Lost in Citation: How to Reference the UN Charter and the ICJ Statute

[Martin Baumgartner is a PhD candidate and a Teaching and Research Assistant at the University of Vienna]

As an early career researcher, a considerable amount of my time in the last few years has been spent creating and going over references. While this is sometimes a strenuous task, what most puzzled me was the difficulty to find the correct references for the most fundamental treaties of international law. Contrary to common practice, these are not 1 UNTS XVI for the Charter of the United Nations and 33 UNTS 993 for the Statute of the ICJ, even though these references have made it into works by all major publishing houses and the most renowned scholars.

While I neither presume to be the first one to think about these issues, nor claim that no one has ever done it correctly, I would have found it very helpful to find this information while looking for the correct citation. Hopefully, someone else’s life will be made a bit easier, when they are drafting moot court memorials, editing articles or writing their own papers and maybe stumble upon this post. 

In this post, I will give an overview over the various versions of (incorrect) references I have encountered and retrace how they might have come to be. Finally, I will establish a correct way of referencing the texts.

Citing the UN Charter: Why Everyone is Doing it Wrong

The majority of sources, including books and journals from all publishing houses as well as the UNHCR’s handy Refworld tool, reference the Charter as ‘1 UNTS XVI’. This would be in line with the standard treaty referencing, indicating the volume of the United Nations Treaty Series (UNTS) and the first page of the treaty text. However, if someone expected to find the text of the Charter there, they would be disappointed. At page XVI of the UNTS’ first volume, we find ourselves in the middle of the Note by the Secretariat about the Regulations to give effect to Article 102 of the Charter, which clarify the scope and extent of treaties to be published under the UNTS. The regulations themselves start on page XX. The actual text of the Charter is nowhere to be found. This makes sense: Article 102 of the UN Charter sets up the UNTS for treaties ‘entered into by any Member of the United Nations after the present Charter comes into force’. Why should the text of the Charter itself be included in the treaty series?

How, then, did this reference grow so common? Why has it made its way even to resources like Refworld, the UNHCR-run database of international law documents and often the first stop for many students looking for the proper reference of a treaty? While I can only speculate upon its origins, it appears that the cumulative index of the UNTS contributed to a misunderstanding: While the Charter is not indexed with a UNTS number, the next line indicates the page for the Regulations to give effect to Article 102 (which is still incorrect since they start on page XX). I suspect that the first people looking for a UNTS reference of the Charter simply used the first reference indicated on the side of the treaty and did not bother to check whether the page was correct.

Very early isolated instances of this citation can be found in journals from 1969 and 1978, though I suspect the citation gained a bit more momentum after it was first used in the International Law Reports in 1984’s Volume 67. Google Books’ tracker of a phrase’s popularity confirms that indeed, around that time the reference was increasingly used. Some of the little swings in the otherwise very flat line before 1984 are either isolated uses as the ones named before, or errors in Google’s database, which sometimes antedates some books. 

The almost complete lack of any reference before 1980 and the persistent paucity of references well into the 2000s cannot be attributed to the lack of digitalisation of books, or the incompleteness of Google’s records: If we countercheck against the Vienna Convention on Diplomatic Relations (500 UNTS 95), many works reference it from its inception. It thus becomes apparent that the ‘1 UNTS XVI’ reference for the Charter simply has not been used prior to 1980. 

It appears that even before the advent of powerful online search engines, widely available and recognised publications like the International Law Reports were able to massively influence other publications. 

Another widespread reference of the Charter is one also used in Brownlie’s Principles of International Law or Blackstone’s International Law Documents: 892 UNTS 119. This unintuitively high number for the UN’s founding document refers to the most recent amendment. In 1971, the General Assembly amended Article 61 of the Charter, enlarging the Economic and Social Council to reflect the increased number of member states. It thus seems to correctly indicate and refer to the current version in force of the United Nations Charter.

However, if the purpose of a reference is not only to unambiguously identify a treaty, but also to help a reader find a copy of it, this way of referencing fails to achieve that goal. At the indicated page, only the amended version of Article 61 can be found. Maybe, thus, an extended version of this reference would be the best way to go. In the final section, I will present one way of how this can be done.

It Gets Stranger: The Statute of the International Court of Justice

In contrast to the UN Charter, where the widespread references can be explained with recourse to the index or the last amendment, things get much stranger with the Statute of the International Court of Justice. The Statute was annexed to the Charter of the United Nations, so one would assume to find a similar reference to the Charter. However, one of the most widespread forms of referencing the Statute is ’33 UNTS 993’. This is stated to be the ‘Official Citation’ by the Oxford Law Citator, arguably one of the most important points of reference for anyone trying to find the correct way of referencing international treaties. It also appears in books by all major publishing houses and even made its way before the ICJ itself, being cited in a written submission by Australia in Timor-Leste v Australia.

