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United Nations: Mini Research Lesson

0 comments By . April 27th, 2012
  1. Background
  2. General Assembly
  3. Security Council
  4. Economic and Social Council
  5. International Court of Justice
  6. U.N. Depository and Document Distribution
  7. Treaties
  8. Selected Bibliography
    1. Books
    2. Articles
    3. CWRU Law Research Databases and Indexes

Background

Fifty nation-states (“states”) met in San Francisco, California, from April 25-June 26, 1945, ultimately signing the United Nations Charter that created one of the largest and most influential international organizations in the world as of Oct. 24, 1945. This effort at improving international relations built upon previous prospective efforts, such as the Atlantic Charter and the League of Nations and international agreements to end World War I (Treaty of Versailles) and World War II (e.g., the German and Japanese surrenders).

While analyzing the founding documents of the League of Nations and the U.N., Pitman B. Potter noted that the U.N. Charter placed an emphasis on the Economic and Social Council, whereas specific mention of the International Labour Organisation (ILO) was omitted. Some of the ten substantive differences he outlined include: the composition and voting procedure of the Security Council; a shift from protection of minority groups to individual human rights; the lack of a structure for new or revised international legislation and agreements; an improved sanctions mechanism; and better amendment provisions. (Potter, 1945)

As of April 24, 2012, there were 193 member states of the United Nations. The major bodies of the U.N. are the Secretariat, the General Assembly, the Security Council, and the Economic and Social Council. The Secretary General is the head of the Secretariat, which employs approximately 44,000 world-wide to carry out U.N. operations on a daily basis. The Journal of the United Nations, published since January 10, 1946, is the historical record of the United Nations, containing meeting information, websites, and a list of official documents released on any given day. It has been available online since 2003. The U.N. also uses press releases, briefings, and various media to inform the citizens of the world of its activities.

General Assembly

As its name implied, the General Assembly is a body comprised of all member states that meets from September to December each year to discuss all international issues covered by the U.N. Charter. General Assembly resolutions are non-binding (and thus not primary international law), but they may help inform the status of customary international law or lead to treaties down the line. (Alistair Rieu-Clarke, 2005, at p. 26, citing paragraph 70 of the opinion of the International Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons (July 8, 1996).) Each state gets a vote on a given General Assembly resolution, so resolutions with many “yes” votes may been viewed as an indication of customary or general principles of international law. Luckily, almost all the General Assembly Resolutions from all 66 sessions are also available from the U.N.’s regular website. Here is a sample General Assembly Resolution: A/RES/2678 (XXV): Question of Namibia (25th General Assembly, Regular Session, 1970).

Security Council

The Security Council can “lay down” international law, modify the Charter, stimulate the creation of international law, and help develop international law. All, as Pittman mentioned decades ago, with a heavy gloss of the realpolitik of the real world politics, of course.  (Sir Michael Wood’s lecture, Nov, 9, 2006.) Thus, given the importance of Security Council Resolutions and the deliberate process under which they are undertaken, it is not surprising that the full-text of such resolutions (from 1946-current) are readily available via the United Nations’ website. Here is a sample Security Council Resolution: S/RES/1964 (2010); Resolution 1964 (2010): The Situation in Sudan.

Economic and Social Council

While the Security Council and General Assembly have the greatest impact on the development of public international law, the Economic and Social Council has a stunningly broad mandate: addressing world-wide economic, social, and environmental issues. This effort employs “70% of the human and financial resources” of the U.N.! The U.N. Economic and Social Council also links to many of its documents on the U.N. website. Though coverage is not comprehensive, there is a good chance that documents produced after 2000 may be available full-text. Here is a sample document: ECOSOC Resolution 2006/15: Promoting Youth Employment.

