Transcript International Legal Research What is international law?  Public international law: • Law that governs the relations between or among nations – Think UN, treaties  Private.

International Legal Research
What is international law?

Public international law:
• Law that governs the relations between or
among nations
– Think UN, treaties

Private international law:
• Concerns 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

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:
– 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

“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 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 (19811991)
• 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?
Treaties

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”

Definition applies to treaties, international
conventions, international agreements,
covenants, final acts, charters, protocols,
pacts, accords and constitutions for
international organizations
Treaties
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)
 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
1.
2.
3.
4.
5.
6.
7.
8.
9.
Secretary of State authorizes negotiation
US represenatives negotiate
Agree on terms, and upon authorization of
Secretary of State, sign treaty
President submits treaty to Senate
Senate Foreign Relations Committee considers
treaty and reports to Senate
Senate considers and approves by 2/3 majority
President signs instrument of ratification
Treaty enters into force based on terms of
treaty
President proclaims entry into force
How to Find Treaties

Bilateral treaty research in 5 steps
•
•
•
•
•
Does a treaty exist on the topic?
Find the text of the treaty
Who are the parties (bilateral or
multilateral) and what is the treaty’s
effective date?
Any subsequent modification to the treaty
(amendments or protocols)?
Is there any background information
available to help discern intent?
1. Does a treaty exist on the topic?

Use Treaties in Force to determine whether
or not there exists a treaty

http://www.state.gov/s/l/treaty/treaties/index.htm
Utilize the table of
contents feature to
skip ahead to
desired country
1. Does a treaty exist on the topic?

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


(Kavass) Current Treaty Index: A Cumulative
Index to the US Slip Treaties and Agreements
(Kavass) Guide to the US Treaties in Force

Both available through HeinOnline’s Treaties and Agreements library
Exercise #2

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

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
2. Locate the text of the treaty

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).
Exercise #2 cont’d

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

If it is a Senate-ratified treaty:
• Senate Treaty Documents andSenate Executive
Reports
– From 1995:
http://www.gpo.gov/fdsys/browse/collection.action?collec
tionCode=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?collec
tionCode=CPD