Foreign and International Legal Research

Foreign and International Law Research

I.

II.
III.
IV.

V.

Foreign and International Law, Defined and Distinguished

A. Foreign
B. International
C. History of International
Basic Concepts of International Law
Sources of International Law
Researching International Law
A. International Law
B. Treaty Research
C. International Trade Law
D. International Organizations
E. Regional Organizations

VI.
VII.

Researching Foreign Law

A. Basic concepts
B. Resources
OQuinn Subscriptions
Free reliable online resources

I.

Foreign and International Law, Defined and Distinguished

A. Foreign v. International Law
a. Foreign law = law of the country.
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i. UK, U.S. and the Commonwealth (including India) are

Common Law countries
ii. Continental Europe, Asia, Middle East and Latin America
traditionally are Civil Law Countries. Some African
countries have mixed system, generally based on history.
iii. Some nations have their laws derived from Sharia, among
these are Saudi Arabia, Iran, Afghanistan, Libya and
Sudan.
b. Research requires access of foreign legislation, jurisdiction,
commentaries and scholarly work.
c. In contrast international law governs the relations between
countries.
B. International Law
a. International Law law that governs the relations between
countries
b. Public international law - governs the relationship between
states and international entities, either as an individual or as a
group. It includes specific legal fields such as treaty law, law of
the sea, international criminal law and international
humanitarian law.
c. Supranational law - Supranational law is a form of
international law, based on the limitation of the rights of
sovereign nations between one another. It is distinguished from
public international law, because in supranational law, nations
explicitly submit their right to make judicial decisions to a set of
common institutions.
European Community law' is the first and only example of a
supranational legal framework. In the EC, sovereign nations
have pooled their authority through a system of courts and
political institutions. They have the ability to enforce legal norms
against and for member states and citizens, in a way that public
international law does not.
d. Private international law (or conflict of laws) deals with the
resolution of conflict of laws in the international setting and
addresses the questions of (1) in which legal jurisdiction may a
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case be heard; and (2) the question which jurisdiction(s) laws

apply to the issues in the case.

C. History of International Law

a. Going back to the Roman Empire (ius gentium law of nations)
b. Becomes synonym for right of commercial transaction
c. With the Peace of Westfalia in 1648 sovereign States were
established and with it international law moved beyond the right
of commercial transaction into ius ad bellum (the Right to
wage war). In the following centuries this right was seen more
and more critical and as a result the League of Nations was
founded in 1919. The LON was the first permanent international
security organization whose principle mission was to maintain
world peace but it was not able to prevent Hitlers rise and World
War II. At the Tehran Conference in 1943 the Aliied Powers
agreed to replace the LON with a new organization the United
Nations.
d. In 1945 the United Nations were founded the doctrine of ius ad
bellum was renounced and International Law as we know it now
was manifested.
II.

Basic concepts in International Law

a.

Generally appears as Public International Law

b.

Signatory nation-states are equal.

c.

Signatory states are assumed to have control and

jurisdiction over their territories.

d.

Parties are mostly nation-states. Only with the

proliferation of international organizations in last
century, participants include international
organizations, multinational corporations, NGOs, IGOs
and even individuals.

A non-governmental organization (NGO) is a legally

constituted organization
created by natural or legal persons
that operates independently from any
government and a term
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usually used by governments to refer to entities that

no government status.

have

An intergovernmental organization, sometimes rendered as

an international
governmental organization and both
abbreviated as IGO, is an organization
composed
primarily of sovereign states (referred to as member states), or of
other intergovernmental organizations. Intergovernmental
organizations are
often called international organizations,
although that term may also include
international
nongovernmental organization such as international non-profit
organizations (NGOs) or multinational corporations.

III.

e.

The authority of international law largely depends upon

the voluntary participation of states in terms of
formulation, observance, and enforcement.

f.

In some areas such as trade and human rights, certain

judicial or quasi-judicial tribunals are available.

Sources of International Law

A. International conventions are generally referred to as treaties and
are written agreements between States that are governed by
international law.
B. Customary law - International custom or customary law is
evidence of a general practice accepted as law through a constant and
virtually uniform usage among States over a period of time. Rules of
customary international law bind all States. The State alleging the
existence of a rule of customary law has the burden of proving its
existence by showing a consistent and virtually uniform practice
among States, including those States specially affected by the rule or
having the greatest interest in the matter. Undisputed examples of rules of
customary law are (a) giving foreign diplomats criminal
immunity; (b) treating foreign diplomatic premises as inviolable; (c) recognizing the right
of innocent passage of foreign ships in the territorial sea; (d) recognizing the exclusive
jurisdiction of the flag State on the high seas; (5) ordering military authorities to respect

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the territorial boundaries of neighboring States; and (6) protecting non-combatants such
as civilians and sick or wounded soldiers during international armed conflict..

