sample research paper on international law

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• Research Guide on the Harmonization of International Commercial Law From GlobaLex.

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How to Do Research in International Law? A Basic Guide for Beginners

Jan 25, 2021 | Essays , Online Scholarship

By: Eliav Lieblich *

[Click here for PDF]

Introduction

So, you want to do research in international law? Good choice. But it can be difficult, especially in the very beginning. In this brief guide for students taking their first steps in legal research in international law, I will try to lay down the basics—just enough to nudge you towards the rabbit-hole of research. This guide is about how to think of and frame research questions, primary sources, and secondary sources in the research of international law. Or, to be precise, it is about how I think about these things. It is not about how to write in the technical sense, how to structure your paper, or about research methods (beyond some basic comments). This guide also focuses mostly on questions that are especially pertinent when researching international law. For this reason, it does not address general questions such as how and when to cite authorities, what are relevant academic resources, and so forth.

As you begin your work, you will find that legal research in international law is both similar to and different from legal research in domestic law. Research in international law and domestic law are similar in their basic requirements: 1) you need a research question, 2) you need to understand the problem you are approaching (both in terms of the legal doctrine and its underlying theory), 3) you need a method to answer your question. and 4) you need to rely on primary and secondary sources. Research in international law is different because international law, in its quest to be universal, is practiced everywhere. There is no “single” international law, and for this reason it is an area of law that is almost always contested. Furthermore, international law is not hierarchical unlike most domestic legal systems, and many times, several legal frameworks might apply to one single question ( “ fragmentation ”). [1] Additionally, international law’s sources include customary law, which is notoriously difficult to pinpoint. [2] This makes describing “the law” as an object of research much trickier. This guide attempts to give you the initial tools to navigate this terrain, but rest assured that it is also difficult for experienced researchers.

The guide is structured as follows. Section 2 is about research questions. It first offers a simplified typology of research question, including a few words on theory and method, and then suggests some thoughts about thinking of and framing your question. Section 3 is about secondary and primary sources in the research of international law. It includes some advice about the way to approach international legal scholarship in a world of hegemony and information overflow. The guide then becomes a bit more technical, offering tips about finding primary sources relevant for the research of international law.

A caveat is in order. This guide does not seek to offer the most theoretically robust or comprehensive introduction to international legal research. Rather, it should be viewed as practical advice to help you take your first steps into the field. The guide, of course, reflects my own understanding. Other researchers might approach these issues differently.

I. Research Questions

A. types of research questions: descriptive, normative, and critical.

Finding a research question will be one of the most important and challenging parts of your research. Every research has a question at its foundation. The research question is simply the question that your research seeks to answer. In all fields of legal scholarship, there are basically three families of research questions: 1) descriptive research questions, 2) normative research questions, and 3) critical research questions. Very broadly speaking, descriptive questions seek to tell us something about the legal world as it is . Normative questions ask what ought to be the state of things in relation to law. Critical questions seek to expose the relations between law and power, and, as I explain later, are somewhat in the middle between descriptive and normative questions. In truth, there is a lot of interaction between all three types of questions. But for our sake, we keep it simple, and as a starting point for research, it is better to think about research questions in these terms. Thinking clearly about your research question will help you frame your work, structure your paper, and look for relevant sources.

Descriptive research questions are questions about the state of things as they are. Much of traditional international legal scholarship is descriptive in the sense that it seeks to describe “the law” as it is, whether in abstract (e.g., “what is the content of the Monetary Gold principle in international adjudication?”) or in relation to a specific situation. For instance, in their excellent writing on Yemen , Tom Ruys and Luca Ferro look at the Saudi-led intervention in the Yemeni Civil War and ask whether that intervention is lawful. [3]   From a theoretical standpoint, this type of research can be broadly described as positivist , in the sense that it looks only into legally relevant sources (the lex lata ), as autonomous bodies of knowledge. We can call such questions descriptive doctrinal research questions since they seek to analyze and describe the doctrine from an internal point of view. Of course, some doubt whether it is at all possible to describe authoritatively what the law “is,” beyond very basic statements, without making any normative judgments about what “the law” should be. It could even be said that the mere decision to discuss law as an autonomous sphere is a value-laden choice. These and related critiques have been levelled against doctrinal scholarship for over a century by legal realist and critical approaches, both domestically and internationally. [4] This resulted in the gradual marginalization of such research questions, at least in the United States. Yet, from a global perspective, doctrinal research into international law remains a central strand of research.

Doctrinal questions are not the only type of descriptive research questions. Descriptive questions can also follow the tradition of law and society approaches. This type of research looks at the law from the outside and is mostly interested in law’s interaction with society, rather than in legal doctrine per se . Historically, the emergence of this way of thinking relates to the insight, first articulated by legal realists, that law does not exist in an autonomous sphere and gains meaning only with its actual interaction with society. Research questions of this type might ask whether and when law is effective, how people think about the law, or how judges make decisions. For instance, in her recent book , Anthea Roberts asks whether international law is truly “international” by looking at how it is studied in different parts of the world. [5] This type of scholarship can also seek to explain law from a historical point of view. For example, Eyal Benvenisti and Doreen Lustig inquire into the interests that shaped the origins of modern international humanitarian law (“IHL”) and argue that the law was shaped more by the interests of ruling elites than by humanitarian impulses. [6] For the purposes of this guide, these are socio-legal research questions .

Normative research questions , in general, ask what the law ought to be, whether in general or in a specific instance. For example,  in “The Dispensable Lives of Soldiers,” Gabriella Blum asks what ought to be the rules for the targeting of combatants in armed conflict. [7] As she suggests, these rules should consider the specific threat they pose and not only their legal status as combatants. The difficulty in normative questions—and from my own experience, this is one of the major challenges for students in their first research papers—is that to answer them, we need external parameters for assessing law . In other words, we need a theory on what is considered “good,” in light of which we can present an argument about what the law should be. Otherwise, we run into a classic problem: we cannot draw from facts alone (what law “is”) what ought to be (what law should be). [8] It is here where theory plays a key role. Normative legal theories are there to help us articulate our benchmarks for assessing what law should be. Returning to Blum’s article as an example, she uses insights from ethics to consolidate her point. She argues from an ethical, extra-legal vantage point, that since soldiers’ lives have moral worth, law should be understood in a manner that best reflects this moral idea.

Now, there is a myriad of normative approaches to international law, which I will not address here. A good place to start on theories of international law, including normative ones, is Andrea Bianchi’s excellent and accessible book on international legal theories. [9] Just to give you a sense of things, older natural law theories would simply identify law with morality and would inquire into morality—either as handed down by God or as exposed by reason—in order to ascertain law. [10] In newer scholarship, it is much more common to use ethics as a way to criticize positive law or to read moral standards into the interpretation of law itself —in accordance with the moral theory to which we subscribe. [11] This, for instance, is Ronald Dworkin’s approach , when he urges to interpret law “in its best light.” [12] In international law, for instance, a notable example for such thinking is Thomas Franck’s theory of legitimacy and international law. [13] Franck—although careful not to frame his theory in explicitly moral terms—argues that legal rules should have certain characteristics, such as clarity and coherence, in order to enjoy a “compliance pull” that induces state compliance. If, for example, we were to adopt Franck’s theory, we would assess law in light of his standards of legitimacy.

Normative theories can also be utilitarian. The best known example for such way of thinking, of course, is law and economics . [14] Another family of instrumental normative theories can be roughly described as policy approaches to international law. In the simplest sense, policy approaches ask what the law should be, in terms of its ability to bring about good policy consequences. The New Haven School of International Law, for instance, analyzed international law from the point of a global standard of human dignity. [15] It is safe to say that almost all current scholarship on international law, especially in the United States, utilizes policy approaches, even if not explicitly. [16] To sum this point, when framing normative research questions, we should be aware that at some point, we will need to commit to a yardstick through which to assess our normative conclusions.

Critical research questions inquire into the power relations that shape law or into the relations between law and politics in the broad sense of the term. In this sense, they aim to be descriptive: they seek to describe law as a product of power relations and expose the manner in which law conceals and neutralizes political choices. [17] Like normative scholarship, critical research questions also rely on theories (“ critical theories ”). For example, Martti Koskenniemi seeks to describe how the structure of the international legal argument collapses into politics, using insights from Critical Legal Studies (“CLS”). [18] Aeyal Gross inquires whether  the application of international human rights law might harm rather than benefit Protected Persons in occupied territories, on the basis of theoretical tools from CLS and Legal Realism. [19] Anthony Anghie asks how colonialism shaped the origins of international law, on the basis of postcolonial theory (and specifically in international law, Third World Approaches to International Law). [20] Ntina Tzouvala considers whether and how the 19th century standards of civilization in international law continue to live on in the international system through its capitalist underpinnings, by applying Marxian analysis. [21] From a feminist approach, Fionnuala Ní Aoláin explores what are the gendered aspects of the law of occupation. [22] It should be emphasized that critical research questions are also normative in the deeper sense: by seeking to expose power relations, they imply that something is wrong with law. Some critical research proceeds, after exposing power dynamics, to offer solutions—and some simply conclude that the project of law is a lost cause.

