Book Review: Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation

By Alyssa Thurston

Yun Zhao and Michael Ng (eds.), Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation (Cambridge University Press, 2017). 326 p. Hardcover $116.

China has implemented “a series of legal reforms of varying scales over the past century, borrowing models from a disparate range of countries”[1], a practice that has continued under the current Chinese president, Xi Jinping. Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation gathers Chinese law and legal history scholars from around the world (but predominantly from mainland China and Hong Kong) to evaluate Chinese legal reform “taking into account the country’s engagement with globalisation, increasingly complicated domestic situation and historical experiences of legal transplantation.”[2] Distinctively, the book incorporates research on legal reform from the mid-19th century onward for “a more nuanced view…of the drivers and factors underpinning the Chinese model of learning from, and at the same time shaping, the world’s legal order.”[3]

The book’s two sections delve into the present and the past. The first section’s chapters trace reform in different areas of Chinese law under Xi Jinping and generally since 1979, the year the country launched its “reform and opening up process”[4] that was the catalyst for “unprecedented economic growth”[5]. Sarah Biddulph examines attempts at criminal punishment reform policy questions that arose following the 2013 abolition of laojiao, or “re-education through labour”[6]. Xifen Lin and Casey Watters look at differing views, incorporation, and enforcement of presumption of innocence in international and Chinese criminal procedure law. Shucheng Wang assesses domestic judicial enforcement of human rights law in China, an “illiberal state”,[7] comparing it to enforcement in liberal democratic states. Chao Xi and Xuanming Pan review the impact of “foreign norms and local conditions”[8] on the development and enforcement of Chinese securities law and regulation, and Wenwei Guan compares China’s “‘market-authoritarian’” economic and free trade development model with the “‘market-democratic’” model of the West[9]. Liang Zhao analyzes the “disharmony”[10] of maritime judicial practice in China, arguing for resolution through adopting the common law doctrine of precedent. Björn Ahl focuses on the implementation of the Convention Against Torture in China via legislative and judicial reforms since 2010. Finally, Yun Zhao reviews China’s progress in developing legal protections for online privacy and suggests areas for further improvement.

Part II looks back to Chinese history and legal reform, with the first two chapters particularly engaging in their critical focus on the “self-Orientalising”[11] of Chinese law in the late 19th and early-to-mid 20th centuries. Li Chen highlights how China’s thousand-year-old legal system came to be perceived as “traditional” (and thus in contrast with Western or modern law) not only by external Western entities, but also internally by Chinese officials and legal reformers of the late Qing dynasty. Michael Ng studies a 2002 Hong Kong family law case and the court’s reliance on “century-old…flawed and…Orientalist”[12] judicial practice based on an imaginary distinction between “pre-transplant customary Chinese law” and “post-transplant modern Chinese law”[13].

Billy K.L. So and Sufumi So trace the adoption and evolution of commercial dispute resolution mechanisms in China through the practices of the early 20th-century Shanghai book industry. Maria Adele Carrai looks at how China‘s unilateral repeal in 1926 of the Sino-Belgian Treaty of 1865 demonstrated the dual adoption and rejection of Western notions of equality and sovereignty, which “contributed to renegotiations of”[14] international law concepts. Zhaoxin Jiang concludes by studying the role and leadership of the judiciary in Republican China (1912-1948) and how that history might inform Chinese judicial reform today.

While events in 2020 have thrown much about the world into disarray, China will likely continue to be a global leader[15] and interest in its legal system and ongoing legal reform is unlikely to wane. Chinese Legal Reform and the Global Legal Order is a valuable reference source on the development of Chinese law since the late Qing era, and (true to the book’s title) how the country has both adopted and adapted foreign legal models to shape a comprehensive and unique modern legal system.

 

 

[1] Yun Zhao & Michael Ng, The Law, China and the World: An Introduction, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation 1 (Yun Zhao & Michael Ng eds., 2017).

[2] Id.

[3] Id. at 1-2.

[4] Wenwei Guan, China’s Free Trade from SEZs to CEPA to FTZs: The Beijing Consensus in Global Convergence and Divergence, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 107.

[5] Id.

