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.

First Time Teaching FCIL Research: Weather Woes & Student Conferences

by Alexis Fetzer

After a strong beginning of the semester, the middle of the semester got off to a rough start. Susan Gualtier, FCIL Librarian at LSU Law, was scheduled to guest lecture via Skype on the topic of Customary International Law on a day our University cancelled classes. While you can plan out every detail of your course, you can never control the weather. The month of February brought new record low temperatures for Virginia and with that class cancellations related to snow fall. While Susan has graciously agreed to reschedule her guest lecture, the shuffling around of schedules and assigning days to make up classes missed has been a challenge.

snow in richmond

On a more positive note, I recently held individual conferences with students to discuss progress towards their final paper and presentation. Students were asked to choose a topic they would like to research involving international and foreign law, including any seminar paper topic they may be currently writing, and then compose a 6-8 page narrative of their research process. During the final two weeks of class, students will present on their research strategies and any problems they came across along the way. I modeled this final assessment after an assignment Susan Gualtier had previously shared with me.

The leeway in topic choice has been great in playing off of student interests but I believe it may eventually pose some problems in terms of assessment. I love the idea of having students researching topics they are currently writing about for a seminar course or have been employed to research as an assistant to a professor. At the very least simply being motivated by a personal interest gives the student more of a stake in the end product. The problem arises when topics range to such a degree that the types of relevant sources and strategies employed are very inconsistent. Granted the subject matter of this class ranges a great degree. Unless I were to force students to pick from a narrowly defined list of topics, I have to expect such variation.

Because this is the first time I have ever given this assignment, I put no restrictions on topic choice so long as it required substantial research in the sources covered in class. I indicated I prefer they address a fairly specific inquiry, but I did not place a scholarly survey of a topic off limits. In the future, I will give more guidance in choosing topics based on how I intend to assess these papers and presentations. I may also reassess my order of topics covered in class. Because we focus on researching foreign law during the last three weeks of class, students who chose topics centered heavily around finding foreign law are at a slight disadvantage.

Like topics chosen, preparation and discussion that took place in individual conferences varied widely. Some students came with a clear vision of the types of sources they need and examples of problems that had already encountered. Others had more of a theoretical idea of what they would be looking for and expected to find. This was another good lesson in the value of giving clear instruction.

One thing I had not expected were the questions I would come away with from student conferences. During each session I made suggestions of sources students should consult, but students also had questions about sources I did not immediately know how to find. For example, one of my students would benefit in finding Irish legislative history for her project. Not being an expert on Irish legal research outside what is readily made available through Justis and BAILII, I was challenged to find an answer to my student’s question.

I am looking forward to seeing my student’s final presentations a month from now. I anticipate learning just as much from them as they will from each other. In the meantime we still have several important topics to cover in class including researching the law of the European Union, customary international law, and foreign law focusing primarily on a select few common and civil law jurisdictions.

Introducing…Eugene Hsue as the March FCIL Librarian of the Month

1. Where did you grow up?Hsue photo

I grew up in Vestal, a small town in beautiful upstate New York. As a kid, my backyard was a fantastic nature preserve.  Along with my friends, we would hike up hills, build forts, scout for waterfalls in the creek, and stumble upon grazing deer. It was a great place to grow up.

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

While I was a law student, I worked as a student worker at Temple Law Library. There, the Director, John Necci, and the Head of Reference, Larry Reilly, mentored me through the ropes of answering questions at the Circulation Desk. I grew to really love helping people find exactly what they needed.

John and Larry started strongly hinting that I should think of law librarianship as a career. And they shared so much of what they know with me. Before their retirement, each of them had been in law librarianship for more than thirty years. I am very thankful for their openness and generosity – these traits helped me discover a warm and helpful law library community.  I am grateful to have found great informal mentors in David Mao, Greg Lambert, Wei Luo, Joan Liu, Sergio Stone, and Al Dong. And I’ve had the chance to work with amazing peers internationally, like Michèle Hou of the ICRC and Jim Hart at the University of Cincinnati.

Second, I love research, both doing it and teaching it. I love the rush of identifying the seminal article for a point of law or watching a student’s eyes light up.

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

While I was an undergraduate at Cornell, I lived in a great dorm called the Language House, which at that time was housed in a beautiful Anna Comstock Hall. During the two years I spent in the French House, I made close friends from France, China, Taiwan, Japan, Italy, and Latin America. We would often stay up late at night discussing the rich differences between our cultures, languages, music and movies.  This gave me a passion to truly comprehend the world beyond my own country.

Then, during my third year there, I had the opportunity to study at Jussieu, Paris VII. One of the courses I took was the history of the European Union. Our teacher from Sciences Po, Marc Germanangue, lectured superbly. He told a riveting tale of the negotiations and friendship between Jean Monnet and Konrad Adenauer, which resulted in the CECA. It was my first introduction to a supranational organization.

After graduating, I went to live and work in China and Taiwan for two and a half years, in order to master Mandarin. When I came back to study at Temple Law, I took every foreign and international law class I could find: Japanese Law, WTO Law, Israeli Constitutional Law, among others.

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

I work at Temple Beasley School of Law in Philadelphia. I have been here full time since November 2008. If you include the time I was a student worker – wow! – I started that in Spring of 2005.

5. Do you speak any foreign languages?

I speak French, Mandarin, and a little Taiwanese and Italian. I’m learning Latin. I find learning languages to be super fun. It’s like doing a crossword puzzle for me.

6. What is your most significant professional achievement?

I’m still a “young” law librarian, so I still have some achievements ahead of me! However, there are two dear to my heart.

Along with a team of six research assistants, I translated two law review articles from English to Chinese. The reason why I view it as significant is because I learned a lot:  how to motivate a team, communicate expectations, and have everyone accomplish goals by set deadlines. I also learned a lot of Chinese terminology in many disciplines. For example, how do you say Rawls’ “veil of uncertainty” in Chinese? Good times doing research!

Second – during my second year as a FCIL, Temple’s International and Comparative Law Journal gave me a tie and a card as a gift of appreciation for helping them find sources. The tie is sharp and smart. I was touched that they noticed I like to dress well.

7. What is your biggest food weakness?

I like to try out cheap eats and street food in Asia and Europe. I’m fond of oatmeal raisin cookies.

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

This one. And this French one! Definitely this Taiwanese one too.

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

I would love to develop mobile apps to view rare and ancient documents, like the Vatican Secret Archive’s Lux In Arcana app. This requires mastering PHP, Python, ancient Greek, Latin, and classical Chinese. I would love to develop skills to bring cutting edge technology and the ancient world together.

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

Every day I try to make my baby girl laugh! Isabella is nine months old now. I cannot go a day without seeing her gummy smile.

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

I look forward to reconnecting with my FCIL colleagues in Philly this July. There are so many foodie spots to discover!

Book Review: Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace

By: Charles BjorkImage

Scott J. ShackelfordManaging Cyber Attacks in International Law, Business, and Relations:  In Search of Cyber Peace  (Cambridge University Press, 2014).

The National Academy of Sciences defines the term “cyber attack” as a deliberate attempt to alter, disrupt, deceive, degrade or destroy computer systems or networks and the programs that run on them.  In recent years, this once obscure term has entered the mainstream.  Hardly a month goes by without a cyber attack making headlines – from the breach of customer data at Target, to the hacking of emails and theft of intellectual property at Sony Pictures Entertainment, to the hijacking the Pentagon’s social media accounts by ISIS.  As a result, the issue of cyber security has captured the attention of policymakers around the world, including President Obama.

In the wake of these developments, the need for a comprehensive survey of cyber security law and governance has never been greater.  Managing Cyber Attacks in International Law, Business, and Relations:  In Search of Cyber Peace, by Scott J. Shackelford, ably fills this need.  The author, a member of the faculty at Indiana University and a senior fellow at the Center for Applied Cybersecurity, begins with a brief overview of the history of Internet governance.  He contrasts the initial period of organic, bottom-up governance exemplified by ad hoc entities like the Internet Engineering Task Force, which still develops and publishes the standards for Internet transfer protocols, with the subsequent emergence of the Internet Corporation for Assigned Names and Numbers (ICANN), a centralized, top-down entity created to manage IP addresses and domain names.

In the following chapter, Shackelford turns to the future of Internet governance, which will be dominated by the need for enhanced cyber security and demands for greater national and international regulation.   A recurring theme throughout this chapter and the remainder of the book is that a fragmented and dynamic ecosystem like cyberspace is too complex to be successfully governed by a unitary regulatory framework.  Shackelford makes a persuasive case that the best way forward is a system of “polycentric governance,” which he defines as regulation at multiple levels by overlapping sets of state and non-state actors employing a combination of national law, international norms, industry standards and best practices, and market forces to achieve a desired end.  This “all-of-the-above” approach relies on multi-stakeholder governance to harness the benefits of both top-down and bottom-up regulatory regimes while avoiding their respective shortcomings.

The second section of the book focuses on managing vulnerabilities in cyber space.  Shackelford begins this section by describing the three-layered structure of the Internet and assessing the principal weaknesses of each layer:  the physical infrastructure (hardware), the logical infrastructure (software), and the content layer (data and users).  This is followed by a discussion of the most common types of cyber weapons, including spyware, Trojan horses, viruses, worms, logic bombs, and distributed denial of service attacks.  In the next two chapters, Shackelford examines the steps being taken by national governments to safeguard critical national infrastructure (CNI) from cyber attacks and efforts to enhance cyber security in the private sector through the development of industry standards and best practices.  Readers interested in pursuing any of the foregoing topics in greater depth may rely on Shackelford’s copious footnotes to guide them.

The final section of the book is devoted to the role of international legal norms in cyber governance.  Shackelford begins this section by assessing the applicability of existing international law, particularly the law of armed conflict, to cyberspace.  A recurring theme in this section of the book is the vexing problem of attribution.  How can we accurately identify the perpetrators of cyber attacks, especially when shadowy, non-state actors (who may or may not be operating under the direction or at the behest of a national government) are involved?   In the final chapter, Shackelford examines the prospects for developing new international norms for cyber governance.

Writing for a wide audience about a subject grounded in technology is no easy task.  Fortunately, Shackelford manages to make the underlying technical issues intelligible to lay readers without dumbing things down to the point that those with technical expertise will lose interest.  His explanation of how the routing protocols that make the Internet flexible and scalable have also left it vulnerable to security breaches is especially helpful.

Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace would make a welcome and timely addition to any law library seeking to augment its existing collection in the fields of law and technology and national security law.  For libraries operating under budgetary constraints, this broad survey of cyber security issues provides an excellent alternative to purchasing multiple titles on related but narrower topics, such as cyber crime and cyber warfare.

Voices from the Rwanda Tribunal

By Mary Whisner

This post originally appeared on Gallagher Blogs.

After the 1994 Rwandan genocide, the UN set up the International Criminal Tribunal for Rwanda (ICTR). This historic tribunal delivered its last trial judgment in December 2012 and is now winding down its appellate work.

In 2008,  a team from Seattle—including information scientists, lawyers, and videographers—went to Tanzania (where the tribunal is) and Rwanda to interview judges, prosecutors, defense counsel, interpreters, court administrators, and others connected with the ICTR. The result is 49 video interviews, publicly available on the Voices from the Rwanda Tribunal website as well as carefully archived for the future. The project’s principal investigator is Prof. Batya Friedman, from the UW Information School.

The project’s vision is to “provide to the world, especially the people of Rwanda, free and open access to these interviews with personnel from the International Criminal Tribunal for Rwanda (ICTR).”

Our intention is to enable as many innovative, derivative uses as possible. We imagine such uses may include documentaries on Rwanda, textbooks discussing genocide, Pan-African justice capacity building, blogs, school projects, a handbook for future tribunals, plays, performances, legal curricula, and reconciliation projects within Rwanda. We are currently designing information systems to support appropriation and use within Rwanda, within the international justice system, and for the global public, now and into the future.

Any user can watch the videos. Users can also select clips and label them to highlight them for others. For example, someone watched the interview with Judge Dennis Byron, the President of the tribunal, and marked a clip on “the need for international criminal justice to become routine [1:17].” And someone marked a clip from the interview of Hassan Jallow, the chief prosecutor, on “the limitations of legal justice [1:48].” (The staff have to process the clips for start and stop times, so if you mark one it won’t be displayed immediately.)

Users can tag clips. Interestingly, the form for tagging invites users to identify nationality, gender, birth decade, and profession or interest. As the tags accumulate, the team will be able to get a sense of the tags used by Rwandans, Africans, and others; by people born before or after the genocide; by journalists, high school students, lawyers, or historians. That will help evolve future access responsive to different communities.

The site is still being developed. This spring searchable transcripts of each interview will be posted.

Here’s a short video about the project: