ASIL 2019 Recap: Late Breaking Panel: BREXIT and International Law

BrexitBy Marylin Raisch

Moderator: Oonagh Fitzgerald, Director of the International Research Program, Centre for International Governance Innovation, Ontario, Canada

Speakers: Robert Howse, New York University School of Law; Jessica Simonoff, U. S. Department of State; Sir Michael Wood, 20 Essex Street Chambers; Joao Rodrigues, European Parliament Liaison Office

The fact that the very day of this panel at ASIL was originally “Brexit Day,” that is, the day the UK Parliament was to exit the European Union, says a great deal about Brexit and the crisis at the nexus of international and constitutional law that it represents. However, it may happen April 12 if she cannot get her plan passed on this day, which would have given the UK until May 22nd instead.[1] (Or, as of this writing, at the end of this year if Labour cannot join up? Who knows…). This late-breaking panel was scheduled to end at 10:30 a.m., when the straw polling in Parliament on Prime Minister Teresa May’s proposal was to begin. And so it goes. (We learned soon after the panel session broke up that the proposal failed).

After briefly reviewing the timeline from the referendum in 2016, moderator Oohagh Fitzgerald provided a summary of the U.K. Supreme Court Decision of R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5]  (January 24, 2017). This is notable since the ruling of the court established that the UK executive could not just notify the European Council of its intention to withdraw from the EU; as with other UK treaties, an Act of Parliament would be required to permit that communication. (There is now in fact a European Union (Notification of Withdrawal) Act 2017 as of Royal Assent dated March 16, 2017). With at least this basic context in place, and some reference to the role of House of Commons speaker Bercow in requiring substantial changes before another vote on the same matter could take place, the Moderator posed a series of questions to the panel.

  1. What is the state of international law in the UK in light of BREXIT? Does it demonstrate that international law is working as it should?

Panelists articulated several perspectives on this excellent question and seemed to cover the range from internationalist to newer reassertions of sovereignty. For example, Sir Michael Wood, who participated in negotiation of the UK treaty of access to the EU in his time as an EU-focused lawyer, stated that EU law is not really autonomous. It is embedded in treaties and so it is largely part of public international law. The issue of Northern Ireland, and the UK ideally remaining in some sort of customs union to avoid a hard border, may become one of rules of interpretation. There is disagreement between the UK and the EU on whether the art. 50 withdrawal mechanism operates to contract the UK out of even customary international law rules. While Sir Michael pointed out that some MPs think “fundamental” and “unforeseen” changes in circumstances are manifested in the backstop situation, and Brexiteers (pro-Brexit MPs and ministers) think this might permit departure from the Brexit agreement (and its backstop under art. 62 of the 1969 Vienna Convention on the Law of Treaties), he is not sure that this would be so. (Brexiteers want to prevent an eternal tie to the customs union). Many are skeptical that evidence of concern over an issue such as that, expressed in advance, could ever allow that issue to be called “unforeseen.” This panelist shared that skepticism, as he is more of an internationalist and former lawyer working with the UN International Law Commission and the Foreign and Commonwealth Office.

A different view was taken by the panelist from the current US State Department. Jessica Simonoff viewed Brexit as an outsider and saw it as not about development of supranational governments but rather as showing the ongoing significance of national identity. The rules are developed by consent, as underscored by the ability to depart from a treaty.  International law is alive and well because even after the UK delegated some of its international negotiating authority to the EU, it now can re-familiarize itself with some international law rules.

Professor Howse of NYU Law then contributed insights from international economic law as he pointed out that the UK would still be under the multilateral rules of the WTO. The logistics of new trade agreements and the hard border are not like the arrangements around which supply chains are organized. Pro-Brexit forces seem to him not to understand how new globalized trade actually works now, and a hard Brexit would create initial chaos with serious shortages of goods, at least temporarily. He also commented on the politics of Brexit, which he attributed in part not to a return to lost sovereignty, but to the work of elites using populism for political career advancement.

Panelist Rodrigues quipped that he “owns” his hat as EU bureaucrat. However, he prefers the term civil servant, a profession her noted ironically was established by the British.  The EU is an international organization, but one created by a body of laws that has a constitutional nature. He sees Brexit not really a legal question, because it is allowed under the treaty in the procedure outlined by the UK case. Moreover, a case went to the European Court of Justice on the issue of unilateral withdrawal from the Brexit process, and it was ruled permissible if done democratically. So the legal part is all sorted. But he asked the political question of how does a member state get itself to a decision to leave? What is disturbing is that here we are on Brexit Day and there is no clear manifestation of British will. International law is well; political process in Britain is not.

  1. May cannot use crown prerogative per the Miller case, in this instance of a treaty, but now can she not move ahead with a statute in place?

Sir Michael Wood pointed out that even with some of the specific legal hurdles surmounted, the situation carries huge implications for UK constitutional law and there should never have been a referendum. While the rule of law and the idea that a minister cannot put same issue to vote twice in same Parliament is the same rule that in UN from parliamentary procedure.  Treaties are executive and Parliament is not usually part of negotiations. In this case it has led to big problems.

Ms. Simonoff and Professor Howse, sharing a US perspective, observed that whether the UK is able to pull out of treaty has been moved to Parliament as a matter of constitutional law. Simonoff then compared the process to NAFTA withdrawal and Congressional involvement in those types of agreements. Howse noted and agreed that NAFTA would need some Congressional action for withdrawal. For WTO withdrawal, he speculated, were it to be contemplated, it would have to be based on resolutions of Congress, because the provision for review works through a Congressional process.

Rodrigues noted that there the Task Force on Article 50 Negotiations website was quite transparent, and indicated publicly what they would or would not accept. The EU 27 were united in how to deal with situation. Unlike Professor Howse, however, he thought populism played a crucial role.

  1. Is there a new bilateralism? Will getting out of massive relationship make the UK able to enter into such new agreements? Moderator Fitzgerald noted that European Council President Tusk thought bridging gap between any popular vote and orderly obligations needs to be worked out ahead and we have not seen that here in concrete plans for a new arrangement.

While Sir Michael Wood observed that the EU is not really multilateralism of the usual kind, Jessica Simonoff of US State thought that while bilateralism may simplify a discussion, a treaty negotiation is never really bilateral, as there are other voices in the room. Actions in the UK will always affect the EU. Contracts in many areas will be affected in the realm of private parties (for example, phone roaming fees now in EU after Brexit).

Professor Howse noted that ironically the less-discussed fall-back rules for the UK is a much bigger WTO multilateralism. The EU has now proven that it is a community of choice and right to depart is a real right. Euro-skeptics can now be shown that this is not like the old Soviet Union (to exaggerate) and that the EU made a good faith response. In his role as the EU civil servant on the panel, Mr. Rodrigues agreed that the EU will have to be flexible and negotiate a new trade agreement with the UK itself, so that is certainly bilateral.

  1. Q and A from the attendees consisted of three main questions:
    1. Will there be a way to adjudicate new disputes if there is a hard Brexit?
    2. Will the Good Friday Agreement and human rights in general be respected through some inclusion of the EU treaties’ principles on fundamental freedoms, and equality before the law, as applied in Ireland/N Ireland?
    3. Can the panel address what can be fairly referred to as a dishonest referendum? It was a dishonest vote: had it been between Remain and a version of Brexit, Remain would have won. The referendum was not an exercise in democratic will because no specific version of withdrawal was proposed.

The panelists answered all three questions together. Sir Michael Wood does think that temporary fixes will be used in a hard Brexit regarding air travel etc. He mused that the UK is paying to leave, and what if they say won’t pay if EU does not approve withdrawal agreement? Ms. Simonoff agreed that now that more information available, a second referendum could be good idea and not anti-democratic. Professor Howse thought democracy was manifested in the first vote, but people are also free to change their minds. Joao Rodrigues stated that the EU just sees it as done deal. Some provisional measures were taken by Council and Parliament to address a no-deal Brexit, such as in areas of customs, pharmaceuticals, etc., about 18-20 special measures, in fact. He thinks financial obligations of the agreement will come into the negotiations for a new UK- EU trade agreement, and rights of citizens as between the two jurisdictions will also play a part. He bases this on the UK rebate on fees that Prime Minister Margaret Thatcher negotiated in the 1980s as manifestation of UK exceptionalism; they got it in 1984, so perhaps now as well.

As the panel ended and everyone left ready to check phones for news of the impending vote, all panelists- and attendees, no doubt- seemed to agree that whatever else it may be, Brexit has been good for stimulating interest in international law, and very good for lawyers.

 

[1] Update and Brexit timeline summary from a research report posted at the official Parliament website: “In a referendum held on 23 June 2016, the majority of the UK electorate voted to leave the European Union.

On 29 March 2017, in writing to European Council President Donald Tusk, the Prime Minister formally triggered Article 50 and began the two-year countdown to the UK formally leaving the EU (commonly known as ‘Brexit’).

The UK has long been expected to leave the European Union at 11pm on 29 March 2019.  However, following a House of Commons vote on 14 March 2019, the Government sought permission from the EU to extend Article 50 and agree a later Brexit date.

On 20 March 2019 the Prime Minister wrote to European Council President Donald Tusk, asking to extend Article 50 until 30 June 2019.

Following a European Council meeting the next day, EU27 leaders agreed to grant an extension comprising two possible dates: 22 May 2019, should the Withdrawal Agreement gain approval from MPs next week; or 12 April 2019, should the Withdrawal Agreement not be approved by the House of Commons.”

 

GDPR and Data Privacy at the ABA TECHSHOW

GDPRBy Meredith Capps

I recently attended the ABA TECHSHOW in Chicago, IL (along with quite a few other law librarians, an impressive turnout!), primarily to stay current on recent e-discovery practices and platforms as my library’s resident e-discovery expert, per my prior life as a law firm associate.  As an FCIL librarian, however, I was compelled to step out of former-litigator mode and attend what proved to be a fascinating session on the EU’s General Data Protection Regulation (GDPR) and data privacy laws.  The speakers, Steven M. Puiszis and Judy Shelby, described the ways in which the practices of U.S. law firms and their clients regarding personal information may run afoul of the law, and how U.S. entities should analyze their risk and approach compliance.

Puiszis and Shelby discussed the GDPR’s expansive reach, noting that even minimal activity in an EU state may render a foreign entity “established” in the EU for purposes of the regulation, and that even data that is not “processed” in the EU is covered by the regulation.  They emphasized that “personal information” is defined in a manner far broader than U.S. lawyers would expect, that there is no small business exception to the regulation, and that this information may reside in many repositories maintained by the typical U.S. firm or business, such as human resource databases, marketing databases, client databases, and, of course, email correspondence.  They discussed lawful bases to process personal information, noting that a law firm conflict check should qualify as information necessary for the defense of legal claims, and discussed anonymizing data as one means of ensuring compliance with GDPR.   Though there is uncertainty as to how GDPR will impact requests for documents in U.S. litigation, Shelby noted that federal courts are generally not receptive to enforcing foreign blocking statutes, and that the typical U.S. approach to discovery runs counter to GDPR’s goals of minimum storage.  Cautious U.S. litigants should nevertheless consider narrowly targeting requests for data that may be subject to GDPR, and consider whether anonymized data would suit their purposes.

Their discussion raised a few issues that brought to mind research questions well suited to a course on FCIL research:

  1. National law: Though as a regulation, rather than a directive, GDPR is directly applicable to member states and does not require domestic implementing measures, Puiszis emphasized that EU states maintain their own privacy laws and policies that U.S. entities must consider in addition to GDPR.  Furthermore, I found that European Commission guidance issued in May 2018 specifically notes that the regulation empowers member states to impose conditions and limitations beyond those imposed by GDPR, and contemplates individual member state determinations as to the applicability of the rules in certain sectors.  The EC also states that interpretation of the regulation will be left to European national courts.  In constructing an EU research question concerning GDPR, instructors could well introduce foreign law questions into their hypothetical research problem–questions for which researchers would not enjoy the benefit of the national transposition measures list provided only for directives in EUR-Lex.
  2. Cyber-insurance: Shelby discussed the possibility of obtaining cyber insurance to cover fines associated with GDPR violations, but noted that these fines may not be insurable under the domestic law of some states, raising another potential foreign law companion question.
  3. Recognition of foreign judgments: Though due to time constraints they could not discuss enforcement issues in depth, the speakers mentioned difficulties surrounding the imposition of fines when an entity lacks assets in the EU, and that international treaties or domestic laws such as the U.S. Uniform Foreign Money Judgements Recognition Act may provide mechanisms for cross-border enforcement.  As enforcement proceedings inevitably proceed, they should raise interesting examples involving a mix of foreign and international law.
  4. Data Protection/Processing Agreements (DPAs): Puiszis discussed the importance of entering into, and modifying per GDPR, agreements with vendors and third parties with whom firms, and their clients, may share personal information.  Asking students to locate sample agreements would be an excellent way to reinforce research instruction from 1L and Advanced Legal Research courses regarding publications containing forms and sample contracts.

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.

IALL 2018 Recap: Robot Law

By Mike McArthur

We were privileged to hear Ms. Mady Delvaux-Stehres of the European Parliament provide some insight into the recent discussion and drafting of the report on Civil Law Rules on Robotics. Since she and the other members of the working committee didn’t have backgrounds in robotics, they relied on a team of specialists to get them up to speed. After about a year of work, she began drafting of the report.

The first issue the committee needed to address was the definition of robot they would use in the report. They wanted to encompass the wide application of uses, but ultimately excluded robots used for military application, as that would have ushered in a whole other level of considerations.

Ms. Delvaux-Stehres outlined 5 major themed challenges that faced the committee:

(1) Safety and security, encompassing cyberhacking and cybersecurity, are the most critical issues for the European Union.

(2) Data protection and privacy is still a concern, even with GDCP in force. She explained that it is yet to be seen how effective this new law will address advances in AI.

(3) Ethical considerations related to reliability, transparency, accountability and fairness are also a concern. So much data is fed into the system with machine learning, but there still needs to be a way to determine how reliable the results are. This process often happens in a black box, though, and the more the committee delved into the topic, the more questions that seemed to emerge.

(4) Jobs and skills are being impacted as well. The committee were not concerned about the winners, but were concerned about how society would take care of the losers. Education is effective but slow and there are still many resistant to change. On a side note, she mentioned she introduced the idea of taxing robots, but it was quickly dismissed by a majority of representatives.

(5) Finally, specialists from a broad range of disciplines would need to be brought into the discussion, and they could not just rely on computer scientists. Examples she provided included lawyers and philosophers.

The talk then pivoted to issues related to liability. The current framework has limitations and the definitions are insufficient per Delvaux-Stehres. Using an autonomous car as an example, she mentioned that the types of damage that could occur far exceed the main category of product liability, namely defective products, and even that is narrowly defined. Summing up the government’s responsibility, she further explained that increasingly sophisticated products will require a very large safety net.

Further issues that the committee discussed included the question of obligatory insurance, which would be challenging to set rates for due to a lack of available data. Also, the concept of e-personality, or evolving algorithms, and whether liability would be assigned to the developer. And lastly, the speaker concluded by positing a few rhetorical questions. How do we need to change to make sure that AI will not just benefit the wealthy few, but society at large? How can we limit and control the mega-tech companies? Definitely topics that would require entire conferences of their own.

IALL 2018 Recap: Introduction to the Legal System of Luxembourg and Its History

By David Isom

Gerkrath 2

Professor Jörg Gerkrath of the University of Luxembourg speaks at IALL 2018.

Fittingly, the opening session of the 2018 IALL Annual Course was an “Introduction to the Legal System of Luxembourg and Its History,” given on the morning of October 1 by Jörg Gerkrath, Professor of European Law at the University of Luxembourg. Professor Gerkrath began by noting the Grand Duchy’s national motto: Mir wëlle bleiwe wat mir sinn (“We want to remain what we are”)—but does Luxembourg know what it is, and how did it come to be what it is? While it is impossible to fully address the history of Luxembourg and its legal system in such a brief lecture, he attempted to give provide introductory answers to both of these questions.

As a very small country—both in area (about 2,500 square kilometers) and population (about 580,000 people)—Luxembourg has long been influenced by (and sometimes ruled by) its larger neighbors since its founding in 963. Professor Gerkrath noted that Luxembourg’s history can be divided into three major phases: from roughly the 10th to the 15th centuries, as a small county; from the 15th to the 19th centuries, as a subject of foreign domination—including being part of the French Empire, the German Confederation, the Kingdom of the Netherlands, and the Kingdom of Belgium in the 19th century alone; and from the 19th century to the present, as a small independent state. Luxembourgish independence was a process which began with the Congress of Vienna in 1815, when it gained independence from the French Empire, was elevated to a Grand Duchy, and was given to King William I of the Netherlands. Its independence was further developed by the First (1839) and Second (1867) Treaties of London, with a constitution taking effect in 1868 ushering in an era of constitutional stability.

Professor Gerkrath explained that in its relatively short history as an independent nation, Luxembourg has been deeply involved in various international organizations and unions, including an economic union with Belgium and later the Benelux Union; the European Coal and Steel Community, the European Economic Community, and the European Union; the International Monetary Fund, World Bank, and United Nations; and the North American Treaty Organization. Luxembourg is also a signatory of the Schengen Agreement and a member of the Eurozone.

Professor Gerkrath also explained the structure of Luxembourgish government. It is a parliamentary monarchy; the head of state is the Grand Duke (currently Henri), and it has a unicameral legislature, the Chambre des députés (Chamber of Deputies). The Grand Duke appoints a government with the support of the parliamentary majority, forming the Conseil de gouvernement (Government Council) headed by the Prime Minister. Legislation is written by the Chamber of Deputies and promulgated by the Grand Duke. The Conseil d’État (Council of State, composed of 21 councilors serving 15-year terms) is required to examine and issue opinions on all laws passed by the Chamber of Deputies before they are promulgated, ensuring that they conform with the constitution, international law, and the rule of law—but its opinions are merely advisory. Universal suffrage was introduced by constitutional amendment in 1919, and voting is mandatory. While the constitution states that Luxembourgish is the country’s language, French is the primary language of its laws (with the exception of some fiscal documents in German), and its official journal (the Journal officiel du Grand-Duché de Luxembourg) is in French.

Professor Gerkrath’s lecture dovetailed with the one that followed, “Special Features of Luxembourg Law, such as its Sources” given by Professor Gilles Cuniberti, and Professors Gerkrath and Cuniberti answered questions jointly following their lectures.