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Source: http://www.doksinet TACKLING A BRAVE NEW WORLD: A GUIDE TO THE BASICS OF INTERNATIONAL LAW SPRING 2005* International law is no longer an issue just for diplomats and trade lawyers.1 U.S Supreme Court Justice Sandra Day O’Connor If law students take Justice O’Connor’s view seriously, they may need to become more familiar with international law and how to apply it. This handout is meant to help by providing: · a general introduction to the sources of international law · guidance about conducting international law research; and · an overview of the debate regarding the role of international and foreign law sources in the U.S legal system This handout offers only a general introduction to international law. For more detailed information on any of these topics, also available to you are the many sources highlighted throughout this handout, the experienced librarians at the Wolff International Law Library, and the several international law courses offered at the Law

Center. I. Sources of International Law Like our own domestic law, international law comes from many sources. Yet while courts interpreting American law look to statutes, cases, regulations, constitutions, and rules, courts applying international law look to treaties, customary international law, general principles of law recognized by civilized nations, and judicial decisions. These are the sources of international law that the International Court of Justice (ICJ) can apply in the cases over which it presides.2 The ICJ is the judicial organ of the United Nations It presides over cases between nations who agree to the court’s jurisdiction. A. Treaties A major source of international law is the treaty. Treaties are international agreements that govern the way nations deal with one another. The Vienna Convention on the Law of * Prepared by Doug Tedeschi and M. Erin Rodgers Supreme Court Justice Commends Georgetown Law, Blue and Grey, Oct. 28, 2004 at 1, available at

http://www1.georgetownedu/explore/news/?ID=1363 (last accessed Feb 28, 2005) Note also that international law is not foreign law. It is not the domestic law of foreign nations but law made among them See infra Part IIIB 2 These are the specified sources as listed in the Statute of the International Court of Justice, which created the ICJ. The ICJ may also act ex aequo et bono to consider issues of justice and fairness to fashion solutions not dictated by international law. 1 ­1­ Source: http://www.doksinet Treaties, which provides basic guidelines for creating international agreements, defines a treaty as an international agreement between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments. A document that meets the elements of a treaty is still a treaty, even if its parties use a different designation, i.e “agreement” or “final act.” Treaties may also be created between international

organizations (such as the UN or NATO); while the Vienna Convention does not apply to these, other international law – including a separate treaty on treaties created by non­states and customary international law – will govern how they are created, applied, and interpreted. Although the US is not a party to the Vienna Convention, it acts as though the Convention were binding international law. A treaty can come into force once a certain number of nations ratify the treaty, as specified in the treaty, or upon signature by the parties. In addition, specific provisions in most international treaties will identify when a treaty becomes legally binding, how compliance will be monitored and measured, how other nations may accede to the treaty (join once it is already force), how and whether the treaty may be amended (a long formal process including all the above steps) or modified (an easier process to change a treaty); and how and when the treaty will terminate. Treaty documents are

deposited with one of the parties to the treaty or with the UN They may also be registered with the U.N and made public – those that remain private cannot be invoked in treaty­related litigation in the ICJ. After a treaty comes into force as international law, additional steps may be needed to bring the treaty into effect internationally or within a particular nation. Many complicated treaties contemplate that further additional international agreements will flesh out the details of how the treaty will work. Often, additional implementing legislation must be passed in the US to fill gaps in treaty obligations and to bring international obligations into force as a matter of U.S law Even where no additional implementing legislation is passed, legislative history may be created for U.S law purposes when the US Department of State prepares an article­by­article analysis prior to a Senate vote on a particular treaty. When starting your research of international treaties, two reference

sources may be helpful: the Treaty Reference Guide and Glossary of Terms Related to Treaty Actions, available at http://untreaty.unorg/English/guideasp and Treaties and Alliances of the World, a book available at the Wolff Library. B. Customary International Law Customary international law (CIL) is to international law much as the common law is to our law in the United States. CIL places binding legal obligations on nations according to their patterns of behavior. Over time, nations come to depend on the patterns of other nations’ actions, words, and responses, and, if these become reliable, they crystallize into law. CIL derives from nations’ actions, as well as from their silence (what they accept without comment) and inaction. Four key criteria for CIL include: the principle is widespread; the principle is longstanding; there is a sense of obligation between nations to follow this principle; and acceptance of the practice by others. The ICJ and other international law courts

apply CIL as well as the law of treaties. ­2­ Source: http://www.doksinet U.S courts also have applied customary international law as international law The Paquete Habana case (discussed below in section III) incorporated customary international law into U.S law American courts thus can resort to the “customs and usages of civilized nations” as a source of international law to apply to the facts of a case and bind U.S actors, even absent a treaty, an executive or legislative act, or a judicial decision.3 In deciding what constitutes CIL, U.S courts look to published jurists who describe what nations actually do, not to what the courts believe the jurists believe CIL should be. C. Judicial Opinions and General Principles of Law Recognized by Civilized Nations a. Judicial Opinions The International Court of Justice (ICJ) is the judicial organ of the United Nations (UN). The statute creating the ICJ is part of the UN Charter, and any country that is a member of the UN is an

automatic party to the ICJ. Unlike US courts, however, the ICJ lacks compulsory jurisdiction. A nation comes within the court’s jurisdiction only if it accepts the court’s jurisdiction through a compromis (an agreement to submit the dispute to the ICJ for resolution) or treaty (specifying the ICJ as the dispute resolution mechanism for treaty­related disputes), or by accepting the ICJ’s compulsory jurisdiction (an optional general acceptance of ICJ jurisdiction for all or some international disputes). The ICJ hears cases only between nations; it does not hear suits brought by individual citizens or by international organizations. Also, unlike most U.S courts, the ICJ can issue advisory opinions The ICJ is the main international court body, though its influence has been in some respects small because its docket is small and it operates slowly. In addition to the ICJ, other international tribunals interpret and apply international law rights and obligations. Two courts were

created in response to specific crises: the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda . Treaties can create additional court systems to apply to specific disputes under the treaty; one example is the International Tribunal for the Law of the Sea. In addition, some international courts are regional, for example the European Court of Justice. b. General Principles of Law Recognized by Civilized Nations In addition to these sources, courts will consider some international law obligations that spring not from traditional law­creating processes like treaty negotiations but from circumstances or traditions. Jus cogens, for example, is any principle held to be so basic and fundamental that it binds all nations. This narrow category, which prohibits slavery, genocide, war crimes, and piracy, is considered binding, though it is not codified or recorded in any written document. II. Conducting International Law Research If

international law research is important to your legal issue or question, you must learn where to find it. As you will see, international law research requires some different techniques than the ones you learned from your legal research and writing professor. This section will (a) point you to helpful introductory sources about international law, (b) highlight the differences 3 The Paquete Habana, 175 U.S 677 (1900) ­3­ Source: http://www.doksinet between international law sources and foreign law sources, and (c) identify tools for navigating the vocabulary and acronym­filled world of international law. New to IL Research? Need Help with IL Research? The John Wolff International and Comparative Law Library can help Consult the library’s International Law Research Guide and International Law Links Visit http://www.llgeorgetownedu/intl for these and other IL resources A. Introductory Sources for Learning about International Law In addition to the specific sources below,

consulting periodicals, journals,4 and certain web­based resources can be an important first step in international law research. Current awareness sources such as loose­leaf services and web sites that collect helpful links provide up­ to­date information about pressing issues in international law.5 A current awareness source could, for example, direct you to learn more about a recently decided ICJ case or about a treaty that has just entered into force. The web sites can be a good place to start research because their links tend to be current and working and the library’s list of web sites is helpful as a navigational tool if you are new to international law research.6 Additional print and online sources that provide an introduction to international law and sources of international law are also available through the Wolff Library. Good introductory resources include: · International Legal Materials, · Guide to International Legal Research (all available at the Wolff Library),

