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.

PreConferenceWorkshop

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.

Creating Training Resources for GOALI

By Latia Ward

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Title slide from the GOALI Basic Course Tutorial.

Purpose of GOALI

Global Online Access to Legal Information (GOALI) is a project of the International Labour Organization (ILO) (a United Nations agency) and its partners which include publishers and academic institutions.  One of these partners is Cornell University Law Library where I work as a Research Services Librarian and Diversity Fellow.  As part of my work I have created how-to resources for conducting research with GOALI.

The purpose of GOALI is to facilitate access to legal information for researchers in the Global South.  To that end, GOALI aligns with Goal 16 of the United Nations’ Sustainable Development Goals:  “Promote just, peaceful and inclusive societies.”  Researchers have access to GOALI through their institutions and the Research4Life website lists nations eligible for GOALI.  In their paper entitled Global Online Access to Legal Information (GOALI) – A New Legal Training Resource for Developing Countries, Richelle Van Snellenberg, Unit Head of the ILO Library and Edit Horvàth, User and Outreach Officer of the ILO Library note that GOALI is about more than providing information resources to researchers in the Global South, but also about closing the “knowledge gap in academic research” between nations of wealth and nations of more modest means.  The facilitators of GOALI aim to close the “knowledge gap” through the provision of information resources from authoritative and current sources.  In addition, Van Snellenberg and Horvàth contextualize the implementation of GOALI within the Free Access to Law Movement and its Declaration on Free Access to Law which states that “Public legal information from all countries and international institutions is part of the common heritage of humanity.”  Included within this definition of public legal information are both primary and secondary sources of law.

GOALI is one of the five programs or platforms for information that the Research4Life partnership has produced.  Research4Life is a partnership of WHO, FAO, UNEP, WIPO, ILO, Cornell University, Yale University, the International Association of Scientific, Technical & Medical Publishers, and other international publishers.  The four other platforms for information are Hinari (health research), AGORA (agricultural research), and OARE (environmental research), ARDI (development and innovation research).  GOALI, the newest platform, became available for use on March 6, 2018.

Through GOALI, researchers may access journals, books, databases, and reference sources.  GOALI includes resources from the legal field as well as other fields within the social sciences.  An example of resources provided by GOALI include open access resources which cover a variety of jurisdictions such as African Journals Online (AJOL) and the ILO’s NATLEX database of national labor, social security, and human rights legislation.

Guides for GOALI

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Screenshot from the GOALI Tutorial Video.  Image of computer monitor from Pixaby.

During the spring of 2018, I created a video, tutorials (which consist of slides showing research paths), and exercises on how to use the GOALI database.  My goal in creating the video (for which I included closed captions), the tutorials, and exercises was to provide a step-by-step manual on how to conduct research within GOALI.

When I created the tutorials and exercises for GOALI, I began by familiarizing myself with the platform by searching for resources and reviewing training materials that other information specialists had developed for Research4Life’s AGORA platform.  I reviewed AGORA exercises and modules for the AGORA Portal and Summon Searching to use as templates (although I had to research and create exercises and tutorials specific to GOALI).

The first tutorial and set of exercises are called the GOALI Basic Course.  In the GOALI Basic Course, I explain how to browse the entire GOALI collection, how to locate specific journals, publishers, and subjects, and how to find specific citations.  In the second tutorial and set of exercises, I explain how to do a basic Summon search, refine the search, and conduct an advanced search within GOALI.  In the third tutorial and set of exercises, I explain how to access publishers’ websites from the GOALI platform, identify general features on publishers’ websites, and how to use these features to find articles.  In the GOALI video, I include demonstrations on how to find journals by title, language, and publisher and how to access full-text books.

News about GOALI

The GOALI Launch Event of March 6, 2018 is available on YouTube and includes additional information on why GOALI was created and commentary from Research4Life Partners.  To keep up with current news regarding GOALI, follow #GOALI on Twitter (look for posts related to @R4LPartnership and #Research4Life as there are many posts related to soccer and people named Ali) and visit the ILO’s GOALI website often.

