From the Reference Desk: Cyber Operations and International Law

By Jonathan Pratter

A student had a question: If State A doxes State B for hacking State C, what would be the result under international law?  The student was in the law school class, International Law of Cyber Conflict.  My immediate response was, “That is a good question. Let me get back to you.”  Every reference librarian needs a fall-back response like this.  We can’t know everything immediately.  The question was substantive, but since the student was asking a librarian, I understood that she wanted to know what resources there are that would help answer the question.

Code in green and white on a computer screen

Photo by ThisIsEngineering on Pexels.com

The first step was to orient myself to the question: What is doxing?  There is a pretty good Wikipedia entry on doxing.  This raises another question: Can you trust Wikipedia?  As it happens, there is a Wikipedia entry on this point.  It says explicitly, “Wikipedia is not a reliable source.  Wikipedia can be edited by anyone at any time.  This means that any information it contains at any particular time could be vandalism, a work in progress, or just plain wrong.”  Nevertheless, I am prepared to use Wikipedia based on a critical factor of reliability: internal evidence.  If the entry is well-drafted, contains references, and has other indicia of reliability, then I am prepared to use it, at least for the purpose of orienting myself to a question.

Lexico.com is a language site, a good one for definitions.  A collaboration between Dictionary.com and Oxford University Press, it includes both a US English dictionary and a UK English dictionary, as well as a Spanish-English dictionary and grammars for both English and Spanish.  Lexico.com defines doxing as the publication of private or identifying information on the internet about a particular individual, typically with malicious intent.  I would take a broader approach and define doxing as the malicious publication on the internet of sensitive information about an individual, an organization, or (why not?) about a state.

The law review literature has a small number of articles about doxing.  A good example is Julia M. McAllister, The Doxing Dilemma: Seeking a Remedy for the Malicious Publication of Personal Information, 85 Fordham L. Rev 2451 (2017).  You won’t find any articles on doxing done by or about states.  We law reference librarians know that you have to go into the law-related literature, especially when the subject is international.  International law and international relations overlap so much that it could be tantamount to negligence to fail to search in the latter when dealing with an issue of the former.  An extended search produces an article published on SSRN and in the Harvard National Security Journal, Doxfare: Politically Motivated Leaks and the Future of the Norm on Non-Intervention in the Era of Weaponized Information by Ido Kilovaty.  Note that the author is affiliated with US law schools, but the article appeared in the international law-related literature.  This is as close as I could get to a source on doxing by states.

The broader context here is cyber operations in general and international law.  States use computers and computer networks to act in the international sphere.  Does international law govern in cyberspace?  The generally accepted answer is yes.  The field is pretty new and international law has to adapt to operate in it.  General public international law applies to state conduct in cyberspace and some of the issues are fundamental.  Sovereignty, jurisdiction, state responsibility and attribution are examples.

Students in a course like International Law of Cyber Conflict may not realize that the foundations of public international law are critically relevant.  Where do you send them for a grounding in international law?  The Max Planck Encyclopedia of Public International Law is a great source for this.  Confusingly, Oxford University Press has chosen to integrate the encyclopedia with another one, the Max Planck Encyclopedia of International Procedural Law.  In this connection, the question arises, what is the best one-volume textbook of public international law?  There are several one-volume introductions to the field.  My strong preference lies with James Crawford’s Brownlie’s Principles of Public International Law, 9th ed. (Oxford University Press, 2019).  It is authoritative, current and full of references to the primary sources and further reading.

Two secondary sources that have to be mentioned are the 2020 monograph Cyber Operations and International Law by François Delerue (Cambridge University Press) and the Talinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press, 2017).  The upshot of the question about doxing by states is Tarlton Law Library’s new research guide on cyber operations and international law.

Researching International Women’s Rights in the Time of COVID-19

By Alyssa Thurston

Various international and regional instruments address sex-based discrimination or guarantee women rights related to personal liberty and security, equality, family life, health, religion, property, education, employment, political participation, and more. Already fragile or not prioritized in a number of places, many of these rights have become even more jeopardized due to the substantial worldwide social, political, and economic disruption caused by the COVID-19 pandemic. Recent media reports have highlighted, for example, the “shadow pandemic” of higher rates of domestic violence resulting from required sheltering-in-place; impacts on access to sexual and reproductive health services; and increased financial inequality between men and women due to unprecedented rates of job loss or reductions, particularly in industries that tend to have higher percentages of female workers. On April 9, the United Nations published a policy brief, “The Impact of COVID-19 on Women”, underscoring these and other concerns in discussing how “the pandemic is deepening existing inequalities, exposing vulnerabilities in social, political and economic systems which are in term amplifying the impacts of the pandemic”. Consequently, “even the limited gains made in the past decades” on gender equality “are at risk of being rolled back”.

