Book Review: Statelessness: The Enigma of an International Community

By: Taryn MarksStatelessness

William E. Conklin. Statelessness: The Enigma of an International Community (Hart Publishing, 2014). 366 p. Hardcover $120.00.

Statelessness is an enigma, William Conklin writes, due to an assumption and a claim. The international community assumes that all persons are members of that community through the state of which they are a national. The international community claims that it provides protection for all members. The enigma arises because millions of persons are stateless, are not nationals of any state and thus are excluded from the international community, leaving them unprotected.

For those interested in the history of statelessness and in a thorough explanation of how and why the international community has created (or simply allowed to exist) such a large, unprotected population, Conklin’s book will be well received. Conklin’s passion for the subject is clear and his points are well-supported. However, for those hoping Conklin will present a definitive (or even a pie-in-the-sky) answer to the question of how to solve this enigma, the book may leave you frustrated.

Statelessness begins by explaining that the international community has two discourses. In the first discourse, the international community exists as the aggregate will of the states, the traditional definition of the international community. Under this view, the state is the primary actor and member of the international community; most importantly, the states always maintain independent power over domestic affairs, what Conklin call the “boundary of the reserved domain”—the boundary of power that the international community cannot touch. In the second discourse, Conklin’s implicitly preferred view, there is the international community as a whole. In the international community as a whole, the individual person is the actor and can access that community without state intervention. According to Conklin, statelessness is inevitable when the world is viewed as the aggregate will of the states because the ultimate decision as to whether to recognize the nationality of a person will always reside with the executive branch of a state. Under the international community as a whole, however, the person’s social and cultural bonds determine nationality.

Statelessness focuses on the status of those persons who, for whatever reason, no longer have a state in which they may legally live. Conklin focuses the first part of the book on the concept of statelessness, explaining how statelessness developed under the aggregate will of the states before discussing the consequences of statelessness and the reasons why statelessness has not been protected as a human right. Conklin provides numerous, often moving examples of those who are stateless: refugees from ISIS living in camps in Turkey, those who live in Palestine, nationals of the former USSR. The sources he uses are wide and varied, including international treaties, General Assembly documents, and fundamental sources of international law (such as jus cogens) to document and explain this enigma. He also pulls in sovereign and international court decisions from a variety of sources. But the strength of his analysis is significantly diminished by the repetitiveness of the first half of the book.

One almost forgets the repetitiveness of the first half of the book, however, when you reach the end of the book. In the last chapters, Conklin’s clear passion for those who have been rendered stateless stands out, and the book becomes much less repetitive. Conklin focuses on defining the social and cultural bonds that should exist between a person and her “state,” before shifting to his main question, whether the traditional sources of international law can be used to obligate states to protect a stateless person, regardless of the will of the state. Drawing a parallel to international criminal law, particularly to the ad hoc tribunals that were set up after Rwanda and Yugoslavia, Conklin argues that, like international criminal law, protecting stateless persons is implicit in international treaties. When an executive arbitrarily expels or refuses to grant a person nationality and when statelessness is recognized as a basic human right that is self-executing, the boundary of the reserved domain can be pierced. Being able to penetrate a state executive’s decisions means that the shift from an aggregate will of the states to the international community as a whole has started. That, it seems, is one of Conklin’s points: that statelessness arose because of the aggregate will of the states discourse, and that it is a good thing that the shift to the international community as a whole has begun.

Book Review: An Eye for an Eye: A Global History of Crime and Punishment

By: Amy LewontinAn Eye for an Eye

Mitchel P. Roth.  An Eye for an Eye:  A Global History of Crime and Punishment (Reaktion Books, 2014). 304 p. Hardcover $30.00.

Mitchel P. Roth’s new sweeping history of crime and punishment is a fascinating look at the way many societies, Eastern and Western, have developed methods over time to deal with behavior that is considered criminal.  Roth very early on in his introduction explains that there is no “definitive answer to the question, ‘What is crime?’” and then goes on to say that for the purposes of his book, “crime will be regarded as a legal concept, that is, what is or is not against the law”.

An Eye for An Eye traces the history of crime and punishment from Mesopotamia and the Code of Hammurabi to the modern era.  What is worth noting about the book is Roth’s thoroughness in trying to survey as many parts of the world as he can to show that the laws, practices, and motives of one society influence those of others.  Roth examines the types of crimes committed in places like China, India and many of the European nations and explains how one nation’s imprisonment and capital punishment practices influence the others.

For example, in a chapter titled, “The Transformation of Punishment”, Roth talks about the British penal reformer, John Howard visiting Russia, to learn about its system, and to understand how Russia abolished capital punishment for all crimes except first-degree murder.  Before that, Roth talks about the large penitentiary built near Philadelphia that brought Charles Dickens to the United States to visit the prison and then to denounce it for the use of solitary confinement.   Additionally, the influence of nations on their colonies and the way in which criminal laws developed due to political and social influences by many nations is what makes the book extremely interesting to read.

This is a book that can both be read cover to cover, but can also be used as a source text for students of history and criminal studies who may be interested in a particular society or a particular method of punishment for a crime.  The book is extremely well documented and the footnotes contain a wealth of information and good source material, should you need to follow up on a particular topic. Something else worth noting here is that Roth is acutely aware of the way many nations throughout history approached punishment.  Oftentimes, the class and wealth of the victim as well as the perpetrator had a large effect on the outcome.   There is much discussion of Sharia law, as well as the origins of civil and common law, as it affects the types of crimes and punishments meted out in many nations.  Roth generally maintains an objective stance in his descriptions of punishments for minor and serious crimes.  He does take certain societies to task, for their punishments, including the United States, for its very high incarceration rate.  The book covers so many types of crimes, including rape, murder, and from the modern era, financial crimes.

When I say this is a fascinating book, I should also say that it is a difficult book to read without flinching, mainly because the author examines many dark periods throughout history to seek out the types of crimes and the varied punishments that man has inflicted on man (and woman).  An Eye for an Eye is extremely well written and, for someone who enjoys reading various types of history, it is noteworthy in the breadth and the depth of the source material, including novels, newspaper accounts, as well as religious texts.  Roth also explains early on that information on every society is not necessarily readily available, and therefore he does the best he can with available source material.

I would highly recommend this book, to all types of libraries, but then caution that it is truly not for the faint of heart, as it delves into very rough subject matter in its descriptions of serious punishments throughout the world and throughout history.  It is the descriptions of the various punishments where I as a reader found myself both riveted and shaken by the cruelties of many societies.

Mitchel P. Roth has previously published several other books on prisons and crime and punishment and currently teaches Criminal Justice and Criminology at Sam Houston State University in Huntsville, Texas.

First Time Teaching FCIL Research: Final Weeks

By Alexis Fetzer

europe-political-mapAfter a hectic and stressful semester, I have concluded teaching my first Foreign & International Legal Research class. As with teaching any subject for the first time, it was a humbling experience, but I am left feeling confident that the class was an overall success.

The final three weeks of instruction focused on foreign legal research sources. In the first of these three classes we discussed the research process and general sources in foreign legal research. I have taught versions of this class multiple times as stand-alone modules to an Advanced Legal Research course, so this was one class I felt very confident about. Nonetheless, the nature and composition of my class changed how I would go about teaching it. I needed more in class exercises and opportunities for class participation rather than simply lecture.

During the second week of foreign legal research classes we discussed researching in common law jurisdictions. We focused mainly on the United Kingdom as an example. This gave me an opportunity to highlight Justis and JustCite as resources, two of my favorite databases to show off. In addition to these subscription databases, I showed free online resources such as BAILII and general print materials such as Halsbury’s Laws of England.

In the third week we covered research in civil law systems. I chose to break up these final two classes between common law and civil law jurisdictions to draw attention to the difference in sources of primary authority. In this final class I wanted to also demonstrate how treatment of case law and publication across different civil law jurisdictions differs greatly. This class turned into more of a shallow survey of different civil law countries and their legal publications than I would have liked. In the future, I plan to take two countries and use them as a comparison. I would also like to devote more time to discussing mixed and religious legal systems, but time did not permit this semester.

As an in-class activity, I assigned a different civil law country to each student and asked them to look into various types of legal publications for that country. Using the Foreign Law Guide, they looked to things like gazettes, codes and court reporters. I then had each student report back with their findings. This simple, straight forward exercise seemed to work well. If it didn’t work well, my students were at least distracted by the Perrier that I offered in class. (Perrier is French > France is a civil law country > Perrier should be offered in class.)

After concluding with three weeks of foreign legal research, it was time for my students to present their final projects. Over the course of two weeks, each of my five students offered a 15-20 minute presentation on an international and/or foreign legal research topic of their choice. Their accompanying paper to this project was the majority of their course grade. I gave my students a lot of leeway in terms of topic choice. One of my students presented on the research she performed for seminar paper in a separate class. Another student presented on the research he performed as a research assistant to an international law professor. My remaining students came up with hypothetical research scenarios. Topic choices, sources used, and problems encountered ranged widely. While this made for a much more interesting variety of presentations, I am now left with the difficult task of having to grade very different work products. I like the flexibility this offered the students, but the next time I offer this assignment I will be changing some of the requirements to make type of material presented more uniform. For example, rather than allowing students to research the law broadly on a given topic, I will ask them to come up with specific questions in their research process and offer answers to those using the sources they find. This will likely require more direction and counseling on my part throughout the semester rather than a single individual conference.