AALL 2019 Recap: The Age of AI: Emerging Regulatory Landscape Around the World

By Taryn Marks

The Age of AI: Emerging Regulatory Landscape Around the World (E1)
Presenters: Laney Zhang, Jenny Gesley, Tariq Ahmad & Nicolas Boring
Coordinator: Tariq Ahmed
Moderator: Nicolas Boring
Monday, July 15, 11:00 AM–12:00 PM

In “The Age of AI: Emerging Regulatory Landscape Around the World,” speakers Laney Zhang, Jenny Gesley, Tariq Ahmad, and Nicolas Boring (all Foreign Law Specialists at the Law Library of Congress) discuss a variety of AI topics and the regulations, policies, and ethics that various governments around the world have started to implement and develop. The program is based on a report that the Library of Congress issued earlier in the year, Regulation of Artificial Intelligence in Selected Jurisdictions. After briefly reviewing the process that they used to research and compile the report, the presenters dove straight into an hour jam-packed with information about artificial intelligence regulation.

First, the panelists reviewed national strategies related to AI regulation in four countries: Canada, Germany, France, and China. Interestingly, Canada was the first country to develop an AI national strategy. For each country, the panelists provided a short overview of the strategy, then discussed some of the concerns and criticisms related to each country’s strategy.

Next came a discussion of data protection and transparency, with the obvious first candidate the European Union’s General Data Protection Regulation. The heavy focus was on automated decision-making within that context. The panelists then discussed two data protection and transparency regimes that had been heavily influenced by the EU’s GDPR, Canada and China. Laney pointed out that China presents an interesting case study in this context because it has simultaneously developed a recommended national standard of data protection while rather flagrantly violating its citizens’ data privacy.

Next, the presenters turned to the laws regarding autonomous vehicles in several countries (Germany, Belgium, France, Canada, and China). Most of these laws focus on either liability for accidents involving autonomous vehicles or regulation of autonomous vehicle tests. The speakers pointed out that most countries use the Society of Automotive Engineers’ five levels of automation, and that most countries’ regulations right now focus on vehicles that fall in levels three and four (conditional automation and high automation).

Last, the speakers reviewed several jurisdiction-specific hot topics. The EU recently developed ethical rules on AI that are currently in draft form and are being tested by the industry; Canada is conducting an algorithmic impact assessment after piloting programs that used AI to review various immigration applications. In France, the government has been using AI to conduct audits, for zoning issues, and in French courts. This latter policy caused a backlash that resulted in the French legislature banning the use of AI for predictive justice. Last, the EU has been reviewing the ethical and legal ramifications behind giving robots the status of legal personhood, creating a big debate within that system about those issues.

Overall, this was an excellent panel that provided detailed substantive information about a variety of laws related to AI, although I wish they had gone into a bit more detail about the process and research methodology used to prepare the report per their third learning objective. As far as reading the report versus watching the panel, I suspect that reading the full report would likely give you the same information as watching the panel; watching the panel would clearly demonstrate the depth of the speakers’ knowledge about these issues. Whichever you choose to do, you will learn a lot.

AALL 2019 Recap: FCIL Advanced Bootcamp

By Meredith Capps

Whilst the morning sessions of the 2019 AALL FCIL “bootcamp” covered broad, general categories of law (foreign, treaty, European Union), with a focus on research in these areas, the afternoon sessions examined several substantive areas of law: international trade, international taxation, and international anti-bribery/corruption law.

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All the speakers of the morning and afternoon sessions of the FCIL Bootcamp Pre-Conference Workshop at AALL 2019. 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.

In “The International Trade Law System Under Fire,” Jennifer Hillman, a professor of practice at Georgetown Law Center and former WTO appellate body member, described the three major areas of international trade:  1) trade in goods, 2) trade in services, and 3) foreign direct investment.  In the area of goods, manufacturing dominates, and trade in goods is traditionally governed by common tariff schedules, organized around type and origin of good.  Trade in services, Hillman explained, is more complicated, as there are no tariffs, and data is difficult to gather. Services cross borders in a number of ways, including individuals crossing borders to utilize or provide a service, or service providers establishing a commercial presence in another jurisdiction.  Foreign direct investment often follows the movement of goods and services.