Against this backdrop, this blog post highlights selected resources for researching international women’s rights. It will emphasize online resources given the current imposition of social distancing guidelines and shelter-in-place orders in many jurisdictions.

photo of globe on top of books

Photo by Polina Zimmerman on Pexels.com

For those just getting started, an introductory source, such as the UN Human Rights Office of the High Commissioner publication Women’s Rights are Human Rights, provides a helpful overview of the underlying legal basics and central concepts. Another resource is the subscription-based Max Planck Encyclopedia of International Law, which offers a number of relevant articles found by browsing the subject menu under “Human rights à Rights holders à Women, rights”.

Speciality legal research guides on this topic include International Women’s Human Rights and Humanitarian Law by the University of Toronto Bora Laskin Law Library and Women’s Human Rights by the International Justice Resource Center. There are also guides that focus on narrower issues within international women’s rights, such as the Pace Law School Library’s guide on Domestic Violence Law: International Law. Conversely, research guides covering broader areas that cover international women’s rights, such as international human rights law, international humanitarian law, and international criminal law, can also provide a good (albeit more general) starting point. GlobaLex and the American Society of International Law are just two examples of quality sources for the latter type of guide. Do not overlook non-legal research guides, such as the Georgia Tech Library’s guide on Women and International Affairs or the University at Buffalo Libraries International Human Rights of Women guide.

As an alternative to a research guide and depending on your area of interest, refer to the websites of relevant IGOs or NGOs. These sites are often particularly valuable as current awareness resources, and many also publish statistics and research reports or provide links to relevant primary law such as cases and treaties. For example: UN Women, the United Nations organization “dedicated to gender equality and the empowerment of women”, maintains a digital library of UN publications, multimedia, and documents, and its Guiding Documents page summarizes and links to international agreements such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its optional protocol. The Office of the United Nations High Commissioner for Human Rights has a page devoted to CEDAW, as well as several other resources on women’s rights listed on its Issues page. Other potential agencies and organizations to track include the United Nations Population Fund, the World Economic Forum, Amnesty International, Human Rights Watch, Equality Now, and the International Center for Research on Women. Or, you could begin with an organization working within specific regions or on particular women’s rights issues. For instance, if you are interested in researching women’s rights in Asia, consult the websites of the Asia Pacific Forum and International Women’s Rights Action Watch Asia Pacific. The Center for Reproductive Rights is a global organization focused on women’s reproductive health and rights, and Stop Violence Against Women works to end global domestic violence, sexual harassment and assault, and human trafficking.

There are also free online databases that partially or primarily contain primary and secondary sources relevant to international women’s rights.  RefWorld, a website of the UN High Commissioner for Refugees, maintains a database of country and policy reports, case law, and other documents published by governments and IGOs on issues such as human trafficking and gender-based violence. The Cornell Center for Women, Justice, Economy & Technology hosts the Women & Justice Collection on Cornell Law School’s Legal Information Institute website. This collection “provides access to international, regional, and domestic caselaw and legislation from around the world related to promoting gender justice and ending gender-based violence.”

As the UN writes:

“COVID-19 is not only a challenge for global health systems, but also a test of our human spirit. Recovery must lead to a more equal world that is more resilient to future crises…. It is crucial that all national responses place women and girls – their inclusion, representation, rights, social and economic outcomes, equality and protection – at their centre if they are to have the necessary impacts. This is not just about rectifying long-standing inequalities but also about building a more just and resilient world.”

 

IALL 2019 Recap: Mary Crock, Refugee Law in Australia: The Protection of Migrant Children

By Rachel Green

Professor Mary Crock, Professor of Public Law at the University of Sydney Law School, taught “Refugee Law in Australia: The Protection of Migrant Children” at the IALL Annual Course on October 29, 2019.  Prof. Crock has co-authored two books relevant to this topic: Protecting Migrant Children: In Search of Best Practice (2018) and The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? (2017).

The overarching takeaway was just how vulnerable migrant children are throughout the world.  According to 2015 UNICEF statistics, children accounted for 31% of the world’s population but 51% of the global refugee population.  The number of child refugees doubled from 2005 to 2015, particularly between 2011 to 2015 (likely due to the Syrian crisis).CROCK2019IALLPresentation - slide 1

Significantly, refugees do not typically begin by attempting international border crossing.  Instead, refugees fleeing their communities usually attempt internal migration first.  These “Internally Displaced Persons” (IDPs) numbered 41 million in 2015 (up from 28 million in 2010); 17 million (41%) were children.  It is only when IDPs are unable to find safety anywhere within their home countries that they risk seeking refuge across international lines.

Unaccompanied asylum seeking children are especially vulnerable to exploitation and abuse.  According to the UN Office on Drugs and Crime’s 2016 TIP Report, children represented 25-30% of trafficking victims (second to women).  The research underlying this report showed that conflict can drive trafficking, because traffickers “leverage [refugees’] desperation to deceive them into exploitation.”  Research also suggests that children are at greatest risk when moving along routes where they have to pay different smugglers for different legs of the journey.

