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.

Sojourn in Poland (Part 1): My Brush with EU Regulation 261/2004

By Julienne Grant

This is the first in a three-part series.

Some international trips flow like clockwork, others not so much. Despite meticulous planning, my recent trip to Poland falls in the latter category.  I severely sprained my ankle in Warsaw (I’m still hobbling about), and at the beginning of the trip, I had a rather challenging experience with my transportation.

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Julienne in Krakow (photo courtesy of Julienne Grant).

I knew things were not off to an auspicious start when I received a cryptic text from LOT Polish Airlines the afternoon before my departure, notifying me that my flight from Chicago to Warsaw had been cancelled (no explanation given). Upon calling LOT customer service, I learned that I was forty-second in the telephone queue for assistance.  Several hours later, I was rebooked to fly through Brussels (United) and Warsaw (LOT), and then on to my final destination of Kraków on GetJet (no, I hadn’t heard of it either).

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Warsaw (photo courtesy of Julienne Grant).

The flights to Brussels and Warsaw were fine, but it was my experience with GetJet that raised my blood pressure. GetJet, I now know, is a fledging Lithuanian airline based in Vilnius, operating a fleet of seventeen airplanes. The boarding was chaotic, the preflight cabin temperature rivaled that of a scorching desert, the flight attendants were generally oblivious, and one of the very youthful-looking pilots had a smirk on his face that was more than slightly disconcerting.  I later discovered on GetJet’s website that the airline is openly advertising for flight attendants with “the ability to swim” (among other qualifications) and pilots with various attributes, including “criminal record free.”

I eventually did arrive in Kraków in a rather frazzled state, over two hours later than my originally scheduled flight, but ready to hit the ground running. In the back of my mind, however, I conjectured that there had to be an international treaty or EU regulation I could draw upon to solicit some form of compensation from LOT for the hassles that I had just experienced. I didn’t have to wait too long to learn that my hunch was correct, as I received an email from Expedia that caught my attention; I might be eligible for up to $436 under EU passenger law and that AirHelp was there to fight for my fair share. Being an FCIL librarian, I immediately accessed EUR-Lex on my phone to see what legal recourse I actually had.

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Some delicious Polish treats (photo courtesy of Julienne Grant).

There, I discovered EU Regulation 261/2004—an airline passenger’s bill of rights that sets forth the circumstances when a passenger (regardless of nationality) can receive compensation for such events as cancellation. If you fly an EU-based airline to an EU country from outside the EU, and your flight is cancelled less than two weeks prior to the scheduled flight, the amount of compensation is based on the distance traveled and the length of arrival time delay.  The regulation also covers flights from and within the EU, and those airlines do not have to be EU-based. EUROPA has a set of user-friendly and interactive web pages, as does AirHelp, which I used to determine that my potential payment was actually around $338 (€300).

The only defense an airline has is to prove there were “extraordinary circumstances” that caused the cancellation, and I ventured a guess that the scope of this term had been addressed in the Court of Justice of the European Union (CJEU).  Searching in CURIA, I was able to identify eighty-three cases that referred to 261/2004 and contained the term “extraordinary circumstances.” Fortunately, I also found a January 2019 EU document in EUROPA that summarizes the “most important judgments with regard to air passenger rights.” Reading through it, I gleaned that the CJEU has decided that technical and maintenance issues inherent in an air carrier’s normal activity are not “extraordinary,” and neither are wildcat strikes by airline personnel. In contrast, acts of terrorism, hidden manufacturers’ defects, and collisions with birds may be deemed “extraordinary” and release the airline from liability.   The EU document also notes that the EU is a party to the 1999 Montreal Convention, which addresses both passenger and airline rights in a broader scale, covering such events as injury, death, and baggage/cargo loss and damage.

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Krakow Square (photo courtesy of Julienne Grant).

