A GUIDE TO THE BASICS OF INTERNATIONAL LAW*

© 2019 The Writing Center at Georgetown University Law Center, All Rights Reserved.

Traditionally, public international law or international law has been defined as “the body
of rules and principles of action which are binding upon civilized states in their relations with
one another.” 1 International law can generally be categorized into two broad categories: subjects
of international law and objects of international law. Also known as international legal persons,
the “subjects of international law are the actors, or players, on the international stage.” 2 In
contrast, the “objects of international law are the legitimate topics of international legal
resolution” 3—such as international human rights law, the law of the sea, international economic
law—that continue to develop as states negotiate the boundaries of these legal regimes. 4 The
Charter of the United Nations (UN Charter) is the foundational document for the international
legal system. 5 To help you understand the nature of international law, this handout will provide
brief introductions to:

• (I) accepted sources of international law;

• (II) international dispute resolutions;
• (III) the role international law plays in U.S. law; and
• (IV) international law research.
•

I. Sources of International Law

The principle sources of international law are enumerated in Article 38 of the Statute of
the International Court of Justice, a treaty ratified by all 193 members of the United Nations. The
four sources listed by Article 38 are: (a) international conventions or treaties establishing rules

*
Prepared by Doug Tedeschi and M. Erin Rodgers, Spring 2005. Updated by Stuart Harding, Spring 2012. Updated
by Fran Djoukeng, Spring 2019.
1
J.L. BRIERLY, THE LAW OF NATIONS (6th ed. 1963). A country is commonly referred to as a “state” under
international law. Public international law concerns state-to-state relations and intergovernmental bodies, whereas
private international law concerns relationships between private parties across international jurisdictions including
commercial affairs and family law.
2
DAVID J. BEDERMAN & CHIMENE I. KEITNER, INTERNATIONAL LAW FRAMEWORKS 83 (4th ed.
2016). The traditional subjects of international law are states; overtime, other actors generally recognized as subjects
include international organizations and even individuals. Id.
3
Id.
4
See LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 1468 (5th ed.
2014).
5
Id. at 934.

1
expressly recognized by the contesting states; (b) customary international law, as evidence of a
general practice accepted as law; (c) the general principles of law recognized by civilized
nations; (d) and judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law. 6 Keep in mind that
sources of international law do interact with each other. For example, rules enacted in a treaty
and customary international law may converge or clash. 7

A. International Conventions or Treaties

International conventions, commonly referred to as treaties, are legally binding

instruments given various names (charter, protocol, pact, among others) and govern the rights,
duties, and obligations of participating states. The Vienna Convention on The Law of Treaties
(the authoritative source) defines a treaty as an international agreement between States in written
form and governed by international law, whether embodied in a single instrument or in two or
more related instruments. 8 Articles 31 and 32 of the Convention are important provisions that
supply the rules for the interpretation of treaties. Although the United States is not a party to the
Vienna Convention, it consistently acts as though the Convention is binding international law. 9

A treaty can come into force once a certain number of nations ratify the treaty, as
specified in the treaty, or upon signature by the parties. However, a treaty cannot bind a non-
party or non-participating state. In addition, specific provisions in most treaties will identify
when it becomes legally binding, how compliance will be monitored and measured, how other
nations may accede to the treaty, how and whether the treaty may be amended or modified, and
how and when the treaty will terminate. Treaties are only binding upon states that choose to
ratify the treaty. Generally speaking, states may not invoke a conflicting domestic law to avoid
an obligation under an international agreement. Bilateral treaties between two states are
deposited with one of the parties to the treaty, while multilateral treaties between three or more
states are registered with the United Nations and made available to the public.

B. Customary International Law

Customary international law is developed through “a general and consistent practice of

states followed by them from a sense of legal obligation.” 10 A rule or principle of customary
international law must fulfill two separate elements: (a) be general and widespread among states
and (b) be accepted as law or arise out of a sense of legal obligation to follow that practice
(known as opinio juris sive necessitatus).” 11 Essentially, customary international law places

6
Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993.
7
BEDERMAN & KEITNER, supra note 2 at 31.
8
Vienna Convention on the Law of Treaties art. 2, May 23 1969, 1155 U.N.T.S. 331. This convention only covers
treaties between states.
9
“U.S. officials have consistently stated that at least most of the [Vienna] Convention’s provisions represent
customary international law, and U.S. courts have frequently relied on its terms.” BARRY E. CARTER, PHILLIP R.
TRIMBLE & ALLEN S. WEINER, INTERNATIONAL LAW 95 (5th ed. 2007).
10
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) 1987.
11
See –BEDERMAN & KEITNER, supra note 2 at 18. The first part tends to be a more objective inquiry that
focuses on practice and conduct. The second part is a more subjective inquiry and asks “why an international actor
has engaged in a particular practice.” Id.

