INTERNATIONAL LAWProfessor Lisa Smith-Butler

Advanced Legal Research

Fall 2014

WHAT IS INTERNATIONAL LAW?

• According to the Restatement (Third) of Foreign Relations Law, international law • “consists of rules and principles of general application

dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

From the Restatement (Third) of Foreign Relations Law, §101, American Law Institute, 1987 - 2011.

PUBLIC V. PRIVATE?

• Following the Restatement’s definition, there is public international law which involves the legal relations among sovereign states.

• Private international law, often referred to in the United States as Conflicts of Law, describes the “legal relations between and among individuals where the law of more than one nation may be involved.”

AN EXAMPLE OF PUBLIC INTERNATIONAL LAW: GATT

• GATT, the General Agreement on Tariffs and Trades, was signed in Geneva in 1947.

• GATT was signed to promote the lowering of trade barriers among member countries.

• “Under GATT, member nations were obligated to give ‘most-favored nation’ treatment to all goods originating in member countries.”• See Encyclopedia of Business, 2d ed., International Law, available at http://

www.referenceforbusiness.com/encyclopedia/Int-Jun/International-Law.html (visited November 5, 2014.)

PUBLIC INTERNATIONAL LAW: WHERE CAN I FIND IT?

• Since there isn’t a designated international executive, legislative, or judicial branch for international law, how do we locate sources of international law?

SOURCES OF PUBLIC INTERNATIONAL LAW

• According to 59 Stat. 1055 (1945), the definitive statement regarding the source of international law is Article 38(a) of the Statute of the International Court of Justice.

STATUTE 38

• According to the International Court of Justice, Statute 38, the primary sources of international law, applicable to sovereign nations and international organizations, are as follows:• international conventions and treaties;• customary international usage;• general principles of law of civilized nations;• judicial decisions of international and national tribunals.

• Secondary sources include scholarly writings such as textbooks and treatises.

INTERNATIONAL CONVENTIONS & TREATIES

• As we discussed previously, the U.S. provides access via several resources to both bilateral and multilateral treaties to which it is a party. For a more detailed discussion, review those class notes.

• Current U.S. treaties are initially published in the T.I.A.S (Treaties and Other International Agreements Series) as a pamphlet.

• They are then published, in chronological order, in a permanent series (bound volume) known as U.S.T. (United States Treaties and Other International Agreements.) They can be searched via chronology, country name or subject heading.

TREATIES

• Retrospective U.S. treaties can be found in:• Bevans, Treaties and Other International Agreements of the United States of

America, 1776 – 1949;• Statutes at Large (limited.)

INTERNATIONAL TREATY COLLECTIONS

• Additional international treaty collections include:• United Nations Treaty Series• League of Nations Treaty Series• Consolidated Treaty Series• Council of Europe Treaty Series• OAS Treaty Series

RESEARCHING LEAGUE OF NATIONS & U.N. TREATIES VIA UNITED

NATIONS

LEAGUE OF NATIONS TREATY SERIES

UNITED NATIONS TREATY SERIES

CONSOLIDATED TREATY SERIES

COUNCIL OF EUROPE TREATY SERIES

OAS TREATY SERIES

CUSTOMARY INTERNATIONAL LAW

• In order to demonstrate “customary” international law, custom, which is unwritten by definition, must be established.

• Custom can be established by checking some of the following documents:• “diplomatic correspondence;• advice of the legal advisor to the foreign ministry (i.e. the State Department

in the U.S.); or• general statements of policy on international legal questions.”

Barkan, supra, p. 438

PRINCIPLES OF GENERAL LAW

• This topic too, as does custom, presents difficulties.

• According to Barkan, it is actually easier to establish general principles of law with leading treatises and authors of secondary sources rather than with primary sources.

ADJUDICATIONS

• International Court of Justice• Created by the United Nations charter, this court is the major judicial organ

of the U.N.• It is composed of 15 justices who are selected by the U.N. General Assembly

and Security Council.• Headquarters are at the Peace Palace, The Hague, Netherlands. • Jurisdiction is either:

• voluntarily submitted to and agreed upon by parties; or• compulsory as when parties have made a declaration under Article 36(2) of the

Statute of the International Court of Justice to be bound by the Court’s jurisdiction.

WHAT DOES THE ICJ PRODUCE?

• Reports of Judgments, Advisory Opinions & Orders;

• Pleadings, Oral Arguments , Documents;

• Acts and Documents Concerning the Organization of the Court;

• Yearbook; &

• Bibliography

CASES

PENDING CASES

SECONDARY SOURCES

• Treatises

• Dictionaries & Encyclopedias (Max Planck)

• Journals

• Index to Foreign Legal Periodicals

• Yearbooks

CIAO

FOREIGN LAW GUIDE

HEINONLINE: FOREIGN LAW DATABASE & FOREIGN

RELATIONS

MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW

OXFORD CONSTITUTIONS OF THE WORLD

OXFORD REPORTS ON INTERNATIONAL LAW

VLEX

WEB SITES OF INTEREST

• Web sites, pertaining to the public aspect of international law, include:• ASIL (American Society of International Law)• Cardiff Index to Legal Abbreviations• EISIL (Electronic Information System for International Law produced by ASIL)• Europa (European Union)• GlobaLex• United Nations• Yale Law School Lillian Goldman Law Library Research Guide to Foreign,

International & Transnational Law Resources

ASIL

CARDIFF INDEX TO LEGAL ABBREVIATIONS

EISIL

EUROPA

GLOBALEX

UNITED NATIONS

YALE LAW SCHOOL GUIDE

LOOKING FOR THE LAW OF A PARTICULAR COUNTRY?

RESEARCHING PRIVATE INTERNATIONAL LAW

• In the U.S., this topic is often referred to as Conflict of Laws.

• Conflicts involves locating and applying the laws of differing countries to disputes between private individuals. This is one reason that a researcher may need to locate the laws of another country.

• A person may be anticipating doing business in another country. If so, they may need to research the laws of that country.

• Thus U.S. legal researchers may sometimes need to locate the law of foreign countries.

• Several reputable web sites exist that provide access to the laws of other countries.

• They include:• Cornell’s Legal Information Institute• Washlaw• Yale Law School, Lillian Goldman Law Library

CORNELL’S LEGAL INFORMATION INSTITUTE: WORLD LAW

WASHLAW

YALE

JUDICIAL BRANCH

• Remember that common law countries (Great Britain, the United States, Canada, Australia, New Zealand) developed their laws from the bench over several centuries. Thus judicial decisions are very important in common law countries.

• In civil law countries (Spain, France, Germany), legislation tends to be more more important than judicial decisions.

COMMON LAW: AUSTRALIA

COMMON LAW: CANADA

COMMON LAW: NEW ZEALAND

COMMON LAW: UNITED KINGDOM

LEGISLATION/CIVIL LAW/ FRANCE

CIVIL LAW: GERMANY

CIVIL LAW: ITALY

CIVIL LAW: SPAIN

CONCLUSION: CHECK OUT DUKE’S TUTORIAL