Interestingly, both EU and non-EU airlines have been hauled into U.S. courts for refusing to pay up for delays and cancellations under 261/2004. Many of these cases have been filed in the U.S. District Court for the Northern District of Illinois, and some have been appealed to the U.S. Court of Appeals for the Seventh Circuit. Plaintiffs in these cases have made several different arguments in an attempt to compel the defendant airline to pay up—“direct” actions to enforce EU 261/2004, as well as breach of contract claims. The Seventh Circuit nixed “direct” actions in Volodarskiy v. Delta Airlines (2015), holding that Regulation 261/2004 could not be judicially enforced outside the EU. In the breach of contract claims, courts have examined whether 261/2004 is expressly incorporated in the defendant airline’s contract of carriage, with varying results. For a good overview of the EU regulation itself and its application in U.S. courts, see Richard Ritorto and Stephan A. Fisher, “Exploring Airline Contracts of Carriage and European Union Flight Delay Compensation and EU Regulation 261 (EU 261)—A Bumpy But Navigable Ride,” (82 J. Air L. & Com. 561, Summer 2017).

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More delicious Polish treats (photo courtesy of Julienne Grant).

With a pretty clear picture of my options, I decided to try AirHelp, partly out of curiosity, and partly because I didn’t want to deal directly with LOT again. AirHelp actually has a slick online setup for submitting claims; I don’t think the whole process took me longer than ten minutes. The U.K.-based company works on a “no win, no fee” basis, so I didn’t have to pay anything up front; however, I did realize from perusing their fee schedule that AirHelp could potentially get a good chunk of any payment I received. (In all honesty, though, I expected that LOT would come up with an “extraordinary circumstances” argument of some type, and I would receive nothing).  Just a few weeks later, much to my surprise, I received an email from AirHelp that LOT had agreed to a payout in the amount of $336, of which I received about two thirds, with the rest going for VAT and AirHelp’s service fee.  (For more on the advantages and disadvantages of utilizing AirHelp, see Christopher Elliott’s February 2, 2017 column in The Washington Post).

Was this enough compensation for the hassle of having to rebook, the late arrival, and the distress of the GetJet nightmare flight?  Considering that I hadn’t expected anything, I was a happy camper. I was also happy to have a new “hypo” for my FCIL research course.

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Julienne in Krakow with some interesting graffiti art (photo courtesy of Julienne Grant).

 

Part 2 of this series will look at the European parliamentary elections, which took place while I was in Poland.

 

From the Reference Desk: Using Treaty Body Websites to Find Implementing Legislation

By Amy Flick

A student working as a research assistant for a professor came to me looking for help finding information on implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. He had a list of Caribbean and Latin American countries, and he wanted to find legislation and regulations of each country implementing the provisions on digital sequence information on genetic resources from the Nagoya Protocol. He had attended the library’s orientation for summer research assistants, so he had been using resources I mentioned at the orientation (Foreign Law Guide and the Law Library of Congress’ Guide to Law Online) to go country by country searching for legislation.

Major multilateral conventions usually have governing or supervisory bodies that track status and implementation of the treaty. The best known treaty bodies are for the core human rights instruments under the Office of the High Commissioner for Human Rights, but other important conventions have them as well. For example, Heidi Frostestad Kuehl and Megan O’Brien’s textbook International Legal Research in a Global Community uses the Kyoto Protocol as an example of treaty research at pages 47-49, recommending the official homepage of the UN Framework Convention as a starting point for research on developments related to the Kyoto Protocol.

Treaty body websites are a great resource pulling together all kinds of information on the treaty, including the text, parties, status, and history. For treaties in force, they may include reports and other information on implementation and progress meeting the treaty’s objectives. They may include publications on the work of the treaty body and on projects related to the convention, and they usually include news and press releases for recent developments. If there is a dispute resolution or complaint procedure in the treaty, those cases or jurisprudence may be on the treaty’s website.