International Court of Justice

The Statute of the International Court of Justice, annexed to the U.N. Charter, outlines the structure and procedures of the ICJ as the primary “decider” of disputes that states bring before it. The ICJ also offers advisory opinions, such as aforementioned nuclear weapons opinion and, more recently, the opinion on the wall in the Palestine. Researchers are able to access judgments, advisory opinions, and orders for free on the ICJ’s website. These materials are also available to subscribers of Lexis, Westlaw, and HeinOnline. According to Article 38 of its Statute, the ICJ is to decide disputes brought before it in accordance with international law by applying: “international conventions, whether general or particular… ; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; [and subject to Article 59], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means…”

U.N. Depository and Document Distribution

We now see that that the U.N. symbol “A” represents a General Assembly document, “E” represents an Economic and Social Council document, “S” represents a Security Council document, (and “ST” represents a Secretariat document). Of course, there are many additional symbols in the UN documentation system. The system was (and is) especially important for the distribution of U.N. documents to 368 depository libraries in 135 countries, at which the public may consult the documents for free.

People with computer network access may also be able to use one of the following resources to get a known, needed U.N. document for free: The Official Document System of the United Nations (ODS) or the United Nations Bibliographic Information System (UNBISNET). The United Nations Library via HeinOnline also may have pertinent documents published by or about the U.N. After a relatively slow start, the U.N. has embraced the internet as a means of distributing its documentation.

Treaties

The Vienna Convention on the Law of Treaties (VCLT, 1969) was intended to help codify and develop the law of treaties to further international security and cooperation. Not surprisingly, entire scholarly books, not to mention articles, have been devoted to the VCLT itself. Similarly to how otherwise sovereign states may agree to move forward by submitting a contentious border dispute to the ICJ for a judgment, states may give up part of their sovereignty in order to become a party to a convention or treaty that might end a war, combat torture, genocide, etc., or facilitate trade among states (GATT/WTO).

Multilateral treaties, agreed upon by three or more U.N. states, are deposited with the U.N. and published in print, on microfilm, and, more recently, online, as part of the U.N. Treaty Series (U.N.T.S., 1946-current). the U.N. Treaty Series is also available in PDF format to those who have access to HeinOnline’s United Nations Library. The League of Nations Treaty Series (L.N.T.S., 1920-1946) is also included in the United Nations Library via HeinOnline. There are specialized compilations of multilateral compilations of treaties dated before 1920, especially if the  United States is a party, such as Bevans, the Flare Index. Sources for U.S. treaties (UST, TIAS, and the Statutes at Large) are also available via HeinOnline.

Selected Bibliography

  • United Nations: basic information, press releases, Security Council resolutions, General Assembly resolutions, etc.
  • ODS: a more substantial backfile and index to a larger number of U.N. documents than the main U.N. website
  • UNBISnet: online catalogue (bibliograhic info and/or full text of U.N. documents) at the U.N. Librar

Books

  • Edmund Jan Osmac̜yzk ; ed. & rev. by Anthony Mango. Encyclopedia of the United Nations and International Agreements. New York: Routledge, 2003.  Law Reference KZ4968.O84 2003 (4 vols.)
  • Yearbook of the United Nations. Lake Success, NY: United Nations, 1947-.  Law Stacks (Basement) JX 1977.A37Y4 and (1947-2005) and Smith Gov Docs U.N Stacks (1947-2007)
  • Benedetto Conforti and Carlo Focarelli. The Law and Practice of the United Nations. Leiden/Boston: M. Nijhoff, 2010. 4th rev ed.  OhioLINK, CWRU Law on order
  • Sydney Dawson Bailey. The Procedure of the UN Security Council. Oxford: Oxford Univ. Press, 2008.  OhioLINK ebook
  • Vaughan Lowe, et al, eds. The United Nations Security Council and War: The Evolution of Thought and Practice since 1945. Oxford/New York: Oxford Univ. Press, 2008.  Law Stacks JZ5006.7.U54 2008
  • Simon Chesterman, ed. Secretary or General?: The UN Secretary-General in World Politics. Cambridge/New York: Cambridge Univ. Press, 2007. Smith Stacks JZ 5008 .S43 2007
  • Economic and Social Council. In Marcus Franda, The United Nations in the Twenty-first Century: Management and Reform Processes in a Troubled Organization. Lanham: Rowman & Littlefield, 2006, chapter 6.  OhioLINK
  • Alistair Rieu-Clarke. International Law and Sustainable Development: Lessons from the Law of International Watercourses. London/Seattle, IWA Pub., 2005.
  • Shabtai Rosenne. The Law and Practice of the International Court, 1920-1996. The Hague/Boston: M. Nijhoff, 1997. Law Stacks KZ6275.R67 1997 (4 vols.)
  • M.J. Peterson. The UN General Assembly. London/New York: Routledge, 2006.  OhioLINK
  • Sydney D. Bailey. The General Assembly of the United Nations; A Study of Procedure and Practice. New York: Praeger, 1964.   Law Storage  JX 1977.B22

Articles

(For full-text, check databases such as Lexis, Westlaw, HeinOnline, SSRN, etc.)

