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Federal Legislative History and Treaty Research / Interpretation (Use of Travaux Preparatoires). ALR: International Law January 26, 2004 INTRODUCTION: • 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 Treaty). • Undefined Terms. • Unexpected situation/application • Ambiguous Phrase. • “Gap-Fillers” for Statutes (or Treaties implemented in the U.S.). 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 Trail”: 1. Congressional Bills Assigned H.R. #/ S. # 2. Committee Hearings Testimony of experts. 3. Committee Reports Often both House and Senate. 4. Committee Prints Documentation prepared by committee staff. 5. Congressional Debates Reported in Congressional Record. 6. Presidential statements Weekly Compilation of Presidential Documents. Evaluation of Leg. Resources • (1) Conference, House, and Senate Reports. • (2) Analysis of Different Version of the Bill(s). • (3) Statements by sponsors or committee members during debate. • (4) Committee prints and hearings. • (5) Presidential statements. How to find the text of the law: • Use U.S.C.A. or U.S.C.S. General Index for subject search, OR • Use the Popular Names Table for the Act [Codes/Shepards]. Legislative History – Statutory Resources: • United States Statutes at Large (Session Laws) [Chronological Arrangement]. • 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 Sources.” 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 interpretation). • 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… INTRODUCTION • What are some of the documents in a legislative history? • (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. INTRODUCTION • Virtually all documents available for federal government (much less for states). • Role of legislative history in statutory interpretation. - Controversial - New Textualism – Justice Scalia - History of acceptance by courts - Current situation - Wisconsin State courts LEGISLATIVE HISTORIES: • 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. FINDING & COMPILING FEDERAL LEGISLATIVE HISTORIES: • 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 citations. - Index volume (subject index and various tables). - Abstract volume (describes documents). HANDLING & COMPILING FEDERAL LEGISLATIVE HISTORIES: • 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. http://law.marquette.edu/cgi-bin/site.pl. - Also allows for full-text searching of documents. - Very user-friendly. MISCELLANEOUS: • 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 SuDoc]: • Find citation through legislative history already conducted in CIS Index or USCCAN. • “War Crimes Act of 1996” – H.Rpt. 104-698 on H.R. 3680, July 24, 1996. • Sources: CIS96: H523-28 OR Y1.1/8:104-698. Congressional Debate: • Uncover citation through search in CIS Index, Slip Law, or USCCAN. • Sample Source: 142 Congressional Record, 104th Congress, 2nd Session – 1996. • 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 “§2401. 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 presented. 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 Speaker 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 forum. 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- justice. 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 research. • 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; Y4.J89/1:104/81. Sample Miscellaneous Publication: • Listed under P.L. # legislative history as “Miscellaneous”. • Sample Citation: Weekly Compilation of Presidential Documents, Vol. 32 (1996): Aug. 21, Presidential Statement. • 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 unclear/unreasonable? • 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 legislation.” Treaty Interpretation: • Treaties, even more often than statutes, contain ambiguities which often lead to controversy in interpretation and application. • 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 treaty; • (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 KF45.T734)(http://www.gpoaccess.gov/serialset/ cdocuments/index.html) • 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: http://www.senate.gov/pagelayout/legislative/d_t hree_sections_with_teasers/treaties.htm. • U.S. State Dep‘t – Current Treaty Actions: http://www.state.gov/s/l/c3428.htm. • 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 reference).
"Federal Legislative History and Treaty Research"