ITA-ASIL 2018 Recap: Diversity and Inclusion in International Arbitration Conference

By Rachael Smith

The Diversity and Inclusion in International Arbitration half-day conference presented by the Institute for Transnational Arbitration (ITA) Academic Council, and the American Society of International Law (ASIL) took place on April 4, 2018.  This conference was the first of its kind to examine the legitimacy of international arbitration in the context of the lack of diversity of practitioners selected to participate in international arbitration proceedings.  Does the current selection of practitioners reflect the wide range of regional practices; and do they reflect the pool of practitioners?  If not, what are some practical and actionable steps those who participate can take, in this very specialized field, within the larger field of global commerce?

As noted by the introductory speakers, Abby Cohen Smutny (Chair, ITA Advisory Board, White & Case LLP, Washington, D.C. and Lucinda A. Low (President, ASIL, Steptoe & Johnson LLP, Washington, D.C.), that this conference was taking place was itself an important step, as it moves the discussion of this issue beyond anecdotal concerns.  The approach of this conference was to first have the keynote speaker outline the issues; then to review academic scholarly work on this topic in order to understand why and how the lack of diversity is a problem; and finally, but importantly, develop some practical solutions.

The first question of why diversity is important was addressed by the keynote speaker Lucy F. Reed (Professor and Director, Centre for International Law, National University of Singapore, Singapore).  The answer at its most simple is because the world of international arbitration is global in its application and the world is diverse.  The second question is whether there is diversity; and again, the answer simply put is no.  Alternatively, a more nuanced answer to the same question is not as much as there should be.  To understand the lack of diversity in the larger context, what is the equation that leads to this result of low diversity?

The equation in this case is: caution + habit + bias = low diversity.

“Caution,” in this context, stems from the nature of international arbitration cases.  International arbitration cases are generally of some magnitude in terms of the amounts in controversy potentially at stake, cannot be appealed, and are relatively easily and quickly enforceable.  Parties involved are reasonable in wanting to entrust the arbitral process to those with experience.  Part of the lack of experienced practitioners stems from the history of international arbitration.  Originally the field was not well developed or even seen as a real field due to the view that this field was both very risky and soft (i.e. the law was governed less by the application of law and more by industry practices and commercial considerations–coupled without any surety of success).  There were few who were practicing in this field.  Historically, the pool was small and generally was made up of white, Western men.  This is important, because it leads into the next element in the equation, which is “Habit”.

As matter of habit, one tends to select those they already know and who are a reflection of themselves.  Times have changed for the field of international arbitration.  Bilateral Investment Treaties (BITs) have become more common, and specialized tribunals are not so unheard of (e.g., the Iran-United States Claims Tribunal).  In addition, the number of women who have entered the legal field has changed, yet this fact is not reflected in the selection of arbitrators.  One step that has been taken to address lack of diversity is the Equal Representation in Arbitration (ERA) Pledge.  One of the elements of the ERA pledge is to take an extra five minutes when thinking of that initial list of potential arbitrators – as there are women and non-European practitioners with solid experience, but who may not be as well known and who could be added to the list of names.  Of course, just a name included in a list does not equal diversity.

Another step taken to address lack of diversity being taken by the International Chamber of Commerce (ICC) is to release of all the names of the arbitrators involved in a proceeding, with the identifying information about the case removed.  This is enough information to get an overview of the expertise of those arbitrators involved in the proceedings.  This has resulted in slightly better numbers of women when an institute chooses an arbitrator.  Nonetheless, when a party makes a choice of an arbitrator, women are still underrepresented.  However, the pledge, the five-minute rule, and the release of names are some steps that help remove the issue of habit that is a hindrance without a point.

The last element in the equation is “Bias”.  Biases can be both conscious and unconscious.  Biases stem from what is familiar, especially when it is unconscious, so there is a stronger likelihood of selecting those who are most like oneself.  In international arbitration proceedings, many in the position of making the key choices tend to be white Western men.  Avoiding these biases of selecting those most like oneself requires affirmative research about the pool of arbitrators and public information more readily available about them.

A final point concerns the challenges of the field, as a whole.  There can often be many qualified applicants for few positions.  Newcomers need to know that persistence, patience, and realistic expectations are key to opportunities in this field.  She concluded with the counter equation “Inclusion + Patience + Persistence = Better diversity.”

Next, Conference Commentator, Gonzalo Flores (Deputy Secretary-General, International Centre for Settlement of Investment Disputes (ICSID), Washington, D.C.), started with some history of the lack of women in international arbitration.  Initially there was the lack of women in the field of law, then the lack of discussion of gender issues, and then a lack of transparency of the number of women in international arbitration.  Today, the discussion has expanded to include a combination of issues such as the inclusion of women, newcomers, and non-Anglo/Europeans with solid experience in international arbitration.  One of the steps to address this issue is an example from the International Centre for Settlement of Investment Disputes (ICSID).  ICSID has created a database that allows one to search arbitrators, conciliators, and ad hoc committee members.  ICSID also publishes the statistics of caseloads for each year.  From these reports, it is now easier to track how much the situation is changing.

 

Come back tomorrow for Part II of our recap of the ITA-ASIL Diversity and Inclusion in International Arbitration Conference.

ASIL 2018 Recap: International Law and the Global Governance of Migration

By Rachael Smith

Professor Alexander Aleinikoff  (Zolberg Institute on Migration and Mobility, The New School, New York) started with a brief statement about the progress of the United Nations High Commissioner for Refugees (UNHCR).  He mentioned the seventy years of practice, and billions of dollars spent on resettlement, along with a legal regime for refugees, as signs of progress.  However, what he found troubling was the phenomenon of a “second exile”; that as per established refugee law, the first nation a refugee arrives in is where they must stay.  The legal options for migration to another nation are limited to none, and going back to their country of origin is not a viable option.  While there are legal arguments and policy reasoning for this, these do not address the possible negative impact on both refugees and the nations.  For example, the first country may be ill equipped for resettlement, e.g. Syrian refugees in Turkey.

The UN General Assembly has begun to address this weakness as part of their overall Global Compact on Refugees.  They have drafted for release mid to late this year a way for nations to share the responsibility as one way to address this issue.  Among the possibilities would be special passports that would allow refugees the possibility of travel to resettle.  In addition, there would be something akin to a “full faith and credit” of accepting refugees as part of economic development with other countries, such as in the case of Bilateral Investment Treaties (BITs).  This would balance the questions of national sovereignty in accepting refugees with being a second or third choice for the placement of refugees.  This would also allow those who have jobs and can self-support the ability to travel as a way to encourage self-sufficiency and economic development.  His last point was how this could create a more coherent regional approach to the resettlement of refugees, for not only the European Union nations, but could be used as a model for other Western nations.

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The panel for the “international Law and the Global Governance of Migration” session at the ASIL 2018 Annual Meeting.

Alice Thomas (Refugees International, Washington, DC) discussed how climate change could be both a major factor and one of many factors in migration.  In addition, climate change can be both a slow and a sudden process – for example rising sea levels and small islands or extreme weather that produces floods and landslides. Under the current legal framework, many people affected by climate change are classified as either economic migrants or internally displaced people – but not as refugees.  This has meant the approach has been an event-by-event system (e.g. in the United States the Temporary Protected Status granted to Haitians).  Currently, things are slowly changing but the focus has been more on adapting in place – how can nations help their own citizens stay in place (e.g. support to build homes that can withstand storm surges).

Michelle Leighton of the International Labor Organization (ILO) started her discussion with a description of the current conversation around immigration–that for many nations the general nature has been toxic.  She noted that most of the dialog is one of fear and an “us versus them” as a way to frame the debate.

She went on to say that the immigration debate is at a crossroads.  Nations can choose the path of seeing immigration as a benefit.  One way to do this is to focus on the immigration recruitment process for employment.  This is one way to combat issues like global human trafficking and the exploitation of workers.  This would also allow for better knowledge of the national and international employment recruitment processes.  This could mean better collection of data, along with a better matching of skill sets to the labor market needs.  This system could also foster better cross-border cooperation.  In addition, this could help navigate the sovereignty question by emphasizing that this is voluntary. She ended by noting how this would also create a path to social justice, as this issue is global in nature.  The ILO, with its 187 members, represents an already voluntary legal framework and can work in partnership with the UN.

