International Legal Research

What is international law? n Public international law: Law that governs the relations between or among nationsLaw that governs the relations between or among nations –Think UN, treaties n Private international law: Concerns disputes between private parties in which the laws, jurisdiction or court judgments of more than one jurisdiction or country are implicatedConcerns disputes between private parties in which the laws, jurisdiction or court judgments of more than one jurisdiction or country are implicated –Think conflict of laws, UNCITRAL, arbitration

Sources of International Law n Article 38 of the International Court of Justice statute states: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: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.

International Customary Law n “Consists of rules of law derived from the constant 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 wayBecause there are no international “laws”, per se, countries instead behave as if there were laws to require them to behave a certain way

Elements of customary law n n State practice n n Opinio juris n n Acts taken by a significant number of states and not rejected by a number of states

Where to find US Customary law n n Digest of US Practice in International Law In print: KZ237.7.D54 Online (documents only): n n Foreign Relations of the United States Online ( ONLY): Online ( ONLY): HeinOnline ( ) n n American Foreign Policy Current Documents ( ) HeinOnline n n Restatement (Third) of Foreign Relations Print: KF395.F613 A Lexis HeinOnline (in the American Law Institute library)

Exercise #1 n n As of 2009, what was the United States’ policy regarding visas and temporary admission for nonimmigrant aliens infected with HIV?

Treaties n Vienna Convention on the Law of Treaties defines a treaty as: “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”“an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” n Definition applies to treaties, international conventions, international agreements, covenants, final acts, charters, protocols, pacts, accords and constitutions for international organizations

Treaties n However, US distinguishes that the term “treaty” is reserved for an agreement made “by and with the advice and consent of the Senate” ( n However, US distinguishes that the term “treaty” is reserved for an agreement made “by and with the advice and consent of the Senate” (Article II, section 2, clause 2 of the Constitution) n n Whereas international agreements NOT submitted to Senate are termed “executive agreements”

Treaty or Executive Agreement? n n Treaty Submitted by the Executive branch to the Senate Ratified by 2/3 majority in the Senate n n 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 1. Secretary of State authorizes negotiation 2. US represenatives negotiate 3. Agree on terms, and upon authorization of Secretary of State, sign treaty 4. President submits treaty to Senate 5. Senate Foreign Relations Committee considers treaty and reports to Senate 6. Senate considers and approves by 2/3 majority 7. President signs instrument of ratification 8. Treaty enters into force based on terms of treaty 9. President proclaims entry into force

How to Find Treaties n Bilateral 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) and what is the treaty’s effective date?Who are the parties (bilateral or multilateral) and what is the treaty’s effective date? Any subsequent modification to the treaty (amendments or protocols)?Any subsequent modification to the treaty (amendments or protocols)? Is there any background information available to help discern intent?Is there any background information available to help discern intent?

1. Does a treaty exist on the topic? n Use Treaties in Force to determine whether or not there exists a treaty n

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

n If there is no TIAS number listed in Treaties in Force, or if you do not see the treaty you think should be there, consult the Kavass Indexes n (Kavass) Current Treaty Index: A Cumulative Index to the US Slip Treaties and Agreements n (Kavass) Guide to the US Treaties in Force n Both available through HeinOnline’s Treaties and Agreements library 1. Does a treaty exist on the topic?

Exercise #2 n What if Scaryair wants to start a service between the US and Albania? Is there any air transport agreement between those two countries?

2. Locate the text of the treaty n n Current official sources: United States Treaties and Other International Agreements (UST) (1950-) Treaties and Other International Acts Series (TIAS) (1946-) n n 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

n To locate full text, run a catalog search for the title of the series (i.e., United States Treaties and Other International Agreements) in which the treaty appears in and access it either in print or electronically (many can be found in HeinOnline’s Treaties and Agreements Library). 2. Locate the text of the treaty

Exercise #2 cont’d n Locate a copy of the treaty between Albania and the US on air transport services

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 n n If it is a Senate-ratified treaty: Senate Treaty Documents andSenate Executive Reports – –From 1995: tionCode=CDOC – –From 1980: HeinOnline Customary law sources Senate Foreign Relations Committee – – n n If it is an Executive Agreement: Customary law sources Weekly Compilation of Presidential Documents – –From 1992: tionCode=CPD