RESEARCHING FOREIGN AND INTERNATIONAL LAW: AN INTRODUCTION Advanced Legal Research April 19, 2013 Susan Gualtier Foreign, Comparative, and International Law Librarian [email protected] LSU Law Center BASIC CONCEPTS • Difference between “Foreign Law” and “International Law.” • International law governs the relationships of national governments across national boundaries. • For example, treaties governing human rights or international trade. • Foreign law is the domestic law of a foreign nation. • For example, the domestic laws of Italy or France. POTENTIAL OBSTACLES • Resources may not be available in English / researching in a foreign language • Translation issues: Is a translation accurate? Can it be considered “official”? • Terminology: for example, contract/torts v. obligations, or patent law v. industrial property law • This can be further complicated by translation issues; for example, “diritto industriale” in Italian refers to what we would call patent law • Abbreviations are very common and may be unfamiliar • Unfamiliar legal systems / differing legal structures • Types of sources that are unfamiliar • Examples: Italian massime (abstracts); the Hadith; the Talmud • Law may not be published comprehensively (for example, case law in Europe) • Law may not be written down (customary law) • Access: books may be hard to get; information (or reliable information) may not be available online THE RESEARCH PROCESS: A COMPARISON Research process in general… • Preliminary analysis • • • • • Jurisdiction • Relevant facts (who, what, when, where & why) • Legal issues • Words and phrases • Knowledge assessment (what do you know already?) • Background readings (secondary sources) Search for statutes (and regulations) Search for mandatory precedent Search for persuasive precedent Refine, double-check and update THE RESEARCH PROCESS: A COMPARISON The FCIL research process.... • Preliminary analysis • Determine whether you’re dealing with issues of foreign or international law • Determine what country, region, or international body is implicated • If dealing with foreign law, identify the type of legal system (common law, civil law, religious law, customary law, or mixed) • Analyze the relevant facts , if you have any • Define the legal issues • Identify important words and phrases, and do some investigation to find out whether the terminology might differ • Look up any abbreviations with which you might not be familiar • Do a knowledge assessment (what do you know already about this topic ?) THE RESEARCH PROCESS: A COMPARISON • Locate Primary Sources of Law • These won’t always fall into the categories of statutes and precedent, like they do in the U.S. • Use your background readings to point you to the ones you need • AFTER that, you can try doing searches for primary law • Refine, double-check and update, the same as in U.S. legal research • This can be much more difficult than in the U.S., where we have Shepard’s and Keycite • May need to more actively research whether something is still good law FOREIGN LAW: WHERE TO BEGIN • There is no one single way to research foreign law. • Each country is its own sovereign entity and has its own sources of primary and secondary law. • So, your first task is to learn about the country’s legal system and to determine how the system works. TYPES OF LEGAL SYSTEMS • There are five types of legal systems in the world today: 1. Civil Law Systems • The law is based on constitutions, statutes and codes, and regulations. • Secondary sources include court decisions and scholarly commentary. • Examples: France, Italy 2. Common Law Systems • The law is based on court decisions, as well as constitutions, statutes and codes, and regulations. • Scholarly commentary is a secondary source. • Examples: most of the U.S., U.K., and Canada TYPES OF LEGAL SYSTEMS 3. Customary Law Systems • The law is based on deeply rooted concepts and customs that have taken on the force of law over time. • Examples: Andorra • This is one of the most difficult areas to research, because the law is often simply understood and accepted by the population, without ever being written down or codified. • They are also very subjective and open to manipulation, and it can be difficult to pin down exactly what the laws are. 4. Religious Law Systems • The law is based on religious tenets and scripture. • Islamic law is probably the most common, but Judaic law and Christian law may also be encountered. • Examples: Saudi Arabia (Islamic Law) TYPES OF LEGAL SYSTEMS 5. Mixed Legal Systems • The law is a mixture of two or more of the previous four types of legal systems. • In mixed systems, the different types of law can either work together, or be at odds with each other (this is a problem, for example, when it comes to certain human