Learning Objectives

At the end of this module, you will be able to

• describe the concept of international law
• locate resources on treaty law
• find material on the rules of customary international law
• locate databases relating to specialised areas of international public law.

What is public international law?

Public international law is a body of laws and accepted practices which govern relations between states.

Guides to research in public international law

There are a wide range of online guides to research in public international law. These include the following:

• ASIL Guide to Electronic Resources for International Law
• Duke International Legal Research Tutorial
• Getting Started on International Law

Encyclopedias

There are a number of scholarly, multi-volume works covering international law. The most important English-language source is the Encyclopedia of Public Law published with the co-operation of the Max-Planck-Institut für öffentliches Recht und Völkerrecht, the (Max Planck Institute for Comparative Public Law and International Law) in Heidelberg, Germany.

The original Encyclopedia of Public International Law was published in twelve volumes between 1981–1990. In 1992, Elsevier launched a Consolidated Library Edition. The Consolidated Edition eventually totalled five volumes, with the individual volumes arriving at intervals over the next few years. Even the second edition is now showing its age, and will be replaced by the new Max Planck Encyclopedia of Public International Law (EPIL), to be published by the Institute in conjunction with Oxford University Press. The EPIL will be published online and in paper, with online publication expected to begin in August this year. The projected 1,700 articles will include more than 700 new topics not covered in the previous edition.

Max who? Max Planck (1858–1947) was a Nobel Prize winner and one of the founders of quantum physics. But what does he have to do with international public law? The answer lies in the tragic history of Germany during the twentieth century. The Max Planck Institute was founded in 1924 as the Kaiser Wilhelm Institute for Comparative Public Law and International Law. The Institute was part of the Kaiser Wilhelm Society for the Advancement of Science (founded in 1911) and took its name from the Society. After World War II, any reference to the dead Kaiser was something of an embarrassment. Kaiser Wilhem had been forced from power at the end of the First World War and had been an ardent militarist. The Allied occupation authorities therefore proposed that the Kaiser Wilhelm Society be renamed the Max Planck Society. This name was an inspired choice, as late Max Planck had been President of the Kaiser Wilhelm Society in 1930–1937 (before being forced out by the Nazis) and again in 1945–46. He had been an steadfast opponent of the Nazi regime and a man of unquestioned integrity. The Kaiser Wilhelm Society was therefore restablished under the name Max Planck Society in 1948. The Institute followed suit, assuming its current name in the same year. What are the historic factors have shaped the interest of successive German governments in international law? What factors are at work in German history which have not been present in, say, the Australian experience.

Sources of public international law

As most textbooks on the subject point out, the sources of public international law are authoritatively listed in Article 38(1) of the Statute of the International Court of Justice. This article defines these sources as:

• international conventions establishing rules expressly recognised by the contracting states
• international custom, as evidence of a general practice accepted as law
• the general principles of law recognised by civilised nations
• judicial decisions and the teachings of the most highly qualified publicists of the various nation.

The first two categories are the most signficant: these are treaty law and customary international law.

Treaties

Over the last few decades, treaties have become as the most important source of international law. International agreements such as the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on the Law of Treaties (1969) have codified large areas of customary international law. This process of codification continues through the actions of bodies such as the International Law Commission.

In general, treaties (also termed "conventions") bind only the contracting nations. Even then, nations can choose to add reservations. A reservation is a statement made by a nation, when signing or ratifying a treaty, that it does not intend to be bound by certain provisions of the treaty. For example, when ratifying the International Covenant on Civil and Political Rights (ICCPR), the United States indicated that it reserved the right to execute individuals for crimes committed below the age of eighteen, despite the terms of Article 6(5) of the ICCPR. Nations can also withdraw from a treaty if it is no longer perceived to be in the national interest. The Vienna Convention on the Law of Treaties permits countries to terminate without notice in cases of "special urgency".

Treaties may give rise to new rules of customary international law, as the obligations on contracting nations come to be seen by other nations as part of the developing body of international customary law.

