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!

ASIL 2018 Recap: Legal Education and Professional Training in the Culture(s) of International Law

By Gabriela Femenia

On the final morning of the 2018 ASIL Annual Meeting, Anthea Roberts (Australian National University) moderated a nuanced panel discussion of the significance of global differences in legal education and professional training of international lawyers, considering their evolution over time and their impact on the practice and efficacy of international law, from both Western- and non-Western perspectives. The panel comprised Bryant Garth (UC Irvine School of Law), Lucy Reed (National University of Singapore Faculty of Law), Natalie Reid (Debevoise & Plimpton, LLP), and Carole Silver (Northwestern University Pritzker School of Law).

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Panel for the Legal Education and Professional Training in the Culture(s) of International Law at ASIL’s 2018 annual meeting.

The first point of discussion was legal education practice and the channels through which people in different countries come to the practice of law. Anthea Roberts presented some initial thoughts based on her recent book, Is International Law International? (2017), observing that legal education used to be a primarily national endeavor, with a small amount of movement at the graduate levels, but we are now seeing more people crossing borders to study law. While the majority still do so for the LLM degree, there is increasing study at the first-degree level. Roberts made two general points about the flow of students. First, the flow is asymmetrical: students go from the periphery to the core, and from non-western regions to the west, with most returning home to practice and bringing with them both ideas and materials. Second, there are clearly different cores for legal study (principally Anglophone, Francophone, and Russophone), and there are distinctive patterns of students from certain countries going to certain countries. Lucy Reed and Natalie Reid shared their own experiences both as former law students following similar trajectories to the core to obtain the necessary credentials for desired careers, as well as educators working with such students. Reed noted that there is a guided, funded outflow of students from China to the West in all fields, with China particularly interested in bringing back students trained in international economic law and law of the sea. There is no equivalent outflow from the U.S. of students sent abroad or investment in training lawyers in those fields, and it remains difficult to convince law faculty in the U.S. and Singapore that international law should be integrated into instruction. As a result, Asia is more present in international law practice than the U.S., and Reed suggested the consequence of this disparity is a more level but not necessarily more forward-looking playing field in international law.

Carole Silver observed that in some senses law education is wonderfully internationalized, but the program that most students attend, the LLM, is somewhat segregate as a result of being a one-year program, most of which do not allow students to participate in 1L courses, clinics, or moot courts.  LLMs do benefit from being part of diverse international classes, but there are limits on interacting with U.S. students, and there is often pushback from those students to hearing about how things are done in the LLMs’ home countries. As a result, more international students are enrolling in JD programs, and in those cases the flows are not from the periphery to the core. A quarter of foreign JD students go from Canada to the U.S., and 60% of all foreign JDs are from Canada, China, and Korea. Those students face some trouble integrating because they’re not American, and they tend to also distance themselves from LLMs because they’re not “international” students. They also put more effort into course selection, generally choosing business concentrations because transactional practice is easier to break into than litigation. Silver concluded that while there is a huge inflow of students to the U.S., there is also segmentation and social isolation at the micro level.

Bryant Garth reminded those present that, historically, the flow of students reflected colonial relationships, e.g. Commonwealth students getting to know each other in London, with a more recent substitution of the U.S. for those colonial relationships.  U.S.-style law schools are also now being established around the world, so the flow of students is no longer necessarily from one country to another, while there is increasing international competition for students, both in order to impart values and to obtain the tuition revenue.

The panelists then discussed the challenges faced by graduates returning to their home countries from the core. Reed pointed out that international law books are rarely available in Asia in the necessary languages, and many are still by the former colonial masters. Libraries are insufficient in many areas. New academics must also work alongside older colleagues who are not interested in changing their teaching, while at the same time facing pressure to publish in global journals in order to secure tenure, which prevents them from engaging with their local communities. Garth added that publication in international journals is difficult if the young professor does not buy into U.S.-dominated paradigms, further limiting the inclusion of local perspectives. Reid observed that the influence of U.S. perspectives plays out in practice as well; U.S. cases and sources are cited even if they are not the best examples, in order to resonate with an American audience, and most sources will be in English even if they’re not U.S. sources..

Anthea Roberts asked the panelists what could be done to address these challenges in legal education. Silver suggested intentionally requiring international students to offer specific contributions in class. Several panelists offered the Jessup competition as a model for bringing together students to develop a common language and toolkit.

