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.

Ruminations on Researching Customary International Law

By Jonathan Pratter

customsfutureCustomary international law has been a contested concept for a long time. In 1939, a fateful year, Hans Kelsen remarked that the theory of customary international law “has no other function than to conceal [dissimuler] the important, not to say dominant, role that is played in the formation of customary law by the arbitrariness of the organ competent to apply the law.”  Hans Kelsen, Théorie du Droit International Coutumier, 1 Revue Internationale de la Théorie du Droit [new series] 253, 266 (1939).  (I note by the way that Kelsen, an Austrian, wrote this in French in a Franco-Austrian journal, the title of which was displayed in both French and German.  This brings out how essential multilingualism is in the study and practice of international law and international legal research, a point that has been made before on this blog.)  Critical attention to customary international law has increased recently.  The literature is extensive, but emblematic of the trend is the recent article, Why I Stopped Believing in Customary International Law by Daniel Joyner, 9 Asian Journal of International Law 31 (2019).  A key source is the collection of essays edited by Curtis A. Bradley, Custom’s Future: International Law in a Changing World (Cambridge University Press 2016).

The critique of customary international law has several aspects, but a central component is the observation that the standard model, the two-part definition of state practice and opinio juris, is not applied in practice.  This criticism is aimed in particular at courts, both international and domestic.  In Custom’s Future there is an essay by Stephen J. Choi and Mitu Gulati titled “Customary International Law: How Do Courts Do It?”  This is a rigorous empirical study based on a data set of 175 determinations of customary international law by the International Court of Justice and some other international tribunals.  If you can get through the mind-numbing statistical discussion, there is a lot to learn.  Early in the essay there is a sub-section titled “Superhuman Research Skills.”  The context is a discussion of the question whether there is a customary norm permitting a state to reject odious debts.  The authors, who worked on this question, have this to say: “Not only was the type of evidence being requested unlikely to exist … but it was impossible to collect, as a practical matter, unless one somehow assembled an extraordinary team of anthropologists, economists, historians, political scientists and lawyers who would then be able to spend decades excavating the historical record.”  The authors should have added international law librarians to the list of needed professions.

A key finding of the study is that the piece of evidence most frequently cited for the existence of a rule of customary international law is the treaty.  But referring to treaties for this purpose is famously problematic.  After all, the raison d’être for an international agreement might well be the sense of a gap in the law.  The authors conclude that “[t]he data suggest that international courts do not come anywhere close to engaging in the type of analysis the officially stated two-part rule for the evolution of CIL sets up.”  A similar result was reached by Stefan Talmon in his article, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, 26 European Journal of International Law 417 (2015).  Concerning similar results for the domestic courts of the United States, see Ryan M. Scoville, Finding Customary International Law, 101 Iowa Law Review 1893 (2016).

It has to be conceded that the critique of customary international law is found in the academic international law literature.  This is not a criticism of the critique, but an observation.  In 2018 the International Law Commission of the United Nations adopted its Draft Conclusions on Identification of Customary International Law, with Commentaries.  The Draft Conclusions can be found in the Commission’s report, A/73/10, and as an offprint on the Commission’s website.  It has to be said that the Draft Conclusions stick resolutely to the standard model, with little recognition even in the commentaries of the concerns that have been raised.

Where does this leave international law librarians who are called on to advise on researching customary international law, and to teach the method?  Clearly, there is a dilemma.  I think it is still possible to start with the standard, two-element model, as classically stated in Article 38(1) of the Statute of the International Court of Justice.  But more is clearly necessary.  I think we have to raise the critique and its main components.  Researchers and students need to be aware that researching customary international is beset with issues that a simple invocation of the standard model does not capture.  The research guide International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien (Carolina Academic Press 2018) integrates several elements of the critique into the discussion of researching customary international law without mentioning the critique explicitly.

What promise does the digital dispensation hold here?  Is there, or will there soon be, a giant database of state practice of the 195 states of the world to be mined by an AI-driven robot for evidence of a customary norm of international law?  I am comforted that the answer to the question is no.

Join the FCIL-SIS Continuing Education Committee for Our First Webinar and In-Person Event!

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The FCIL-SIS Continuing Education Committee is excited to announce its first two events!

Working with Non-English Materials for the English Speaker Webinar on June 6, 11 am-12 pm US/Central

On June 6, 11 am-12 pm US/Central, please join us for a webinar on Working with Non-English Materials for the English Speaker. Register for the webinar now at https://www.aallnet.org/forms/meeting/MeetingFormPublic/view?id=14E74000002E9!

As the world becomes increasingly interconnected, most of us will inevitably need to research laws from non-English speaking countries, whether we are helping a firm close an international business deal or a professor perform comparative research. In this webinar, a panel of experienced foreign, comparative, and international law librarians who have worked in Europe, Africa, Asia, Canada, and the Caribbean will provide practical guidance on finding English translations of non-English laws, gathering enough understanding about a non-English document to identify whether it is relevant to your research, and finding help if you’re truly stuck.

Participants will come away with a bibliography of reliable translation materials and the ability to select the dictionaries, translation services, and finding aids suited to a specific task, whether the goal is to catalog a document, provide document retrieval, or answer a complex research question.

The webinar will feature Erin Gow (Online Services Librarian, University of Louisville Law Library), Yemisi Dina (Acting Chief Law Librarian, Osgoode Hall Law School, York University), and Alex Zhang (Assistant Dean for Legal Information Services and Professor of Practice, Washington and Lee School of Law).

What’s New with UN Resources at Fordham Law School on June 27th, 6:30-7:30 pm

If you’re in the New York area on June 27th, we also welcome you to join FCIL-SIS and LLAGNY from 6:30-7:30 pm at Fordham Law School Room 2-01A for a free lecture on What’s New with UN Resources. Register for the New York lecture now at https://www.llagny.org/index.php?option=com_jevents&task=icalrepeat.detail&evid=64&Itemid=176&year=2019&month=06&day=27&title=whats-new-with-un-resources&uid=53456656a8d7cd3e7c48b6e3aaf63cc9!

Susan Goard, Law Librarian and Training Coordinator at the UN’s Dag Hammarskjold Library, will present on how to locate the different types of documents produced by the main UN organs using the UN Digital Library and other tools, websites, and publications. She will provide updates on new research guides and tools from the UN Library, including the transition from UNBISnet to the UN Digital Library.

Ideas and Volunteers Welcome

The Committee welcomes both volunteers and ideas for future events! If you have any ideas for future FCIL-SIS Continuing Education events or if you’d like to volunteer to join the committee or teach a continuing education event, please reach out to the FCIL-SIS Continuing Education Committee chair, Caitlin Hunter, at hunter@law.ucla.edu or complete a short survey at https://forms.gle/2VqR5Zm8T6VWxJCq6.

ASIL 2019 Recap: Litigating Climate Change: New Legal Challenges

Climate_change_icon.pngBy Mariana Newman

At 9:00am on Friday, March 29, 2019, Judith Levine, Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, moderated a panel discussion which addressed, in her words, the role for lawyers to address climate change when political leaders do not. Joining Levine were Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and director of the Sabin Center for Climate Change Law; Kristin Casper, Senior Legal Counsel for Strategic Litigation at Greenpeace International; and Paula Henin, a senior associate at Freshfields in New York working in the international arbitration group. In her opening remarks, Levine said that litigation in this area is an opportunity for lawyers to demonstrate “courage, creativity, and innovation.”

Gerrard highlighted a number of areas of litigation. Around 1300 climate lawsuits have been filed around the world, with the United States leading the way in the number of suits, followed by Australia and the United Kingdom.

In the United States, the largest number of cases filed have been under the National Environmental Policy Act, claiming an insufficient consideration of climate change in environmental impact reports.

Gerrard mentioned that public nuisance doctrine cases have reemerged under state common law, since the Supreme Court had held in American Electric Power v. Connecticut that the Clean Air Act displaced any federal common law claims.  There have also been securities fraud lawsuits, mostly against Exxon.

Gerrard discussed an ongoing case brought under public trust doctrine and substantive due process theories, Juliana v. United States. In that case, young people sued the United States government arguing that it has an obligation to protect the atmosphere and seeking an order that would force the government to aggressively cut back on greenhouse gas emissions. Currently the 9th Circuit interlocutory appeal is being briefed.

He then turned to cases from outside the United States, including Urgenda Foundation v. State of the Netherlands. In that case, a Dutch environmental group and 800 Dutch citizens sued their government, arguing that it was not doing enough to reduce its greenhouse gas emissions. The trial court ruled that the government had violated their duty of care under Dutch law to take climate change mitigation measures. The appellate court affirmed the judgment for the plaintiffs under different grounds: that the government had an obligation under Articles II and IX of the European Convention on Human Rights to do more to fight climate change. This case is now being appealed to the highest court in the Netherlands.  Gerrard also discussed cases in Pakistan and Peru.

Next, Kristin Casper from Greenpeace International took to the podium. She described climate change as a “human rights crisis” and highlighted three of Greenpeace’s cases where local communities are using legal tools to “seek climate justice.”

In Norway, Greenpeace Nordic partnered with a Norwegian organization that sued the government, arguing that the issuance of oil and gas leases in Arctic waters was in contradiction with Norway’s international commitments and a breach of constitutional protections for future generations, the right to a healthy environment, and other human rights standards. The lower court found that the right to a healthy environment was, as Casper called it, a “claimable right with teeth,” but it did not find that the right was violated in this particular factual scenario. The case has been appealed.

In Switzerland, Greenpeace Switzerland supported a group of over 1000 senior citizen women who brought a case arguing that the government’s inadequate climate change policies contributed to heatwaves, putting their lives and health at risk. The decision in the lower court was not favorable, but the case is now on appeal.

In the Philippines, a group of Typhoon Haiyan survivors joined by Greenpeace Southeast Asia-Philippines and other organizations filed a legal petition with the Commission on Human Rights, seeking to hold major carbon-producing companies accountable for climate impacts that result in human rights harms. There have been 12 hearings, 26 community witnesses, and 52 experts who have given evidence, all of which can be viewed online.  The Commission has the ability to issue a report with recommendations and to continue to monitor the human rights situation in the Philippines with respect to climate change.

Finally, it was Paula Henin’s turn to share her insights.  First, she discussed mechanisms for interstate disputes arising out of substantive obligations of the Paris Agreement.

Article 14 of the United Nations Framework Convention on Climate Change is incorporated by reference in Article 24 of the Paris Agreement. Article 14-1 allows parties to settle disputes through negotiation and the peaceful means of their own choice, which could include arbitration or mediation. Article 14-2 states that contracting parties may consent by a separate written instrument to the compulsory submission of disputes to the International Court of Justice and/or to arbitration in accordance with procedures to be provided in an arbitration annex to be adopted by the Conference of the Parties “as soon as possible.” However, no arbitration annex has yet been adopted.

Henin also described the possibility for the UN General Assembly to refer legal questions to the International Court of Justice for advisory opinions. There has been discussion of using that mechanism for climate change issues.

Next Henin turned to disputes involving private actors. Most investor-state disputes go to arbitration under treaties or under investment contracts. In the arena of treaty-based arbitration, Henin said that there have been over 40 claims brought against Spain, Italy, and the Czech Republic after those states backpedaled on incentive schemes put in place to promote renewable energy levels. She said that some recent arbitral decisions have opened the door for a new mechanism in investor-state arbitration: environmental counterclaims against investors brought by states. Investment contracts may incorporate specific emission reduction obligations or arbitration clauses may be included in contractual commitments that arise directly out of Kyoto Protocol mechanisms like carbon emission trading or climate finance.

To conclude the panel, Casper exhorted the attendees to devote their intelligence and resources to working to make progress on climate change.

ASIL 2019 Recap: Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation

By Caitlin Hunter

ASILRegional Human Rights Organization of American States.JPG

Organization of American States

In Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation, panelists discussed fragmentation among the three major regional human rights courts: the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights (ACtHPR). Elena Abrusci provided insights from her research at the University of Essex’s Human Rights Centre. Silivia Serrano Guzmán and moderator Christina Cerna drew on their experiences working for the Inter-American Commission on Human Rights. Finally, Thomas Antkowiak drew on his work advocating before the IACtHR and ACtHPR as director of the International Human Rights Clinic at Seattle University School of Law. The panelists provided detailed, meticulously researched analysis of what fragmentation is; why and when it happens; and its impact.

  1. What is fragmentation?

Fragmentation occurs when international tribunals reach conflicting decisions on how to apply international law to similar scenarios.

  1. Why does fragmentation happen?

Abrusci identified two primary reasons:

  • Different judges. Abrusci’s data suggested that judges on the IACtHR and the ACtHPR are worldlier than their counterparts on the ECtHR. 70-80% of ACtHPR judges and 50-60% of IACtHR judges had received their legal education on another continent, mostly in Europe. In contrast, less than 10% of ECtHR judges had received their legal education outside of Europe. Similarly, 10-20% of ACtHPR and IACtHR judges had worked for a UN human rights body but less than 4% of ECtHR judges had done so.
  • Different deference standards. The ECtHR applies the margin of appreciation doctrine, which allows states some flexibility in applying the European Convention on Human Rights (European Convention) and takes into account the current consensus among European states. In contrast, the IACtHR applies the conventionality control doctrine, which requires all states to fully comply with the American Convention on Human Rights (American Convention).
  1. When does fragmentation happen?