The Public International Law site at the University of London site provides a useful summary of the role of treaties in international law

When is a treaty not a treaty? In the online articles below, two DFAT experts discusses some of the practicalities of treaty law: Mark Scully, Choose your Instrument (2004) Treaties in the Global Environment Chris Moraitis, Sources of International Law: The Place of Treaties (2004) Treaties in the Global Environment Consider the day to day practicalities of the treaty law. Are there any surprises?

Australian Treaties

The Australian Treaties Database (ATD) provides a list of treaties to which Australia is signatory. The ATD can be browsed by date, subject, agreement type and country. It is also searchable by subject, date or keyword. In addition, the ATD site includes information on treaties and treaty making in Australia.

The Australian Treaties Library (ATL) at AustLII contains a searchable database of the full text of Australian treaties. The site also includes a wide range of treaty-related resources.

Titles on Content Aggregators

Content aggregators such as LexisNexis, Westlaw and Hein Online are a useful source of the text of international treaties.

Each of these three sources contain extensive treaty materials. However, the materials in these sources are not necessarily comprehensive, as they are based on published series.

International Treaties

There are far too many sites providing the full-text of treaties to list here.The best is choice is to begin with:

• International Law Links. This is the site of the Australian Branch of the International Law Association. It includes an extensive list of links to online sources of treaty law and related materials.
• Links to Treaty Status Sites. DFAT offers a page of links to sites relating to major multilateral treaties.
• Treaties. This site, provided by the American Society of International Law (ASIL), serves as a comprehensive guide to the Web sources of treaty law.
• United Nations Treaty Collection. The UN aims to provide copies of every treaty and international agreement entered into by member states.

Customary international law

Customary international law is the body of practice recognised as law by the international community. Customary international law is not fixed. As the practices of states change, new rules arise.

Recognition of a rule of customary international law requires two elements:

• evidence that the rule reflects the practice of most states over time; and
• the existence of a conviction in the international judicial community that such practice is a matter of law (opinio juris).

The determination of customary international law is sometimes described as more of an art than a science. In practice, however, there are a number of standard approaches.

The following are some of the standards sources that can be searched for evidence of state practice and opinio juris.

Many of the materials indicative of state practice also provide evidence for the opinio juris, as officials and diplomats frequently refer to their country's official position on points of international law in the course of their duties.

The rules of customary law are regarded as peremptory norms: they are generally binding on all nations (unlike treaty law). Even if a nation refuses in practice to abide by a principle of customary international law, it is still legally bound to do so as long as:

• the contrary practice is condemned by the international community
• the government in question officially denies the contrary practice.

Questions arise when a state openly refuses to abide by a principle of international law. When the principle is long established, the nation will probably be regarded as in violation of international law. If it is a developing principle, the nation may seek to be recognised as a persistent objector.

Finding evidence of state practice

One problem for the researcher is where to begin, as the amount of potentially useful material is enormous. Two useful starting points are the following:

• Researching Customary International Law, State Practice and Pronouncements of States at GlobaLex.
• International & Foreign Legal Research: Researching Customary International Law and Generally Recognized Principles at the University of California at Berkeley.

Documenting state practice Read this article, which sets out the methodology used by the International Red Cross to determine customary international law relating to humanitarian law. Jean-Marie Henckaerts, 'Study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict' (2005) 857 International Review of the Red Cross, 175. How successful has the author been in identifying real principles of customary international law? Are there grounds for criticism?

Australian state papers

Starting in 1971, the Australian government began to publish state papers on Australian foreign relations. The first series, Documents on Australian Foreign Policy 1937-1949, was completed in 2001. The contents of the printed volumes are now available as part of the DFAT Historical Documents Database.

From the 1990s onwards, the emphasis has been on thematic collections. Titles published to date include:

• The Australia-Japan Agreement on Commerce 1957 (1997)
• Australia and the postwar world: the Commonwealth, Asia and the Pacific: Documents 1948-49 (1998)
• Australia and the Indonesian Incorporation of Portuguese Timor 1974-1976 (2000)
• The ANZUS Treaty 1951 (2001)
• Australia and Recognition of the People's Republic of China 1949-1972 (2002)
• The Negotiation of the Australia New Zealand Closer Economic Relations Trade Agreement 1983 (2003)
• Australia and the Columbo Plan: 1949-1957 (2004)
• Australia and the formation of Malaysia: 1961-1966 (2005)
• Australia and Papua New Guinea, 1966-1969 (2006)

Australian practice in documenting the conduct of national foreign policy has tended to lag behind that in other developed countries. Most primary material remains unpublished. Additional material is available in the National Archives of Australia.

