From the Reference Desk: Who Are the Most Highly Qualified Publicists?

By Jonathan Pratter

In spite of its deficiencies (for example, it has nothing to say about international soft law or about unilateral acts), Article 38(1) of the Statute of the International Court of Justice is accepted as the classic statement of the sources of public international law.  Two sources are not true sources at all, but are described as “subsidiary means for the determination of rules of law.”  These are judicial decisions and “the teachings of the most highly qualified publicists of the various nations.”  “Subsidiary means” is misleading.  The French version of the Statute says “moyen auxiliaire”, which comes closer to reality.  Today, international judicial and quasi-judicial fora have proliferated.  It is simply an old-fashioned aversion to case law as a source of law that prevents their judicial decisions from being treated as true sources of international law.  In the case of the teachings of the most highly qualified publicists the distinction makes more sense.  A writer on international law does not have formal lawmaking authority.  Nevertheless, writers on international law can be very influential.  Their work can affect the course of development of norms in international law.

This raises the question of who are the most highly qualified publicists.  The question gains salience in the context of the Jessup International Moot Court Competition.  Participants need to know what kind of secondary authority can legitimately be cited before the International Court of Justice.  Two recent articles throw a lot of light on the question:  The Influence of Teachings of Publicists on the Development of International Law by Sandesh Sivakumaran, a professor at the University of Nottingham, published in 66 International and Comparative Law Quarterly 1 (2017) and Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice by Sondre Torp Helmerson, a professor at the University of Tromsø in Norway, published in 30 European Journal of International Law 509 (2019).

The first article categorizes publicists into state-empowered entities, such as the International Law Commission of the UN, expert groups, such as the International Law Association or the Institut de Droit International, and the broad category described as the “ordinary” publicist.  The article goes on to consider what constitutes teachings and arrives at the categories of digests, treatises and textbooks, monographs and edited collections, commentaries, journal articles, and even blog posts.  This catholic approach to who is a publicist and what are their teachings is surely correct, as an example makes clear.  Let’s say that during your research you encounter a student note in a United States student-edited law review, not necessarily from one of the most prestigious law schools.  In your view, the article is clearly on point, well written, and makes sound arguments, perhaps even innovative ones.  Should you or may you cite it?  In my view the answer is clearly yes.  In fact, academic integrity and the avoidance of plagiarism probably demand that you cite the article.  Now I concede that something turns on the nature of the audience.  If you are drafting a memorial before the International Court of Justice, you may have to think twice.

This is where the second article comes into play.  The author carries out a detailed analysis of the ICJ’s citation to publicists.  For example, a table in the article is the list of the top ten most-cited writers.  At the head of the pack is Shabtai Rosenne, but this is misleading.  Rosenne is the author of the leading treatise on the practice and procedure of the Court.  It may give us pause that all ten of the most-cited writers are old white men.

The article identifies several factors that go into the determination of what makes a most highly qualified publicist.  These are expertise, quality of the work, official position of the author, and agreement among multiple writers.  These factors are no surprise.  It would be desirable if going forward the ICJ cited from a more diverse range of publicists.  After all, the precise wording of article 38(1) is “the most highly qualified publicists of the various nations” (my emphasis).  The image for this post is of Hersch Lauterpacht, who came second in the list of the most-cited publicists.

From the Reference Desk: Carbon Trading Data Sources

By Amy Flick

“I’m looking for data on carbon trading and cap-and-trade, preferably with graphs. I’m doing a paper on California’s cap-and-trade program, and I’m looking for data on international carbon trading programs for a comparison.”

The reference department at MacMillan Law Library gets an increasing number of requests for data in recent years. Some law libraries have added a specialist librarian or social sciences expert to support empirical research, but at Emory we rely on the expertise of the Data Librarian in the Emory Center for Digital Scholarship, part of the main Woodruff Library, to assist our faculty and students with complex data and statistics projects. I am not qualified, at all, to do empirical analysis. I went to law school because I was told there would be no math – and then I went into bankruptcy law. Nicholas Kristof is right, I should have taken a class on statistics.

I am also only barely familiar with carbon trading.

But we do get statistical reference questions, so I will see if I can find a publication with tables, or a likely database, for the student to use for his project, leaving the interpretation of the data up to him. I’m with him on wanting graphs; if I’m looking at data, I want some visual interpretation.

