Advanced Legal Research Law 430C'001

1
Advanced Legal ResearchLaw 430C.001

• Week 12
• Foreign, International E.U. Law
• November 23, 2009

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Todays Objectives

• Provide an overview of the following
• Foreign Law Research Strategies
• United Nations structure and documents
• International Courts
• European Union structure, legislation and case
  law

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Why is it Important?

• With the ever expanding world of foreign trade,
  communication and travel, the modern practice of
  law will often require some basic understanding
  of international, foreign and EU legal materials.
  
• The purpose of todays class is to introduce you
  to some key resources that will assist in
  locating foreign, international and EU legal
  materials.

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Foreign Law

• What is foreign law?
• Foreign law is distinguished from international
  law in that foreign law is the law of a single
• non-Canadian jurisdiction.
• There are currently five legal systems in the
  world today civil law, common law, customary
  law, religious law, and mixed legal systems.

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Foreign Law- Research Methodology

• Type of Legal System
• Determine the type of legal system that governs
  the foreign jurisdiction you are interested in.
• JuriGlobe http//www.juriglobe.ca/eng/index.php
• Secondary Sources
• Consider using secondary sources such as
  textbooks, encyclopedias or articles to gain some
  background knowledge that explains the legal
  system of the country you are researching.

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Foreign Law- Research Methodology

• Foreign law research guides
• GlobaLex
• http//www.nyulawglobal.org/Globalex/index.html
• Yales Foreign Law Research Guide
• http//m-library.law.yale.edu/country_guide
• LLRX
• http//www.llrx.com/comparative_and_foreign_law.ht
  ml

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Accessing Foreign Legislation and Case Law

• The following sources will assist you in locating
  case law and legislation
• WorldLII http//www.worldlii.org/
• LII (Legal Information Institute) Cornel
• http//www.law.cornell.edu/world/
• World Law Guide http//www.lexadin.nl/wlg/

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Private International Law (Conflict of Laws)

• International law that deals with the rights and
  duties of individuals and NGOs in their
  international affairs
• It is a branch of municipal/domestic law
• It deals with cases having a foreign element
• Central issues to consider are choice of
  jurisdiction (e.g., British Columbia Argentina)
  and choice of law (e.g., laws of France laws of
  Ontario)
• Subsidiary issue is the enforcement of foreign
  judgments

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Private International Law (Conflict of Laws)

• Resource American Society of International Law
  Louise Tsang, Private International Law
  http//www.asil.org/pil1.cfm
• Electronic Primary Sources of Private
  International Law
• Hague Conference on Private International Law
  http//www.hcch.net/index_en.php
• UNCITRAL UN Commission on International Trade
  Law http//www.uncitral.org/uncitral/en/index.h
  tml
• UNIDROIT International Institute for the
  Unification of Private Law http//www.unidroit.o
  rg/dynasite.cfm

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Public International Law

• What is Public International Law?
• Body of law which governs the relationships
  between national governments and international
  organizations
• Common legal issues involve international trade,
  human rights, international environmental law and
  refugees

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Public International Law

• Sources - as per Article 38 of the Statute of the
  International Court of Justice
• 1) International Treaties (conventions) primary
  legal authority
• 2) Custom the general practice of States and
  intergovernmental organizations that are
  generally recognized by all States and are
  legally binding
• 3) General Principles of Law as recognized by
  nations within their territorial jurisdiction
• 4) Judicial decisions are not generally
  considered binding but are evidence of
  international practice and can assist in the
  interpretation of treaties and the definition of
  customary law

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Public International Law

• International Treaties (Conventions)
• Canada
• Treaties entered into by Canada are officially
  published in the Canada Treaty Series. Ottawa,
  1929 available via the Canada Treaty
  Information web site
• www.treaty-accord.gc.ca
• Finding Aids
• Christian Wiktor, Canadian Treaty Calendar,
  1928-1978
• Christian Wiktor, Index to Canadian Treaties,
  1979-2003

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Public International Law

• Secondary Sources
• Dictionaries
• John P. Grant J. Craig Barker, eds., Parry and
  Grant Encyclopaedic Dictionary of International
  Law (New York Oceana Publications, 2004)
• James R. Fox, Dictionary of International and
  Comparative Law, 3d ed. (Dobbs Ferry Oceana
  Publications, 2003)
• Encyclopedias
• Rudolf Bernhardt, ed., Encyclopedia of Public
  International Law (Amsterdam Elsevier
  North-Holland, 1992)

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Public International Law

• Secondary Sources
• Selected Key Textbooks
• Ian Brownlie, Principles of Public International
  Law, 7th ed. (Oxford Oxford University Press,
  2008)
• John H. Currie, Public International Law, 2d ed.
  (Toronto Irwin Law, 2008)
• Hugh M. Kindred, Phillip M. Saunders Jutta
  Brunnee, eds., International Law Chiefly as
  Interpreted and Applied in Canada, 7th ed.
  (Toronto Emond Montgomery Publications, 2006)