An easy Google search led to the webpage for the Nagoya Protocol on the treaty body website for the Convention on Biological Diversity. We found digital sequence information listed as a key issue on the navigation bar; digital sequence information on genetic resources was not mentioned in the protocol’s text, but was addressed at the Second Meeting of the Parties to the Nagoya Protocol in December 2016. We also found the list of parties to the protocol, where we found that some of the countries on the student’s list are not yet parties to the Nagoya Protocol. The country profiles on the site were a great resource. For parties to the Protocol, the Access and Benefit-Sharing Clearing-House listed and provided text for legislative, administrative or policy measures on access and benefit-sharing, even providing English translations for some. Reports on implementation of the Nagoya Protocol were available for many of the parties. For non-party signatories and some other non-parties, National Reports and the National Biodiversity Strategy and Action Plans on the country profile pages had some information on progress toward ratification of the Nagoya Protocol and towards meeting its targets. And many of the country profiles, including some for the non-parties, included an ABS National Focal Point, contact information for a government environment minister who might respond to questions about the country’s implementation of the Nagoya Protocol.

Although we didn’t find any mention of digital sequence information in the national reports, the CBD website did have pages on Digital Sequence Information on Genetic Resources in the Key Protocol Issues. These included submissions of views and information on Digital Sequence Information, listed by party or organization. And the “relevant decisions and documents” included a Survey on Domestic Measures Addressing Benefit-Sharing from Digital Sequence Information on Genetic Resources, sent out on June 19, 2019 with return requested by July 1, 2019, so the student will be watching for survey results to be reported.

Knowing that the professor the student is working for does a lot of research on issues of intellectual property and genetic resources, I also recommended a few other resources to the student for finding national laws more broadly on genetic resources. WIPO Lex collects national laws and regulations on intellectual property topics, and one of the topics listed is “genetic resources.” ECOLEX has legislation on environmental law, with keyword filters including “genetic resources” and “biodiversity.” And Foreign Law Guide, although not the student’s best source for this treaty question, does have “genetic engineering” as a subheading under the subject Intellectual Property for some countries, with citations to legislation.

Once the student left, I was left still wondering “What is digital sequence information?”  The Food and Agriculture Organization has a topic page on digital sequence information. It says that “the term “DSI” currently has no agreed definition.” But the page explains that DSI is a “critical tool in the conservation and sustainable use of genetic resources for food and agriculture,” and it noted that the implications of DSI are being discussed under instruments including the Convention on Biological Diversity.

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

By Jessica Pierucci

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

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

Europe

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

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

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

Asia

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

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

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

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Africa

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

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

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

Want more information?

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

ASIL Recap: International Law & Interstellar Events: Who Speaks for Earth?

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The panelists for International Law and Interstellar Events: Who Speaks for Earth at the 113th annual meeting of the American Society of International Law.

By Charles Bjork

For those who attended the 113th annual meeting of the American Society of International Law in Washington, D.C. at the end of March, the session entitled International Law and Interstellar Events:  Who Speaks for Earth? offered a welcome respite from sessions devoted to climate change, trade wars, and Brexit.  Instead of dwelling on an actual, real-life crisis, the panel was asked to speculate on how international law might guide or constrain nation states in responding to threats to global security that are merely theoretical in nature, namely those that might arise from outer space.  In addressing this issue, members of the panel were asked to analyze two hypothetical scenarios.  The first scenario was defensive in nature:  If scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage, what individual or collective responsibilities do states have to try to prevent this from happening?  The second scenario was more affirmative in nature:  Does international law provide any guidance as to whether individual states, groups of states, or private actors, may broadcast Earth-identifying signals into outer space or respond to signals that are detected from an alien source?

The panel consisted of Chris Borgen, Professor of Law and Co-Director of the Center for International and Comparative Law at St. John’s University; Robin Frank, who recently retired after serving as an Associate General Counsel at NASA; Andrea Harrington, an Associate Professor at the U.S. Air Force Command and Staff College; and Lindley Johnson, NASA’s Planetary Defense Officer.  (Yes, that really is his job title!)  Shane Harris, a staff writer at The Washington Post covering intelligence and national security matters, served as the moderator.