California’s Air Resources Board has data on its Cap-and-Trade Program, with publications on market transfers, offset credits issued, and compliance reports. It even has video presentations on using its compliance data. The student was hoping to find graphs to include in his project, and publications like California Greenhouse Gas Emissions for 2000 to 2017  summarize years of data with multiple graphs.

California’s Cap-and-Trade program is also a revenue source, so data is also available in the California Legislative Analyst’s Office 2019-20 Budget for Natural Resources and Environmental Protection, which includes Cap-and-Trade revenue tables and graphs.

The student mentioned Canada as a possible jurisdiction for a comparison. Canada as a whole isn’t the simplest choice for him to work with, although Ontario or Quebec might be, since they also have cap-and-trade systems, linked to California’s. Canadian provinces have their own carbon pricing systems, with a federal carbon pricing system for provinces that haven’t enacted one or that don’t meet federal benchmarks. The publication Pan-Canadian Framework on Clean Growth and Climate Change was helpful for explaining the Canadian system, and it includes some data and graphs. More current data is available in the Annual Reports on Canada’s Climate Plan and other greenhouse gas reports.

Another possibility for comparison is the European Union. Its Emissions Trading System is a Cap-and-Trade system operating in all EU countries plus Iceland, Liechtenstein, and Norway. The European Commission’s climate action pages include tables and graphs on emissions monitoring and progress, auction revenues, and individual member state emission profiles. The European Environment Agency has downloadable data on emissions and allowances. Getting away from EU sources, Business Insider even tracks CO2 European Emission Allowances as a commodities market.

There are some good sources for comparative research with data from multiple countries. The Canadian and EU reports led me to the National Communications to the secretariat of the UN Framework Convention on Climate Change. These include Greenhouse Gas Emissions data and projections, along with summaries of initiatives for emissions reduction.

The World Bank has a Carbon Pricing Dashboard on regional and national initiatives, with graphs, types of initiatives (carbon tax or emissions trading system), and revenue, with data starting at 1990. It includes California’s Cap-and-Trade system with many other systems for a possible comparison. The World Bank also has data on CO2 emissions. And its report on State and Trends of Carbon Pricing 2019 is filled with maps, graphs, and tables.

The International Carbon Action Partnership also has a 2019 Status Report on Worldwide Emissions Trading with summaries by country (and for the U.S., Canada, and China, by state or province) that include descriptions of ETS systems and infographics. ICAP also has an ETS Allowance Price Explorer. The ICAP ETS Map can be used to find factsheets by jurisdiction, including emissions, GHG reduction targets, carbon price, caps, and other information.

The statistical and data sources we found are complex, but there is data to be found on carbon trading systems. I found it all overwhelming, but the student was confident that he could find the data points he needed for a comparison with California and recommendations on alternative systems.

From the Reference Desk: Technical Standards in Mexico: Researching Normas Oficiales Mexicanas

By Jonathan Pratter

Flag of Mexico: Alex Covarrubias, 9 April 2006. Based on the arms by Juan Gabino. [Public domain]

Technical standards are a complex field and there are a lot of them, but are they law?  That depends on where you are.  In the U.S., technical standards are voluntary in the sense that they are not enacted as a matter of state authority.  Of course, if you want your product or process to participate in the market, you had better be in compliance with the relevant technical standards in the industry.  In the U.S., the process of making technical standards is decentralized.  There are about 600 standard-setting organizations.  In Mexico, things are different.  There, technical standards emanate from the federal government and they are binding as a matter of law.  Mexico is a developing market economy, but it is the 15th largest economy in the world, as measured by gross domestic product.  Producers of goods and services in Mexico have to comply with the relevant technical standards.  This post provides an overview of the standard-setting process in Mexico and of how to find relevant technical standards.

The legal fountainhead is the Ley Federal sobre Metrología y Normalización (LFMN) (Federal Law on Metrology and Standardization), first enacted in 1992 and amended several times since.  Use the current version of the law, as found at the website Leyes Federales Vigentes (Federal Laws in Force).  This website is supported by the Chamber of Deputies of the Mexican Federal Congress, which makes it a quasi-official compilation of federal codes and legislation as currently in force.  There is also a Reglamento (Regulation) to the LFMN.

The LFMN either authorizes or institutes the bodies responsible for drafting and promulgating technical standards.  It also sets out the standard-setting process.  Binding technical standards are called Normas Oficiales Mexicanas (Official Mexican Standards) or NOMs.  The binding effect of NOMs derives from the definitional section of the LFMN (article 3(XI)).  A NOM is “the technical regulation of obligatory observance issued by the competent authorities.”

The LFMN creates the Comisión Nacional de Normalización (National Standardization Commission), which has an overall coordinating function in matters of technical standards.  For example, the Comisión is responsible for preparing the annual Programa Nacional de Normalización (National Standardization Program), which sets out plans for promulgating technical standards during the coming year.  Unfortunately, the Comisión does not have its own website, which makes it difficult to keep up with its work.

The LFMN also establishes the comités consultivos nacionales de normalización (national standardization consultative committees).  There are about 25 of these committees, each one dedicated to a particular sector of the economy.  The comités consultivos carry out the essential work of elaborating and promulgating technical standards.

The standard-setting process under the LFMN has essentially six steps:  1.  The intent to promulgate a NOM is entered into the Programa Nacional de Normalización;  2.  An anteproyecto (preliminary draft) of the NOM is made, together with a Manifestación de Impacto Regulatorio (Statement of Regulatory Impact);  3.  The relevant comité consultivo drafts the proposed NOM;  4.  The proposed NOM is published in the Diario Oficial de la Federación (DOF) (Federal Official Gazette) for public comment during 60 days;  5.  The comité consultivo responds to comments and the responses are published in the DOF;  6.  The comité consultivo publishes the final NOM in the DOF, stating when the NOM enters into force.

Finding NOMs is a challenge.  It is good that they are published in the DOF, which has an excellent website.  Also good is the fact that every NOM has a unique symbol.  For example, the recent Norma Oficial Mexicana establishing the requirements for operating a remotely piloted aircraft system in Mexican airspace has the symbol NOM-107-SCT3-2019.  A Google search on the symbol for the NOM can produce useful results.  There is an online Catálogo de Normas Oficiales Mexicanas.  In fact, there are two iterations of it, which work differently.  Searching by symbol (clave) is possible.  I recommend that, wherever possible, the version of the NOM of interest as published in the DOF should be used.

Finally, it is important not to confuse the Norma Oficial Mexicana (NOM) with the confusingly similar Norma Mexicana (NMX).  The latter are non-binding and are not enacted by the same method as described above.


From the Reference Desk: Primary Documents on Presidential Foreign Policy

By Amy Flick

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Presidential busts from the now-defunct Presidents Park in Williamsburg, VA. Photo by Mobilius in Mobili via Flickr,, Creative Commons license.

“My professor said to cite primary sources in my paper on Harry Truman’s foreign policy, and she said to visit the Truman Library. Is there anything I can use here without going to Missouri?”

I don’t think that the professor meant for the student to travel to the Harry S. Truman Library and Museum in Independence, Missouri and browse through the archives to write a seminar paper. But I have received several requests for presidential documents and primary documents on presidential policies this semester. Recent questions have included:

  • Harry Truman’s statements regarding NATO
  • Harry Truman’s relationship with the CIA
  • Jimmy Carter and Ronald Reagan’s differing approaches to the Soviet Union (as influenced by their religious beliefs)
  • Theodore Roosevelt’s speeches and inaugural addresses
  • Donald Trump’s public statements about Ukraine (I wonder why that would be of interest?)

So, what counts as a primary source on presidential policy, particularly for questions about foreign policy? And where can we find these primary source documents, particularly for past administrations?

Part of the question here is the professor’s definition of “primary source,” since some of these questions are coming from students in legal history classes. Kent Olson’s Principles of Legal Research Concise Hornbook offers the definition “primary sources are the official pronouncements of the governmental lawmakers,” but he explains in a footnote that “[t]his sense of the terms primary and secondary is different from that found in history and other disciplines, where a ‘primary source’ can be a letter or contemporary newspaper account while a ‘secondary source’ is a later scholarly analysis.” [Olson, p. 7] I am assuming that the professors want the students to find the presidents’ own speeches and writings, particularly with the requests for presidential statements, but messages from administration officials would be helpful as well.

