AALL 2019 Call for Bloggers

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We are hoping to once again provide robust coverage of the AALL Annual Meeting.  With this in mind, we are looking for volunteers to recap one or more programs in Atlanta. It’s a great way to serve the SIS and help those who can’t attend the Annual Meeting to learn a little.

Below are a list of some of the programs that we think would be especially interesting to FCIL-SIS members, but we are always open to members covering other programs, so if you’re going to be at something and would like to cover it, just let us know. To volunteer for any of the programs below or any other program, just email Alyson Drake at alyson.drake@ttu.edu.

Saturday, July 13:

  • 8:45am-12:00pm:  FCIL Bootcamp: Basic Training (Offsite–Georgetown)
  • 1:30pm-5:00pm:  FCIL Bootcamp: Advanced Training (Offsite-Georgetown)

Sunday, July 14:

  • 11:30am-12:30pm:  GDPR: What Your Library Needs to Know (WCC Room 147 AB)
  • 12:45pm-2:15pm:  FCIL-SIS Business Meeting (WCC Room 102 A)
  • 2:30pm-3:30pm:  Growing Out, Not Climbing Up (WCC Room 146 A)
  • 4:00pm-5:15pm:  Diversity & Inclusion Symposium: Privilege and Power in Legal Environments: Overcoming Barriers to Entry and Advancement (WCC Room 146 A)

Monday, July 15:

  • 9:30am-10:30am: Hungry, Hungry Hypos: Designing Raw Materials for Problem-Based Instruction (WCC Room 145 AB)
  • 9:30am-10:3am: Polishing Your Public Speaking: Beyond Picturing People in Their Underpants (WCC Room 150 AB)
  • 11:00am-12:00pm: The Age of AI: Emerging Regulatory Landscape Around the World (WCC Room 146 A)
  • 11:00am-12:00pm: Let’s Get Experiential! Creating Strategic Partnerships to Develop Experiential Simulation Courses (WCC Room 150 AB)
  • 1:30-2:45pm:  FCIL-SIS Teaching Foreign and International Legal Research Interest Group Meeting (Marriott Magnolia)
  • 3:00-4:00pm:  Locating Latin American Legal Sources (WCC Room 145 AB)
  • 5:30-6:30pm:  FCIL-SIS Schaffer Grant for Foreign Law Librarians Recipient Presentation (Marriott Marquis Ballroom Salon 4)

Tuesday, July 16:

  • 8:30am-9:30am:  Instruction Zone: Active Learning Ideas Showcase (WCC Room 145 AB)
  • 11:15am-12:15pm: Social Media as Primary Sources of Government Information (WCC 145 AB)
  • 11:15am-12:15pm: Better with Science: Strengthening Patron Learning (WCC Room 152 AB)

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!

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.

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.

WestPact 2018 Recap: Charting the Legal Systems of the West Pacific Islands: Tracking Down Primary Documentation

By Shay Elbaum

WestPacIslands.jpgVictoria Szymczak, Director of the Law Library and Associate Professor of Law at the University of Hawai’i William S. Richardson School of Law, led off the “Teddy Talks” segment of the program with a look into the process of creating her research guide, Charting the Legal Systems of the Western Pacific Islands, recently published by Hein. This guide grew from Szymczak’s collection development work in this area. Hawai’i is, of course, a Pacific island itself, and the mission of the UH School of Law expressly recognizes a responsibility to the Pacific region. As the only American academic law library in a region especially vulnerable to climate change, the library’s work with Pacific island legal systems is particularly timely. The uniqueness of these legal systems also drew Szymczak to this work; rather than “mixed” or “pluralist”, these systems are best described as “hybrid”, merging elements of indigenous and Western systems into a unified whole.

Two major challenges Szymczak faced were the complexity of Pacific island legal systems and the differences among them. Nearby islands can have vastly different legal systems, depending on – among other things – whether they had been colonized by France, Britain, or the United States; whether the indigenous culture was Melanesian, Micronesian, or Polynesian; and what the colonial status of the island was. Szymczak chose to focus only on five former British colonies for this guide, but still had to grapple with the differences between colonies, protected states, protectorates, and condominiums, the many name changes as islands went from independent to colony (or protectorate, or…) and back to independent, and the frustrating lack of citations to primary sources in many of the works she consulted.