Harris initiated the discussion by asking Johnson how we would know that an asteroid large enough to cause significant damage is on course to collide with the Earth, and how much time we might have to respond.  As Johnson explained, Congress enacted legislation in 2005 mandating that NASA develop a program for identifying and tracking Near-Earth Objects (NEOs) in order to assess their threat potential.  NEOs are defined as asteroids and comets at least 100 meters in diameter whose orbits bring them within relatively close proximity to the Earth.  In 2013, at the recommendation of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Asteroid Warning Network (IAWN) was established to enable government and private sector entities operating at the national and regional levels to cooperate in tracking NEOs, share information about them, and develop responsive measures.  As a result of these initiatives, researchers using ground-based telescopes already have identified and catalogued more than 25,000 NEOs.  This figure includes more than 90 percent of NEOs with diameters in excess of 1,000 meters, which are large enough to cause catastrophic damage, approaching the level of disruption unleashed by the asteroid strike that led to the extinction of the dinosaurs.[1]

How much time would we have to respond to a potentially devastating asteroid strike?  According to Johnson, there should be ample warning time to prepare for a strike by a known NEO whose trajectory is being actively tracked.  Most likely, the window for developing a response would be measured in years, if not decades.  Of greater concern are newly discovered NEOs, whose trajectories may not be known until less than a year before impact.  As in the past, some asteroids will continue strike the earth without being detected in advance.  The good news is that the vast majority of undiscovered asteroids will be small enough to disintegrate upon contact with the Earth’s atmosphere and cause minimal, if any, damage upon impact.  That is why NASA and other members of the IAWN prioritize identifying NEOs that are large enough to cause more significant damage.

If scientists determine that an asteroid is going to collide with the Earth, how might we respond?  Much will depend on its size and trajectory.  If the asteroid is relatively small and is projected to land in a rural, sparsely populated area, the best option may be simply to evacuate the impact zone.  What if the asteroid is projected to land in a more densely populated area and cause significant damage and loss of life?   According to Johnson, there are at least two plausible options available.  One option would be to deflect the asteroid from its current path to prevent it from striking the Earth.  This could be accomplished by launching a spacecraft to fly alongside the asteroid in close proximity for an extended period of time – a year or more, if there is sufficient warning.  Eventually, the gravitational pull of the spacecraft would alter the trajectory of the asteroid and cause it to veer away from the Earth.  Alternatively, if the response time were more limited, the spacecraft could be launched to collide with the asteroid and knock it off its current path.  The other, more drastic option would be to launch a nuclear device into space and detonate it in close proximity to the asteroid, causing it to disintegrate before it can reach the Earth.  The viability of these options would depend, in large part, on the amount of time available, but also on the composition of the asteroid.  An asteroid comprised of loosely held-together rocks and space debris would be relatively easy to break apart, whereas an asteroid comprised of solid metal or rock might be a better candidate for deflection.

After Johnson had sketched out the technological challenges and time frame for responding to anticipated asteroid strike, Harris asked the other panel members to discuss the legal aspects.  Professor Borgen addressed the question of whether individual states should respond unilaterally to the threat or whether multilateral action is preferable.  Under international law, a state has the inherent right to defend itself.  As a practical matter, of course, only a handful of states currently have the technological capacity to attempt to deflect or destroy an asteroid.  The case for unilateral action would be stronger if the threat posed by the asteroid is not worldwide, but limited to a particular country or region.  Unilateral action also might be justified if the threat is not discovered in time to reach a consensus on a multilateral response.  In such a scenario, only an individual state could act quickly and decisively enough to respond to threat in a timely manner.