Garth asked the panel to what extent the field of international law had been affected by the globalization of law firms. Reid noted that it depended on the field, e.g. in international investment there has been a significant impact because the multinational firms guide the development of the law by picking the arbitrators who then create it. Reed added that cross-border transactions were more affected by big firm mergers than international law was.

In the brief time remaining, audience members solicited suggestions from the panel on how professors can improve international law classes.

New FCIL Librarian Series: ASIL Annual Meeting

By Jessica Pierucci

This is the fourth 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.

[Note: some of the links below open videos]

At the beginning of April, I attended, for the first time, the ASIL Annual Meeting in Washington, D.C. The conference happened to fall right at the peak of the cherry blossom bloom, so the scenery was amazing. But what I enjoyed most were the substance of the conference and the opportunities to connect with fellow FCIL librarians.

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Cherry blossoms in front of the Capitol Building.

Conference Sessions

The substantive sessions are 1.5-hour panels with four to six presenters . I appreciated the diversity of experience on each panel. For example, the panel, The 2018 Global Compact on Refugees: International Law in the Making?, included law professors from the United States and Canada, a political science professor, the president of HIAS, and an officer from the UNHCR. Each presenter was in some meaningful way connected to changes in international refugee laws and brought their unique perspective to a well-rounded discussion of the theory and application of the law.

I attended other similar panels on such varied topics as IUU fishing, peacekeeping, and trade, but also sat in for two panels related to international law education. Teaching International Law in an Age of Global Retreat from International Agreements brought together doctrinal and clinical professors who provided valuable insight on trends in international legal education and how they modify their courses to fit with the needs and curiosities of students. Legal Education and Professional Training in the Culture(s) of International Law had a particular focus on LL.M. students and other international students studying at law schools in the United States.

The keynote speakers provided powerful contributions to the conference’s overarching theme: International Law in Practice. One speaker, Sir Christopher Greenwood, gave an engaging talk discussing the challenges arising from the divide between international scholarship and practice, concerns about specialists in specific fields of international law working in isolation, and ways to inspire trust in international law.

If any of this piques your interest, you can watch videos of selected presentations now, and audio of others should be available soon. You’re sure to learn something new about international law from judges, practitioners, academics, representatives of IGOs and NGOs, and other experts in the field.

Networking

At the conference, I met and reconnected with a number of FCIL librarians, including quite a few who are also in their first few years in the field. I learned more about the International Legal Research Interest Group (ILRIG) by attending the group’s meeting. I attended the librarian dinner, a conference tradition, organized this year by incoming AALL FCIL-SIS Vice Chair/Chair-Elect Loren Turner. At the dinner, I learned about other librarians’ FCIL initiatives and projects at their institutions. At the ILRIG meeting and a subsequent breakfast, I learned details about the resurgence of EISIL and I look forward to serving as one of the editors as it migrates to a new platform on the ASIL website this year.

Now that I’ve attended a few conferences as a librarian, I’m starting to see some more familiar faces, although, there are still plenty of people I have yet to meet. FCIL librarians are a friendly bunch and it’s great to know I’m starting to develop a small network of colleagues I can call on if needed.

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The Library of Congress Main Reading Room.

Next Year

I definitely plan to attend the ASIL Annual Meeting in future years, and would encourage new FCIL librarians to put this high on their priority list. The exposure to high-level discussions on international law topics by so many experts in the field all in one place is unparalleled. The conference is a fantastic opportunity to meet like-minded colleagues, and its regular location of Washington, D.C. means a chance to visit such historic buildings as the Supreme Court of the United States and Library of Congress, which is an added bonus.

ASIL 2018 Recap: The Use of Force Against Non-State Actors

By Mariana Newman

At 11:00 a.m. on Thursday, April 15, 2018, a panel of international law professionals discussed states’ use of defensive force against non-state actors, specifically in the context of the counter-ISIL military campaign in Iraq and Syria. Monica Hakimi, Professor of Law at the University of Michigan School of Law, moderated the panel, which consisted of Katrina Cooper, the Deputy Head of Mission at the Australian Embassy in Washington; Paul McKell, Legal Director at the United Kingdom Foreign & Commonwealth Office; Asif Amin, the Head of International Law Development at the Ministry of Defence for the Kingdom of Denmark; and Patrick Luna, the Legal Advisor for the Permanent Mission of Brazil to the United Nations.

Prof. Hakimi asked each panelist to articulate his or her state’s position on the use of force against non-state actors. Each country’s representative expressed their position on the question generally and with respect to ISIL in Syria and Iraq.