Prof. Crock outlined international law agreements that are especially relevant to migrant children.  The International Covenant on Economic, Social, and Cultural Rights, Article 12, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”  The Convention on the Rights of the Child (CRC) offers one of the strongest protections for children and is the most subscribed of all human rights conventions, although Prof. Crock noted that the U.S. has not ratified it, and many countries are not complying with it.  Traditional human rights treaties, as well as the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1995), also play a significant role.

The CRC is critically important for understanding the rights of migrant children.  Of particular note, the CRC does not contain derogation clauses for emergencies, thus ensuring that migrant children retain their rights under all circumstances.  Some of the most pertinent articles are: Article 3, establishing that “best interests of the child shall be a primary consideration”; Article 19, requiring that State Parties protect children “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse . . .”; Article 22, requiring “appropriate protection and humanitarian assistance” to refugee (or refugee status-seeking) children; and Article 38, requiring State Parties to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”

Unfortunately, while mechanisms exist to protect children in theory, in reality, there are major gaps.  In Australia, an interest in deterrence has often prevailed over the need to protect children.  Examples include the use of prolonged detention onshore, the establishment of detention centers offshore, forced separation of children from their families, and the denial of family reunification after separation.

Prof. Crock emphasized the important role lawyers play, as they will always find a way to fight, even looking outside of immigration law.  For example, lawyers have made tort law claims on behalf of immigrants in detention camps.

Overall, this session was extremely informative, and Prof. Crock was a compelling speaker.  The subject of migrant children is particularly meaningful to me, as I do pro bono work on behalf of minors seeking legal status in the United States.  I wanted to be able to share this session with other FCIL members because I believe that it is a subject that resonates universally.  While the stories and information were difficult to hear at times, I was inspired by Prof. Crock’s positive attitude and hopefulness for change.  The lecture slides are available on the IALL website.

 

From the Reference Desk: Who Are the Most Highly Qualified Publicists?

By Jonathan Pratter

In spite of its deficiencies (for example, it has nothing to say about international soft law or about unilateral acts), Article 38(1) of the Statute of the International Court of Justice is accepted as the classic statement of the sources of public international law.  Two sources are not true sources at all, but are described as “subsidiary means for the determination of rules of law.”  These are judicial decisions and “the teachings of the most highly qualified publicists of the various nations.”  “Subsidiary means” is misleading.  The French version of the Statute says “moyen auxiliaire”, which comes closer to reality.  Today, international judicial and quasi-judicial fora have proliferated.  It is simply an old-fashioned aversion to case law as a source of law that prevents their judicial decisions from being treated as true sources of international law.  In the case of the teachings of the most highly qualified publicists the distinction makes more sense.  A writer on international law does not have formal lawmaking authority.  Nevertheless, writers on international law can be very influential.  Their work can affect the course of development of norms in international law.

This raises the question of who are the most highly qualified publicists.  The question gains salience in the context of the Jessup International Moot Court Competition.  Participants need to know what kind of secondary authority can legitimately be cited before the International Court of Justice.  Two recent articles throw a lot of light on the question:  The Influence of Teachings of Publicists on the Development of International Law by Sandesh Sivakumaran, a professor at the University of Nottingham, published in 66 International and Comparative Law Quarterly 1 (2017) and Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice by Sondre Torp Helmerson, a professor at the University of Tromsø in Norway, published in 30 European Journal of International Law 509 (2019).

The first article categorizes publicists into state-empowered entities, such as the International Law Commission of the UN, expert groups, such as the International Law Association or the Institut de Droit International, and the broad category described as the “ordinary” publicist.  The article goes on to consider what constitutes teachings and arrives at the categories of digests, treatises and textbooks, monographs and edited collections, commentaries, journal articles, and even blog posts.  This catholic approach to who is a publicist and what are their teachings is surely correct, as an example makes clear.  Let’s say that during your research you encounter a student note in a United States student-edited law review, not necessarily from one of the most prestigious law schools.  In your view, the article is clearly on point, well written, and makes sound arguments, perhaps even innovative ones.  Should you or may you cite it?  In my view the answer is clearly yes.  In fact, academic integrity and the avoidance of plagiarism probably demand that you cite the article.  Now I concede that something turns on the nature of the audience.  If you are drafting a memorial before the International Court of Justice, you may have to think twice.

This is where the second article comes into play.  The author carries out a detailed analysis of the ICJ’s citation to publicists.  For example, a table in the article is the list of the top ten most-cited writers.  At the head of the pack is Shabtai Rosenne, but this is misleading.  Rosenne is the author of the leading treatise on the practice and procedure of the Court.  It may give us pause that all ten of the most-cited writers are old white men.

The article identifies several factors that go into the determination of what makes a most highly qualified publicist.  These are expertise, quality of the work, official position of the author, and agreement among multiple writers.  These factors are no surprise.  It would be desirable if going forward the ICJ cited from a more diverse range of publicists.  After all, the precise wording of article 38(1) is “the most highly qualified publicists of the various nations” (my emphasis).  The image for this post is of Hersch Lauterpacht, who came second in the list of the most-cited publicists.

