From the Reference Desk: Jurisdiction over Space Crimes

By Amy Flick

A long time ago, in a law school far, far away, before the pandemic lockdown, I was meeting with students in person. I miss those days. Anyway, a student asked me for help with her seminar paper. She wanted to write about jurisdiction over crimes in space, specifically on a hypothetical future Mars colony. She assumed that jurisdiction would be based on the law of the sea.

She wasn’t wrong, but the international community has addressed jurisdiction over spacecraft, if not specifically space colonies. I started with my favorite starting point for international law questions, the Max Planck Encyclopedia of Public International Law. The article on Jurisdiction of States notes that the principle of jurisdiction of the State of registry for ships has been extended to spacecraft, citing Article VIII of the Outer Space Treaty[1]. The article on Outer Space provided more information on the treaty, but we found the article on Outer Space, Liability for Damage even more helpful. Although the article did not address criminal liability or jurisdiction, focusing mostly on damage by space debris, it cited Article VIII of the Outer Space Treaty as well: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”

We went to the full-text of the treaty from there. The Oxford Law Citator with the Max Planck Encyclopedia provided a link to the treaty on the United Nations Treaty Collection site, but with the UNTS citation (610 UNTS 205), we also looked at the treaty on Hein Online in the United Nations Law Collection to start her secondary source research. Hein Online showed 2040 law review articles citing the 1967 Outer Space Treaty, but a search within results for articles with “criminal” and “jurisdiction” in the title narrowed that to more manageable seven law review articles, including articles on establishing criminal jurisdiction on outer space colonies and on the International Space Station.

The handful of articles on point meant that the student might need to distinguish her topic, but they did provide numerous footnote citations for her to work with. They cited the 1998 Intergovernmental Agreement on Space Station Cooperation[2] and the Code of Conduct for the International Space Station Crew[3], and they pointed us to UNOOSA – the UN Office for Outer Space Affairs. UNOOSA’s website offers the text of the five UN treaties on outer space with status and travaux préparatoires, UN resolutions related to space activities, and a collection of national space laws and regulations. There is even buried on the site a 2013 PowerPoint presentation on the legal framework for the International Space Station with information on the ISS agreements, including criminal jurisdiction under Article 22 of the Intergovernmental Agreement.

So, it appears that state registry or ownership determines jurisdiction for most spacecraft, but a multinational venture like the International Space Station, as a model for a Mars colony, requires an agreement by the state parties to settle issues like criminal jurisdiction.

From that beginning, I recommended a few other secondary sources for background and further research. As a standard work on international law to cite on the principles of jurisdiction, I suggested Brownlie’s Principles of Public International Law,[4] available in our Oxford Scholarly Authorities database. There were also several titles in the library’s catalog that looked promising. The International Space Station: Commercial Utilisation from a European Legal Perspective[5] addresses criminal liability, and the Encyclopedia of Space Science Research[6] includes a section on criminal jurisdiction. The library’s collections also included more general works on space law, including Space Law: A Treatise, A Fresh View on the Outer Space Treaty, and for a quicker read, The Little Book of Space Law.

Wrapping up our meeting, the student left with treaties, agreements, and other documents to use for jurisdictional issues in her future Mars colony, and sources for discussing criminal jurisdiction more generally. And I learned a little about space law.

 

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (United Nations [UN]) 610 UNTS 205, Art.VIII.

[2] Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation and the Government of the United States of America concerning cooperation on the Civil International Space Station, TIAS 12927.

[3] Code of Conduct for the International Space Station Crew, 14 CFR §1214.403 (2006).

[4] James Crawford, Brownlie’s Principles of Public International Law, pt. VII (9th ed.2019).

[5] The International Space Station: Commercial Utilisation from a European Legal Perspective (F.G. von der dunk and M.M.T.A. Brus, eds., 2006)

[6] Encyclopedia of Space Science Research (Raul Lajara and Javier Baron, eds., 2012)

New FCIL Librarian Series: Resisting the Urge to Do It All

By Janet Kearney

This is the fourth in a series of posts documenting my experience as a new FCIL librarian. I started as Foreign & International Law Librarian at Fordham University School of Law in February 2019.

