The Stagnation of International Law: 2015 ASIL Conference Program Report

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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.