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Federal Legislative History and Treaty Research Interpretation


									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: 47 th 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.
   Text of
Proposed Bill

                & Support.
    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. (3 rd) 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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