Webinar Recap: Working with Non-English Materials for the English Speaker

By Jessica Pierucci

On June 6, 2019, the FCIL-SIS Continuing Education Committee hosted its inaugural webinar, Working with Non-English Materials for the English Speaker. This engaging and information-packed session featured three panelists who discussed the best resources and provided research tips for finding the most helpful English translations of laws in European, Asian, and African countries.

Panelists.PNG
This post briefly discusses some key takeaways from the webinar, but for a complete list of resources, please check out a helpful handout and set of slides from the presentation both freely available through the Continuing Education page on the FCIL-SIS section of the AALL website. A webinar recording is also available to AALL members at this site.

Europe

Erin Gow, Online Services Librarian at University of Louisville Law Library, started the panel with European languages. She suggested starting with EUR-Lex and N-Lex when looking for documents from EU member states. In EUR-Lex, she pointed out annotations noting the source of translation (official, machine translation, etc.). In N-Lex, Gow demonstrated how the search boxes helpfully translate English language searches to other languages.

Gow also recommended places to find guides for this type of research. GlobaLex is often her first stop. She also checks for research guides from European law libraries, because those guides are generally developed by librarians who regularly work with European resources. Gow specifically mentioned guides from the Bodleian Law Library at Oxford and Middle Temple Library, including Middle Temple Library’s National Information Links for Lawyers PDF chart (PDF on the right).

Gow provided global tips as well. She explained that government websites, websites for relevant multinational organizations, and the International Encyclopaedia of Laws can also be potential sources of translated laws. She also recommended checking Lexis, Westlaw, HeinOnline, treatises, encyclopedias, and law review articles for any translations contained therein. For performing machine translations, Gow noted that she prefers the translation application Linguee. She also discussed the general helpfulness of Google Translate, but she cautioned to always be aware of the limits of machine translation.

Asia

Alex Zhang, Assistant Dean for Legal Information Services at Washington & Lee School of Law, focused on Asian languages. Zhang explained that for countries in which English is an official language, such as Singapore and Hong Kong, the researcher’s focus should be on finding the most authoritative source. Singapore Statutes Online is a helpful government resource for finding Singapore’s laws online, but it only contains unofficial versions of legislation. The official text is published in the print Gazette. On the other hand, electronic Hong Kong e-Legislation documents with “verified copy” marks are the official text.

For countries in which English is not an official language, the best bet is often finding a translation produced by a governmental entity (e.g. Japanese Law Translation), but it’s crucial to remember translations won’t have official status. Zhang emphasized considering the translation’s origin, focusing on the translation source, date, version history, and format. She also encouraged comparing multiple translations where possible.

Zhang also shared some broadly applicable tips. Great research guides may come from academic libraries in a relevant country, such as the Chinese University of Hong Kong Library. The Foreign Law Guide, GlobaLex, and Law Library of Congress Guide to Law Online: Nations are all great resources for locating information about the availability of translations. Further, Lyonette Louis-Jacques’ “How to Find Cases in Translation, Revisited” in Slaw is a valuable tool for case research ideas.

Zhang Slide Screenshot.PNG

Africa

Yemisi Dina, Acting Chief Law Librarian at Osgoode Hall Law School Library capped off the panel by discussing African languages. Dina focused on the presence of many indigenous languages across the continent, which can lead to loss of the true meaning during translation from language to language. One manner in which meaning can be lost occurs when customary court judges, who often do not produce written decisions, elect to have their decisions written in a language other than the indigenous language spoken during the proceedings. Meaning can also be lost during international tribunal hearings, when interpreters translate from an indigenous language to the official language of the tribunal.

Although true that many African countries have English, French, Arabic, and/or Portuguese as official languages, the text in those languages may not fully capture the meaning originally intended by law originated in an indigenous language.

Dina suggested using AfricanLII as the go-to resource, but noted that it, like LLMC and other collections, is incomplete and still has a way to go toward becoming a complete resource for African legal information.

Want more information?

Don’t forget to check out the webinar resources posted on the Continuing Education page on the FCIL-SIS section of the AALL website. They’re super helpful including citations and links to a wide array of translation-related resources.