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The Use of Force Against Non-State Actors panel at ASIL 2018.

Australia

Katrina Cooper outlined Australia’s position: The “inherent” right to self-defense that is part of Article 51 of the UN Charter applies to attacks by non-state actors, but the defending state can take action against the non-state actor only, not the surrounding state. She explained that the case of using force against ISIL in Iraq was more straightforward legally since Iraq had consented to the use of force by asking other countries to help it defend itself. The case for the use of force against ISIL in Syria was “less clear-cut,” although Australia did conclude that it was legally justified. Cooper also mentioned that the “unwilling or unable” standard applied in the case of Syria.

United Kingdom

Next, Paul McKell stated the United Kingdom’s position: you can invoke the doctrine of self-defense to use force against non-state actors. McKell alluded to the history of the Caroline affair, which involved non-state actors, to argue that this is nothing new. Article 51 mentions an inherent right of individual or collective self-defense, and, according to McKell, it does not require a state to passively await an attack. An attack must be imminent, however, for a state to be able to take action in self-defense. McKell did concede that ideally you deal with non-state actors via law enforcement and the criminal justice system, but that that is not always possible. Like Cooper, McKell talked about the differences between the decision to use force in Iraq versus in Syria. In Iraq, the use of force was based on consent, whereas in Syria, the United Kingdom believed there was “a direct link between the presence and activities of ISIL in Syria and the ongoing attacks on Iraq.” They also determined that the Assad regime was “unwilling or unable to prevent these attacks.” One example that McKell mentioned of the UK’s use of force against non-state actors was the precision strike against UK citizen and ISIL member Reyaad Khan.

Denmark

Denmark’s representative, Asif Amin, explained that Denmark has four exceptions to a prohibition on the use of force: consent, self-defense, the authorization of a UN Security Council Resolution, and humanitarian interventions. In 2014, Denmark was part of the Iraq coalition and, like Australia and the UK, the legal basis for Denmark’s involvement was consent due to the invitation of the Iraqi government. Amin then read from Denmark’s Article 51 letter to the UN Security Council. According to Amin, Denmark is constantly evaluating the situation in Syria.

Brazil

Patrick Luna provided the counterpoint to the other three panelists’ reasoning, offering Brazil’s alternative view. According to Luna, Article 51 is an exception to Article 2(4) of the UN Charter’s prohibition on the use of force: they must be read hierarchically. Luna’s reading of the two articles has lead him to the conclusion that Article 51’s right of self-defense only applies to the use of force against state actors. Luna cited three International Court of Justice opinions, the Nicaragua case, the Wall advisory opinion, and the Congo v. Uganda opinion, all of which he said address self-defense in the context of state actors. Luna further argued that nothing in the travaux préparatoires of the UN Charter leads him to believe that self-defense applies to non-state actors. Luna argued that in order to use force in self-defense, a state needs to identify if the attack can be attributed to a state, otherwise must get consent of the state to act or seek a UN Security Council Chapter VII resolution.

Luna expressed some of Brazil’s concerns with an interpretation of Article 51 that permits the use of force in self-defense against non-state actors. He sees a potentially negative effect to using the term “non-state actors” as a substitute for “terrorists,” since “non-state actors” is a much broader concept. He also sees a risk to multilateralism: why search for multilateral solutions if force against non-state actors is permissible?

Responses

Cooper, McKell, and Amin then responded to Luna’s points. As to Luna’s point about Article 2(4) and Article 51 having to be read hierarchically, Cooper argued that because self-defense is described as an “inherent right” in Article 51, it therefore predates the UN Charter. She commented on the change in the nature and participants in this conflict, saying that “ISIL is a very different actor and the way it acts and mimics a state is new.”  Amin, in his follow-up remarks, agreed that the law needs to “develop to face new threats and new realities.”

As to Luna’s comments on ICJ jurisprudence, McKell replied that the UK position is that there is nothing in the ICJ jurisprudence that prohibits states taking the action they have.

Conclusion

This was an fascinating discussion from legal advisors who were intimately involved in the practical application of this pressing question of international law. At one point toward the end of the panel, Luna expressed the wish that they were “having this discussion at the UN!”

ASIL 2018 Recap: Building Victim-Led Coalitions in the Pursuit of Accountability

By Amy Flick

One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.

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Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.

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Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.

Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.

Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.

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Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril.  The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.