C. General principles of law General principles of law recognized by

civilized nations are often cited as a third source of law. These are
general principles that apply in all major legal systems. An example is
the principle that persons who intentionally harm others should have to
pay compensation or make reparation. General principles of law are
usually used when no treaty provision or clear rule of customary law
exists.
D. Writings of the most highly qualified scholars see for more at
http://www.un.org/law/avl/
E. Case law from international and national courts as far as they
rule on international legal issue (discussion of stare decisis in
international law)
No hierarchy among the first three sources; D and E are considered
subsidiary see http://www.icj-cij.org/documents/index.php?
p1=4&p2=2&p3=0#CHAPTER_II

IV.

Researching International Law

The following is an overview on where and how to research international
issues and organizations.

The American Society of International Law (ASIL) is probably the most

respected organization on the study of international law. ASIL is a nonprofit,
nonpartisan, educational membership organization founded in 1906 and
chartered by Congress in 1950. The Society's 4,000 members from nearly
100 nations include attorneys, academics, corporate counsel, judges,
representatives of governments and nongovernmental organizations,
international civil servants, students and others interested in international
law.
If you could have only one source, use the EISIL database.
Their electronic research tool is EISIL which can be accessed at
http://www.eisil.org/
A. International (Public) Law
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Introduction to Public International Law Research from 2010 on

GlobaLex by Vicenc Feliu at
http://www.nyulawglobal.org/globalex/Public_International_Law_Rese
arch1.htm
GlobaLex is an electronic legal publication dedicated to international
and foreign law research. Published by the Hauser Global Law School
Program at NYU School of Law,
B. Treaty Research
a. What is a treaty?
In Article 2 I (a) the Vienna Convention on the Law of Treaties defines
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.
b. How are treaties negotiated? What is the difference between a treaty
and an executive agreement?
Treaties are negotiated by national representative and often times
signed at an International Conference. However, a nation is not bound
to this agreement unless the agreement has been ratified by the
national body defined by the nation. Following this the terms of the
treaty will enter into force, bit necessarily when the treaty was signed
or even ratified but it enters into force on the date the parties agreed
upon.
An international agreement is sometimes confused with a treaty, but
being executive in nature they can be approved with a simple majority
of both houses of Congress or may not even have to be submitted for
approval. They are often preferred by various parties because a
consensus can be obtained easier (2/3 majority in Senate can be very
difficult to achieve).
Outline of the treaty making process:

Secretary of State authorizes negotiation

U.S. representative negotiate

Agree on terms, and upon authorization of Secretary of State, sign

treaty

President submits treaty to Senate

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Senate Foreign Relations Committee considers treaty and reports to

Senate

Senate considers and approves by 2/3 majority

President proclaims entry into force, possible with a different date

then the signatory date

Outline of the agreement making process:

Secretary of State authorizes negotiation

U.S. representative negotiate

Agree on terms, and upon authorization of Secretary of State, sign

agreement (there are three types of agreements. Agreements
based on the Presidents Constitutional authority (executive
agreements), agreements pursuant to legislation or CongressionalExecutive agreement, and agreements pursuant to treaty
(authorization is based on a treaty previously ratified by U.S.).

Agreement enters into force on the stated date, maybe later

President transmits agreement to Congress(pursuant to CaseZablocki Act

(http://www.law.cornell.edu/uscode/html/uscode01/usc_sec_01_000
00112---b000-.html)

c. Treaties to which the US is a member

d. Treaties to which U.S. is not a member
C. International Trade Law
International trade law is the mixture of domestic or national law and
public international law that applies to transactions for goods or
services that cross national boundaries
The major organizations are:
1. UNCITRAL (United Nations Commission on International Trade Law,
The United Nations Commission on International Trade Law
(UNCITRAL) was established by the General Assembly in 1966 (
Resolution 2205(XXI) of 17 December 1966). In establishing the
Commission, the General Assembly recognized that disparities in
national laws governing international trade created obstacles to the
flow of trade, and it regarded the Commission as the vehicle by
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which the United Nations could play a more active role in reducing
or removing these obstacles.
2. WTO (World Trade Organization).
The World Trade Organization (WTO) is the only global international
organization dealing with the rules of trade between nations. At its
heart are the WTO agreements, negotiated and signed by the bulk
of the worlds trading nations and ratified in their parliaments. The
goal is to help producers of goods and services, exporters, and
importers conduct their business.
3.

OECD (Organisation for Economic Co-Operation and Development)

OECD brings together the governments of countries committed to
democracy and the market economy from around the world and
provides a setting where governments compare policy experiences,
seek answers to common problems, identify good practice and
coordinate domestic and international policies.

D.

International Organizations

Best basic resources are these organizations websites.

1. United Nations
2. International Criminal Court
3. International Court of Justice
E. Regional Organizations
There are a number of regional organizations. Some of them are:
1. European Union
2. NAFTA
3. Asia-Pacific Economic Cooperation (APEC)
4. African Union

V.

Researching Foreign Law

A. Basic concepts
a. UK, U.S. and the Commonwealth (including India) are Common Law
countries
b. Continental Europe, Asia, Middle East and Latin America traditionally
are
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Civil Law Countries. Some African countries have mixed system,

generally based on history.
c. Some nations have their laws derived from Sharia, among these are
Saudi Arabia, Iran, Afghanistan, Libya and Sudan.
d. Great resource: Foreign law : current sources of codes and
basic legislation in jurisdictions of the world / Thomas H.
Reynolds, Arturo A. Flores available as an online tool through
the drop down menu on the law Libraries main page or .R49
(Reference)
B. Resources
a. Library of Congress Global Information Network (GLIN)
b. Library of Congress Global Legal Monitor (GLM)
c. Library of Congress Guide to Law Online
d. American Society of International Law (ASIL) World Dictionary of
Legal Abbreviations (Reference K89 .W67 2002)
VI. OQuinn Subscriptions
Start with a search in the library catalog! We have excellent resources
available and the fastest way to find them is with a search in the online
catalog.
In addition to the Foreign Law Guide, there are several important foreign and
international law sources provided by OQuinn Law Library. All are available
via a drop-down menu called Legal Databases
(http://www.law.uh.edu/libraries). One can access them off campus via Law
Library VPN (http://www.law.uh.edu/libraries/LawLibrary1.htm).
A. Foreign Law Guide
Reynolds, Thomas H. & Arturo A. Flores, Foreign Law Guide, is an
indispensable resource that is designed to locate primary sources of
legislation for foreign jurisdictions. For each country there is a brief
introduction to the legal system, a list of codifications, gazettes and
other sources of law and then a section listing sources of law by
subject. There are citations to materials both in the vernacular and in
translation. This is the best place to start when you are looking for
statutes of another country. The electronic version is available by
subscription only, and must be accessed from a computer on the Duke
Law network. The print version, Foreign Law: Current Sources of Codes
and Basic Legislation in Jurisdictions of the World (Ref. K38 .R49 1989),
is updated through 2007.
B. Columbia International Affairs Online (CIAO)
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C. BNA International Trade Reporter

D. LawInfoChina
E.

Hein Online. Several of the databases by this vendor cover

international material:
1. English Reports, Full Reprint (1220-1865)
2. European Center for Minority Issues
3. Philip C. Jessup Library; great for preparation for the International
Law Moot Court Competition.
4. Treaties and Agreements Library: including official treaty
publications, unofficial treaty publications, treaty guides and indexes,
books, and important links.

F.

United Nations Treaty Collection.

G. Index to Foreign Legal Periodicals.

H. Kluwer Arbitration
VII. Free reliable online resources
The resources listed here often cover both international as well as foreign
legal research.

Wex (Cornell University Legal Information Institute) offers articles on

International Law and International Trade. Wex is a free legal
dictionary and encyclopedia sponsored and hosted by the Legal
Information Institute at the Cornell Law School. Wex entries are
collaboratively created and edited by legal experts.

New York University presents

Globalex

NYU School of Law has a page Guide to Foreign and

International Legal Databases at

HG.org founded by Lex Mundi, two databases especially relevant for

research:
o

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Law Related Articles written by attorneys and legal experts;

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Worldwide Law - for each country in the list, this website tries to
provide four links.

European Union Research see website eurlex