It is crucial to understand that both normative and critical research questions usually have descriptive sub-questions. For instance, Blum’s normative claim is that the current rule on targeting combatants is no longer tenable and should be changed. But to do so, she first has to give a proper account of the current understanding of law. And that is, of course, a descriptive question. The same applies to critical questions. Good critical scholarship should give a valid account of its object of critique. For example, in Tzouvala’s piece, a significant part offers a description of the standards of civilization, before the main critique is applied.

B. A Note about Theory and Methods

The term theory has been used quite liberally in the previous section. Now, there are several ways to understand this term. Here, theory is used in the sense of the general intellectual framework through which we think about law or a certain legal question. It is our view on the world, if you will—the prism through which we analyze or assess a question. The term theory must be distinguished from method . Methods, in legal research, encompass at least two meanings. The first, more common in descriptive socio-legal research, refers to the way in which we seek to find and arrange the information required to answer our question. For instance, if my question is “do judges in international courts cite scholarship from the Global South,” my method would be the manner in which I gather and arrange the data about judges’ citation practices. Do I search all relevant decisions for citations and create a large dataset (empirical quantitative methods)? Do I conduct interviews with prominent judges and extrapolate from their positions (qualitative methods)? Descriptive doctrinal research, too, has its version of methods in this sense. When we analyze treaties, legislation, state practice, or case law, we apply a method of collecting, analyzing, and categorizing this information.

The second manner in which the term method is used, is more pertinent in normative and critical legal research. For example, in an American Journal of International Law symposium on methods in international legal research, “methods” were defined as “the application of a conceptual apparatus or framework—a theory of international law—to the concrete problems faced by the international community”. [23] Meaning, methods are defined here as the way in which we apply theory to specific instances —or in other words, as applied theory.  It is in this sense that you will hear terms like “feminist methods” or “critical methods” used.

In truth, much of legal research—with the exception of certain strands of law and society research—is quite loose in its awareness to methods and in its use of them. This is perhaps because most of us are socialized, in our earliest days as law students, into the general method of doctrinal approaches to law—legal interpretation, case analysis, analogy, and allusions to consideration of “legal policy” in order to solve dilemmas.  The extent to which you will be required to be strict about methods in legal research, would probably differ between instructors and their own backgrounds.

C. Framing and Finding Your Research Question

What is expected from a research question, at least in the initial stage of your work? Of course, this differs between instructors and advisors. Here, I offer some insights that I think are generally applicable, with specific reference to international law.

First, a lot depends on the stage of your studies. In most seminars at the J.D. or LL.B. level, instructors do not necessarily require that your question be entirely novel, in the sense that no one has asked it before. Of course, most instructors value originality and would be happy if you come up with a reasonably original question (provided that you can answer it, but more about that in a bit). On the Master’s or Ph.D. levels, this might be very different. Framing a question that would be “an original contribution to the field” is one of the crucial parts of writing a dissertation at that level.  But since this is a beginners’ guide, do not worry about that.

Second, a research question must be tailored to the scope of your work, or in other words, it must be a question that you can reasonably answer within the space you have been given. Most seminar papers are around 10,000 words, inclusive of footnotes. This length suits a question like “should the duty to take precautionary measures under IHL require risking soldiers’ lives?” but probably not “the legal history of proxy wars during the Cold War.” The unfortunate nature of seminars is that you will usually have very limited time to think of a research question, and since you are new in the field, you would probably have trouble figuring out whether your question fits the scope of your paper.  Most instructors (I hope) would be happy to let you know if your question is too wide.

Third, a research question should be one that you are capable of answering with the skills you have, or with skills—the methodological proficiency –that you have the time to reasonably acquire during your research (whether independently or with the assistance of your instructor). By the time students write seminar papers, most have a reasonable grasp of how to do legal reasoning from an internal-legal point of view and accordingly have the basic skills to answer descriptive doctrinal questions . Concerning most normative and critical research questions, the basic skills required—at least at the level required in seminar papers in most law schools—can be acquired during your research: to me, learning new theories and the ways to apply them is precisely what seminars should be about! The trick is to find the question and the normative or critical approach that you would like to explore. However, things get much trickier if you select a descriptive socio-legal question . These require, sometimes, research methods that most law students do not possess at this stage.  If you are thinking about such questions, consult with your instructor to see whether she can or is willing to instruct you about the method you need.

But wait! We said nothing about how to actually find your research question. Here, I might disappoint you: there is no way around some of the difficulties we encounter when looking for a question. Finding a research question is hard, in particular when you are just starting out and have a limited grasp on the field. In truth, there is no one way—if there is even a way—to find a research question. A research question begins from an idea, and we cannot really control how our ideas emerge. Even the most experienced researchers will probably tell you that they get their ideas serendipitously when taking a shower, walking the dog, or folding the laundry. “Eureka” moments rarely pop-up when we summon them. So rather than attempting to give (a futile) account on a sure-shot way to find your research questions, I suggest ways that might be conducive to spark the creative thought process needed to get a good idea.

First, ask yourself what interests you, in the most intuitive way, in terms of specific fields of international law. If you are enrolled in a thematic course, such as International Trade Law, or International Criminal Law, then this narrows your selection of course. But even within fields, there are numerous sub and sub-sub fields and questions. In international criminal law, for example, there is a world of difference between questions of jurisdiction and theories of punishment. Start by opening a general textbook in the field. Scan the contents. See the types of issues and dilemmas that arise. See what direction triggers your interest. Most textbooks will highlight controversial issues. Ask yourself whether any of these issues both interest you and can be phrased as a research question that conforms to the requirements discussed above.

Second, follow blogs in the field. There are many high quality blogs on international law, which offer good analysis on current events and legal dilemmas. These blogs can help you to map burning and interesting questions.  Leading blogs such as EJIL: Talk! , Just Security , Legal Form , Opinio Juris , and Lawfare are good places to start. For those of you really willing to take the plunge, there is a very vibrant community of international law scholars on Twitter (although it might lead you to question the general sanity of the field). International legal institutions and organizations also maintain active Twitter profiles, and so do states.

Third, it is ok to begin with a somewhat general or imprecise research question, and narrow it down and refine as you go. For instance, let’s assume that you begin with “should the duty to take precautionary measures under IHL require risking soldiers’ lives.” As you read, you will find that there are several different precautions under IHL. Depending on the scope of your research, you might want to refine your question to something like “should the duty to give advance warning to civilians require exposing soldiers to potential harm?” In other words, it is perfectly fine to make adjustments to your question as you go.

Fourth, be proactive in your communications with your instructor. There are different types of instruction on the seminar level, but most instructors would be happy to participate with you in a ping-pong of ideas on your research question—as long as you have done some thinking and come with ideas to discuss, even if these are half-baked.

II. Secondary and Primary Sources in International Legal Research

Once we have the research question, we need information to answer it. This information is found in research sources . In academic research, it is common to differentiate between primary and secondary sources. In simple terms, primary sources comprise raw information or first-hand accounts of something. By way of example, these include diary entries, interviews, questionnaires, archival data, and meeting records. In basic legal research, primary sources can include black letter law, rulings, and so forth. Another way to look at primary sources is that they give you direct, unmediated access to the objective of your research.  Secondary sources, conversely, are writings about primary sources: they interpret primary sources for you. These include primarily academic books, book chapters, and journal articles. Of course, there are dialectics between primary and secondary sources. Sometimes, secondary sources can become primary sources, depending on our perspective. If, for example, I want to write about the international legal philosophy of Hans Kelsen, then Kelsen’s writings become my primary sources. Other people’s writings about Kelsenwould be my secondary sources. Similarly, a judicial decision can be a primary source when we study what the law “is,” but it can also be secondary source when it describes other things, such as facts, opinions, or ideas.

In international law, there is another idiosyncrasy. If we want to know what the law “is,” secondary sources might be considered primary, to an extent, because according to international law itself, “the teachings of the most highly qualified publicists” are subsidiary means to determine the positive law. [24]

B. The Intricacies of Secondary Sources of International Law: Managing Hegemony and Information Overload

Is there something special that we need to know about secondary sources in international legal research? On its face, secondary sources on international law are not much different from such sources in any other field. For this reason, I will not get into questions that are relevant to all fields of research, such as how to account for newspaper stories, the value of Wikipedia for research (very limited), etc. Rather, I will point out some things that are especially important to consider when approaching secondary sources in international law.

First, since international law presumes to apply everywhere, there might be relevant literature on your question in any language you can imagine. At the seminar paper level, most instructors will expect you to rely on literature in languages reasonably accessible to you. In more advanced levels of research, things might be different. As a rule of thumb, if you cannot access writings in at least English or French, your research will unfortunately be limited. Of course, we can criticize this situation in terms of the hegemony it reflects; [25] however, this is the reality as it stands. A possible exception is if your question focuses on the application of law in a specific jurisdiction. But here, too, you will be limited since without access to literature in other languages, your comparative ability will be diminished.

Second—and this is an understatement—there are differing perceptions of international law, both in general and on specific questions, across different legal cultures. Risking pandering to stereotypes, U.S. scholarship tends to be more inclined towards policy approaches to law, while continental European scholarship might be more positivist. [26] Scholarship from the Global South might view law from postcolonial perspectives. It is crucial to be aware of these differences, in the sense that no single perspective can give you the entire picture. This is not to say that you cannot focus on one specific legal culture—depending on your research question—just be aware that you might be getting a particular point of view.