State papers from other countries

Many countries have published official or semi-official series of state documents in relation to foreign affairs. The first half of the twentieth century saw a flood of publications in this area as countries attempted to justify their policies before, during and after the two World Wars. Most of this older material is held in libraries in print or in microform. This material provides extensive evidence for state practice during the period in which the twentieth-century system of international relations came into being.

In more recent decades, the United States has been energetic in publishing papers on foreign policy. This material has been published under different titles. The most recent titles (and digital versions of many older publications) are available from the site of the US State Department and the US Office of the Legal Advisor. For further information on the online and printed sources for the foreign relations of the United States, see the research guide on United States Foreign Policy at the University of Michigan site.

International Law Commission

Another excellent source for state practice is the International Law Commission site. The Commission was established by the General Assembly of the United Nations in 1947 to promote the codification of international law. The Commission site includes detailed statements of the views of member-states, providing extensive evidence of the official position of most nations.

Legislation and case law

The decisions of national courts regarding a country's international obligations are strong evidence that a particular practice is regarded as a matter of law. This material can be found using the advice elsewhere for finding case law for different nations. There are also number of useful online resources in this field:

• CODICES Database. The CODICES database is an electronic publication of the Venice Commission and reports on the case-law of constitutional courts in different countries world-wide.
• Contemporary Practice of the United States Relating to International Law in American Journal of International Law. This source is available through Hein Online and covers 1988 onwards.
• Global Courts. This source provides access to supreme court decisions from 123 countries.
• International Law in Domestic Courts (ILDC). The ILDC contains domestic cases in international law from over 65 jurisdictions. It includes expert commentary, the full-texts of judgments in their original language and translations of key passages into English. This source is published by Oxford University Press.
• Restatement of the Law (3d) of Foreign Relations Law of the United States. This a publication of the American Law Institute. It contains the opinion of US experts regarding the current state of international law as it applies to the United States and American domestic law in relation to foreign relations. This source is available from LexisNexis and Westlaw.

The United States and international law Critics have characterised the United States as a "rogue state". One frequent charge is that the United States has permitted or encouraged the torture of suspected members of Al-Qaeda despite ratifying the International Convention Against Torture (ICAT). The United States agreed to prevent “cruel, inhuman or degrading treatment or punishment”, but only insofar as the treatment or punishment was prohibited under the United States Constitution. Furthermore, the United States defined mental pain or suffering as refering only to prolonged mental harm from: the intentional infliction or threatened infliction of severe physical pain or suffering; the use or threat of mind altering substances; the threat of imminent death; or that another person will imminently be subjected to the above mistreatment. In recent years, the United States has been accused of waterboarding suspected members of Al-Qaeda. This is a practice in which prisoners are made to suffer a simulated drowning. If so, has the United States violated the Convention against Torture?

Resolutions of intergovernmental organisations

International practice of states is also evident in voting practices in of member-nations in intergovernmental organizations such as the UN General Assembly. Much of this information is now accessible on the Web:

• Resolutions adopted by the General Assembly
• Resolutions and decisions of the Security Council
• Repertory of Practice of United Nations Organs
• Repertoire of the Practice of the Security Council
• International Labour Organization Recommendations
• UNESCO Resolutions and Decisions
• Economic and Social Council Resolutions

International law and the law of Australia Customary international law is a continuing influence on the development of the common law. Australian courts, for example, often favour interpretations of legislation which are consistent with Australia's international treaty obligations, whether or not these obligations have been given effect in Acts of Parliament. Courts will also occastionally refer to international law to illustrate the meaning of different statutory provisions. The extent to which international law may be used in interpretation of the Constitution remains the subject of fierce debate, even within the High Court. In Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, Justices Kirby J and McHugh P found themselves at issue over this point. The majority opinion of the High Court was that the Commonwealth could use the "aliens" power under s 51 (xix) of the Constitution to detain rejected asylum seekers indefinitely. Kirby argued that this decision was incompatible with international human rights law, asserting that interntional law in this area was binding on Australian courts. Justice McHugh was moved to declare Kirby's opinion "heretical" and dismissed the idea that ordinary legislation might be interpreted in the light of international law as "based on a fiction". What is your position on this debate? Is Justice Kirby just plain wrong?