 

ASIL 2018 Recap: International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery

By Jessica Pierucci

The Friday, April 6, 2018 ASIL Annual Meeting panel International Law as a Tool in the Fight against IUU Fishing and Seafood Slavery provided a look at illegal, unreported, and unregulated (IUU) fishing and seafood slavery issues from the perspectives of esteemed panelists who engage with these topics from different vantage points. Nick Renzler, Foley Hoag LLP, moderated the panel.

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Judge Tomas Heidar of the International Tribunal for the Law of the Sea speaks at the ASIL Annual Meeting on Friday, April 6, 2018.


Judge’s Perspective: Background on IUU Fishing

Judge Tomas Heidar, a member of the International Tribunal for the Law of the Sea (ITLOS) since 2014, provided background on IUU fishing issues. Judge Heidar explained there is no universally accepted definition of IUU fishing, but the most widely adopted definition is contained in the IPOA-IUU, 2001. IPOA-IUU contains measures aimed to deter and eliminate IUU fishing through state cooperation.

One way to combat IUU fishing is port state measures blocking vessels engaged in IUU fishing from unloading at a state’s docks. If widely adopted, this can make IUU fishing not profitable by forcing IUU fishing vessels to travel great distances to find a dock that will accept them. This is one of the general purposes of the 2009 FAO Port State Measures Agreement. The agreement broadly defines terms, such as “fishing related activities,” to encourage expansive enforcement. States were initially slow to ratify so the agreement only entered into force in 2016 once 25 parties had ratified, but since entry into force ratification has sped up and there are now 53 parties.

One agreement to keep an eye on is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Negotiations just concluded in November 2017 and signature is expected in 2018.

Academic Perspective: ITLOS 2015 Advisory Opinion

Nilufer Oral, Istanbul Bilgi University Law Faculty and United Nations International Law Commission, focused on a major recent development in IUU fishing, the ITLOS 2015 Advisory Opinion. This is a landmark opinion for a couple reasons.

First, this is the first time the full tribunal has issued an advisory opinion.

Second, the opinion clarifies flag state responsibilities under UNCLOS, in particular explaining that flag states must meet due diligence obligations in exercising control over the ships flying their flag. IUU fishing is not specifically mentioned in UNCLOS, but the advisory opinion seeks to include IUU fishing under UNCLOS, although some commentators believe more detail would have been helpful on this point.

While this is a landmark opinion, it is only an advisory opinion. Oral believes it’s time to bring a contentious case to more powerfully use international adjudication to combat IUU fishing.

State Perspective

Alexa Cole, U.S. NOAA, Office of General Counsel, Enforcement Section, spoke about IUU fishing from the state perspective. NOAA is fortunate to have thirteen prosecutors working in this area. This relatively high number allows NOAA to attend Regional Fisheries Management Organizations (RFMO) meetings and be directly engaged in negotiating enforcement measures. This, in turn, better allows NOAA to engage in enforcement. RFMO goals include encouraging management of relevant species; creating monitoring, control, and surveillance (MCS) measures, such as expanding high seas boarding and inspection; and creating compliance monitoring schemes.

In the big picture, Cole believes major international agreements play an important role setting global standards, but they suffer from being tough to negotiate. This challenge leads them to become stale as they are not renegotiated to address new issues. For example, UNCLOS’s discussion of “hot pursuit” does not take into account new technology. As a result, new issues need to be addressed in alternate ways. For example, the Western & Central Pacific Fisheries Commission (WCPFC) coordinates sharing vessel monitoring data, which allows sharing on hot pursuit and other issues.

Corporate Perspective

Anbinh Phan, Director of Global Government Affairs, Walmart Corporation, provided the corporate perspective. Walmart takes a multi-stakeholder approach. The company is a Seafood Task Force member and committed to only selling seafood from sources certified by a third party by 2025. They also supported an International Justice Mission study. Looking to the future they hope to work toward preventing forced labor in the first place, use technology to disrupt the industry, and see the need for international and national law to create solutions.

Litigator Perspective

Agnieszka Fryszman, Cohen Milstein, LLP, provided the litigator’s perspective. As background, Fryszman pointed to the ILO Caught at Sea Report. Fryszman shared frustrations with how trafficking aboard seafood vessels may not be discovered at U.S. ports because of U.S. laws prohibiting those on board from exiting the boat.