Jean-Christophe Dumont (World Bank) started with how migration can be framed as part of broader issues of criminal justice and crime control.  The use of coercion and exploitation in the migration process has been linked to organized crime and terrorism– especially as they target the most vulnerable in a community, basically ensuring no reports will be made to a nation’s authorities.

Guest worker programs are one way to combat this issue.  Through them, the focus can expand to both skilled and unskilled labor.  This is important as unskilled labor is less regulated than the skilled labor market, which tends to be more highly regulated.  One current issue is that there is no one centralized institution to help monitor and regulate guest worker programs.  Depending on the nation, the regulatory framework may not even be present for local labor markets.  In addition, the current immigration and labor market debates and discussions are not about protections of workers.

One of the vulnerabilities of workers is the use of debt in the employment recruitment process as a way to exploit workers.  Debtors are vulnerable to a wide range of exploitation–both of themselves and potentially family members (either with them or in their home country).  Debtors are also seen as voluntary in their participation–despite the fact that their debt is of such enormity that it will likely never be paid off.

Jean-Christophe Dumont ended by discussing how the Organisation for Economic Co-operation and Development (OECD) has set trends for countries to co-operate by addressing immigration for the long term.  This would allow for better migration policies as well as innovation-–such as the use of Block Chain as a way to verify the identity of refugees.

ASIL 2018 Recap: Legal Education and Professional Training in the Culture(s) of International Law

By Gabriela Femenia

On the final morning of the 2018 ASIL Annual Meeting, Anthea Roberts (Australian National University) moderated a nuanced panel discussion of the significance of global differences in legal education and professional training of international lawyers, considering their evolution over time and their impact on the practice and efficacy of international law, from both Western- and non-Western perspectives. The panel comprised Bryant Garth (UC Irvine School of Law), Lucy Reed (National University of Singapore Faculty of Law), Natalie Reid (Debevoise & Plimpton, LLP), and Carole Silver (Northwestern University Pritzker School of Law).

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Panel for the Legal Education and Professional Training in the Culture(s) of International Law at ASIL’s 2018 annual meeting.

The first point of discussion was legal education practice and the channels through which people in different countries come to the practice of law. Anthea Roberts presented some initial thoughts based on her recent book, Is International Law International? (2017), observing that legal education used to be a primarily national endeavor, with a small amount of movement at the graduate levels, but we are now seeing more people crossing borders to study law. While the majority still do so for the LLM degree, there is increasing study at the first-degree level. Roberts made two general points about the flow of students. First, the flow is asymmetrical: students go from the periphery to the core, and from non-western regions to the west, with most returning home to practice and bringing with them both ideas and materials. Second, there are clearly different cores for legal study (principally Anglophone, Francophone, and Russophone), and there are distinctive patterns of students from certain countries going to certain countries. Lucy Reed and Natalie Reid shared their own experiences both as former law students following similar trajectories to the core to obtain the necessary credentials for desired careers, as well as educators working with such students. Reed noted that there is a guided, funded outflow of students from China to the West in all fields, with China particularly interested in bringing back students trained in international economic law and law of the sea. There is no equivalent outflow from the U.S. of students sent abroad or investment in training lawyers in those fields, and it remains difficult to convince law faculty in the U.S. and Singapore that international law should be integrated into instruction. As a result, Asia is more present in international law practice than the U.S., and Reed suggested the consequence of this disparity is a more level but not necessarily more forward-looking playing field in international law.

Carole Silver observed that in some senses law education is wonderfully internationalized, but the program that most students attend, the LLM, is somewhat segregate as a result of being a one-year program, most of which do not allow students to participate in 1L courses, clinics, or moot courts.  LLMs do benefit from being part of diverse international classes, but there are limits on interacting with U.S. students, and there is often pushback from those students to hearing about how things are done in the LLMs’ home countries. As a result, more international students are enrolling in JD programs, and in those cases the flows are not from the periphery to the core. A quarter of foreign JD students go from Canada to the U.S., and 60% of all foreign JDs are from Canada, China, and Korea. Those students face some trouble integrating because they’re not American, and they tend to also distance themselves from LLMs because they’re not “international” students. They also put more effort into course selection, generally choosing business concentrations because transactional practice is easier to break into than litigation. Silver concluded that while there is a huge inflow of students to the U.S., there is also segmentation and social isolation at the micro level.

