BEGINNER'S GUIDE TO RESEARCH IN INTERNATIONAL FAMILY LAW

Executive Summary

  1. Objectives of this Guide
  2. First, check Secondary Sources and Research Guides
  3. Sources of International Law
  4. Treaties - finding the text and associated documents
  5. Custom
  6. General Principles of Law - Foreign and Comparative Law
  7. Judicial Decisions
  8. Teaching of Publicists

  1. Objectives of this Research Guide
    1. This Research Guide is designed to provide a starting point and strategy for research in the area of International Family Law. Because of the breadth and overlapping nature of the resources, research in Foreign and International Law can be daunting to the beginner. The objective of this Research Guide is to provide an introduction to the incredible breadth of resources in Foreign and International Law to a beginner. It also provides references to more indepth and sophisticated research explanations and resources.


    2. What this Research Guide will not do
      Because this Research Guide is designed as an introduction, it will not go into detail regarding research resources or content. It intentionally simplifies processes, such as the Treaty process, and resources. It is not a comprehensive research guide or bibliography, of which there are many excellent examples both in print and on the Web.

      See, for example, Annotated Selection of Websites for International Family Law Research

  1. First place to start for this – and any legal research topic – SECONDARY SOURCES
    1. Why start with secondary sources (stuff to help you find the law, as opposed to “The Law”)
      • Explain unfamiliar areas, give references to primary sources (“the law”), introduce terminology necessary to further research
    2. Finding Secondary sources
      • Look in Family Law in the World Community : Cases, Materials, and Problems in Comparative and International Family Law by D. Marianne Blair et. al. c2009.
      • Look in research guides – see LLRX International Family Law - http://www.llrx.com/features/int_fam.htm
      • Library catalogs, such as Lexicat (Hofstra), Worldcat
      • try keyword search – “international and family and law “
      • Journal Articles – Index to Legal Periodicals (ILP), Foreign Index to Legal Periodicals (FILP), Lexis and Westlaw (not all journals are available on Lexis and Westlaw)
      • Bibliographies – Szladits’ Bibliography on Foreign and Comparative Law (covers only books since 1991) is one example

    3. When all else fails
      Remember LEGAL RESEARCH GUIDES!!! (not just for this subject, but for any topic). There are many available on the Web and in print. Try to find one specific to your subject (int’l family law, but if not, then broaden to Foreign and International law.)

  1. Sources of International Law
    The sources of international law are found in Article 38(1) of the Statute fo the International Court of Justice, which states:

    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.

  1. Treaties – usually the place to start when trying to determine the “international law” in an area – will be determinative, if one exists. “Treaties have become the single most important means by which nations regulate their relations with each other.” 1 Treaties may also apply to the relations between nations and individuals – most notably, in human rights.
    1. Process of forming a treaty (quick and oversimplified review)
      1. Adoption and signature – nations agree upon the language and representative sign
      2. Ratification – the individual signatories agree to be bound (frequently in national legislature)
        • Ratification process in the United States
          1. US Constitutions requires 2/3 vote of Senate for ratification.
          2. President sends the treaty, any reports of Department of State, etc to the Senate in Senate Treaty Documents
          3. The Senate Foreign Relations Committee considers treaty, holds hearings - Senate Hearing - and issues report with recommendations - Senate Executive Report
          4. For the status of a Treaty in the ratification process, go to Treaty Status at Thomas - Treaties page.
          5. If Senate passes resolution by 2/3 vote, the President ratifies treaty and issues a Presidential Proclamation
        • a nation which is not a signatory may agree to be bound after the signing – this known as accession
        • a treaty may be ratified in individual nation with Reservations – which exclude or change legal effect of certain provisions
        • nation may make other statements regarding treaty, such as Understandings
        • nation may make Declarations – intention of party in applying terms
        • negotiators who drafted treaty may include Protocols - additions to the text of treaty to explain provisions

3.       Legislative History of treaties – the considerations and documents produced leading up to the signing of the treaty – know as “ travaux pre'paratoires

 

    1. Finding Treaties text, status, and associated documents (Reservations, Understandings, Declarations - "RUDs")

1.      UN Treaty database – http://untreaty.un.org/  

    contains treaties of member states registered with UN. While this database does not contain every treaty, it is best place to start, if available.  This database is updated weekly and will also contain ratification status,  RUDs and protocols.

 

2.      Westlaw – USTREATIES (1778-)database (subscription)

    USTREATIES contains text of treaties to which the U.S. is a party, Senate Treaty Documents (the text of the treaty and other documents as transmitted from the President to the Senate) and some U.S. State Department documents regarding the treaty.


      Lexis - U.S. Treaties on Lexis (1776-current)database (subscription)

    U.S. Treaties on Lexis contains full-text ratified and unratified treaties and international agreements, where the United States is a party. For other treaties on Lexis, see Legal > Area of Law - By Topic > International Law > Treaties & International Agreements .

 

3.      Major websites – try a web search engine for major treaties.
Remember to think about the reliability of the website. Anyone can put up text and mischievously revise it. Official sites, like the UN, or known and trusted sites like Westlaw will be more reliable then unfamiliar organizations or personal sites.


4.       print sources of treaties – always check library catalog, for treaty name, since many major treaties are published separately or in compilations.

·         series for treaties in which the U.S. is a party
United States Treaties and Other International Acts (UST ); Treaties and Other International Agreements (TIAS);   Treaties and Other International Agreements of the United States of America, 1776-1949 (Bevans), Consolidated Treaties & International Agreements (CTIA, current treaties)


·         series for treaties in which the U.S. may or may not be a party
International Legal Materials (ILM); United Nations Treaty Series (UNTS, 1947-date); League of Nations Treaty Series (LNTS, 1920-1946); Consolidated Treaty Series (1648-1919), various regional international organizations, such as the European Union (European Treaty Series)

 

                        5.  Indexes for Treaties (will give references to full text sources)

·         U.S. is a party

    ·         Treaties In Force ( and Guide to Treaties in Force) – will include ratification status, RUDs

    ·         U.S. Treaty Index and Current Treaty Index -  will include ratification status, RUDs


·         U.S. may not be a party

    ·         World Treaty Index

    ·         Multilateral Treaties: Index and Current Status (Bowman and Harris)


6.       Ratification process documents – will depend upon country – for U.S.

·         Senate Treaty Documents (proposed treaties signed by U.S. and transmitted to the Senate) can be found at GPO Access - http://www.gpoaccess.gov/serialset/cdocuments/index.html , LexisNexis Congressional (subscription) - http://web.lexis-nexis.com/congcomp/, USTREATIES on Westlaw (subscription - which also has selected documents of U.S. State Department) and other U.S. legislative history sources

·         Senate Executive Reports (analysis and recommendations of the Senate Foreign Relations committee regarding approval of the treaty) can be found at GPO Access - http://www.gpoaccess.gov/serialset/creports/index.html and LexisNexis Congressional (subscription) - http://web.lexis-nexis.com/congcomp/

·         For the status of a Treaty in the ratification process, go to Treaty Status at Thomas - Treaties page.

·         Presidential Proclamation can be found in the Federal Register and Code of Federal Regulations

 

    1. Finding legislative history and travaux preparatoires of treaties

·         Look in Treatises, separate publications of treaties – search in catalog for “travaux preparatoires  or “legislative history” with name of treaty

·         Journal articles - search in law review indexes (see above, section 2b)

·         Relevant Organizations' websites and publications

 

  1. Custom

According to the Restatement of the Foreign Relations Law, “[c]ustomary international law results from a general and consistent practice of states followed by them [those states] from a sense of legal obligation.” (sec. 102(2))

 

Treaties may codify custom. Sources of Custom are:

a.       Digest of a nation’s practice – Digest of United States Practice in International Law

b.       Yearbooks – e.g. Yearbook of European Law

c.       Restatement of the Foreign Relations Law (unofficial source)

 

  1. General Principals of Law - Foreign and Comparative Law

  2. General principles of law are derived from the rules and practices observed by the vast majority of nations as part of their local national laws.
    1. Laws of foreign jurisdictions

·         check with Library

·         Legal Information Institute

·         Guides – Modern Legal Systems Cyclopedia, Constitutions of the Countries of the World, Foreign Law: Current Sources of Codes and Legislation, Szladits’ Bibliography on Foreign and Comparative Law

    1. Comparative Law

·         International Governmental Organizations (e.g. United Nations, European Union, Organization of American States; and Non-Governmental Organizations - see, e.g. NGO Research Guide

·         treatises, articles, encyclopedias – International Encyclopedia of Comparative Law

 

  1. Judicial Decisions
    1. International Court of Justice (ICJ) - http://www.icj-cij.org/,   Cornell Law Library, Westlaw
    2. National court decisions  interpreting treaties and other application of international law  (for U.S. look for International Law topic and key numbers)
    3. Other international and regional tribunals  (e.g. war crimes tribunals, European Court of Human Rights, Inter-American Court of Human Rights, World Trade Organization, International Criminal Court)

  1. Teaching of Publicists – respected treatises

See, e.g. Encyclopedia of Public International Law

 

back where we started – Secondary Sources


  1. Recap and summary

·         Secondary sources, research guides

·         Sources of International Law

·         TreatiesUN web site – don’t forget to look for ratification, and RUDs and interpretations by national courts and legislatures

·         Custom

·         General Principals of Law - Foreign and Comparative Law

·         Court Decisions

·         Teachings of Publicists

·         Look to IGOs and NGOs for sources of all of the above

 


AND DON’T FORGET YOUR FAVORITE LIBRARY CATALOG AND YOUR FAVORITE WEB SEARCH ENGINE
1 D. Marianne Blair & Merle H. Weiner, Family Law in the World Community : Cases, Materials, and Problems in Comparative and International Family Law 102 (2003)

Quick Links1









1 See also, Annotated Selection of Websites for International Family Law Research.

2 Recommended

Ernie .
http://people.hofstra.edu/staff/lisa_a_spar/intlfam/intlfam.htm.
This page created and maintained by Lisa A. Spar.
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