From the Reference Desk: Carbon Trading Data Sources

By Amy Flick

“I’m looking for data on carbon trading and cap-and-trade, preferably with graphs. I’m doing a paper on California’s cap-and-trade program, and I’m looking for data on international carbon trading programs for a comparison.”

The reference department at MacMillan Law Library gets an increasing number of requests for data in recent years. Some law libraries have added a specialist librarian or social sciences expert to support empirical research, but at Emory we rely on the expertise of the Data Librarian in the Emory Center for Digital Scholarship, part of the main Woodruff Library, to assist our faculty and students with complex data and statistics projects. I am not qualified, at all, to do empirical analysis. I went to law school because I was told there would be no math – and then I went into bankruptcy law. Nicholas Kristof is right, I should have taken a class on statistics.

I am also only barely familiar with carbon trading.

But we do get statistical reference questions, so I will see if I can find a publication with tables, or a likely database, for the student to use for his project, leaving the interpretation of the data up to him. I’m with him on wanting graphs; if I’m looking at data, I want some visual interpretation.

California’s Air Resources Board has data on its Cap-and-Trade Program, with publications on market transfers, offset credits issued, and compliance reports. It even has video presentations on using its compliance data. The student was hoping to find graphs to include in his project, and publications like California Greenhouse Gas Emissions for 2000 to 2017  summarize years of data with multiple graphs.

California’s Cap-and-Trade program is also a revenue source, so data is also available in the California Legislative Analyst’s Office 2019-20 Budget for Natural Resources and Environmental Protection, which includes Cap-and-Trade revenue tables and graphs.

The student mentioned Canada as a possible jurisdiction for a comparison. Canada as a whole isn’t the simplest choice for him to work with, although Ontario or Quebec might be, since they also have cap-and-trade systems, linked to California’s. Canadian provinces have their own carbon pricing systems, with a federal carbon pricing system for provinces that haven’t enacted one or that don’t meet federal benchmarks. The publication Pan-Canadian Framework on Clean Growth and Climate Change was helpful for explaining the Canadian system, and it includes some data and graphs. More current data is available in the Annual Reports on Canada’s Climate Plan and other greenhouse gas reports.

Another possibility for comparison is the European Union. Its Emissions Trading System is a Cap-and-Trade system operating in all EU countries plus Iceland, Liechtenstein, and Norway. The European Commission’s climate action pages include tables and graphs on emissions monitoring and progress, auction revenues, and individual member state emission profiles. The European Environment Agency has downloadable data on emissions and allowances. Getting away from EU sources, Business Insider even tracks CO2 European Emission Allowances as a commodities market.

There are some good sources for comparative research with data from multiple countries. The Canadian and EU reports led me to the National Communications to the secretariat of the UN Framework Convention on Climate Change. These include Greenhouse Gas Emissions data and projections, along with summaries of initiatives for emissions reduction.

The World Bank has a Carbon Pricing Dashboard on regional and national initiatives, with graphs, types of initiatives (carbon tax or emissions trading system), and revenue, with data starting at 1990. It includes California’s Cap-and-Trade system with many other systems for a possible comparison. The World Bank also has data on CO2 emissions. And its report on State and Trends of Carbon Pricing 2019 is filled with maps, graphs, and tables.

The International Carbon Action Partnership also has a 2019 Status Report on Worldwide Emissions Trading with summaries by country (and for the U.S., Canada, and China, by state or province) that include descriptions of ETS systems and infographics. ICAP also has an ETS Allowance Price Explorer. The ICAP ETS Map can be used to find factsheets by jurisdiction, including emissions, GHG reduction targets, carbon price, caps, and other information.

The statistical and data sources we found are complex, but there is data to be found on carbon trading systems. I found it all overwhelming, but the student was confident that he could find the data points he needed for a comparison with California and recommendations on alternative systems.

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.”

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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.

Book Review: The Impact of Climate Change Mitigation on Indigenous and Forest Communities

ImpactofClimateChangeBy Sue Silverman

Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+  (Cambridge University Press, 2017) 415 p. Hardcover $147.00

REDD+ is a global program that encourages countries to reduce emissions from deforestation and forest degradation through financial incentives. In The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+,  the authors, Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, closely examine the structure, frameworks and safeguards of REDD+, and how REDD+ has developed and operates alongside other international and national legal regimes and norms, with the primary objective of assessing its impact upon the legal interests of indigenous peoples and forest dependent communities.[1]

The book is divided into four parts: Part I discusses REDD+ within the international context and explores its interaction with other international legal regimes and norms. Part II looks at how REDD+ interacts with indigenous communities at the national level, and Part III examines these regime interactions within the contexts of three countries: Malaysia, Papua New Guinea, and Vanuatu.  Part III also analyzes climate change mitigation programs undertaken in Australia in order to draw lessons that may be applied to REDD+ programs.  Part IV summarizes the authors’ findings and conclusions and offers recommendations for moving forward and additional scholarship.