The first source to look at is Public Papers of the Presidents of the United States, which includes speeches, messages to Congress, news conferences, memoranda, and addresses to international conferences. These types of research questions are good examples of the benefits of starting with the indexes – North Atlantic Treaty and North Atlantic Treaty Organization both appear as index terms in the Truman volumes. Public Papers of the Presidents is available on, but the Hein Online U.S. Presidential Library is more searchable, and I don’t have to download the entire PDF volume. It’s available, and searchable, on Lexis and Westlaw as well. The Hein collection also includes published compilations of documents from presidents before Herbert Hoover, including the Compilation of the Messages and Papers of the Presidents for finding the speeches of Theodore Roosevelt.

The Hein US Presidential Library, Westlaw, Lexis, and also have the Compilation of Presidential Documents, formerly the Weekly Compilation of Presidential Documents. Westlaw’s Daily Presidential Documents database has even more current documents than GPO’s.  These databases are good for finding press conferences and remarks at less formal events, including current tracking of President Trump’s statements. It’s possible to scan the ent recent documents in any version of the Compilation for remarks related to foreign policy, but since briefings and exchanges with reporters might cover a variety of topics, searching for statements on Ukraine, or the Soviet Union, is probably required.

The American Presidency Project at UC Santa Barbara is a great resource for finding presidential statements, speeches, and documents for earlier presidents, and for modern presidents, it also includes news conferences, interviews, and visits by foreign leaders. This database includes all the presidents, even 12 documents related to William Henry Harrison (who died in office 31 days into his term). The database can be searched or browsed by president, and the headings and document categories are helpful for finding useful documents. Direct statements about Carter or Reagan’s religious beliefs and the Soviet Union are going to be difficult to find, but there are many statements here about the Soviet Union to read and interpret.

The professor’s suggestion that the student “visit the Truman Library” presumably meant to visit its digital collections.  Presidential Libraries and Museums are repositories for the papers, records, and historical materials of the presidents. The National Archives and Records Administration administers 14 presidential libraries, starting with the Hoover administration. Some materials in the various libraries have been digitized and made available to the public, although much more would be available on-site. With some digging, the student researchers might find some relevant materials in the digitized collections. For instance, a draft of Reagan’s “evil empire” speech to the National Association of Evangelicals is available. The Truman Library’s online collections are especially helpful, with categories of digitized documents including The Development of the North Atlantic Treaty Organization. Theodore Roosevelt’s presidency predated the requirement that presidential papers be preserved, so the collecting of his papers, and their digitization, is a work in progress.  In spite of that, the Digital Library of the Theodore Roosevelt Center at Dickinson State University includes a searchable collection of Roosevelt’s letters.

Since most of these requests were for the presidents’ foreign policy, I suggested Foreign Relations of the United States, available on the website of the State Department’s Office of the Historian, and on Hein Online. It was most useful for the requests on Truman and Carter policies, since most of the Reagan volumes are not yet available. For President Truman, there are multiple volumes on Western European Security that go into US participation in NATO. These include memoranda of conversations between the president and the Secretary of State, and messages from foreign governments reacting to Truman’s statements. FRUS was also helpful to the student researching the CIA, with a volume on Emergence of the Intelligence Establishment.

I also suggested additional secondary sources to some of these students, to supplement what they already had and as another source for finding statements and speeches. Besides the many biographies written on all the presidents, there are autobiographies and memoirs, although some may be ghostwritten. There are published collections of the speeches of Roosevelt, Truman, and Reagan. News databases are useful for finding excerpts and full speeches of the presidents, especially ProQuest Historical Newspapers for finding text of entire speeches by Theodore Roosevelt and Harry Truman.

One more source seemed necessary for finding statements of the current president.  Although finding President Trump’s tweets mentioned in news articles was not difficult, there is also the comprehensive and searchable Trump Twitter Archive. As of November 6, 2019, I find either “Ukraine” or “Ukrainian” mentioned in 141 tweets.