· the ASIL Guide to Electronic Resources for International Law (at http://www.asilorg/ resource/Homehtm), and · the Guide to Foreign and International Legal Databases (at http://www.lawnyuedu/library/foreign intl/) B. International Law, Foreign Law, and Non­State Actors In performing legal research about non­U.S law topics, be aware that there is a distinction between foreign law and international law. International law, as described above in section two, consists of the law among states, as evidenced by treaties, agreements, customs, or other principles. Foreign law, by contrast, is the law of a foreign nation It is, for example, the 4 The International Journal of Legal Information (available at the International Law Library) is a particularly good source for bibliographies on a country or a specific topic. 5 Recommended sources include: ASIL’s International Law in Brief (at http://www.asilorg/ilibindxhtm); International Law Update (at http://www.internationallawupdatecom/);

and the Bulletin of Legal Developments and International Enforcement Law Reporter (both available in print at the Wolff Library). 6 See, e.g, FINDLAW’s International Law Index (at http://wwwfindlawcom/01topics/24international/indexhtml); the Hieros Gamos Guide to International Law (at http://www.hgorg/internathtml); and NYU’s Guide to Foreign and International Legal Databases (at http://www.lawnyuedu/library/foreign intl/) ­4­ Source: http://www.doksinet domestic law of Ireland as it applies to Irish citizens and to events in Ireland. As a student, you may be exposed to foreign law in a comparative law course. One of the difficulties in distinguishing between the two bodies of law is that international law has been, as some scholarship argues, morphing into a system not solely consisting of state actors. In addition, as evidenced by the European Union, regional governmental structures are also becoming increasingly important in world affairs and there is some question as to

whether regional law is international law. EU law has, for example, replaced much of the domestic law in its member states. At least one author has proposed that the international/foreign law distinction should be eliminated in place of a new category of transnational law that would apply to all rules and laws developed by state and non­state actors that has an extraterritorial impact.7 Until this type of change is widely adopted, however, the important distinction to remember is that international law generally applies across borders while foreign law is territorially confined. Wolff Library Guides: Print Sources: Online Sources: Foreign Law Research Help Researching Foreign and Comparative Law at http://www.llgeorgetownedu/intl/guides/foreign Library Guide to Foreign Research at http://www.llgeorgetownedu/lib/gulconly/databasesqc Foreign Law: Current Sources of Codes & Basic Legislation in Jurisdictions of the World CIA World Factbook Nations of the World (Library of

Congress’ website) at http://www.locgov/law /guide/nationshtml In researching an international law topic or paper, there is a good chance that you will also have to know something of the non­state actors who are, in many ways, contributing to the creation of international law. The United Nations, for example, is not a party to treaties in the traditional sense, but the U.N is important in how treaties are created because its General Assembly debates, considers, and takes positions on a number of issues. These activities often generate enough attention or energy to encourage nations to begin the treaty formation process with other nations. Or, for example, researching an asylum claim may require an understanding of international human rights laws and practices. Web­based queries into international organizations can be a good place to begin this type of research. There is an official locator web site for UN organizations (at http://www.unsystemorg) and other resources available to

help understand U.N documents (http://wwwunorg/Depts/dhl/resguide) For non­UN international organizations (of which there are too many to begin to name), the Wolff Library has prepared a guide on Researching Inter­Governmental and Non­Governmental Organizations (available at http://www.llgeorgetownedu/intl/guides/orgs/) 7 See, e.g, Janet Koven Levit, Going Public with Transnational Law: The 2002­2003 Supreme Court Term, 39 TULSA L. REV 155, n4 (2003) ­5­ Source: http://www.doksinet C. “Speaking” the Lingo: Abbreviations, Dictionaries, and Guides to Terms Acronyms abound in international law materials. For help deciphering what all of these acronyms mean an important first step is to look at your source. Carefully read any source in which an unknown acronym appears because usually the meaning will be explained in a footnote before or after the acronym or it will appear in a table of abbreviations. If this fails, the sources listed below can help. In addition to

deciphering acronyms, a student new to international law research may also need to consult dictionaries and guides to the meaning of foreign legal terms. Some sources are identified below, for additional dictionaries, including foreign­language equivalent dictionaries, consult the Wolff Library’s International Law Research Guide. Acronym Help · · · Dictionary Help · · · Bieber’s Dictionary of Legal Abbreviations Acronyms, Initialisms & Abbreviations Dictionary Acronyms and Abbreviations Covering the United Nations Systems and Other International Organizations The International Law Dictionary Dictionary of International and Comparative Law (all available at the Wolff Library) III. The Role of International Law in the US Legal System There is debate, sometimes intense, over what role international and foreign law sources should play within the U.S legal system Federal courts sometimes apply customary international law sources in the absence of controlling federal