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United Nations

• Largest intergovernmental organization in the
  world
• Established in 1945 and currently has 192 members
  
• Its mandate includes peace and security, economic
  and social development, human rights, and
  international law

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United Nations

• Main Organs
• General Assembly (GA), the main deliberative
  organ and essentially functions as a parliament
• Security Council (SC), responsible for
  maintaining international peace and security
• Economic and Social Council (ECOSOC), which deals
  with economic and social matters
• Trusteeship Council, no longer active but used to
  oversee trusteeship territories
• Secretariat which deals with administrative
  matters and
• International Court of Justice (ICJ) the UNs
  principal judicial organ

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UN Documents

• UN has a very complex publishing system
• Most basic type of publication is a UN Document,
  which is a document submitted to a UN organ for
  consideration.
• e.g. a resolution passed by the GA
• UN also publishes UN Publications which are
  documents that are issued to the general public
• e.g. Yearbook of the United Nations.
• UN Publications are not considered UN Documents

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UN Document Symbols

• UN Document Symbols System governs all UN
  Documents
• Documents are identified by the issuing body and
  are composed of letters and numbers
• First letter(s) indicates the main UN organ, for
  example, A/ means the General Assembly
• Specific letters that follow the first slash
  indicate the sub-body, for example, /CN means
  Commission
• Special components will reflect the nature of the
  document, for example, /RES means Resolution
• The final component will indicate if there has
  been any modification to the original text, for
  example, /Rev means revision

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UN Document Symbols

• Example E/CN.4/Sub.2/2003/38/Rev.2
• E/ Economic and Social Council
• CN.4 Commission on Human Rights
• Sub.2 Subcommission on the Promotion and
  Protection of Human Rights
• 2003 Year
• 38 Document
• Rev.2 Revision 2
• For more information regarding Document Symbols,
  consult the United Nations Documentation
  Research Guide http//www.un.org/Depts/dhl/resgui
  de/symbol.htm

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Accessing UN Documents

• Access the UN Documentation Center
  http//www.un.org/en/documents/ to find
  documents from the GA, SC, ECOSOC, and the
  Secretariat.
• Keep in mind that not all UN documents are
  available from this site. In order to access
  additional documents, see the Official Document
  System of the United Nations (ODS).

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Accessing UN Documents

• The ODS http//documents.un.org/welcome.asp?langua
  geE is the official repository of UN documents
• Covers all types of official UN documentation
  from 1993 onward
• Does not contain press releases, UN Publications
  or UN Treaties
• The best option for retrieving documents on the
  ODS is by using a UN document symbol

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United Nations Treaty Collection

• United Nations Treaty Series (U.N.T.S.)
• Is the official source for treaties filed or
  registered with the UN Secretariat since 1946
• The online version of the U.N.T.S. covers
  materials published from December 1946 to January
  2007
• You can access these treaties on the UNTS
  Database
• http//treaties.un.org/Pages/UNTSOnline.aspx?id1
  
• You can search for treaties by popular name,
  title, or keyword full-text search

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United Nations Treaty Collection

• League of Nations Treaty Series
• Predecessor series to the U.N.T.S. and it covers
  the period from 1920 1946. You can access this
  treaty series online as well http//treaties.un.o
  rg/Pages/LONOnline.aspx
• Multilateral Treaties Deposited with the
  Secretary-General database http//treaties.un.org
  /Pages/ParticipationStatus.aspx
• Contains information on the status of over 500
  treaties from 1982 onward.
• Monthly Statement of Treaties and International
  Agreements http//treaties.un.org/Pages/MSDatabase
  .aspx
• Provides detailed records of treaties filed or
  registered with the UN before being published in
  the U.N.T.S. Use this database when looking for
  very recent treaty activity.

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International Case Law

• International Court of Justice (ICJ)
• Commonly referred to as the world court, is the
  principal judicial organ of the UN
• The ICJs role is twofold to settle legal
  disputes submitted to it by States in accordance
  with international law and to provide advisory
  opinions on legal questions submitted by UN
  organs and other international agencies

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International Case Law

• International Court of Justice (ICJ)
• Its decisions are considered the strongest
  statement on what international law is in a
  disputed situation
• Judgments are final and without appeal and are
  binding upon the parties concerned
• Decisions are officially published in the Reports
  of Judgments, Advisory Opinions and Orders (1947
  - )
• You can access the ICJs decisions electronically
  on the ICJ website.

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International Case Law

• Other International Courts and Tribunals
• International Criminal Tribunal for the Former
  Yugoslavia
• International Criminal Tribunal for Rwanda
• Special Court for Sierra Leone
• International Tribunal for the Law of the Sea
• International Criminal Court
• European Court of Human Rights
• Permanent Court of Arbitration

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European Union

• What is the European Union?
• Is a supranational organization that currently
  consists of 27 Member States
• Members have agreed to surrender a certain degree
  of sovereignty in exchange for economic and
  political integration
• Organizational structure allows for the adoption
  of common interests and policies in various areas
  such as trade, agriculture, consumer affairs,
  transportation and the environment

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EU Institutions

• Executive Branch
• European Commission
• Responsible for drafting all legislative and
  policy proposals for EU laws which are then
  submitted to the Council and the Parliament for
  amendment and approval
• Primary duty is to uphold the common interest of
  the EU by ensuring that regulations and
  directives adopted by the Council and the
  Parliament are implemented in the Member States

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EU Institutions

• Executive Branch
• European Council
• Consists of the heads of state of EU members and
  defines the general political guidelines of the
  EU
• European Central Bank
• Makes and implements the EUs monetary policy

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EU Institutions

• Legislative Branch
• Council of the European Union
• Most powerful institution in the EU and is the
  main decision-making body. Official acts of the
  Council include regulations, directives and
  decisions. It also has treaty making authority.
• European Parliament
• Elected body that represents the interests of the
  EUs citizens and it shares its legislative
  powers with the Council. It is charged with
  overseeing the EU budget and monitors the
  activities of the EU Commission.
• Economic and Social Committee
• Advisory board that represents employers, trade
  unions and other interest groups.

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EU Institutions

• Judicial Branch
• European Court of Justice
• Highest legal authority in the EU. Ensures that
  the Treaties are correctly interpreted and
  applied and that EU laws are interpreted and
  applied in the same way in all EU states.
• Court of First Instance
• Primarily hears cases dealing with private
  individuals and some competition law matters.
• European Court of Auditors
• Audits the accounts and implements the EUs
  budget

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EU Treaties

• Treaties constitute the EUs primary
  legislation and provide the legal basis for the
  EU and outline the fundamental features of the EU
  organization.
• Key Treaties
• Treaty of Paris (1951)
• Treaty of Rome (1957)
• Single European Act (1986)
• Maastricht Treaty (1992)
• Treaty of Amsterdam (1997)
• Treaty of Nice (2001)
• You can access all of these treaties and many
  others for free on the EUR-Lex website.

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EU Secondary Legislation

• Major source of Community legislation after
  treaty law.
• Regulations
• Laws passed by the Council of the European Union
  and are binding on all Member States. They do not
  require national implementation legislation.
• Directives
• Main purpose is to align national legislation.
  They are binding on all Member States as to
  result that is to be achieved, but each state is
  free to choose the method achieving the Community
  objectives.
• Decisions
• Laws passed by either the Commission or Council
  which are binding on those that are addressed,
  whether they are companies, individuals or
  governments.

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EU Documents

• Official Journal
• Official gazette of the EU and it is published in
  two series.
• The L Series consists of treaties, directives,
  and regulations adopted by the Council and
  Commission.
• The C Series is the Information and Notices
  section of the O.J. that contains non-binding
  resolutions and decisions, notices of Court
  decisions, and texts of proposed legislation.
• You can access issues of the O.J. online for free
  from 1998 onward via the EUR-Lex website.

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Finding EU Documents

• EU regulations will generally be cited by their
  number first, followed by their year.
• e.g Commission Regulation (EC) No 12/2008 of 9
  January 2008 establishing the standard import
  values for determining the entry price of certain
  fruit and vegetables,
• 2008 O.J. (L 6) 1.
• Directives, on the other hand, will generally be
  cited by their year first and then by their
  number.
• e.g Commission Directive 2008/4/EC of 9 January
  2008 amending Directive 94/39/EC as regards
  feeding stuffs intended for the reduction of the
  risk of milk fever,
• 2008 O.J. (L 6) 4.

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Finding EU Documents

• By Citation
• If you have the citation to the O.J., then you
  can easily locate documents electronically on the
  EUR-Lex website
• You can browse through to the relevant issue or
  search by O.J. citation. If you do not have an
  O.J. citation, but you know the year and document
  number, then you can run a simple search on
  EUR-Lex.
• e.g. you can search for 2008/4/EC by doing the
  following
• 1) select the simple search option 2) under the
  search by document number section, select the
  natural number option 3) type in the year and
  number in the appropriate boxes

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Finding EU Documents

• By Subject
• EUR-Lex allows you to search by keyword to find
  relevant documents.
• e.g. lets say that you are interested in
  locating legislation regarding clinical trials on
  medical products. You can run a keyword search by
  doing the following
• 1) select the simple search option
• 2) under the search by file category, select
  the legislation option
• 3) under the further search options, select
  search terms and click on the search button
  and
• 4) enter clinical trials (but without the
  quotation marks) in the search for box and
  press search

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EU Case Law

• Official Publications
• Reports of Cases before the Court of Justice and
  the Court of First Instance official reporter
  and commonly referred to as the European Court
  Reports (ECR).
• Electronic Access
• You can access court decisions on the ECJs
  website called Curia
• contains full text decisions since 1997 and all
  decisions by case number from the Courts
  inception in 1953.