  • Joy Gordon. The Sword of Damocles: Revisiting the Question of Whether the United Nations Security Council is Bound by International Law 12 Chi. J. Int’l L. 605 (2012).
  • Andrew Strauss. Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction. 44 Cornell Int’l L.J. 603 (2011).
  • Noelle Quenivet. Binding the United Nations to Human Rights Norms by Way of the Laws of Treaty. 42 Geo. Wash. Int’l L. Rev. 587 (2010).
  • James Sloan. The Use of Offensive Force in U.N. Peacekeeping: A Cycle of Boom and Bust? 30 Hastings Int’l & Comp. L. Rev. 385 (2007).
  • Edward Grosek. How to Research International Treaties and Agreements. 20 Loy. L.A. Int’l & Comp. L.J. 641 (1998).
  • Ruth Gordon. United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond. 15 Mich. J. Int’l L. 519 (1994).
  • Goler Teal Butcher. The Consonance of United States Positions on International Law With Advisory Opinions of the International Court of Justice. 30 How. L.J. 45 (1987).
  • Pitman B. Potter. The United Nations Charter and the Covenant of the League of Nations. 39 Am. J. Int’l L. 546 (1945). (full-text via HeinOnline)

CWRU Law Research Databases and Indexes

  • Access U.N. (Readex Index of United Nations documents, 1966-current)

$9.99: U.S. v. Apple, Hachette Book Group, et al.

4 comments By . April 24th, 2012
  1. Case Filings from the U.S. Department of Justice, including the complaint and related filings

On April 11, 2012, The Department of Justice sued Apple, Inc and five book publishers (Hachette, HarperCollins, Macmillan, Penguin, & Simon & Schuster) for civil antitrust violations of the Sherman Act. Apple and the book publishers, which owned 80% of the trade book publishing market, allegedly conspired to shift book distribution from a wholesale model to an agency model.

Under the wholesale model, retailers purchase the books wholesale (for example, 1/2 off the list price) from the publisher, and set the retail price at which they are willing to sell the book to consumers. Thus, in the traditional print book store model, a large bookstore chain might discount popular titles in order to gain market share, while a local independent bookstore may charge higher prices, but offer better service. But then Amazon emerged and grew from its roots as an online bookstore, founded in 1994, into a world-wide retailer of a myriad of products. In addition to offering discounted book titles, Amazon offers free delivery on purchases over $25 and even faster delivery (and additional incentives, such as streaming video titles) to members of its Amazon Prime service. Critics claims include arguments that Amazon’s delivery apparatus amounts to sweat shops, and that “brick and mortar” stores are at a disadvantage with respect to sales tax collection.

In 2007, Amazon launched its Kindle e-reader device, and offered new releases and bestsellers as e-books to consumers for $9.99 each. “Amazon’s e-book distribution business has been consistently profitable, even when substantially discounting some newly released and best-selling titles.” (Complaint, paragraph 30) While Amazon agreed not to charge less than the wholesale e-book price it paid to publishers, it was obviously able to leverage its e-reader hardware, e-book distribution system, and associated savings of not having to warehouse and distribute print volumes to capture 80% of the nascent, but rapidly growing, e-book market by 2010. Notably, the electronic versions of some books, such as academic and technical works, receive little or no discount when offered in electronic format in addition to print format. Thus, the mass market appeal of bestsellers and some trade titles contributed to Amazon’s ability to offer e-books for $9.99. While other e-readers are, and have been, available (notably including Barnes and Noble’s Nook), other booksellers missed the “ramping up” of e-book sales and distribution — most notably the now-defunct “bricks and mortar” Border’s.

In April, 2010, Apple, Inc. started selling (and selling) its iPad tablet computer, to the tune of 3 million in 80 days and 14.8 million iPads world-wide in 2010, 75% of the tablet PC market. (The numbers are from Wikipedia, citing press releases and the BBC.) Such dominance in the tablet PC market, not to mention a large core of i-fanatics, led Apple to believe that it could “trounce Amazon by opening up [its] own ebook store,” but the intense price competition in the 2009 e-book retail industry was “unattractive.” (Complaint, paragraph 4) Translation: Apple did not find the slim profit margins afforded by Amazon’s aggressive $9.99 retail e-book pricing especially enticing. (Presumably, Apple’s similarly ground-breaking effort in retail music, iTunes, yields better profit margins.)

Not to worry, according to the Justice Department. Apple’s five co-defendants (publishers) were not happy with Amazon’s $9.99 pricing model, either. The publishers worried that the $9.99 price model would “deflate” hardcopy prices, thus reducing publishers’ revenues and even, possibly, lead to lower wholesale prices. Furthermore, companies such as Amazon and Google might even undermine the traditional publishing business model in the digital publishing space. (Complaint, paragraphs 33-34) Indeed, as of January, 2010, Amazon courted some of the most prolific authors with previously-unheard of royalty offers of up to 70%, to fend off competition from Apple. Of course, there are restrictions — most interestingly, a requirement that books “must be offered at or below price parity with competition.” According to the Justice Department, in 2009 Apple and the five publishers agreed to “act collectively to force up Amazon’s retail price,” by switching from the wholesale model to the agency model. The evidence included: “practices facilitating a horizontal conspiracy, direct evidence of a conspiracy, recognition of illicit communications, acts contrary to economic interest, and an abrupt, contemporaneous shift from past behavior.” (Complaint, paragraphs 37-38.) The agreement guaranteed Apple a 30% commission for e-books sold under the new “agency” model, and transferred “maximum” (effectively price-setting, according to DOJ) pricing decision from the retailers to the publishers, i.e. at a rate higher than $9.99. The publishers allegedly also worked together when Amazon tried to punish Macmillan (Complaint, paragraph 80-84). United States consumers were harmed economically, in that the higher prices charged were part of $300 million in retail sales from the five publishers, including $40 million for e-books licensed through Apple’s iBookstore. Apple Agreement prices of $12.99 or $14.99 replaced some of the titles that would have been $9.99 via Amazon. (Complaint, paragraphs 8 & 21 ) Apple also added a “most favored ‘nation’” clause for itself in the agreement.

Apple wants to go to trial, and have the case decided on its merits, saying that “We believe that this is not an appropriate case against us and we would like to validate that.” Further, Apple claims that it actually broke Amazon’s monopoly and enhanced competition in the e-book space. Some legal experts say the government’s case against the publishers is much better than the case against Apple; indeed, three publishers agreed to a settlement. Under the settlement, Hachette, HarperCollins, and Simon & Schuster agreed to terminate their agreements with Apple and other e-book retailers, avoid setting prices in any future e-book agreement for the next two years, and avoid conspiring and/or sharing sensitive competitive information with fellow publishing companies for five years. Scott Turow, president of the Author’s Guild, blogged that Amazon may be the big winner: “[O]ur government may be on the verge of killing real competition in order to save the appearance of competition.”

 

: Case filings

Urban Community Resources

0 comments By . April 20th, 2012
  1. Community Activism
  2. Community Economic Development
  3. Property and Community
  4. Sustainable Cities

When you think of the numerous ways that people intersect with the law or the judicial system, it is often as a result of our lives as residents in a community. Whether in a city, suburb or town, we have the common experience of educating our children, renting or owning a residence, expressing our citizenship by voting, encouraging economic development and, promoting healthy lifestyle choices.   

Researchers looking into the topic of urban communities and the law will find a large and diverse collection at the Judge Ben C. Green Law Library and Case Western Reserve University Libraries. I have identified a few broad topics and resources that highlight selected aspects of this collective experience.

