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Towards Cooperation in Access to Foreign Primary Law

  • Andrew Grossman

Extract

Foreign law, whether a subject of study in itself within the domain of comparative law, or invoked under a rule of conflict of laws to resolve a crossborder issue, is an essential library resource. In jurisdictions where foreign law must be pleaded and proved as a fact, it is up to the parties to demonstrate what that law is, in default of which the Anglo-American court will generally presume it to be the same as municipal law. In other, generally civil-law, jurisdictions it may be up the court to appoint an expert; foreign law may be treated either as law or as fact, depending upon the jurisdiction. Because family law, succession and donations are, in civil-law countries, largely ruled by personal law and because personal law may be determined by reference to facts of nationality, domicile, religion and ethnic identity, considerable academic sophistication is demanded of foreign and comparative law librarians. The escalating costs of legal materials and the difficulty of cataloguing and maintaining collections of rarely-used materials in hard languages pose additional obstacles. In the United States particularly, acquisition of foreign materials has perceptibly declined since the early 1980s. Only a handful of law libraries in the world possesses the financial, logistical, linguistic and technical wherewithal to aspire to collecting materials from all or most countries; for those, managing acquisition and selection is the main challenge. Collecting official gazettes, session laws and case reporters from many jurisdictions makes enormous demands upon space and record-keeping; microform collection is not in many cases an alternative. Where it is, it creates its own special demands.

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Copyright © 2000, 2002 University College London. This is an updated version of a report originally submitted in partial fulfillment of the requirements for the degree of M.A. in L.I.S. at that institution. Except as otherwise stated, URLs cited were operative as of Dec. 12, 2001.

1 Trevor C. Hartley, “Pleading and Proof of Foreign Law: The Major European Systems Compared,” International & Comparative Law Quarterly 45 (1996): 271.

2 Deborah Jakubs & David Magier, Library Collections and Access: Supporting Global Expertise, paper delivered at HEA-Title VI-Fulbright/Hays National Policy Conference, University of California at Los Angeles, Jan. 23-25 1997, <http://www.arl.org/collect/dlj.html>.

3 The Changing World of Scholarly Communication: Challenges and Choices for Canada, Final Report of the AUCC-CARL/ABRC Task Force on Academic Libraries and Scholarly Communication, Oct. 1996, <http://www.aucc.ca/en/publications/carl_aucc/aucccarl.htm>.

4 Systems of legal pluralism (assignment of personal law based upon religious affiliation) exist in predominantly Muslim countries, in India, Israel, Lebanon and in some African jurisdictions. John Gilissen, “Le statut des étrangers, à la lumière de l'histoire comparative,” L'Etranger, Rec. Soc. Jean Bodin 10:5 (1958): 2130.

5 Comparative law has made an important contribution to human rights jurisprudence, more so however abroad than in the United States. See, e.g., Dow v. Attorney-General, [1992] L.R.C. (Const.) 623 (C.A. Botswana), aff'g [1991] L.R.C. (Const.) 574.

6 “The ‘statutists’ of medieval Italy approached conflicts problems by dividing statutes into the ‘real’ and ‘personal’ category - the former applied within the jurisdiction that promulgated it; the latter followed the person wherever he went.” Lea Brilmayer, Conflict of Laws, Cases and Materials, 4th ed. (1995) at xxvii; Max gutzwiller, “Le développement historique du droit international privé,” Rec. des cours Ch. I, 29 (1929 IV): 296309.

7 It is an interesting historical study, but beyond the scope of this essay, to query the provenance of the obsolete laws of colonies, dependencies and foreign countries to be found in great libraries: viz.: Edwin Arney Speed, ed., Laws of the colony of Southern Nigeria: being the schedule to the Statute Laws Revision Ordinance (1908) with an appendix containing the letters patent constituting the colony, and the instructions accompanying them; various acts of Parliament; and orders of the Sovereign in Council, on the shelves of the British Library of Political and Economic Science. The BLPES Official Publications storage facility is a treasure trove of (mainly pre-war) official gazettes, session laws, and parliamentary papers of Oriental and African countries. Frontispieces of some books indicate that they came from the personal libraries of diplomatic and colonial service officers.

