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: 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.

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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.

Working with FCIL Collections in British Law Libraries

By Erin Gow

Most of my FCIL experience has come from working at law libraries in the United Kingdom, where I started my career. British collections are, understandably, not considered foreign in the UK. This means that I worked in libraries with extremely deep, strong, and wide-ranging British legal collections. Primary and secondary materials were collected in both print and electronic formats. The libraries held not only primary legislation and key treatises but also British legal reference materials, journals, law reports, secondary legislation, ecclesiastical law, historic materials, citators, indexes, and a wealth of other materials comparable to the range of American resources found in a law library in the US.

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The basic EU collection at Gray’s Inn Library.

Since the UK is a part of the European Union and Council of Europe, British law libraries also hold collections of legal materials related to these organizations. The law libraries that I worked at were attached to Inns of Court, which form a loose coalition and divide responsibilities for specialist FCIL collections between themselves. Gray’s Inn Library, where I was first employed, specializes in international law, while Middle Temple Library, where I worked until leaving the UK, specializes in European and American law. The other two Inn Libraries (Lincoln’s Inn and Inner Temple) divided the Commonwealth countries between them.

Gray’s Inn Library did not have a designated FCIL or International Librarian when I worked there, so everyone was expected to assist with the specialist international collection. This meant lending a hand with cataloging international materials, consulting both primary and secondary international sources to answer reference questions, and assisting library users in accessing these materials. Nearly all the international materials held at Gray’s Inn Library were in English, and consisted mostly of secondary resources along with selected key primary sources such as treaties.

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A portion of the extensive collection of British law reports at Middle Temple Library.

At Middle Temple Library I worked as the European Librarian responsible for that special collection. While all the Inn libraries held some basic European Union materials, complex questions requiring more obscure resources were referred to the specialist collection at Middle Temple Library. The collection also included national materials from European countries, along with Council of Europe materials.

I found that being comfortable with a federal legal system gave me an edge in trying to wrap my mind around the European Union, which could be somewhat baffling to those used to a legal system where all powers are delegated from a central body. Although the distinction between the European Union and the Council of Europe plagued many people, the biggest learning curve for me came in working with national resources from civil law jurisdictions. Getting to grips with a completely different legal structure was particularly difficult for me in countries where the national language was not English. Most of our library patrons were English-only speakers, so the collection policy at Middle Temple Library focused on English resources whenever they were available. As an English-only speaker this made my life easier in many regards, but it was impossible to fulfill my responsibilities as European librarian or to maintain a complete collection without sometimes working with foreign language materials. There were several key French codes, for example, which Middle Temple Library traditionally held in print in the official French. When it became clear that these codes were woefully out of date I spent several weeks in protracted negotiations with French legal publishers tracking down and purchasing the appropriate replacements. Luckily my manager at the time was able to provide extremely competent translations of emails between myself and the French publisher, but I still had to identify the correct codes to purchase by cobbling together my own translations of the promotional materials.

Since Middle Temple Library specialized in American law as well, I interacted with this collection a fair amount, especially as my co-workers began to realize that they could call on me when the librarian responsible for the collection was absent. Explaining American legal resources as foreign law was an oddly frustrating sort of fun. It was nice to work with a collection where I was guaranteed to always know the language, particularly after some of my more complex excursions into European resources, but I found myself struggling to answer questions that British practitioners believed should be straightforward. I was frequently asked why Federal courts hadn’t ruled on a particular issue, for example, or which case reporters were the most authoritative for court use (I’m unaware of an American equivalent to the vital British concern of authoritative law reports). Law reporters arranged geographically were understandably unhelpful for British lawyers, and questions that tapped into the library’s special collection on the death penalty always reminded me just how ideologically foreign American law could be. My work with American legal materials while in the UK, more than anything else, made me realize just how many key differences can be masked by a shared language and history.

My experience of working with FCIL collections in the UK has continued to shape how I approach these resources now that I am in the US. A practical grounding in a variety of legal structures allows me to research unfamiliar topics across a range of jurisdictions with some confidence, but the experience of “foreign” as a changing concept ensures I never forget to respect the wide-ranging variety of FCIL resources.

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

By David Isom

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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.

Why Do Some Nations Still Refuse to Recognize Rape as a War Crime?

By Lora Johns

NobelThe 2018 Nobel Peace Prize was bestowed upon two people who have highlighted the viciousness of sexual violence in armed conflict and the importance of ending it. Nadia Murad is a 25-year-old Iraqi victim of gang rape who acts as a U.N. goodwill ambassador on the issue of human trafficking. Denis Mukwege is a 63-year-old Congolese gynecologist who treats rape victims brutalized by militias from Congo, Rwanda, and Uganda.

The Nobel Committee stated that sexual violence is a weapon of war and that “[a] more peaceful world can only be achieved if women and their fundamental rights and security are recognised and protected in war.” Rape destroys communities, spreads terror, humiliates victims, and perpetuates genocide. So why do some nations still ignore that rape is a war crime?

Certainly, the idea is not new; tribunals from the Nuremberg Trials to those in Rwanda and beyond already had explicitly condemned rape and sexual violence. In 2008, U.N. Security Council Resolution 1820 recognized rape during conflicts as a war crime. In 2010, it began a campaign to change the mindset that the strategic use of rape during wartime is inevitable. But while some international courts recognize strategic rape as an act of genocide and ethnic cleansing, not all national courts even deign to recognize that such abhorrent acts are occuring within their countries’ borders. And so the problem remains unsolved.