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binding obligations on states based on their consistent patterns of behavior if the practices arise
from legal obligation rather than convenience or courtesy. 12 Customary international law only
binds the states that adhere to the pattern of behavior. If a state denounces or dissents from a
norm (or becomes a “persistent objector” 13), it is typically immunized from legal obligation.

There are some international norms so fundamental, however, that they permit no
derogation. 14 This concept, known as jus cogens, or peremptory norms, encompasses a limited
set of rights––such as the prohibitions on genocide, torture, piracy, and slavery––that most
members of the international community have agreed to follow. 15

C. General Principles of Law

General principles of law constitute common themes familiar to most of the global legal
systems. These rules are essentially domestic laws found in nearly all legal systems (such as civil
law, common law, or Islamic law), that have entered into international law because they are
manifest in most states around the world. 16 Below are some accepted principles that animate
many areas of international law:
• Pacta sunt servanda (“agreements must be kept”) (ex: treaty enforcement),
• Lex specialist derogate generalis (“the specific prevails over the general”) (ex:
conflict of laws); and
• Sic utere tuo ut alienum non laedas (“use your own so as not to injure another”)
(ex: international environmental law). 17

D. Judicial Decisions & Qualified Publicists

In rare circumstances, when customary international law, treaties, and general principles
prove inadequate, a tribunal might refer to state judicial decisions, decisions of international
judicial bodies, or scholarly articles from the international community.

12
To prove a principle of customary international law, an international lawyer might look to diplomatic
correspondence, opinions of government legal advisors, international organization reports, and reports of State
behavior, among other written evidence. Id. at 19. Assuming these patterns become reliable, and the principle is
“rendered obligatory by the existence of a rule of law requiring it,” then the norm is crystallized into law. North Sea
Continental Shelf (Ger./Den.; Ger./Neth.), 1967 I.C.J. 3, ¶ 77 (Feb. 20).
13
See BEDERMAN & KEITNER, supra note 2, at 25.
14
Vienna Convention on the Law of Treaties art. 53, May 23 1969, 1155 U.N.T.S. 331.
15
ANTHONY AUST, MODERN TREATY LAW AND PRACTICE, 257 (2000).
16
BEDERMAN & KEITNER, supra note 2, at 16. These rules encompass implementations of procedural law and
evidentiary law, among others. MALCOLM N. SHAW, INTERNATIONAL LAW, 92-99 (5th ed. 2003). More specifically,
the ICJ refers to concepts of estoppel and res judicata as examples of this form of international law. Id. For an
example of the ICJ applying general principles of law, see The Corfu Channel Case (United Kingdom v. Albania),
1949 I.C.J. 4, 22.
17
DAMROSCH ET AL., supra note 4, at 114-229.

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 II. International Dispute Resolutions

States have an affirmative obligation to resolve disputes through peaceful means. 18 There
are both non-adjudicatory procedures (not legally binding) and adjudicatory procedures (legally
binding). Non-adjudicatory procedures (in order of formality) are: negotiation, mediation, and
conciliation. 19 Arbitration and judicial settlement are formal adjudicatory procedures based on
law. International arbitration may occur between various parties: a state and an international
organization; a state and a non-state actor; and a foreign investor and a state. 20

There are more than 125 international judicial settlement bodies and approximately 80
are active and functioning as judicial bodies. 21 Some courts are regional and others operate based
on specialized subject matter. The most famous is the International Court of Justice: a judicial
organ of the United Nations and a court of general jurisdiction operating with 15 elected and
geographically-diverse jurists for renewable 9-year terms. There are many international judicial
bodies with jurisdiction over particular subject matters. For example, for criminal law matters,
those courts include but are not limited to the International Criminal Tribunal for the Former
Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal
Court. For human rights law, specialty courts include but are not limited to the European Court
of Human Rights, the African Court of Human and People’s Rights, and the Inter-American
Court of Human Rights.

III. International Law in National U.S. Law 22

The interface between international law and national law generally devolves into two
approaches: monist and dualist. Under the monist approach, “international law automatically
passes into the state’s national legal system.” 23 Under dualism, a state recognizes international
law and national law as separate legal systems. 24 The United States has taken a largely dualist
approach: Article VI, Clause 2 of the Constitution provides that “this Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all treaties made, or which
shall be made, under the Authority of the United States, shall be the supreme law of the land.” 25

Historically, the “law of nations” (referred to in the Constitution but now known as
international law), became incorporated into United States law through the law of England. The
United States recognizes customary international law and federal courts apply customary

18
BEDERMAN & KEITNER, supra note 2, at 57.
19
LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 535-51 (5th ed.
2014). Parties engaged in conciliation usually submit written and oral pleadings to a conciliator.
20
Id. at 544.
21
Id. at 552.
22
“International law requires a state to carry out its international obligations, but, in general, how a state
accomplishes that result is not of concern to international law.” DAMROSCH ET AL., supra note 4, at 622.
23
Id. at 621.
24
. “States rarely take either a purely monist or purely dualist approach.” Id. at 622.
25
U.S. CONST. art. XVI. According to the Supremacy Clause, states are bound to any international treaty that the
federal government joins, and are immobilized from enacting laws contrary to international agreements. See Ware v.
Hylton, 3 U.S. (3 Dall.) 199 (1796).

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international law. 26 “International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often as questions of right
depending upon it are duly presented for determination.” 27 What happens when there is a
violation of customary international law? Statutory law provides some answers. Under 28 U.S.C.
§ 1350 (“Alien Tort Statute”), for instance, Congress gave federal district courts “original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 And according to the Supreme Court, limitations on
the Treaty Power generally amount to prohibitions in the Bill of Rights. 29

IV. Preliminary International Law Research

International law research often requires resorting to creative techniques to locate,

collect, and examine authoritative documents across international jurisdictions. A useful way to
approach international law research is to first select the most relevant branch of the international
law tree and then to trace its roots. Take the issue of climate change as an example.
Environmental law would be the branch of the international law tree with climate change as a
fruit. The root would be the “foundational” legal instrument. In this case, the governing
international agreement for international environmental law is the 1972 Stockholm Declaration
of the United States Conference on the Human Environment. 30 Essentially, locating the root
should present you with the legal framework from which you can center and adapt your research.
Georgetown Law’s library offers a rich collection of international law research guides. 31 Several
organizations also provide free resources on the full spectrum of international law. Below is a
short list of web-based resources organized by theme.

General Primers

• The International Journal of Legal Information 32

• The American Society of International Law’s Electronic Resource Guide 33
• The American Society of International Law’s International Law in Brief 34

26
See Jesner v. Arab Bank, 138 S. Ct. 1386 (2018); Kiobel v. Royal Dutch Petroleum, 569 U.S. 108 (2013).
27
The Paquete Habana, 175 U.S. 677, 700 (1900). See also Reid v. Covert, 354 U.S. 1 (1957). “Hence,
determinations of international law by the Supreme Court of the United States, like its interpretation of international
agreements, are binding on the States.” DAMAROSCH ET AL., supra note 4, at 641.
28
DAMAROSCH ET AL., supra note 4, at 641.
29
The Court has also developed canons for treaty interpretation. In Murray v. The Schooner Charming Betsy, for
example, Chief Justice Marshall explained “that an act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.” 6 U.S. (2 Cranch) 64, 118 (1804); see also Restatement (Third)
of Foreign Relations Law of the United States § 114 1987 (“Where fairly possible, a United States statute is to be
construed so as not to conflict with international law or with an international agreement of the United States.”).This
principle is known as the Charming Betsy doctrine, and continues to be used as a valid canon of statutory
interpretation. See Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) (Scalia, J., dissenting).
30
See DAMAROSCH ET AL., supra note 4, at 1467.
31
Available at http://guides.ll.georgetown.edu/home/foreign-law/.
32
Available electronically through HeinOnline.
33
Available at http://www.asil.org/erg/.
34
Available at https://www.asil.org/ilib/.

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 Treaties

• The World Legal Information Institute’s International Treaties Collection 35

• The Treaties and Other International Acts Series (TIAS) 36

Customary International Law

• The Digest of United States Practice in International Law 37

• The Yearbook of International Organizations 38

35
Available at http://www.worldlii.org/int/special/treaties/.
36
Available at http://www.state.gov/s/l/treaty/tias/.
37
Available at https://www.state.gov/s/l/c8183.htm/.
38
Available at http://www.uia.be/yearbook/.