8 T.S. No. 382, 25 Stat. 1469, 4 Am. J. Int'l L. 181. The treaty was implemented in U.S. law by 44 U.S. Code 1719: “International exchange of Government publications. For the purpose of more fully carrying into effect the convention concluded at Brussels on March 15, 1886, and proclaimed by the President of the United States on January 15, 1889, there shall be supplied to the Superintendent of Documents not to exceed one hundred and twenty-five copies each of all Government publications, including the daily and bound copies of the Congressional Record, for distribution to those foreign governments which agree, as indicated by the Library of Congress, to send to the United States similar publications of their governments for delivery to the Library of Congress. Confidential matter, blank forms, circular letters not of a public character, publications determined by their issuing department, office, or establishment to be required for official use only or for strictly administrative or operational purposes which have no public interest or educational value, and publications classified for reasons of national security shall be exempted from this requirement. The printing, binding, and distribution costs of any publications distributed in accordance with this section shall be charged to appropriations provided the Superintendent of Documents for that purpose.” (Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1282; Pub. L. 97-276, Sec. 101(e), Oct. 2, 1982, 96 Stat. 1189; Pub. L. 99500, Sec. 101(j), Oct. 18, 1986, 100 Stat. 1783-287, and Pub. L. 99-591, Sec. 101(j), Oct. 30, 1986, 100 Stat. 3341-287, as amended Pub. L. 100-71, title I, July 11, 1987, 101 Stat. 425.) Continued exchange of official publications in print form by the United States was endangered by the expressed intention in the Congress not to appropriate funds for the purpose in Fiscal Year 2001: <http://www.access.gpo.gov/public-affairs/news/00newsl4.html>. For a brief comment on the International Exchange Service, see <http://www.access.gpo.gov/su_docs/fdlp/pr/lpstour>.

9 Buenos Aires, Dec. 23, 1936, 201 L.N.T.S. 295, No. 4721; for location of archival documents see <http://www.uark.edu/libinfo/speccoll/cuaid.html/g9s5.html>.

10 19 U.S.T. 4469, T.I.A.S. No. 6439, 398 U.N.T.S. 9, No. 1-5715. See Johannes Metz, International Exchange of Official Publications, Proceedings of the 65th IFLA Council and General Conference, Bangkok, Aug. 20-28, 1999, <http://www.ifla.org/IV/ifla65/papers/054-83e.htm>.

11 See <http://www.geocities.com/ussc2012/lib/dhl_og1.pdf> and <http://www.geocities.com/ussc2012/lib/dhl_og2.pdf> for shelf list (in two parts) of the official gazettes in the Dag Hammarskjold Library as of March 1992.

13 See, generally, Steven B. Carrico, “Exchanges in Academic and Special Libraries: A Selected and Annotated Bibliography,” Acquisitions Librarian, No. 22, 1999, at 75-96; also Maureen Mahoney, “Change and Exchange: The Publications Exchange Programme of the British Library for Development Studies,” Acquisitions Librarian, No. 22, at. 109-20 (1999) (“The BLDS specialises in ‘grey’ literature and government publications from the developing world including Latin American countries. Its acquisitions budget has suffered continuous reduction, finally prompting its staff to attempt to expand their exchange program using systematic approaches to relevant institutions in Latin America.”

14 Johannes Metz, International Exchange of Official Publications, Paper presented to IFLA Seminar, Bangkok, 20-28 August 1999, <http://www.ifla.org/IV/ifla65/papers/054-83e.htm>, and to Moscow Seminar, 24-27 May 1999.

15 Cairo, Egypt; Islamabad, Pakistan; Jakarta, Indonesia; Nairobi, Kenya; New Delhi, India; and Rio de Janeiro, Brazil. <http://lcweb.loc.gov/acq/ovop> and Association of Research Libraries, Bimonthly Report, Issue 206, The Library of Congress Overseas, <http://www.arl.org/newsltr/206/loc.html>. See also Collections Policy Statement, Government Publications - Foreign, <http://lcweb.loc.gov/acq/devpol/govfor.html>.

16 John Y. Cole, Jefferson's Legacy: The Functions of the Library of Congress, Past and Present, Jan. 1996, <http://palimpsest.stanford.edu/bytopic/orgs/lchist.html>, writing in the context of the Library's history in particular of the legacy of Luther Evans and development of overseas procurement and exchanges policy.

18 There are alternative methods of benefiting from foreign expertise in legislative drafting. For example, the American Bar Association has a continuing program of activity in Eastern and Central Europe to analyze and provide criticism of the texts of legislative proposals.

19 See, e.g., Michael Biggins, Library Assessment Project: Southeastern Europe (International Research & Exchanges Board, Washington), 1995[?], <http://www.irex.org/programs/completed/sproj/libreports/lap-southeastern.htm>.

20 Frieda Wiebe, Barriers to the evolving global network: networking issues in Vietnam, Paper presented at Networking the Pacific: An International Forum, British Columbia Library Association, May 5-6, 1995, Victoria, BC, Canada, <http://www.idrc.ca/library/document/netpac/abs13.html>.