The result is a detailed and eminently usable guide to researching the legal systems of Tonga, Tuvalu, Kiribati, Vanuatu, and the Solomon Islands. Szymczak helps the reader navigate through those complexities and more, and gives us the tools to identify, access, and interpret the relevant primary sources. In her presentation, she highlighted the many different lawmaking authorities in each nation during the colonial era, each with different powers and producing different kinds of law depending on the unique features of their nation. She also discussed some particularly useful sources, such as Hertslet’s Commercial Treaties; Hertslet’s contains primary documents relating to British commerce, and includes many Pacific island-related documents because of their locations along major trade routes.

Szymczak closed with some illustrations of the unique blend of customary and British law found in these legal systems. She gave the example of the Solomon Islands’ constitution, which provides for the continuation of certain colonial laws where not inconsistent with customary law. As a result, the courts of that nation must interpret and apply customary law alongside other sources of law.

This presentation packed quite a bit into the half-hour “Teddy Talk” time slot. I enjoyed learning about what goes into creating a resource like this – and now that I know about this guide, I’m looking forward to having an opportunity to use it!

IALL 2018 Recap: Traditional Cultural Expressions and International Intellectual Property Law

By Joan Policastri

Dr. Lily Martinet of the Max Planck Institute in Luxembourg began by giving a brief description of what is included in Traditional Cultural Expression (TCE) and how it intersects with Intellectual Property (IP) Law.  While historically TCE has been associated with copyright law, developments within the United Nations have evolved the concept to meet with ideas from human rights, intellectual property law, and cultural law. Another aspect of this evolution is the sourcing of ideas originating in anthropology that are now being incorporated into law. The documents which have brought these together are The Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005), The United Nations Declaration on the Rights of Indigenous Peoples (2007), and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

While there is no accepted definition of TCE in international law, Dr. Martinet uses this: “tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms.”

The Key characteristics of TCE are: 1) cultural content, 2) a collective essence, which can include groups, tribes, nations, or other communities, but not an individual, and 3) intergenerational transmission. Cultural expressions result from the creativity of individuals, groups and societies, and that have cultural content. Cultural content refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities (Art. 4 of the Convention on Diversity of Cultural Expression).

In order to complete the picture, the diagram below shows the intersection of TCE and Traditional Knowledge. The overlap is Intangible Cultural Heritage.

IPLaw1

Some examples of TCE include the Māori Tā moko patterns, patterns used in Alençon Lace (an example of intergenerational transmission), and Champagne. Other topics raised were the registration of dance moves as cultural expressions, or the series of postures in Bikram Yoga.

Slides provided visual experiences of these expressions, including this example of “Misuse of Traditional Cultural Expressions” of the Tā moko patterns. Ironically, colonial governments once banned tattoo use by the traditional peoples who created them, but now indigenous designs are being exploited by commercial interests.

IPLaw2

The current situation was described as a quagmire and existing legal instruments have rarely been applied in practice. Dr. Martinet gave three reasons why laws need to be elaborated:

1) The misuse/appropriation of the expressions. While there might be an element of public domain, the central issue is that traditional peoples are not consulted prior to the use of their expressions, the benefits of the use are not shared with the originators, and the commercial users do not acknowledge the source(s). These practices lead to unfair and unethical uses.

2) Distortion. The commercial users appropriate the symbol without its meaning, without understanding the values it expresses, and denigrate the expression. Tā moko are not simply designs and true Tā moko are not superficial. Tā moko are about identity and they are carved into the skin.

3) The non-traditional users may claim a right in the expression. For example, a tattoo artist claimed royalties in a design and used the claim against the indigenous people who originated it.

An interesting question was raised concerning what could be considered historical appropriations such as Claude Monet’s use of Japanese style in his painting, “The Japanese Footbridge and the Water Lily Pond” (1899).

The core issue is the Community’s right to protect its cultural expressions; to preserve the dynamic development of cultures. But will the laws stifle freedom of expression? Dr. Martinet believes that finding a good balance is the key.

For more information on Intangible Cultural Heritage, see https://dpc.hypotheses.org/category/the-osmose-program-english-version. It references the Indian Arts and Crafts Act in the United States.

IALL 2018 Recap: Special Features of Luxembourg Law, such as its Sources

By Jessica Pierucci

This year’s IALL Annual Course was hosted in the country of Luxembourg.  On October 1, 2018, attendees were treated to a fantastic discussion of special features of Luxembourg law by Gilles Cuniberti, Professor of Private International Law and Comparative Law at the University of Luxembourg. This recap summarizes these fascinating details of the laws of this small European country.

Luxembourg sources of law.jpg

Professor Gilles Cuniberti discusses special features of Luxembourgish law.

Luxembourg is a civil law jurisdiction, meaning that codes and non-codified statutes are the county’s primary source of law. Case law, while not an official source of law, nevertheless plays an important role in practice. Academic writing is also highly influential.

Luxembourg is a small jurisdiction. As of 2018, the county’s population of about 600,000 residents includes only 313,000 nationals. As of December 2017, the country’s judiciary includes a total of only 249 judges. Accordingly, the country has limited institutional capacity in the court system, so there are frequently few or no Luxembourg cases to refer to on a given topic.

Luxembourg was a French province until 1815 and, as such, Luxembourg law is primarily grounded in the Napoleonic codes. Although France has since reformed many of its laws, there has not been a strong desire or institutional capacity in Luxembourg to make the same reforms. As a result, understanding the law can sometimes require turning to old pre-reform French law books to help understand and interpret the current law of Luxembourg.

While much Luxembourg law is borrowed, Luxembourg uses its institutional capacity for law making in two key ways: First, to comply with international obligations and implement EU legislation and, second, to create innovative laws in banking and finance and in space law. Luxembourg is a prominent finance capital and the richest state in Europe. The space industry is a current state priority, leading to the proliferation of laws to implement this priority.

Academic literature is highly influential in the Luxembourg legal system. Luxembourg did not have its own university until the University of Luxembourg was established in 2003. As a result, judges and lawyers received their training abroad, frequently in France and Belgium, so French and Belgian scholarship is frequently cited in cases. Further, judges only practice law for two years after law school before becoming judges and often turn to academic writing, frequently from the country where they studied, to help them decide cases, particularly those based on imported law. In recent years, the Belgian influence has waned and it’s possible that, as the University of Luxembourg matures with more scholarship on Luxembourg law produced by law professors in Luxembourg, the French influence could wane with it. But given that masters programs are generally not offered in Luxembourg and university students at the University of Luxembourg are all required to partake in an Erasmus semester studying abroad, among other factors, the French influence is likely to remain for the foreseeable future.

While Luxembourg is a civil law jurisdiction, case law has recently played a greater role in the Luxembourg legal system despite not being an official source of law. Judges frequently follow Belgian courts for commercial law and consider French cases generally authoritative. One example is tort law, which is an almost entirely judge-made area of law in France and that is all but missing from the codes. Luxembourg courts typically follow French torts cases, with two notable exceptions. France has rejected acceptance of risk and personal immunity of employees, but Luxembourg still has these two elements of tort law.

The worldwide influence of French case law, including on Luxembourg, may be the result of two key factors. First, judges of many Francophone countries were educated in France because the county is generally considered prestigious and welcoming, but Russia, China, and other countries are becoming more welcoming, so it’s possible this could shift in coming years. Second, the French encyclopedia Juris Classeur (LexisNexis) is available electronically and has almost become authoritative in Luxembourg, allowing an exhaustive and detailed understanding of French law.

Ultimately, Luxembourg is a small civil law jurisdiction that has imported much of its law and continues to rely on the laws of other countries in numerous ways, but the country is slowly shaping its own legal tradition as it has done with business and finance, and space law.