 

Where to even start? Like every single one of you, I’m not working on what I expected to be working on in the way I expected to be working on it. I’ve always dreamed about prepping for class in my pajamas on the couch, sitting next to my cats, Drew Brees and Ruth Bader. But not like this. Instead, I’m not allowed to be in my office – a real luxury I now realize. I call two cities home: New York City and New Orleans, and both are in…not a great spot – as I write this of course. Things are changing so quickly, who knows what the world will be as you read this. (Insert meme about March being 100 days here.)

I don’t even remember now what I originally wanted this month’s column to be on, but I couldn’t conceive of a way now to make it about anything else. So I’m going to highlight something I struggle with all the time and am feeling particularly acutely on this Friday afternoon while I’m feeling so maudlin.

How do you say no? Whether it’s to others or yourself? It’s a particular affliction for those librarians that identify as “Type A librarians” – the urge to do it all, either because we want to be helpful or because we want to be the best or some combination of all the things. (It’d be interesting to know whether FCIL-ers suffer from this at a higher rate.) This tends to hit me in waves, but I know others feel this all the time. It comes up a lot in our normal day-to-day. There’s an AALL annual meeting program on my wish list, Getting to ‘No’: Setting Boundaries and Pushing Back Strategically. I’m the type of person who likes to say yes – my supervisors, past and present, are all very familiar with it. In the best of circumstances, we cannot do it all, and we cannot always be the best. (A common refrain: don’t let perfect be the enemy of good.)

What about in these circumstances? When packing up my office to work remotely during a pandemic, I printed out articles I’ve been wanting to read, grabbed books, and made sure I emailed all those half-written articles drafts I have saved. Now I find myself looking at that binder, personally offended: stop. staring. at. me. I’m moving two classes online, conducting reference remotely, separated from my reference team, planning future online classes – heck I even saved time by having conference presentations cancelled, right? I should be done with an article by now, at least. Meanwhile, I’m counseling students, removing homework, just generally understanding that they cannot be the same right now – I’m not even talking about their best, I’m saying they are struggling to be normal. For the first time in several weeks this past Wednesday, I received three questions at the same time – 2 from reference chat, and one from a supervisor in Google chat – I totally froze. I thrive on pressure, and I literally forgot how to do more than one thing at a time.

My husband is taking online classes and got this humorous note from his professor today that sums it up:

PS On a lighter note that has made the rounds on academic twitter, apparently Issac Newton also had to work and study from home during the bubonic plague in London in 1665. During that time, he basically wrote what would be early calculus and his initial ideas on gravity. So #nopressure for academics right now.

#nopressure

Here are some general thoughts I have about handling this – what are your strategies?

  • Talk to someone about feeling overwhelmed – about the injustice of it all or a very real problem. I count myself lucky to have a supervisor willing to listen to me and a partner isolating at home with me. The cats, of course, are great listeners.
  • Reminding myself that although things can almost always be worse, that does not negate my own personal feelings of struggle. Both can be true at the same time.
  • Work the workday and the workday only.

I’m constantly learning to be more kind to myself, the same way I strive to be kind to all those around me. To those of us feeling the pressure to be all things to all people PLUS write our magnum opus WHILE, by the way in case you haven’t noticed, there is a pandemic going on around us — I encourage us to find a way to release the pressure. We won’t be perfect, and we will struggle, and I will most assuredly keep staring at that binder. I’m going to start by actually closing my laptop at closing time and hugging my cat until he runs away. (She says, as she makes edits at 6pm. Acknowledging a problem is the first step, right?)

#nopressure

February 2020 FCIL-SIS Newsletter Is Out!

The February 2020 edition of the FCIL Newsletter is out now.  Inside the newsletter are:

  • an article on helping foreign students thrive in U.S. law schools;
  • two new resource reviews from the FCIL-SIS Electronic Research Interest Group:
    • HeinOnline’s Multinational Sources Compared, and
    • Library of Congress’ International Tribunals Archive;
  • a note from the FCIL-SIS Chair, Loren Turner, including a roundup of FCIL events happening at the 2020 AALL Annual Meeting; and
  • a list of recent publications by FCIL-SIS members.