However, this is where the mystery begins: Volume 33 of the UNTS does not contain a page 993, it ends after 352 pages. The origin of this version might lay with a different manner of referencing international agreements. If a reference under the United Nations Treaty Series is not possible, OSCOLA also allows citations from treaty series of one of the States parties. The most prevalent domestic treaty series include the UK Treaty Series (UKTS), the Australian Treaty Series (ATS) or the US Treaty Series (USTS, often – confusingly – referred to as TS). USTS Volume 993 contains the original copy of the UN Charter, starting on page 3, and the annexed Statute of the ICJ. Therefore, the correct reference would be USTS 993, 3, or, since no other Treaties are contained therein, simply TS 993. 

While, once again, I can only speculate, it appears plausible that someone, creating an index for an international law publication, was looking for a reference for the Statute, wanted to fit everything into the same format of neat UNTS references and conveniently mistook an ‘S’ for an ‘N’. Maybe, the original only used ‘TS’, as it often does, and the indexer, probably not from the US themselves, assumed this could only mean the UNTS. However it happened, it stuck. 

The first instance of ’33 UNTS 993’ I was able to find is in a book from 1998. How exactly it spread is hard to recapitulate, but at some point it reached far enough that important reference works like the Oxford Law Citator picked up on it, only further disseminating the incorrect citation. The distribution of the reference in the Google Books Ngram-Graph suggests that especially with growing use of online search engines, the use was more and more replicated. Despite the fact that even the United Nations Dag Hammarskjöld Library clarified that 33 UNTS 993 is not the correct reference for the Statute, the citation continues to be popular today. 

Interestingly, the International Law Reports appear to have invented a variant: They reference the Statute with ‘33 UNTS 933’. Of course, this reference is equally incorrect, but in this regard I have not been able to come up with an explanation as to when, where and why the 9 might have been changed to a 3.

Many publications, including Brownlie’s Principles, also use the abovementioned 892 UNTS 119 for the ICJ Statute, referring to the UN Charter’s last amendment. Even if that might be an acceptable, though not ideal, reference for the UN Charter, indicating the last change and thus the most recent version of it, the ICJ Statute does not form part of the Charter – it is annexed to it. When the Charter is amended, the Statute does not change and nor should its way of being referenced. In addition, the Statute is mentioned with no word at 892 UNTS 119. In my opinion, we would thus have to look elsewhere for the appropriate citation. 

Doing it Right

How, then, should it be done? OSCOLA’s International Law Section gives the following order of preference for any international treaty: 1. Primary international treaty series, i.e. UNTS; 2. Official treaty series of one of the States parties, e.g. UKTS or USTS; and 3. Other international treaty series. While, absent a meaningful UNTS citation, it would thus be acceptable to use a domestic treaty series, this might not be particularly desirable. Since very few treaty series are internationally recognised, one would inevitably have to rely on the most prevalent collections from the US, the UK, or Australia. While this can make sense for authors or publications from these States, other authors might feel hesitant to perpetuate the predominance of these Western States, even if only in the way of referencing international treaties. 

The answer might lie with the documents of the 1945 United Nations Conference on International Organization in San Francisco. Both Charter and Statute were adopted there, and indeed, the documents contain the original copy of both in an easily accessible way. In Volume XV of the documents, the English text of the UN Charter starts on page 335; the Statute begins on page 355. Starting with the easier task, the Statute is easily referenced this way: XV UNCIO 355. While much less common than the abovementioned (wrong) citations, this is already represented in some public international law literature and is, in my opinion, the best way to cite the Statute.

While the Charter could also just be found at XV UNCIO 335, a full citation to take account of the amendments would be possible as follows: XV UNCIO 335, amendments in 557 UNTS 143, 638 UNTS 308 and 892 UNTS 119. Laudably, this is already the preferred citation according to the EJIL styleguide, though ‘1 UNTS XVI’ is still sometimes used in the journal. Alternatively, one could simply omit the citation for the UN Charter or refer to the official website (“available at https://treaties.un.org/”). This is in line with the Bluebook rules, which do not require a treaty source for founding documents creating a new international court or organisation (Rule 21.4). Moreover, a reader attempting to find the treaty in question will rarely go to their nearest library equipped with an international law section, look for the indicated volume of the United Nations Treaty Collection and open it on the specified page. Rather, they will simply google the treaty online. However, for treaties more obscure than Charter or Statute, the denominator in the reference serves to unambiguously reference the Treaty, and in the interest of uniformity and consistency, it would be irritating to only use specific denominators for less known Treaties.