Part I begins by characterizing REDD+ as an emerging international legal regime and providing an overview of the laws and decision-making procedures established by the UNFCCC, the Paris Agreement and the Kyoto Protocol that are associated with REDD+.  The authors then discuss the key participants including the United Nations Program on Reducing Emissions from Deforestation and Forest Degradation (UN-REDD), the Forest Carbon Partnership Facility (FCPF) based within the World Bank Group, and other nonstate actors such as civil society groups, academics, the private sector and policy makers who support the functional goals of REDD+.  The following chapters examine how REDD+ interacts and conflicts with other international legal regimes such as the Convention on Biological Diversity, the Convention on the International Trade in Endangered Species of Flora and Fauna, the International Labor Organization, Convention No. 169, the CBD Nagoya Protocol, and the UN Declaration on the Rights of Indigenous Peoples, as well as norms established by customary international law.  The authors suggest that these horizontal regime interactions at the international level, along with vertical interactions between international and domestic legal regimes, impact the rights and interests of indigenous peoples.[2]

Part II focuses on REDD+’s interaction with sovereign states and indigenous peoples.  Here, the tangible conflicts presented by REDD+ programs come into focus as the authors unpack the intricacies and challenges of aligning REDD+ and the benefits conferred by REDD+ with indigenous property rights under statutory and customary law, indigenous identity law, and the normative obligation of obtaining free prior and informed consent (FPIC).  Because FPIC is integral to REDD+’s relationship with indigenous and forest dwelling communities and how those communities’ rights and livelihoods are impacted by REDD+ projects, a significant portion of Part II is devoted to examining this norm and how it is applied by UN-REDD and the World Bank’s FCPF, the two main funders of REDD+.  Part II also focuses heavily on tenure rights and REDD+’s emphasis on “secure and clear” tenure, a policy which favors those who currently possess land.[3] Ultimately, despite its intentions to include indigenous and forest-dependent communities within decision-making processes and benefit-sharing, those whose property rights are not recognized under national law or who are on the short end of the balance of power equation vis-à-vis the state or third parties with possessory or usufructuary rights, are inevitably left out of any benefit sharing or FPIC processes under REDD+.

Part III examines how the vertical and horizontal regime interactions discussed in Parts I and II play out in three country examples: Malaysia, Papua New Guinea, and Vanuatu, and looks at the successes and shortcomings of climate change mitigation projects undertaken in Australia in how they account for the rights of indigenous communities. To help understand the local context within which REDD+ operates, the authors describe the history of land law and forest resources law, as well as the laws determining the recognition of the rights of indigenous peoples and local forest communities in each country. From these examples, the authors suggest REDD+ may draw lessons moving forward in how it might resolve conflicts between indigenous rights and the goals of climate change mitigation.

In their conclusion, the authors emphasize that “the unresolved legal claims of indigenous peoples are deeply context-specific and must be interrogated at the local level.” [4] For REDD+ to successfully promote the rights and livelihoods of indigenous populations while pursuing its goals of climate change mitigation, it must provide guidance in resolving domestic disputes regarding indigenous claims.[5]  In so doing, “attention to historic injustice, dispossession, the non-recognition of indigenous law, and the social and economic marginalization of indigenous and forest communities is essential.” [6]

With its detailed exploration of how REDD+ touches upon myriad issues of international and domestic law  including customary law, property and resource rights, and indigenous identity, this book is an excellent resource for academics, policy makers and attorneys exploring ways in which to balance the goals of climate change mitigation programs with the rights and interests of indigenous peoples, and how to incorporate indigenous communities into REDD+ or other climate change mitigation projects.  For example, the authors suggest that indigenous and local community carbon rights may be better framed as resource rights instead of rights tied to tenure, in order to promote the receipt of benefits among groups who are unable to establish “secure and clear” tenure, or who are dispossessed of their traditional land as a result of the formalization of tenure under national laws.[7]  The authors also describe opportunities for indigenous involvement in climate change mitigation projects, for example the savanna-burning activities based on traditional Aboriginal land burning practices in Australia.[8]

As the authors point out, “REDD+ is not a straightforward win-win approach to climate change mitigation,” but at the same time, “just and effective climate change mitigation must incorporate the perspectives of those who are affected by it and not merely those who have the resources to address the problem (and may be implicated in the causes of that problem).” Thus “unwieldy and complex” is just as it should be.[9]

[1] Maureen F. Tehan, Lee C. Godden, Margaret A. Young, and Kirsty A. Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+  (Cambridge University Press, 2017)

[2] Id. at 83.

[3] Id. at 130.

[4] Id. at 347.

[5] Id.

[6] Id. at 348.

[7] Id. at

[8] Id. at 324

[9] Id. at 352.

