International Legal Research

What is international law?What is international law? Public international law:Public international law:

• Law that governs the relations between or Law that governs the relations between or among nationsamong nations– Think UN, treatiesThink UN, treaties

Private international law:Private international law:• Concerns disputes between private parties Concerns disputes between private parties

in which the laws, jurisdiction or court in which the laws, jurisdiction or court judgments of more than one jurisdiction or judgments of more than one jurisdiction or country are implicatedcountry are implicated– Think conflict of laws, UNCITRAL, arbitrationThink conflict of laws, UNCITRAL, arbitration

Sources of International LawSources of International Law

Article 38 of the International Court of Justice Article 38 of the International Court of Justice statute states:statute states:• 1. The Court, whose function is to decide in 1. The Court, whose function is to decide in

accordance with international law such disputes as accordance with international law such disputes as are submitted to it, shall apply: are submitted to it, shall apply:

– a. international conventions, whether general or a. international conventions, whether general or particular, establishing rules expressly recognized by the particular, establishing rules expressly recognized by the contesting states; contesting states;

– b. international custom, as evidence of a general practice b. international custom, as evidence of a general practice accepted as law; accepted as law;

– c. the general principles of law recognized by civilized c. the general principles of law recognized by civilized nations; nations;

– d. subject to the provisions of Article 59, judicial d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for publicists of the various nations, as subsidiary means for the determination of rules of law. the determination of rules of law.

International Customary LawInternational Customary Law

““Consists of rules of law derived from Consists of rules of law derived from the constant conduct of states acting the constant conduct of states acting out of the belief that the law required out of the belief that the law required them to act that way”them to act that way”• Because there are no international “laws”, Because there are no international “laws”,

per se, countries instead behave as if there per se, countries instead behave as if there were laws to require them to behave a were laws to require them to behave a certain waycertain way

Elements of customary law

State practice Opinio juris Acts taken by a significant number of

states and not rejected by a number of states

Where to find US Customary law Digest of US Practice in International Law

• In print: KZ237.7 .D54• Online (documents only): http://www.state.gov/s/l/c8183.htm

Foreign Relations of the United States• Online (1949-1976 ONLY):

http://history.state.gov/historicaldocuments• Online (1861-1958 ONLY):

http://digicoll.library.wisc.edu/FRUS/• HeinOnline (1861-1976)

American Foreign Policy Current Documents (1981-1991)• HeinOnline

Restatement (Third) of Foreign Relations• Print: KF395 .F613 A7 1987• Lexis• HeinOnline (in the American Law Institute library)

Exercise #1

As of 2009, what was the United States’ policy regarding visas and temporary admission for nonimmigrant aliens infected with HIV?

TreatiesTreaties Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties

defines a treaty as:defines a treaty as:• ““an international agreement concluded an international agreement concluded

between states in written form and governed between states in written form and governed by international law, whether embodied in a by international law, whether embodied in a single instrument or in two or more related single instrument or in two or more related instruments and whatever its particular instruments and whatever its particular designation”designation”

Definition applies to treaties, international Definition applies to treaties, international conventions, international agreements, conventions, international agreements, covenants, final acts, charters, protocols, covenants, final acts, charters, protocols, pacts, accords and constitutions for pacts, accords and constitutions for international organizationsinternational organizations

TreatiesTreaties

However, US distinguishes that the term However, US distinguishes that the term “treaty” is reserved for an agreement “treaty” is reserved for an agreement made “by and with the advice and made “by and with the advice and consent of the Senate” (consent of the Senate” (Article II, section 2, clause 2 of the Constitution)

Whereas international agreements NOT submitted to Senate are termed “executive agreements”

Treaty or Executive Agreement?

Treaty• Submitted by the Executive branch to the

Senate• Ratified by 2/3 majority in the Senate

Executive Agreement• Concluded solely by the Executive branch,

never submitted for Senate vote– Still has same force of law, major difference is

that there isn’t a lot of background on it

The Official Treaty-making process The Official Treaty-making process 1.1. Secretary of State authorizes negotiationSecretary of State authorizes negotiation2.2. US represenatives negotiateUS represenatives negotiate3.3. Agree on terms, and upon authorization of Agree on terms, and upon authorization of

Secretary of State, sign treatySecretary of State, sign treaty4.4. President submits treaty to SenatePresident submits treaty to Senate5.5. Senate Foreign Relations Committee considers Senate Foreign Relations Committee considers

treaty and reports to Senatetreaty and reports to Senate6.6. Senate considers and approves by 2/3 majoritySenate considers and approves by 2/3 majority7.7. President signs instrument of ratificationPresident signs instrument of ratification8.8. Treaty enters into force based on terms of Treaty enters into force based on terms of

treatytreaty9.9. President proclaims entry into forcePresident proclaims entry into force

How to Find Treaties

Bilateral treaty research in 5 stepsBilateral treaty research in 5 steps• Does a treaty exist on the topic?Does a treaty exist on the topic?• Find the text of the treatyFind the text of the treaty• Who are the parties (bilateral or multilateral) Who are the parties (bilateral or multilateral)

and what is the treaty’s effective date?and what is the treaty’s effective date?• Any subsequent modification to the treaty Any subsequent modification to the treaty

(amendments or protocols)?(amendments or protocols)?• Is there any background information available Is there any background information available

to help discern intent?to help discern intent?

1. Does a treaty exist on the topic?

Use Treaties in Force to determine whether Use Treaties in Force to determine whether or not there exists a treatyor not there exists a treaty http://www.state.gov/s/l/treaty/treaties/index.htmhttp://www.state.gov/s/l/treaty/treaties/index.htm

Utilize the table of contents feature to skip ahead to desired country

If there is no TIAS number listed in Treaties in If there is no TIAS number listed in Treaties in Force, or if you do not see the treaty you Force, or if you do not see the treaty you think should be there, consult the Kavass think should be there, consult the Kavass IndexesIndexes (Kavass) Current Treaty Index: A Cumulative (Kavass) Current Treaty Index: A Cumulative

Index to the US Slip Treaties and AgreementsIndex to the US Slip Treaties and Agreements (Kavass) Guide to the US Treaties in Force(Kavass) Guide to the US Treaties in Force

Both available through HeinOnline’s Treaties and Agreements libraryBoth available through HeinOnline’s Treaties and Agreements library

1. Does a treaty exist on the topic?

Exercise #2Exercise #2

What if Scaryair wants to start a service What if Scaryair wants to start a service between the US and Albania? Is there between the US and Albania? Is there any air transport agreement between any air transport agreement between those two countries? those two countries?

2. Locate the text of the treaty

Current official sources:• United States Treaties and Other International

Agreements (UST) (1950-)

• Treaties and Other International Acts Series (TIAS) (1946-)

Sometimes there will be no official citation, and often treaties will have varying citation forms, and might even have multiple parallel citations. The following chart lists what each of those citation stands for

To locate full text, run a catalog search To locate full text, run a catalog search for the title of the series (i.e., for the title of the series (i.e., United United States Treaties and Other International States Treaties and Other International AgreementsAgreements) in which the treaty ) in which the treaty appears in and access it either in print appears in and access it either in print or electronically (many can be found in or electronically (many can be found in HeinOnline’s HeinOnline’s Treaties and Agreements Treaties and Agreements LibraryLibrary).).

2. Locate the text of the treaty

Exercise #2 cont’dExercise #2 cont’d

Locate a copy of the treaty between Locate a copy of the treaty between Albania and the US on air transport Albania and the US on air transport servicesservices

3. Identify the parties and the effective date

Signed and entered into force on the same day

Six-month lag time between signature and entry into force; any incidents on, say, Jan 1, 2004 would not be covered by treaty

4. Any subsequent modifications

Note that amendments are located SEPARATELY from the original treaty and must be obtained individually to form complete legal effect of the treaty

Also note any “Notes” or other information that may change treaty’s legal effect

5. Background information If it is a Senate-ratified treaty:

• Senate Treaty Documents andSenate Executive Reports

– From 1995: http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CDOC

– From 1980: HeinOnline• Customary law sources• Senate Foreign Relations Committee

– http://foreign.senate.gov/ If it is an Executive Agreement:

• Customary law sources• Weekly Compilation of Presidential Documents

– From 1992: http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CPD