21 Thus the complete set of German legislation was donated to the library of the law faculty at the University of Vilnius; but access to the laws in the vernacular of a single country is probably insufficient to support a comparative law program, and is inadequate if updates are not supplied and the labor assured for their insertion.

23 The Friedrich-Ebert-Stiftung, Berlin, Bonn, Kiev and other cities, <http://www.fes.de>, has undertaken projects in Tiraspol and elsewhere related to law, international politics and society. “Claus Neukirch, Der Status Transnistriens aus politischer und vlkerrechtlicher Sicht” (Friedrich-Ebert-Stiftung, B.P. 470/1, Kiev) Dec. 1998, <http://www.fesukraine.kiev.ua>.

25 See UN Interim Administration Mission in Kosovo (UNMIK), Regulation No. 1999/1 on the Authority of the Interim Administration, <http://pbosnia.kentlaw.edu/projects/kosovo/police/regulationl.htm>.

26 <http://www.sllrcg.cg.yu> (official gazette).

27 The Oslo Agreement is available at several Web sites, and the Government of Israel site makes certain other laws and documents available: <http://www.israel-mfa.gov.il>. Treaties and documents may be found at a private site, <http://www.ariga.com/treaties> and through links at a number of sites including <http://www.mideastweb.org/history.htm>. On sources of Palestinian Authority municipal law, see <http://www.law.emory.edu/IFL/legal/palestine.htm>.

28 See e.g., UN S/RES/1036 (1996), <http://www.un.org/Docs/scres/1996/9600633e.htm>.

29 But, since 1999, available online at <http://www.cm.gov.nc.tr>.

30 Jan Christoph Nemitz, “The Legal Status of the Republika Srpska,” Osteuropa Recht 43 (1997): 89.

31 Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23, 1999, <http://www.alb-net.com/kcc/interim.htm>. Kosovo legal measures as approved by UNMIK are described at <http://www.un.org/peace/kosovo> the text of relevant regulations can be retrieved by URL in the format <http://www.un.org/peace/kosovo/pages/regulations/reg038.html>.

32 Israeli-Palestinian Interim Agreement on the West Bank and Gaza (Oslo II), Eugene Cotran, ed., “The Arab-Israeli Accords: Legal Perspectives” (1996); <http://www.israel.org/mfa/go.asp?MFAH00qa0>.

33 <http://www.rlg.org/shares/oagindex.html> Participating libraries include major U.S. academic and institutional libraries; also, in Europe, the American Academy in Rome, the Bavarian State Library, the Bibliothque nationale de France, the Bibliothque nationale suisse, the Leo Baek Institute (New York, London & Jerusalem) and the University of Birmingham.

35 E.g., New England Law Library Consortium, <http://www.nellco.org>; Mid-America Law School Library Consortium, <http://www.washlaw.edu/malslc/midamls.html> Consortium of Southeastern Law Libraries (COSELL), <http://library.law.unc.edu/cosell>; Washington Research Library Consortium (ALADIN), <http://www.aladin.wrlc.org/WebZ/WRLCConnect:sessionid=0>. See, generally, American Association of Law Libraries, 1996-97 Membership List and Consortia Biographies, <http://www.aallnet.org/chapter/consortia_member_list.asp>.

40 <http://www.snl.ch/e/aktuell/index.htm> (description and link on Swiss National Library site).

43 The UNESCO site, at <http://www.nesco.org/webworld/portal_archives/pages/Archives>, has links to governmental libraries and archives.

44 National Library Activities and Projects: Semi-Annual Update, June 2000, <http://www.nlc-bnc.ca/10/5/a5-201-e.html>.

45 See Renaud Fuchs, “Le CADIST et le fonds colonial de la bibliothèque universitaire d'Aix-Marseille I,” Mémoire d'étude, Diplôme de conservateur de bibliothèques, École nationale supérieure des sciences de l'information et des bibliothèques, Villeurbane, France (1995).

46 <http://www.nara.gov>; also Library of Congress Hispanic, Portuguese and Caribbean collection, <http://lcweb.loc.gov/rr/hispanic/hispcoll.html>.

47 See, for example, Edouard S. de Klerck, “History of the Netherlands East Indies, Rotterdam,” (1938), Vol. 1, at 195-212, 324-455, 425-48.

48 Catalog reference: “CO”; see PRO leaflet, “Dominions Office”, <http://catalogue.pro.gov.uk/ExternalRequest.asp?RequestReference=ri2085>.

49 Historical Manuscripts Commission, Reports and Calendars Series, <http://www2.hmc.gov.uk/ubs/pubs.htm>.

51 See, for example, the sources used by two doctoral researchers: Peter G. Gowing, “Mandate in Moroland: the American Government of Muslim Filipinos, 1899-1920,” Quezon City: Univ. of the Philippines (1977); Samuel Kong Tan, “The Muslim Armed Struggle in the Philippines, 1900-1941,” thesis, Syracuse Univ. (1973); also Michael J. Crawford et al., “The Spanish-American War: Historical Overview and Select Bibliography,” Washington, Naval Historical Center (N.D.), <http://www.history.navy.mil/biblio/biblio7/biblio7d.htm>.

52 It is a measure of the pressure of resources on space that both IALS and SOAS have recently installed movable shelving.

55 For a discussion of law in Commonwealth countries with mention of some hybrid systems, see <http://www.albany.edu/acc/AccountDptmt/Research/Commonwealth/region/general.htm>.

56 Although beyond the scope of this article, it is worth mentioning the need to maintain the mechanical and electronic ability to retrieve and to read and convert digital materials in a format that may eventually become obsolete, including access to password-protected data after a rights holder has ceased to trade. Permanent archiving of substantive materials maintained on Web sites has been repeatedly mooted: see, for example the report of the seminar “Digital Preservation in the Context of Edinburgh University”, Sept. 24, 2001, <http://www.lib.ed.ac.uk/lib/sites/digpres/seminarday.shtml>.

57 The concentration on European jurisdictions here is incidental and by way of example only, due to the Euro-centered nature of much of the substantive research project underlying this paper. See Timothy McMullin's “Locating Foreign Primary Law on the Web” for other countries and regions: <http://www.law.uh.edu/librarians/tmulligan/foreignlaw.html>.

65 <http://www.ieem.org.mo/projects/ecli/e_clegal.htmWreports> (industrial property law; organizational site); <http://www.umac.mo/basiclaw/english/main.html> (Basic Law; Macao academic site).

71 This writer has exchanged correspondence with the Turkish Foreign Ministry over its continued online references to Article 19 of the Greek Nationality Code, repealed by Law No. 2623 of June 24, 1998, art. 9(14); the Turkish authorities justified their position by the continuing disability represented by the new law's nonretroactivity.

73 Those concerned with European jurisdictions are reproduced at <http://www.uniset.ca>.

88 <http://viadrina.euv-frankfurt-o.de/~dvr/ejcl/index2.html>(Norman Witzleb, Comparative Law and the Internet).

89 July 9, 1991, p. 3 (Romanian text).

90 Jul 5, 1991, p. 2 (Russian text).

92 Paper delivered by Geoff Smith, Symposium on Access to and Preservation of Global Newspapers, Washington, DC, May 27-28, 1997, <http://wwwcrl.uchicago.edu/info/icon/597smith.htm>.

93 Service sold to the public as “World News Connection,” <http://wnc.fedworld. gov>. See <http://www.lib.umich.edu/govdocs/FBIS.html> for University of Michigan Library explanation of available formats since 1958.

95 ICRC treaty and humanitarian law at <http://www.icrc.org/eng/ihl>.

96 E.S. Zeballos (ed.), La nationalité, Confrences faites l'Universit de Buenos Aires, Paris: L. Tenin, 1914-1919; Oskar Borchardt, ed., (W. Bowstead, ed. of British edition), The Commercial Laws of the World: Comprising the Mercantile, Bills of Exchange, Bankruptcy and Maritime Laws of all Civilized Nations… in the Original Languages Interleaved With an English Translation, Boston: Boston Book Co. (London: Sweet & Maxwell), 1911-1914 (32 vols. were planned, not all published).

97 West Indian Legislation Indexing Project (WILIP) in cooperation with the British Development Division, annual, compiled at the Faculty of Law Library, University of the West Indies, Barbados.

98 Asian Development Bank, Project Dial, <http://www.austlii.edu.au/au/special/dial>.

100 Index to Legal Periodicals, Index to Foreign Legal Periodicals, Legal Journals Index, SCAD European law index and others; many on CD-ROM and available online to subscribing institutions. The Peace Palace Library at The Hague catalogs many journal articles and laws of likely interest to its users.

106 <http://lcweb2.loc.gov/law/GLINvl/GLIN.html>; Julius J. Marke, Use of the Global Legal Information Network, N.Y.L.J., Sept. 16,1997; description at AUSTLII: <http://austlii.edu.au/~graham/DIAL_Report/Report-2.7.html>. Full access to the GLIN database of foreign legislation in Adobe Acrobat format is limited to contributing governments and participating organizations; the English language summaries and searchable index are freely accessible.

116 For a survey by the United Nations Library, Geneva, “Electronic Edition and New Technologies”, see <http://www.unog.ch/frames/library/pub/committee/edition.htm>.

117 <http://www.unhcr.ch>; also (more extensively) on CD-ROM.

135 <http://embassy.org> with links to specific embassies.

147 Russian Archives Online, <http://www.pbs.org/redfiles/rao>.

149 <http://www.llrx.com/resources4.htm>, updated regularly.

150 Archived at <http://www.llrx.com/library>.

153 Discussion originally posted to <http://www.biblib.com>, now archived at <http://www.geocities.com/ussc2012/lib/biblib.htm>.

159 Thus: United Arab Emirates, UAE Gazette, retrospectively digitized from 1972, according to government press release of Sept. 24, 1997; Korea, Kwanbo, <http://open.korea.go.kr/go_gwanbo>, online as from 1 May 2000; and see references in Table 1.

161 Limited currently to: Australia, Bahamas, Barbados, Canada, Cuba, England, France, Guyana, India, Ireland, Jamaica, New Zealand, Philippines, Scotland, Spain, Trinidad & Tobago, Windward Islands, International Organizations.

165 Of which the foreign government publications category includes: European official statistical serials, foreign documents, foreign official gazettes, social and economic development plans.

170 In 1982 the India Office Library was transferred from the Foreign and Commonwealth Office to the British Library.

173 Kenneth McMahon, “BUBLBITS: Follett and Figit,” Computers and Libraries 14:9 (1994): 61-66, <http://bubl.ac.uk/journals/lis/ae/cil/articles/cil0994.htm>; <http://www.ukoln.ac.uk/services/elib/papers/other/periodicals>.

181 <http://www.coe.int>; for a guide to researching Council of Europe legal instruments, see <http://www.llrx.com/features/coe.htm>.

182 Anne Burnett, “Guide to Researching the Council of Europe,” <http://www.icj-cij.org>.

183 <http://www.bl.uk/services/document.html>. DSC services are, in principle, available to any library user in Britain, and many in other countries where arrangements have been formalized; and also via the Internet.

184 <http://ials.sas.ac.uk/library.htm>. Annual membership is required for commercial and professional users.

188 <http://www.bnf.fr> (“Reproduction de documents”).

189 See, for general discussion on information brokers and document acquisition sources, <http://www.oss.net/NOTICES/96/February/Products.html>.

190 For the ALA-sponsored ILL Code, see <http://www.ala.org/rusa/stnd_lnc.html>.

194 See index of lists at <http://www.lib.uchicago.edu/cgi-bin/law-lists> and directory of scholarly and professional e-conferences at <http://www.mailbase.ac.uk/kovacs>.

200 <http://www.bna.com/bnaplus/docret.html> (“court opinions, briefs, consent decrees, settlements; congressional committee reports, bills, public laws, amendments, calendars; federal government rulings, proposed and final regulations, statistical releases, comment letters; state legislation and regulations; foreign government laws, regulations, reports, studies; private sector company policies, industry surveys, union contracts; and more.”)

201 Yellow pages of numerous countries are accessible at <http://www.bestyellow.com/services/yellow100/yellow100content.html>. Embassy commercial sections can frequently provide the names of business service centers and secretarial/typing/word processing services.

203 See, for example, the policy statement and instructions of the Tsinghua University Library, Beijing, <http://www.lib.tsinghua.edu.cn/english/engILL.htm>.

208 By way of example: P. Delannoy, “The Library of the University of LouvainNineteenth Century and after 98(1915): 1061; regarding the arson attack upon the National Library of Bosnia see Andras Riedlmayer, “Libraries and Archives in Kosova: A Postwar Report,” Bosnia Report, No. 13/14 (Dec. 1999), <http://www.bosnia.org.uk/bosrep/decfebOO/libraries.htm>.

209 Thus, <http://lemonde.reverso.net/PopUP_trad.asp>; google. com and altavista.com offer limited machine translation facilities in conjunction with Internet searches. See also the European Commission's machine translation projects, including EUROTRA (ET 10-63), <http://www.ccl.kuleuven.ac.be/about/EUROTRA.html>, Final Evaluation of the Results of EUROTRA (Diane Pub., 1995); and University of Stuttgart's Web page on machine translation projects: <http://www.ims.uni-stuttgart.de/info/MTTools.html>.

* LL.B. (Columbia), M. A. in L.I.S. (University College London), Docteur en droit (Louvain). Member of the New York and District of Columbia Bars.

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