We cannot ignore the risk of oversimplifying the picture. Women are not the only victims of sexual violence, nor are men the only perpetrators of war crimes. A ‘“male-perpetrator and female-victim paradigm” is ultimately reductive and harmful to people of all genders. U.N. Security Council Resolution 1325 reaffirmed that women must have equal participation and full involvement in all efforts for the maintenance and promotion of peace and security, including decisionmaking in conflict prevention, but that international human rights law must also fully protect the rights of girls and women during and after conflicts. We cannot oversimplify the problem, but the outsize impact of sexual violence on women cannot be ignored, either.

This year’s Nobel Peace Prize winners illustrate that the problem of violence against women in war is far from solved. There are still no systematic efforts to prosecute sexual violence in war zones. But at least the formal recognition of rape as a war crime permits the International Criminal Court to prosecute and convict perpetrators. And through the Nobel Committee, Murad and Mukwege have increased the visibility of the importance of the role that gender plays in international issues of human rights, peace, and security.

From the Reference Desk: Researching African Health Laws

By Amy Flick

550px-Africa_(orthographic_projection).svgOur summers at Emory start with numerous requests to help faculty and their research assistants get started with large summer projects. I had a request from a professor in May to help her research assistant find legislation on the public health systems, and information on the ministries of public health, for several African countries: Ethiopia, Liberia, Guinea, Madagascar, Mozambique, and Nigeria.

I have fielded several requests for Nigerian law in the last few years – and I thank Yemisi Dina for her help with the first of these – and I included Nigeria as an option for students for the final project in my Foreign and Comparative Legal Research class. So I started with some sources for Nigerian legislation, including some found by my students that I didn’t know of before my class. Resources for the other countries in the faculty request were less familiar.

I started with making a list of resources to investigate:

  • The Foreign Law Guide database, since it has subject headings including Health. It had citations for public health laws for all the countries on my list, but the only working legislative link was for Nigeria.
  • Law Library of Congress Guide to Law Online, with links to Parliaments and Official Gazettes. This added sources to my list for Madagascar’s laws (on the National Assembly website, in French) and to Mozambique’s legislation listed by “sectores” (on the government portal, in Portuguese).
  • GlobaLex Research Guides added sources for legislation to my list for Liberia and Ethiopia, as well as some ministries and government portals. I also checked Julienne Grant’s Research Guide on Global Health Law for more sources to try.
  • Global Legal Monitor from the Law Library of Congress, to look for recent news under their Health topic. I did find a 2017 story about a 2017 Liberian bill, as well as the 2014 Nigerian National Health Law.
  • Also on my list, but not helpful for this particular project: ILO NATLEX (includes laws on Occupational Safety and Health), FAOLEX (laws on Food and Nutrition), and Index to Foreign Legal Periodicals (which did have some articles on the Nigerian 2014 law).
  • Google, which I used to fill in the health ministry websites that I hadn’t found through the Guide to Law Online or GlobaLex. Mozambique’s Ministry of Health turned out to be an additional source for their health laws and regulations.

But what you really want is the sources for those countries’ legislation for when you get similar requests. So, here’s my list:

As I have found with other projects dealing with the law of other countries, it took multiple portals and research guides to find the legislation I was looking for, as well as multiple websites compiling laws for some countries. I found a lot of dead links along the way, and many collections were not current. And for some countries, I could not find public health laws at all. Google Translate helped for navigating sites, but for reviewing the documents themselves, I needed a few phrases to look for in French and Portuguese. Final lessons: 1) do not expect foreign law to be readily available or easy to find, 2) do not expect foreign law to be readily available or easy to find in English, and 3) assign students projects that might come in handy for my own work on faculty requests!

New Resources: UN Women’s Family Law Database

By Gabriela Femenia

The Global Women’s Leadership Project (GWLP) at Penn Law has launched a new database of national laws governing women’s status in the family. Developed under the auspices of Under Secretary General and Executive Director of UN Women Phumzile Mlambo-Ngcuka, the UN Women’s Family Law Database is the first mapping of its kind that goes beyond the boundaries of traditional family law to examine the entire legal system of a country to identify the law’s subtle and powerful impact on a woman’s status in her family.

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Lead by Rangita de Silva de Alwis, Penn Law’s Associate Dean of International Affairs and Project Director, and compiled by Penn Law students and research fellows, this project maps the full range of laws that regulate a woman’s role in the family and society, including laws governing property, inheritance, custody, guardianship, marriage, divorce, residence, citizenship, domicile, age of marriage, guardianship, female genital mutilation (FGM), “husband obedience “ and sex-selective reproductive decisions.

The first phase of the database surveyed the 54 African countries; the 19 civil law countries in Latin America and 32 states of Mexico; the 51 independent states of Europe; Israel; India; and Pakistan. The data is currently available via the Biddle Law Library as a Google document and map, and will ultimately be accessible and searchable through a UN-designed database interface. Phase 2, now underway, will identify the relevant laws for the Middle East region, in addition to presenting a series of analytical reports on the data.

Feedback and questions about the database are most welcome and can be directed to Gabriela Femenia.