Sojourn in Poland (Part 2): MEP Elections & the Demise of the Spitzenkandidat

By Julienne Grant

This is the second in a three-part series.

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Outdoor Cafés in Kraków’s Central Square

Picking up where I left off in my earlier post, I arrived in Kraków in a somewhat frazzled state, but eagerly joined some fellow Badgers (a.k.a. University of Wisconsin alumni) and began to wander. Kraków, unlike Warsaw, was not bombed during World War II, and its extraordinary medieval square is still intact. The Rynek Główny (Central Square) dates back to the thirteenth century and is flanked by St. Mary’s Basilica, the Town Hall Tower, and the Sukiennice (Cloth Hall), which was once a major commercial hub in eastern Europe. The interior perimeter of the square is also home to some lovely cafés, including E. Wedel, which serves what has to be some of the best hot chocolate on the planet.

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  Wedel Chocolate Shop in Kraków’s Central Square

Coincidentally, elections for representatives in the EU Parliament (MEPs) took place the weekend that I arrived in Poland (between May 23 and 26, 2019). The polls were open across the country on Sunday, May 26, although I didn’t see much evidence of it since campaign advertising is banned for twenty-four hours before the polls even open (“election silence”). Poles selected fifty-two MEPs, including one spot “on reserve” in the event that the UK leaves the EU; the overall number of MEPs will drop from 751 to 705 if Boris Johnson has his way. There is a nice overview posted on the EU Parliament’s website of how elections for MEPs work in each of the twenty-eight EU member states and how Brexit would ultimately affect each country’s quantitative representation.

Along with Polish-language television stations, I had access at my hotel to five stations in Italian (go figure) and two in English. After ruling out “Ballando con le Stelle” (“Dancing with the Stars”) for election coverage, I selected Euronews as my best option for information. Euronews is partially owned by NBCUniversal, and is all Europe, all the time. The Euronews website is also saturated with information, and free daily email updates (recommended) are available. I also watched a bit of Porta a Porta (Door to Door) on RAI1, which is probably Italy’s most well-known evening talk show. (I find it to be quite entertaining even though I can’t understand all of it.)

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Porta a Porta Coverage of the MEP and Italian National Elections

EU election protocols indeed vary from country to country and are mostly governed by national electoral laws; some EU member states actually have compulsory voting (Belgium, Bulgaria, Luxembourg, Cyprus, and Greece). It’s no secret, though, that MEP elections in general have not had stellar turnouts in the past; in 2014, the voter turnout across Europe was 42.61 percent. The 2019 elections had a final turnout of 50.62 percent—the highest in twenty years. In Poland, 45.68 percent went to the polls compared to only 23.83 percent in 2014. The European Parliament (EP) website has an excellent summary of the election results by country. The higher turnout this year might be attributed, at least in part, to the EU’s aggressive campaign to get out the vote, although concerns about climate change and immigration likely had much to do with it as well.

The EP is unusual in that MEPs belong to and sit in political groups; these can be single pan-European political parties or coalitions of Europarties and/or national parties and/or individual MEPs. EP political groups need at least twenty-five members, representing at least seven EU countries, to be officially recognized. During the 2014–2019 term, there were eight recognized political groups, plus a small cadre of Non-Inscrits (NIs), MEPs who did not sit with a recognized EP group. In case you’re interested (I was), MEPs earn a pre-tax monthly salary of €8,757.70 (about $9,600).

The EP political groups are bound by ideology, including left, right, and center, as well as topical emphasis, such as the environment, immigration, and Euroskepticism. There is a helpful chart of the various policy positions linked to the different EP groups posted on the Europe Elects website. Some of the groups have the same names as the dominant political party within its membership. For example, the European People’s Party (EPP) parliamentary group is also the name of the European political party with which its members identity. Under EU law, only registered European political parties are eligible for funding and are able to campaign during the MEP elections.

Throughout the television coverage of the elections, it was clear that the centrist EU parties were taking a beating—these being the center-right EPP and the center-left S&D (Progressive Alliance of Socialists and Democrats). The EPP is a pro-Europe party, while the S&D touts itself as a progressive party advancing social justice principles. Gaining ground in this round of elections were the far right (Identity and Democracy, formerly ENF); liberals (Renew Europe, formerly ALDE); and the environmentally conscious (Greens/EFA). Identity and Democracy is a new right-wing alliance that includes supporters of France’s Marine Le Pen and Italy’s Matteo Salvini. (Note that Salvini has been sidelined somewhat at the national level as an unlikely and surprising coalition in Italy formed a new government last week.)

Most commentators expected the EU to follow the Spitzenkandidat process post-election to determine the EU Commission’s next president. Spitzenkandidat means “lead candidate” in German and was used in 2014 to select Jean-Claude Juncker (Luxembourg) as commission president. Per the Spitzenkandidat protocol, before the MEP elections, European parties select a candidate they would nominate for the commission presidency if they were able to carve out a majority in parliament. Prior to the May elections, Manfred Weber a German member of the EPP, was widely regarded as the frontrunner for the EU Commission presidency.