Check it out here!

IALL 2019 Recap: George Williams AO, Australia’s Constitutional Quirks

By Jessica Pierucci

The International Association of Law Libraries hosts annual courses in different locations around the world each year. I was lucky enough to attend the 38th Annual Course, Law Down Under: Australia’s Legal Landscape, held October 27-30, 2019 in Sydney, Australia. The course [The 38th Annual Course of the International Association of Law Libraries in Sydney, Australia] included fascinating presentations from Australian lawyers, scholars, judges, and more. Among them were George Williams AO, Dean of the Law School, Anthony Mason Professor, and Scientia Professor at the University of New South Wales. An expert on Australian constitutional law, Williams engaged the audience with an eye-opening presentation titled Australia’s Constitutional Quirks.

George Williams speaking at a podium

George Williams AO

Misunderstandings

Williams opened with some alarming statistics about misunderstandings of the Australian Constitution. On a survey a number of years ago, 47% of respondents said Australia does not have a constitution. This is incorrect. In another survey, 61% believed Australia has a national Bill of Rights. This is also incorrect. According to Williams, Australia is the only democracy without a Bill of Rights in its federal constitution.

When working on Victoria’s Charter of Human Rights and Responsibilities, Williams frequently came across people who believed they could “plead the 5th” in court, a concept they likely learned from U.S. television that does not exist in the Australian Constitution. These conversations furthered Williams’ concern about the apparent lack of understanding of the Australian Constitution by many Australians.

Aboriginal Discrimination

One major issue with the Australian Constitution is its treatment of Aboriginal people. Current and former articles of the Constitution illustrate the discrimination ingrained in this document, created without the input of Aboriginal people.

Shockingly, Article 25 allows people to be disqualified from voting based on their race. While not currently in use, the fact that this article is still in the Constitution is deeply concerning. Williams does not know of another country with a similar constitutional rule. Aboriginal people only gained the universal right to vote at the federal level in 1962, less than 60 years ago.

In addition, former Article 127, repealed in 1967, excluded Aboriginal people from the population count. This former exclusion is emblematic of the view that Aboriginal people were not part of the country.

An active debate at the federal government right now focuses on Aboriginal people, responding to the 2017 Uluru Statement from the Heart requesting voice, treaty, and truth. But only time will tell if Aboriginal people will be appropriately incorporated into the Constitution, among other proposed reforms.

Challenges for Reform

Constitutional change is slow and difficult. The federal Parliament must initiate constitutional changes and Williams has seen a frequent disparity between the will of the people and Parliament’s actions. Further, constitutional amendments require referendum and only eight constitutional referendums have passed, most recently in the 1970s. Many more have not passed and the most recent attempt at a referendum was two decades ago.

Compulsory voting requirements mean that uninformed voters may vote against a referendum even if they agree with the idea proposed due to lack of understanding. Williams writes a regular newspaper column in The Australian with the hope of increasing awareness of the government and the Australian Constitution among the public, but he wonders how effective this is as he is not sure how many people are still reading the newspaper.

Encouragingly, many state constitutions throughout Australia have undergone changes to include a Bill of Rights and acknowledge Aboriginal people, among other reforms. But it’s a completely different story at the federal level.

Conclusion

Ultimately, Williams’ presentation showed the Australian Constitution has a disturbing history and substantial changes may still be quite a ways off. Remedy Australia collects United Nations cases finding Australia in violation of human rights. The data shows Australia has failed to remedy the vast majority of these violations. This falls in line with Williams’ understanding of Australia’s constitutional history and the resistance to change at the federal level.

IALL 2019 Recap: International Environmental Law in Australia

By Julienne E. Grant

Professor Tim Stephens spoke to attendees on the final day of the IALL conference, October 30, 2019. He is Professor of International Law at the University of Sydney; an Australian Research Council Future Fellow; and Deputy Director of the University of Sydney’s Marine Studies Institute. The topic of Professor Stephens’s excellent presentation was “International Environmental Law in Australia: Old Problems, New Challenges.”