Yearbooks of international law

Yearbooks of international law provide useful summaries of the state of play in relation to different topics. The following are available to subscribers through HeinOnline:

• Annuaire Africain de Droit International
• Asian Yearbook of International Law
• Australian Year Book of International Law
• Baltic Yearbook of International Law
• British Yearbook of International Law
• Canadian Yearbook of International Law/Annuaire Canadien de Droit International
• Chinese (Taiwan) Yearbook of International Law and Affairs
• International Organizations and Law of the Sea Yearbook
• International Tribunal for the Law of the Sea Yearbook
• Max Planck Yearbook of United Nations Law
• New Zeland Yearbook of International Law
  
• Palestine Yearbook of International Law
• Revue Hellenique de Droit International
  
• Singapore Yearbook of International Law
• Spanish Yearbook of International Law
• United Nations International Court of Justice Yearbook
• United Nations Juridical Yearbook
• United Nations Yearbook of the International Law Commission
  

Decisions of international tribunals

There is no rule of stare decisis in international law. A decision of an international tribunal is binding only between the parties and in respect of that particular case. However, the rulings of an international tribunal are evidence of the opinio juris.

Web-based materials are the best source of current information. The Project on International Courts and Tribunals (PICT) is a useful place to start. It contains links to major courts and tribunals, full-text reports and relevant news items.

Other relevant Web sites include:

• Avalon Project (Nuremberg War Crimes Trials)
• Court of Justice of the European Union
• Inter-American Court of Human Rights
• International Criminal Court
• International Criminal Tribunal for the former Yugolsavia
• International Criminal Tribunal for Rwanda
• International Tribunal for the Law of the Sea
  
• Nazi Conspiracy and Aggression (Nuremberg "Red Series")
• Nuremberg Trial Project
• Permanent Court of Arbitration
• Trial of the Major War Criminals before the International Military Tribunal (Nuremberg "Blue Series")
• World Court Digest
• World Courts

High qualified publicists Article 38 of the Statute of the International Court of Justice requires the ICJ to use "the teachings of the most highly qualified publicists of the various nations" as a subsidiary means for determining international law. The term publicists refers not to specialists in public relations, but to acknowledged experts in international law. A good starting point for further research is the following: Lee Peoples, Research Guide to Customs, General Principles & the Teachings of Highly Qualified Publicists (2005). Spend a few moments looking through this guide and consider the implications of the opinions of internationally recognised experts for your research.

Databases on specialised areas of international public law

• Commonwealth and International Human Rights Case Law Databases. These databases include over 2,000 summaries of significant human rights decisions from both Commonwealth courts and international tribunals.
• E-Library. The E-Library includes judicial decisions, legal instruments, news, reports, resolutions and other matierals on international humanitarian law and related topics.
• International Humanitarian Law — Treaties and Documents. This database contains 100 treaties
  and other texts, including commentaries on the four Geneva Conventions and their two Additional Protocols of 1977. It also has the full texts of reservations, declarations and objections made by the States with respect to treaties in the area of international humanitarian law.
• RefWorld. RefWorld is a full text database of information on refugees. It includes international instruments, national legislation, and national and international case law.
  
• World LII Human Rights. The WorldLII page on the human rights contains links to a range of databases on international human rights and related topics.
• International Fisheries Treaty Database (IGIFL). The IGIFL Treaty Database contains the full text of bilateral and multilateral treaties, protocols and other instruments concerned with fisheries and marine living resource conservation, management and exploitation.

Summary

This module covered

• the concept of international law
• finding resources on treaty law
• finding evidence of rules of customary international law
• sources of materials on specialised areas of international public law.