Both domestic and international law, including a few key conventions, govern international trade:

  1. Convention on the International Sale of Goods.
  2. Bilateral Investment Treaties (BITs)
  3. GATT/WTO frameworks
  4. Intellectual property treaties
  5. Hundreds of regional and bilateral trade agreements

Hillman described the GATT/WTO system in some detail, including key legal principles such as national treatment and most favored nation, and its active dispute resolution system.  She noted that the WTO often coordinates efforts with other international standard-setting organizations, such as the IMF and WIPO.

Hillman went on to review the Trump administration’s major initiatives with respect to trade, why they represent significant departures from prior policy, and their likely illegality under international law.  She discussed the current system’s failures, but emphasized that the world economy is now too interconnected to depart from a rules-based system of trade.

Next, Lilian V. Faulhaber, also of Georgetown, discussed digital taxation, i.e. efforts to tax the “digital economy.”  Traditionally, the nation where an entity is headquartered or maintains a physical presence taxed corporate income/revenue, and “transfer pricing” accounted for the value of tangible assets.  Intangible assets such as data are difficult to value, and the existing tax system does not well account for the realities of this current economy.  Some see efforts to tax the digital economy as targeting profitable U.S. corporations, and indeed, some such taxes are named after the likes of Amazon, Google, and Facebook.

Faulhaber described initial international efforts to address the digital economy, the Base Erosion and Profit Sharing (BEPS) Project (2013-2015), and Tax Force on the Digital Economy (TDFE).  Feeling that these efforts have not gone far enough, nations including the UK, Australia, India, and France have enacted domestic legislation designed to tax entities that may not have a physical presence in their borders, but derive income from sales or services in the country.  The U.S. has also responded to concerns that intangibles are being inappropriately valued with the “GILTI” a worldwide minimum tax of about 15%, applied to global intangible low tax income, and the “BEAT” tax on related party payments.  These provide a disincentive for U.S. corporations to move offshore to low tax jurisdictions such as Ireland.

The OECD digital tax work program is currently examining coordinated solutions including a user contribution tax, marketing intangible tax, and “significant economic presence” test, and is targeting consensus in 2020.  The most effective OECD measures, Faulhaber says, are those that reward nations who opt in to the system.  Faulhaber predicts that we will not return to the traditional model of taxation, but is unsure whether cooperation or unilateral measures will predominate.

Finally, Heidi-Frostestad Kuehl of NIU College of Law discussed international anti-corruption and anti-bribery frameworks and resources.  She noted that corruption and bribery implicate several other areas of law, including labor, ethics, environment, torts, contracts, human rights and criminal law.  Several persistent issues underlie corrupt practices including poverty, slavery, and global supply chain forces.  Major domestic laws governing corruption include the U.S.’s Foreign Corrupt Practices Act, which has established the U.S. as a leader in anti-bribery enforcement, and the more recent UK Bribery Act.  Challenges in developing national enforcement frameworks include investigative scope, language, cultural differences, whistleblower protection, privacy and data protection laws, labor protections, ethical rules, non-disclosure agreement standards, undeveloped case law, mens rea standards, the role of judiciary, and the regulatory environment.  OECD and UN conventions provide international frameworks, but these do not have the same hard law effects as domestic legislation.

Kuehl then described several useful research tools, beginning with the Global Compliance website, which organizes content by jurisdiction, Transparency International, and the Stanford University FCPA siteOECD country reports on implementation of the OECD anti-bribery convention are another useful tool.  Domestically, researchers may turn to the Department of Justice and Securities and Exchange Commission sites listing enforcement actions.  Kuehl recommends researchers begin by searching for relevant treaties, then implementing national legislation, national regulations and judicial decisions, and relevant cultural norms.