Book Review: Charting the Legal Systems of the Western Pacific Islands, by Victoria J. Szymczak

chartingthelegalsystemsofthewesternpacificisland
By Susan Gualtier

In a recent blog post, Shay Elbaum recapped a 2018 WestPac conference program in which Victoria Szymczak, Director of the Law Library and Associate Professor of Law at the University of Hawai’i William S. Richardson School of Law, discussed the creation of her new legal research guide, Charting the Legal Systems of the Western Pacific Islands, which was recently published by Hein.  Although I was not personally able to attend WestPac or hear Ms. Szymczak speak on this topic, I had already received Hein’s announcement regarding the new guide and was anxious to see it in person.

Charting the Legal Systems of the Western Pacific Islands is unique for a research guide in that it contains quite a bit of context.  It covers history, defines important British colonial legal terms, and lays out clearly the challenges specific to legal research in the Western Pacific Islands.  At only 60 pages long, the book offers enough background information for the researcher to feel confident in beginning to look at primary sources.  Szymczak also recommends several treatises on both the British colonial system and the Western Pacific that can provide the researcher with more in-depth information.

The book is also unique in that it is very much focused on historical resources, specifically those created during British colonization in the Western Pacific.  Szymczak explains the different types of colonial documents that researchers may need to locate and identifies sources where those documents might be published.  She also describes how legislation and the judiciary operated in the Western Pacific Islands under British rule, and the ways in which native or customary law were applied during that period.  Szymczak discusses various instruments of customary law, including native courts and island and local councils, which were established during the colonial period, and even mentions a few ways in which the researcher might approach finding evidence of customary law from that era.  An entire chapter is devoted to archival research and secondary sources, such as historical newspapers, that can help to “fill in the gaps” in the historical record created by primary legal documentation.

The book wraps up with several chapters on post-independence sources of law.  Again, significant context is provided in order to help the researcher understand the history and legal structure post-independence.  Szymczak discusses open access online sources, as well as print sources specific to the jurisdictions covered in the book.

It is rare that a research guide is also such an interesting read, but I very much enjoyed this guide and learning about the legal history of the Western Pacific Islands.  I would recommend this book to anyone interested in colonialism, the Western Pacific, or customary and indigenous law.

The Luxembourg Space Resources Act and International Law

By Charles Bjork

Asteroid Mining_NASA Public Domain Image.png

Image courtesy of Wikipedia commons.

Among the most intriguing and eagerly anticipated presentations at the 2018 Annual Course of the International Association of Law Libraries was a lecture by Professor Lorenzo Gradoni, a Senior Research Fellow at the Max Planck Institute for Procedural Law, on Luxembourg’s recently enacted Space Resources Act and whether or not it is in conflict with international law governing the use of outer space.  Sadly, Professor Gradoni had to cancel at the last minute, and there was not enough time to locate a replacement speaker.  Paul Mousel, a founding partner of the law firm Arendt & Medernach, who spoke about the practice of law in Luxembourg, was kind enough to provide the conference delegates with some background information that helped to explain how Luxembourg improbably became a pioneer in the field of space law.  Time constraints precluded Mr. Mousel from discussing the new Space Resources Act in detail.  Since the topic is of interest to me, I decided to do some research on my own.  What follows is a summary of the context provided by Mr. Mousel, along with my own findings about the origins of Luxembourg’s Space Resources Act and whether it is compatible or in conflict with the multilateral treaties that govern the use outer space.

Although few people today think of Luxembourg as an industrial powerhouse, it was one of Europe’s largest steel producers from the middle of the 19th century until the last quarter of the twentieth century.  The energy crisis of the 1970s accelerated the decline of Luxembourg’s steel industry.  As it became apparent that most steel production eventually would shift to lower-cost jurisdictions, Luxembourg began looking for ways to diversify its economy.   Banking and financial services offered one path.  The emerging field of satellite-based communications and broadcasting offered another.  The Cold War between the United States and the Soviet Union provided the impetus for the development of artificial satellites.  As with other technologies originally developed for military purposes, it wasn’t long before civilian applications began to emerge.

