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International Materials 1

International Materials 1. Overview of Foreign, Comparative, and International Law Researching Treaties November 11, 2013. Introduction. In scholarship, often abbreviated as FCIL Foreign: the domestic laws of other nations Comparative: the study of differing legal systems

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International Materials 1

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  1. International Materials 1 Overview of Foreign, Comparative, and International Law Researching Treaties November 11, 2013

  2. Introduction • In scholarship, often abbreviated as FCIL • Foreign: the domestic laws of other nations • Comparative: the study of differing legal systems • International: international agreements laws spanning 2 or more national jurisdictions

  3. Why research FCIL? • Legal practice • Family law: child custody • Corporate law: global business requires knowledge of treaties, foreign laws • Increasing interest in internationalization in legal scholarship and teaching

  4. Types of Legal Systems • Common law: the Anglo-American system • Civil law: the most common system • Customary law • Domestic: derived from traditional practices or beliefs • International: practices of nations/intergovernmental organizations • Religious law: Islamic, Jewish, Canon, Hindu, Buddhist, Confucian • Hybrids of the above • Images at http://www.juriglobe.ca/eng/

  5. Civil Law • Based on Roman law, influenced by canon law and customary law of individual nations • Comprehensive system of rules and principles usually arranged in codes • Avoidance of excessive detail, so adaptable to change • Primarily legislative; judges’ role is narrow, as system designed to not need interpretation/discretion (though can happen if code vague/incomplete) • Academic writing has more influence than in common law system • Students learn by reading treatises, not through case analysis

  6. Comparison Common-Law System Civil-Law System Specialty courts, e.g. for commercial law Judges apply the law Judge participates throughout, doing fact-finding: holding series of hearings, questioning witnesses  inquisitorial • Courts of general jurisdiction • Judges interpret the law • Pre-trial interactions between parties (like discovery), then trial before judge  adversarial

  7. Websites and Sources for Civil Law • Federal Judicial Center, A Primer on the Civil-Law System: http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf • LSU Center of Civil Law Studies: http://www.law.lsu.edu/index.cfm?geaux=ccls.home • UC Berkeley, The Common Law and Civil Law Traditions: http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

  8. Foreign Law • The laws of other countries • To research, know the country’s legal system • If civil law, code research is less important than case research • If customary law, may need to look at secondary sources

  9. Foreign Law Resources • NYU’s GlobaLex: http://www.nyulawglobal.org/globalex/ • Research guides with background on legal system, links to texts • World Legal Information Institute: http://www.worldlii.org/ • HeinOnline: World Constitutions Illustrated

  10. Comparative Law • Study of different legal systems; not itself a legal system • Why study: • Globalization of trade and investment (are U.S. investment laws compatible with Country X’s?) • Joining of different countries (e.g., European Union)—harmonization • May help in researching customary law • Determine international norms on a given subject • Comparative law guides at GlobaLex

  11. International Law • Private international law • Public international law • Transnational law • Supranational law

  12. Private International Law • Governs the choice of law to apply when there are conflicts in the domestic law of different countries that relate to private transactions between individual parties • National laws are the primary sources of private international law • Deals with topics such as contracts, marriage and divorce, jurisdiction, recognition of judgments, child adoption and abduction, etc. • Can be found in public international law, such as Hague Convention dealing with child abduction

  13. Public International Law • Governs relationships between nations, intergovernmental organizations • Treaties and other agreements (conventions, protocols) • Customary law (legally recognized norms) • Research guides on GlobaLex

  14. Public International Law—Treaties • Bilateral: agreements between two parties • Multilateral: agreements between many parties • Office of Treaty Affairs at the U.S. State Dept. assists in drafting, negotiation, application, interpretation of treaties. Also serves as depositary for some multilateral treaties. • U.S. may sign a treaty, but won’t become U.S. law unless Senate ratifies with 2/3 majority vote (Const. Art. II, Section 2) • Entry into force: varies; date specified in treaty, or certain amount of time after parties ratify

  15. How to Work Around Senate • Memorandum of Understanding: document expressing intent of parties regarding cooperation on some matter • Example:http://www.whitehouse.gov/sites/default/files/Trilateral_Food_Security_MOU_FINAL.pdf

  16. Parts of a Treaty • The text of the treaty • The parties (their status) • Comments • Reservations • Understandings • Declarations • Modifications (updating) • Treaties in Force • Look at depositary’s website • UN treaty secretariats’ websites • Call Treaty Affairs @ State Dept.

  17. Finding U.S. Ratified Treaties • If treaty name and depositary is known, go to the website • If not known, start with index titled Treaties in Force • Law Library mezzanine @ KZ235 .G85 • Online @ State Dept. websitehttp://www.state.gov/s/l/treaty/tif/index.htm • HeinOnline Treaties and Agreements Library http://0-www.heinonline.org.library.uark.edu/HOL/Index?collection=ustreaties&set_as_cursor=clear • Narrow to Treaty Guides and Indexes • TiF updated annually, Jan. 1; for more current info go to the Treaty Affairs office site: http://www.state.gov/s/l/treaty/index.htm

  18. Bilateral treaties—India Multilateral treaties—Antarctic Treaty http://0-www.heinonline.org.library.uark.edu/HOL/Page?handle=hein.ustreaties/tif2012&collection=ustreaties&index=ustreaties/tif331&id=331

  19. Finding Text of U.S. Treaties • Online: search for name of treaty, go to depositary website • Citations • T.I.A.S. = Treaties and Other International Acts Series • U.S.T. = United States Treaties and Other International Agreements • KAV = Kavass • HeinOnline Treaties and Agreements Libraryhttp://0-www.heinonline.org.library.uark.edu/HOL/Index?collection=ustreaties&set_as_cursor=clear • Narrow to Treaty Publications (default)

  20. Finding Non-U.S. Treaties • WorldLII’s International Treaties Collection: http://www.worldlii.org/int/special/treaties/ • If you know the depositary, go to the website • Example: World Intellectual Property Organization http://www.wipo.int/wipolex/en/ • If you know a party, go to their website • Example: Canada http://www.treaty-accord.gc.ca/index.aspx

  21. Secondary Sources • HeinOnline • International and Non-U.S. Law Journals • Foreign & International Law Resources Database • Index to Foreign Legal Periodicals • WorldLII International Legal Scholarship Library • Westlaw Next: links to treatises and journals on International Materials • Books/Monographs: ABA Bookstore

  22. FCIL on WL/LX/BB • Bloomberg: no FCIL focus • Lexis: Browse Topics > International Law, International Trade Law • Westlaw Next: International Materials link on main page

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