Recommandé
Contenu connexe
Tendances
Tendances (20)
En vedette
En vedette (10)
Similaire à International Legal Research
Similaire à International Legal Research (20)
International Legal Research
- 1. International Legal Research Margaret Clark FSU College of Law Research Center March 2010
- 2. What we will cover Public International Law Sources of International Law Secondary Sources
- 3. Public International Law Public International Law Laws governing relations between nations and relations among international organizations, nations, and individuals. Private International Law Refers to law that governs interactions between citizens or private entities (such as companies)
- 4. Sources of Law Adapted from Marci Hoffman’s International & Foreign Legal Research.
- 5. Sources of Law Adapted from Marci Hoffman’s International & Foreign Legal Research.
- 6. Sources of International Law
- 7. Sources of International Law … international conventions … Statute of the International Court of Justice, Oct. 24, 1945, art. 38, 59 Stat. 1031
- 8. Sources of Law - Treaties Definition … 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; Vienna Convention on the Law of Treaties, 1969 Types of Treaties Bilateral Multilateral
- 10. Source of Law - Treaties Two elements to treaty research Finding text Authoritative? Most recent? 2. Determining Status Entered into force? Changed by subsequent protocols or amendments? Who are the current signatories? Does country in focus have any reservations?
- 12. UN Treaty Collection, EISIL
- 13. U.S. Income Tax Treaties
- 14. Government Collections
- 15. U.S. Treaty Series, U.S. Statutes-At-Large
- 17. Intergovernmental Organizations
- 19. U.N. High Commissioner for Human Rights
- 20. Non-governmental Organizations
- 25. Sources of Law - Treaties 2. Determining Status UN Treaty Collection: Status of Multilateral Treaties Deposited with the Secretary-General U.S. Treaties in Force
- 28. Treaties – Researching2. Determining Status
- 29. …international custom, as evidence of a general practice accepted as law; Statute of the International Court of Justice, Oct. 24, 1945, art. 38, 59 Stat.1031
- 30. International custom:Definition Under ICJ Statute Article 38(1)(b), “a general practice accepted as law” Restatement of the Law, Foreign Relations Law of the United States sec. 102(2) reads “Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” “…consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way." (Rosenne, Practice and Methods of International Law, p. 55)
- 31. Customary International Law: Basic elements “General Practice Accepted as Law” General and consistent state practice Practice occurs out of a sense of legal obligation Acts taken by a significant number of states
- 32. Customary International Law: Examples “non-refoulement”: norm that forbids the expulsion of a refugee into an area where s/he might be again subjected to persecution. Prohibition against torture Prohibition against genocide
- 33. Customary International Law Evidence of State Practice Records of diplomatic practice Domestic legislation Practice of IGOs Decisions of national and international courts Opinions of legal advisors Official military manuals Policy statements Comments by governments on ILC drafts
- 34. Customary International Law Research Strategy #1 Writings of scholars Treatises
- 35. Customary International Law Research Strategy #1 Writings of scholars Treatises Articles
- 36. Customary International Law Research Strategy #2 Primary sources of state practice are cited in uniquebackground sources of international law Digests
- 38. Customary International Law Research Strategy #2 Primary sources of state practice are cited in uniquebackground sources of international law Digests Yearbooks
- 40. The Australian Year Book of International Law Volume 24 Research Strategy #2 BACKGROUND SOURCES - Yearbooks
- 41. Customary International Law Research Strategy #2 Primary sources of state practice are cited in uniquebackground sources of international law Digests Yearbooks Restatements
- 43. Treatises
- 44. ArticlesResearch Strategy #2 Primary sources of state practice are cited in uniquebackground sources of international law Digests Yearbooks Restatements
- 45. … the general principles of law recognized by civilized nations. Statute of the International Court of Justice, Oct. 24, 1945, art. 38, 59 Stat.1031
- 46. General Principles of Law Fundamental concepts found in all major legal systems of the world once a matter has been decided in court, it can’t be decided again (res judicata ) can’t be judge in your case Agreements among nations should be kept (pactasuntservanta) Principles emerging out of international relations sovereign equality of states non-intervention
- 47. General Principles of Law Background sources Journal articles Bassioiuni’sFunctional Approach to General Principles of International Law 11 Mich J Int’l L. 786 Treatises Cheng’s General Principles of Law as Applied by International Courts and Tribunals. International and domestic decisions Domestic legislation
- 48. … judicial decisions … Statute of the International Court of Justice, Oct. 24, 1945, art. 38, 59 Stat.1031
- 50. Tools for finding cases Secondary Sources Reporters or Internet court sites Subject Specific Collections Case Digests
- 56. Tools for finding cases Secondary Sources Reporters or Internet court sites Subject Specific Collections Case Digests
- 57. ReportersIndividual Courts International courts and tribunals International criminal courts Regional courts Dispute settlement bodies
- 58. ReportersInternet Sites International Court of Justice Principal organ of the U.N. Jurisdiction: settle disputes among states and give advisory opinions (Art. 36 & 37) Decisions / Opinions of the ICJ Print - “Reports of Judgments, Advisory Opinions, Orders” Internet – ICJ web site
- 59. Tools for finding cases Secondary Sources Reporters or Internet court sites Subject Specific Collections Case Digests
- 60. ReportersSubject Specific Collections Human Rights Cases (Westlaw, Lexis) International Trade Law Reports International Environmental Law Reports Global War Crimes Tribunal Collection
- 61. Tools for finding cases Secondary Sources Reporters or Internet court sites Subject Specific Collections Case Digests
- 62. Search Browse
- 66. Tools for finding cases International Law Reports (ILR) In print only !! full text opinions in English Best source for finding recent decisions Best source for older decisions (1919 to present) KZ 199.I58 (1st floor of Library)
- 67. Tools for finding cases ILR– Index Volumes Treaty Index (treaties referred to in decisions reported in ILR) By date By subject By title Case Index (includes decisions of national court decisions and international tribunals) Alphabetically Jurisdiction
- 68. International Law Reports Treaty Index
- 71. … teachings of the most highly qualified publicists … as subsidiary means for determnination of rules of law. Statute of the International Court of Justice, Oct. 24, 1945, art. 38, 59 Stat.1031
- 72. Teachings of Publicists Most influential secondary sources include: Reports from UN International Law Commission International Law Association publications Restatement (3rd) of Foreign Relations
- 75. Secondary Sources Begin with Research Guides! .org .edu .gov
- 76. Find articles alphabetically Find articles by subject Find articles by author Quick and Advanced Search
- 77. Secondary Sources – Treatises Finding tools for treatises Online Catalog WorldCat IndexMaster www.law.fsu.edu/library
- 79. Secondary Sources – Treatises Examples of Treatises Human Rights: International Protection, Monitoring, Enforcement Oppenheim’s International Law Brownlie’s Principles of Public International Law
- 80. Secondary Sources – Journal Articles Legal Trac Index to Legal Periodicals Index to Foreign Legal Periodicals PAIS International Columbia International Affairs Online www.law.fsu.edu/library
- 83. Questions?
Notes de l'éditeur
- There is no one-stop shopping for a collection of all treaties, electronic or in print.
- There is no one-stop shopping for a collection of all treaties, electronic or in print.
- Specifically the ICJ statute states that the court shall apply international custom as “evidence of a general practice accepted as law”. Nations have been dealing with each other for a long time. Before nations are able to secure an explicit agreement in treaties, they rely on unwritten rules or norms to govern the conduct among themselves. In fact, for centuries this was the predominant source of law among nations. These unwritten rules develop and become accepted over time from the continuing and general practice of states.
- In this database, you can either browse or search. Use the browse feature if you know what you’re searching for or want to see what is available. To browse the digests [click],select Part II: US Law Digests from the BROWSE section on the left. Then scroll down and select a particular digest to see the range of years or volumes for that digest.
- A large collection of yearbooks are available in the Foreign & International Law Resources Database – the same database that we used to search for U.S. digests. [CLICK] But this time you’ll want to choose Part I: International Yearbooks and Periodicals. You can browse or search as we did before. Use the browse feature if you know what yearbook you’re searching for. Let’s browse the Chinese Yearbook of International Law and Affairs. Scroll down until you find the title you are looking for.
- Here are two examples of yearbooks. [click] You can see from the Australian Yearbook that you can find a discussion of that year’s important cases, legislation, and other developments dealing with international law, as well as state practice starting on pg 337. [click] Notice, too, the Canadian Yearbook covers state practice starting on page 317.
- Let’s switch gears to look at the third source : general principles of law recognized by civilized nations.
- In researching general principles, you’ll find that there’s a bit of overlap with some of the sources that are considered evidence of customary law. [click]You’ll want to look first in the background sources. [click] You can find excellent commentary in both journal articles [click] and treatises. A particularly good source is Cheng’s General Principles of Law as Applied by International Courts and Tribunals. Here you can find commentaries on a variety of general principles that have been recognized by international courts. [click] If these sources don’t provide the information you seek, then you may want to consult international and domestic court decisions [click] and domestic legislation. As with customary international law, you’ll want to cite to several court decisions and to a variety of domestic codes to show that the legal principle has been recognized widely as a general principle of law. The Cheng treatise mentioned on this slide is a particular helpful source in identifying judicial decisions that have relied on general principles.
- Journal offers Practical information for judges and lawyers in intl law. Where is it found electronically: WL, LX, ILPSearch for a known caseSearch for a case on specific issue
- Oxford Reports on International Law contains many of the ECHR cases from 2000 onward.Relatively new database; it acts very much like an electronic digest in that it allows you to focus in on a jurisdiction and on particular legal issues. Oxford Reports makes available 5 modules. We subscribe to only 4 of them. One of the modules is Intl HR Law and that is where you can search for ECHR cases. The database allows you to browse all 203 cases or to search.
- Why Secondary sources are important Explain terms of art Saves time – don’t reinvent the wheel Analyze / explain / comment on the law Provide references to primary sources Can be binding in the case of public international law and civil law jurisdictionsWhy Secondary sources are importantComment, analyze, explain, and describe the law: easier to understand to start here. Provides an overview of the area of lawOffers context for the legal issues you’ll encounterLeads to significant primary sourcesResearching is just easier if you start here because it’s easier to start w/ pertinent 2ndary source than with pertinent case/treaty