To better understand how Luxembourg managed to establish itself as a center for the satellite communications industry, some background information on satellite operations will be helpful.  Most communications satellites operate in a geostationary orbit, directly above the Earth’s equator, following in the direction of the Earth’s rotation.  From the ground, a satellite in such an orbit appears to be motionless, occupying a fixed position in the sky.  A ground-based antenna can communicate with the satellite simply by pointing to that fixed position without having to rotate back and forth to track the satellite’s movement.  There are two main limitations on the use of geostationary orbits by communications satellites.  First, only a finite number of satellites can safely operate within the relatively narrow band above the Earth’s equator.  Second, the number of radio frequencies that can be used to communicate with satellites operating within a geostationary orbit also is limited.  These frequencies must be allocated for use on an exclusive basis in order to prevent one satellite operator’s transmissions from interfering with another operator’s transmissions.

The entity responsible for allocating the limited number of orbital positions and radio frequencies available for satellite broadcasting is the International Telecommunications Union (ITU), a specialized agency of the United Nations.  For each of its member states, the ITU set aside a fixed number of geostationary orbital positions, as well as a fixed number of uplink and downlink frequencies for communicating with satellites operating in geostationary orbit.  National telecommunications regulators, such as the Federal Communications Commission in the U.S., may assign these orbital positions and frequencies to public or private entities operating within their respective jurisdictions.  If there are no entities capable of using the orbital positions and frequencies allocated to a particular ITU member state, those positions and frequencies remain available for the use of entities based outside the jurisdiction on a “first come, first served” basis, subject to the oversight of the ITU.

Just as its steel industry was contracting, Luxembourg suddenly found itself in possession of two potentially lucrative assets:  geostationary orbital positions for satellites to occupy and radio frequencies for communicating with the satellites occupying those orbital positions.  As Mr. Mousel explained, Luxembourg’s location on the border between France and Germany makes it ideally situated to transmit satellite broadcasts to most of Europe’s largest television markets.  The only thing Luxembourg needed to take advantage of this opportunity was a domestic satellite operator.  If no domestic satellite operator emerged, Luxembourg risked losing its ITU-allocated orbital positions and radio frequencies to foreign entities willing to claim them.

At that time, in the early to mid 1980s, the only satellite operators in Europe were state-owned broadcasters.  Lacking the resources and technical expertise to develop a state-owned champion of its own, the government of Luxembourg decided to offer seed money to subsidize the establishment of a privately-owned satellite company.  It was approached by Clay T. Whitehead, an American who had worked in the Nixon administration as the first director of the Office of Telecommunications Policy, and who later helped Hughes Aircraft to launch its satellite subsidiary.  In exchange for the seed money, the assignment of the requisite orbital positions and radio frequencies, and the right to broadcast television directly into viewers’ homes, Whitehead agreed to base his new company in the Grand Duchy and allow its government to take a minority stake in the business.  Thus was born Société Européenne des Satellites (SES), Europe’s first privately-owned satellite operator.

Luxembourg’s gamble on SES soon paid off.  In 1988, just three years after it was founded, SES launched its first satellite, the Astra 1A, into geostationary orbit, which enabled it to enlist as clients many of the key players in Europe’s emerging satellite television industry, including the German broadcaster RTL and Rupert Murdoch’s Sky TV.  Thirty years later, SES operates more than 50 geostationary satellites and is among the world’s leading providers of satellite-based video and data connectivity services.  The government of Luxembourg has retained its minority stake in the company.

With the enactment of its Space Resources Act in 2017, Luxembourg hopes to build on its success in the field of satellite communications and establish itself as a center for what many observers anticipate will be the next chapter in the commercial development of outer space: mining.  Long before scientists confirmed that the Moon, certain types of asteroids, and other celestial bodies contain rich deposits of precious metals and minerals, Hollywood screenwriters had envisioned a future in which humans would turn to space to replenish the Earth’s depleted resources.  As private enterprises continue to play a larger role in space exploration, it is only a matter of time before the commercial extraction of resources from outer space moves from the realm of science fiction to reality.

The most valuable space commodity – at least during the initial stages of commercial development – may not be platinum or other precious metals, but ice.  In addition to being melted to provide drinking water for astronauts, ice can be broken down into its component parts, hydrogen and oxygen.  The former can be converted into fuel, while the latter is essential for human respiration.  If ice mined in space can provide a reliable source of drinkable water, breathable air, and fuel, it would no longer be necessary to transport those essential resources from the Earth, making space exploration and long-term human habitation in space more viable and less costly than they are now.  Moreover, if communications satellites can be refueled in mid-orbit with fuel derived from hydrogen locked in space ice, it would dramatically extend their useful lifespans and significantly reduce the amount of hazardous space debris.

Even as technological advances bring space mining closer to reality, investors in companies seeking to extract resources from outer space will be reluctant to move forward without legal clarity on the ownership of such resources.  It was the United States, not Luxembourg, that took the first step in creating a legal framework for the recognition of property rights in space resources.  On November 25, 2015, Congress enacted the Space Resource Exploration and Utilization Act (SREUA) as part of the larger Space Launch Competitiveness Act.  The SREUA defines a “space resource” as any abiotic resource, including water and minerals, in situ in outer space.  It also defines an “asteroid resource” as a space resource found on or within a single asteroid.

Section 51303 of the SREUA states that any U.S. citizen engaged in the commercial recovery of an asteroid resource or a space resource is entitled “to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”  The term “U.S. citizen” is defined to include 1) an individual who is a citizen of the U.S.; 2) a business entity organized under the laws of the U.S., or the laws of any U.S. state; or 3) a business entity organized under the laws of a foreign jurisdiction, provided that a controlling interest in the business is held by an individual or entity described in 1) or 2) above.  In other words, the SREUA’s recognition of property rights in resources extracted from outer space applies only to individual American citizens, American-based business entities, and the foreign subsidiaries thereof.

Luxembourg became the second country, and the first in Europe, to establish a legal framework for the ownership of resources extracted from outer space with the passage of its Space Resources Act, which entered into force on August 1, 2017.  Like its American counterpart, the Luxembourg statute explicitly recognizes a property interest in resources extracted from outer space.  However, there are two critical difference that set Luxembourg’s Space Resources Act apart.   First, the Luxembourg statute establishes an accreditation and licensing regime for entities seeking to engage in space mining.  Only entities that have applied for and received a license for their space mining activities may assert an ownership interest in the resources extracted.  Second, the Luxembourg statute does not include a nationality clause.  Any corporation, limited partnership or limited liability company established under Luxembourg law, or any European company with a registered office in Luxembourg, may submit an application for accreditation and licensing.  It doesn’t matter who owns or controls the entity submitting the application.  As long as the entity is established under Luxembourg law, or is a European company with a registered office in Luxembourg, it may submit an application.

Luxembourg has a long history of enacting tax loopholes and less burdensome regulatory regimes to entice multinational enterprises to establish foreign subsidiaries within its borders.  Critics refer to these foreign subsidiaries, created solely for the purpose of tax and regulatory arbitrage, as “letterbox companies.”  The Space Resources Act is meant to lure start-ups, not established multinationals.  It draws its inspiration from the seed money the Grand Duchy provided to launch SES, Europe’s first privately-owned satellite operator.  In fact, even before the Space Resources Act entered into force, the government of Luxembourg established a €200 million Space Fund for making strategic investments in fledgling companies that aspire to be space mining pioneers.  To date, the Space Fund has invested in half a dozen mostly American start-ups, including Seattle-based Planetary Resources and San Jose-based Deep Space Industries.  Once they establish subsidiaries in Luxembourg, these start-ups will be able to apply for space mining licenses under the Space Resources Act.

Are Luxembourg’s Space Resources Act and its American counterpart compatible with the multilateral conventions that govern outer space?  No treaty provision directly addresses the private ownership of space resources.  The most relevant provision is article II of the Outer Space Treaty, which states that “[o]uter space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”  Some scholars have interpreted this provision to preclude the private ownership of resources extracted from outer space.  The more widely accepted view is that article II only prohibits nation states from asserting their sovereignty over celestial bodies and does not prevent private parties from claiming ownership of extracted resources.  Supporters of space mining often make an analogy to deep seabed mining, which is permitted under the Law of the Sea Convention, or to fishing boats operating in international waters, which claim ownership of the fish they catch without asserting a property interest in the ocean.

The ownership of extracted resources is by no means the only legal issue that must be resolved for space mining to become a reality.  Private enterprises will be reluctant to begin prospecting in space unless they are reasonably certain that they will have an exclusive right to extract the resources that they discover.  How will companies assert their right to extract resources from a particular celestial body?  Will there be a space mining registry?  If so, who will administer it?  Will companies need to establish a physical presence on a celestial body before they can assert a mining claim?  How will the scope and duration of such claims be determined if nation states cannot assert sovereignty over celestial bodies?  How will companies prevent competitors from interfering with their mining claims?  Neither the Luxembourg Space Resources Act nor its American counterpart address any of these thorny questions, and it is highly unlikely that such matters can be satisfactorily resolved through domestic legislation.