Bryant Garth reminded those present that, historically, the flow of students reflected colonial relationships, e.g. Commonwealth students getting to know each other in London, with a more recent substitution of the U.S. for those colonial relationships.  U.S.-style law schools are also now being established around the world, so the flow of students is no longer necessarily from one country to another, while there is increasing international competition for students, both in order to impart values and to obtain the tuition revenue.

The panelists then discussed the challenges faced by graduates returning to their home countries from the core. Reed pointed out that international law books are rarely available in Asia in the necessary languages, and many are still by the former colonial masters. Libraries are insufficient in many areas. New academics must also work alongside older colleagues who are not interested in changing their teaching, while at the same time facing pressure to publish in global journals in order to secure tenure, which prevents them from engaging with their local communities. Garth added that publication in international journals is difficult if the young professor does not buy into U.S.-dominated paradigms, further limiting the inclusion of local perspectives. Reid observed that the influence of U.S. perspectives plays out in practice as well; U.S. cases and sources are cited even if they are not the best examples, in order to resonate with an American audience, and most sources will be in English even if they’re not U.S. sources..

Anthea Roberts asked the panelists what could be done to address these challenges in legal education. Silver suggested intentionally requiring international students to offer specific contributions in class. Several panelists offered the Jessup competition as a model for bringing together students to develop a common language and toolkit.

Garth asked the panel to what extent the field of international law had been affected by the globalization of law firms. Reid noted that it depended on the field, e.g. in international investment there has been a significant impact because the multinational firms guide the development of the law by picking the arbitrators who then create it. Reed added that cross-border transactions were more affected by big firm mergers than international law was.

In the brief time remaining, audience members solicited suggestions from the panel on how professors can improve international law classes.

ASIL 2018 Recap: The Use of Force Against Non-State Actors

By Mariana Newman

At 11:00 a.m. on Thursday, April 15, 2018, a panel of international law professionals discussed states’ use of defensive force against non-state actors, specifically in the context of the counter-ISIL military campaign in Iraq and Syria. Monica Hakimi, Professor of Law at the University of Michigan School of Law, moderated the panel, which consisted of Katrina Cooper, the Deputy Head of Mission at the Australian Embassy in Washington; Paul McKell, Legal Director at the United Kingdom Foreign & Commonwealth Office; Asif Amin, the Head of International Law Development at the Ministry of Defence for the Kingdom of Denmark; and Patrick Luna, the Legal Advisor for the Permanent Mission of Brazil to the United Nations.

Prof. Hakimi asked each panelist to articulate his or her state’s position on the use of force against non-state actors. Each country’s representative expressed their position on the question generally and with respect to ISIL in Syria and Iraq.

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The Use of Force Against Non-State Actors panel at ASIL 2018.

Australia

Katrina Cooper outlined Australia’s position: The “inherent” right to self-defense that is part of Article 51 of the UN Charter applies to attacks by non-state actors, but the defending state can take action against the non-state actor only, not the surrounding state. She explained that the case of using force against ISIL in Iraq was more straightforward legally since Iraq had consented to the use of force by asking other countries to help it defend itself. The case for the use of force against ISIL in Syria was “less clear-cut,” although Australia did conclude that it was legally justified. Cooper also mentioned that the “unwilling or unable” standard applied in the case of Syria.

United Kingdom

Next, Paul McKell stated the United Kingdom’s position: you can invoke the doctrine of self-defense to use force against non-state actors. McKell alluded to the history of the Caroline affair, which involved non-state actors, to argue that this is nothing new. Article 51 mentions an inherent right of individual or collective self-defense, and, according to McKell, it does not require a state to passively await an attack. An attack must be imminent, however, for a state to be able to take action in self-defense. McKell did concede that ideally you deal with non-state actors via law enforcement and the criminal justice system, but that that is not always possible. Like Cooper, McKell talked about the differences between the decision to use force in Iraq versus in Syria. In Iraq, the use of force was based on consent, whereas in Syria, the United Kingdom believed there was “a direct link between the presence and activities of ISIL in Syria and the ongoing attacks on Iraq.” They also determined that the Assad regime was “unwilling or unable to prevent these attacks.” One example that McKell mentioned of the UK’s use of force against non-state actors was the precision strike against UK citizen and ISIL member Reyaad Khan.

Denmark

Denmark’s representative, Asif Amin, explained that Denmark has four exceptions to a prohibition on the use of force: consent, self-defense, the authorization of a UN Security Council Resolution, and humanitarian interventions. In 2014, Denmark was part of the Iraq coalition and, like Australia and the UK, the legal basis for Denmark’s involvement was consent due to the invitation of the Iraqi government. Amin then read from Denmark’s Article 51 letter to the UN Security Council. According to Amin, Denmark is constantly evaluating the situation in Syria.

Brazil

Patrick Luna provided the counterpoint to the other three panelists’ reasoning, offering Brazil’s alternative view. According to Luna, Article 51 is an exception to Article 2(4) of the UN Charter’s prohibition on the use of force: they must be read hierarchically. Luna’s reading of the two articles has lead him to the conclusion that Article 51’s right of self-defense only applies to the use of force against state actors. Luna cited three International Court of Justice opinions, the Nicaragua case, the Wall advisory opinion, and the Congo v. Uganda opinion, all of which he said address self-defense in the context of state actors. Luna further argued that nothing in the travaux préparatoires of the UN Charter leads him to believe that self-defense applies to non-state actors. Luna argued that in order to use force in self-defense, a state needs to identify if the attack can be attributed to a state, otherwise must get consent of the state to act or seek a UN Security Council Chapter VII resolution.

Luna expressed some of Brazil’s concerns with an interpretation of Article 51 that permits the use of force in self-defense against non-state actors. He sees a potentially negative effect to using the term “non-state actors” as a substitute for “terrorists,” since “non-state actors” is a much broader concept. He also sees a risk to multilateralism: why search for multilateral solutions if force against non-state actors is permissible?

Responses

Cooper, McKell, and Amin then responded to Luna’s points. As to Luna’s point about Article 2(4) and Article 51 having to be read hierarchically, Cooper argued that because self-defense is described as an “inherent right” in Article 51, it therefore predates the UN Charter. She commented on the change in the nature and participants in this conflict, saying that “ISIL is a very different actor and the way it acts and mimics a state is new.”  Amin, in his follow-up remarks, agreed that the law needs to “develop to face new threats and new realities.”

As to Luna’s comments on ICJ jurisprudence, McKell replied that the UK position is that there is nothing in the ICJ jurisprudence that prohibits states taking the action they have.

Conclusion

This was an fascinating discussion from legal advisors who were intimately involved in the practical application of this pressing question of international law. At one point toward the end of the panel, Luna expressed the wish that they were “having this discussion at the UN!”

ASIL 2018 Recap: Building Victim-Led Coalitions in the Pursuit of Accountability

By Amy Flick

One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.

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Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.

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Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.

Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.

Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.

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Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril.  The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.

 

ASIL 2018 Recap: International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery

By Jessica Pierucci

The Friday, April 6, 2018 ASIL Annual Meeting panel International Law as a Tool in the Fight against IUU Fishing and Seafood Slavery provided a look at illegal, unreported, and unregulated (IUU) fishing and seafood slavery issues from the perspectives of esteemed panelists who engage with these topics from different vantage points. Nick Renzler, Foley Hoag LLP, moderated the panel.

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Judge Tomas Heidar of the International Tribunal for the Law of the Sea speaks at the ASIL Annual Meeting on Friday, April 6, 2018.


Judge’s Perspective: Background on IUU Fishing

Judge Tomas Heidar, a member of the International Tribunal for the Law of the Sea (ITLOS) since 2014, provided background on IUU fishing issues. Judge Heidar explained there is no universally accepted definition of IUU fishing, but the most widely adopted definition is contained in the IPOA-IUU, 2001. IPOA-IUU contains measures aimed to deter and eliminate IUU fishing through state cooperation.