Third, even within a specific legal culture, there are interpretive “camps” on most questions of international law. Very roughly speaking, writers affiliated with state institutions might interpret law in a manner more permissive of state action, while others might be more suspicious of states and approach law from a more restrictive perspective. For instance, in the field of IHL, David Luban identifies “two cultures” of interpretation—military and “humanitarian” lawyers—that differ almost on every legal question. [27] You will find comparable divisions on international trade, investment arbitration, and international environmental law—and in any other field for that matter. Here, too, it is very important to be aware of the “camp” of the author you are reading. You will not get a complete view if all of your secondary sources belong to this or that camp.

Fourth, be aware and critical of hierarchies. Traditionally, secondary sources of international law were organized around major treatises (which are textbooks that deal systematically with an issue), such as Oppenheim’s international law. [28] This tendency derives from the special status that major scholarship enjoys in the formation of international law, as mentioned above. Of course, major “classic” textbooks are still invaluable tools to get into the field and at least to understand its mainstream at a given moment. However, many canonical treatises—to be blunt—have been written by white western men from major empires, with certain perspectives about the world. Often, these writers went in and out of diplomatic service and might be generally uncritical of their states’ legal policies. Many newer versions of these textbooks internalize these critiques and are much better in terms of incorporating diverse authors and views. Nonetheless, in order to get the fuller picture on your question, diversify your sources.

Fifth, and notwithstanding the need to take into account the problem of hierarchies, it is still important to get a good grasp of the “important” writings on your research question, in order to understand the predominant views on the issue. In an age of information overload, this is particularly difficult to do. There are, however, several (imperfect) ways to mitigate this problem. One way to do so is by using Google Scholar and Google Books as entry portals into your subject. These search engines allow you both to search for titles and specific phrases within titles. They are free, simple and fast, and Google Books even allows you to preview most books. Google Scholar and Books also present a citation count for each source. Citation counts refer to the number of times a work has been cited by other authors, which gives you a rough measure of the centrality of the work.  However, Google’s search engines should be taken with a grain of salt. Google is a data-for-profit company, and its effects on academic research have been criticized . [29] The basic problem is that nobody knows how Google arranges its results  and what interests it serves by doing so. In other words, Google creates a new hierarchy of sources, and we do not know exactly how to account for it.

Another way to get a sense of the important writings relating to your question is to look at general, introductory works on your subject. These textbooks usually provide a good overview of the major discussions and dilemmas relating to the fields they cover, and when doing so, they present the central views on these questions. See which writings they discuss and cite. A good place to start, in order to gain access to initial secondary (and sometimes primary) sources on a specific question, is the Max Planck Encyclopedias of International Law or the Oxford Bibliographies of International Law .

Still, always be mindful that the “central views” on a question are not necessarily the best views. For instance, many times, citation practices simply reproduce geographic, institutional, racial, or gendered hierarchy. They are not meaningless, but be critical about them. After you get the “central views” on the question go to more “neutral” search engines such as your library’s general database or commercial databases such as Hein and Westlaw that arrange scholarship in a more transparent manner. One radical suggestion is to visit your library physically (!) and go to the relevant shelf. Libraries are nice, and you will often find titles that you missed in your electronic search.

C. Primary Research Sources of International Law: What are They and Where to Find Them

What are the primary sources for research in international law? The answer, of course, flows from the type of your research question. The sources for doctrinal research questions would generally follow material that would be relevant for the study of the legal sources of international law, namely those found in Article 38(1) of the Statute of the International Court of Justice (“ICJ”): 1) treaties, 2) state practice and opinio juris (as elements of customary law), 3) general principles of law, and 4) as subsidiary means, judicial decisions and scholarly work.

However, even when conducting doctrinal research, not everyone subscribes to an exclusively formalist understanding of legal sources. For instance, there are many forms of formal and informal regulation in various global governance frameworks. Non-binding resolutions of international organizations, for example, and instruments of “soft law” can also be viewed as part of the doctrine, broadly speaking. [30] Additionally, legal realists might argue that whatever is perceived by international actors as authoritative and controlling in specific instances can be analyzed as a legally relevant source. [31] The important takeaway is that the primary sources for doctrinal research follow the author’s approach to the sources relevant for international law, and this changes between legal formalists and realists. This complicates your work, but even as a beginner, you would need to decide which way to go in terms of identifying relevant primary sources. If you are confused about this, consulting with your instructor is probably wise here.

As discussed earlier on, normative and critical research questions tend to have descriptive doctrinal sub-questions. For the doctrinal parts in normative and critical research, the above primary sources are relevant also. The normative and critical parts of such research, conversely, would usually rely on the application to the descriptive findings of theory found in secondary sources (and recall the definition of method as applied theory, suggested in the AJIL symposium). [32]

For socio-legal research questions, primary sources can extend much wider, depending on the specific research method selected. Since the challenges of identifying sources for socio-legal research are not unique in the context of international legal research and require treatment beyond this limited guide, I do not address them here.

After clearing that up (hopefully), we now move to a more technical part: where can we find primary sources for doctrinal research in international law (or doctrinal parts within otherwise non-doctrinal research)? Of course, there are virtually endless options. Here, I seek only to give an overview of some of the best ways to look for such sources, or at least, those that I prefer. Note, that I do not get into the nitty-gritty of each search engine or database, such as how to run searches and where to click. They are usually quite easy to get a handle on, and if not, most law school libraries have very capable personnel to assist in the more technical aspects of things. In the same vein, I do not get into the specifics of document indexing systems of various institutions (see, for instance, here ).

1. Curated Collections of Important Primary Sources

Before delving into specific primary sources and where we can find them, it is good to know that some publications select especially important sources and publish them with commentary. These publications do not include all primary sources, but if you want to search for especially pertinent sources on your subject, they can be helpful. For example, International Legal Materials (“ILM”) is a publication of the American Society of International Law that periodically selects important primary sources, with expert commentary. Although ILM is a very old publication, it is fortunately online, and you can search its database.

2. Treaties and Treaty Bodies

Moving on to treaties. In general, you can access the text of almost every treaty directly from any internet search engine. For comprehensive research, however, the United Nations Treaty Collection (“UN Treaty Collection”) has a sophisticated search page , allowing you to find treaties by title, signatories, dates, and many other categories.  When you click on a treaty, you can also find the list of state parties, including reservations, declarations, etc. Take note of that the UN Treaty Collection includes only treaties registered with the United Nations . The most important treaties are indeed registered. Those that are not might be found in secondary sources, in governmental websites, and so forth. Last, Oxford Historical Treaties is a great source for older treaties.

Treaties can also be found in the homepages of relevant international organizations. For instance, the World Trade Organization website includes all of the organization’s founding agreements and other relevant treaties. Regional organizations, also, mostly follow this practice. The International Committee of the Red Cross (“ICRC”) website has an index of all historical and in-force IHL treaties. These are only examples.

For the purpose of your research, you might want to look at the travaux préparatoires —which include the official negotiation records of the treaty, its drafting history, and other preparatory documents. These are important both to interpret and understand the history and rationales of the treaty. There is no single way in which these records are published. Many times, they can be found in official volumes, whether online or in hardcopy. For example, the travaux of the European Conventions of Human Rights can be found online here . You can find more information about finding travaux at the UN Library on this page .

Many treaties establish organs that oversee their execution or interpret their provisions (“treaty bodies”). These organs, in turn, create their own documents, decisions, and comments. This is a particularly important feature of international human rights law treaties. Luckily, the UN keeps a searchable treaty body database in which you can search for virtually any type of document produced by these bodies. For example, you can find various reports submitted to these bodies by states; you can also find decisions (“jurisprudence”) of treaty bodies, as some of them are empowered to decide on individual and interstate claims.  For more information about research in human rights law, Georgetown Law produced this great guide (on both secondary and primary sources).

3. Judicial Decisions

Judicial decisions constitute important primary sources in international legal research like in any legal research. However, as opposed to domestic jurisdictions, the terrain of international legal tribunals is heavily fragmented. [33]   As you probably know by now, there is no “supreme court of the international community” to which all other courts are subject. Most tribunals are limited in their jurisdiction to a certain subject matter or to a certain group of states or individuals. To make things even more complicated, domestic courts also frequently rule on international legal questions or refer to international law in their decisions. A crucial point when conducting your research is to figure out whether there is an international tribunal that might have jurisdiction over issues relating to your question and whether these issues were addressed in a substantial way by domestic courts.

Fortunately, there are search engines that allow us to search for specific things across many international tribunals and dispute settlement mechanisms. The Oxford Reports on International Law , for instance, allows you to search across virtually all international tribunals and arbitration mechanisms (as well as treaty bodies). It includes not only ICJ rulings, but also rulings and decisions of subject-area specific dispute settlement mechanisms such as the International Tribunal on the Law of the Sea (“ITLOS”) and others. Furthermore, the search engine allows you also to look for domestic rulings that apply international law in many jurisdictions. Be mindful, however, that the database on domestic rulings is not comprehensive, and many times does not include the newest rulings since it takes time for the regional reporters to report them.  The Cambridge Law Reports is another very reputable and established source for international case law and domestic rulings relating to international law.

It should be noted that in addition to these databases, most tribunals have their own websites. Just by way of example, the ICJ , the European Court of Human Rights , the International Criminal Court (“ICC”), and the WTO Dispute Settlement mechanism all have very helpful sites with their own advanced search engines. Similarly, the International Center for Settlement of Investment Disputes (“ICSID”) allows you to search for decisions in investment-state arbitrations. Many other tribunals and dispute settlement arrangements have similar systems.  The added value of the tribunals’ own sites is that they usually include not only decisions, but also oral and written proceedings and other documents of interest for in-depth research. Moreover, it might be that they are updated faster with new decisions.

Note, however, that many questions are never resolved by any tribunal. International law is more of an ongoing process than a system of adjudication, [34] and the fact that a dispute or dilemma has not been formally addressed by courts does not mean that it is not important or that there are no highly relevant primary sources on the issue. Ironically, often the opposite is true: some important questions do not come up for adjudication precisely because actors do not want to risk losing in adjudication.

4. United Nations Documents

Documents produced by the different organs of the UN—as well as by states when interacting in and with the UN—are of special importance for international legal research. Resolutions by the UN Security Council (“UNSC”) can be binding; resolutions by the UN General Assembly might reflect the international consensus, can be declarative of customary international law, or crystallize into binding law as time passes. Reports by the UN Secretary General and by Special Rapporteurs are also important in this sense, not to mention the work of the UN International Law Commission (“ILC”). Letters by states and their statements in various UN fora are also crucial as sources for state practice and opinio juris. Fortunately, The UN’s Official Document System allows you to run searches into the majority of publicly available UN documents.  Additionally, the UN Library provides another, more guided, entry point to the universe of UN documents.

Sometimes, if you know the specific type of document you need, it can be helpful to head to the website of the relevant UN organ. For example, the UNSC ’s site has all of the UNSC’s resolutions, presidential statements, reports and meeting records by year (as well as documents relating to sub-organs such as Sanctions Committees). You can find, for instance, a specific meeting and its full verbatim records (what states said). The same holds for the UN General Assembly , Human Rights Council and other organs of interest. These websites are generally self-explanatory, although they might be clunky sometimes, and the UN tends to move pages around for mysterious reasons. Explore a bit, and you will usually find what you need.

Last, sometimes you would want to get a general picture about how a specific incident, event, or issue was dealt with across the UN in a specific time. The best place to get this information is the Yearbook of the United Nations . Just look in the specific yearbook for the year in which your event of interest took place, and you will find summaries of the discussion of the issue across the UN. A huge bonus is that the yearbooks include an index of documents for each issue or event that you can then retrieve—using the document’s symbol—from the UN’s Official Document System. Note, however, that unfortunately the Yearbook is only published several years after the relevant year. As of 2020, the 2015 Yearbook hasn’t been released yet.

5. Practice and Statements

State practice and statements are important in order to ascertain customary international law, but also to understand general international approaches towards your question. At least for the latter purpose, the same holds with regard to practice and statements by international organizations and NGOs. Now, since state practice and statements can manifest in endless forms—from Twitter rants to official statements by heads of states (which are, nowadays, sometimes one and the same)—there is no one-stop shop for this type of primary source. Much can be found in UN documents, but this is by no means a comprehensive source because a lot of relevant interactions take place outside of the UN.

Nevertheless, some publications and other databases collect important pieces of (mainly state) practice.  Just by way of example, each issue of the American Journal of International Law has a section on contemporary U.S. practice on international law. The U.S. State Department compiles an annual digest on U.S. State Practice, accessible here . German practice in international law can be found here (in English). Some other digests of state practice are listed by the Institute of Advanced Legal Studies library.

Additionally, after you select a research question, it is helpful to run a search and see if there is a subject-matter digest of practice relating to your question. For example, the Journal on the Use of Force and International Law includes, in each issue, a digest of practice on the use of force, divided by regions. The ICRC Customary Law Study website contains an updating database of practice on IHL. But again, these are only examples.

Unfortunately, a lot of relevant material is not compiled or indexed anywhere, and you will have to look for it in other places. Beyond the UN databases, you can find states’ positions in their governmental websites (typically the ministry of foreign affairs). NGO reports can be found in the specific organization’s website. A lot of information can be found in trustworthy media outlets (and we leave the discussion of what is “trustworthy” for another day). The New York Times’ searchable archive is a formidable tool for finding different positions of various actors in relation to current and historical events. For delving deeper, access into institutional archives might be needed.

Furthermore, sometimes, to gain access to relevant practice, you will need to search domestic legislation and rulings, beyond those found in the general databases mentioned above (such as the Oxford databases). Domestic legislation and rulings are especially pertinent when looking for “ general principles of law ,” which form a part of the sources of international law. [35] There is no single way to look for sources in domestic jurisdictions: each jurisdiction has its own system and databases. For instance, for English-speaking jurisdictions, Westlaw and Lexis are leading databases.

Last, nowadays, it is important not to neglect social media. For better or for worse, states and other international actors often share positions (and, ahem, insults) on Twitter. [36] These might also be relevant for your research.

III. Conclusion

All in all, there is no single way to think about any of the issues discussed in this guide. Some researchers will contest many of the definitions and suggestions offered here. This just serves to emphasize that determining the “best” way to approach research has a strong individual component. At least in legal research, beyond strict methodological requirements that might apply in socio-legal research, each researcher develops her own way and understandings as she gains knowledge and experience. I hope that this guide helps you to begin to find your own.

*    Associate Professor, Tel Aviv University Buchmann Faculty of Law.

[1]   See, e.g. , Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties , 15 Leiden J. Int’l L. 553 (2002).

[2]   Compare Monica Hakimi, Making Sense of Customary International Law , 118 Mich. L. Rev. 1487 (2020) with Kevin Jon Heller, Customary International Law Symposium: The Stubborn Tenacity of Secondary Rules , Opinio Juris (Jul. 7, 2020).

[3]  Tom Ruys & Luca Ferro,  Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen , 65 Int’l & Comp. L.Q. 61 (2016).

[4]  Felix S. Cohen,  Transcendental Nonsense and the Functional Approach , 35 Colum. L. Rev. 809 (1935).

[5]   Anthea Roberts, Is International Law International? (2017).

[6]  Eyal Benvenisti & Doreen Lustig, Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874 , 31 Eur. J. Int’l L. 127 (2020).

[7]  Gabriella Blum, The Dispensable Lives of Soldiers , 2 J. Leg. Analysis 115 (2010).

[8]  For an explanation, see Scott J. Shapiro, Legality 47–49 (2011).

[9]   Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (2016).

[10]   See Emmerich de Vattel, The Law of Nations, bk. I, ch. IV, §§38–39 (Béla Kapossy & Richard Whatmore eds., 2008) (1758).

[11]   See, e.g. , Adil Ahmad Haque, Law and Morality at War (2017).

[12]  Ronald Dworkin, Law’s Empire (1986).

[13]  Thomas M. Franck, Legitimacy in the International System, 82 Am. J. Int’l L. 705 (1988)

[14]  Jeffrey L. Dunoff & Joel P. Trachtman,  Economic Analysis of International Law , 24 Yale J. Int’l L. 1 (1999).

[15]  W. Michael Reisman, The View from the New Haven School of International Law , 86 Am. Soc’y Int’l L. Proc. 118 (1992).

[16]   See Harlan Grant Cohen, Are We (Americans) All International Legal Realists Now?, in Concepts on International Law in Europe and the United States (Chiara Giorgetti & Guglielmo Verdirame, eds., forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025616.

[17]  Martti Koskenniemi, What Is Critical Research in International Law? Celebrating Structuralism , 29 Leiden J. Int’l L. 727 (2016).

[18]  Martti Koskenniemi, The Politics of International Law , 1 Eur. J. Int’l L. 4 (1999).

[19]  Aeyal M. Gross, Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?,  18 Eur. J. Int’l L. 1 (2007).

[20]  Antony Anghie, Francisco de Vitoria and the Colonial Origins of International Law , 5 Soc. & Leg. Stud. 321 (1996); see also Sundhya Pahuja, The Postcoloniality of International Law , 46 Harv. J. Int’l L. 459 (2005).

[21]  Ntina Tzouvala, Civilization, in Concepts for International Law: Contributions to Disciplinary Thought 83 (Jean d’Aspremont & Sahib Singh eds., 2019).

[22]  Fionnuala Ní Aoláin, The Gender of Occupation , 45 Yale J. Int’l L. 335 (2020).

[23]  Steven R. Ratner & Anne-Marie Slaughter,  Appraising the Methods of International Law: A Prospectus for Readers , 93 Am. J. Int’l L. 291, 292 (1999).

[24]  Statute of the International Court of Justice, Art. 38(1)(d), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.

[25]   See Justina Uriburu, Between Elitist Conversations and Local Clusters: How Should we Address English-centrism in International Law?, Opinio Juris (Nov. 2, 2020), https://opiniojuris.org/2020/11/02/between-elitist-conversations-and-local-clusters-how-should-we-address-english-centrism-in-international-law/.

[26]   See Cohen, supra note 15. See also William C. Banks & Evan J. Criddle, Customary Constraints on the Use of Force: Article 51 with an American Accent, 29 Leiden J. Int’l L. 67 (2016).

[27]  David Luban, Military Necessity and the Cultures of Military Law , 26 Leiden J. Int’l L. 315 (2013); see also Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare , 20 Duke J. Comp. & Int’l L. 339, 348 (2010).

[28]  1 Lassa Oppenheim, International Law: A Treatise (1912).

[29]  Jake Goldenfein, Sebastian Benthall, Daniel Griffin & Eran Toch, Private Companies and Scholarly Infrastructure — Google Scholar and Academic Autonomy (Oct. 28, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476911.

[30]   See, e.g. , Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance , 54 Int’l Org. 421 (2000).

[31]  For this type of thinking, see Hakimi, supra note 2.

[32]   See Ratner, supra note 23.

[33] See Koskenniemi, supra note 1.

[34]  Harold Hongju Koh, Is there a “New” New Haven School of International Law? , 32 Yale J. Int’l L. 559 (2007).

[35]   See, e.g. , M. Cherif Bassiouni,  A Functional Approach to “General Principles of International Law” , 11 Mich J. Int’l L. 768 (1990).

[36]  Francis Grimal, Twitter and the jus ad bellum: threats of force and other implications , 6 J. Use of Force & Int’l L. 183 (2019).

Dr. Eliav Lieblich is an Associate Professor at Tel-Aviv University’s Buchmann Faculty of Law. He teaches and researches public international law, with a focus on the laws on the use of force, just war theory, international humanitarian law, and the history and theory of international law. Dr. Lieblich has been awarded two Israel Science Foundations grants, as well as the Alon Fellowship for Outstanding young faculty, awarded by the Council of Higher Education. His scholarship was published, among others, in the European Journal of International Law, the British Yearbook of International Law, and the Hastings Law Journal.

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Free International Law Essay Examples & Topics

If you’re looking for international law essay examples or writing ideas, you’re in the right place. Our team has worked out a list of international law topics for an essay that can help you write your paper. We’ve explored why it’s worth your time to study it as well. Thus, first of all, we invite you to understand what international law is.

International law (same as public international law) is the set of legal rules, standards, principles, and norms between sovereign states and other international legal actors. These rules are recognized by most states and can be applied to govern the relationships between them.

So, why study it?

The primary purpose international law is maintaining peace and justice. That’s when the importance of international law becomes clear. Without it, countries would not be able to solve issues in an organized manner.

Another critical role of international law is promoting business-related and industrial development worldwide. International law and its principles view economic growth as a global public responsibility. Trading, negotiating, producing, and investing worldwide is possible due to standard norms and shared regulations.

11 International Law Essay Topics

To be able to write an exceptional international law essay, you need an excellent paper idea. Here you will get some amazing topics ! You can use these international law essay ideas for composing your paper or read them for inspiration.

Use the following ideas to practice or complete your assignment:

• The evolution of antitrust laws in the UK.
• Comparison of gun control laws in the US and Sweden.
• Child labor in the global economy and laws against it.
• Rules of private international law.
• Conflicts of regulations in public international laws.
• Why do nations have to obey modern international law?
• New international commercial court drafting of laws.
• Reasons why the former first lady of Ivory Coast is tried for crimes against humanity.
• Palestinian territory occupied: possible ways to resolve the conflict.
• “Access the Sea” case in Bolivia and Chile.
• Influence of the United Nations on modern international law.

7 International Law Essay Questions

In this paragraph, we’ve combined a list of international law essay questions. They are useful for numerous reasons, some of which we’ve already explained above. The key aspect is that they can help you practice writing international public law essays.

Here are our seven international law assignment topics:

• List the theories that explain the relationships between domestic and international law.

In this essay, a student is invited to explore the relationships between domestic and international laws. Indeed, these relationships are genuinely complex. While listing theories, try to answer the question about the position of domestic law within the international one.

• Explain what is the role of international law in the modern world?

It’s a great essay topic that gives a lot of space for students to develop ideas. Indeed, the role of international law in the modern world is hard to overestimate.

• Analyze legal systems of Asia and Africa.

An analysis of these two legal systems can be a fascinating endeavor. Additionally, explain what the difference between “laws” and “legal systems” is.

• Illustrate legal justifications for the use of force?

Here, we urge students to explain the legal thinking behind the implementation of force. Illustrate when and how legal entities can apply the laws on the use of power.

• What do you think about Kosovo as a state?

It’s a pretty personal question. However, be mindful of basing your response on the laws and principles of international law. A great topic that can capture the reader’s attention if delivered correctly.

• Show the importance of recognition within the international legal system.

Here you should demonstrate what importance acknowledgment plays in international law. Additionally, enumerate the conditions nations should fulfill to be recognized.

• Discuss the extent to which international law protects the rights of minorities?

When answering this essay question, keep in mind how international law defines minorities and what it does to protect these groups. Explain who can claim minority rights.

11 International Law Research Paper Topics

Below, we’ve collected interesting and easy international law topics for research papers. Check them out!

• The role of international law in solving global environmental issues.
• How to balance international obligations regarding human rights and state sovereignty.
• The international criminal court’s effectiveness and challenges.
• How international trade law impacts global economic relations.
• Protecting civilians in war zones according to international humanitarian law.
• How international refugee law evolved: challenges and responses.
• The role of international law in combating transnational organized crime.
• Ways of balancing innovation and access to knowledge according to international intellectual property law.
• Historical and current conflicts related to territorial disputes.
• Indigenous peoples and their rights under international law.
• Effectiveness and limitations of the United Nations peacekeeping operations.

15 Public International Law Assignment Topics

This collection of public international law essay topics delves into diverse areas of the subject. Check them out below:

• Liability regarding state responsibility for environmental damage.
• How international organizations promote global health and well-being.
• What legal challenges does international law face in the digital age?
• Ways of balancing preservation and security in protecting cultural heritage during armed conflicts.
• The rights and obligations of states during the refugee crisis.
• International legal approaches and cooperation in combating transnational terrorism.
• International trade law and dispute resolution in global commerce.
• The right to self-determination in indigenous peoples in the context of international legal frameworks.
• State obligations in mitigating climate change.
• Analysis of the responsibility to protect (r2p) and its implementation challenges.
• Violations of international humanitarian law in non-state armed groups.
• The use of force in international law during humanitarian interventions.
• Corporate accountability for violations of human rights: what are the legal avenues for redress?
• International criminal law and accountability for war crimes.
• Ways of balancing maritime interests and environmental conservation.

Thank you so much for reading our article. We hope it can help you in your next international law assignment. Now you can check the free essays below to see how other students handled the task.

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International Law Research Papers Samples For Students

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International Law And The Use Of Chemical Weapons In Syria Research Paper Samples

A discussion of the spanish civil war research paper.

Introduction The Spanish Civil War is among the most significant domestic conflicts in history that has gained notorious international attention due to its wide-ranging implications. International involvement has become a defining feature of the importance of the war, although more importantly, the war has exposed the political division in Spain at that time – between the Republicans and the victorious Nationalists. This study will seek to inquire more on the essential details of the war, particularly on its historical antecedents and international involvement.

Historical Antecedents

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HLS Dissertations, Theses, and JD Papers

S.j.d. dissertations, ll.m. papers, ll.m. theses, j.d. papers, submitting your paper to an online collection, other sources for student papers beyond harvard, getting help, introduction.

This is a guide to finding Harvard Law School (“HLS”) student-authored works held by the Library and in online collections. This guide covers HLS S.J.D Dissertations, LL.M. papers, J.D. third-year papers, seminar papers, and prize papers.

There have been changes in the HLS degree requirements for written work. The library’s collection practices and catalog descriptions for these works has varied. Please note that there are gaps in the library’s collection and for J.D. papers, few of these works are being collected any longer.

If we have an S.J.D. dissertation or LL.M. thesis, we have two copies. One is kept in the general collection and one in the Red Set, an archival collection of works authored by HLS affiliates. If we have a J.D. paper, we have only one copy, kept in the Red Set. Red Set copies are last resort copies available only by advance appointment in Historical and Special Collections .

Some papers have not been processed by library staff. If HOLLIS indicates a paper is “ordered-received” please use this form to have library processing completed.

The HLS Doctor of Juridical Science (“S.J.D.”) program began in 1910.  The library collection of these works is not comprehensive. Exceptions are usually due to scholars’ requests to withhold Library deposit. 

• HLS S.J.D. Dissertations in HOLLIS To refine these search results by topic or faculty advisor, or limit by date, click Add a New Line.
• Hein’s Legal Theses and Dissertations Microfiche Mic K556.H45x Drawers 947-949 This microfiche set includes legal theses and dissertations from HLS and other premier law schools. It currently includes about 300 HLS dissertations and theses.
• Hein's Legal Theses and Dissertations Contents List This content list is in order by school only, not by date, subject or author. It references microfiche numbers within the set housed in the Microforms room on the entry level of the library, drawers 947-949. The fiche are a different color for each institution.
• ProQuest Dissertations and Theses @ Harvard University (Harvard login) Copy this search syntax: dg(S.J.D.) You will find about 130 SJD Dissertations dated from 1972 to 2004. They are not available in full text.
• DASH Digital Access to Scholarship at Harvard Sponsored by Harvard University’s Office for Scholarly Communication, DASH is an open repository for research papers by members of the Harvard community. There are currently about 600 HLS student papers included. Unfortunately it is not possible to search by type of paper or degree awarded.

