Public International Law/Methodology/Case Analysis





Author: Max Milas "Required knowledge: Precedent in Domestic Law, Sources of International Law, Interaction" "Learning objectives: Evaluating the relevance of cases in international law, researching international cases, applying cases depending on role and objective."

A. Introduction
Cases are not only a "subsidiary means for the determination of rules of law" in international law according to article 38(1)(d) ICJ Statute, but also an influential means of communication in the practice and research of law. For this reason, it is all the more surprising that all popular textbooks of public international law include a section on the relevance of cases, but no section on how to engage with judicial decision as a student, practitioner, or scholar of international law. The following chapter attempts to change that by discussing the relevance of cases, presenting tools to research cases, and introducing methods to use cases in international law. In doing so, this chapter aims to guide students through exams, term papers and moot courts in which case law analysis is key.

B. Relevance of Cases in International Law
According to the traditional reading, cases are one of the four main sources to determine rules of international law. Both judges and scholars of international law deal extensively with prior domestic and international decisions in their publications. Finding and analyzing cases is therefore one of the main tasks of international lawyers.

I. Decisions of International Adjudicative Bodies
On a strict reading of Article 38(1)(d) of the ICJ Statute, judicial decisions are only subsidiary sources of international law. At first glance, this reserved importance is confirmed by the absence of precedents. As cases are generally binding only between the parties involved in the dispute, not against uninvolved parties, no formal concept of precedent exists in international law. This first glance, however, belies the actual realities of international law. Cases shape the modern international legal order at least as much as treaties and customary international law. Courts base their decisions on previous cases to build a coherent system, scholars use cases to adjust their approaches to the realities of international law, and commissions use cases as food for thought when codifying law. This applies not only to judicial decisions but also to communications of commissions, committees, and other quasi-judicial bodies.

International law cases can be differentiated according to different types of applicants and procedures. In most proceedings, two states are in dispute before an international court. This is particularly the case with the ICJ and the International Tribunal for the Law of the Sea (ITLOS). Private parties can also file complaints against states before international human rights courts and investment protection tribunals. Additionally, prosecutors can file cases against individuals before international criminal courts. Finally, international organizations and states can also seek advisory opinions from international tribunals.

Cases can consist of up to four different parts. Under preliminary objections, courts typically address the jurisdiction of the court, the ability of the plaintiff to bring the case to trial (so-called standing), and other admissibility requirements. Under merits, courts present their reasoning and the result of the case. Under reparations, most courts specify the consequences their judgement (e.g., reversal of measures, payment of reparations). Under interpretation, courts may, at the request of the applicant, clarify how a judgment is to be interpreted and whether the respondent has fulfilled its obligations.

II. Domestic Cases in International Law
Domestic court decisions are also covered by 38(1)(d) of the ICJ Statute. It should be noted, however, that domestic decisions are rarely cited. While international decisions are usually cited to ensure a supposed uniformity of the international legal order, the use of domestic decisions often serves to prove customary international law and to secure acceptance by states. By discussing domestic decisions, courts signal to states that their legal traditions are being taken seriously. For this reason, a thorough research on domestic decisions should not only focus on decisions of the usual suspects, but should strive for representativeness.

Although citations are aimed at securing acceptance of international law by all states, studies on citation practices of international courts and textbooks show that primarily cases from Australia, Canada, China, France, Israel, South Africa, the United Kingdom, and the United States are cited. Cases from jurisdictions outside the Global North are very rarely cited. For example, in Arrest Warrant, the ICJ deals solely with the UK House of Lords and French Cour de Cassation. In Jurisdictional Immunities, the ICJ cites decisions from 16 countries in the Global North (Austria, Belgium, Canada, France, Germany, Iceland, Ireland, Italy, New Zealand, Poland, the Netherlands, the United Kingdom, United State, Slovenia, Spain, Switzerland), one regional human rights organization of the Global North (Council of Europe) and only one country in the Global South (Egypt). The White & Case guide for Jessup Moot Court participants on “Researching International Law” echoes this practice and recommends considering decisions from Canada, Australia, and New Zealand for factual matters involving indigenous rights as "those countries have significant indigenous populations", while ignoring Central and South African and South American experiences in addressing indigenous rights.

