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Law of the Sea

Prepared for International Law of the Sea (LAW B561)

Introduction

What is the law of the sea?

The law of the sea is a body of customs, treaties, and international agreements by which governments maintain order, productivity, and peaceful relations on the sea.

- U.S. National Oceanic & Atmospheric Administration

Sources of International Law

Article 38 of the Statute of the International Court of Justice lists the following as the sources it will apply:

  1. international conventions (treaties),
  2. international custom, as evidence of a general practice accepted as law,
  3. the general principles of law recognized by civilized nations,
  4. judicial decisions and teachings of the most highly qualified publicists of the various nations.

Research Strategy for International Law

Preliminary Analysis

  • When you begin a project, ask yourself what you already know about the topic.
    • Is there a convention that applies?
    • Are there important cases?
    • What is the factual background?
  • Get an overview of the legal issues by reading a secondary source, such as a law review article or book.
  • Write a list of questions you want to answer. These can include factual questions as well as questions about the law. You should revisit this list as you go along.
  • Write a list of search terms you think will be useful in indexes and databases.
  • Be familiar with the sources of international law, listed above.
  • Your product (brief, memorial, paper, or article) will apply these sources but your research path might not follow the list in order. In fact, it is often most efficient to begin your research with secondary sources.

Gather and Read Secondary Sources

  • Search for legal books and law journal articles on your topic.
  • Read (selectively) and take notes.
  • Is there a convention that applies? If so, get the text.
  • Do the sources discuss activities that could constitute international custom or general principles of law?
  • Do the sources cite cases?
    • international tribunals
    • courts from various countries
  • Do the authors offer interpretations that you agree or disagree with? Should you address those positions in your paper?
  • Can you use any of the sources as teachings of the most highly qualified publicists? (A treatise by a famous professor would count; a law review note by a second-year student would not.)

Gather and Read Conventions, Cases, and Other Sources

  • Your notes from secondary sources should provide you with many leads. Use the citations you find. Then you can branch out -- for instance, by searching for cases or statements by government officials.

Use Nonlegal Sources

  • News sources can provide leads to very recent legal developments (e.g., a pending case, a treaty under negotiation).
  • Nonlegal sources news, scientific, technical, economic help you develop the factual context for the legal issue.
  • News sources and historical works can provide evidence of custom.

Update Your Research

  • Has there been action on the treaty (adoption, reservations, abrogation)?
  • Is there a new treaty on the topic?
  • Are there new cases?
- prepared by Mary Whisner