Nevertheless, there are serious drawbacks associated with unilateral action.  Foremost among them is the issue of liability in the event that the unilateral action fails to remove the threat or unintentionally exacerbates it.  What if, for example, the unilateral action does not deflect the asteroid away from the Earth, but instead redirects the impact to another country or region?  Or what if the unilateral action doesn’t destroy the asteroid, but instead causes it to break up into smaller pieces that are still large enough to cause significant damage over a much wider area?  Article VI of the Outer Space Treaty[2] provides that state parties to the treaty shall bear responsibility for national activities in outer space, whether they are carried out by governmental agencies or by non-governmental entities.  Article VII of the Outer Space Treaty further provides that each state party to the treaty that launches an object into outer space, and each state party from whose territory such an object is launched, shall be internationally liable for damages caused by the object to any other state party or to any natural or juridical persons of any other state party.

Given the wide scope of liability imposed by the Outer Space Treaty, Professor Borgen believes that a multilateral approach is essential to properly assess the level of risk posed by the asteroid and to formulate an appropriate response that takes into account the interests of all states that may be adversely affected.  Only if there were insufficient time to reach a multilateral consensus would unilateral action be warranted.  The other members of the panel concurred with this analysis.  The most plausible institution for forging such a multilateral consensus is the U.N. Security Council.  A response authorized by the Security Council under Chapter VII of the U.N. Charter, which is implemented by multiple states acting cooperatively, wouldn’t necessarily absolve those states of liability if something went wrong, but it would at least prevent a single state from shouldering all of the blame and perhaps provide the legal basis for establishing an international indemnity fund.

Professor Harrington then addressed the question of what constraints international law might place on the nuclear option for preventing a potentially catastrophic asteroid strike.  She acknowledged that Article IV of the Outer Space Treaty expressly prohibits state parties to the treaty from placing nuclear weapons and other weapons of mass destruction in orbit around the Earth, from installing such weapons on the Moon or on other celestial bodies, and from stationing such weapons in outer space in any other manner.  Nevertheless, she believes that detonating a nuclear device in outer space for the purpose of preventing an asteroid from colliding with the Earth would not constitute a violation of Article IV because the device would not be used as a weapon.  Frank disputed Harrington’s interpretation of Article IV and insisted that it does pose a significant obstacle to pursuing the nuclear option.  Professor Borgen noted that the drafters of the Outer Space Treaty never anticipated the use of a nuclear device to prevent a potentially catastrophic asteroid strike.  Their intent, which is apparent from the drafting history, was to ensure that outer space would be used exclusively for peaceful, non-aggressive purposes.  It would be a stretch to interpret the language of Article IV loosely enough to justify the detonation of a nuclear device in outer space for the purpose of destroying a threatening asteroid.  Johnson agreed with this assessment.

Another potential constraint on using a nuclear device to prevent a potentially devastating asteroid strike is the Limited Nuclear Test Ban Treaty.[3]  Article I of the treaty expressly prohibits state parties from carrying out “any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control” or “in the atmosphere, beyond its limits, including outer space.”  While this might seem like an iron-clad prohibition, Professor Harrington noted that the doctrine of necessity, a longstanding principle of customary international law, offers a potential escape clause.  Under the necessity doctrine, a state facing a grave and imminent peril may justifiably breach its obligations under international law in order to safeguard its essential interests, provided that two conditions are met.  First, the state’s response to the grave and imminent peril must not seriously impair the interests of other states.  Second, the state must not have caused or contributed to the situation that gave rise to the grave and imminent peril.  If confronted with the prospect of an asteroid causing immense damage to its territory, the political leadership of a state party to the Limited Test Ban Treaty that has the capacity to launch a nuclear device into space likely would come under immense public pressure to deploy such a device in the hope of deflecting or destroying the asteroid.  Panel members agreed that the state party’s political leaders almost certainly would invoke the necessity doctrine if they were to conclude that the nuclear option is the best or the only method of addressing the threat posed by the asteroid.