The Master of Laws (“LL.M.”) degree has been awarded since 1923. Originally, the degree required completion of a major research paper, akin to a thesis. Since 1993, most students have the option of writing the LL.M. "short paper."  This is a 25-page (or longer) paper advised by a faculty supervisor or completed in conjunction with a seminar.  Fewer LL.M. candidates continue to write the more extensive "long-paper." LL.M. candidates holding J.D.s from the U.S. must write the long paper.

• HLS Written Work Requirements for LL.M. Degree The current explanation of the LL.M. written work requirement for the master of laws.

The library generally holds HLS LL.M. long papers and short papers. In recent years, we require author release in order to do so. In HOLLIS, no distinction is made between types of written work created in satisfaction of the LL.M. degree; all are described as LL.M. thesis. Though we describe them as thesis, the law school refers to them solely as papers or in earlier years, essays. HOLLIS records indicate the number of pages, so at the record level, it is possible to distinguish long papers.

• HLS LL.M. Papers in HOLLIS To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

HLS LL.M. Papers are sometimes available in DASH and Hein's Legal Dissertations and Theses. See descriptions above .

The HLS J.D. written work requirement has changed over time. The degree formerly required a substantial research paper comparable in scope to a law review article written under faculty supervision, the "third year paper." Since 2008, J.D. students have the option of using two shorter works instead.

Of all those written, the library holds relatively few third-year papers. They were not actively collected but accepted by submission from faculty advisors who deemed a paper worthy of institutional retention. The papers are described in HOLLIS as third year papers, seminar papers, and student papers. Sometimes this distinction was valid, but not always. The faculty deposit tradition more or less ended in 2006, though the possibility of deposit still exists. 

• J.D. Written Work Requirement
• Faculty Deposit of Student Papers with the Library

HLS Third Year Papers in HOLLIS

To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

• HLS Student Papers Some third-year papers and LL.M. papers were described in HOLLIS simply as student papers. To refine these search results, click "Add a New Line" and add topic, faculty advisor, or course title.
• HLS Seminar Papers Note that these include legal research pathfinders produced for the Advanced Legal Research course when taught by Virginia Wise.

Prize Papers

HLS has many endowed prizes for student papers and essays. There are currently 16 different writing prizes. See this complete descriptive list with links to lists of winners from 2009 to present. Note that there is not always a winner each year for each award. Prize winners are announced each year in the commencement pamphlet.

The Library has not specifically collected prize papers over the years but has added copies when possible. The HOLLIS record for the paper will usually indicate its status as a prize paper. The most recent prize paper was added to the collection in 2006.

Addison Brown Prize Animal Law & Policy Program Writing Prize Victor Brudney Prize Davis Polk Legal Profession Paper Prize Roger Fisher and Frank E.A. Sander Prize Yong K. Kim ’95 Memorial Prize Islamic Legal Studies Program Prize on Islamic Law Laylin Prize LGBTQ Writing Prize Mancini Prize Irving Oberman Memorial Awards John M. Olin Prize in Law and Economics Project on the Foundations of Private Law Prize Sidney I. Roberts Prize Fund Klemens von Klemperer Prize Stephen L. Werner Prize

• Harvard Law School Prize Essays (1850-1868) A historical collection of handwritten prize essays covering the range of topics covered at that time. See this finding aid for a collection description.

The following information about online repositories is not a recommendation or endorsement to participate.

• ProQuest Dissertations and Theses HLS is not an institutional participant to this collection. If you are interested in submitting your work, refer to these instructions and note that there is a fee required, which varies depending on the format of submission.
• EBSCO Open Dissertations Relatively new, this is an open repository of metadata for dissertations. It is an outgrowth of the index American Doctoral Dissertations. The aim is to cover 1933 to present and, for modern works, to link to full text available in institutional repositories. Harvard is not one of the institutional participants.
• DASH Digital Access to Scholarship at Harvard

Sponsored by Harvard University’s Office for Scholarly Communication, this is an open repository for research papers by members of the Harvard community. See more information about the project. 

Some HLS students have submitted their degree paper to DASH.  If you would like to submit your paper, you may use this authorization form  or contact June Casey , Librarian for Open Access Initiatives and Scholarly Communication at Harvard Law School.

• ProQuest Dissertations and Theses (Harvard Login) Covers dissertations and masters' theses from North American graduate schools and many worldwide. Provides full text for many since the 1990s and has descriptive data for older works.
• NDLTD Networked Digital Library of Theses and Dissertations Union Catalog Worldwide in scope, NDLTD contains millions of records of electronic theses and dissertations from the early 1900s to the present.
• Law Commons of the Digital Commons Network The Law Commons has dissertations and theses, as well as many other types of scholarly research such as book chapters and conference proceedings. They aim to collect free, full-text scholarly work from hundreds of academic institutions worldwide.
• EBSCO Open Dissertations Doctoral dissertations from many institutions. Free, open repository.
• Dissertations from Center for Research Libraries Dissertations found in this resource are available to the Harvard University Community through Interlibrary Loan.
• British Library EThOS Dissertation source from the British Library listing doctoral theses awarded in the UK. Some available for immediate download and some others may be requested for scanning.
• BASE from Bielefeld University Library Index of the open repositoris of most academic institutions. Includes many types of documents including doctoral and masters theses.

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• Last Updated: Sep 12, 2023 10:46 AM
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International Criminal Law Research Paper

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The bulk of criminal law is established and enforced under the national law of individual states, but an increasingly important body of international criminal law has also emerged. It began with a few international procedures developed by states to coordinate the enforcement of their national criminal law and has grown as international law itself has come to proscribe certain acts as crimes.

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Since the end of the Thirty Year’s War in 1648, the international system has been based on state sovereignty, including each state’s jurisdiction over its own territory and citizens. A basic system of international law, defining the rights and obligations of states, was needed to recognize and validate this sovereignty, but this decentralized system has no legislature. Instead, international law must arise from one of three primary sources: treaties, customary international law, or general principles of law. Treaties make binding law for those states that agree to accept them. Rules of customary international law develop when the actions of states, their general and consistent practices, demonstrate their implied consent to those rules. General principles of law, especially when common to the laws of many nations, can also be applied at the international level. Judicial decisions and scholarly writings are recognized as secondary sources of international law, and are especially useful as indicators of changes in customary international law. International crimes, and the other substantive aspects of international criminal law, emerge from these same sources.

The traditional focus of international law has been upon the rights and obligations of states, but international criminal law regulates and punishes the conduct of individuals. Many of the crimes now defined by international law involve violations of the human rights of individuals. These too are now recognized under international law.

International criminal law, as the term is used today, includes those aspects of substantive international law that deal with defining and punishing international crimes, as well as the various mechanisms and procedures used by states to facilitate international cooperation in the investigation and enforcement of national criminal law.

Defining International Crimes

Traditionally, international law has defined very few crimes, proscribing only acts generally viewed as a serious threat to the interests of the international community as a whole or to its most fundamental values. For centuries piracy has been recognized as an international crime under customary international law. Slave trading joined the list at the end of the nineteenth century when that practice was outlawed by treaty. As technological advances, along with increasing trade and globalization, have made the world seem smaller, more such crimes have gained recognition.

The basic jurisdiction of any sovereign state includes the right to define and punish crimes. The U.S. Constitution provides (Art. I, sec. 8, col. 10) that Congress shall have power ‘‘to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations.’’ Under this provision, Congress may identify and declare criminal under U.S. law, acts that are criminal under international law. Normally this is done by legislation. The domestic law of the United States is part of the fabric of international criminal law insofar as that national law provides for the recognition and punishment of international offenses. It has generally been the practice of the United States to recognize and punish international crimes only when they are embodied in U.S.treaties and implemented by federal legislation.

Some of the key categories of international crimes are briefly discussed below, but this list is far from exhaustive.

Throughout history, the world community has sought to prevent war and eliminate aggression. In the Middle Ages, theories on ‘‘just’’ and ‘‘unjust’’ war were formulated. After World War I, efforts to curb war resulted in the establishment of the League of Nations. The Treaty of Versailles of 1919 called for the prosecutions of Kaiser Wilhelm II for waging unjust war, but efforts to carry out this provision were fruitless. The Kellogg-Briand Pact of 1928 provided for the formal renunciation of war as an instrument of national policy. This renunciation became the basis of the London Charter of 8 August 1945, which established in Nuremberg the International Military Tribunal for the prosecution of the major Nazi war criminals, and of the 1946 charter for the International Military Tribunal for the Far East, establishing a similar tribunal in Tokyo. These charters, the indictments and judgments of the tribunals, and the 1947 United Nations resolutions embodying the ‘‘Nuremberg Principles,’’ are among the legal sources for considering aggression a ‘‘crime against peace.’’ In 1946, the United Nations charter prohibited ‘‘aggression,’’ but did not define it.