Community Activism

Phyllis Ryder, Rhetorics for Community Action: Public Writing and Writing Publics, 2011.
Kelvin Smith P301.5 .S63 R93 2011

Margaret Brinig, Family, Law, and Community: Supporting the Covenant, 2010.
Law Library KF505 .Z9 B755 2010

Leon E. Irish, Guidelines for Laws Affecting Civic Organizations, 2004.
Law Library K652 .G85 2004

Community Economic Development

Building Healthy Communities: A Guide to Economic Development for Advocates, Lawyers, and Policymakers(Roger A. Clay, Jr. and Susan R. Jones, eds., 2009).
Law Library KF5730 .B85 2009

David J. Hess, Localist Movements in a Global Economy: Sustainability, Justice, and Urban Development in the United States, 2009.
Kelvin Smith HC110.E5 H47 2009

Property and Community

Cora Jordan & Emily Doskow, Neighbor Law: Fences, Trees, Boundaries & Noise, 2011.
Law Library KF639 .J67 2011

Nichole Stelle Garnett, Ordering the City: Land Use, Policing, and the Restoration of Urban America, 2010.
Law Library KF5729 .G37 2010

Private Property, Community Development, and Eminent Domain (Robin Paul Malloy, ed., 2008).
Law Library K3511 .P75 2008

Sustainable Cities

Robert Kirkman, The Ethics of Metropolitan Growth: The Future of Our Built Environment, 2010.
Kelvin Smith HT371 .K49 2010

Ronald G. Burns, Michael Lynch and Paul Stretesky, Environmental Law, Crime, and Justice, 2008.
Law Library KF3775 .B875 2008

State and Local Issue: Hydraulic Fracturing

0 comments By . April 19th, 2012
  1. Federal, Ohio, and Regional
  2. Maps
  3. Books
  4. Selected Legal Articles, Notes, and Comments
  5. News/Current Awareness Articles

Hydraulic fracturing (aka “fracking”/fracing) has taken center stage both in Ohio and in the nation recently. Federal efforts include President Obama’s Executive Order to support “safe and responsible” fracking and more recent, if more mundane, federal administrative rules governing air pollution from fracking sites. These rules will govern air pollution at fracking sites, at an EPA-estimated cost savings of $11-19 million when the regulations at fully in force in 2015. The EPA also seems taking steps to address any possible water pollution or Clean Water Act violations, as well. Josh Fox, in his movie Gasland, claimed that frackers had been given a waiver of any possible Clean Water Act violations that might arise from their activities. The Ohio Department of Natural Resources (DNR) has stated that Ohio’s water table is not in jeopardy, because the drilling occurs deep below the bedrock. DNR is concerned, however, about the more recent potential of fracking causing earthquakes, and the agency is promulgating pertinent regulations. Hydraulic fracturing has been in use in Ohio for forty years; even twenty years earlier it was used in Oklahoma.

Notwithstanding its historical usage, fracking has gained prominence in recent years for a variety of reasons. Natural gas is the cleanest burning of the traditional fossil fuels, and it is well suited for peak demand general of electricity. North Dakota’s unemployment rate in January, 2012 was 3.2%, compared to a national rate of 8.3%. Skilled jobs fracking the Bakken Formation pay $70,000-$120,0000 per year. Thus, fracking can supply much needed cash to state via income tax, royalty payments, and permit fees. Natural gas is seen by some environmentalists (and others) as a “bridge fuel” from dirty sources of energy, such as crude oil and coal to renewable energy, once scalability (renewables account for a small percentage of all energy used currently) and other issues (such as the production of much less energy than produced by burning traditional fossil fuels) are worked out. Proponents of energy independence for the United States, and those concerned with the corallary of reducing the amount that United States citizens pay to foreign countries for crude oil, also are usually fond of maximizing domestic natural gas production. (A more nuanced “Drill, baby, drill” strategy, as it were.)

As the maps below show, part of the shale regions overlap with the Great Lakes Water Basin, making said overlapping regions subject to the Great Lakes Basin Compact, an international agreement among several states and Canadian provinces,  with Congressional consent via Public Law 90-419. More recently, eight states, through  Public Law 110-342 created the Great Lakes–St. Lawrence River Basin Water Resources Compact. Such cooperative agreements seek to manage the water resources in a sustainable and efficient method, with a keen interest in activities that require the use or diversion of large amounts of water from the Great Lakes.

Also interesting is the attempt of Ohio Governor John Kasich, often portrayed as “pro business,” to extract (pun intended) additional revenues from the burgeoning (at least after the earthquake issue gets resolved) Ohio fracking industry. The governor proposes to tax the drillers up to 4% of the market value of the oil and natural gas extracted, up from the current tax of 20 cents per barrel of oil and $3 per 1000 cubic feet of natural gas. Not surprisingly, the debate over whether to use any additional revenue for income tax relief or for schools or other social programs has begun, also. In a similar manner, Governor Kasich negotiated additional payments from companies that will begin to operate Ohio casinos in 2012.

Federal, Ohio, and Regional

Maps

Books

  • Tom Wilber. Under the Surface: Fracking, Fortunes, and the State of the Marcellus Shale. Ithaca, NY:  Cornell University Press, 2012.  OhioLINK
  • Aarik Schultz. Hydraulic Fracturing and Natural Gas Drilling: Questions and Concerns. New York: Nova Science Publishers, 2012. OhioLINK
  • Ching H. Yew. Mechanics of Hydraulic Fracturing. Houston, TX: Gulf Publishing, 1997. OhioLINK  (also available as an ebook to ScienceDirect subscribers)
  • Peter Valko and Michael J. Economides. Hydraulic Fracture Mechanics. Chichester; New York: Wiley, 1995. OhioLINK

Links provided are either via HeinOnline or Lexis, but the articles are probably available via Lexis, Westlaw, HeinOnline, and (possibly) LexisNexis Academic for those who have access.

News/Current Awareness Articles

“Stand Your Ground” Laws – Issue Backgrounder

1 comment By . April 14th, 2012
  1. Links to Laws
  2. Law Review Articles
    1. Florida’s “Stand Your Ground” Law, Specifically
    2. “Castle Doctrine” in General

(See also Cheryl Cheatham’s post from earlier this week.)

Since the Florida shooting death of Trayvon Martin rose to public attention, that state’s law of self-defense has attracted much attention. Florida was one of the first states to enact a ‘Stand Your Ground’ statute. (One of the tangential controversies attached to the Florida law has to do with the role ALEC, the American Legislative Exchange Council, played in drafting related legislation in nearly half the states.)

Florida’s Stand Your Ground law, and the other laws that have followed it in enacting “Castle Doctrine”-like presumptions for individuals employing allegedly defensive force outside of their own homes, is at least several steps removed from the conception of self-defense as requiring an imminent threat of deadly force; reasonable belief in the necessity for force; and generally imposing a duty to retreat instead of use force, where possible. That view of self-defense came under attack first from a series of critiques related to battered women who attacked violent spouses when the threat being defended against may not have been imminent, and then by the current wave of statutory ‘Castle Doctrine’ or ‘Stand your Ground’ legislation.

While the new genre of “Castle Doctrine” legislation takes its name from the traditional common law doctrine excluding those attacked in their own homes from the duty to retreat, the tendency is to include one or both of the following additional characteristics: to remove the duty to retreat from other places, besides the home, that one can lawfully occupy; and/or to presume reasonable force-justifying fear of death, rather than requiring those who use deadly force in self-defense to provide proof of that reasonable fear. The Florida law also includes an immunity provision, that, in essence, frequently switches the burden to the police/prosecution to find evidence that a use of deadly force was not self-defense.

A post on The Atlantic Wire by ProPublica’s Cora Currier lists 23 states with “Stand Your Ground” laws and includes links to statutes from those states. The link selection is a little uneven, in that they are mostly links to sessional enactments, but some are Code links, etc.

Law Review Articles

Florida’s “Stand Your Ground” Law, Specifically

“Castle Doctrine” in General

Mini-Lesson: Foreign Legal Research

0 comments By . April 12th, 2012

 

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)

 Sources: Citation

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)

 

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