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A Comment on the Ways and Means of Researching Customary International Law a Half-Century after the International Law Commission's Work

Published online by Cambridge University Press:  28 February 2019

Roy M. Mersky  and
Jonathan Pratter
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Extract

As a glance at his bibliography shows, Dr. Sipkov, as well as a law librarian, was a publicist in the original sense of the term — a scholar of public, in particular public international, law. It is therefore fitting that our comment deals with a basic issue that arises at the intersection of international law and librarianship. We would like to evoke the problem of defining and then finding the “material sources” of customary international law. That means understanding, then locating, the concrete, usually documentary, materials that must be used to confirm the existence of a state practice. The consistent, generalized, though not necessarily universal, practice of states forms the objective element of a customary rule. This basic problem of international legal research is not new, but as we approach the fiftieth anniversary of the United Nations International Law Commission, it makes sense to examine it again. Developments over the last half century should help in understanding how we try currently to solve the difficulties and will do so in the future.

Type
Articles
Information
International Journal of Legal Information , Volume 24 , Issue 3: Ivan Sipkov in memoriam , Winter 1996 , pp. 302 - 309
Copyright
Copyright © 1996 by the International Association of Law Libraries 

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References

1 Oxford English Dictionary 1560 (1933) (“One who is learned in public or international law; a writer on the law of nations.” These are the first entries in a dictionary made on historical principles.).Google Scholar

2 Ian Brownlie, Principles of Public International Law 5 (4th ed. 1990).Google Scholar

3 United Nations. The Work of the International Law Commission 26–34 (5th ed. 1996).Google Scholar

4 See generally Clive Parry, The Sources and Evidence of International Law (1965).Google Scholar

5 Rudolf Bernhardt, “Customary International Law,” I Encyclopedia of Public International Law 898 (Rudolf Bernhardt, ed. 1992).Google Scholar

6 I.C.J. Acts and Documents No. 5 60, 59 Stat. 1031, T.S. 933.Google Scholar

7 Serge Sur, “Sources du Droit International – La Coutume,” 1 Juris-Classeur du Droit International, Fascicule 13, p. 4 (1989) (translations throughout are ours).Google Scholar

8 Restatement (Third) of the Foreign Relations Law of the United States (1987).Google Scholar

9 Sur, supra note 7, at 15.Google Scholar

10 Our translation for the French, “constatation,” a difficult word to translate. It means to establish or confirm the existence of. It is clear that the reference is to the process of consulting the documentary sources.Google Scholar

11 We think it is right to devote considerable attention to this work of Professor Sur. As far as we know, it is not otherwise available in English. Another recent, and generally unnoticed, work on the documentary aspects of international custom is Luigi Ferrari Bravo, “Méthodes de Recherche de la Coutume International dans la Pratique des États,” 192 (1985 III) Recueil des Cours 233.Google Scholar

12 Sur, supra note 7, at 16.Google Scholar

13 Id.Google Scholar

14 Serge Sur is professor at the University of Paris (II). Together with Jean Combacau, also of Paris (II), he is the author of a fine one-volume treatise, Droit International Public, 2d ed., Paris: Monchrestien, 1995.Google Scholar

15 French diplomat and poet, 1887–1975. Exiled from Vichy France, he spent many years in the United States. The quoted passage is from No. 8 of the collection Birds, written in Washington, D.C., 1962.Google Scholar

16 Sur, supra note 6, at 21.Google Scholar

17 Herbert W. Briggs, The International Law Commission 203–206 (1965).Google Scholar

18 G.A. Res. 174(II), U.N. GAOR (Res.), 2d Sess. at 105, reprinted as amended in Work of the International Law Commission, supra note 3 at 151.Google Scholar

19 A/CN.4/6/Corr. 1. “CN.4” is the document symbol of the International Law Commission.Google Scholar

20 I Yearbook of the International Law Commission 230 (1949).Google Scholar

21 Id. at 232.Google Scholar

22 A/1316, reprinted in II Yearbook of the International Law Commission 364 (1950).Google Scholar

23 U.N. GAOR, 5th Sess., Supp. No. 20, at 77.Google Scholar