Photo of Professor Tim Stephens.jpg

Professor Tim Stephens, Professor of International Law at the University of Sydney.

The professor began his talk by defining International Environmental Law (IEL). He said that it is a type of public international law that “seeks to conserve/manage natural and cultural/built environments.” He added that IEL is becoming increasingly important around the world and that it operates somewhat like the concept of equity.

Professor Stephens explained that IEL is predominately treaty-based; there are currently hundreds of such documents in force, with Australia being a party to more than forty multilaterals. The speaker explained, however, that treaties to which Australia is a party are not self-executing; that is, there is no automatic implementation, and only the Parliament of Australia can implement treaties. The professor indicated that the division between federal and state responsibilities is extremely complex in Australia, a fact that other conference speakers emphasized. Here, Professor Stephens cited the Tasmanian Dam Case” [1983] HCA 21, which radically expanded the power of the Australian parliament in external affairs. Overall, he said, the federal system has complicated Australia’s IEL commitments.

The speaker also indicated that the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC), although designed for the purpose of environmental protection, is not working; the federal government has not taken the lead on environmental management, leaving this to the individual states. He said that the Great Barrier Reef, a UNESCO World Heritage Site, is under significant environmental pressure; there is, for example, a coral “bleaching” problem, most markedly in the north part of the site. UNESCO, however, has not placed the Great Barrier Reef on its “In Danger” list yet.

The professor pointed out, though, that Australia has been a strong supporter of IEL overall, noting the country’s interest in protecting its unique species and biodiversity (he believes Australia is experiencing an extinction crisis with regard to both). He also noted that Australia brought a case to the International Court of Justice (ICJ) in 2010, accusing Japan of breaching several of its obligations under the 1946 International Convention for the Regulation of Whaling, as well as other international commitments to preserve marine mammals. Australia won the case (Australia v. Japan, decided March 31, 2014).

But the Australian government, Professor Stephens said, has taken an ambivalent stance on climate change because the country is a big user and exporter of fossil fuels. According to the speaker, there are weak emission targets in Australia, and the Clean Energy Future Act 2011 was repealed by the current government. He said that there are presently dozens of lawsuits in Australia related to climate change, and there is actually a separate Land and Environment Court in New South Wales (NSW). The current NSW government wants to override the federal “coal-friendly” administration. Gloucester Resources Limited (GRL) v Minister for Planning [2019] NSWLEC 7 has, however, changed the situation somewhat as dicta in that case suggests that climate change was a good reason to deny a construction permit for an open-cut coal mine. Professor Stephens called the language in that case “revolutionary,” as previously Australian courts did not look at anything related to IEL.

Professor Stephens concluded his lecture with the following thoughts:

  • IEL is being challenged significantly in the current geological era (Anthropocene), and we can expect to see a new round of IEL mechanisms;
  • Australian governments have generally been supportive of IEL treaties (but not always!);
  • Australia’s current federalist system has complicated its commitments to IEL;
  • The EPBC Act of 1999 has not been effective;
  • a new generation of environmental laws is needed in Australia, including a federal environmental act, monitored by independent institutions.

Overall, with regard to environmental protection, Professor Stephens believes that decision-making should be taken away from politicians and placed into the hands of scientists and other experts.

Professor Stephens’s PowerPoint slides for the presentation are posted on the IALL website.

IALL 2019 Recap: Australian Indigenous Peoples and the Law

By Meredith Capps

AustralianIndigenous

The panel at the Australian Indigenous Peoples and the Law program at IALL 2019.

On Monday, October 28th at 11:00 a.m., Thalia Anthony of the University of Technology, Sydney began the panel with her presentation titled Colonial Legal Histories and Indigenous Sovereignty.  Anthony described the concept of legal hybridity, and the historic tension between colonial jurisdiction and indigenous sovereignty.  She discussed the notion of ngurra-kurla embraced by the Warlpiri people, a philosophy embodying core elements of law land, law, language, skin, and ceremony, and how the Warlpiri utilize both compensation and shaming as punishment.  Recent policing of Warlpiri sacred sites in violation of its indigenous law provides an example of typical modern-day intracultural and intralegal conflicts.

Anthony discussed several significant Australian cases dealing with indigenous sovereignty, including:

  • R v Murrell (1836)–the Supreme Court of New South Wales (NSW) ruled that indigenous people are not “law-bearing people,” indigenous inhabitants subject to universal Anglo-Australian law;
  • Milirrpum v Nabalco & Cth (1971)–Supreme Court of the Northern Territories rejected a claim of native title;
  • Mabo v Queensland (No 2) (1992)–landmark decision of the High Court of Australia overturning Milirrpum, for the first time recognizing native title;
  • Walker v NSW (1994)–the High Court of Australia found that the legislature may pass general criminal statutes applicable to all persons;
  • Binge v Bennett (1988) & R v Buzzacott (2004)–NSW Supreme Court and Australian Capital Territory Supreme Courts dismissed concerns of racial bias in jury selection.

Anthony then discussed Australia’s incarceration of indigenous people, the most incarcerated group in the world.  Indigenous women currently represent Australia’s fastest-growing prison demographic.  Anthony characterized efforts to forcibly displace indigenous persons during the 18th century as “palliative carceralism” while in the 19th century, Australian authorities engaged in “protective carceralism,” asserting control over indigenous populations through missions and settlement.  Such efforts evolved into what Anthony characterizes as “welfare carceralism” and “penal carceralism.”  Indigenous communities are subject to a high level of policing on the streets, and greater levels of criminalization at each stage of the justice system (arrest, prosecution, and bail).  Indigenous young people are more likely to experience abuses such as torture while in police detention.  Despite efforts by the 1991 Royal Commission into Aboriginal Deaths in Custody, indigenous persons die at increasing rates while in police custody.  Anthony reemphasized that indigenous communities do not utilize prison as punishment, and highlighted the need for a hybrid domain embracing initiatives such as community courts and community justice reports.

In Protecting Indigenous Cultural Property, attorney Terri Janke described intellectual property protections for indigenous land, documentation, arts, and language.  She discussed international protocols such as the Negoya Protocol, WIPO provisions regarding traditional cultural expressions, and the UN Declaration on the Rights of Indigenous People, which assert rights, but these rights do not automatically translate into domestic statutory law in Australia. Janke highlighted challenges common to protecting cultural history in different spheres.  Copyright, for example, does not protect content such as oral history, which does not exist in a fixed format.  In the patent realm, co-sharing agreements can provide a mechanism for protecting indigenous knowledge in medicinal use of plants.  Janke discussed a few notable cases dealing with indigenous cultural property, including Milpurrurru v Indofurn, in which indigenous artists prevailed in a copyright suit involving use of their art in woven carpets, Bulu v R&T Textiles, rejecting the idea of communal ownership of copyright but finding that the artist owed a duty to the indigenous group whose work he represented, and ACCC v Birubi Art Pty Ltd, penalizing Birubi for sale of fake indigenous art in souvenirs.

Finally, Magistrate Sue Duncombe presented NSW Circle Sentencing and the NSW Youth Koori Court.  59% of the juvenile detention population is indigenous, and the Youth Koori Court, awarded a $2.7 million, three-year government grant, hopes to address this imbalance.  Its goal is not necessarily to reduce recidivism, but to reduce risk factors for offending, and though some participants have reoffended, many participants now live independently, obtain employment, and maintain custody of children. Juvenile offenders accepted in the program will engage in a suitability exercise where they learn program expectations, including developing of their own action and support plans, and compliance with monitoring and reporting procedures.  At sentencing, punishments may not exceed those the youth would receive in the criminal justice system, and staff acknowledge and incentivize progress.

October 2019 FCIL-SIS Newsletter Is Out!

The October 2019 edition of the FCIL Newsletter is now out.  Inside the newsletter are:

  • a great piece from the Schaffer Grant recipient, Mariya Badeva-Bright;
  • Committee and Interest Group reports;
  • Business Meeting minutes from the 2019 Annual Meeting;
  • a note from the FCIL-SIS Chair, Loren Turner; and
  • a list of recent publications by FCIL-SIS members.

Check it out here!