by William Worster
International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation... more
International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation of rules, so when confronted with the growing availability of leaked information naturally we might be cautious in considering how the leaks are affecting international law. This paper will assess the growing influence of leaked information on the rules of international law and argue in favor of their use. This paper is not especially focused on WikiLeaks, though it is representative of the phenomenon and is the source used primarily for this paper. Due to the presence of it and similar actors, the availability of leaked information is growing and leaked information is now becoming significant in international affairs.
This paper will walk through the various sources of law, generally following the structure of article 38(1) of the Statute of the International Court of Justice, although with some additions as may be relevant, and examine each source to see whether and how leaked information might contribute. As threshold matters, ex turpi causa non oritur actio, “the fruit of the poisonous tree”, and similar principles are examined, however, those principles can be dismissed for a number of reasons.
The first source of law to be discussed is treaties for two purposes. Firstly, the paper assesses the definition of a treaty and considers whether leaked information might amount to a secret treaty, and secondly, it assesses the evidentiary function of leaked information in interpreting treaties.
After treaties, the paper considers the ways in which leaked information might contribute to the formation of customary international law, primarily the ways in which leaked information might evidence practice and opinio juris.
Lastly, the author also considers the potential for leaked information to contain binding unilateral statements and the role that leaked information might play in the law-making function of international organizations.
Following the examination of the sources of law, the paper takes a brief detour to examine the ways in which leaked information might impact the international legal personality some entities enjoy. Leaked information might have a bearing on both the law to be applied and the facts to be established. In particular, the Holy See and Kosovo will be discussed.
We appear to be moving into an era of increased access and transparency of information, and inability to prevent the viral spread of leaks. Law, and international law in particular, must take cognizance of this change and absorb it. It is possible, although the growth in leaked information might have a greater effect in the future. It might even inspire changes in some of the more fundamental notions that underpin the law.
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