From the Reference Desk: On Having to Say No

By Jonathan Pratter

Law librarians want to help, to provide access, to find the needed information or source.  That is in our blood.  The universe of international legal information is immense and rapidly expanding.  The internet and the World Wide Web have worked a revolution (at least for old-school types like me who remember what international legal research was like before the digital age).  It is natural for international law librarians to feel instinctively that it ought to be possible to satisfy the often pressing need for information that comes to us from our users, whether they are practicing attorneys, law school faculty members, law students or members of the public.  Yet, my thesis is that sometimes it is not possible.  There are certain kinds of requests for information or sources that are impossible to fulfil, either because the information does not exist or is inaccessible.  When this happens, we need to know how to respond.  It is not easy to tell someone that her request cannot be satisfied.  Rather than to dwell on the impossibility, a better response is to suggest an alternative, but in some cases good alternatives do not exist.  I want to consider three kinds of international legal information that can cause difficulty and may lead to the conclusion that the information is not to be found:  English translations, judicial decisions at first instance and docket information.

Photo at reference desk 10-10-19When we leave the Common-Law family of legal systems, the linguistic barrier comes into play.  Much depends on the nature of the source.  For national constitutions, we are in pretty good shape.  Resources such as the Constitute Project perform an outstanding service.  Lawmakers in other countries do not consider it their obligation to provide English translations of national or sub-national legislation, let alone of administrative regulations.  Recently I was asked to provide the English translation of the Constitution of Mexico City.  The Constitución Política de la Ciudad de México certainly does exist, in Spanish.  It is lengthy.  Conscientious research led me to the conclusion that a published English translation does not exist.  I suggested what I thought was a reasonable alternative: retaining a competent legal translation service.  This was not met with wholehearted approval.  Why?  Because it is expensive.  Nevertheless, we have to be prepared to suggest this alternative when it comes to providing English translations.

Every jurisdiction has several first-instance courts.  France, for example, has the tribunal d’instance, the tribunal de grande instance, the tribunal de commerce and the conseil de prud’hommes.  And that is just for starters.  Legifrance is, by common accord, the go-to website for free access to French law.  In Legifrance, when you search on juridictions du premier degré (first-instance courts), it turns out that the results are very sketchy.  I got zero results for 2019.  According to the 4th edition of the book, Recherche Documentaire Juridique: Méthodologie (2019), there is no good alternative.  I wager that the situation in other jurisdictions is similar.

When it comes to docket information in other countries, researchers in the U.S. are spoiled.  We have PACER and its commercial counterparts on Westlaw, Lexis and Bloomberg Law.  The situation outside the U.S. is very different.  Docket information in other jurisdictions may simply be inaccessible.  True, Bloomberg Law has coverage for what it calls international dockets, and this includes important jurisdictions like the United Kingdom and the European Court of Justice.  However, in my experience, the information available is limited and does not include links to full-text filings by the parties, such as will be found on PACER.

In practice, requests for information in the three categories discussed here are not infrequent.  Researchers who ask for this kind of information may have to be brought down to the reality that the information they need is not available.  Sometimes the right answer is no.


From the Reference Desk: I Need a Topic for My Paper!

By Amy Flick

writers block.jpg
Every fall semester, I get the same question from new students on the Emory International Law Review and students taking one of the international law seminars. They usually have only one or two weeks to come up with a topic for their major writing project, and they may not have taken an international law class yet.  The topic must be original, specialized, interesting to potential readers, current, not preempted by other articles, not likely to become moot before the article is published, and involve a legal issue for which the student can propose a solution. The topic should interest the student enough that they can commit to spending the next few weeks or months researching, writing, and editing it, and it should lead to a journal note or seminar paper that enhances the student’s résumé.

I do not keep a list of possible topics that students might write about. I definitely do not have a list of topics that meet all these requirements. I occasionally see a news item that I think would make a good student paper topic, but rarely at a time that I can match it to a student.

Instead of offering a fully-vetted proposal to students, I give them starting places to look for a topic. These are some of the resources that I suggest to the international journal and seminar students who are looking for research topics. These resources can be found in my research guides, most of them borrowed from other research guides. (I also have suggested resources for the students on the Emory Bankruptcy Developments Journal, but those are a subject for a different blog.)

Current awareness and legal news sources are good for finding developing issues and new and noteworthy legislation and cases. Browse through headlines and new documents in:

I follow news sources with good coverage of global issues and legal developments. Few law students seem to keep up with the news, but they may not have my NPR-fueled Atlanta commute. I look for headlines in these sources, which I also browse for potential homework problems:

International law blogs will point out not just new statutes and cases, but the legal issues they raise. Keep in mind that a blog post by a professor may be a precursor to a full academic article that he or she has planned.