One way to combat IUU fishing is port state measures blocking vessels engaged in IUU fishing from unloading at a state’s docks. If widely adopted, this can make IUU fishing not profitable by forcing IUU fishing vessels to travel great distances to find a dock that will accept them. This is one of the general purposes of the 2009 FAO Port State Measures Agreement. The agreement broadly defines terms, such as “fishing related activities,” to encourage expansive enforcement. States were initially slow to ratify so the agreement only entered into force in 2016 once 25 parties had ratified, but since entry into force ratification has sped up and there are now 53 parties.

One agreement to keep an eye on is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Negotiations just concluded in November 2017 and signature is expected in 2018.

Academic Perspective: ITLOS 2015 Advisory Opinion

Nilufer Oral, Istanbul Bilgi University Law Faculty and United Nations International Law Commission, focused on a major recent development in IUU fishing, the ITLOS 2015 Advisory Opinion. This is a landmark opinion for a couple reasons.

First, this is the first time the full tribunal has issued an advisory opinion.

Second, the opinion clarifies flag state responsibilities under UNCLOS, in particular explaining that flag states must meet due diligence obligations in exercising control over the ships flying their flag. IUU fishing is not specifically mentioned in UNCLOS, but the advisory opinion seeks to include IUU fishing under UNCLOS, although some commentators believe more detail would have been helpful on this point.

While this is a landmark opinion, it is only an advisory opinion. Oral believes it’s time to bring a contentious case to more powerfully use international adjudication to combat IUU fishing.

State Perspective

Alexa Cole, U.S. NOAA, Office of General Counsel, Enforcement Section, spoke about IUU fishing from the state perspective. NOAA is fortunate to have thirteen prosecutors working in this area. This relatively high number allows NOAA to attend Regional Fisheries Management Organizations (RFMO) meetings and be directly engaged in negotiating enforcement measures. This, in turn, better allows NOAA to engage in enforcement. RFMO goals include encouraging management of relevant species; creating monitoring, control, and surveillance (MCS) measures, such as expanding high seas boarding and inspection; and creating compliance monitoring schemes.

In the big picture, Cole believes major international agreements play an important role setting global standards, but they suffer from being tough to negotiate. This challenge leads them to become stale as they are not renegotiated to address new issues. For example, UNCLOS’s discussion of “hot pursuit” does not take into account new technology. As a result, new issues need to be addressed in alternate ways. For example, the Western & Central Pacific Fisheries Commission (WCPFC) coordinates sharing vessel monitoring data, which allows sharing on hot pursuit and other issues.

Corporate Perspective

Anbinh Phan, Director of Global Government Affairs, Walmart Corporation, provided the corporate perspective. Walmart takes a multi-stakeholder approach. The company is a Seafood Task Force member and committed to only selling seafood from sources certified by a third party by 2025. They also supported an International Justice Mission study. Looking to the future they hope to work toward preventing forced labor in the first place, use technology to disrupt the industry, and see the need for international and national law to create solutions.

Litigator Perspective

Agnieszka Fryszman, Cohen Milstein, LLP, provided the litigator’s perspective. As background, Fryszman pointed to the ILO Caught at Sea Report. Fryszman shared frustrations with how trafficking aboard seafood vessels may not be discovered at U.S. ports because of U.S. laws prohibiting those on board from exiting the boat.

Fryszman recently litigated Sorihin and Abdul Fatah v. Thoai Van Nguyen dba Sea Queen II, Case No. 16-5422, in the U.S. District Court for the Northern District of California. In this case two Indonesian men jumped ship in San Francisco, California to escape and then sued the ship’s captain for horrible working conditions. They settled the case and included in the settlement requirements that the captain establish a code of conduct and distribute a help card to employees to prevent similar incidents. The Associated Press is following up on implementation and Fryszman is waiting to hear if the captain has implemented the settlement requirements.

Fryszman noted one of the major challenges with this litigation is jurisdictional. They were only able to assert jurisdiction over the ship’s captain because he’s from San Jose, California, even though there were many other culpable parties. Fryszman sees jurisdiction as a major barrier to successful seafood slavery litigation.

Fryszman located just two other related cases: one in New Zealand and one in Thailand.

