Mini-Lesson: Foreign Legal Research
How many sovereign jurisdictions (nation states or equivalent) are there? What constitutes a sovereign jurisdiction? Excellent questions.
Free internet sites have some insight. Wikipedia’s List of Sovereign States has 207 entries as of April 11, 2012, including 193 member states of the United Nations. As of July 13, 2011, the Wikipedia editors were aware of the newly-formed nation state of South Sudan and were waiting a press release or announcement (published on July 14, 2011) from the United Nations to add the new state to the list. The 192 member nations (states) of the United Nations have agreed to abide by the U.N. Charter, a fundamental document of the international law regime. Recognition by other states, especially but not exclusively as evidenced by U.N. membership, is a key aspect of establishing the legitimacy of a newly formed nation state (or a successor state, as occurred during the breakup of the former Soviet Union). South Sudan was recognized by the United States, Britain, France, Russia, China, and nine other significant nation states as of July 9, 2011.
Besides recognition by other states or prospective declaration by the newly-formed state, most legal sources seem to derive the modern test of state from the (Montevideo) Convention on Rights and Duties of States (1933). Article 1 identifies the qualities of a state: ” a) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states. ” Although this was (only) an Inter-American convention signed by 19 countries, the authors of several international law treatises have argued that the Convention reflects customary international law principles. The European Union also embraced the definition of state in its Badinter arbitral opinions. (Grant, Defining Statehood… 37 Colum. J. Transnat’l L. 403 (1998-1999), at 440-441). Thomas D. Grant bemoans the lack of explanation for the Montevideo Convention’s criteria, while listing over twenty author who cite to the convention “nearly as a reflex” and additional sources that repeat the state criteria without attribution. He concludes that the lack of discussion indicates a consensus among the major scholars of the era, albeit not an absolute one. (Grant, at pp. 414-418) CWRU Law patrons (and other subscribers) may access a more in-depth article from the Max Planck Encyclopedia of Public International Law on the rights and duties of states.
Foreign/International Law Distinctions
There is a distinction between the concepts of foreign and international law. In the United States, foreign law is the body of law of another sovereign nation-state (“state”). Public international law governs the relations among the states of the world. (Cynics may argue that realpolitik, military power, and economic influence hold equal or more sway.) Traditionally, public international law governs the relationship among nations. Classic examples of public international law include the prosecution of Nazi war criminals (at least the non-scientists) at Nuremberg and boundary disputes adjudicated before the Court of International Justice, with the consent of the states involved. Private international law is the “body of conventions, model laws, legal guides, and other documents that regulate private relationships across national borders.” Thus, international trade issues, such as those governed by the World Trade Organization fall under the private international law regime. The Statute of the International Court of Justice (Article 38) defines international law as “international conventions, international custom, general principles, judicial decisions, and the teachings of the most highly qualified publicists of various nations.”
Today, international law includes the law of international relations, embracing not only nations, but also international organizations, multinational corporations, nongovernmental organizations, and even individuals. Transnational law refers to the amalgam of common principles of domestic and international law, including problems arising from agreements made between sovereign states and foreign private parties. Comparative law (jurisprudence) is defined as the scholarly study of the similarities and differences between the legal systems of different jurisdictions. (Black’s Law Dictionary, 7th ed., 1999).
The nature of one’s inquiry is relevant to the research undertaken. For example, a U.S. attorney dealing with a foreign legal dispute of major consequence will most likely have to retain foreign counsel and work almost exclusively with primary sources in the vernacular or official (authorized) translations thereof. The academic researcher may, at time, more freely avail herself of translations in English or another “accessible” language.
The domestic law of sovereign states (“foreign law” to the U.S. reader) is intricately involved with international law in a variety of ways. Perhaps the pinnacle of international law efforts so far, the International Criminal Court, does not have a police force to apprehend the suspects its prosecutor indicts. A state that has abolished the death penalty may be willing to facilitate the surrender of a suspect to the ICC, knowing that the death penalty will not be imposed. Due to the complementarity principle, the state may prosecute the suspect in its own domestic courts, as an alternative. Likewise, the more official state-to-state transfer of criminal suspects, usually by means of an extradition treaty, may specify that the death penalty be off the table for the extradition to occur.
The states of the world typically fall in to one of the following legal systems: common law, civil law, Muslim law, customary law, and mixed systems. The University of Ottawa’s JuriGlobe website maintains an interactive world map of the states’ “legal patrimony”, as well as bibliographic references about each legal system. Examples of common law states (nations) and the United Kingdom, United States, and Australia. Examples of civil law systems, with historical roots in Roman law, include most of Europe (Spain, France, Germany, etc.) and major portions of South America. According to JurisGlobe, only Afghanistan, Saudi Arabia, and the Maldives Islands are purely Muslim nation states. Pakistan and Singapore are examples of mixed Muslim and common law legal systems. Iran, Iraq, Libya and Syria are examples of mixed Muslim and civil law nation states.
The bromides relevant to the two most extensive legal systems are that the common law systems depend on precedent (stare decisis) with respect to court opinions (“case law”/”judge-made law”), whereas civil law systems do not. Civil law systems traditionally rely on elaborate codes in various subject areas (property, commercial law, criminal procedure, etc.) that were painstakingly created, usually with influences from the law of one or more foreign countries, by the leading legal scholars of the day. Such elaborate, detailed codes (not to be confused with the U.S. Code, which compiles U.S. federal statutes by topic), rather than past judge-made court decisions, are to govern each (new) litigation in the respective civil law country. (Of course, such a standard does not prevent foreign lawyers from citing previous court decisons, even if they are not precedent-setting.) Thus, from a research perspective, it is far more likely that court opinions in a common law jurisdiction will be systematically published, possibly in multiple court reporters. (The U.S. Supreme Court opinions have been published officially by the government (U.S. Reports) as well as by two private publishers (West’s Supreme Court Reporter and Lawyer’s Ed., 2d) for decades.) Of course, for U.S. researchers of foreign law the problem is exacerbated in that civil law systems may not even require that their court opinions be published in the vernacular, much less translated into English. (Though foreign courts’ opinions in the vernacular may be released on the internet, much like the U.S. Supreme Court has been publishing its opinions on its website for years. The Supreme Court, to my knowledge, does not provide translations of its opinions into foreign languages.)
Thus, it is important for the researcher of a legal issue in a foreign jurisdiction to determine basic information about that jurisdiction’s legal system and legal publications. Northwestern University’s collection of foreign governments can be a great starting point for researchers relying on free resources. A better tool, for those (such as CWRU Law students) who have access, is the Foreign Law Guide (FLG), published by Thomas Reynolds and Arturo Flores. FLG’s goal is to provide “authoritative and current information in the area of foreign law research.” This impressive proprietary research tool, updated exclusively online as of several years ago, is a great starting point for the foreign law research. FLG covers over 190 nation states, approximately four regions (such as Latin American) and the European Union, providing a brief legal history of each jurisdiction, sources of primary and secondary legal sources, and quality internet sites. Translations, when available in an accessible language, are also noted. The self-proclaimed magnus opus provided by Reynolds and Flores is impressive and very useful, but cannot possibly stay on top of all the substantive legal issues in over 200 sovereign jurisdictions in which hundreds of languages (though fewer official languages) are spoken. Luckily, they are not alone in their quest for providing quality information about foreign legal research. Mirela Roznovschi, a librarian at the New York University School of Law’s Hauser Global Law School Program, edits GlobaLex, which links to legal research guides written by experts that cover over 150 jurisdictions.
The Law Library maintains some multi-jurisdictional looseleaf services that provide relatively current, English language access to topical foreign and international materials such as constitutions, commercial laws, taxation laws and treaties, intellectual property laws, securities laws, immigration laws, and international arbitration. Such resources may prove invaluable for the comparative law researcher. Realistically, such sources are expensive to maintain and access to such databases would be limited to currently-affiliated patrons. That said, still the topics likely to be covered at all in such sources include comparative constitutional law topics and commerce-related resources.
Sources: Statehood and Sovereignty
Thomas D. Grant. Defining Statehood: The Montevideo Convention and Its Discontents. 37 Colum. J. Transnat’l L. 403 (1998-1999)
William Thomas Worster. Law, Politics, and the Conception of the State in State Recognition Theory 27 B.U. Int’l L.J. 115 (2009)
Guide to Foreign and International Legal Citations. 2nd ed. Austin; New York: Kluwer Law & Business/Aspen, 2009. CWRU Law Reference Desk K89 .G85 2009
The Bluebook : A Uniform System of Citation. 19th ed. Cambridge, MA: Harvard Law Review Association, 2010. CWRU Law Reference Desk KF245 .U56 2010 (and Class Reserve)