The authors not only chart the existing state of the law, but also debate the normative implications of the continuing influence of human rights norms on current practices including torture, targeted killings, the conduct of non-international armed conflicts, and post-war state building. Forcible alternatives to war. ISBN Full text not available from this repository. Publisher Identification Number: The best yearbooks lead you to more solid materials by citing the actual texts involved with the perceived practice.
Some of this kind of privately edited material is starting to appear on the web. The text of the German Yearbook's section on practice is available on the Max Planck website. Many countries now have websites for their equivalent of the Department of State.
The contents vary enormously. Examples include:. The sources presented above are related to practice in its narrowest sense. This includes treaty participation and execution, actions of its administrative agencies, decisions of its courts, etc. All of this can be used as evidence of customary international law.
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Arguably, any institution which has the power in a given situation to decide that an assertion or action has the imprimatur of customary international law is in fact making it so. The limitation on this power is a jurisprudential one similar to the limits on the lawmaking power of a judge in Common Law. It grew progressively less meaty and was replaced by a slim magazine Dispatch. Dispatch died at the end of The following text is adapted from the DOS website:.
However, since all speeches, briefings, and testimony from State Department officials and the current U. A3 Suppl, Cellar Microfiche. The current volumes cover the late 's. A good guide and volumes from the Truman Administration to the Reagan Administration are available on the Office of the Historican's website. Writers disagree on the substance and content of general principles of law, as well as on their legal scope and relationship with the other main sources, namely treaties and customary law.
Some authors link these principles with the idea of natural law.
Some others, basing their views on arbitral compromises from the 19th century, connect them with equity. Following Grotius in this respect, Charles Fenwick was of the opinion that these principles were deduced from the fundamental principles of morality and justice, together with the more specific principles from civil law codes and from Anglo-Saxon Common law of judicial precedents.
Some authors see in the inclusion of general principles in Article 38 of the statute of the Hague Court, a defeat of positivism, i. A third group of writers tend to reduce the application of these principles to the private law analogy or to legal reasoning in general. This extended quotation is from pages 14 and 15 of V. I have quoted it at length to give warning of the overall mushiness of this area both in terms of the law and as a subject for research.
General principles as secondary source of law: Much of international law, whether customary or constituted by agreement, reflects principles analogous to those found in the major legal systems of the world, and historically may derive from them or from a more remote common origin. General principles common to systems of national law may be resorted to as an independent source of law. That source of law may be important when there has not been practice by states sufficient to give the particular principle status as customary law and the principle has not been legislated by general international agreement.
General principles are a secondary source of international law, resorted to for developing international law interstitially in special circumstances. For example, the passage of time as a defense to an international claim by a state on behalf of a national may not have had sufficient application in practice to be accepted as a rule of customary law.
Nonetheless, it may be invoked as a rule of international law, at least in claims based on injury to persons.
Other rules that have been drawn from general principles include rules relating to the administration of justice, such as the rule that no one may be judge in his own cause; res judicata ; and rules of fair procedure generally. International practice may sometimes convert such a principle into a rule of customary law. It is interesting to note that the troublesome reference to "civilized nations" in the ICJ statute has evolved into the gentler "common to the major legal systems" in the Restatement.
The expression of this concept is more familiar to Civilians than it is to common lawyers. Most civil codes have a statement to the effect that in the absence of express law, judges can turn to general principles to resolve disputes.
The Civil Code of Qubec, Preliminary Provision, Clause One: The Civil Code of Quebec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property. An older book dedicated to this subject is Bin Cheng's monograph General principles of law: as applied by international courts and tribunals KZ C44 A34 , 4th Floor. A more recent article is Christopher A. The ICJ Statute Article 38 displays the traditional Civil Law perception of case law, that it is a strong form of persuasive authority, but of no greater weight than the writings of experts in journals and books.
It is hard for a Common Law trained lawyer to swallow this.
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Section 2 of the Restatement shows a more modern understanding of the value of case law:. In fact, in the few permanent courts, such as the International Court of Justice, the Court of Justice of the European Communities, and the European Court of Human Rights, there is considerable attention to past decisions. In any event, to the extent that decisions of international tribunals adjudicate questions of international law, they are persuasive evidence of what the law is. The judgments and opinions of the International Court of Justice are accorded great weight.
Judgments and opinions of international tribunals generally are accorded more weight than those of domestic courts, since the former are less likely to reflect a particular national interest or bias, but the views of national courts, too, generally have the weight due to bodies of presumed independence, competence, impartiality, and authority.
International Law case law developed within a tradition of ad hoc tribunals established by agreements to arbitrate particular disputes, and a permanent "Court of Arbitration" was established at the Hague in The most recent truly international tribunal is the International Criminal Court, created in While finding the case law of these institutions may seem relatively straightforward, some of the judicial systems are structured in ways that may seem odd to a novice.
Opinions may be from an intermediate step rather than the final step in a proceeding. It is important to know the structure so you know the full authority of the text in hand.
An excellent new text which provides an introduction to the structure and procedure of all the major courts and similar institutions is the Manual on International Courts and Tribunals KZ This is the "world court", the single main tribunal for settling disputes between nations. It has a very useful website.
Its decisions are considered the strongest statement on what international law is in the disputed situation. In a fancy coffee-table book on the history of the court was published which serves as a good historical introduction:. ICJ cases are reprinted in a number of places, including unofficial reporters, journals, International Legal Materials , etc. It is best to cite to the official text. Many, if not all, of the cases through the middle 's are also digested in the Encyclopedia of Public International Law Jx En19, 2nd Floor. Its decisions can be found in:.
The first thing to remember in regard to the regional courts in Europe is that there are two distinct systems. One is connected to the European Union known for years as the European Communities and handles issues related to the commercial and social effects of the EU system. The other is related to the Council of Europe and is devoted primarily to human rights and has no relationship to the European Union.
There are areas where an outsider might be confused as to which court might take jurisdiction over a dispute. To make things worse, both Lexis and Westlaw combine the decisions of these court systems under European Union case law, reinforcing the temptation to confuse them. The European court system has evolved over the years. It originally had formal decision-making roles for a commission, for the Advocate-General, and for the Court.
This has changed into a two step procedure centering on the Court of the First Instance and the Court itself. Texts which appear as decisions within the European Union judicial system may be from the Commission, the Court of the First Instance, or the European Court of Justice. Older cases may have had an opinion of the Advocate-General as well, but Court has stopped printing them in the official reporter. Since the constitution of the European Union is in fact a sequence of treaties whose cumulative effect has been to been to change earlier texts, there are now specific rules for how to cite the various treaties.
The adoption of the principles of the convention into domestic law was one of the early objectives of the drafters.
Related The Role of Ethics in International Law (ASIL Studies in International Legal Theory)
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