Fryszman recently litigated Sorihin and Abdul Fatah v. Thoai Van Nguyen dba Sea Queen II, Case No. 16-5422, in the U.S. District Court for the Northern District of California. In this case two Indonesian men jumped ship in San Francisco, California to escape and then sued the ship’s captain for horrible working conditions. They settled the case and included in the settlement requirements that the captain establish a code of conduct and distribute a help card to employees to prevent similar incidents. The Associated Press is following up on implementation and Fryszman is waiting to hear if the captain has implemented the settlement requirements.

Fryszman noted one of the major challenges with this litigation is jurisdictional. They were only able to assert jurisdiction over the ship’s captain because he’s from San Jose, California, even though there were many other culpable parties. Fryszman sees jurisdiction as a major barrier to successful seafood slavery litigation.

Fryszman located just two other related cases: one in New Zealand and one in Thailand.

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An audience member asks a question to the panel at the International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery session at ASIL 2018.

Closing

In Q&A, one attendee asked if more international agreements are needed. The panelists generally agreed there isn’t a strong need for more international agreements on this issue right now. Instead they want a focus on domestically implementing the agreements already in place to effectively impose liability. It appears the next frontier for IUU fishing and seafood slavery is finding the best ways to use courts to implement the law in these areas.

ASIL 2018 Recap: New Technologies in International Criminal and Human Rights Investigations and Fact-Finding

By Susan Gualtier

On Thursday, April 5th, I attended a panel entitled “New Technologies in International Criminal and Human Rights Investigations and Fact-Finding.”  The panel explored the increasing use of new technologies, such as social media, satellite data, mobile phone apps, and drone technology, in human rights fact-finding, particularly where sites are inaccessible or pose an especially high risk to human rights investigators.

The panelists first discussed their work with various technologies.  For example, Brad Samuels, of SITU Research, works with visual, panoramic, and geospatial representations that must be optimized for use in court. As Mr. Samuels explained, there might be many videos that capture the same moment in time, but from different viewpoints.  Part of his job is to use these videos to create an event reconstruction.  Jonathan Drake, from the American Association for the Advancement of Science, explained that part of the AAAS’s mission is to engage scientists in human rights and to further the use of science in advancing human rights.  The AAAS has performed grave site analysis and environmental analysis, using images to uncover lies by foreign governments.  They are currently considering how to integrate drones into human rights fact-finding and advancement.

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The panel then discussed issues surrounding the use of new and emerging technologies in human rights fact-finding.  For example, the use of smartphones to take videos and post them to social media has allowed more crimes to be exposed.  At the same time, it can be difficult to verify the accuracy of the information contained in the videos.  One way this problem has been addressed is through mobile phone apps, such as the eyeWitness to Atrocities app, which collects location data on the user from three different sources, provides a verified chain of custody for the video, and makes the user’s footage not editable.  However, there are benefits and drawbacks to such app technology.  On the one hand, it helps human rights workers to overcome access issues in situations where on-the-ground fact-finding would be impossible.  It also gives agency to the victims of the atrocities, rather than taking an imperialist, top down approach.  Nonetheless, the panelists all noted the need to be cautious when it comes to use of these apps.  While initial users have acted in good faith while generating evidence, several of the panelists expressed their concern that later users may have less noble intentions than the early adopters.  The panelists also noted the problem of visual bias (the preference for video representations, even in fields like politics where video cannot adequately capture much of the overall picture).  Scientific studies suggest that visual bias and the use of video evidence can introduce a host of problems into the courtroom.  What happens if we move toward mostly visual evidence, but that evidence is not necessarily representative of the situation as a whole?

Despite these and other issues, the types of evidence that can be captured using technology are extremely valuable to lawyers, judges, and other players in field of human rights work.  Technology has led to better results in investigations by providing access to witnesses and to physical documents that would otherwise be impossible to obtain.  It allows judges to see the violence for themselves when travel to the site of an atrocity would be impossible.  It even allows for more complete crime scene investigations.  Nonetheless, the panel urged that we proceed with caution.  There will need to be some guidelines or minimal standards for technology-generated evidence so that it will be admissible in court.  Tech designers are still much more risk-friendly, and perhaps too willing to let technologies fail, than are human rights attorneys, who need to protect witnesses and victims and to meet the demands of tribunals.  Moreover, we must remember that not everyone has access to technology; many of the places where we find human rights offenses are also places where people simply do not have access to mobile phones, apps, and social media.  And some of the worst accountability issues occur where there’s awareness anyway.  Ultimately, it is critical that those using the new technologies remain aware of its limitations.  We should not overemphasize the technological tools just because they are “cool.”  In the end, we should use them to bolster cases that are already based on traditional human rights fact-finding.