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

By Rachael SmithInt_lComArb_Wordle_Word_Cloud__on_Navy__2016

This is Part II of a two-part series.

Next up at the conference was Defining the Issues, with panelist Professor Anna Spain Bradley, Melinda N. Hodgson, and Professor Anne Marie Whitesell, moderated by Professor Won Kidane.

Professor Anna Spain Bradley (Assistant Vice Provost for Faculty Development and Diversity, University of Colorado Law School, Boulder, Colorado) started with the question, what is the meaning of diversity?  To answer this question, she began with a series of questions.  First, she asked “why is diversity challenging?” Then she questioned why historically people of color are not part of the creation of the arbitration process; instead, men from mainly Anglo-European nations are representing the world.  There is also the issue of party selection, which means that arbitrators’ appointments are not permanent, so each panel creation is a new start.  She then moved on to “why diversity is important?” noting briefly that it is good for business as it cultivates innovation, adds legitimacy to the process, and reflects more broadly the norms throughout the world.  Next she asked, “what do arbitrators look like?”–a hard question to answer as it cannot be answered without talking about identity.  Identity is created in context; after all, who we are is not about discrete boxes, but rather an intersectionality of many categories.  In addition, identity is a legal definition in the United States.

Taking all of the above questions into account, she inquired about “how . . . these factors interact with decision making and implicit biases.”  Professor Bradley examines these issues through the lens of neuroscience.  Especially in the case if implicit bias, the link between fear response, as processed by the amygdala, and the emotions linked with decisions has been clearly documented.  The most familiar example is the Project Implicit, commonly known as the Harvard implicit bias test.  In this context, it is fair to say there are no humans, and no arbitrators, who are truly color or gender blind.  However, there are steps that one can take to relearn this cognitive process to allow for a better decision-making process.  The test, which is open and free on-line, can be used as a tool to enhance the decision-making process and to examine the role power plays in the decision-making process.

Next Professor Anne Marie Whitesell (Professor and Director of International Dispute Resolution Programs, Georgetown University Law Center, Washington, D.C.) addressed the role institutions play in international arbitration diversity.  She started with a brief history of the International Chamber of Commerce (ICC), noting key dates and developments – see the ICC’s website for details of the history.  As part of the historical context, the standard by which those who practiced in the field were judged by was if “he was of good sense and sound judgment.”  Currently the ICC does collect the percentage of women who are selected as arbitrators.  She noted that while institutions like the ICC can and do take the lead in ensuring diversity, they are limited by the requirements of the case – i.e. each case requires a certain set of skills and expertise.  However, when women are not selected, the impact on their future ability to gain opportunities, which will allow them to develop and diversify their skills in international arbitration, are still more adversely impacted; without opportunities to demonstrate their skills and expertise, they cannot gain the needed experience.  Lastly, she noted that while institutions, like the ICC, are an important part of the change, they are not the only actors and that other parties need to address this issue.

Mélinda N. Hodgson (Foley Hoag LLP, New York) reviewed the role of the practitioner.  At its most simple, they need their clients to act on their advice.  Clients will only do so if they trust the experience, qualifications, and substantive and subject expertise of their attorneys, along with their record of accomplishments and ultimately their efficiency in the arbitral process.  One way to address this is to broaden the access to objective data.  This would answer the clients’ need to find a diverse pool of practitioners– as it would address not just gender diversity but also cultural and regional diversity.  This would also provide the type of objective record of experience and the documentation of accomplishment of those practitioners who are unknown to a client.  This added knowledge would also make the pledge of taking an extra five minutes of creating a list of characteristics more powerful.

Professor Whitesell concluded the panel with a discussion of the power dynamics of the arbitral tribunal itself.  Generally, the presiding arbitrator holds a key role.  They are expected to be the most persuasive,  as well as to help create consensus.  They are expected to have experience, professional respectability, and to be held in high regard within the international arbitration community.  If they are not diverse, there is more of a likelihood of lack of diversity.  As previously mentioned, this is a reflection of unconscious biases of choosing those who look like oneself.  Having outlined the problem and various components that lead to a lack of diversity, the next step was how to address these issues.

The next panel, A Critical Look at Solutions, with panelist Lucy Greenwood, Professor Catherine A. Rogers, Professor Nassib G. Ziadé, was moderated by Caroline S. Richard and had many recommendations.  The panel started with Caroline S. Richard (Freshfields Bruckhaus Deringer US LLP), who outlined a list of instructions.  First, take the time to do the needed research and use the tools that are available – everything from the taking an extra five minutes to using institutional databases (e.g., ICC).  Second, take the proactive steps of challenging oneself instead of using the defense of what is already familiar; instead shift focus to who would be the best fit for the needs of the arbitration in terms of the nature of the case and for the needs of the clients.  Lastly, international arbitration has always been “global” as a practical matter, but the representation of regional powers and emerging markets improves particular expertise and adds legitimacy to the arbitration process.

Lucy Greenwood (GreenwoodArbitration, Houston, Texas) reemphasized the points above as the right thing to do in themselves, but also as part of better business practices.  She stated that international arbitration requires cooperation by all the parties.  One way to ensure cooperation and participation in the arbitration process is to reflect the diversity of the case and parties.  Diversity of the groups has the added benefit of challenging groupthink; with a diverse group, the calculations of risk and the mitigation of risk are improved as they challenge underlying assumptions that could be incorrect.

Greenwood also discussed how unconscious biases could be seen in the percentage of women – 16 percent is the diversity ceiling.  This is not to be confused with merit – the 16 percent does not reflect the relative pool of women, in either the number of women or the number of qualified women within that pool.  For an excellent and more detailed discussion of the lack of diversity with statistical information, see Getting a Better Balance on International Arbitration Tribunals (28 J. London Ct. Int’l. Arb. 653(2012) (full text freely available)) and the update to the article above, Is the Balance Getting Better? An Update on the Issue of Gender Diversity in International Arbitration (31Arb. Int’l.413 (2015)).

Greenwood also discussed how inclusion is another way to address lack of diversity, by welcoming newcomers to the field.  Through conferences, moot court competitions, young arbitration groups and publications (most importantly, newcomers as authors and co-authors), the field will reflect more of the pool of qualified women in this field.  This also creates more opportunity for new practitioners to demonstrate their competence in a complex field.

Richard, the moderator, then asked, what role institutions play in creating solutions.  Professor Nassib G. Ziadé (Chief Executive Officer, Bahrain Chamber for Dispute Resolution (BCDR-AAA), Manama, Kingdom of Bahrain), answered first and stated that in fact they do have a role, but it is important not to forget the role of parties and counsel.  He also pointed out that these steps would also address the issue of legitimacy, as more diversity of practitioners means fewer conflicts of interests and less requirements of the wearing of different hats at the same time.  Institutions are also involved in the development of the next generation through training and guidance, which can create diversity based on experience and a solid record of accomplishment.  He next discussed the use of codes of conduct to address the issue of parties reporting their own data.  Institutions can also improve the overall transparency process by making their appointment process more transparent.  He concluded by noting that while there is still a lot of work to be done, notably there is evidence that once an arbitrator from a diverse background is selected they are given a fair chance.

Professor Catherine A. Rogers (Pennsylvania State University – Dickinson School of Law and the School of International Affairs, Founder and Executive Director, Arbitrator Intelligence, State College) agreed with the need for more information.  She went on to discuss how academia and the overall education process can help.  She mentioned how U.S. law students are not encouraged to go abroad as part of their legal education, unlike many law students from other countries.  This means that U.S. law students do not have the advantage of gaining some familiarity with another legal system.  This lack of investment by academia in international arbitration is also reflected by the dearth of scholarships or even the utilization of internships to support and cultivate the next generation.

Professor Rogers next discussed how the use of data about an arbitrator can be problematic; for example, in the law firm context, the same list of names is recycled over and over again.  While using a pre-approved list seems efficient, an important evaluation process is bypassed.  It is important to evaluate the object of the case and consider the needed characteristics of the arbitrators to meet the needs of the case.  This issue can be corrected with better collection of information to address the issue of gender diversity, multilingual competency, and regional diversity.

Richard mentioned how using the Harvard biases test makes it easier for all to see objectively the problem of unconscious biases.  Once this issue is known and objectively verified, it is easier to take concrete steps.  These steps include internet training, but also the use of external groups such as Alliance for Equity to hold training sessions.  This could create better business practices, which tend to generate more business, which is better for all.

Professor Rogers ended the panel with two observations.  One, the meaning of diversity is rapidly evolving, and two, international arbitration is getting more complex and more nuanced.

Due to time limitations, Professor Susan D. Franck (Chair, ITA Academic Council, American University Washington College of Law, Washington, D.C.) remarks were brief but concise.  She stated that there is no one size fits all for solutions to creating more diversity.  Arbitration institutions, as well as clients (either nations or commercial parties), all need to determine how to best utilize the pledge.  Lastly, all in the field of international arbitration can be the change that will bring more diversity to the field.

For some more readings on this topic of diversity and international arbitration, see the Selected Papers and Articles from the conference.  For background and basic introduction on international arbitration, Redfern and Hunter on International Arbitration is an excellent resource.  A resource for more information about practitioners in the field of international arbitration is The Culture of International Arbitration and the Evolution of Contract Law, by Joshua Karton.  Lastly, for a quick oral history about both the book above, and the history of international arbitration, see interviews with Mr. Redfern and Mr. Hunter (freely available online).

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: 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.

From the Reference Desk: “Can You Strip Mine An Asteroid?”

By Lora Johns

“Can you strip mine an asteroid?”

Last week at my law school, a room full of law students (and at least two law librarians) pondered this question, posed—rhetorically—by a NASA attorney.

It turns out that NASA needs a lot of different kinds of lawyers. Some do the kinds of law you’d expect of a federal agency—government contracts, employment law, administrative law. Some do intellectual property, which makes sense when you think of how many inventions come out of NASA.

And some practice international space law.

(Incidentally, I may need to reevaluate my career choices.)

It’s not just science fiction. Space law is very real—and it’s more relevant than ever. No doubt you’ve heard about SpaceX’s unprecedented successful launch of a Tesla Roadster into orbit. But space law as a field goes back much further. It began in October 1957, when the Soviet Union launched Sputnik, the world’s first ever man-made satellite, into orbit. This astonishing feat accelerated the Space Race—and raised international concerns over the peaceful use of outer space.

Two years after Sputnik, the United Nations created the Committee on the Peaceful Uses of Outer Space. COPUOS helped create the five major treaties that still govern space law today:

  • The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty“).
  • The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement“).
  • The 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention“).
  • The 1975 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention“).
  • The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty“).

The history of space law is too rich and fascinating to be covered in one short blog post. But to address the titular question—whether it’s okay to exploit an asteroid’s natural resources—the answer is… maybe. In 2015, the U.S. Congress passed the first law for space mining, the Commercial Space Law Competitiveness Act. But that domestic law arguably conflicts with the Moon Treaty, which attempts to declare the Moon and other celestial bodies the “common heritage of humankind” not subject to ownership. (The U.S.—like every other major spacefaring nation—is not a party to the agreement.) And the Outer Space Treaty contains a “non-appropriation principle.” On the other hand, some countries don’t like the idea that you can’t own space—take the Bogotá Declaration of 1967 for example. In that Declaration, a coalition of equatorial nations attempted to resist the non-appropriation principle, claiming sovereignty over the geostationary orbital slots above their territories under a version of the traditional ad coelum doctrine of property law.

Complicated, right? Nations disagree on the fundamental principles of using and exploring the universe, and the law—like outer space—is far from settled.

As it turns out, foreign and international librarians can learn a lot from looking up to the sky once in a while. Here are some helpful resources to get you started: