ASIL 2019 Recap: Litigating Climate Change: New Legal Challenges

Climate_change_icon.pngBy Mariana Newman

At 9:00am on Friday, March 29, 2019, Judith Levine, Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, moderated a panel discussion which addressed, in her words, the role for lawyers to address climate change when political leaders do not. Joining Levine were Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and director of the Sabin Center for Climate Change Law; Kristin Casper, Senior Legal Counsel for Strategic Litigation at Greenpeace International; and Paula Henin, a senior associate at Freshfields in New York working in the international arbitration group. In her opening remarks, Levine said that litigation in this area is an opportunity for lawyers to demonstrate “courage, creativity, and innovation.”

Gerrard highlighted a number of areas of litigation. Around 1300 climate lawsuits have been filed around the world, with the United States leading the way in the number of suits, followed by Australia and the United Kingdom.

In the United States, the largest number of cases filed have been under the National Environmental Policy Act, claiming an insufficient consideration of climate change in environmental impact reports.

Gerrard mentioned that public nuisance doctrine cases have reemerged under state common law, since the Supreme Court had held in American Electric Power v. Connecticut that the Clean Air Act displaced any federal common law claims.  There have also been securities fraud lawsuits, mostly against Exxon.

Gerrard discussed an ongoing case brought under public trust doctrine and substantive due process theories, Juliana v. United States. In that case, young people sued the United States government arguing that it has an obligation to protect the atmosphere and seeking an order that would force the government to aggressively cut back on greenhouse gas emissions. Currently the 9th Circuit interlocutory appeal is being briefed.

He then turned to cases from outside the United States, including Urgenda Foundation v. State of the Netherlands. In that case, a Dutch environmental group and 800 Dutch citizens sued their government, arguing that it was not doing enough to reduce its greenhouse gas emissions. The trial court ruled that the government had violated their duty of care under Dutch law to take climate change mitigation measures. The appellate court affirmed the judgment for the plaintiffs under different grounds: that the government had an obligation under Articles II and IX of the European Convention on Human Rights to do more to fight climate change. This case is now being appealed to the highest court in the Netherlands.  Gerrard also discussed cases in Pakistan and Peru.

Next, Kristin Casper from Greenpeace International took to the podium. She described climate change as a “human rights crisis” and highlighted three of Greenpeace’s cases where local communities are using legal tools to “seek climate justice.”

In Norway, Greenpeace Nordic partnered with a Norwegian organization that sued the government, arguing that the issuance of oil and gas leases in Arctic waters was in contradiction with Norway’s international commitments and a breach of constitutional protections for future generations, the right to a healthy environment, and other human rights standards. The lower court found that the right to a healthy environment was, as Casper called it, a “claimable right with teeth,” but it did not find that the right was violated in this particular factual scenario. The case has been appealed.

In Switzerland, Greenpeace Switzerland supported a group of over 1000 senior citizen women who brought a case arguing that the government’s inadequate climate change policies contributed to heatwaves, putting their lives and health at risk. The decision in the lower court was not favorable, but the case is now on appeal.

In the Philippines, a group of Typhoon Haiyan survivors joined by Greenpeace Southeast Asia-Philippines and other organizations filed a legal petition with the Commission on Human Rights, seeking to hold major carbon-producing companies accountable for climate impacts that result in human rights harms. There have been 12 hearings, 26 community witnesses, and 52 experts who have given evidence, all of which can be viewed online.  The Commission has the ability to issue a report with recommendations and to continue to monitor the human rights situation in the Philippines with respect to climate change.

Finally, it was Paula Henin’s turn to share her insights.  First, she discussed mechanisms for interstate disputes arising out of substantive obligations of the Paris Agreement.

Article 14 of the United Nations Framework Convention on Climate Change is incorporated by reference in Article 24 of the Paris Agreement. Article 14-1 allows parties to settle disputes through negotiation and the peaceful means of their own choice, which could include arbitration or mediation. Article 14-2 states that contracting parties may consent by a separate written instrument to the compulsory submission of disputes to the International Court of Justice and/or to arbitration in accordance with procedures to be provided in an arbitration annex to be adopted by the Conference of the Parties “as soon as possible.” However, no arbitration annex has yet been adopted.

Henin also described the possibility for the UN General Assembly to refer legal questions to the International Court of Justice for advisory opinions. There has been discussion of using that mechanism for climate change issues.

Next Henin turned to disputes involving private actors. Most investor-state disputes go to arbitration under treaties or under investment contracts. In the arena of treaty-based arbitration, Henin said that there have been over 40 claims brought against Spain, Italy, and the Czech Republic after those states backpedaled on incentive schemes put in place to promote renewable energy levels. She said that some recent arbitral decisions have opened the door for a new mechanism in investor-state arbitration: environmental counterclaims against investors brought by states. Investment contracts may incorporate specific emission reduction obligations or arbitration clauses may be included in contractual commitments that arise directly out of Kyoto Protocol mechanisms like carbon emission trading or climate finance.

To conclude the panel, Casper exhorted the attendees to devote their intelligence and resources to working to make progress on climate change.

Teaching FCIL as a Non-FCIL Librarian: Go-To Resources

By Janet Kearney & Michelle Penn

SlawFCILCareersWordle1This is the second in a set of posts from Michelle and Janet on FCIL for non-FCIL librarians; the previous post highlighted some go-to databases, and our next post will take a look at collection development. Michelle and Janet are both from Fordham Law Library, where Michelle is Faculty Services Librarian and Janet recently made the leap from Reference Librarian to FCIL Law Librarian. Thanks for having us!

When we first proposed this idea for a blog post, we did not realize just how often DipLawMatic Dialogues discusses tips for new teachers and FCIL teaching. Our challenge was to make this a useful post that doesn’t simply repeat the great advice of our colleagues who have come before us. We decided to once again focus on “go-to” resources in the hope that this will serve as a useful guide no matter what FCIL teaching situation finds you.

How might you find yourself teaching FCIL? In addition to the fact that we all do things outside our wheelhouse, teaching FCIL research can be a great way to help keep your FCIL research skills current even when you are not a FCIL librarian. Proposing a FCIL course can encourage you to brush up on your FCIL skills and help prepare you to move to a FCIL position in the future, if that’s something you want. For the less experienced non-FCIL librarian, teaching a FCIL class in a general advanced legal class, or offering research instruction for a doctrinal class, such as International Criminal Law or International Business Law, can be great ways to gain teaching experience and subject matter familiarity, without committing to teach an entire course on the subject. Offering research help for FCIL student journals, is another good way to explore different areas of FCIL research.

Although there are so many great resources out there on teaching, like 7 Things I Wish I Knew Before I Started Teaching Legal Research, here a few geared specifically towards FCIL.

Teaching Tip: Above all else, ask for help when you need it.

Do not hesitate to ask for help from other librarians! Even though our job is to provide assistance, it can still be difficult to turn around and be the one asking for help instead. Many of your colleagues probably have varying degrees of FCIL research experience and may be willing to share their course materials and insights on teaching FCIL. This includes your immediate colleagues, but the wider world of the FCIL-SIS is incredibly helpful as well.

Where can I ask for help?

The FCIL-SIS website, https://www.aallnet.org/fcilsis/education-training/teaching-fcil/, has information on existing classes and contact information for people willing to answer questions. You can send out an email on a listserv, like the FCIL-SIS My Communities forum or the Int-Law listserv. You could also leave us a lovely comment on this post!

Where can I find course documents, like syllabi or assignments?

The FCIL-SIS website also contains a Syllabi and Course Materials Database, https://www.aallnet.org/fcilsis/education-training/teaching-fcil/syllabi-course-materials-database/. This resource is very helpful and mentioned in almost every teaching FCIL post on DipLawMatic Dialogues. Check out this entry, Teaching FCIL Research Series: Fun with FCIL Assignments, https://fcilsis.wordpress.com/2018/02/13/teaching-fcil-research-series-fun-with-fcil-assignments/.

What are the best texts to help me prep/assign for reading?

The general consensus seems to be:

  • Marci B. Hoffman & Robert C. Berring, Jr., International Legal Research in a Nutshell (2d ed. 2017).
  • Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: A Coursebook (2d ed. 2012).
  • Heidi Frostestad Kuehl & Megan A. O’Brien, International Legal Research in a Global Community (2018).

For more on textual selection see this AALL panel review and this post on selecting books.

How can I find more helpful DipLawMatic Dialogues posts on this subject?

This blog allows you to find posts by subject using both tags and categories using the right-hand side menu. Check the posts tagged teaching here, https://fcilsis.wordpress.com/tag/teaching/, and the category of teaching here, https://fcilsis.wordpress.com/category/teaching-2/. Last May, Alyson Drake compiled a great list, Teaching FCIL Research: Revisiting 15 DipLawMatic Posts on Teaching, https://fcilsis.wordpress.com/2018/05/22/teaching-fcil-research-revisiting-15-diplawmatic-posts-on-teaching/.

 

Introducing…Erin Gow as the May 2019 FCIL Member of the Month

erin gow1. Where did you grow up?

Richmond, Kentucky.

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

Did I select it?? I certainly didn’t mean to – it just sort of … happened.

The final requirement for my library degree at the University of Brighton (they no longer offer this course) was a dissertation based on a research project at a host library. Middle Temple Library,  a law library in London, was looking for someone to research their users’ training needs, and since I had a background in education I thought this sounded interesting. I ended up learning A LOT about legal research, and enjoying it more than I expected to. Just before graduation a related law library, Gray’s Inn Library, had an opening in their graduate trainee program, which was designed for library graduates without any legal experience. I applied and was hired, and once again I ended up learning A LOT about British law and legal systems, and really enjoying the experience. When they invited me to stay on for a second year, I was delighted, and then when a job opened up back at Middle Temple Library, where I had done my dissertation research, I immediately knew I wanted to apply. I became a law librarian because of a string of opportunities, some first class training and support from amazing law librarians, and the fact that I ended up enjoying the work a lot more than I ever expected to!

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

Gray’s Inn Library had a specialist collection of international law, but as an American working in British libraries all the law was foreign to me! It was really becoming the European Librarian at Middle Temple Library that made me realize how much I enjoyed FCIL work specifically though. I loved learning about the intricacies of the EU and the challenge of finding foreign legal materials from across Europe.

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

I have worked at the University of Louisville Law Library for nearly 3 years (in March!).

5. Do you speak any foreign languages?

Not really. I took several years of Spanish in high school and at college, and started to work on developing a reading knowledge of French and German while working at Middle Temple, but I simply don’t use any of this enough to have retained very much.

6. What is your most significant professional achievement?

Probably just the reality of being the European Librarian at Middle Temple Library for a little while. It’s an incredibly cool library and I really respect the librarians and library users at all the Inns of Court, so it felt like an achievement just to be hired there. In retrospect I also realize how much the job as a whole pushed me to develop a whole range of new professional skills and confidence, in a way that I didn’t even recognize as I was just getting up and doing the work to the best of my ability each day.

On the other hand, presenting at the British and Irish Association of Law Libraries annual conference in 2014 felt like a significant professional achievement at the time. It was fun to be aware of actually doing something significant (for me at any rate!), but also kind of intimidating.

7. What is your biggest food weakness?

Macaroni and cheese. I’ll eat it as a side dish or a main, homemade or from a box, fresh or frozen.

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

Honestly, I ‘m not really a dancer or a singer – see below.

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

I have always wanted to be able to play some sort of musical instrument or sing well. Unfortunately, I lack any sense of rhythm and can’t carry a tune in a bucket.

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

Orange juice – it’s my coffee.

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

I’m the current chair of the European Law Interest Group and would love to hear from anyone who would like to get involved with the group or share an idea for a project!

GlobaLex April 2019 Issue Now Live

By Lucie Olejnikova

The April 2019 issue of GlobaLex is live featuring four important updates: Colombia, Iran, Lebanon, and International Tax Law. Webmasters and content managers updated your pages. Congratulations and thank you to all of our wonderful authors!

UPDATE: An Introduction to Colombian Governmental Institutions and Primary Legal Sources by Hernando Otero at http://www.nyulawglobal.org/Globalex/Colombia1.html.

Hernando Otero is an international arbitration and mediation attorney with experience as counsel of record and as an international arbitrator in proceedings pursuant to multilateral and bilateral trade and investment treaties (FTAs and BITs) and commercial agreements. He is an Adjunct Associate Professor of arbitration and mediation at the Washington College of Law in Washington D.C. and a mediator with the District of Columbia Superior Court. He has served as an arbitrator before the World Bank’s International Center for Settlement of Investment Disputes (ICSID) and has been appointed as an international arbitrator by the International Chamber of Commerce’s (ICC) Court of Arbitration. He has appeared as counsel in proceedings under the ICSID Convention, the ICSID Additional Facility and the UNCITRAL Arbitration Rules. He is on the London Court International Arbitration (LCIA) and the Financial Industry Regulatory Authority’s (FINRA) lists of neutrals, and on the Hong Kong International Arbitration Centre’s (HKIAC) Panel of Arbitrators. He is also on the Bogota Chamber of Commerce Arbitration and Conciliation Center’s (CACCCB) closed list of international arbitrators for proceedings seated in Colombia and on its high-amount closed list for local arbitration proceedings. He is licensed to practice law in the state of New York, the District of Columbia, and in Colombia.


UPDATE: The Legal System and Research of the Islamic Republic of Iran by Farah Khan at
http://www.nyulawglobal.org/Globalex/Iran1.html.

Farah Khan, BA.LLB.MSC (Criminology) is an Advocate of the High Courts in Pakistan, associate at M/s M. Ilyas Khan & Associates, a law firm in Pakistan known for the practice in Criminal Law.


UPDATE: The Lebanese Legal System and Research in Brief by Lara Eid Jreissati at
http://www.nyulawglobal.org/Globalex/Lebanon1.html.

Lara Eid Jreissati obtained a law degree from Lebanese University in 2006. In 2009, she received a Masters degree in Euro-Mediterranean cultures and policies from Italy’s International Telematic University. She speaks English, French, and Arabic. She completed legal consultancies for the Special Tribunal for Lebanon (STL) in The Hague in 2010 and 2013. She is an active member of the STL Follow up Commission work at the Beirut bar association. She frequently consults with NGO’s on international law issues with a specialty in refugee and migrant worker matters. She is an active member of the Beirut Bar Association’s Human Rights Institute.


UPDATE: Researching International Tax Law by Christopher C. Dykes at
http://www.nyulawglobal.org/Globalex/International_Tax_Law_Research1.html.

Chris Dykes is currently the Head of Public Services at the University of Houston Law Center’s O’Quinn Law Library. He received his Juris-Doctor from the University of Baltimore School of Law and LL.M. in Taxation from Villanova University School of Law. He also holds a B.A. in Political Science and M.S. in Information Sciences from The University of Tennessee.


News from Africa regarding two updates: Botswana and Cameroon — by Charles Manga Fombad, Professor of Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa

“Until the Botswana elections in October, it is hard to determine exactly in which directions things are moving. For now, there is too much confusion because of a big fight between the former president, Ian Khama, and his successor Masisi. The former president had wanted to govern from the back seat because he is a traditional ruler over territory, which covers just over half of the parliamentary constituencies, he is capable of wreaking havoc. Regarding Cameroon, the situation is too unsettled as well. The two Anglophone regions are in full rebellion and the government, instead of negotiating, has opted for a military solution. The surreptitious attempts to eliminate all Anglophone particularities, especially the replacement of the common law system in these two regions with the civil law system is the genesis of this havoc. As long as these issues are not sorted out, it will be difficult to write anything that will make much sense and be accurate update on Cameroon.”

 

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

ASIL 2019 Recap: Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation

By Caitlin Hunter

ASILRegional Human Rights Organization of American States.JPG

Organization of American States

In Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation, panelists discussed fragmentation among the three major regional human rights courts: the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights (ACtHPR). Elena Abrusci provided insights from her research at the University of Essex’s Human Rights Centre. Silivia Serrano Guzmán and moderator Christina Cerna drew on their experiences working for the Inter-American Commission on Human Rights. Finally, Thomas Antkowiak drew on his work advocating before the IACtHR and ACtHPR as director of the International Human Rights Clinic at Seattle University School of Law. The panelists provided detailed, meticulously researched analysis of what fragmentation is; why and when it happens; and its impact.

  1. What is fragmentation?

Fragmentation occurs when international tribunals reach conflicting decisions on how to apply international law to similar scenarios.

  1. Why does fragmentation happen?

Abrusci identified two primary reasons:

  • Different judges. Abrusci’s data suggested that judges on the IACtHR and the ACtHPR are worldlier than their counterparts on the ECtHR. 70-80% of ACtHPR judges and 50-60% of IACtHR judges had received their legal education on another continent, mostly in Europe. In contrast, less than 10% of ECtHR judges had received their legal education outside of Europe. Similarly, 10-20% of ACtHPR and IACtHR judges had worked for a UN human rights body but less than 4% of ECtHR judges had done so.
  • Different deference standards. The ECtHR applies the margin of appreciation doctrine, which allows states some flexibility in applying the European Convention on Human Rights (European Convention) and takes into account the current consensus among European states. In contrast, the IACtHR applies the conventionality control doctrine, which requires all states to fully comply with the American Convention on Human Rights (American Convention).
  1. When does fragmentation happen?

Rarely. Panelists agreed that convergence is the norm and fragmentation is the exception. The IACtHR routinely looks to ECtHR jurisprudence and the ECtHR has looked to IACtHR jurisprudence in areas where it is more developed, as when the ECtHR adjudicated forced disappearances in Kosovo. However, panelists identified several notable examples of fragmentation:

  • Same-sex marriage. The ECtHR observed that most European states do not allow same-sex marriage and, applying the margin of appreciation, declined to interpret the right to marriage to include the right to same-sex marriage.[1] In contrast, the IACtHR explicitly rejected the ECtHR’s reliance on consensus and suggested that the right to marriage also applies to same-sex couples.[2]
  • The right to a criminal appeal. A protocol to the European Convention explicitly states that the right to a criminal appeal does not apply if the defendant is convicted by the country’s highest court or after an acquittal is overturned.[3] In contrast, the IACtHR has held that the right to an appeal applies in both of these situations.[4]
  • Indigenous property rights. The ECtHR has repeatedly failed to acknowledge indigenous collective property rights, ignoring not only well-developed IACtHR jurisprudence, but also an ILO convention and UN resolution.[5]
  • Reparations to victims. The ECtHR provides only a limited set of primarily financial remedies, while the IACtHR employs holistic remedies such as ordering the state to build medical centers, provide victims with scholarships, and formally apologize. Generally, panelists preferred the IACtHR’s approach but acknowledged that the IACtHR had sometimes ordered reparations so broad that they were effectively impossible to implement, as when the IACtHR ordered Honduras to ensure that all of its hundreds of prisons complied with all international human rights laws.

There are also notable examples where the courts have fragmented and then re-converged:

  • Access to information. The IACtHR interprets the right to freedom of expression to include a right to access to information.[6] The ECtHR initially rejected this view[7] but has gradually moved towards it, invoking the margin of appreciation and the growing consensus of European states in favor of access to information.[8] Paradoxically, although the ECtHR’s margin of appreciation typically causes fragmentation, here it permitted the ECtHR to converge towards the IACtHR.
  • The right to life. Under the IACtHR’s vida digna (dignified life) doctrine, the right to life incorporates social, economic, and cultural rights, such as the rights to food, shelter, and work. Although the UN Human Rights Committee has adopted the vida digna doctrine,[9] the ECtHR has generally ignored it and the ACtHPR has explicitly rejected it.[10] Advocates for social, economic, and cultural rights argue that treating them as a subset of the right to life subordinates them to civil and political rights and hinders their individual conceptual development. The IACtHR has begun to converge with the other two courts, applying the vida digna doctrine only to especially vulnerable groups, such as homeless children,[11] and finding alternative strategies to incorporate social, economic, and cultural rights.[12]
  1. Is fragmentation bad or good?

Like the panelists on the earlier Fragmentation in International Data Protection Law panel, panelists did not believe that fragmentation was inherently bad. In fact, panelists argued that some fragmentation among the regional human rights courts could help propel the development of new theories in international human rights law.

 

[1] Schalk and Kopf v. Austria, App. No. 30141/04, Eur. Ct. H.R. (2010), http://hudoc.echr.coe.int/eng?i=001-99605; Chapin and Charpentier v. France, App. No. 40183/07, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-163436.

[2] State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples, Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en.

[3] Article 2(2) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No.117, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117.

[4] Barreto Leiva v. Venezuela, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 206 (Nov. 31, 2009), http://www.corteidh.or.cr/docs/casos/articulos/seriec_206_ing.pdf; Mohamed v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 255 (Nov. 23, 2012), http://www.corteidh.or.cr/docs/casos/articulos/seriec_255_ing.pdf.

[5] Elena Abrusci, Judicial Fragmentation on Indigenous Property Rights: Causes, Consequences and Solutions, 21 The International Journal of Human Rights 550–564 (2017), https://doi.org/10.1080/13642987.2017.1307830.

[6] Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151 (Sept. 19, 2006), http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.pdf.

[7] Leander v. Sweden, App. No. 9248/81, Eur. Ct. H.R. (1987), http://hudoc.echr.coe.int/eng?i=001-57519.

[8] Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-167828.

[9] General Comment 36, para. 3 (2018), https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf.

[10] African Commission on Human and Peoples’ Rights v Kenya, App. No. 006/2012, Judgement, 26 May 2017, para. 154, http://www.african-court.org/en/images/Cases/Judgment/Application%20006-2012%20-%20African%20Commission%20on%20Human%20and%20Peoples%E2%80%99%20Rights%20v.%20the%20Republic%20of%20Kenya..pdf.

[11] Villagrin-Morales et al. v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 63 (Nov. 19, 1999), http://www.corteidh.or.cr/docs/casos/articulos/seriec_63_ing.pdf.

[12] Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017), http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf.

ASIL 2019 Recap: Fragmentation in International Data Protection Law

By Caitlin Hunter

In Fragmentation in International Data Protection Law, panelists discussed the rapidly spreading and often contradictory laws protecting consumer data, incorporating the perspectives of corporations (Geff Brown, Microsoft), consumer activist groups (Carolina Rossini, Access Now), academia (Peter Swire, Professor of Law and Ethics at Georgia Tech), and government (Justin Antonipillai, formerly of the Department of Commerce and currently of WireWheel). Here are five key take-aways:

  1. Data protection laws have gone from a parochial European phenomenon to a global trend.

Traditionally, European countries have been particularly active in pushing for data protection, as shown most recently in the EU’s enactment of the General Data Protection Regulation (GDPR). However, laws are spreading rapidly, with over one hundred countries implementing some sort of protections. All four of the BRICs countries have adopted or are considering data protection laws and the U.S. Congress is increasingly debating the issue. U.S. states are also passing data protection laws, including the recently enacted California Consumer Privacy Act and initiatives to pass laws in Vermont, Washington, and Massachusetts.

ASILFragmentation AccessNow homepage.PNG

Website of AccessNow, a consumer activism group, where panelist Carolina Rossini works.


2. Data’s move into the cloud means that data protection laws anywhere affect data everywhere.

Today, users anywhere may be accessing data on a server located anywhere and, as a result, domestic or regional data protection laws impact the entire world. U.S. organizations scrambling to comply with the EU’s GDPR are familiar with this, but the impact flows in the opposite direction, too. Before the recent passage of the U.S. CLOUD Act, a police officer who was investigating a local crime in the EU but needed evidence from a server in the U.S. might have to wait a year or more to get a warrant form a U.S. judge under the Electronic Communications Privacy Act. These concerns are not hypothetical- as a Belgian audience member heatedly complained, Microsoft’s Skype is currently fighting for its right not to provide wiretaps ordered by Belgian courts.

ASILFragmentation GDPR.PNG

GDPR website

 

 

  1. Fragmentation between data protection laws stems from different regions’ fundamentally different privacy frameworks.

European countries view privacy as a basic human right, enshrined in their Constitutions, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. This contrasts sharply with the U.S.’s strong emphasis on freedom of information. Typically, Americans assume that personal data can be used, unless there is a justification for prohibiting it, while Europeans assume that personal data cannot be used, unless there is a justification for permitting it. One panelist reported that an EU official privately confided that big data is probably illegal under the GDPR. If this conflict is not resolved, it will upend industries that have premised their future on massive use of big data.

ASILFragmentation WireWheel homepage.PNG

Website of WireWheel, where panelist Justin Antonipillai works.

 

  1. Compromises have broken down.

For years, U.S. companies and European countries accommodated their conflicting frameworks through a deal in which U.S. companies publically pledged to comply with EU data protection laws, allowing the U.S. Federal Trade Commission to take action against the companies for misrepresentation under U.S. law if the companies violated EU law. However, the future of this deal is in doubt, as the EU grows increasingly concerned with privacy. In 2015, the European Court of Justice (ECJ) struck down the original version of the deal, called the U.S.-E.U. Safe Harbor, in Maximillian Schrems v Data Protection Commissioner, C-362/14. Although the U.S. Department of Commerce quickly negotiated a new deal, now dubbed the EU-U.S. Privacy Shield, Schrems challenged the new deal, too, and it is again headed back to the ECJ, its future dubious. If the ECJ decides that U.S. privacy protections remain inadequate, this will impact not only tech companies in the U.S. but in any country that does not share the EU’s high level of privacy protection.

  1. Consistent laws are needed- but not necessarily uniform laws.

The fragmentation of data protection law has left tech companies scrambling to reconcile hundreds of conflicting laws. Within the U.S., many now advocate for a single, national data protection law, including the Chamber of Commerce and panelist Justin Antonipillai. However, even panelist Geff Brown of Microsoft believed that it was not only unlikely but undesirable to push for uniform laws internationally. Instead, he encouraged countries to develop a global forum that would allow them to create laws that reflect their own values but are consistent enough to be interoperable.

ASIL 2019 Recap: The Law (and Politics) of Displacement

By Meredith Capps

ASILdisplacement.jpg
On Thursday, March 28, Jill Goldenziel of Marine Corps University moderated a discussion on legal and political challenges surrounding forced displacement, which is at an all-time high. Panelists included Itamar Mann of the University of Haifa; Daniel P. Sullivan of Refugees International; Alice Farmer, the Legal Officer for UN Office of the High Commissioner for Refugees (UNHCR)in Washington, D.C.; and Kristina Campbell, a clinical faculty member at the University of the District of Columbia.

Mann discussed some history of international law governing displaced persons, including the 1923 Treaty of Lausanne, which, in part, facilitated population exchange and redistribution between Greece and Turkey. In the human rights era following the World Wars, the forced movement of groups of persons became “the paradigm of a criminal act,”  with freedom of movement established in the Universal Declaration of Human Rights, and forced movement of populations prohibited in the Geneva Conventions. Mann identified the movement of Syrians out of Greece as a current challenge, and climate change as the impetus for movement a future issue.

Sullivan discussed the displacement of the Rohingya from Myanmar to Bangladesh, where roughly 1 million people now reside in camps. Rendered stateless in Myanmar as “illegal Bengalis,” the Rohingya are also not protected as refugees in Bangladesh (who has considered moving some to a disaster prone island in the Bay of Bengal). Despite clear evidence of criminal activity by Myanmar officials, an ICC referral may be blocked by Russia and China, and fact-finding missions and target sanctions have failed to impact change.

Farmer noted that with only 1/4 to 2/3 of displaced persons presently returning to their home state, traditional displacement solutions are no longer viable. Though some characterize migration north from Honduras, Guatemala, and El Salvador as economic migration, current patterns suggest a forced displacement, and UNHCR takes the position that many of those fleeing violence in these regions satisfy refugee criterion. The number of families migrating is particularly significant, and suggests that deterrence is ineffective. These changes in the nature of persecution test of weaknesses in international law, with adjudicators inconsistent in their approach to defining “refugee,” and burden sharing conversations amongst states fraught. While UNHCR is working to increase capacity in the Mexican asylum system and facilitate local integration, its capacity remains vastly below that of the U.S.

Campbell discussed U.S. immigration family detention centers, a new concept established during the mid-2000s. Per the Flores settlement agreement regarding detention conditions for minors, immigration authorities should preference release of minors to parents, and maintain humane, non-secure facilities. She described the few family detention centers in the U.S., and her clinic’s work assisting families in those centers, including credible fear reviews. Campbell said that the Trump administration’s June 2018 executive order did not, in fact, alter its zero tolerance policy that facilitated family separation, and it has no plan to reunite families separated as a result.

The panelists discussed several recurring, fundamental issues during the question-and-answer period. One was the idea of repatriation, with efforts to repatriate Rohingya during the 1970s cited as an effort that failed due to lack of political will, and safety concerns on the part of the group itself; when root causes remain unaddressed, repatriation is not a viable option. Domestic courts do, at times, enforce international norms to protect displaced persons, citing the East Bay Sanctuary Covenant case, but judicial enforcement can generate a backlash. Terminology used to characterize a situation can also either boost or diminishing political will. For example, when an NGO or state uses “ethnic cleansing,” rather than genocide or “crimes against humanity,” public sense of urgency may diminish. Conversely, frequent use of the term “crisis” or “surge” by advocacy groups and the media may desensitize the public.

Goldenziel also discussed the Global Compacts for Refugees and Migration, nonbinding agreements negotiated by many states, including the U.S., and adopted by the UN General Assembly, but whose status under international law is unclear. Negotiations resembled those for a treaty, with some states lodging statements similar to RUDs, and some states appear to consider it forceful despite its nonbinding status. The U.S. withdrew from the compact, citing sovereignty concerns.