Recognizing the need for international cooperation, the Hague Institute for Global Justice, an independent think tank, established the Hague Working Group on Space Resources in 2014.   The Working Group consists of a geographically diverse collection of stakeholders, including government agencies, non-governmental organizations, academic institutions, and industry representatives.  Its goal is to identify the building blocks for developing an international framework to govern the use of space resources.  This framework will provide a basis for negotiating a new international legal agreement on space resources or, if that is not feasible, for the development of soft law instruments that will serve the same purpose.  The Working Group completed its initial round of meetings on December 18, 2017, and issued this progress report.  The second round of meetings began in January.  The most recent meeting was held at the end of November.  Appropriately enough, it took place in Luxembourg.

 

Suggestions for further reading:

Atossa Araxia Abrahamian, How a Tax Haven Is Leading the Race to Privatize Space, The Guardian (July 15, 2017), https://www.theguardian.com/news/2017/sep/15/luxembourg-tax-haven-privatise-space.

Chelsey Davis & Mark J. Sundahl, The Hague Working Group on Space Resources:  Creating the Legal Building Blocks for a New Industry, 30 Air & Space L 7 (2017).

Rachel Mitchell, Note, Into the Final Frontier:  The Expanse of Space Commercialization, 83 Mo. L. Rev. 429 (2018).

Jinyuan Su, Legality of Unilateral Exploitation of Space Resources Under International Law, 66 Int’l & Comp. L. Q. 991 (2017).

Space Resources Luxembourg (official government website).

Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, 674 Journal Officiel du Grand-Duché de Luxembourg, July 28, 2017, p. 1.

U.S. Space Resource Exploration and Utilization Act, 51 U.S.C. §§51301 et seq.
U.S. Space Launch Competitiveness Act, P.L. 114-90, 129 Stat. 704.

New FCIL Librarian Series: Supporting the International Team Project Program

By Sarah Reis

This is the second post in a series of posts over the next year about adjusting to my new position as a foreign and international law librarian. I started my position at the Pritzker Legal Research Center at Northwestern Pritzker School of Law in February 2018.

At the start of this academic year, I took over as director of the International Team Project (ITP) program at Northwestern Law. In this program, students spend a semester studying the legal system, culture, and political system of another country and then travel to that country to conduct interviews with in-country contacts. Since the program started in 1999, students have conducted research in more than 40 countries.

During this initial first year of taking over this program, my goal is to provide a research guide and an in-class research presentation for each class. The countries of study differ from year to year and are typically not repeated in consecutive years, which is both a challenge and a great learning experience for a new FCIL librarian because it means that I need to quickly familiarize myself with researching the law of various foreign countries.

ITP courses are student driven: students are responsible for developing the syllabus with the approval of a faculty advisor, leading class discussions, setting up interviews with in-country contacts, and arranging travel. Generally, the law school offers one ITP course in the fall with travel occurring over winter break and four or five ITP courses in the spring with travel occurring over spring break.

Students in the fall ITP course will be traveling to Tanzania in a few weeks. Earlier this semester, I created a research guide on researching Tanzanian law and also visited their class to give a research presentation. This presentation provided the students with a basic introduction to international legal research as well as an overview of how to research the law of Tanzania and keep up with current events in that country. I customized the presentation to include hands-on exercises geared toward their research topics.

I have also been brainstorming methods to support the ITP classes beyond a research guide and in-class presentation. Students in an ITP class form small research groups of 3-4 students who work together on a research topic and write a paper together. I am eager to explore possible opportunities for students to publish these papers (as long as their interviewees give consent). Countries of study are selected in the spring prior to the academic year when the courses will be offered. The countries of study for the ITP courses being offered this academic year were set prior to my taking over this role, but I am looking forward to assisting students and faculty advisors with selecting countries and providing resources to help generate research topic ideas for next academic year’s course offerings.