The Spitzenkandidat process, however, was not used this time around. After what the New York Times characterized as “grueling and bitter negotiations” in early July, the newly seated MEPs (Ninth Legislature) confirmed EPP member Ursula von der Leyen as the next president of the commission (by a vote of 383 to 327). Von der Leyen, a close ally of Angela Merkel, will be the first woman to hold the post and the first German serving in the role in fifty years. She will also be dogged by a parliamentary investigation still ongoing in Germany about mismanagement in the defense ministry during her tenure there. Von der Leyen will take over from Jean-Claude Juncker at the end of October on the same day that the UK is due to break from the EU, with or without a Brexit deal. For a discussion of the demise of the Spitzenkandidat process, see “Who Killed the Spitzenkandidat?” (July 8, 2019) on POLITICO.

The newly formed EP has seven political groups, along with fifty-seven Non-Inscrits. The groups are the EPP (182 reps); S&D (154 reps); Renew Europe (108 reps); Greens/EFA (74 reps); Identity and Democracy (73 reps); ECR (62 reps); and GUE/NGL (41 reps). The parliament’s new president is David Maria Sassoli, an Italian member of the S&D group. If the UK exits the EU on October 31, the EP will be reduced by the UK’s allotted seventy-three seats. Forty-six of those seats will be reserved for future enlargement, and twenty-seven will be reallocated (primarily benefitting France and Spain) for a total of 705. For pre-Brexit and post-Brexit scenarios, see “The European Parliament after Brexit: What Would It Look Like?

The EP returns to work this month; the plenary session will be held the week of September 16 in Strasbourg. With the environmentally friendly Greens having a much larger presence (52 reps in the last legislature, 74 currently), and the ever-changing Brexit scenarios, the next several months in the EP (and other EU institutions) could be lively to say the least. To follow EP developments in English, check out Euronews, EUobserver, the European Law blog, and EP News.

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 Euronews Coverage of the MEP Elections

In the final part of this series, I will focus on my time spent in Poland, including my experience at the Auschwitz-Birkenau Memorial and Museum.

Food and the Intangible Cultural Heritage: A Mini-Research Guide

By Jonathan Pratter

Food is embedded in culture.  Or rather, food helps to constitute a culture.  Sticking to my own neck of the woods, you only have to think of Texas BBQ or Tex-Mex cooking to see the close link between food and culture.  The term “foodways” captures this link.  This was crystallized for me when I saw that the “pizzaiuolo” – the distinctively Neapolitan art of making pizza – in 2017 had been inscribed in the list of the intangible cultural heritage of humanity.  I decided to research the question of food as part of the intangible cultural heritage and this mini-research guide is the result.

The key primary source is the Convention for the Safeguarding of the Intangible Cultural Heritage, which was adopted in 2003 by the General Conference of UNESCO, the United Nations Educational, Scientific and Cultural Organization, headquartered in Paris.  A first research question that arises is how one cites the Convention.  There is a good online text of the Convention at the UNESCO website (more about this later), but that is not the preferred citation, although the Bluebook does permit citation to the website of an intergovernmental organization. (See rule 21.4.5(c)).  The Director-General of UNESCO is the depositary of the Convention, so you can’t use Multilateral Treaties Deposited with the Secretary-General at the United Nations Treaty Collection.  On the theory that the Convention is published in the United Nations Treaty Series, I did a title search using keywords from the name of the Convention in the United Nations Treaty Series Online at the United Nations Treaty Collection.  Sure enough, the Convention comes up and with a little more work, you can go to the English text in PDF at 2368 U.N.T.S. 35.

A second research question that comes up is identifying which states are parties to the Convention and how many parties there are.  The UNESCO website maintains an up-to-date list of parties to the Convention.  From this list we learn that there are a remarkable 178 parties to the Convention (as of May 2019).  With this kind of participation in the Convention, it is especially regrettable that the U.S. is not a party.  Part of the problem is the fraught relationship between the U.S. and UNESCO itself.  The U.S. attitude to the Convention is ably summarized in an article in the journal ethnologies.

We have mentioned the UNESCO website, and in fact it is excellent.  In the area of Culture there is a sector devoted to Intangible Cultural Heritage.  Among a wealth of information, there are some highlights.  One is the 2018 edition in pdf of Basic Texts on the Convention.  The centerpiece of the Convention are the Lists.  There are two of these: the Representative List of the Intangible Cultural Heritage of Humanity and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding.  There is a separate Register of Good Safeguarding Practices.  On the UNESCO website the Lists can be browsed and searched.  Experience shows that searching on terms like “food” or “food preparation” does not return comprehensive results, so it is better to browse the entries in the Lists, which can be done in reverse chronological order.  Interesting recent entries for food include Dolma making and sharing tradition (Azerbaijan 2017), Beer culture in Belgium (2016), and Oshi Pavlav, a traditional meal and its social and cultural contexts in Tajikistan (2016).IntangibleCulturalHeritage

Secondary sources on point are not plentiful.  A recent issue (25:4, November 2018) of the International Journal of Cultural Property is devoted to food as an element of the intangible cultural heritage.  The anthropological context is found in the journal Food & Foodways (Taylor & Francis 1985-).  There is a Commentary on the 2003 UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage by Janet Blake (Institute of Art and Law 2006).  Also worthy of note is The Routledge Companion to Intangible Cultural Heritage (2017).  This is an area of international legal research that literally will make your mouth water.