rights issues.) • Examples: • Tanzania (mixed common, Islamic, and customary law) • Morocco (mixed civil and Islamic law) • And, of course, Louisiana (mixed civil and common law) DOING BACKGROUND RESEARCH • The first thing you need to do is identify the type of legal system with which you’ll be working. • JuriGlobe: University of Ottawa Legal Systems Website http://www.juriglobe.ca/ • Provides a breakdown of legal systems by country and is a good way to determine quickly what type of legal system a country has. DOING BACKGROUND RESEARCH • Next, you need to learn as much as possible about the country you are researching, their legal system, and the major sources of law. • Foreign Law Guide • Available through the LSU Law Library web portal, under Foreign/International Resources. • Provides background on each country, its legal system, its legal publications, and available sources in English translation. DOING BACKGROUND RESEARCH • You should also look at country- or region- specific books. • Many of the best resources in the area of foreign law are only available in print! • Run a catalog search to find books in the law school library. • Search the catalog at Middleton (main campus library.) • Use Worldcat.org to identify books that we can obtain for you through inter library loan. CLASS EXERCISE • Find me a country with a mixed legal system where Creole is spoken. Now, give me the name of their (current) official gazette. CLASS EXERCISE • The answer is the Republic of the Seychelles • • (Look on JuriGlobe under “Languages and Legal Systems” “Mixed Jurisdictions” “Creole”) Their current official gazette is the Official gazette/Republic of Seychelles. • (Look up the country profile for Seychelles on the Foreign Law Guide; then, scroll down to “Official Gazette” for the title.) IDENTIFYING SOURCES OF LAW • Aside from looking at books and at the Foreign Law Guide, you should rely on online research guides to direct you to reliable sources of law that are available online or in print. • Examples: • Globalex • http://www.nyulawglobal.org/globalex/index.html • Guide to Law Online (Library of Congress) • http://www.loc.gov/law/help/foreign.php • LibGuides • Research Guides From Other Law Schools OTHER RESOURCES IN FOREIGN LAW • Books on specific areas of law that are comparative in nature • Multi-jurisdictional sources, such as the International Encyclopaedia of Laws • Law review articles (U.S.) • Foreign journals • A few can be found in Westlaw and Lexis • More can be found in the HeinOnline International and Non-U.S. Law Journal Database • The Index to Foreign Legal Periodicals (IFLP), also hosted by HeinOnline, is accessible through a link on the Law Library’s home page and can help you to locate bibliographic information for articles and book reviews published in law journals around the world. You can then look for these in print or in another database. The index is multilingual and includes resources in many different languages. OTHER RESOURCES IN FOREIGN LAW • U.S. databases containing foreign materials • In Westlaw (case law, secondary sources, etc.) • Note this Westlaw Next glitch: the material has not been migrated to the new platform, so the link in Westlaw Next directs you back to classic Westlaw. This means that you cannot use the main search bar in Westlaw Next to search for foreign or international materials!!! • In Lexis (classic version) • In HeinOnline • International and Non-U.S. Law Journals • Canada Supreme Court Reports • International Law History • Revised Statutes of Canada • Treaties and Agreements Library • United Nations Law Collection • World Constitutions Illustrated • World Trials Library OTHER RESOURCES IN FOREIGN LAW • WorldLii • Primary law • Especially good for researching common law countries • Free! So you will always have access to this source in your future practice. • Other online database or websites that you will identify by referring to your background sources • Non-legal, academic databases • Academic Search Complete • JSTOR • Middleton Databases on specific non-legal topics A note on search syntax: remember that every database uses its own search syntax, and it may not be the same as what you’re used to using in Lexis and Westlaw. Be sure to check the “Help” sections of the databases or look for user guides to ensure that you are using the best search syntax – otherwise, you won’t get any results! SUMMARY OF FOREIGN LAW • To summarize, it is important to remember that there is no one size fits all approach to researching foreign law. • Learn about the country. • Do background research. • Identify the country’s primary sources of law, and realize that they may be quite different from the ones you are used to. • Be prepared for the possibility that sources will not be available in