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Federal Legislative History and Treaty Research


									Federal Legislative History and
Treaty Research / Interpretation
(Use of Travaux Preparatoires).

       ALR: International Law
         January 26, 2004
• What is a legislative history?
• Legislative documents preparatory to enactment
  that may assist in determining legislative
  meaning or intent.
• 1) An attempt to determine the intent of the
  legislature when passing a particular act.
• 2) A gathering of all relevant documents
  produced throughout the legislative process.
The Traditional Scenario:
             • Uncover Statute (or
             • Undefined Terms.
             • Unexpected
             • Ambiguous Phrase.
             • “Gap-Fillers” for
               Statutes (or Treaties
               implemented in the
    The Challenging Pursuit:
• May not find
  information that
  EXACTLY explains
  the meaning of a
  particular phrase.
• WILL find
  information that
  explains the general
  purpose of the act.
The Legislative History “Paper
1. Congressional Bills       Assigned H.R. #/ S. #

2. Committee Hearings        Testimony of experts.

3. Committee Reports         Often both House and
4. Committee Prints          Documentation prepared
                             by committee staff.
5. Congressional Debates     Reported in Congressional
6. Presidential statements   Weekly Compilation of
                             Presidential Documents.
Evaluation of Leg. Resources
• (1) Conference, House, and Senate
• (2) Analysis of Different Version of the
• (3) Statements by sponsors or
  committee members during debate.
• (4) Committee prints and hearings.
• (5) Presidential statements.
How to find the text of the
              • Use U.S.C.A. or
                U.S.C.S. General
                Index for subject
                search, OR
              • Use the Popular
                Names Table for the
Legislative History – Statutory
• United States Statutes at Large
  (Session Laws) [Chronological
• United States Code (Codified Laws)
  [Subject Arrangement].
Legislative History Resources:
•   Compiled Legislative Histories=
•   Nancy P. Johnson’s, “Sources of Compiled Legislative
    Histories: A Bibliography of Government Documents,
    Periodical Articles, and Books.”
•   The Union List of Legislative Histories: 47th Congress, 1881-
    101st Congress, 1990.
•   Monthly Catalog of United States Government Publications.
•   CIS Online – accessible via LEXIS/NEXIS database or
    Congressional Universe.
•   Bernard D. Reams, Jr.’s “Federal Legislative Histories: An
    Annotated Bibliography and Index to Officially Published
   Federal vs. Treaty legislative
      histories (―travaux‖):
• Similar processes of gathering preparatory
  documents that might help determine the intent of
  the legislators (or parties, in the case of treaty
• For the legislative history of treaties, researchers
  in the U.S. use standard legislative history
  sources to locate Senate Treaty Documents,
  Senate Executive Reports, debates in the
  Congressional Record, etc…
• What are some of the documents in a legislative
• (1) Committee Reports – IMPORTANT!
• (2) Legislative Floor Debates (Cong. Rec.)
• (3) Hearings
• (4) Presidential memoranda
• (5) Previous versions of bills
• (6) Other miscellaneous documents, such as
  Comm. Prints.
• Virtually all documents available for federal
  government (much less for states).
• Role of legislative history in statutory
      - Controversial
      - New Textualism – Justice Scalia
      - History of acceptance by courts
      - Current situation
      - Wisconsin State courts
• At what stage in the research process do
  you research the legislative history?
• Usually after researching cases.
• Saves time because cases might interpret
  statute to answer your questions.
• CIS (Congressional Information Service) in paper.
  Indexing & abstracting service. Back to 1970. 3 parts:
  - Legislative History volume.
        *Listed by Public Law number.
        *Lists all documents & where they are found in
  microfiche collection.
        *Includes references to Congressional Record
  - Index volume (subject index and various tables).
  - Abstract volume (describes documents).
• CIS is on LEXIS (not on Westlaw, which has
  other legislative history sources).
• CIS on the Web: Congressional Universe.
      - Also the text of statutes & regulations.
      - Remote access.
      - Also allows for full-text searching of
      - Very user-friendly.
• Legislative History documents in USCCAN:
  - For selected statutes.
  - Partial histories.
  - Lists all committee reports.
  - Some Presidential signing statements.
  - Occasional other documents.
  - Lists additional sources (e.g. Congressional
  Record), but no text.
How to Identify/Find Citations
to documents in Leg. History:
• Slip Laws/United States Statutes at
  Large. Cite: 110 STAT. 2104.
*Since 1975, there is a legislative history
  summary included at the end of each
  slip law.
    House Reports [CIS# or
• Find citation through legislative history
  already conducted in CIS Index or
• “War Crimes Act of 1996” – H.Rpt.
  104-698 on H.R. 3680, July 24, 1996.
• Sources: CIS96: H523-28 OR
     Congressional Debate:
• Uncover citation through search in CIS
  Index, Slip Law, or USCCAN.
• Sample Source: 142 Congressional
  Record, 104th Congress, 2nd Session –
• RECORD: Dates of House/Senate
  considerations and page numbers for
  Cong. Record.
19562                                          CONGRESSIONAL RECORD—HOUSE                                             July 29, 1996

Creek Band in Oregon, the Cherokee Nation                  SEC. 2. CRIMINAL PENALTIES FOR                      countries, and they represent largely what
of Oklahoma, the Sioux tribes, and the Black-                  CERTAIN WAR CRIMES.                             the United States would do, whether or not
feet tribes to file claims with the Indian Claims             (a) IN GENERAL—Title 18, United States           a party to the Conventions. Our own conduct
Commission.                                                Code, is amended by inserting after chapter         has served to establish higher standards and
    In the Zuni and Isleta cases, the pueblos              117 the following:                                  we can only benefit by having them
failed to act under the Indian Claims Commission                 ―CHAPTER 118—WAR CRIMES                       incorporated in a stronger body of wartime
Act because of erroneous advice received                   ―Sec.                                               law.
from the Bureau of Indian Affairs. Pueblo                  ―2401. War crimes.                                   Mr. Speaker, the United States ratified the
officials were not informed that a claim under             Ҥ2401. War crimes                                   Conventions in 1955. However, Congress
the act could be made based on aboriginal                                                                                  Text of
                                                              ―(a) OFFENSE.—Whoever, whether inside or has never passed implementing legislation.

                                                                                                                        Proposed Bill
use and occupancy.                                         outside the United States, commits a grave breach The Conventions state that signatory
    The Isleta Pueblo has previously filed a very          of the Geneva Conventions, in any of the             countries are to enact penal legislation

limited claim under this act. However, their claim         circumstances described in subsections (b), shall punishing what are called grave breaches,
was not based on aboriginal use and occupancy.             be fined under this title or imprisoned for life or actions such as deliberate killing of prisoners
It has been the aboriginal use and occupancy issue         any term of years, or both, and if death results to of war, the subjecting of prisoners to biological
which has been the basis for a majority of the             the victim, shall also be subject to the penalty of experiments, the willful infliction of great
Indian tribal claims under the Indian Claims               death.                                               suffering or serious injury on civilians in
Commission Act. None has been based on a claim               ―(b) CIRCUMSTANCES.—The circumstances occupied territory.
founded on specific documentary evidence.                  referred to in subsection (a) are that the person        While offenses covering grave breaches
   In addition, this legislation contains a provision      committing such breach or the victim of such           can in certain instances be prosecutable under
for the payment of interest, consistent with               breach is a member of the armed forces of the         present Federal law, even if they occur
previously passed legislation. However, it is not          United States or a national of the United States      overseas, there are a number of instances in
automatic; it provides that interest may be awarded        (as defined in section 101 of the Immigration         which no prosecution is possible. Such
at the court‘s discretion. It seems to me that the         and Nationality Act).                                 nonprosecutable crimes might include
payment of interest is an equitable way to                    ―(c) DEFINITIONS.—As used in this section, situations where American prisoners of war
compensate the pueblo in lieu of the beneficial            the term ‗grave breach of the Geneva Conventions‘ are killed, or forced to serve in the Army of
use of the land by the pueblo since the land was           means conduct defined as a grave breach in any of their captors, or American doctors on
taken by the Government. If the United States              the international conventions relating to the laws missions of mercy in foreign war zones are
acts as a supreme sovereign and confiscates land,          of warfare signed at Geneva 121 August 1949 or kidnapped or murdered. War crimes are not
it necessarily violates its fiduciary duty.                any protocol to any such convention, to which the a thing of the past, and Americans can all too
    I would like to state that this bill does not          United States is a party.‖                             easily fall victim to them.
support the merits of the pueblo‘s claim which               (b) CLERICAL AMENDMENT.—The table of                    H.R. 3680 was introduced in order to
it would lodge in the claims court; it merely              chapters for part I of title 18, United States Code, implement the Geneva Conventions. It

grants the opportunity for the pueblo to present           is amended by inserting after the item relating         prescribes severe criminal penalties for
the merits of its case in the appropriate judicial         to chapter 117 the following new item:                 anyone convicted of committing, whether
   Again, I urge your support of this legislation as
                                                           “118.War crimes……………………2401.”
                                                              The SPEAKER pro tempore. Pursuant to
                                                                                                                  inside or outside the United States, a grave
                                                                                                                   breach of the Geneva Conventions, where            Testimony
we finally try to correct this longstanding in-
                                                           the rule, the gentleman from Texas [Mr. SMITH] the victim or the perpetrator is a member
                                                           and the gentleman from Virginia [Mr. SCOTT]             of our Armed Forces. In future conflicts           & Support.
   Mr. SMITH of Texas. Mr. Speaker, I have no              will control 20 minutes.                                H.R. 3680 may very well deter acts against
further requests for time, and I yield back the               The Chair recognizes the gentleman from Texas Americans that violate the laws of war.
balance of my time.                                        [Mr. SMITH].                                               Mr. Speaker, I urge my colleagues to
   The SPEAKER pro tempore. The question is on                               GENERAL LEAVE                          support this legislation, and I reserve the
the motion offered by the gentleman from Texas                Mr. SMITH of Texas. Mr. Speaker, I ask                 balance of my time.
[Mr. SMITH] that the House suspend the rules and           consent that all Members may have 5 legislative days Mr. SCOTT. Mr. Speaker, I yield myself
pass the bill, H.R. 740.                                   to revise and extend their remarks on the bill under such time as I may consume.
   The question was taken; and (two-thirds having          consideration.                                              Mr. Speaker, as the gentleman from
voted in favor thereof) the rules were suspended              The SPEAKER pro tempore. Is there objection to Texas has fully explained, H.R. 3680
and the bill was passed.                                   request of the gentleman from Texas?                       implements this country‘s international
                                                              There was no objection.                                 obligation under the Geneva Convention
         _______________________                              Mr. SMITH of Texas, Mr. Speaker, I yield myself which were ratified by the United States
                                                           such time as I may consume.                                in 1955 to protect the victims of war by
       WAR CRIMES ACT OF 1996                                 Mr. Speaker, H.R. 3680 is designed to implement the providing criminal penalties for certain
                                                                   Geneva conventions for the protection of victims. Mr. Speaker, this has never
 Mr. SMITH of Texas, Mr. Speaker, I move to suspend war. Our colleague, the gentleman from North                       been formally enacted by statute,
the rules and pass the bill (H.R. 3680) to amend title 18,          Carolina, WALTER JONES, should be admired and the bill accomplishes this oversight.
United States Code, to carry out the international obligations for introducing this bill and for his dedication          Mr. Speaker, I will not be supporting
of the United States under the Geneva Conventions to provide to such a worthy goal.                                    the legislation because it contains a new
criminal penalties for certain war crimes.                                          *1445                                provision for the death penalty, but I can
   The Clerk read as follows:                                 Mr. Speaker, the Geneva Conventions of 1949 codified say that the bill enjoys broad-based
                       H.R. 3680                             rules of conduct for military forces to which we have long support on this side of the aisle.
   Be it enacted by the Senate and House of Representatives adhered. In 1955 Deputy Under Secretary of State               Mr. Speaker, I reserve the balance of
of the United States of America in Congress assembled,           Robert Murphy testified to the Senate that---           my time.
SECTION 1. SHORT TITLE                                                   The Geneva Conventions are another long step Mr. SMITH of Texas. Mr. Speaker,
  This Act may be cited as the ―War Crimes Act of 1996‖. forward towards the mitigating the severity of war on I thank my colleague, the gentleman
                                                                 its helpless victims. They reflect enlightened practices from Virginia, for his comments, and
                                                                 as carried out by the United States and other civilized I yield such time as he may consume
    Congressional Hearings:
• Citation provided through legislative history
• Sample Title: “War Crimes Act of 1995,”
  hearings before the Subcommittee on
  Immigration and Claims, House Judiciary
  Committee, June 12, 1996.
• Sample Source Citations: CIS96: H521-68;
     Sample Miscellaneous
• Listed under P.L. # legislative history
  as “Miscellaneous”.
• Sample Citation: Weekly Compilation of
  Presidential Documents, Vol. 32
  (1996): Aug. 21, Presidential
• Look up call number in library catalog
  for these volumes.
   Vienna Convention – Interpretation of
Treaties & use of “travaux preparatoires” :
• Article 31 provides that a:
   ―…treaty shall be interpreted in good faith in
  accordance with the ordinary meaning to be
  given to the terms of the treaty in their context
  and in the light of its object and purpose.‖
 * Article 32 allows use of supplementary means of
  interpretation when confirming a ―meaning
  resulting from the application of Art.31‖ or when
  the treaty language yields an ―ambiguous or
  obscure meaning or a result which is manifestly
  absurd or unreasonable.‖
  The Debate on the Use of “travaux
preparatoires” in Treaty Interpretation:
• Much like the debate at the Fed‘l level.
• How do you know when a treaty‘s terms are
• Vienna Convention leaves discretion to the
  interpreter of the rule to determine whether treaty
  terms are so unclear or unreasonable to require
  ―travaux preparatoires.‖
• For a more detailed discussion of U.S.
  application – see Restatement of the Foreign
  Relations Law of the U.S. (3rd) at pp. 198-200.
               Scalia’s view:
• See generally, U.S. v. Stuart, 109 S.Ct. 1183,
  1193-97 (1989):
  “But it is a far cry from all of this to say that the
  meaning of a treaty can be determined, not by a
  reservation attached to the President’s
  ratification at the instance of the Senate, nor even
  by formal resolution of the Senate unmentioned
  in the President’s ratification, but by the
  legislative history of the sort that we have
  become accustomed to using for the purpose of
  determining the meaning of domestic
        Treaty Interpretation:
• Treaties, even more often than statutes,
  contain ambiguities which often lead to
  controversy in interpretation and
• The documents of legislative history
  produced during Senate consideration of
  treaties are a major source for clarification
  of the treaty text.
  U.S. (domestic component) of
        the Treaty Process:
• (1) Executive branch members negotiate and sign a
• (2) President submits the treaty to the Senate;
• (3) Senate prints the proposed treaty (S. Treaty Doc. No.);
• (4) Senate refers the proposed treaty to the Senate
  Foreign Relations Committee;
• (5) SFR Committee gen‘lly conducts hearings (S.Hrg.)
  and makes a recommendation to the full Senate in a
  report (S.Ex.Rept.No.);
• (6) Senate passes a resolution of ―advice and consent‖ to
  ratification of the treaty (2/3 vote of quorum of Senate);
• (7) President ratifies the treaty.
  Documents/Sources for Treaty
   Interpretation in the U.S.:
• Senate Treaty Documents, 1981- (Microfiche
• Senate Executive Reports – most authoritative
  legislative source (Law Microfiche KF30.9).
• TIAS (slip form) and UST (bound) (Law
  KZ235.3.U55) / Treaties in Force (online/print).
 Documents/Sources for Treaty
  Interpretation in the U.S.:
• CCH Congressional Index – status table of
  treaties pending before the Senate.
• CIS Index/Abstracts/Leg.Hist. volumes –
  same as Fed‘l Legislative Histories.
• Congressional Record Index/CIS Index to
  US Senate Executive Docs. & Reports.
        Recent Treaty Actions:
• Senate Treaties:
• U.S. State Dep‘t – Current Treaty Actions:
• International Legal Materials (ILM) – ―Recent
  Actions Regarding Treaties to which the U.S. is a
  Party‖ – Lexis/Westlaw/HeinOnline.
• ―Treaties‖ tab in vol. 1 (Senate) of the looseleaf
  Congressional Index (Law KF 35.C71).
      Additional Treaty Help:
• Contact the U.S. Dep‘t of State, Office of
  Treaty Affairs: (202) 647-1345.
• Ask an international law librarian or
  experienced practitioner in int‘l law for
  help (keep a contact list for future

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