AALL 2019 Recap: FCIL Basics Bootcamp

By Dinah Minkoff

bootcamp.JPGI had the opportunity to attend the Preconference Workshop: FCIL Bootcamp: Basic Training at Georgetown University’s law school.  The morning session promised to provide information on FCIL resources and how to use them with a focus on foreign law, treaties, and EU law.  It delivered on its promise.  Georgetown Law librarians Mabel Shaw, Charles Bjok, and Heather Casey presented.

Mabel Shaw presented “An Introduction to Foreign Legal Research.”  She has been an FCIL librarian at Georgetown, where she is now the Head of International & Foreign Law, for over 18 years.  The presentation began by breaking down the different legal systems intrepid researchers will encounter: Common, Civil, Religious, Customary, and Mixed. As a researcher you need to know what type of legal system you are researching so that you understand not just where to look for information but if that information exists.  Interesting point of fact: outside of the U.S., not all government information is copyright free.  During her presentation, Mabel also allayed a common concern of the foreign legal researcher: you don’t have to speak every language you are researching. In addition to translations of legislation and law, there are myriad translation tools out there like dictionaries and Google Translate.  Use your evaluation skills to determine the reliability of the translation itself.  Look to the date of translation, the site hosting the translation, and whether it was done by a person or AI.

Heather Casey presented “An Introduction to Treaty Research.”  She has been an FCIL librarian for 10 years and teaches Research Skills in International & Comparative Law with Charles Bjork.  Heather’s presentation began by explaining the differences between private and public international law and the various documents that are referred to under the broad category of “treaties” (e.g. conventions, protocols, accords, declarations, charters, and Memorandum of Understanding).  Heather then outlined the best places to begin your research when the U.S. is a party to the treaty (Spoiler Alert: Treaties in Force, the U.S. State Department’s website, and HeinOnline).   After an overview of the treaty ratification process, it was on to researching treaties when the U.S. is not a party.  Good places to search include Multilateral Treaties Deposited with the Secretary-General at the UN, Regional Treaty Collections, and Foreign Ministry websites.  The presentation also reviewed important websites to keep in mind when conducting treaty research such as the EU, Council of Europe, African Union, Organization of American States, and World Trade Organization.  And because we were inside a law school, the session wrapped up with a hypothetical where participants got to put their newly honed FCIL research skills to the test.

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Heather Casey presenting on how to conduct treaty research.

Finally, Charles Bjok presented on “An Introduction to Researching the Law of the European Union.” He works closely with Georgetown’s sizeable international LLM writing and research program and teaches Research Skills in International & Comparative Law with Heather Casey. This presentation had a two-fold benefit for me: it provided me a great refresher on the topic and confirmed for me that my own presentation on the topic did not have any glaring gaps.  The presentation began with an introduction to the EU, including a brief history, foundational documents, and its current incarnation. The presentation also reviewed the EU’s Seven Institutions and the hierarchy of EU law. What is fantastic about EU research is that despite the numerous institutions within the EU and its various types of law (treaties, legislative acts, and case law), EUR-Lex, the official website of the EU, is a portal to almost everything you will be looking for.  The website is updated daily, and contains some texts dating back to 1951.  The documents on EUR-Lex are freely accessible and available in the 24 official languages of the EU.  One caveat: although case law is available in on EUR-Lex, using CURIA, the CJEU’s website, may prove more beneficial.

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The full slate of speakers from the full day FCIL Bootcamp.  From left to right: Heather Casey, Georgetown University Law Library; Prof. Heidi Frostestad Kuehl, Northern Illinois University School of Law; Prof. Jennifer Hillman, Georgetown University Law Center; Mabel Shaw, Georgetown University Law Library; Prof. Lilian Faulhaber, Georgetown University Law Center; and Charles Bjork, Georgetown University Law Library.  

I left the morning session happily on information overload and energized to respond to the future FCIL questions I receive in my role as Global Law Librarian at LA Law Library.  Feel free to reach out with questions about the bootcamp or foreign law generally. I can be reached at dminkoff@lalawlibrary.org.

For insights into the wonderful resources shared by the speakers, please visit https://guides.ll.georgetown.edu/home/foreign-law.

For the afternoon session of the pre-conference workshop, FCIL Bootcamp: Advanced, see this recap.