English translation. • Be creative. • Think outside of the legal framework and sources that you are used to, and don’t be afraid of print resources or non-legal resources. INTERNATIONAL LAW: BASIC TERMS • Public international law governs the relationships of national governments across national boundaries. • Human rights • International trade • International environmental law • Private international law governs the choice of law to apply when there are conflicts between the domestic laws of different countries relating to a private transaction between parties. • Contractual disputes • Family law issues such as adoption or child abduction • International arbitration and mediation FIVE SOURCES OF INTERNATIONAL LAW 1. Treaties • Bilateral (between two parties) • Multilateral (between three or more parties) 2. Custom • “Rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.” • Because there are no international “laws”, per se, countries instead behave as if there were laws to require them to behave a certain way. FIVE SOURCES OF INTERNATIONAL LAW 3. General Principals of Law • “Basic concepts of fairness and justice that are applied universally in legal systems around the world.” • For example, good faith, judicial impartiality, etc. 4. Judicial Decisions • For example, the ICJ (International Court of Justice) or ECJ (European Court of Justice) 5. Academic Writings FIVE SOURCES OF INTERNATIONAL LAW These five sources of international law are set forth in Article 38 of the International Court of Justice statute (the “ICJ Statute”), which is considered to be the most authoritative enumeration of the sources of international law. It states: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The full text of the statute is available on the ICJ website, under “Basic Documents – Statute of the Court”: http://www.icj-cij.org/homepage/index.php INTRODUCTION TO TREATY RESEARCH • A treaty is an agreement in written form between nation-states (or international agencies, such as the United Nations, that have been given treaty-making capacity by the states that created them) that is intended to establish a relationship governed by International Law. It may be contained in a single instrument or in two or more related instruments such as an exchange of diplomatic notes. Various terms have been used for such an agreement, including treaty, convention, protocol, declaration, charter, covenant, pact, act, statute, exchange of notes, agreement, and understanding. The particular designation does not affect the agreement's legal character. INTRODUCTION TO TREATY RESEARCH • The structure and rules of treaty making are set forth in the Vienna Convention on the Law of Treaties, the full text of which is available on the United Nations Treaty Collection website: • Main page: http://treaties.un.org/ • Vienna Convention Full Text: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf INTRODUCTION TO TREATY RESEARCH • The Vienna Convention was adopted on May 22, 1969 and opened for signature on 23 May 1969. • It entered into force on January 27, 1980. • It has been ratified by 113 states as of January 2013. • Some countries that have not ratified the Convention recognize it as a restatement of customary law and therefore binding upon them. • Most nations, whether they are a party to the Convention or not, recognize it as the preeminent "Treaty of Treaties,“ and it is widely recognized as the authoritative guide to the formation and effects of treaties. INTRODUCTION TO TREATY RESEARCH • Under the Vienna Convention, a treaty must be: 1. A binding instrument, which means that the contracting parties intended to create legal rights and duties; 2. Concluded by states or international organizations with treaty-making power; 3. Governed by international law; and 4. In writing. TREATY TERMS AND DEFINITIONS Signature: represents a state’s preliminary endorsement of a treaty. Signing a treaty does not create a binding legal obligation, but does demonstrate the state’s intent to examine the treaty domestically and consider ratifying it. It also obliges the state to refrain from acts that would defeat or undermine the treaty’s objective and purpose. • Also known as a “simple signature.” Ratification: the act through which, after signing a treaty, a state agrees to be legally bound by the terms of the treaty. To ratify a treaty, the State must fulfill its own national legislative requirements. After these requirements have been fulfilled, ratification instruments are exchanged. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, while in the case of multilateral treaties the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation. TREATY TERMS AND DEFINITIONS Definitive Signature: for treaties that do not require a separate ratification action, a “definitive signature” is sufficient to create a legal obligation under the treaty. A definitive signature is used by a state to express its consent to be bound by a treaty by signing the treaty, without the need for ratification, acceptance or approval. A state may definitively sign a treaty only when the treaty so permits. Accession: an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. TREATY TERMS AND DEFINITIONS Reservation: a statement by a country that modifies the terms of the agreement with regard to that country. • When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them. • If the state accepts the reservations (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other (accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty). • If the state opposes the reservations, the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. • Finally, if the state objects and opposes the reservations, there are no legal obligations under that treaty between those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all. TREATY TERMS AND DEFINITIONS • Why are reservations important? • Reservations may enable a state to participate in a treaty in which it would not be able to participate due to an unacceptable provision or provisions. • Multilateral treaties are the result of meticulous negotiations, and therefore require many concessions and compromises. • In many cases, the purpose of the reservation is merely to adjust the reserving state’s obligations under the treaty to conform to its domestic law where, for political, cultural or social reasons, it is not feasible or desirable to change the law. TREATY TERMS AND DEFINITIONS Declaration: a statement that declares a country’s understanding of a treaty or its interpretation of a particular provision. Unlike reservations, declarations merely clarify the state's position, and do not purport to modify the legal effect of a treaty. • Sometimes a country will submit a declaration that in some way modifies or excludes the legal effect of the treaty. In these situations, the title does not matter; only the effect is important. If a statement in any way purports to exclude or modify the legal effect of a treaty, it is a reservation and will be treated as such. Entry Into Force: the time at which a treaty takes on the force of law. • Typically, the provisions of the treaty determine the date on which the treaty enters into force, often at a specified time following its ratification or accession by a fixed number of states. • When a treaty enters into force, it does so only for those states that have given the required consent. TREATY TERMS AND DEFINITIONS State party: a state party to a treaty is a country that has ratified or acceded to that particular treaty, and is therefore legally bound by the provisions in the instrument. • Note that a country’s signature without ratification or accession is not enough to make it a state party. Amendment: a change to an existing treaty. • There are three ways in which a treaty can be amended: • First, formal amendment requires States parties to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and often some parties to the original treaty will not become parties to the amended treaty. • Treaties can also be amended informally by the treaty executive council when the changes are only procedural. • Changes in customary international law can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. PROBLEMS IN TREATY RESEARCH • Potential research questions that you may need to answer while doing treaty research can include: • Locating the text of a treaty, as well as any subsequent modifications (generally in the form of “protocols.”) • Obtaining party information. • Locating the text of any reservations and declarations. • Determining whether national implementing legislation is necessary and available. • Looking at the intent of the treaty by researching background documentation, such as negotiation or legislative history (“travaux préparatoires.”) • Do not confuse these last two. “Travaux préparatoires” refers to the work done during and up to the drafting and initial signing of a treaty. Legislative history and other documents surrounding work done after the signing of the treaty will generally fall under the category of national implementing legislation. LOCATING TREATIES Where can the text of treaties be found? • • Google • As always, Google can be unreliable. • Acronyms and popular names can make treaties hard to find. Subscription databases: • Westlaw, Lexis, and Hein Online all have good treaty databases and are available through the LSU Law Library website. • NONE of these are comprehensive. • Older treaties, bilateral treaties, non-US treaties, or very new treaties can all be harder to find. • • Sometimes the texts contained in