[6] Laojiao was a “much-maligned administrative detention power” previously used to punish so-called minor crimes, that had been “abolished without putting a clear alternative power or powers in its place.” Sarah Biddulph, Punishments in the Post Re-Education Through Labour World: Questions About Minor Crime in China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 15.

[7] Shucheng Wang, Judicial Approach to Human Rights in Transitional China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 64.

[8] Chao Xi & Xuanming Pan, Public Enforcement of Securities Laws: A Case of Convergence, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 81.

[9] Guan, supra note 4, at 106 (quoting Stefan Halper, The Beijing Consensus: How China’s Authoritarian Model Will Dominate the Twenty-First Century 134 (2010)).

[10] Liang Zhao, Achievements and Challenges of Chinese Maritime Judicial Practice, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 125.

[11] Li Chen, Traditionalising Chinese Law: Symbolic Epistemic Violence in the Discourse of Legal Reform and Modernity in Late Qing China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 208.

[12] Michael Ng, Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 212.

[13] Id. at 213.

[14] Maria Adele Carrai, China’s Unilateral Abrogration of the Sino-Belgian Treaty: Case Study of an Instance of Deviant Transplantation, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 257.

[15] Simon Tisdall, Power, Equality, Nationalism: How the Pandemic Will Reshape the World, Guardian (N.Y.) (Mar. 28, 2020), https://www.theguardian.com/world/2020/mar/28/power-equality-nationalism-how-the-pandemic-will-reshape-the-world.

Book Review: Comparative Human Rights Law

By Christine Bowersox

Fredman, Sandra. Comparative Human Rights Law. (Oxford University Press, 2018) 476 p. Softcover $65.00

Book cover: Comparative Human Rights Law, Sandra FredmanComparative human rights law is a deeply complex subject, with no direct course of action to find a solution to these global humanitarian issues. In Comparative Human Rights Law, author Sandra Fredman delves into these complexities and offers readers a deep dive into the multi-layered approaches judges and countries take to remedy injustices and uphold human rights. Fredman states that, after having been a student of the topic herself, her exposure to this area of law in this class “fundamentally shaped [her] thinking on the subject ever since.” (Acknowledgments page, Fredman S.) Fredman brings her experience and knowledge forth to give a concise background on the last 70 years of the study and practice of this area of law, particularly focusing on the countries of the United States, Canada, South Africa, and India for primary comparative sources.

Fredman divides her treatise into two major parts of study. The first part of the treatise focuses primarily on cross-cutting themes, with a focus on judicial reactions and responses to the challenges of issues of human rights. The second part of the treatise takes the themes of cross-cutting to make assessments of human rights across specific substantive topics. Readers explore crucial roles of textual mandates as well as interpretive theories, finishing with a conclusion threading together the themes discussed and drawing parallels to the decisions of judges across multiple countries attempting to answer different human rights narratives.

Human rights law complexities are explored further in the first five chapters. Chapter 1 begins exploring the “broadly similar common core of human rights” globally. (p. 4) Judicial approaches using comparative laws are discussed, using precedent in their own country of origin as well as abroad. Chapter 2 seeks to answer the question of what is considered a human right? The Universal Declaration of Human Rights attempted to answer this question, yet there is no consensus this document is a primary source for rights. Principles of “rationality and autonomy are among the most commonly cited principles,” (p. 30) but still others argue that dignity is a key right. Chapter 3 explores the idea that socio-economic rights are human rights, separate and “apart from civil and political rights” of the individual and layer the relationship of the State with liberty. (p. 60) Rights and duties are also discussed in the context of the Fourteenth Amendment of the Constitution of the United States. Chapter 4 takes a closer look into the judicial roles in human rights and the paradoxical take of human rights as being something solved by humans, aka collective society, or by elected representatives “interpret[ing] and apply[ing] human rights on the basis of majority voting.” (p. 79) Chapter 5 questions the judgments made on human rights laws and the interpretations and values which are applied to the laws in question. Interpretations are varied amongst judges, as are values applied to the law. In the United States, original intent versus relativity, explored in this final section of part one.

The second part of this treatise explores specific human rights topics by chapter. Chapter 6 focuses on capital punishment, and whether or not this is a violation of human rights. Is this considered cruel and unusual punishment, or a due process of law? Discussions on the topics of capital punishment as procedural, as reference to “penological goals,” or as substantive issues (p. 155.) Chapter 7 covers “one of the most contested issues in the human rights arena,” abortion. (p. 187.) Issues such as right to life, right to privacy, right to equality, and right to reproductive freedom are brought into focus throughout this chapter. Chapter 8 brings forth the question “is health a human right?” and discusses causes and causations of health and healthcare, of human versus State actions, and trying to define this right for all. (p. 231) Chapter 9 explores housing as a human right. While many view housing as a basic human right, there isn’t any defining law or charter in the countries focused on in this treatise making it required for all. The EU comes closest to defining housing in their European Social Charter. (p. 265.) Chapter 10 provides the statement “unlike the rights to housing and health, there is a universal consensus that speech is a fundamental right.” (p. 305.) Theories behind why freedom of speech is such a universal right are discussed in detail. Following freedom of speech is the right to education in Chapter 11, considered a “multiplier” or springboard for other rights such as freedoms of speech, employment, and democratic participation. (p. 355.) Rounding up our rights discussed is freedom of religion in Chapter 12. Religious freedoms in practice become contaminated with sources such as “politics, power, community identities, custom, and tradition,” making the right of religion all the more complex to define. (p. 401)

At the conclusion of the treatise, readers will have a better understanding of the difficulties faced in defining what these rights are and how to judiciously find meaning and application. Fredman allows the reader to reach their own conclusions on these rights while providing a narrative of past judicial interpretation concerning these global issues. While not promising solutions to such contemporary problems, careful analysis and review help to assist in understanding the complexities and goals in identifying human rights globally.

 

Book Review: The Impact of Climate Change Mitigation on Indigenous and Forest Communities

ImpactofClimateChangeBy Sue Silverman

Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+  (Cambridge University Press, 2017) 415 p. Hardcover $147.00

REDD+ is a global program that encourages countries to reduce emissions from deforestation and forest degradation through financial incentives. In The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+,  the authors, Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, closely examine the structure, frameworks and safeguards of REDD+, and how REDD+ has developed and operates alongside other international and national legal regimes and norms, with the primary objective of assessing its impact upon the legal interests of indigenous peoples and forest dependent communities.[1]

The book is divided into four parts: Part I discusses REDD+ within the international context and explores its interaction with other international legal regimes and norms. Part II looks at how REDD+ interacts with indigenous communities at the national level, and Part III examines these regime interactions within the contexts of three countries: Malaysia, Papua New Guinea, and Vanuatu.  Part III also analyzes climate change mitigation programs undertaken in Australia in order to draw lessons that may be applied to REDD+ programs.  Part IV summarizes the authors’ findings and conclusions and offers recommendations for moving forward and additional scholarship.

Part I begins by characterizing REDD+ as an emerging international legal regime and providing an overview of the laws and decision-making procedures established by the UNFCCC, the Paris Agreement and the Kyoto Protocol that are associated with REDD+.  The authors then discuss the key participants including the United Nations Program on Reducing Emissions from Deforestation and Forest Degradation (UN-REDD), the Forest Carbon Partnership Facility (FCPF) based within the World Bank Group, and other nonstate actors such as civil society groups, academics, the private sector and policy makers who support the functional goals of REDD+.  The following chapters examine how REDD+ interacts and conflicts with other international legal regimes such as the Convention on Biological Diversity, the Convention on the International Trade in Endangered Species of Flora and Fauna, the International Labor Organization, Convention No. 169, the CBD Nagoya Protocol, and the UN Declaration on the Rights of Indigenous Peoples, as well as norms established by customary international law.  The authors suggest that these horizontal regime interactions at the international level, along with vertical interactions between international and domestic legal regimes, impact the rights and interests of indigenous peoples.[2]

Part II focuses on REDD+’s interaction with sovereign states and indigenous peoples.  Here, the tangible conflicts presented by REDD+ programs come into focus as the authors unpack the intricacies and challenges of aligning REDD+ and the benefits conferred by REDD+ with indigenous property rights under statutory and customary law, indigenous identity law, and the normative obligation of obtaining free prior and informed consent (FPIC).  Because FPIC is integral to REDD+’s relationship with indigenous and forest dwelling communities and how those communities’ rights and livelihoods are impacted by REDD+ projects, a significant portion of Part II is devoted to examining this norm and how it is applied by UN-REDD and the World Bank’s FCPF, the two main funders of REDD+.  Part II also focuses heavily on tenure rights and REDD+’s emphasis on “secure and clear” tenure, a policy which favors those who currently possess land.[3] Ultimately, despite its intentions to include indigenous and forest-dependent communities within decision-making processes and benefit-sharing, those whose property rights are not recognized under national law or who are on the short end of the balance of power equation vis-à-vis the state or third parties with possessory or usufructuary rights, are inevitably left out of any benefit sharing or FPIC processes under REDD+.

Part III examines how the vertical and horizontal regime interactions discussed in Parts I and II play out in three country examples: Malaysia, Papua New Guinea, and Vanuatu, and looks at the successes and shortcomings of climate change mitigation projects undertaken in Australia in how they account for the rights of indigenous communities. To help understand the local context within which REDD+ operates, the authors describe the history of land law and forest resources law, as well as the laws determining the recognition of the rights of indigenous peoples and local forest communities in each country. From these examples, the authors suggest REDD+ may draw lessons moving forward in how it might resolve conflicts between indigenous rights and the goals of climate change mitigation.

In their conclusion, the authors emphasize that “the unresolved legal claims of indigenous peoples are deeply context-specific and must be interrogated at the local level.” [4] For REDD+ to successfully promote the rights and livelihoods of indigenous populations while pursuing its goals of climate change mitigation, it must provide guidance in resolving domestic disputes regarding indigenous claims.[5]  In so doing, “attention to historic injustice, dispossession, the non-recognition of indigenous law, and the social and economic marginalization of indigenous and forest communities is essential.” [6]

With its detailed exploration of how REDD+ touches upon myriad issues of international and domestic law  including customary law, property and resource rights, and indigenous identity, this book is an excellent resource for academics, policy makers and attorneys exploring ways in which to balance the goals of climate change mitigation programs with the rights and interests of indigenous peoples, and how to incorporate indigenous communities into REDD+ or other climate change mitigation projects.  For example, the authors suggest that indigenous and local community carbon rights may be better framed as resource rights instead of rights tied to tenure, in order to promote the receipt of benefits among groups who are unable to establish “secure and clear” tenure, or who are dispossessed of their traditional land as a result of the formalization of tenure under national laws.[7]  The authors also describe opportunities for indigenous involvement in climate change mitigation projects, for example the savanna-burning activities based on traditional Aboriginal land burning practices in Australia.[8]

As the authors point out, “REDD+ is not a straightforward win-win approach to climate change mitigation,” but at the same time, “just and effective climate change mitigation must incorporate the perspectives of those who are affected by it and not merely those who have the resources to address the problem (and may be implicated in the causes of that problem).” Thus “unwieldy and complex” is just as it should be.[9]

[1] Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+  (Cambridge University Press, 2017)

[2] Id. at 83.

[3] Id. at 130.

[4] Id. at 347.

[5] Id.

[6] Id. at 348.

[7] Id. at

[8] Id. at 324

[9] Id. at 352.

The Dan Wade Book Club at AALL 2019: No Friend but the Mountains: Writing from Manus Prison

By Marylin Raisch

NoFriendBehrouz Boochani. No Friend but the Mountains: Writing from Manus Prison. Translated by Omid Tofighian. Toronto, ON: Anansi International, 2018.  xii, 398 pages; 23 cm ISBN: 9781487006839 1487006837

Once again this year, interested and available members of the Foreign, Comparative, and International Law Special Interest Group (FCIL-SIS) at AALL 2019 gathered at a table in the Convention Center of our host city to discuss a book, usually one focused on a relevant to international law. We do this informally in honor of Yale law librarian Daniel L. Wade, Curator for Foreign and International Law at the Lillian Goldman Law Library of Yale Law School. This year we were especially honored to have Dan join us for the discussion. He is with us every year in spirit, and he is honored every year by the eponymous FCIL-SIS award, the Daniel L. Wade FCIL-SIS Outstanding Service Award given each year to one of our members who exhibits his dedication and focus in serving the FCIL and its mission in sharing expertise in collecting or teaching about international and comparative law resources.

This year Dan’s promotion of understanding world cultures through law and human rights served to inspire us to settle upon Boochani’s story in a remarkable memoir that was communicated out of Australia’s Manus Island immigration detention center by text message (and some voice messages) to one Moones Mansoubi, who arranged to collect and arrange the messages. These in turn were sent to the translator, Omid Tofighian. With his phones at times stolen or confiscated, Boochani had to resort to scrounged paper and pen. The introductory and concluding materials surrounding the memoir itself described how the text was pieced together, and interspersed throughout the narrative were Boochani’s reflections in poetry on nature, life, and the images of an ordeal. He and others suffered both at sea and in prison on journeys that few of us can even imagine, much less transform into art. We all agreed that this multilayered discourse, interspersed with haunting poetry, can make for patchwork reading and an emotional bumpy ride for the reader. However, it is important throughout to recall that it has been translated from the Farsi in which Boochani chose to write. Related to all of this, but interwoven into the larger themes, is his life in the Kurdish minority.

Boochani is an Iranian refugee, international journalist, and poet who, earlier on in his experience as an asylum refugee, also shot a film by mobile phone (Chauka, Please Tell Us the Time, 2016) documenting the Indonesian and Manus Island chapters of his ongoing life in what one can only call an immigration prison. Stranded in stages of migration, he joined large numbers of those who are hopeless to this day of any resettlement; their torture is exacerbated by minimal and poor food, inadequate sanitation, rotting teeth, and control through often violent suppression by guards. Death by suicide becomes a frequent occurrence in the men’s prison of Manus Island; boats are being turned back to Indonesia, which is not a party to the 1951 Refugee Convention and related guidelines, and so they return to a jurisdiction which is under none of those obligations to desperate men, women, and children, many fleeing violence. Non-compliant refugees in the camp can be disciplined by solitary confinement.

As we discussed the book, as law librarians and just as humans, we were of course faced with our own country’s current treatment of refugees, and noted Boochani’s refrain in the book that this torture of indefinite incarceration without adjudication is inflicted on people who have done nothing wrong; “what crime have I committed…?” (96), “Why must I be in prison?” (334). At least one of us also thought the essays by the translator, a professor of philosophy, and interviews with others who work with refugees or helped get this story out, were as interesting as the text, and added more coherence to the poetry and memories he relates in vivid images.

One such essay, among dialogues on language, politics/law, and discourse, was entitled “Manus Prison Theory: An Empowering Knowledge Ecology,” and it is a critical look at the “border-industrial complex” that compares refugees and the stateless to citizens in terms of colonial oppression as a “kyriarchy.” Derived from radical feminism, this neologism expresses the connection of one oppression to another such that one group can feel superior, and non-citizens evoke xenophobia about safety, employment etc. in a fair society. The book is worth reading for some of these thought-provoking perspectives on where we are in global migration right now. (Speaking for myself rather than the book group, it suggests Catch-22, in this case where one is trapped outside a treaty country awaiting an adjudication only a country with a treaty regime can provide. While the book won the (Australian) Victorian Prize for Literature and the Victorian Premier’s Prize for Nonfiction in January 2019, and the center depicted in the book was closed in 2017, Boochani is still held at a new facility on Manus Island.

Everyone in the group thought this was an excellent and challenging book that others will find inspiring, in spite of the depictions of great suffering. Thanks to Susan Gualtier for helping to organize this book club gathering again this year. The group suggests new titles each year several weeks before the annual meeting, and we vote/reach consensus on what to read.

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

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

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

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

 

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

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

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

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

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

Do Kurds have any friends other than the mountains? 

WINNER OF THE NSW PREMIER’S AWARD 2019 

WINNER OF THE ABIA GENERAL FICTION BOOK OF THE YEAR 2019

PRAISE FOR NO FRIEND BUT THE MOUNTAINS

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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.