Introducing…Abby Dos Santos as the June 2019 FCIL Member of the Month

dos santos

1. Where did you grow up? 

I was born and raised in Washington, D.C.

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

When I was in law school, I started working in the law library because I loved spending time in the library and learning from the librarians.  After law school, I worked closely with my firm’s law librarian.  I loved researching and the process of finding the answer, more than the answer itself.  The law librarian at the firm encouraged me to pursue a career in law librarianship, and I did!

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

I have an undergraduate degree in international relations, and thought I would work in international development.  But I found a love for the law while working as an International Program Specialist for the U.S. Department of Commerce’s Commercial Law Development Program (CLDP)—providing technical assistance programs to foreign governments on topics related to international legal reform.  I further developed my interest in FCIL topics while working at Georgetown’s Wolff International & Comparative Law Library during library school and after graduating.

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

I currently work as the Reference Librarian at Caplin & Drysdale, in Washington, D.C.  I’ve been at Caplin & Drysdale for five years.  The firm primarily works in tax law and bankruptcy litigation, so I still use my FCIL knowledge when helping our attorneys find resources on tax treaties and other international tax issues.

5. Do you speak any foreign languages?

My family is originally from Brazil, so I speak fluent Portuguese.  I’m also fluent in Spanish.

6. What is your most significant professional achievement?

Redirecting my professional path to law librarianship and graduating from library school.  I’m very proud of graduating from law school, but as soon as I made the change to law librarianship, I knew it was the best decision for my professional career and thus has been the most significant so far.

7. What is your biggest food weakness?

BBQ

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

Any Brazilian music

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

Speed reading

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

My phone (unfortunately)

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

I lived in Minnesota for college and law school, but came back to D.C. for library school.  I’m not sure how, but people tell me I still have a bit of a Minnesota accent.  So I’m probably one of the only native Washingtonians with a Minnesota accent!

ASIL Recap: International Law & Interstellar Events: Who Speaks for Earth?

SpaceLawPanel

The panelists for International Law and Interstellar Events: Who Speaks for Earth at the 113th annual meeting of the American Society of International Law.

By Charles Bjork

For those who attended the 113th annual meeting of the American Society of International Law in Washington, D.C. at the end of March, the session entitled International Law and Interstellar Events:  Who Speaks for Earth? offered a welcome respite from sessions devoted to climate change, trade wars, and Brexit.  Instead of dwelling on an actual, real-life crisis, the panel was asked to speculate on how international law might guide or constrain nation states in responding to threats to global security that are merely theoretical in nature, namely those that might arise from outer space.  In addressing this issue, members of the panel were asked to analyze two hypothetical scenarios.  The first scenario was defensive in nature:  If scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage, what individual or collective responsibilities do states have to try to prevent this from happening?  The second scenario was more affirmative in nature:  Does international law provide any guidance as to whether individual states, groups of states, or private actors, may broadcast Earth-identifying signals into outer space or respond to signals that are detected from an alien source?

The panel consisted of Chris Borgen, Professor of Law and Co-Director of the Center for International and Comparative Law at St. John’s University; Robin Frank, who recently retired after serving as an Associate General Counsel at NASA; Andrea Harrington, an Associate Professor at the U.S. Air Force Command and Staff College; and Lindley Johnson, NASA’s Planetary Defense Officer.  (Yes, that really is his job title!)  Shane Harris, a staff writer at The Washington Post covering intelligence and national security matters, served as the moderator.

Harris initiated the discussion by asking Johnson how we would know that an asteroid large enough to cause significant damage is on course to collide with the Earth, and how much time we might have to respond.  As Johnson explained, Congress enacted legislation in 2005 mandating that NASA develop a program for identifying and tracking Near-Earth Objects (NEOs) in order to assess their threat potential.  NEOs are defined as asteroids and comets at least 100 meters in diameter whose orbits bring them within relatively close proximity to the Earth.  In 2013, at the recommendation of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Asteroid Warning Network (IAWN) was established to enable government and private sector entities operating at the national and regional levels to cooperate in tracking NEOs, share information about them, and develop responsive measures.  As a result of these initiatives, researchers using ground-based telescopes already have identified and catalogued more than 25,000 NEOs.  This figure includes more than 90 percent of NEOs with diameters in excess of 1,000 meters, which are large enough to cause catastrophic damage, approaching the level of disruption unleashed by the asteroid strike that led to the extinction of the dinosaurs.[1]

How much time would we have to respond to a potentially devastating asteroid strike?  According to Johnson, there should be ample warning time to prepare for a strike by a known NEO whose trajectory is being actively tracked.  Most likely, the window for developing a response would be measured in years, if not decades.  Of greater concern are newly discovered NEOs, whose trajectories may not be known until less than a year before impact.  As in the past, some asteroids will continue strike the earth without being detected in advance.  The good news is that the vast majority of undiscovered asteroids will be small enough to disintegrate upon contact with the Earth’s atmosphere and cause minimal, if any, damage upon impact.  That is why NASA and other members of the IAWN prioritize identifying NEOs that are large enough to cause more significant damage.

If scientists determine that an asteroid is going to collide with the Earth, how might we respond?  Much will depend on its size and trajectory.  If the asteroid is relatively small and is projected to land in a rural, sparsely populated area, the best option may be simply to evacuate the impact zone.  What if the asteroid is projected to land in a more densely populated area and cause significant damage and loss of life?   According to Johnson, there are at least two plausible options available.  One option would be to deflect the asteroid from its current path to prevent it from striking the Earth.  This could be accomplished by launching a spacecraft to fly alongside the asteroid in close proximity for an extended period of time – a year or more, if there is sufficient warning.  Eventually, the gravitational pull of the spacecraft would alter the trajectory of the asteroid and cause it to veer away from the Earth.  Alternatively, if the response time were more limited, the spacecraft could be launched to collide with the asteroid and knock it off its current path.  The other, more drastic option would be to launch a nuclear device into space and detonate it in close proximity to the asteroid, causing it to disintegrate before it can reach the Earth.  The viability of these options would depend, in large part, on the amount of time available, but also on the composition of the asteroid.  An asteroid comprised of loosely held-together rocks and space debris would be relatively easy to break apart, whereas an asteroid comprised of solid metal or rock might be a better candidate for deflection.

After Johnson had sketched out the technological challenges and time frame for responding to anticipated asteroid strike, Harris asked the other panel members to discuss the legal aspects.  Professor Borgen addressed the question of whether individual states should respond unilaterally to the threat or whether multilateral action is preferable.  Under international law, a state has the inherent right to defend itself.  As a practical matter, of course, only a handful of states currently have the technological capacity to attempt to deflect or destroy an asteroid.  The case for unilateral action would be stronger if the threat posed by the asteroid is not worldwide, but limited to a particular country or region.  Unilateral action also might be justified if the threat is not discovered in time to reach a consensus on a multilateral response.  In such a scenario, only an individual state could act quickly and decisively enough to respond to threat in a timely manner.

Nevertheless, there are serious drawbacks associated with unilateral action.  Foremost among them is the issue of liability in the event that the unilateral action fails to remove the threat or unintentionally exacerbates it.  What if, for example, the unilateral action does not deflect the asteroid away from the Earth, but instead redirects the impact to another country or region?  Or what if the unilateral action doesn’t destroy the asteroid, but instead causes it to break up into smaller pieces that are still large enough to cause significant damage over a much wider area?  Article VI of the Outer Space Treaty[2] provides that state parties to the treaty shall bear responsibility for national activities in outer space, whether they are carried out by governmental agencies or by non-governmental entities.  Article VII of the Outer Space Treaty further provides that each state party to the treaty that launches an object into outer space, and each state party from whose territory such an object is launched, shall be internationally liable for damages caused by the object to any other state party or to any natural or juridical persons of any other state party.

Given the wide scope of liability imposed by the Outer Space Treaty, Professor Borgen believes that a multilateral approach is essential to properly assess the level of risk posed by the asteroid and to formulate an appropriate response that takes into account the interests of all states that may be adversely affected.  Only if there were insufficient time to reach a multilateral consensus would unilateral action be warranted.  The other members of the panel concurred with this analysis.  The most plausible institution for forging such a multilateral consensus is the U.N. Security Council.  A response authorized by the Security Council under Chapter VII of the U.N. Charter, which is implemented by multiple states acting cooperatively, wouldn’t necessarily absolve those states of liability if something went wrong, but it would at least prevent a single state from shouldering all of the blame and perhaps provide the legal basis for establishing an international indemnity fund.

Professor Harrington then addressed the question of what constraints international law might place on the nuclear option for preventing a potentially catastrophic asteroid strike.  She acknowledged that Article IV of the Outer Space Treaty expressly prohibits state parties to the treaty from placing nuclear weapons and other weapons of mass destruction in orbit around the Earth, from installing such weapons on the Moon or on other celestial bodies, and from stationing such weapons in outer space in any other manner.  Nevertheless, she believes that detonating a nuclear device in outer space for the purpose of preventing an asteroid from colliding with the Earth would not constitute a violation of Article IV because the device would not be used as a weapon.  Frank disputed Harrington’s interpretation of Article IV and insisted that it does pose a significant obstacle to pursuing the nuclear option.  Professor Borgen noted that the drafters of the Outer Space Treaty never anticipated the use of a nuclear device to prevent a potentially catastrophic asteroid strike.  Their intent, which is apparent from the drafting history, was to ensure that outer space would be used exclusively for peaceful, non-aggressive purposes.  It would be a stretch to interpret the language of Article IV loosely enough to justify the detonation of a nuclear device in outer space for the purpose of destroying a threatening asteroid.  Johnson agreed with this assessment.

Another potential constraint on using a nuclear device to prevent a potentially devastating asteroid strike is the Limited Nuclear Test Ban Treaty.[3]  Article I of the treaty expressly prohibits state parties from carrying out “any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control” or “in the atmosphere, beyond its limits, including outer space.”  While this might seem like an iron-clad prohibition, Professor Harrington noted that the doctrine of necessity, a longstanding principle of customary international law, offers a potential escape clause.  Under the necessity doctrine, a state facing a grave and imminent peril may justifiably breach its obligations under international law in order to safeguard its essential interests, provided that two conditions are met.  First, the state’s response to the grave and imminent peril must not seriously impair the interests of other states.  Second, the state must not have caused or contributed to the situation that gave rise to the grave and imminent peril.  If confronted with the prospect of an asteroid causing immense damage to its territory, the political leadership of a state party to the Limited Test Ban Treaty that has the capacity to launch a nuclear device into space likely would come under immense public pressure to deploy such a device in the hope of deflecting or destroying the asteroid.  Panel members agreed that the state party’s political leaders almost certainly would invoke the necessity doctrine if they were to conclude that the nuclear option is the best or the only method of addressing the threat posed by the asteroid.

Turning to the second hypothetical, Harris asked Prof. Borgen what guidance, if any, international law would provide in the event that scientists detect a signal or message sent by intelligent beings from another solar system.  In particular, what entity would be authorized to acknowledge receipt of the message on behalf of humankind and issue a response?  According to Borgen, international law is silent on this question and does not impose any specific obligations or prohibitions on states or non-state actors.  Prof. Harrington agreed with Borgen’s analysis, adding that the only tangentially relevant legal norm in this context is the obligation imposed on the member states of the International Telecommunications Union, a specialized agency of the United Nations, not to interfere with radio signals or the use of the radio spectrum.  Apart from that general obligation, international law offers no guidance.

In the absence of any governing law, whichever entity or organization first detected the alien signal likely would turn to soft law principles and best practices within the scientific community for direction.  Johnson emphasized the need to timely disclose and share information about the discovery with other scientists, with national and regional space agencies, and with relevant inter-governmental organizations.   Information sharing is vital, not only for purposes of verification, but also for assessing risks and reaching a consensus on the appropriate response.  Thanks to the ongoing work of the United Nations Office for Outer Space Affairs (UNOOSA) and its affiliated entities, well-established networks already are in place to facilitate information exchange and collaboration within the relevant scientific, legal, and policy-making communities.

If scientists interpret the alien signal as being potentially hostile or threatening, rather than benign, it would be imperative to seek input from an even wider range of actors, both public sector and private sector.  As in the case of a potentially deadly asteroid strike, the U.N. Security Council would be the most likely forum in which to attempt to forge a unified, multilateral response.  Panel members agreed that while input from private institutions and individuals with specialized knowledge and expertise should be solicited and taken into account, the question of how to respond to an alien signal, whether friendly or hostile, ultimately is a matter of public policy that should be determined by institutions that are publicly accountable.  Prof. Borgen also emphasized the time factor.  Whatever its origins, the alien signal most likely would have taken many years to have reached the Earth.  It would be foolish to respond too quickly without taking adequate time to deliberate and think through all of the possible implications, unless there were extenuating circumstances that justified a more rapid response.

Before opening the floor to question from the audience, Harris added a final twist to the second hypothetical.  What if, instead of an alien signal from outer space, an alien spacecraft were to land in international waters off the coast of California?  Should the United States, the jurisdiction most immediately impacted by the landing, take the initiative in responding, or should it wait for the international community to act?  If the aliens operating the spacecraft were behaving in a threatening manner, the United States would be justified, under international law, in taking measures to defend itself from the aliens.  If the circumstances warranted, the U.S. almost certainly would invoke the necessity doctrine in order to take extraordinary measures that might otherwise violate its international legal obligations.

Even if the United States were disproportionately impacted by the landing of an alien spacecraft, panel members stressed that it would still be advisable for the U.S. to pursue multilateral consultation and cooperation in order to ensure that risks are properly assessed and that the interests of other states are taken into account.  Prof. Harrington noted the inherent tension between law (what is legally permissible under the circumstances) and policy (what should be done to optimally address the threat at hand).  She emphasized that when the law is largely silent as to what actions are permissible, policy-makers must look beyond the panic generated by sensationalist media coverage of an alien spacecraft, likely to be magnified by social media echo chambers, and do their best to avoid taking actions that will have unintended consequences.  Several panelists raised the danger of inter-planetary cross-contamination – the transfer of micro-organisms from the alien spacecraft to the Earth, and Earth-based micro-organisms to the alien spacecraft – as one of the most likely unintended consequences.  The panelists agreed that a multilateral approach, one that seeks input from a wide range of state parties and non-state actors, is more likely to avoid such unintended consequences than a unilateral response.

Moderator Shane Harris Panelists Robin Frank Lindley Johnson

Robin Frank, recently retired after serving as an Associate General Counsel at NASA, stole the show with her rocket-shaped earrings.

[1] See Douglas Preston, The Day the Dinosaurs Died, The New Yorker, March 29, 2019, for a fascinating (and nightmare-inducing) overview of the latest research into the massive asteroid, estimated to have been six miles wide, that struck what is now the Yucatán Peninsula sixty-six million years ago, causing a severe disruption to the Earth’s climate that led to the extinction of most forms of life.

[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.

[3] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43.

FCIL-SIS Book Discussion Group to Meet Again During Washington, D.C. Conference

nofriendbutthemountainsOver the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s company.

This year, the group will meet on Monday, July 15, at 12:15, during the Attendee Lunch in the Exhibit Hall.  We will meet in the Registration Area, find a table, and take advantage of the complimentary lunch.

This year’s book selection is No Friend But the Mountains: Writing from Manus Prison, by Behrouz Boochani.  Mr. Boochani is an Iranian-Kurdish journalist, human rights defender, poet and film producer. He was born in western Iran and has been held in the Australian-run Manus Island detention center since 2013.  The following book description appears on the Pan Macmillan Australia website:

 

WINNER OF THE VICTORIAN PREMIER’S LITERARY PRIZE FOR LITERATURE AND FOR NON-FICTION 2019

Where have I come from? From the land of rivers, the land of waterfalls, the land of ancient chants, the land of mountains…

In 2013, Kurdish journalist Behrouz Boochani was illegally detained on Manus Island. He has been there ever since.

People would run to the mountains to escape the warplanes and found asylum within their chestnut forests…

This book is the result. Laboriously tapped out on a mobile phone and translated from the Farsi. It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.

Do Kurds have any friends other than the mountains? 

WINNER OF THE NSW PREMIER’S AWARD 2019 

WINNER OF THE ABIA GENERAL FICTION BOOK OF THE YEAR 2019

PRAISE FOR NO FRIEND BUT THE MOUNTAINS

“Boochani has produced a literary, journalistic and philosophical tour de force. It may well stand as one of the most important books published in Australia in two decades…” The Saturday Paper

“A chant, a cry from the heart, a lament, fuelled by a fierce urgency, written with the lyricism of a poet, the literary skills of a novelist, and the profound insights of an astute observer of human behaviour and the ruthless politics of a cruel and unjust imprisonment.” Arnold Zable, author of the award-winning Jewels and Ashes and Cafe Scheherazade

a shattering book every Australian should read” Benjamin Law (@mrbenjaminlaw 01/02/2019)

“In the absence of images, turn to this book to fathom what we have done, what we continue to do. It is, put simply, the most extraordinary and important book I have ever read.” Good Reading Magazine(starred review)

“Brilliant writing. Brilliant thinking. Brilliant courage.” Professor Marcia Langton AM (@marcialangton 01/02/2019)

“Not for the faint-hearted, it’s a powerful, devastating insight into a situation that’s so often seen through a political – not personal – lens.” GQ Australia

“It is an unforgettable account of man’s inhumanity to man that reads like something out of Orwell or Kafka, and is aptly described by Tofighian as ‘horrific surrealism’. It is clear from Boochani’s writing that he is a highly educated and philosophical man; he segues effortlessly between prose and poetry, both equally powerful.” –The Australian Financial Review Magazine

“Behrouz Boochani has written a book which is as powerful as it is poetic and moving. He describes his experience of living in a refugee prison with profound insight and intelligence.” Queensland Reviewers Collective

“In his book Boochani introduces us to different dimensions of his experience and thinking. Both a profound creative writing project and a strategic act of resistance, the book is part of a coherent theoretical project and critical approach.” Omid Tofighian, translator of No Friend But the Mountains

It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.” Readings

Boochani has woven his own experiences in to a tale which is at once beautiful and harrowing, creating a valuable contribution to Australia’s literary canon.” Writing NSW

it is a voice of witness and an act of survival” Law Society of NSW Journal

 

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Washington, D.C. for another great book discussion!

Globalex May 2019 Issue Now Live

By Lucie Olejnikova

The May 2019 issue features four articles: a new Third-Party Funding in Investor-State Dispute Settlement, and three updates Benin, Gabon, and North Korea. Benin and Gabon articles are in French. Webmasters and content managers, please update your pages. Congratulations! Thank you to all of our established and new contributors!

Researching Third-Party Funding in Investor-State Dispute Settlement by Shery Xin Chen & Kirrin Hough at http://www.nyulawglobal.org/globalex/Third-Party_Funding_Investor-State_Dispute_Settlement.html.

Sherry Xin Chen is a legal information librarian and lecturer in law at Boston College Law School. She teaches both U.S. and international legal research courses and is active in AALL’s Foreign, Comparative & International Law section, currently chairing one of its interest groups on electronic research and resources. She holds a B.A. from Shanghai International Studies University, China, and both a J.D. and a M.S. in Library Science from the University of Michigan, Ann Arbor. She is admitted to practice law in the State of New York.

Kirrin Hough is a U.S. attorney admitted to practice law in Maryland. She is a Graduate Fellow of the Boston College Law & Justice in the Americas Program and a member of the Boston College Law School Working Group on Investment Reform. She has authored and coauthored articles on investment arbitration and investment law reform for the American Society of International Law’s Insights, the International Institute for Sustainable Development, and the Journal of International Economic Law. Kirrin holds a B.A. from Georgetown University and a J.D. from Boston College Law School

METTRE À JOUR: Introduction au Système Juridique et Judiciaire du Bénin by Dr Gérard AÏVO et Lazard H. HOUNSA at http://www.nyulawglobal.org/globalex/Benin1.html.

Gérard Aïvo est Docteur en droit public, Enseignant- Chercheur à la faculté de droit et de science politique de l’Université d’Abomey Calavi du Bénin.

Lazard Hounsa est Juriste et chercheur, Président de l’association des Jeunes juristes du Bénin, membre du Centre de droit constitutionnel.

METTRE À JOUR: Le Système Juridique Gabonais et la Recherche Juridique by Professeur Alexis ESSONO OVONO et NZE-MEZUIE Steevens at http://www.nyulawglobal.org/globalex/Gabon1.html.

Dr. Alexis Essono Ovono a obtenu son doctorat en droit public à l’Université Toulouse 1 en France, avec une mention honorable et des félicitations. Il est actuellement directeur de la maîtrise en droit public et gouvernance des organisations publiques à la faculté de droit et d’économie de l’université Omar Bongo au Gabon. Avant d’occuper son poste actuel, il était professeur adjoint de droit public.

Steevens Nze-Mezuie est titulaire d’une maîtrise en recherche avec option de droit public fondamental obtenue à l’Université Omar Bongo de Libreville, Liberville, Gabon. Il est actuellement titulaire d’un doctorat étudiant au département de droit public de l’Université Omar Bongo au Gabon. Ses recherches portent sur la relation entre investissement et droits de l’homme en Afrique.

UPDATE: Overview of the North Korean Legal System and Legal Research by Patricia Goedde and Martin Weiser at http://www.nyulawglobal.org/globalex/North_Korea1.html.

Patricia Goedde is Associate Professor at Sungkyunkwan University School of Law, in Seoul, South Korea. She received a J.D. and Ph.D. (Asian and Comparative Law) from the University of Washington, School of Law. Her latest publication on North Korea can be accessed here: Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization, 5 Asian J. Law & Society 175 (2018). It also appeared in North Korean Human Rights: Activists and Networks (D. Chubb & A. Yeo eds., Cambridge Univ. Press, 2018) publication.

Martin Weiser received an MA in political science at Korea University in Seoul, South Korea. His recent article on North Korean law can be accessed here: Unseen Laws: A Qualitative Approach to Developments in North Korea’s Legal System, 17 European J. of Korean Studies 22 (Spring 2018). Martin Weiser focuses his research on North Korea and developed and runs the North Korean Information Project, which collects and organizes information about and the laws of North Korea.

For more articles, visit http://www.nyulawglobal.org/globalex/index.html.

From the Reference Desk: U.S. Acquisition of Pacific Island Territories

By Amy Flick

oceania-physical

Courtesy of the CIA World Factbook, which is in the public domain.

 

“I have a citation that Guam was the first U.S. Pacific island territory, and I’m not sure that that’s correct. What date did it become a U.S. territory?”

At last, a ready reference question! This should be quick!

“What about Hawaii, Samoa, the Aleutians, Santa Catalina and the islands off the California coast? Oh, and I need to find the treaty for the U.S. acquisition of Guam, and for whichever of those acquisitions came first.”

So, not a quick question. I then spent the afternoon wading through the history of nineteenth-century U.S. colonialist adventures.

One issue to resolve here is definitions. Are the Aleutians and Santa Catalina considered Pacific island territories? With “U.S. Pacific island territory” part of the original question, are you including islands that are part of U.S. states? Do you want the acquisition date, or the date that the islands formally became U.S. territories? Beyond raising those questions, I leave it to the professor to decide, and I concentrate on finding dates and documents for acquisition of the islands she mentioned.

Since this was an urgent request, I started with Google hoping to find a list already compiled. I found lists of U.S. territorial acquisitions, with dates, from the Global Policy Forum and from Dr. Kathryn MacKay at Weber State University. These list the acquisition dates for the Mexican Cession (California) as 1848, Alaska 1867, Hawaii 1898, Guam 1898, and American Samoa 1899. The list from Dr. MacKay cited a publication from the U.S. Geological Survey, Franklin K. Van Zandt, Boundaries of the United States and the Several States. Emory’s catalog listed it with a link to the USGS. I went through them in the order listed in the USGS book.

The Treaty of Guadalupe Hidalgo, Feb. 2, 1848, 9 Stat. 922, T.S. 207, added California and other western territory to the United States as a purchase after the Mexican-American War. Article V of the treaty sets the boundaries, including “thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean,” with no mention of the islands off the coast. Van Zandt at page 151 notes that California never had the status of an organized territory, but was instead admitted directly into the Union. The California state constitution of 1849, Article 12, asserted jurisdiction of “all the islands, harbors, and bays along and adjacent to the coast,” and an August 31, 1852 appropriations act of Congress at 10 Stat. 91 made an appropriation for subdividing the islands. And Santa Catalina was included in the County of Los Angeles in the Compiled Laws of California for 1850-1853. According to Van Zandt, “[t]he question of sovereignty over these islands has been raised several times, the claim being made that as they were not mentioned in the treaty of 1848, Mexico had not given up its title to them; but it is evident…that it was generally understood after the treaty was signed that the islands were a part of the territory ceded to the United States.” (Van Zandt, p. 152)

Alaska was purchased by treaty from Russia in 1867, in Treaty Concerning the Russian Possessions in North America, art. I, March 30, 1867, 15 Stat. 539, T.S. 301, 11 Bevans 1216, 1217 (1867). However, it wasn’t formally organized as a U.S. territory by act of Congress until August 24, 1912, 37 Stat. 512. Article I of the treaty sets Alaska’s boundaries, including “to the meridian of one hundred and ninety-three degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian islands east of that meridian.”

Hawaii’s annexation was complicated. Characterized as a “voluntary action of its citizens” (Van Zandt at p.33),  the male property owners voting under the 1897 Constitution of the Republic of Hawaii, and was not by treaty. The Legislature of the Republic of Hawaii approved a Joint Resolution of annexation to the United States in 1895. Joint Resolution, Laws of the Republic of Hawaii 1892-1898, Special Session 1895, p. 100 (Aug. 13, 1898). Hawaii was annexed by a Joint Resolution of Congress in 1898. Joint Resolution: To provide for annexing the Hawaiian Islands to the United States., Chapter 55, 55th Congress, Session 2, 30 Stat. 750, 751 (July 7, 1898). Hawaii became a U.S. territory by act of April 30, 1900, 31 Stat. 141.

Getting to the subject of the original question, Guam was ceded to the United States by Spain in the Treaty of Paris in 1898, along with the Philippines, Cuba, and Puerto Rico. Treaty of Peace (Treaty of Paris), art. II, Dec. 10, 1898, 30 Stat. 1754, T.S. 343, 11 Bevans 615, 621 (1898).

As with Hawaii, American Samoa’s history is also complicated. According to Van Zandt (p. 36), the United States, the United Kingdom, and Germany exercised a “joint protectorate” over Samoa after a naval confrontation over the islands in 1889. Samoa was divided into German and U.S. regions in an 1899 treaty with Germany and the United Kingdom. Adjustment of jurisdiction in Samoa, Dec. 2, 1899, 31 Stat. 1878, T.S. 314, 1 Bevans 276, 277 (1899). As Van Zandt notes at page 36 of the USGS document, “natives of Samoa had no part in this convention.” The Joint Resolution of Congress accepting the cession of the Samoan Islands came in 1929 by Public Resolution 89, Ch. 281, 70th Cong. 2d Sess., 45 Stat. 1253 (Feb. 20, 1929).

Of the islands and territories listed by the professor in her request, Santa Catalina and the islands off the coast of California were acquired by the United States first. Guam was acquired by treaty in 1898. The information from the U.S. Geological Survey document, Franklin K. Van Zandt, Boundaries of the United States and the Several States, made it easy to find the treaties, congressional acts, and state laws on Hein Online to send to the professor. (I’m linking here to the Library of Congress, HathiTrust, and other freely available sources, however.) I also recommended Foreign Relations of the United States for more documents related to the territorial acquisitions and treaties.

Ruminations on Researching Customary International Law

By Jonathan Pratter

customsfutureCustomary international law has been a contested concept for a long time. In 1939, a fateful year, Hans Kelsen remarked that the theory of customary international law “has no other function than to conceal [dissimuler] the important, not to say dominant, role that is played in the formation of customary law by the arbitrariness of the organ competent to apply the law.”  Hans Kelsen, Théorie du Droit International Coutumier, 1 Revue Internationale de la Théorie du Droit [new series] 253, 266 (1939).  (I note by the way that Kelsen, an Austrian, wrote this in French in a Franco-Austrian journal, the title of which was displayed in both French and German.  This brings out how essential multilingualism is in the study and practice of international law and international legal research, a point that has been made before on this blog.)  Critical attention to customary international law has increased recently.  The literature is extensive, but emblematic of the trend is the recent article, Why I Stopped Believing in Customary International Law by Daniel Joyner, 9 Asian Journal of International Law 31 (2019).  A key source is the collection of essays edited by Curtis A. Bradley, Custom’s Future: International Law in a Changing World (Cambridge University Press 2016).

The critique of customary international law has several aspects, but a central component is the observation that the standard model, the two-part definition of state practice and opinio juris, is not applied in practice.  This criticism is aimed in particular at courts, both international and domestic.  In Custom’s Future there is an essay by Stephen J. Choi and Mitu Gulati titled “Customary International Law: How Do Courts Do It?”  This is a rigorous empirical study based on a data set of 175 determinations of customary international law by the International Court of Justice and some other international tribunals.  If you can get through the mind-numbing statistical discussion, there is a lot to learn.  Early in the essay there is a sub-section titled “Superhuman Research Skills.”  The context is a discussion of the question whether there is a customary norm permitting a state to reject odious debts.  The authors, who worked on this question, have this to say: “Not only was the type of evidence being requested unlikely to exist … but it was impossible to collect, as a practical matter, unless one somehow assembled an extraordinary team of anthropologists, economists, historians, political scientists and lawyers who would then be able to spend decades excavating the historical record.”  The authors should have added international law librarians to the list of needed professions.

A key finding of the study is that the piece of evidence most frequently cited for the existence of a rule of customary international law is the treaty.  But referring to treaties for this purpose is famously problematic.  After all, the raison d’être for an international agreement might well be the sense of a gap in the law.  The authors conclude that “[t]he data suggest that international courts do not come anywhere close to engaging in the type of analysis the officially stated two-part rule for the evolution of CIL sets up.”  A similar result was reached by Stefan Talmon in his article, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, 26 European Journal of International Law 417 (2015).  Concerning similar results for the domestic courts of the United States, see Ryan M. Scoville, Finding Customary International Law, 101 Iowa Law Review 1893 (2016).

It has to be conceded that the critique of customary international law is found in the academic international law literature.  This is not a criticism of the critique, but an observation.  In 2018 the International Law Commission of the United Nations adopted its Draft Conclusions on Identification of Customary International Law, with Commentaries.  The Draft Conclusions can be found in the Commission’s report, A/73/10, and as an offprint on the Commission’s website.  It has to be said that the Draft Conclusions stick resolutely to the standard model, with little recognition even in the commentaries of the concerns that have been raised.

Where does this leave international law librarians who are called on to advise on researching customary international law, and to teach the method?  Clearly, there is a dilemma.  I think it is still possible to start with the standard, two-element model, as classically stated in Article 38(1) of the Statute of the International Court of Justice.  But more is clearly necessary.  I think we have to raise the critique and its main components.  Researchers and students need to be aware that researching customary international is beset with issues that a simple invocation of the standard model does not capture.  The research guide International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien (Carolina Academic Press 2018) integrates several elements of the critique into the discussion of researching customary international law without mentioning the critique explicitly.

What promise does the digital dispensation hold here?  Is there, or will there soon be, a giant database of state practice of the 195 states of the world to be mined by an AI-driven robot for evidence of a customary norm of international law?  I am comforted that the answer to the question is no.

Join the FCIL-SIS Continuing Education Committee for Our First Webinar and In-Person Event!

comelearn

The FCIL-SIS Continuing Education Committee is excited to announce its first two events!

Working with Non-English Materials for the English Speaker Webinar on June 6, 11 am-12 pm US/Central

On June 6, 11 am-12 pm US/Central, please join us for a webinar on Working with Non-English Materials for the English Speaker. Register for the webinar now at https://www.aallnet.org/forms/meeting/MeetingFormPublic/view?id=14E74000002E9!

As the world becomes increasingly interconnected, most of us will inevitably need to research laws from non-English speaking countries, whether we are helping a firm close an international business deal or a professor perform comparative research. In this webinar, a panel of experienced foreign, comparative, and international law librarians who have worked in Europe, Africa, Asia, Canada, and the Caribbean will provide practical guidance on finding English translations of non-English laws, gathering enough understanding about a non-English document to identify whether it is relevant to your research, and finding help if you’re truly stuck.

Participants will come away with a bibliography of reliable translation materials and the ability to select the dictionaries, translation services, and finding aids suited to a specific task, whether the goal is to catalog a document, provide document retrieval, or answer a complex research question.

The webinar will feature Erin Gow (Online Services Librarian, University of Louisville Law Library), Yemisi Dina (Acting Chief Law Librarian, Osgoode Hall Law School, York University), and Alex Zhang (Assistant Dean for Legal Information Services and Professor of Practice, Washington and Lee School of Law).

What’s New with UN Resources at Fordham Law School on June 27th, 6:30-7:30 pm

If you’re in the New York area on June 27th, we also welcome you to join FCIL-SIS and LLAGNY from 6:30-7:30 pm at Fordham Law School Room 2-01A for a free lecture on What’s New with UN Resources. Register for the New York lecture now at https://www.llagny.org/index.php?option=com_jevents&task=icalrepeat.detail&evid=64&Itemid=176&year=2019&month=06&day=27&title=whats-new-with-un-resources&uid=53456656a8d7cd3e7c48b6e3aaf63cc9!

Susan Goard, Law Librarian and Training Coordinator at the UN’s Dag Hammarskjold Library, will present on how to locate the different types of documents produced by the main UN organs using the UN Digital Library and other tools, websites, and publications. She will provide updates on new research guides and tools from the UN Library, including the transition from UNBISnet to the UN Digital Library.

Ideas and Volunteers Welcome

The Committee welcomes both volunteers and ideas for future events! If you have any ideas for future FCIL-SIS Continuing Education events or if you’d like to volunteer to join the committee or teach a continuing education event, please reach out to the FCIL-SIS Continuing Education Committee chair, Caitlin Hunter, at hunter@law.ucla.edu or complete a short survey at https://forms.gle/2VqR5Zm8T6VWxJCq6.