these databases are unofficial texts. Be sure to look for PDFs of official texts that have the force of law. Treaty Collections, Indexes, and Databases RESEARCHING U.S. TREATIES The U.S. Treaty Making Process: Treaty Negotiation > Signature by the President or His Representative > Senate Committee > Senate Vote (2/3 Vote Needed) > Back to President for Ratification The U.S. distinguishes between “treaties” and “executive agreements.” • Treaty: made with the advice and consent of the Senate • Executive Agreement: never submitted to the Senate for approval However, under the definition contained in the Vienna Convention, BOTH of these types of agreements qualify as “treaties.” RESEARCHING U.S. TREATIES LexisNexis (1778 –current) Database: U.S. Treaties on LEXIS Legal > Area of Law - By Topic > International Law > Find Treaties & International Agreements > U.S. Treaties on LEXIS Class Exercise • Find: • The UN Convention Against Torture • • Full name: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The Convention on the Rights of the Child • Full name: United Nations Convention on the Rights of the Child • Commonly abbreviated as the CRC, CROC, or UNCRC RESEARCHING U.S. TREATIES Westlaw (1778 – current) Database: U.S. Treaties and Other International Agreements (USTREATIES) All Databases > International/Worldwide Materials > Multi-National Materials > Legislation > U.S. Treaties and Other International Agreements (USTREATIES) Westlaw Next (1778 – current) Database: U.S. Treaties and Other International Agreements International Materials > International/Worldwide Materials > Multi-National Materials > Legislation > U.S. Treaties and Other International Agreements RESEARCHING U.S. TREATIES HeinOnline - Treaties and Agreements Library (1778 - current) Databases: Treaties and Agreements Library (especially TIAS Agreements, U.S. Treaties and Other International Agreements (U.S.T.)) Department of State Treaty Affairs Office Databases: U. S. Treaties in Force Treaty Actions http://www.state.gov/s/l/treaty/ Thomas – Treaties (1967 - current) Information about treaties submitted to the Senate http://www.thomas.gov/home/treaties/treaties.html RESEARCHING U.S. TREATIES • Indexes: • US Treaties in Force (TIF) • http://www.state.gov/s/l/treaty/tif/index.htm • Also available on Westlaw and Lexis • Since TIF is only published one each year, you need to update the information you find there. Current information is available at: • State Department Treaty Actions: http://www.state.gov/s/l/treaty/c3428.htm • Thomas: http://thomas.loc.gov/home/treaties/treaties.html • United States Treaty Index • Published and available on Hein • Subject, chronological, and country indexes SOME FINAL NOTES ON U.S. TREATIES If you have a citation, especially to TIAS or U.S.T., then go directly to that source for the text of the treaty! • An example of how this information can be obtained from U.S. Treaties in Force: ENVIRONMENTAL MODIFICATION Convention on the prohibition of military or any other hostile use of environmental modification techniques, with annex. Done at Geneva May 18, 1977. Entered into force October 5, 1978; for the United States January 17, 1980. 31 UST 333; TIAS 9614. Depositary: United Nations Status: http://treaties.un.org/Pages/ParticipationStatus.aspx SOME FINAL NOTES ON U.S. TREATIES Also… Remember that even if a treaty has not been ratified, you still need to determine whether the ratification process might still be in progress! • Check the website of any international organization that is involved (for example, the UN.) • Check Senate information and treaty actions: • State Department Treaty Actions • Thomas (Senate information) • Depending on the topic of the treaty, consult relevant loose-leafs, periodicals, or series on the topic. NON-U.S. AND MULTILATERAL TREATIES What are some more general sources for researching treaties that are not limited to treaties where the United States is a party? • IGO (International Government Organization) treaty series • Treaty series from other countries (similar to the U.S.T.) • Country-specific publications (gazettes, statutory compilations, etc.) • Secondary sources (foreign journals, international yearbooks, loose-leafs, etc.) NON-U.S. AND MULTILATERAL TREATIES Working with IGO treaty series • The most well known example of an IGO treaty series is the U.N. Treaty Series (U.N.T.S.) (1946-Present), published by the United Nations: http://treaties.un.org/pages/UNTSOnline.aspx?id=1 • This is probably the best source we have for locating the text of multilateral treaties, whether or not the U.S. is a party. • However: remember that not all treaties are deposited with the U.N., and they therefore may not be published in the U.N.T.S. Therefore, other international and regional organizations publish treaty series as well, and you may need to look at those. • Example: Council of Europe Treaty Series (2004-Present) http://www.conventions.coe.int/ CLASS EXERCISE • Use the U.N.T.S. to find the following: • The text of the “Agreement of Lima.” • The text of the CEDAW. • All of the treaties to which Argentina is a party. • All of the treaties to which Argentina and Mexico are both parties. • All of the bilateral treaties between Argentina and Mexico. NON-U.S. AND MULTILATERAL TREATIES Also available in the U.N.T.S. is: • Signature, ratification, and accession information. • Information on declarations and reservations. • Status information. • Entry into force dates. Note: make sure that you stay within the “U.N.T.S.” sections of the U.N. Treaty Collection website. CLASS EXERCISE Go back to the CEDAW on U.N.T.S. • What is the date on which it entered into force? • Pursuant to what article of the treaty? • How many signatories are there? • How many state parties are there? • Has Turkey ratified the treaty? • Has Brazil ratified the treaty? • Has Brazil entered any reservations or declarations? NON-U.S. AND MULTILATERAL TREATIES Working with treaty series from other countries • When are country treaty series most useful? • Country-specific treaty series can be especially important when looking for the text of bilateral treaties to which the United States is not a party • But remember: • Not all countries have treaty series • Official series can be very slow to publish NON-U.S. AND MULTILATERAL TREATIES Don’t forget to check other country-specific sources, both primary and secondary. For example: • Official gazettes • Statutory compilations • Non-U.S. databases • Periodical literature • Examples: journals, international yearbooks • May publish information about new or in-progress treaties Use your country-specific research guides to locate where treaties may be published for your country of interest! SEARCHING INTERNATIONAL LAW BY SUBJECT: AN INTRODUCTION TO EISIL.ORG • Although it is not research guide, you may want to think of EISIL as another entry point to the research process (along with the Foreign Law Guide, Globalex, and university research guides.) SEARCHING INTERNATIONAL LAW BY SUBJECT: AN INTRODUCTION TO EISIL.ORG • Remember, however, that it consists entirely of links, with no text to serve as framing information. • Additionally, all references are to information that is available online. • This means that if you choose to use EISIL as a starting point, you still need to find some background information elsewhere to make sure that you have the full picture, including resources that are already available in print. SEARCHING INTERNATIONAL LAW BY SUBJECT: AN INTRODUCTION TO EISIL.ORG • What EISIL succeeds at is organizing online documents according to their subject matter. • Lists both primary documents and websites for: • Treaty Collections • Courts and Tribunals • Lists: • Online research guides • Professional and scholarly organizations • Other online resources that may provide you with background information or point you toward other primary sources SEARCHING INTERNATIONAL LAW BY SUBJECT: AN INTRODUCTION TO EISIL.ORG • EISIL also helps you to find courts and tribunals or international organizations that may be major players in relation to your topic. • Courts and Tribunals • International Organizations • Regional Organizations • IGOs • NGOs • All of these are listed under both the more general subject hearings (“General International Law,” “International Organizations,” and “International Dispute Settlement,”) as well as under the substantive subject areas to which they are relevant. CONCLUSION • Remember that the research process will be a bit different from U.S. law • Use more background sources and do more exploratory research • Use research guides and bibliographies that compile lists of reliable sources for you • Be willing to use both print and online sources • Don’t just Google everything – there are a lot of unreliable materials out there • On the other hand, where something is obscure enough not to be found through a typical source, you may need to rely in part on materials made available in other ways (so don’t rule out Google entirely) • Look things up: legal systems, terminology, foreign words, abbreviations, concepts, citation formats, publication names, anything that is unfamiliar to you • Remember that other countries may do things in a way that is very different from what we would expect – don’t assume that if you can’t find a parallel concept with U.S. law, the foreign country doesn’t have a way of dealing with the same issue • Ask the experts! Librarians, lawyers, and professors who work with international law or foreign legal systems may turn out to be some of your best resources!