For students with an interest in human rights, topic ideas might be found in:

Students looking for a national security-related topic might find one in:

Students looking to research the more commercial areas of international law, such as international tax and international trade, might find ideas for topics in:

  • Law360 for International Arbitration and International Trade
  • Bloomberg Law News in International Trade and International Tax
  • Business news from the Financial Times and the Wall Street Journal

Just as students look for pending Supreme Court cases and circuit splits when writing about U.S. law, students might look at pending cases before international courts and tribunals such as the International Criminal Court and the International Court of Justice.

Students who have found a news article that interests them, but who are having trouble developing it into an issue, might look at other articles and blog posts to find differing views. They might compare one recent case with similar cases from other courts, using the Oxford Reports on International Law database, or they might compare legislation from other countries using sources like WIPO Lex and ECOLEX.

At this stage, students may have only a general idea for their article or paper topic. It doesn’t need to be fully developed yet, but they will have to do a lot of reading and research to turn their topic into an outline, and I can at least give them some sources for that reading and research.

If you have any great ideas for suggesting topics to desperate students, I would love to hear about them!

Locating UK and EU Guidance on Brexit

By Alison Shea

Over the past week, two things happened which inspired me to write this post.  First I read this story on how the Dutch government had set up a website to provide guidance to its citizens on how to prepare for Brexit, and of course I immediately imagined how awesome it would be if the Dutch Brexit monster featured in the story teamed up with Gritty for a buddy comedy.  Second, I read FCIL-SIS Chair Catherine Deane’s column in the FCIL Newsletter asking for people to volunteer to write a blog post for Diplawmatic Dialogues.

As much as I know you were hoping to read my script ideas for the Gritty/Brexit monster buddy comedy, I began wondering if any other countries had created a comprehensive guidance site for its citizens and businesses in advance of Brexit (and especially a no-deal Brexit).  It had previously occurred to me that teaching an EU and/or UK research classes this semester would be very challenging given the timing of Brexit, and I figured the best thing I could recommend to students given this uncertainty would be to look for and follow government guidance documents.

Why recommend government guidance documents?  Because the actual withdrawal of the United Kingdom from the EU – currently scheduled to occur at 11pm GMT on March 29 – now looks like it will be very abrupt (if it happens at all), it will not be possible to amend all relevant laws to reflect the changes immediately (check out this blog post for a brief overview of the magnitude of changes that need to occur).  Thus, it will be important for anyone with an interest in Brexit to follow the government’s guidance on how to deal with it until the law can catch up.  Not only is the guidance going to be crucial for those living and working in the UK, it will also be extremely important for any country that currently engages with the UK in its (soon to be former?) capacity as a fellow EU member.   Therefore, a list of places to locate government guidance seemed like a good tool to create for librarians and FCIL instructors to have in their toolbox over the coming month(s).

After spending a few days searching and locating guidance information for most of the EU member states, I realized that the EU had already beaten me to creating a list of the relevant government guidance sites.  This was an extremely disappointing discovery, since I had already pitched this as a great blog post to Alyson and Susan and was really proud of my advanced Google (and Google Translate) skills.  However, from all my searching I can at least share my top research tip: because “Brexit” isn’t a real word, it’s a great search term to use in any language!   In the end, Alyson and Susan convinced me that there could still be value in my post, and so I humbly present a (shorter) list of relevant sites for locating government guidance on Brexit.

It should go without saying that this is what I was able to locate as of February 26, 2019; the landscape of Brexit guidance will undoubtedly change the closer we get to “B-day”, and will also change if the UK government takes new action in the interim (the latest update is that a “meaningful vote” will be held by March 12), so stay tuned!*

United Kingdom guidance

European Union guidance

Individual European country guidance

Even non-EU member states are finding it necessary to prepare for Brexit, as these countries interact with the United Kingdom under various bilateral agreements with the European Union and the European Economic Area; see, for example, this recent agreement on arrangements of citizen’s rights for many of these non-EU countries.  Three countries that have especially close ties with the UK are listed here:


*Looking for suggestions on how to “stay tuned” to the ever-changing world of Brexit?  Here are some of my go-to sources for Brexit coverage: