Book Review: Reexamining Customary Law

By Jessica Pierucci

ReexaminingCustomaryLaw.jpgBrian D. Lepard (ed.), Reexamining Customary International Law (Cambridge University Press, 2017). 438 p. Hardcover $125.00.

Reexamining Customary International Law starts with a forward by Michael Wood, the International Law Commission’s (ILC) Special Rapporteur for “Identification of customary international law.” Wood discusses the need for a reexamination of customary international law (CIL) and how this book fits with the ILC’s work on identifying CIL. The opening leads nicely into the introduction by the editor describing the sweeping use of CIL across topic areas and beginning discussion of some of the ways scholars are interrogating issues within the often complex world of defining and demonstrating CIL.

The book then turns to Part I Reexamining Historical and Theoretical Perspectives on Customary International Law. J. Patrick Kelly focuses on the historical aspect by problematizing how CIL was a development of the most powerful Western states, ignoring the practices of non-Western and less powerful Western states and seeming to justify colonial expansion by situating European norms as CIL. Kelly then describes how the persistent objector principle is a relatively recent phenomenon appearing in the ninth edition of Oppenheim’s International Law, not in the first eight editions (p. 79). He argues that this principle makes CIL inconsistent by allowing demonstrations of non-consent to have value despite CIL generally being a set of norms applicable to all nations. The next three chapters all make theoretical arguments surrounding some of the complicated aspects of CIL. Fernando R. Tesón explores fake custom, listing myriad ways fake custom can be perpetuated and why this is a concern. Neils Peterson uses examples and charts to demonstrate the impact of consent in CIL and discuss benefits of rethinking how CIL works in practice. Thomas Kleinlein delves into the murky waters of the relationship between CIL and general principles. Each chapter is filled with dense analyses of this complex area of international law.

Parts II-IV reexamine CIL in different contexts, all interrogating the evidence used to demonstrate CIL and proposing ways to effectively show CIL in each topic area. Jean-Marie Henckaerts and Els Debuf discuss the International Committee of the Red Cross Customary International Humanitarian Law study and Customary IHL database, including how these resources have been used in practice and their impact on shaping the discussion of international humanitarian law. This provides an interesting glimpse into the impact of a nongovernmental organization laying out its take on the rules of CIL in a topic area. Noora Arajärvi discusses examples of international criminal tribunals invoking CIL, examining how opinio juris and state practice show up, or fail to do so, in tribunal judgments.

Turning to human rights, Brian D. Lepard examines the important question of whether human rights norms can be considered CIL given that so many states regularly violate human rights norms, thus challenging the state practice component of CIL. Lepard advocates for a new formulation of CIL in the human rights context. Anne Williams Shavers uses Lepard’s new formulation as a jumping off point to argue for a complementary approach in upholding women’s human rights.

Turning to the skies, Sofia Michaelides-Mateou reviews the evolution of international aviation law, giving particular attention to the relationship between air law treaties and CIL in the context of aviation, and some parallels with law of the sea. Frans G. von der Dunk turns to outer space law arguing that CIL plays a lesser role in outer space law than in other areas of international law with treaty law playing a central role in outer space law.

Part V concludes the book with reflections by Brian D. Lepard connecting the essays to one another and explaining how they collectively contribute to reshaping understanding of CIL. The conclusion brings the book’s title into full view by sharing the big picture of how Lepard believes CIL can and should be reexamined in light of the essays and how the editor believes CIL will move into the future.

CIL is a crucially important but often opaque component of international law. This book is a good, but dense, read for someone seeking to elucidate how CIL is used in different areas of law and understand critiques of that use. This book would fit well in any library looking to build their international law collection.

 

Book Review: Charting the Legal Systems of the Western Pacific Islands, by Victoria J. Szymczak

chartingthelegalsystemsofthewesternpacificisland
By Susan Gualtier

In a recent blog post, Shay Elbaum recapped a 2018 WestPac conference program in which Victoria Szymczak, Director of the Law Library and Associate Professor of Law at the University of Hawai’i William S. Richardson School of Law, discussed the creation of her new legal research guide, Charting the Legal Systems of the Western Pacific Islands, which was recently published by Hein.  Although I was not personally able to attend WestPac or hear Ms. Szymczak speak on this topic, I had already received Hein’s announcement regarding the new guide and was anxious to see it in person.

Charting the Legal Systems of the Western Pacific Islands is unique for a research guide in that it contains quite a bit of context.  It covers history, defines important British colonial legal terms, and lays out clearly the challenges specific to legal research in the Western Pacific Islands.  At only 60 pages long, the book offers enough background information for the researcher to feel confident in beginning to look at primary sources.  Szymczak also recommends several treatises on both the British colonial system and the Western Pacific that can provide the researcher with more in-depth information.

The book is also unique in that it is very much focused on historical resources, specifically those created during British colonization in the Western Pacific.  Szymczak explains the different types of colonial documents that researchers may need to locate and identifies sources where those documents might be published.  She also describes how legislation and the judiciary operated in the Western Pacific Islands under British rule, and the ways in which native or customary law were applied during that period.  Szymczak discusses various instruments of customary law, including native courts and island and local councils, which were established during the colonial period, and even mentions a few ways in which the researcher might approach finding evidence of customary law from that era.  An entire chapter is devoted to archival research and secondary sources, such as historical newspapers, that can help to “fill in the gaps” in the historical record created by primary legal documentation.

The book wraps up with several chapters on post-independence sources of law.  Again, significant context is provided in order to help the researcher understand the history and legal structure post-independence.  Szymczak discusses open access online sources, as well as print sources specific to the jurisdictions covered in the book.

It is rare that a research guide is also such an interesting read, but I very much enjoyed this guide and learning about the legal history of the Western Pacific Islands.  I would recommend this book to anyone interested in colonialism, the Western Pacific, or customary and indigenous law.

Book Review – Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law

By Jessica Pierucci

Robin Geiß, Andreas Zimmermann, & Stefanie Haumer (eds.), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press, 2017). 278 p. Hardcover $110.00.

9781316622186Humanizing the Laws of War is an edited book born from a 150-year celebration of the International Red Cross and Red Crescent Movement in 2013. “The International Red Cross and Red Crescent Movement at 150: Developing and Clarifying International Humanitarian Law,” honored the movement by pulling together international humanitarian law (IHL) scholars and practitioners for a meeting in Berlin. The meeting led to this work memorializing the achievements of the International Committee of the Red Cross (ICRC) and its undeniable impact on IHL during the past 150 years, while also addressing the organization’s shortcomings and outside criticism.

The editors open the book with an introduction focusing on the interaction between the ICRC and the National Red Cross or Red Crescent Society within countries. They note the cognizable advantage to this structure with locals who know and understand the country being able to most effectively implement broader initiatives on the local level. However, the authors note the need for increased cooperation between the organizations to further the worldwide influence of IHL.

Part I discusses the ICRC’s influence on treaty making. In Chapter 1, Robert Heinsch gives an historical account of the development of the Geneva Conventions showing the ICRC’s intimate involvement in drafting the conventions, and thus framing the conversation, noting “[i]t is probably not exaggerated to say that there is no other field of international law in which a non-State entity has had such an impact on the norm-development process as well as on the dynamic interpretation of the respective rules.” (p. 27). Heinsch notes the ICRC has also authored commentaries on the Geneva Conventions and is currently updating those commentaries, further demonstrating the ICRC’s influence as a central authority on interpretation of the conventions. The second chapter furthers the discussion with Michael Bothe detailing the ICRC’s influence on the subsequent protocols to the Geneva Conventions of 1949 while acknowledging the protocols’ shortcomings, notably in nuclear and environmental fields.

Part II looks beyond treaties at the ICRC’s influence on IHL norm development. In Chapter 3, one of the editors of the 2005 Customary International Humanitarian Law study, Jean-Marie Henckaerts, describes the origin and addresses criticism of the study that laid out 161 rules of customary IHL, and is continually updated through additions of relevant state practice in the ICRC’s Customary IHL database. The origin story provides valuable context for understanding this expansive study and I appreciated the author’s direct discussion of criticism since the study’s publication. Chapter 4 similarly provides background and addresses critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Robert Cryer discusses the criticisms, but pushes back noting if the critical governments “wish to reject the ICRC’s view, the impetus is now for them to show that they can create (and get broad agreement thereupon) something better.” (p. 138).

Part III turns to the ICRC’s influence on weapons laws and international criminal law (ICL). Chapter 5 discusses the ICRC’s efforts in developing IHL norms and treaties on weapons that are by their nature indiscriminate or cause superfluous injury, such as chemical weapons and cluster munitions. Kathleen Lawand and Isabel Robinson share examples of the ICRC successfully serving as a catalyst for creating weapon-specific laws, but admits the ICRC has not been successful in all circumstances, particularly in the case of nuclear weapons. In Chapter 6, Carsten Stahn discusses the intersections of IHL and ICL, focusing in particular on interaction between the ICRC and international criminal courts and tribunals. Stahn shares how IHL and ICL are not mutually exclusive and further understanding of and development of their relationship could improve both fields.

Part IV, the conclusion, is authored by two of the editors, Robin Geiß and Andreas Zimmermann. They highlight the ICRC’s successes and prominence within IHL while also grappling with its failures. In particular, the authors note the need for a compliance mechanism or other means to increase IHL compliance and discuss barriers impeding compliance initiatives.

This review provides just a glimpse at the fascinating history of the ICRC discussed in the work. The book’s critical lens makes for an enlightening read allowing the reader to gain a broad understanding of the ICRC’s contributions to IHL laws and resources, and the current limitations of IHL and the ICRC. The heavily footnoted chapters allow readers interested in any of the topics covered to look deeper into history or criticism of the ICRC’s influence and IHL. This book would fit well in any library with an IHL collection.

New FCIL Librarian Series: Resources for New or Aspiring FCIL Librarians

By Jessica Pierucci

This is the sixth and final post in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

My final post in this series reflects on this past year and shares some general FCIL background sources that I found particularly helpful for familiarizing myself with the universe of resources available for FCIL-focused researchers.

Reflection

First, some reflection. One aspect librarianship that drew me to this profession is the requirement to always be curious. I feel fortunate that in the past year I’ve had the opportunity to indulge my curiosity in foreign and international legal resources. I’ve tried to absorb as much as possible from each opportunity I’ve had to engage in FCIL research topics. There’s no substitute for practice, and I can really see how my ability to more quickly hone in on the best ways to tackle certain FCIL research problems has developed over the course of the year in particular when assisting law school faculty with their research needs. As we all experience, there are never enough hours in the day to do it all, so there’s still so much more I want to learn that I just haven’t been able to fit in between all my other responsibilities outside of FCIL-focused work, but I look forward to continuing to be curious and always learning in the years ahead.

In addition, as I head into my second school year in this position, I’m excited to do some things a second time with the opportunity to incorporate knowledge gained from experience. For example, I can share what I learned from attending the Jessup Moot Court finals at the conclusion of the ASIL Annual Meeting with the UCI Law Jessup team to guide their research process. I look forward to sharing additional international legal research ideas I’ve picked up throughout the year with the team as well.

FCIL Background Resources

Second, the list. I hope this list will provide a beginning checklist for anyone looking to increase their familiarity with FCIL research or considering becoming an FCIL librarian. I would also encourage comments on this post from anyone who has additional resources to share. As is the nature of research, these resources point to tons of other helpful resources, so this is only the tip of the iceberg.

fcil_textbooks.jpgBooks

FCIL research books published since 2011 provide innumerable valuable research tips and resources to consider. Each book has its own approach and has added to my conception of FCIL research in different ways as I’ve perused different chapters and books while working on various projects. If you plan to teach an FCIL research course you can consider using one of these books, although you can also teach without a textbook.

Learn more about many of these textbooks from DipLawMatic Dialogues:

The AALL/Oceana Institute publications, while from the 1990s, provide valuable background information. These books were the result of an initiative to train future FCIL librarians.

  • Introduction to Foreign Legal Systems (Richard A. Danner & Marie-Louise H. Bernal eds., 1994).
  • Introduction to Transnational Legal Transactions (Marylin J. Raisch & Roberta I. Shaffer eds., 1995).
  • Introduction to International Organizations (Lyonette Louis-Jacques & Jeanne S. Korman eds., 1996).
  • Introduction to International Business Law: Legal Transactions in a Global Economy (Gitelle Seer & Maria I. Smolka-Day eds., 1996).
  • Contemporary Practice of Public International Law (Ellen G. Schaffer & Randall J. Snyder eds., 1997).

Articles

The FCIL-SIS Education Committee created a fantastic list: Articles Considering a Career in FCIL Law Librarianship. And many of these articles include further awesome lists and helpful footnotes themselves.

Journals

Subscribing to alerts for each of these publications allows me to review the table of contents for each issue and pick out articles to read and others to save for future reference as needed.

Core Groups/Lists to Join

After attending a few conferences throughout the past year, I’ve been able to put faces to names for many of my FCIL-focused colleagues who share valuable resources and information with one another through the digital forums created by the lists associated with these groups.

Also look for specialized groups of potential interest, such as Chinese and American Forum on Legal Information and Law Libraries (CAFLL).

In Conclusion

While I’m sure much of the list above is old hat to my FCIL colleagues who have been doing this wonderful work for some time and many of them have authored or spearheaded the publications and organizations listed, I hope listing this information all in one place on DipLawMatic Dialogues will help my future colleagues find starting points for entering this exciting world of FCIL librarianship. I’ve truly enjoyed my first year as an FCIL librarian and hope these posts have inspired others to consider pursing this path with their library careers too.

AALL 2018 Recap: FCIL-SIS Book Club Discussion of “In the Shadow of Korematsu”

By Kate Britt

Korematsu 2.JPGFCIL-SIS members nabbed a table at the Lexis lunch to discuss In the Shadow of Korematsu: Democratic Liberties and National Security, a 2018 book by Eric Yamamoto–law professor and part of Fred Korematsu’s legal team in the 1980s.

The first major issue the Book Club seized upon was the book’s style. The writing was noted to be less than scholarly, eschewing legalese for simplicity. The author makes obvious attempts to coin his own phrases (see: “chameleonic deployment”) through repetition and italics; the effect is more silly than convincing. Additionally, the use of clunky endnotes robbed readers of valuable insights and further inquiry into the facts and claims the author makes.

In the Shadow of Korematsu appears to be written for the purpose of persuasion, but the author failed to develop potentially impactful details. The Club regretted the absence of personal stories from Korematsu and his fellow citizens about the effect of living in internment camps. Likewise, the group would have enjoyed more information about the Solicitor General’s decision to retract a statement from the case record before oral arguments. The 1944 Korematsu case and its aftermath are chock full of fascinating historical details and intricate legal arguments; ultimately the book failed to develop either aspect fully. As far as a “good read,” it is neither compelling non-fiction nor engaging legal theory.

The Book Club hypothesized that there may have been a conflict between the author and the publisher regarding who is this book’s intended audience. The publisher may be seeking a wide, general audience; the endnotes, casual writing style, and attempts to coin terms point to this purpose. On the other hand, the author brings Korematsu to the fore just as the current administration detains immigrant children at the border and institutes blanket bans on immigration from majority Muslim countries. Timing suggests that Yamamoto saw his audience as modern judges who are making decisions about U.S. policy. The lack of human-interest stories and possible rush to publication further indicate that he wanted lawmakers to consider Korematsu as an example of what not to do.

Regardless of stylistic flaws, the Book Club agreed that In the Shadow of Korematsu is nevertheless valuable in several respects. For one, it puts the entire story of Korematsu in a single volume. The Club discussed how many of us grew up thinking of the case as old history, but this book revives the reality of Japanese internment camps and their effect on modern America. The strain of racism active in Korematsu is traced to the present day.

The author warns that in times of (seeming) crisis, nothing in the jurisprudence following Korematsu would stop justices from again putting national security ahead of civil rights. Indeed, shortly after the book was published, his warning proved true when the Supreme Court disregarded statements of religious animus and upheld the travel restrictions of Presidential Proclamation 9645 in Trump v. Hawaii. Observers may have trouble reconciling the dictum in that case that disavows Korematsu with the actual holding of the Court. This book clarifies that yes, public opinion disfavors Korematsu, but the conditions which allowed Korematsu persist. The Club discussed how the (personal) opinions of Scalia and Rehnquist continue to influence legal theory and the current bench.

Book Club members expressed interest in pursuing the subject of this book beyond its pages. The experiences of interned persons are related in various podcasts and the writings of actor George Takei. It would also be interesting to see how an immigration attorney, coming from a particular perspective, would frame the case of Trump v. Hawaii.

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FCIL-SIS Book Discussion Group to Meet Again in Baltimore This Summer

By Susan GualtierKorematsu Cover

Over 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 fine company.

This year, the group will meet on Monday, July 16, at 12:30.  As in past years, we will meet in the Registration Area, and will find a table or small room from there.  The event will be BYO lunch or snacks.

This year’s book selection is In the Shadow of Korematsu: Democratic Liberties and National Security, by Eric K. Yamamoto.  Professor Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawai`i. He is nationally and internationally recognized for his legal work and scholarship on civil procedure, as well as national security and civil liberties, and civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice.  The following book description appears on the Oxford University Press website:

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America – an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of “pressing public necessity” as justification for curtailing fundamental liberties?

These queries paint three pictures portrayed in this book. First, they portray the present-day significance of the Supreme Court’s partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration – a decision later found to be driven by the government’s presentation of “intentional falsehoods” and “willful historical inaccuracies” to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts’ legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers – realpolitik advocacy – at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

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 Baltimore for another great book discussion!

Book Review: Law’s Picture Books — The Yale Law Library Collection

lawspicturebooksBy Stacia Stein

Michael Widener & Mark S. Weiner. Law’s Picture Books – The Yale Law Library Collection (Talbot Publishing, 2017). 220 p. Paperback $39.95.

The exhibition catalog of Law’s Picture Books is almost as beautiful as the exhibit itself. In curating the exhibit Michael Widener and Mark S. Weiner were interested in, not just the pictures in the books, but the book as object as well. As Weiner notes in his introduction, the images “generally weren’t experienced independently of the books in which they appeared.”  Therefore, viewing the images in an exhibition catalog, unmoored from their books might, at first, seem contrary to the spirit of the exhibit. However in bringing together pictorial highlights of the Yale Law Library Collection, the images are given a new context and the catalog itself becomes its own book as object to be appreciated. With lady justice smiling enigmatically from its jaunty blue cover, and with its thick glossy pages and squat square shape, Law’s Picture Books is a standout on any bookshelf. As to be expected of a catalog from such an exhibit, the pictures are indeed a delight. However, adding to the books charm, is the warmth, humor, and erudition of the curators which is revealed in the commentary.

Among the many illustrations Widener and Weiner included in the exhibition is a woodcut from De alluvionum iure universo, a 16th century treatise on riparian water rights by Battista Aimo. This centuries-old image surely sheds light upon historical laws, but it also sheds light upon Mike Widener’s collection development practice. For it was this woodcut, which simply and succinctly illustrates the effects of alluvium upon the size and shape of a piece of land, that inspired Widener to begin his decades long quest, first at University of Texas’s Tarlton Law Library and currently at Yale Law School’s Lillian Goldman Law Library, to uncover the legal illustrations of the past. Because of exhibitions like “Law’s Picture Books” these illustrations are now able to inspire further generations throughout the world to engage with legal history.

The images run the spectrum from the informative (who owns the fruit of a tree that grows at the intersection of several pieces of property) to the tawdry (a woman losing her inheritance for sleeping with a musician) to the mundane (the unlawful disposal of household garbage). The pictures bring the past alive, and the captions bring the pictures alive, highlighting fascinating details, raising interesting questions, and sometimes even engaging in word play.

The catalog, like the exhibit, is organized into 10 groupings: (1) Symbolizing the Law; (2) Depicting the Law; (3) Diagramming the Law; (4) Calculating the Law; (5) Staging the Law; (6) Inflicting the Law; (7) Arguing the Law; (8) Teaching the Law; (9) Laughing – and Crying – at the Law; and (10) Beautifying the Law.   There are no chronological or geographical limits, although the majority of the illustrations are from the U.S. and western Europe with dates ranging from 1473-2015.

In addition to reflections by the two curators and authors, the book includes essays by Jolanda E. Goldberg and Erin C. Blake which address the medieval history of the ars memoria and the history of book illustrations, respectively.  These essays both add to the reader’s appreciation and understanding of the illustrations that follow and add to the value of Laws Picture Books as a valuable pictorial and textual resource.