Admittedly, there are plausible reasons for this: In some cases, only decisions from certain jurisdictions will exist, decisions in English are easy to understand for most international lawyers, many databases contain only judgments from these jurisdictions, and the style of reasoning of these courts is similar to the style of reasoning taught in international law departments around the world. However, this prevalence of English-language decisions in citations is not inevitable, but the result of historical inequalities within the international system. Over the past 400 years, European states in particular have imposed their legal systems on countries on every continent of the world. Today, English is the working language in international institutions, and English-language publications are expected by international law scholars in many regions of the world. In light of these colonial roots of the bias in favour of English-language decisions, a thorough research on domestic decisions should not only try to use decisions of a certain group of states but instead should strive for representativeness. Since discussing domestic decisions serves to establish customary international law and to secure States’ acceptance of international law, the cases used for this must consider as many diverse countries as possible. Otherwise, international law will remain law of only well-recognized states and the international legal order could, with reasonable grounds, lose acceptance, especially in the countries of the Global South.

C. Researching Cases in International Law
Generally, case law analyses have two different starting points: In the first type of question, the student is asked to respond to a general question of international law. The student can only answer this question convincingly if they also engages with international and domestic cases.

In the second type of question, the student must answer a case-specific question. Although this question seems to refer only to one case, the student can only answer this question persuasively if they also considers comparable cases.

Thus, for both types of questions, students must find the applicable case law for persuasive reasoning. For this, students can resort to libraries and online databases.

I. Finding Cases in Libraries
The most obvious, but also the most challenging source for researching case law is printed law reports. The main advantage of law reports is that they are published either by the courts themselves or by distinguished individuals and institutions. Students can therefore be assured that law reports reflect the development of case law comprehensively and authentically. The major disadvantage, however, is their format. Law reports are often only available in print. Many universities and students cannot afford them. Furthermore, printed collections can only be scanned and skimmed in a very time-consuming and error-prone process. Students should therefore use them with great caution. Nevertheless, law reports remain a common source to research case law. The following list provides an overview of the most common law reports in international law:


 * Covering almost all fields of case law in international law
 * International Law Reports (CUP)
 * Oxford Reports on International Law
 * Covering international case law from 1929 to 1945: Annual Digest of Public International Law Cases
 * Decisions of the International Court of Justice: UN Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
 * International arbitral and judicial awards: United Nations Reports of International Arbitral Awards
 * Decisions of UN judicial bodies: United Nations Juridical Yearbook
 * Law of the sea: ITLOS Annual Reports
 * Cases in the European human rights system: Tim Eicke (ed.), European Human Rights Reports

Many international law journals also contain sections that summarize and assess cases. However, these journals are only suitable to a limited extent for researching cases. First, journals contain only a sample of current decisions, and second, they focus usually on analyzing individual aspects of the case and not on presenting the entire content of the decision. For this reason, journals are recommended resources for case law analysis only after students have already found the relevant cases for their analysis. Subsequently, contributions to journals can serve as a source of inspiration in one's own analysis of case law.

II. Finding Cases in Online Databases
Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research. Students may use the court's own databases for citations and footnotes as they provide scanned, but original versions of decisions. In this way, students can avoid mistakes in quoting and citing. In contrast, third-party databases are better suited for initial research. These databases often contain more precise options for filtering, so students can use them to find more appropriate cases more quickly. The following list provides an overview of online databases for international courts, tribunals, commissions, and committees:


 * Databases covering more than one court or system
 * WorldCourts (open access)
 * World Legal Information Institute (open access)
 * JusMundi (paid, but free for Jessup participants)
 * The Max Planck Encyclopedias of International Law (paid, but free for Jessup participants) with comprehensive summaries of many cases
 * World Court Digest (open access) with a thematic table of contents
 * Permanent Court of International Justice: Series A for judgments until 1930, Series B for Advisory Opinions until 1930, and Series A/B for Judgments, Orders and Advisory Opinions from 1931 (open access)
 * International Court of Justice: List of All Cases database (open access)
 * International criminal courts: ICC Legal Tools Database
 * International human rights adjudicative bodies
 * University of Minnesota, Human Rights Library (open access) for almost all international human rights adjudicative bodies
 * UN human rights system
 * UN Treaty Body Database (open access)
 * OHCHR Jurisprudence Database (open access) for United Nations Treaty Bodies
 * UN Human Rights Bodies Database (open access)
 * ECtHR’s HUDOC database (open access) for the European human rights system
 * Inter-American human rights system
 * IACmHR’s Reports on Cases (open access)
 * Judgements of the IACtHR database (open access)
 * Loyola of Los Angeles International and Comparative Law Review’s Inter-American Court of Human Rights Project database (open access)
 * IUSLAT Database on the Inter-American human rights system (open access)
 * SUMMA database on the Inter-American human rights system (open access)
 * African human rights system
 * Cases of the African Court on Human and Peoples’ Rights (open access)
 * Communications of the African Commission on Human and Peoples’ Rights (open access)
 * Database and commentary on jurisprudence of the African Court on Human and Peoples' Rights (open access)
 * African Human Rights Case Law Analyser (open access)
 * Other fields of international law
 * International Commercial Law: Case Law on UNCITRAL Texts database (open access)
 * International Centre for Settlement of Investment Disputes: ICSID database (open access)
 * International trade dispute settlement bodies: | WTO Dispute Documents database (open access)
 * International Tribunal for the Law of the Sea: ITLOS Document Search (open access)
 * Intellectual Property Law: WIPO Lex (open access)

To use these databases most effectively, students may think of key phrases that describe the problem to be solved as concretely and as briefly as possible. In some cases, the relevant phrases already emerge from the questions. For instance, our first example asks about the legality of entry restrictions under international law. A student could search the databases for the keywords "entry restrictions" and synonyms. However, this is usually not sufficient to find all cases that are relevant to solving the problem. Instead, students may also search for secondary literature in parallel. In particular, students can use Google, Google Scholar, encyclopedias of international law, the search engines of the major international law publishers (esp. CUP and OUP), and international law blogs for the keywords. After reading suitable articles in journals, books, blogs, and encyclopedias, students should have a deeper understanding of the legal issues. The keywords for the databases can then be adjusted.

This literature review is also particularly important if the question does not contain specific phrases that can already be used as keywords for databases. For instance, our second example asks solely about the lack of state responsibility of Serbia and Montenegro. It would be very tedious to search the databases for "state responsibility," as the keywords are still too general. Instead, students may first read the relevant case (Bosnian Genocide Case) and literature to be able to identify the key legal issues. After reading the case and literature, students can recognize that, among other issues, the question of attribution of private acts is crucial for the state responsibility of Serbia and Montenegro. For this issue, the ICJ has been using the "effective control" test since Nicaragua, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) uses the "overall control" test. These two phrases (“effective control” v. “overall control”) can be used as keywords for the literature review and databases to locate cases relevant to answer the question.

Some databases also offer to search cases by year, topic, and rule. This is particularly helpful in areas of law with many decisions to filter out the relevant cases. However, as international adjudicative bodies also draw inspiration from decisions outside their own system, students should not only search for cases in the field of law of the question but also look for comparable problems and decisions in other fields of international law. Students may repeat their research several times during the processing period using adjusted keywords to reflect their increased knowledge.

D. Using Cases in International Law
In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.

I. Understanding Cases
After finding the relevant cases, students must understand these cases. The tools used to understand cases do not differ, but the way the tools are used does, depending on the role and objective. Every case analysis starts with reading the case as well as annotating and summarizing it (at least in thought). However, the reading, as well as the objects of markings and summaries, differ depending on the position and task of the analyzing student.

In international law, two distinct types of tasks exist in which the analysis of cases becomes relevant. In one case, students must analyze cases strictly doctrinally. This is particularly the case in moot courts and when students have to write a case brief or solve a case from the standpoint of the judge. In this type of task, the focus of analysis should be on locating the cases in the broader context of the relevant field of international law. Students can criticize decisions, provided that the judgments depart from the established canon of the field. In most instances, however, students should instead focus on distinguishing cases or establishing exceptions and qualifications of rules derived from judgments. In the other case, students can analyze cases not only doctrinally but also disruptively. This is particularly the case when students analyze cases not as (imaginary) members of an institution (be it as applicant/respondent or as a judge) but as external observers (e.g., in a critical case analysis). In this task, students should also locate the case in the broader context of the relevant field of international law. However, the primary analysis does not end there. Instead, students can analyze the case in light of decisions from other fields of international law, critical methodological approaches (e.g., Third World Approaches to International Law ), or interdisciplinary insights. Nonetheless, students should be aware that these two types of tasks represent two extreme positions of case analyses. In between, there is a continuum of tasks that combine elements from both types.

Regardless of the type of assignment, any case analysis begins with understanding the cases provided or identified. In this respect, a two-tiered approach can significantly facilitate the understanding of cases: Students may first read and annotate the case and secondly summarize it. However, there is no universal approach to reading and summarizing a case, so students can compile their own method based on existing approaches.

1. Reading and Annotating a Case
Before reading the case for the first time, students may make sure that they have understood the assignment as the type of task is crucial for the approach of case analyses. In a second step, students can use the techniques of "skimming” and "scanning" to obtain a first overview of the case. Skimming provides students with a first glimpse of the overarching content of the judgment. Students should not read the entire judgment or entire paragraphs but instead focus on the title and date of the decision, the parties, subheadings, and the first and last sentences of sections. Scanning is used to locate relevant passages within the judgment and then read it. For this purpose, students can be guided by subheadings as well as first and last sentences of sections from skimming and then read only those passages that seem relevant to answering the task. For example, if students are only interested in the legal reasoning, they may bypass all the parts of the judgment describing the facts and the proceedings to focus on the legal reasoning. In a third step, students may read and annotate the case. Annotations are used to visually structure the case and to be able to understand it with little effort even in retrospect.

In the final step of reading and annotating, students may consider rereading the case to review one's annotations and prevent mistakes or oversights. Depending on the assignment, it might be useful to read not only the case itself but also case summaries. Many courts provide these summaries themselves. But also journals or encyclopedias of international law contain case summaries. By supplementing one's own thoughts with thoughts from other lawyers, one's own idea of the case can be verified.

2. Summarizing a Case
After several readings of the case, the case can be summarized at least in thoughts, and for some assignments, in writing. As a rule, this step is not relevant for examiners, but for students. The case summary should comprehensively, but briefly, present the most important aspects of the case. Only by this step can students verify whether they have really understood the case. In addition, it serves to recall the case later without much effort. Thus, the case summary, in addition to the case reading, is a key prerequisite for using cases in international law.

II. Determining the Relevance of a Case
Before students ultimately apply the case, they should determine the relevance of the case for their assignment. The importance of cases for the international legal order was already explained at the beginning of this chapter. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation. However, this does not imply that judgments which at first glance support one's own argumentation should be used for one's own reasoning without hesitation. Likewise, cases that contradict one's own argumentation at first glance are not a final farewell to one's own reasoning. Instead, cases can be evaluated from both doctrinal and critical perspectives before they are finally presented. The appropriate balance between doctrinal and critical evaluation perspectives depends on the assignment at hand and cannot be determined in the abstract.

1. Approaching Cases Doctrinally
From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions may be considered.

a) Distinguishing Cases
Before classifying a case as being for or against their reasoning, students may answer two questions: Firstly, students can investigate whether the facts of the case under investigation correspond to the facts of the assignment (so-called factual distinguishing). It may well be that the result and reasoning of a case are clearly against one's own argument, but the cases are so different that the rule and reasoning cannot be transferred automatically. For this, students must closely examine the facts of the case and the assignment and identify similarities that allow the rule to be applied or differences that hinder the rule’s application. Second, the legal elaborations in the case may contain hidden qualifications or exceptions that preclude the application of a case that appears to fit or that justify the application of a case that does not appear to fit the assignment (so-called legal distinguishing). Finally, reasoning in old cases can also be displaced by new legal developments. For a persuasive argument, students should always acknowledge the cursory fit or lack of it in a first step, and then explain why the case actually does or does not fit in a second step. From a doctrinal perspective, it is usually unconvincing to frame a case as false. Instead, these two techniques of factual and legal distinguishing should be employed to exploit the case for one's own argument.