Outside of the final project, another area I hope to improve in the future is instruction on citation. I spent time talking about appropriate sources to include in Bluebook citations, but did not spend a lot of time meticulously going over citation format. I would be interested to hear how other instructors treat citation in their classes.

Foreign and international legal research is such a challenging course to teach for the first time. It was vital to have the assistance and support of others who have done this before. Without the help of Susan Gualtier, Alison Shea, and the FCIL Course materials web page, I am not quite sure how I would have made it through the semester. With this first semester down, I am excited for the next opportunity to teach this course.

Introducing…Alison Shea as the May FCIL Librarian of the Month

1. Where did you grow up?Shea

If you have ever had a conversation with me or walked into my office, chances are you already know I was born and raised in Wauwatosa, Wisconsin – I enjoy taking every opportunity I can to extol the virtues of Wauwatosa/ Milwaukee/ Wisconsin/ the Midwest generally.  Hands down my favorite place(s) in the world.

2. Why did you select law librarianship as a career?

I decided I would pursue a career in libraries while working at the Wauwatosa Public Library in high school.  During my three years there, I realized that working in a library was something I really enjoyed and felt good at; I’m tremendously grateful to everyone I worked with, especially my supervisor Eva, for helping start me on the path to becoming a librarian.  In college I was a political science major, so law librarianship seemed like a good fit.  I credit the AALL website with helping me identify the joint JD/MLS degree program at CUA, which allowed me to quickly move forward with my career goals.

3. When did you develop an interest in foreign, comparative, and international law?

My experiences studying abroad helped solidify my longstanding interest in pursuing a career with an international component – I did a semester each in Dublin and London through Boston University as an undergrad, and then two summers in Dublin through University of Tulsa in law school.  During my time abroad I had the opportunity to intern at some really interesting places, and my experiences at these placements taught me so much about both the similarities and differences of doing the same job at home and abroad.   Having this perspective has influenced my work with LLM students, as well as with professional associations in other countries.  My legal experiences in particular exposed me to the importance of European Union law, which has definitely been a professional focus in my career (don’t forget to register for our EU Legal Research workshop at AALL this summer!).

4. Who is your current employer? How long have you worked there?

Fordham University School of Law.  8 years.

5. Do you speak any foreign languages?

I took 7 years of Spanish, but I speak it with a Wisconsin accent so I’m not sure that counts.  I’ve also taken some classes in French, Irish, Polish, and Russian, but haven’t achieved fluency in any of them – although I’m pretty good at transliterating Russian, which is a useful skill to have.

6. What is your most significant professional achievement?

Being awarded the FCIL-SIS Daniel L. Wade Outstanding Service Award last year was a huge honor – knowing that my work is valued and appreciated by my FCIL colleagues means so much to me.

7. What is your biggest food weakness?

Cheese (see #1).

8. What song makes you want to get up and sing/dance?

Obviously singing and dancing are not allowed in the library, but I have on occasion caught myself stomping my feet, bobbing my head, and warbling in my best Scottish accent to a few of my favorites.

9. What ability or skill do you most wish you had (that you don’t have already)?

Like so many other FCIL librarians, I wish I had the time and money to learn more languages. I’m always inspired by my grandmother, who showed me the value of learning the language and culture of other countries – she could speak 5 languages and earned a master’s degree in Russian from Northwestern in the 1960s!

10. Aside from the basic necessities, what is one thing you cannot go a day month without?

I can’t seem to go a month without getting on a plane.  Which is really interesting, considering I was terrified of flying from about 1993-2001; one of the things that help me get over my fear was reading literally every book on air travel in the Wauwatosa Public Library.  If anyone out there suffers from a similar fear, I highly suggest checking out this book – there are too many excellent international conferences to let this fear keep you at home!

11. Anything else you would like to share with us?

As recently elected Vice Chair/Chair-elect of FCIL-SIS, I look forward to working with librarians both at home and abroad to continue the phenomenal work of all of the FCIL luminaries who have given their time and talent to make foreign, comparative and international law librarianship such a visible and important branch of our profession!

The Stagnation of International Law: 2015 ASIL Conference Program Report

cherry blossom 2

by Evelyn Ma

I’ve just returned from the annual ASIL meeting in Washington D.C., which coincided with the Jessup International Moot Court Competition.  The Hyatt Regency Hotel where both conferences were held was bustling with international lawyers, jurists, students and scholars, many of whom juggled their schedules to take in programs at both venues.

The first full day of programs on Thursday, April 9th provided one of the more memorable events entitled “The Stagnation of International Law”.  The panel discussion was moderated by Kal Raustiala from UCLA with panelists Ayelet Berman from the Graduate Institute of International and Development Studies of Geneva, Dinah Shelton and Edward Swaine from George Washington University, and Ingo Venzke from the University of Amsterdam.

The moderator began the session by noting that the number of multilateral treaties has declined since 2000.  He asked if this phenomenon signifies stagnation of international law.  Professor Shelton noted that stagnation only applies to multilateral treaty making. Other panelists noted that bilateral treaties, informal law and normative documents signed by parties with no formal treaty-making powers were on the rise. The decrease in the number of multilateral treaties concluded, however, as noted by the panelists, does not take into consideration the number of provisions concluded in individual treaties, their relative importance, as well as the number of parties entering into each treaty. A discussion followed as to whether the rise of soft law would replace multilateral treaty law-making.

Causes proposed by the panelists to account for the decline of multilateral treaty-making include both internal and external factors.  Domestic pressure, more players in the international law system, and few remaining unincorporated customs were issues discussed by the panelists.  Professor Shelton noted that in the international environmental law regime, the change of environmental standards has accelerated dramatically and some issues are not mature yet (while some, too mature) for judicial adjudication and is thus best decided on a case by case basis.  Professor Venzke noted that another cause for the decline in multilateral treaties was a decline in hegemony, of the United States in particular, as in the field of international economic law. Professor Shelton also talked about the cost and effort in the process of concluding a multilateral treaty. There will still be a need for more global standards in economic and technological areas, but non-binding agreements will come to be preferred.  The need for flexibility and the uncertainty of obtaining domestic approval will continue to disfavor multilateral treaty-making.

Introducing…Dan Donahue as the April FCIL Librarian of the Month

1. Where did you grow up?Donahue

I grew up in various parts of Fairfax County, Virginia, just outside Washington, D.C.  It was a great place to grow up; outdoors activities like hiking in the woods and jumping over creeks were within a short distance of cultural activities and exotic restaurants.  I suppose it helps that I was too young to have to deal with the local traffic myself.

2. Why did you select law librarianship as a career?

As a law student I spent time volunteering with local legal aid organizations.  My work there included helping to collect and prepare legal information for volunteer attorneys who had just enough time to do pro bono work but not enough time to learn new areas of law on their own.  I found it satisfying to help people and to make an organization operate more smoothly, and I enjoyed getting to constantly learn new areas of law without the inconvenience of actually having to practice law.  Law librarianship seemed like a good fit, and discussions with several law librarians confirmed it for me.

3. When did you develop an interest in foreign, comparative, and international law?

I grew up either vising family in Rio de Janeiro every summer or having relatives from Brazil visit my family instead.  I grew up expecting my career to have some sort of international component; my interest in law might be a side effect of growing up around D.C.

4. Who is your current employer? How long have you worked there?

I work at the University of Houston Law Center in the O’Quinn Law Library.  I started here in 2013.

5. Do you speak any foreign languages?

I speak some Portuguese and Mandarin Chinese.  I could always use more practice, though, and hope to learn other languages in the future.

6. What is your most significant professional achievement?

I think I’m still too new at being a law librarian to have achieved anything very significant that can be credited to me.  I’ve had a few pro se members of the public send me thanks after their issues are resolved, though, so while I don’t know exactly what results I’ve contributed to as a librarian the way I did when I was a practicing attorney, I like to think that I’m still achieving something valuable.

7. What is your biggest food weakness?

Barbecue.  Dim sum and étouffée are both very close seconds.

8. What song makes you want to get up to dance and sing?

I like pretty much everything equally.

9. What ability or skill do you most wish you had (that you don’t have already)?

I wish I could speak extra languages every time a need for them comes up in the course of work.  I gather that’s a common hazard of working in international law librarianship.

10. Aside from the basic necessities, what is one thing you not go a day without?

I’m capable of going without a working Internet connection, but it isn’t fun.

11. Anything else you would like to share with us?

I’m looking forward to seeing you all at the FCIL conference this summer.

Access to Information in Nigeria

BamgboseBy: Oludayo John Bamgbose [1]

In May 2011, the President of Nigeria, Dr. Goodluck Jonathan, signed Nigeria’s Freedom of Information Act (FOIA). [2] Although the Nigerian FOIA is one of the earliest access to information laws in Africa, it has given rise to several issues and these must be squarely addressed if indeed FOIA guarantees access to information under Nigerian Law.

Who must disclose?

Under FOIA, information not included in the exemption list must be proactively disclosed and released, provided that such request is directed at public institutions. Also, requests can be directed to private institutions funded with public funds or directed to private institutions rendering public services. Non-Governmental Organizations and other Incorporated Trustees are also required to make information available when demanded. It appears that many FOIA demands have been specifically targeted at public institutions while leaving out other categories, particularly, religious organizations.

How binding is FOIA on individual Nigerian states?

FOIA was made by the National Assembly. Many scholars have argued that any law made by the National Assembly is binding on the entire Federation and on all component units. Others argue that the Federation and the states have equal jurisdiction over information and thus component states have the right to enact or reject FOIA within their territories. This has been a major reason for the denial of information requests by state governments. To complicate matters, there are different judicial pronouncements on this issue by courts of competent jurisdiction in Nigeria. Anticipated decisions on this matter pending before the Court of Appeal would be able to shed more light on this issue.

What constitutes exempted records?

The Nigerian FOIA provides that certain information is exempted from the categories of information that must be released when demanded. This has been one of the major excuses used in denying requests for information. The pronouncements by the courts in this area have been affirmative and commendable: Where such denial is challenged in court, the institution that has failed to release the information sought must disclose why the information should not be released. Where an applicant is able to show that the public interest in disclosing the information outweighs the harm caused by the release of the information, the court may order such information (even categorized under exempted list [3]) to be released. For example, in Public & Private Development Centre v. Power Holding Company of Nigeria & the Honorable Attorney-General of the Federation, the defendant declined an information request by the plaintiff. In the reason advanced for the denial, the respondent held that the release of such information would breach the confidentiality clause reached with the other party with whom the document being sought to be released was signed. The court then ordered the release of the information as sought by the applicant. [4]

 How accessible are the remedies?

Where information requested by an applicant has been denied [5], the law provides that such denial can be challenged in court irrespective of the reasons adduced for the denial [6]. However, securing the services of a legal practitioner can be a luxury in a nation where a majority of citizens live on less than $1/day. Also, there is no provision under the law for remedies in form of cash to an applicant whoserequest has been denied. Therefore, where money has been expended by the applicant to hire the services of legal practitioners, the law does not expressly provide for how such money can be recouped. It is humbly submitted that the fine contemplated in the FOIA should be payable to the applicant who was denied. The Nigerian Civil Right Movement provides legal assistance to some citizens whose FOIA requests have been denied, but they cannot meet the needs of every person.

Conclusion

Certainly, the Nigerian FOIA and efforts by the Nigerian Civil Right Movement, non-governmental organizations, and the media have helped make access to information in Nigeria a reality. However, in line with the recent Lyon Declaration, much still has to be done in making information accessible to all people. Access to information is cardinal towards the post 2015 Sustainable Development Agenda and must be entrenched as a right, particularly in developing nations, as this will help to ensure that the leaders truly run a transparent, accountable, and participatory system of governance.

References

[1] Oludayo John Bamgbose holds a Bachelors of Library and Information Studies from the University of Ibadan, Nigeria. He holds a Bachelor of Law from the same University. Currently undergoing his postgraduate study at the Nigerian Law School, Yola Campus, he belongs to many professional bodies including the Nigerian Library Association (NLA) and South West Freedom of Information Network. [2] Adewakun, A (2015), FOI Act and implications for ‘Brand Jonathan, NIGERIAN TRIBUNE NEWSPAPER. Retrieved 13th March, 2015 from http://www.tribune.com.ng/business/brands-marketing/item/28412-foi-act-and-implications-for-brand-jonathan/28412-foi-act-and-implications-for-brand-jonathan. [3] Exempted information list is contained in the provisions of Sections 16-19, Freedom of Information Act, Nigeria. [4] Public & Private Development Centre v. Power Holding Company of Nigeria & the Honorable Attorney-General of the Federation. RIGHT 2 INFO.  Retrieved 14th March, 2015 from http://www.right2info.org/cases/plomino_documents/r2i-public-private-development-centre-v.-power-holding-company-of-nigeria-the-honorable-attorney-general-of-the-federation. [5] Section 19, Freedom of Information Act, Nigeria. [6] Sections 20, 25 Freedom of Information Act, Nigeria.