Turning to the second hypothetical, Harris asked Prof. Borgen what guidance, if any, international law would provide in the event that scientists detect a signal or message sent by intelligent beings from another solar system.  In particular, what entity would be authorized to acknowledge receipt of the message on behalf of humankind and issue a response?  According to Borgen, international law is silent on this question and does not impose any specific obligations or prohibitions on states or non-state actors.  Prof. Harrington agreed with Borgen’s analysis, adding that the only tangentially relevant legal norm in this context is the obligation imposed on the member states of the International Telecommunications Union, a specialized agency of the United Nations, not to interfere with radio signals or the use of the radio spectrum.  Apart from that general obligation, international law offers no guidance.

In the absence of any governing law, whichever entity or organization first detected the alien signal likely would turn to soft law principles and best practices within the scientific community for direction.  Johnson emphasized the need to timely disclose and share information about the discovery with other scientists, with national and regional space agencies, and with relevant inter-governmental organizations.   Information sharing is vital, not only for purposes of verification, but also for assessing risks and reaching a consensus on the appropriate response.  Thanks to the ongoing work of the United Nations Office for Outer Space Affairs (UNOOSA) and its affiliated entities, well-established networks already are in place to facilitate information exchange and collaboration within the relevant scientific, legal, and policy-making communities.

If scientists interpret the alien signal as being potentially hostile or threatening, rather than benign, it would be imperative to seek input from an even wider range of actors, both public sector and private sector.  As in the case of a potentially deadly asteroid strike, the U.N. Security Council would be the most likely forum in which to attempt to forge a unified, multilateral response.  Panel members agreed that while input from private institutions and individuals with specialized knowledge and expertise should be solicited and taken into account, the question of how to respond to an alien signal, whether friendly or hostile, ultimately is a matter of public policy that should be determined by institutions that are publicly accountable.  Prof. Borgen also emphasized the time factor.  Whatever its origins, the alien signal most likely would have taken many years to have reached the Earth.  It would be foolish to respond too quickly without taking adequate time to deliberate and think through all of the possible implications, unless there were extenuating circumstances that justified a more rapid response.

Before opening the floor to question from the audience, Harris added a final twist to the second hypothetical.  What if, instead of an alien signal from outer space, an alien spacecraft were to land in international waters off the coast of California?  Should the United States, the jurisdiction most immediately impacted by the landing, take the initiative in responding, or should it wait for the international community to act?  If the aliens operating the spacecraft were behaving in a threatening manner, the United States would be justified, under international law, in taking measures to defend itself from the aliens.  If the circumstances warranted, the U.S. almost certainly would invoke the necessity doctrine in order to take extraordinary measures that might otherwise violate its international legal obligations.

Even if the United States were disproportionately impacted by the landing of an alien spacecraft, panel members stressed that it would still be advisable for the U.S. to pursue multilateral consultation and cooperation in order to ensure that risks are properly assessed and that the interests of other states are taken into account.  Prof. Harrington noted the inherent tension between law (what is legally permissible under the circumstances) and policy (what should be done to optimally address the threat at hand).  She emphasized that when the law is largely silent as to what actions are permissible, policy-makers must look beyond the panic generated by sensationalist media coverage of an alien spacecraft, likely to be magnified by social media echo chambers, and do their best to avoid taking actions that will have unintended consequences.  Several panelists raised the danger of inter-planetary cross-contamination – the transfer of micro-organisms from the alien spacecraft to the Earth, and Earth-based micro-organisms to the alien spacecraft – as one of the most likely unintended consequences.  The panelists agreed that a multilateral approach, one that seeks input from a wide range of state parties and non-state actors, is more likely to avoid such unintended consequences than a unilateral response.

Moderator Shane Harris Panelists Robin Frank Lindley Johnson

Robin Frank, recently retired after serving as an Associate General Counsel at NASA, stole the show with her rocket-shaped earrings.

[1] See Douglas Preston, The Day the Dinosaurs Died, The New Yorker, March 29, 2019, for a fascinating (and nightmare-inducing) overview of the latest research into the massive asteroid, estimated to have been six miles wide, that struck what is now the Yucatán Peninsula sixty-six million years ago, causing a severe disruption to the Earth’s climate that led to the extinction of most forms of life.

[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.

[3] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43.