No real consensus on the meaning of ‘‘aggression’’ was reached until the United Nations’ ‘‘Definition of Aggression’’ was agreed upon on 14 December 1974. The definition states that ‘‘[a]ggression is the use of armed force against the sovereignty, territorial integrity, or political independence of another state, or in any manner inconsistent with the charter of the United Nations.’’ The definition also enumerates (not exhaustively, however) seven specific examples of aggression and sets forth their legal and political consequences. Thus far, no definition of aggression has been embodied in an international convention, although the issue has been much discussed in the multilateral negotiations. The Statute of the International Criminal Court (ICC), as adopted in Rome in 1998, lists aggression as a crime within the jurisdiction of the ICC, but delays any prosecution for aggression until such time as the parties to the statute can agree upon and adopt a definition of the crime.

In 1948, only a few years after the Nazi Holocaust ended, the United Nations General Assembly adopted the text of the Genocide Convention. That text enshrined what was then a new international consensus defining and condemning the crime of genocide. The convention has since achieved very broad international acceptance. According to this definition, genocide occurs when any of five enumerated acts are ‘‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’’ The enumerated acts include killing members of the group, imposing birth control measures upon them, forcibly transferring children from the group, causing them serious bodily or mental harm, or inflicting on the group conditions deliberately calculated to bring about its physical destruction.

In ratifying the Genocide Convention, the parties ‘‘confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’’ (Article I). The parties also agree to enact the domestic legislation necessary to provide effective penalties for those committing genocide. This provision anticipates and establishes a decentralized control scheme under which the crimes defined by treaty are subject to enforcement under the national criminal law of states. At the same time, the Genocide Convention also refers to the possibility that those charged with genocide might be tried by ‘‘such international penal tribunal as may have jurisdiction’’ (Article VI). This set the stage for efforts to create a permanent International Criminal Court.

The humanitarian law of armed conflict is an outgrowth of centuries of warfare, in the course of which the rules and customs governing the conduct of hostilities have evolved. Its development has been stimulated by military experts who recognize that violence and destruction, in excess of that required by actual military necessity, is not only immoral but also counterproductive to the attainment of the political objectives for which military force is used. The term ‘‘war crimes’’ refers to a broad category of acts prohibited during armed conflict that have come to be recognized as crimes under international law. Most war crimes are defined by treaty, although some are outlawed principally by unwritten customary international law. In some cases, even where there is a treaty prohibiting a specific war crime, the treaty’s effectiveness is limited by the fact that many states have failed to sign and ratify it.

The most universally accepted source of rules on the regulation of war is the four Geneva Conventions of 12 August 1949, and their two additional protocols of 1977. Almost every country in the world, including the United States, is a party to the Geneva Conventions. These agreements codify many of the principal rules of international law relating to war crimes. In the national law of the United States, these rules have been incorporated into the Uniform Code of Military Justice. The Geneva conventions obligate each party to prevent and suppress acts contrary to their provisions. They directly incorporate an element of criminal law when they identify and define ‘‘grave breaches’’ of their terms. The parties agree (1) to enact legislation under their domestic law to criminalize these grave breaches; (2) to search for those believed to have committed them; and (3) either to prosecute them or to extradite them to another party that will do so. The enforcement regime applicable to these grave breaches became the model for other treaties establishing international crimes such as the Convention Against Torture.

Persons protected under the Geneva Conventions include wounded, sick, and shipwrecked persons, medical and religious personnel, prisoners of war, and civilians. For the most part, its protections apply to these persons only when they are in the hands of a foreign power. Specific prohibited conduct constituting war crimes includes torture, inhuman treatment, the taking of hostages, the destruction of protected property, physical mutilation, the performing of medical experiments, and refusal to release protected yet detained civilians or military personnel after cessation of active hostilities.

Crimes Against Humanity

The concept of crimes against humanity was only recently developed, emerging in the early part of the twentieth century, well after the notion of war crimes was developed in the nineteenth century. The Charter of the Nuremberg Tribunal was the first multilateral legal instrument that expressly provided for the prosecution of crimes against humanity as an offense separate from war crimes. The legal concept of crimes against humanity was developed in large part to remedy the argument that international law did not apply to criminal acts directed by a government against its own civilian population, a matter that was traditionally seen as falling exclusively within the sovereignty of a state. The fundamental element in the definition of crimes against humanity is widespread or systematic atrocities committed against civilians, for example, enslavement.

States have often objected to extending international law so far into the domestic sphere of activity, and they have proposed, at various times, a number of additional conditions limiting the application of this concept. The 1945 Nuremberg Charter, for example, authorized prosecution for crimes against humanity only if the alleged crimes were committed in execution of or in connection with a crime against peace or a war crime. It is now generally recognized that crimes against humanity can be committed in time of war or in time of peace, and even if there is no armed conflict as such. Nonetheless, states are still reluctant to endow international institutions with the authority to investigate and or prosecute crimes other than those committed in connection with international armed conflict.

The United Nations has adopted (or at least considered) a number of variations on the definition of crimes against humanity. Among these are a General Assembly resolution endorsing the standards of the Nuremberg Charter, the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, and the Statutes of the two ad hoc international criminal tribunals established by the United Nations in the 1990s. Negotiations leading to the 1998 adoption of the Statute of the International Criminal Court (ICC) produced consensus on a very narrowly defined core concept of crimes against humanity to be applied by that institution.

The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by, or with the consent or acquiescence of, a public official in order to achieve certain purposes. The most common purposes are to obtain information or a confession, punishment, intimidation, coercion, or discrimination/persecution. This definition of torture does not include pain or suffering arising only from, inherent in, or incidental to lawful penal sanctions.

The Torture Convention has achieved very broad acceptance by states. It establishes an enforcement regime similar to that of the 1949 Geneva Conventions, in which the parties agree to make torture punishable under their domestic law and also agree to take the steps necessary to prosecute those offenders within their jurisdiction.

The convention’s definition of torture is extremely narrow. It excludes acts of torture committed by individuals in a personal capacity, except in cases where there is some government, or official, complicity. The concept of torture as an international crime is correspondingly constrained.

Drug Offenses

The international community has adopted a number of treaties designed to control the illicit production, manufacture, trade, and use of drugs. The 1961 Single Convention on Narcotic Drugs, as amended by its 1972 Protocol, established the International Narcotics Control Board to regulate the production and sale of narcotics, cannabis, and coca leaves. The 1971 Convention on Psychotropic Substances extended this regime to chemical drugs. The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances defines internationally recognized drug trafficking offenses and requires the parties to criminalize them under their domestic law. The United States has signed all three of these conventions and incorporated their provisions into law.

Terrorism and Threats to Civil Aviation

Terrorism is an extremely dangerous form of criminal activity that needs suppression at both national and international levels. Unfortunately states have found it impossible, thus far, to agree on a general definition of terrorism as an international crime. The 1999 International Convention for the Suppression of the Financing of Terrorism came closer than ever before to this goal when it defined the offense of providing or collecting funds to be used to carry out terrorist acts. The European Convention on the Suppression of Terrorism, a regional initiative, incorporates a functional definition of terrorism among its parties and creates a relatively strong regional enforcement regime.

There has been broad international acceptance of effective international criminal standards relating to at least two forms of terrorism. The principal treaties on threats to civilian aviation define aircraft hijacking and a number of related crimes and require the parties to suppress them under their national law. This system has become a cornerstone of international civil aviation. Similarly, the International Convention against the Taking of Hostages outlaws this form of terrorism.

Bribery of Foreign Public Officials

The bribery of foreign public officials, first outlawed by the United States in the Foreign Corrupt Practices Act of 1977, is gaining recognition as a crime under international law. The 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions has been signed by thirty-four countries and entered into effect in February 1999. This treaty sets a general standard to be met by its parties in outlawing such bribes, but does not explicitly require states to impose sanctions on corporations as opposed to individuals. It has also been criticized for its failure to establish any uniform penalties for bribery, and for its failure to ban the tax deductibility of bribes paid to foreign officials. Another concern is that only a small number of states have ratified the treaty so far.

Other International Crimes

Other crimes defined by international conventions include counterfeiting, the theft of cultural property or archeological treasures, the crime of apartheid, and the threat or use of force against internationally protected persons such as diplomats.

Procedural Aspects

International criminal law also consists of procedures for cooperation between states in the execution of their national criminal law.

Under international law, one state cannot exercise its jurisdiction on the territory of another without the agreement of that state. This means that when suspects or evidence relating to a criminal trial in one country are found on the territory of another, cooperation between them is often indispensable. The most common, and most important, of these cooperative procedures are extradition and mutual legal assistance in cases of criminal law. Other important procedures include the transfer of prisoners, the seizure and forfeiture of the illicit proceedings of crime, the recognition of foreign penal judgments, and the transfer of penal proceedings.

Extradition

Extradition is by far the most important of these cooperative procedures. When a person charged with a criminal violation of the law in one state is physically present on the territory of another, it is via the extradition procedure that the former may request the surrender of the accused from the latter. There is no general obligation of states to extradite under international law, and treaties, bilateral or multilateral, provide the basis for extradition in almost all cases. Extradition treaties establish the reciprocal agreement of the states-parties to extradite, set out the procedures for requesting extradition, and outline the conditions under which it may be granted or refused.

These treaties define a range of extraditable offenses. To form the basis of a request for extradition, an offense must generally be punishable under the laws of both countries. This is known as the principle of double-criminality . Among the more controversial provisions commonly found in these treaties is the traditional rule that no person should be extradited for a political offense. This rule severely complicated efforts by the United Kingdom to extradite accused terrorists from the United States until a 1985 US-UK Supplementary Extradition Treaty clarified that such offenses were not to be regarded as offenses of a political nature.

States choose their extradition partners carefully, and need not enter into such treaties with a country if they lack faith in its judicial system. In Europe, a multilateral extradition treaty has been successful in creating a regional regime of extradition. Supplementing bilateral and multilateral extradition treaties are provisions appearing in various multilateral treaties on subjects such as hijacking and the drug traffic, which may also serve as the legal basis for the extradition process. These generally incorporate the obligation to extradite or prosecute, as discussed elsewhere in this research paper.

In one prominent 1992 case, the U.S. Drug Enforcement Administration (DEA) attempted to circumvent extradition procedures by kidnapping a suspect in Mexico and bringing him directly to trial in the United States. Mexico strongly objected, arguing that this act violated Mexican sovereignty as well as the U.S.-Mexico extradition treaty. Lawyers for the accused, a Mexican national named Hector AlvarezMachain, argued that his abduction violated the extradition treaty and that, as a result, he could not be legally tried in the United States. The U.S. Supreme Court, in a very controversial opinion ( United States v. Alvarez-Machain, 504 U.S. 655 (1992)), ruled 6–3 that the fact of his forcible abduction did not prohibit his trial in a United States court for violations of this country’s criminal laws. The decision was based in part on their finding that ‘‘the Treaty says nothing about either country refraining from forcibly abducting people from the other’s territory or the consequences if an abduction occurs.’’ Mexico, and a number of other countries, reacted by expressing their desire to include an explicit ban on forcible abduction in their extradition treaties. In response, the U.S. government announced that, in the future, it would not be the policy of the U.S. to carry out such forcible abductions in lieu of extradition.

Mutual Legal Assistance

Technically extradition is a form of mutual legal assistance, but the term generally refers to mechanisms for the securing of evidence from a foreign state. This was traditionally done by means of letters rogatory (requests by the court of one country for evidence to be taken by the court of another country), which left cooperation within the discretion of the requested state. To remedy this problem, the United States has entered into several bilateral conventions that make the execution of such requests by the treaty partners a matter of course.

Enforcement Models

Defining international crimes is only a first step in using criminal law to protect the values and interests of the international community. To be effective, international criminal law must be enforced. There are essentially two ways that this can be done: indirectly, under the jurisdiction and national criminal law of states, or directly, by international courts created for this purpose.

Enforcement presupposes jurisdiction to enforce. International law recognizes that states may prosecute for crimes committed on their territory ( territoriality principle ), by their nationals ( nationality principle ), or against their nationals ( passive personality principle ). Normally a state must have some such link as the basis for its exercise of jurisdiction over a crime. Universal jurisdiction is a special exception to this rule, applicable only to those, such as pirates, whose criminal acts render them hostes humani generis , the enemies of all humankind. Under the principle of universal jurisdiction, such a person may be tried not only by states linked to the crime but also by any other state. This extraordinary jurisdiction helps to remedy the inability of the decentralized international system to enforce even its most fundamental laws. It applies today to international crimes such as genocide and torture and may eventually apply to all serious international crimes.

The traditional approach calls for international crimes to be enforced and sanctioned under the national law of a state, even when the international crimes themselves are defined by a multilateral treaty. The parties to the 1949 Geneva Conventions, the Torture Convention, and a number of other international criminal law treaties are thus obliged either to prosecute offenders under national criminal law or to extradite them to a state that is willing to prosecute. The advantage of this approach is that it does not require the creation of new international institutions. Another advantage, at least from the point of view of some governments, is that it does not compromise the sovereignty or other interests of states.

The approach also has several weaknesses. It relies entirely upon states, acting pursuant to their treaty obligations, for the enforcement of international criminal law, yet it provides no mechanism for ensuring their compliance. It also fails to provide a mechanism for the resolution of conflicts between states relating to enforcement, and fails to provide fair trial or other safeguards for alleged offenders.

A unique and innovative model of enforcement was developed to try two Libyan nationals charged with planting the bomb that killed 270 people, mostly Americans and Britons, aboard Pan Am Flight 103 over Lockerbie, Scotland, in 1988. Libya refused to extradite the suspects to the United States, or to Scotland, for trial as demanded by the United Nations Security Council. After enduring years of economic sanctions, Libya finally handed them over for trial by a Scottish court sitting in the Netherlands. One suspect was convicted, the other was acquitted.

The possibility of creating an international criminal court has been discussed for centuries but, until recently, the only major precedents were the international military tribunals of Nuremberg and Tokyo of the 1940s. These tribunals pioneered the use of international criminal courts to hold individuals responsible for serious international crimes. From 1951 to 1953, the United Nations made futile efforts to foster an international criminal court. There was little or no progress on this front for the next forty years. Many governments were concerned that creating an international court with jurisdiction to try national officials for international crimes could compromise state sovereignty. The government of the United States was among those states that shared this view until reports of shocking international crimes brought the issue of international criminal courts back onto center stage.

In 1994 the International Criminal Tribunal for the Former Yugoslavia (ICTY) was created ad hoc by the U.N. Security Council, in response to the atrocities being committed in that region and, in 1995, a second such institution, the International Criminal Tribunal for Rwanda (ICTR), was created on the same model. They represented a major step forward from the Nuremberg and Tokyo precedents. The Nuremberg and Tokyo tribunals were international military tribunals created by the victorious powers of World War II. The ICTY and ICTR were created by the United Nations, and were thus international tribunals in the fullest sense. The intervening development of the international law of human rights also meant that the ICTY and ICTR would need to respect the international fair trial standards that had developed since the post–World War II era.

Each of these institutions could only prosecute for international crimes committed within a specific territory, and neither threatened the interests of states outside the regions concerned. Despite their limitations, the ad hoc tribunals functioned well enough to lay the groundwork for the creation of a permanent International Criminal Court (ICC). Their indictments and decisions did much to clarify the law governing crimes against humanity, genocide, and war crimes. They also demonstrated that international tribunals could act fairly in investigating and prosecuting international crimes.

On 17 July 1998, after three years of periodic preparatory negotiations and a five-week diplomatic conference in Rome, 120 states voted to approve the text of a treaty creating a permanent ICC with jurisdiction to prosecute for genocide, crimes against humanity, and the most serious war crimes. The ICC will officially come into existence when sixty countries have ratified this treaty. Even as the United States signed the ICC treaty in December 2000, there was substantial opposition to the treaty in the U.S. Senate, which must grant its advice and consent before the United States can ratify. The track record of the new ICC may eventually assuage these concerns.

International criminal law has long been limited by the fact that criminal lawyers and criminal law judges rarely work with international law or international cases, while international lawyers and international judges tend to have little experience with criminal law. This changed as the work of the ICTY and ICTR, and the negotiations leading to the birth of a permanent ICC, brought the world’s top specialists in international law into contact with specialists in criminal law from the various nations. The result was an unprecedented period of progress for international criminal law.

The jurisdiction of the soon-to-beestablished ICC will initially be very limited, but supporters hope that it will grow into a strong, independent, and effective institution of international justice. Critics oppose creating a stronger and more comprehensive system of international criminal law, fearing the loss of state sovereignty and national freedom of action. In light of this persistent attitude, it remains to be seen how far and how effectively the institutionalization of international criminal law will progress in the future.

The practices of state prosecutors in matters of international criminal law have developed in parallel to the development of international criminal courts. In 1999, a Spanish prosecutor’s bold attempt to extradite Chilean General Augusto Pinochet from the United Kingdom marked the beginning of a radical new willingness of national authorities to prosecute for international crimes committed on the territory of another state. It also led to a historic decision by the House of Lords affirming that even a former head of state could be prosecuted for the international crime of torture. That case is likely to inspire more such prosecutions in the future, a trend that may prove as significant for the development of international criminal law as the establishment of the permanent International Criminal Court.

Bibliography:

• BASSIOUNI, M. CHERIF. International Extradition: United States Law and Practice, 3rd ed. Dobbs Ferry, N.Y.: Oceana Publications. 1996.
• BASSIOUNI, M. CHERIF. International Criminal Law, 2d ed. 3 vols. Ardsley, N.Y.: Transnational Publishers, 1999.
• BROWN, BARTRAM ‘‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals.’’ Yale Journal of International Law 23 (1998): 383–436.
• DUGARD, JOHN, and VAN DEN WYNGAERT, CHRISTINE, eds. International Criminal Law and Procedure. Aldershot; Brookfield, Vt.: Dartmouth Publishing Co., 1996.
• ELAGAB, OMER, ed. International Law Documents Relating to Terrorism, 2d ed. London: Cavendish, 1997.
• GROSS, LEO. ‘‘The Peace of Westphalia, 1648– 1948.’’ American Journal of International Law 42 (1948): 20–41.
• RUBIN, ALFRED The Law of Piracy. Irvingtonon-Hudson, N.Y.: Transnational, 1998.
• WISE, EEDWARD, and PODGOR, ELLEN S. International Criminal Law, Cases and Materials. New York, N.Y.: Lexis, 2000.

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Welcome to the Bristol Law Working Papers Series. The series publishes a broad range of legal scholarship in all subject areas from members of the University of Bristol Law School. All papers are published electronically and available to download as pdf files.

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