b) Obiter Dicta
Legal interpretations of courts that are not relevant for deciding the case (so-called obiter dicta) may also be considered in analyzing cases. For example, the ICJ defined opinio juris in an obiter dictum in North Sea Continental Shelf and defined obligations erga omnes for the first time in an obiter dictum in Barcelona Traction. In both instances, the legal reasoning was not relevant to the outcome of the case, and yet both obiter dicta continue to shape the international legal order to this day. However, it is disputed whether obiter dicta are "judicial decisions" or "teachings of publicists" in the sense of Art. 38(1)(d) Statute of the ICJ. For this reason, obiter dicta should be treated cautiously. For example, ITLOS in Delimitation of the Maritime Boundary in the Bay of Bengal refused to apply an obiter dictum of the ICJ in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.

c) Individual Opinions
Many domestic legal systems allow judges to attach individual opinions to the majority decision if they disagree with the majority’s reasoning (so-called concurring opinion) or result (so-called dissenting opinion). Likewise, almost all international adjudicative bodies permit judges to publish individual opinions.

Although individual opinions have not prevailed within the adjudicative body and are thus not enforceable, they can contribute to the development of legal standards. Individual opinions can assist in interpreting the majority opinion. Concurring opinions often clarify or generalize the court's reasoning. This facilitates the application of the court's reasoning to similar cases. Dissenting opinions not only reveal the rationale for the majority opinion but also criticize this majority opinion. Thereby, dissenting opinions are a good starting point for a critical engagement with majority opinions.

While the relevance of individual opinions should therefore not be underestimated, they should be treated cautiously. Firstly, they are just not part of the majority opinion and thus neither binding for the parties nor enforceable nor “subsidiary means for the determination of rules of law” according to Article 38(1)(d) Statute of the ICJ. Second, individual opinions are frequently results of national or amicable biases.

2. Approaching Cases Critically
From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones. Critical perspectives are therefore not limited to the application of doctrinal standards. Instead, critical approaches address, among other aspects, the sociological conditions of human decision-making in adjudicative bodies, (post-)colonial imprints and effects of decisions, economic conditionalities of law, and ecological consequences of judgments. While the application of these perspectives requires an engagement with their basic methodological assumptions, they usually enrich a case law analysis enormously by unmasking the supposed neutrality of doctrinal methods. Examples of critical engagement with cases include the 'feminist judgment movement', 'trashing' in the sense of critical legal studies, and 'Reading Back, Reading Black'. In the following chapters, this textbook provides insights into how to employ interdisciplinary, (post-)colonial, feminist, and Marxist approaches to case law analyses.

E. Conclusion
Cases are one of the four main sources to determine rules of international law. Despite this particular relevance, the ability of students to locate, understand, and apply cases in exams is often assumed. Many textbooks of international law do not teach case analysis skills, but only knowledge of the law. This chapter has attempted to provide students with an introduction to case analyses. (Un-)fortunately, it is up to these students, along with their teachers and practitioners of international law, to ensure that case analyses in the future no longer only consider decisions from colonising legal systems. This will require a challenging but also rewarding engagement with foreign legal systems, possibly including the learning of new languages (for this, Anglophone readers may feel particularly encouraged), and the critical questioning of traditional citation practices and case analysis techniques. While this process is time-intensive, it will not only promise novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.

Conclusion

 * Cases are one of the four main sources to determine rules of international law. Finding and analyzing cases is therefore one of the main tasks of international lawyers.
 * The most obvious, but also the most challenging source for researching case law is printed law reports. Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research.
 * In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.
 * Before students ultimately apply the case, they should determine the relevance of the case for their assignment. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation.
 * From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions must be considered.
 * From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones.

Further Readings

 * Acquaviva G and Pocar F, "Stare decisis", in Anne Peters (ed), The Max Planck Encyclopedias of International Law (Oxford University Press 2021)
 * Andenas M and Leiss JR, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV 907
 * Bjørge E and Miles CA (eds), Landmark Cases in Public International Law (Hart Publishing 2017)
 * Linos K, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475
 * Roberts A, Is International Law International? (Oxford University Press 2017)
 * Shahabuddeen M, Precedent in the World Court (Cambridge University Press 1996)

Further Resources

 * Columbia University, Researching Public International Law
 * UC Hastings Law, International Law Research Guide: Analysis of International Law
 * NYU Law, International Law: General Sources: General tools for finding cases on international law
 * The University of Melbourne, Finding International Cases