So far, this role has been a helpful way for me to get to know students outside of the classroom and beyond the reference desk because approximately a hundred students participate in the program each year. I held a few trainings for the student team leaders earlier this year and frequently communicate with them on an ongoing basis about logistics pertaining to travel, curriculum, and finance. The program has also been a great way for me to get to know faculty members who I may not otherwise work with often because our library has a liaison system. Additionally, this role has provided me with the opportunity to work with other law school and university departments, including the Registrar, Office of Financial Aid, Alumni Relations, and the Office of Global Safety & Security.

Students in our five spring ITP classes will be traveling to Morocco, Switzerland, Iceland, South Africa, and Argentina. If other law schools have a similar program to this one or offer comparative law classes that require presentations or trainings by FCIL librarians on researching the law of particular foreign countries, I would love to be able to share materials, ideas, and exercises.

Reis - ITP Photo

Comparative Law and the Lies of Donald Trump

By Mary Rumsey

“It’s crazy. Other countries it’s called, ‘I’m sorry, you can’t come in, you have to leave.’ This one, we have judges. If they step on our land we have judges. It’s insane. So we’re going to have to change our whole immigration policy.”[1]  –Trump

“We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits.”[2] –Trump

Our current President makes statements about foreign law the way he talks about many other things—without any basis in fact.

As an exercise in comparative legal research, I spent some time this week looking at foreign law regarding asylum and citizenship. Several years ago, I had researched comparative asylum law to help Professor Stephen Meili, who has written extensively on asylum (and who, incidentally, is exactly the kind of person a human rights advocate should be). At that time, I had to dig fairly deeply to find information on asylum practice, particularly in European countries. I was curious to see if the tools for asylum research had improved.

One great source that I found is the Asylum Information Database (AIDA), a database managed by the European Council on Refugees and Exiles. AIDA contains information on asylum procedures and related issues across 23 countries, including Austria, Belgium, Bulgaria, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, Netherlands, Poland, Portugal, Romania, Sweden, Slovenia, United Kingdom, Switzerland, Serbia, and Turkey. This database would have saved me hours of research; it systematically organizes key information on procedures in each jurisdiction. AIDA also provides statistics on outcomes of asylum applications.

The descriptions of countries’ asylum procedures make clear that the standard practice is to offer an asylum applicant a hearing with an administrative official; next, a rejected applicant can appeal to a board or a court, depending on the jurisdiction. In other words, the US process is nearly identical to that of these major receiving countries.

A much less comprehensive tool is the Kluwer Online International Encyclopaedia of Laws: Migration Law. I’ve never been able to detect a pattern in the countries that each International Encyclopaedia of Laws topic covers, but I appreciate the high quality and thoroughness of the entries.

Trump has also claimed repeatedly that the US is the only country in the world that grants so-called “birthright citizenship.” I suspected that birthright citizenship might have been hashed out in law review articles, so I checked Westlaw. I love it when someone else does (some of) my work for me, and in this case, a 2017 student note informed me that birthright citizenship is recognized in thirty other countries.[3]

If I were doing this research “for real,” I would then find the relevant legislation for each country. One approach would be to use Refworld, the UN High Commissioner for Refugees’ database. Refworld contains citizenship laws for most countries:

RefWorld

I might also use Foreign Law Guide to identify the relevant laws; many of the laws in Refworld don’t have titles in English. Foreign Law Guide identifies what a country’s main citizenship law is in English, so it might be a faster way to figure out what I need.

It wouldn’t take much research to debunk these false claims about asylum and citizenship. The truth is out there.

 

[1] Ian Schwartz, Trump on Immigration Judges: In Other Countries, It’s Called “I’m Sorry, You Can’t Come In, You Have To Leave,” June 26, 2018, https://www.realclearpolitics.com/video/2018/06/26/trump_on_immigration_judges_in_other_countries_its_called_im_sorry_you_cant_come_in_you_have_to_leave.html.

[2] John Wagner, Trump Eyes Order to End Birthright Citizenship. Legal Experts Say That Would Violate Constitution, Chicago Trib., Oct. 30, 2018, https://www.chicagotribune.com/news/nationworld/ct-birthright-citizenship-babies-20181030-story.html.

[3] Katherine Nesler, Note, Resurgence of the Birthright Citizenship Debate, 55 Wash. U. J.L. & Pol’y 215 (2018).

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.

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.