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An audience member asks a question to the panel at the International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery session at ASIL 2018.

Closing

In Q&A, one attendee asked if more international agreements are needed. The panelists generally agreed there isn’t a strong need for more international agreements on this issue right now. Instead they want a focus on domestically implementing the agreements already in place to effectively impose liability. It appears the next frontier for IUU fishing and seafood slavery is finding the best ways to use courts to implement the law in these areas.

ASIL 2018 Recap: Rule-Making By International Organizations

By Caitlin Hunter

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Rule-Making By International Organizations, on Friday, April 6th, explored the key role specialized international organizations play in creating highly influential soft law. A wide variety of international organizations create rules, including:

1. The International Labour Organization (ILO): Tomi Kohiyama (Deputy Legal Adviser, ILO) described how the ILO sets labor standards that protect the basic rights of workers, including their 1998 Declaration on Fundamental Principles and Rights at Work and 2008 Declaration on Social Justice for a Fair Globalization. The ILO standards are routinely incorporated into trade treaties. Additionally, the ILO supervises member states’ reports on their compliance with labor standards. José Alvarez (Professor, NYU Law) said that ILO was also a pioneer in its efforts to challenge state centrality, regulating private organizations and individuals directly through documents such as the Maritime Labor Convention.

2. The International Organization for Standardization (ISO): Mary Saunders (Vice-President for Government Relations and Public Policy, American National Standards Institute) explained that the ISO has developed over 2000 standards, including anti-bribery and social responsibility standards. National standards bodies from over 161 countries participate in creating standards that are designed to function in both mature and developing economies.

3. The World Health Organization (WHO): Both Alvarez and Nicola Bonucci (Director for Legal Affairs, Organisation for Economic Cooperation and Development) noted the influence of WHO guidelines. Although WHO guidelines are not directly binding, they are routinely cited in both national and international adjudication. In particular, WHO guidelines and amicus briefs played a key role in obtaining judgments against Phillip Morris. Fearing a similar negative impact, the sugar industry strenuously attempted to initiate a backlash against WHO sugar guidelines.

4. The Organisation for Economic Co-operation and Development and the International Finance Corporation, which provide guidance on economic and social development issues that include agriculture, the environment, and gender equality.

5. The Basel Committee, which sets widely followed banking standards.

6. The United Nations High Commissioner for Refugees, whose refugee status determinations are binding in all but name.

The panelists made the following points:

1. The distinction between soft and hard law is weakening. Hard law is softening, as treaties increasingly provide non-binding guidelines and allow states to achieve the substantial equivalent of obligations. On the other hand, soft law is hardening due to the increasing organizational obsession with benchmarking. It’s no longer accurate to claim that courts and police are necessary to enforce international law. Monitoring, reporting requirements, peer pressure, and naming and shaming are often (although admittedly not always) effective in ensuring compliance. When advising client or seeking to establish international norms, attorneys must consider both hard and soft law.

2. Inclusiveness is vital to maintaining legitimacy. Many traditional international organizations are not necessarily effective at consulting and informing stakeholders and decisions may be dominated by the stakeholders with the loudest voices. In contrast, ISO strives to include all materially interested affected parties from all of its member states. Standards bodies from developing countries make up the vast majority of ISO members and serve as a key source of ideas. Of course, inclusiveness is not always easy and Saunders acknowledged that some countries were better at getting stakeholder input than others. Likewise, Kohiyama noted that ILO members have a mandate to collaborate but sometimes lack the political will.

3. Responsiveness to change is also vital to maintaining legitimacy. ISO reviews its standards every five years to ensure that they are current. The ILO recently reformed its constitution and standing orders to better reflect the modern world, abrogating obsolete standards for jobs that have not existed since the early 1900s.

4. Coordination between soft law organizations is not always easy. Alvarez noted that international organizations have differing paths and goals and often attempt to defend their turf. He also pointed out that many organizations that create soft law ignore soft norms intended to regulate international organizations. In contrast, Bonucci defended the importance of competition, emphasizing that the free market of ideas creates a wide variety of options.

Clearly, the details of soft law rule-making are continually evolving. Just as clearly, however, soft law is taking on an increasingly important role in international law.