statutory provisions. In an early important case, for example, the U.S Supreme Court looked to customary international law to find that an American crew violated international wartime customs when it seized a ship during the Spanish­American war.8 The court did not use international customs to interpret existing U.S law but instead looked to the international customs as establishing “law” that the crew had violated. U.S courts are also, according to one influential Second Circuit case, bound to observe international law. In Filartiga v Pena­Irala,9 the Second Circuit Court of Appeals considered a case brought under the U.S Alien Tort Statute by a Paraguayan citizen in New York against a Paraguayan police captain for the death of her brother in Paraguay. The suit alleged a murder in violation of the law of nations. After being dismissed by the trial court for lack of jurisdiction, the Second Circuit reversed in an important opinion. The court held that the US is bound to observe

international law, a premise supported by previous court decisions but not directly supported by the U.S Constitution or an act of Congress The court’s opinion explained that the appropriate sources to consult for understanding international law include jurists, writers, the usage and practice of nations, and judicial decisions recognizing and enforcing international law. These cases support the notion that US courts can and will use international law when deciphering what rights, obligations, and remedies exist under federal common law. 8 9 The Paquete Habana, supra note 4. 630 F.2d 876 (2d Cir 1980) ­6­ Source: http://www.doksinet Foreign law appears in our courts far less frequently; the great stir over its mention in Lawrence v. Texas10 shows just how rare its use is It is not considered controlling authority but sometimes is cited in discussions of what our law should be. Foreign law, however, receives far less frequent mention. While no one argues that it is

controlling authority in interpreting US law, Supreme Court Justices O’Connor and Breyer tend to support the notion that foreign law sources are useful in understanding what U.S law is and should be O’Connor has argued that international precedents may be considered in interpreting laws in the U.S when gaps or inconsistencies exist.11 Breyer has discussed his use of another nation’s court opinions where the Court faces similar issues in a U.S law based case Defending this controversial approach, Breyer has argued, “if here I have a human being called a judge in a different country dealing with a similar problem, why dont I read what he says if its similar enough? Maybe Ill learn something.”12 Justice Scalia routinely criticizes this type of approach and argues that interpretation of U.S law should never turn on foreign authority because no American “want[s] to be governed by the views of foreigners.”13 Arguing that foreign sources either are authoritative or are not, he

implies that his colleagues have no legitimate basis for citing them and do so only because these sources “agree with” their views. The U.S Supreme Court’s 2005 decision in Roper v Simmons14 added to the longstanding debate. In Roper, Justice Kennedy and the majority of the court held that juvenile executions were “cruel and unusual” under the Eighth Amendment. The majority opinion was rooted in U.S constitutional law, but Justice Scalia in his dissent criticized the majority for including a discussion of the U.N Convention on the Rights of the Child Justice Kennedy defended the discussion arguing that it was used only as a confirmation of the decision already reached under U.S law alone15 Justice Scalia, Chief Justice Rehnquist and Justice Thomas, however, criticized the practice of referring to international and foreign law especially in the case of the Convention on the Rights of the Child – which the U.S has not even ratified, making the Convention a body of

international law that Congress and the President have decided not to join.16 As with other legal research and writing endeavors, your use of international and foreign law must be appropriate to the legal issues you are working to resolve. This handout is meant to provide you with some basic information about international and foreign law, to guide you to useful international law resources, and to identify some of the ways in which international or foreign law sources are used in the U.S legal system This handout should be a first step in your approach to international law – be sure to consult some of the additional sources discussed above to better prepare for finding and using international law. 10 539 U.S 558, 572­73 (2003) Supreme Court Justice Commends Georgetown Law, Blue and Grey, Oct. 28, 2004 at 1, available at http://www1.georgetownedu/explore/news/?ID=1363 (last accessed Feb 28, 2005) 12 Transcript of Discussion Between U.S Supreme Court Justices Antonin Scalia and

Stephen Breyer ­­ AU Washington College of Law, Jan. 13, 2005, available at http://domino.americanedu/AU/media/mediarelnsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01 E85256F890068E6E0?OpenDocument. 13 Id. 14 125 S. Ct 1183 (2005) 15 Id. at 1198­1200 16 Id. at 1225­28 11 ­7­