Find these essays by using the Index to Foreign Legal Periodicals. The Index to Legal Periodicals & Books and Legal Resource Index Online provide substantial coverage of the international legal periodical literature while treatises can be gathered using the Law Library Catalog. Again, the bibliographies mentioned at the end of the section on international custom can also be of value for retrospective research.

Use a general treatise to get a good overview of public international law. Brownlie's Principles of Public International Law, sixth edition is an example of a single volume work that weaves text with cases and statutes to provide a concise summary of the law. Oppenheim's International Law is an expansive work of excellent reputation. The Encyclopedia of Public International Law provides another research avenue that can be a useful first stop for background information on international law issues. See the reference librarian for assistance in determining useful headings for materials in this catagory.

Computer Assisted Legal Research

LEXIS and WESTLAW have continued developing online resources for research in international law. Both systems have added considerable secondary materials useful in international business transactions research. When searching these databases, remember to find out what fields or segments are available for the file you are using. While it is difficult to characterize all of the available materials, a few highlights are given below. Consult the database catalog for each service to determine the best files to use for a particular problem. The reference librarians would be glad to make recommendations and assist with search strategy formulation.

WESTLAW--Includes a set of pertinent US case law materials as well as separate files for texts, journals and law reviews in the international area. U.S. Treaties begin with those published in 1778. Of special interest are the cases of the International Court of Justice (INT-ICJ) beginning in 1947. Lately, Westlaw has been adding a considerable number of secondary source materials on European Union law and international business.

LEXIS--Materials in international business and international law are becoming a prominent part of this system. Familiar publications such as International Legal Materials are coupled with strong British Commonwealth and European Union libraries. Lexis also contains a number of full text journals such as Foreign Affairs and International Lawyer that can provide useful insights into international problems. Finally, this vendor also makes the CELEX service of European Union law resources available.

Both services now offer access to full text newspapers such as the New York Times, Washington Post, Christian Science Monitor, BBC World Service and the Times of London, which are useful for background information or current events.

International Law on the World Wide Web

The World Wide Web (WWW) has become a prominent source for international legal research. Sites incorporating unique documentation in international law, human rights, and international trade among others, are appearing with greater frequency. The Web has become especially useful for locating current primary source materials. The law library’s Web page features a select group of Web resources including ASIL’s EISIL Web site which offers a good starting point for Web-based research. Select "International Law" from the internet links menu to view the selection. Be careful to rely only on reputable sites in order to ensure document authenticity. To find documents on a particular subject, exploit the subject expertise of international non-governmental or intergovernmental organizations. These groups generally track issues which fall in their areas of interest and usually include a variety of primary and secondary source documents. A list of these organizations is available through the Encyclopedia of Associations on either Westlaw (EOA) or Lexis (BUSREF; ENASSC). Major treaty regimes usually have secretariats which are responsible for monitoring compliance within their areas of competence. They will also make primary source documents available. To find out if either type of organization has a Web site, try searching for it using your search engine of choice or consult the list of international organizations available from Northwestern University. Ask a reference librarian for additional assistance.

Last Updated August, 2006