Rarely. Panelists agreed that convergence is the norm and fragmentation is the exception. The IACtHR routinely looks to ECtHR jurisprudence and the ECtHR has looked to IACtHR jurisprudence in areas where it is more developed, as when the ECtHR adjudicated forced disappearances in Kosovo. However, panelists identified several notable examples of fragmentation:

  • Same-sex marriage. The ECtHR observed that most European states do not allow same-sex marriage and, applying the margin of appreciation, declined to interpret the right to marriage to include the right to same-sex marriage.[1] In contrast, the IACtHR explicitly rejected the ECtHR’s reliance on consensus and suggested that the right to marriage also applies to same-sex couples.[2]
  • The right to a criminal appeal. A protocol to the European Convention explicitly states that the right to a criminal appeal does not apply if the defendant is convicted by the country’s highest court or after an acquittal is overturned.[3] In contrast, the IACtHR has held that the right to an appeal applies in both of these situations.[4]
  • Indigenous property rights. The ECtHR has repeatedly failed to acknowledge indigenous collective property rights, ignoring not only well-developed IACtHR jurisprudence, but also an ILO convention and UN resolution.[5]
  • Reparations to victims. The ECtHR provides only a limited set of primarily financial remedies, while the IACtHR employs holistic remedies such as ordering the state to build medical centers, provide victims with scholarships, and formally apologize. Generally, panelists preferred the IACtHR’s approach but acknowledged that the IACtHR had sometimes ordered reparations so broad that they were effectively impossible to implement, as when the IACtHR ordered Honduras to ensure that all of its hundreds of prisons complied with all international human rights laws.

There are also notable examples where the courts have fragmented and then re-converged:

  • Access to information. The IACtHR interprets the right to freedom of expression to include a right to access to information.[6] The ECtHR initially rejected this view[7] but has gradually moved towards it, invoking the margin of appreciation and the growing consensus of European states in favor of access to information.[8] Paradoxically, although the ECtHR’s margin of appreciation typically causes fragmentation, here it permitted the ECtHR to converge towards the IACtHR.
  • The right to life. Under the IACtHR’s vida digna (dignified life) doctrine, the right to life incorporates social, economic, and cultural rights, such as the rights to food, shelter, and work. Although the UN Human Rights Committee has adopted the vida digna doctrine,[9] the ECtHR has generally ignored it and the ACtHPR has explicitly rejected it.[10] Advocates for social, economic, and cultural rights argue that treating them as a subset of the right to life subordinates them to civil and political rights and hinders their individual conceptual development. The IACtHR has begun to converge with the other two courts, applying the vida digna doctrine only to especially vulnerable groups, such as homeless children,[11] and finding alternative strategies to incorporate social, economic, and cultural rights.[12]
  1. Is fragmentation bad or good?

Like the panelists on the earlier Fragmentation in International Data Protection Law panel, panelists did not believe that fragmentation was inherently bad. In fact, panelists argued that some fragmentation among the regional human rights courts could help propel the development of new theories in international human rights law.

 

[1] Schalk and Kopf v. Austria, App. No. 30141/04, Eur. Ct. H.R. (2010), http://hudoc.echr.coe.int/eng?i=001-99605; Chapin and Charpentier v. France, App. No. 40183/07, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-163436.

[2] State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples, Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en.

[3] Article 2(2) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No.117, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117.

[4] Barreto Leiva v. Venezuela, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 206 (Nov. 31, 2009), http://www.corteidh.or.cr/docs/casos/articulos/seriec_206_ing.pdf; Mohamed v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 255 (Nov. 23, 2012), http://www.corteidh.or.cr/docs/casos/articulos/seriec_255_ing.pdf.

[5] Elena Abrusci, Judicial Fragmentation on Indigenous Property Rights: Causes, Consequences and Solutions, 21 The International Journal of Human Rights 550–564 (2017), https://doi.org/10.1080/13642987.2017.1307830.

[6] Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151 (Sept. 19, 2006), http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.pdf.

[7] Leander v. Sweden, App. No. 9248/81, Eur. Ct. H.R. (1987), http://hudoc.echr.coe.int/eng?i=001-57519.

[8] Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-167828.

[9] General Comment 36, para. 3 (2018), https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf.

[10] African Commission on Human and Peoples’ Rights v Kenya, App. No. 006/2012, Judgement, 26 May 2017, para. 154, http://www.african-court.org/en/images/Cases/Judgment/Application%20006-2012%20-%20African%20Commission%20on%20Human%20and%20Peoples%E2%80%99%20Rights%20v.%20the%20Republic%20of%20Kenya..pdf.

[11] Villagrin-Morales et al. v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 63 (Nov. 19, 1999), http://www.corteidh.or.cr/docs/casos/articulos/seriec_63_ing.pdf.

[12] Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017), http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf.

ASIL 2019 Recap: Fragmentation in International Data Protection Law

By Caitlin Hunter

In Fragmentation in International Data Protection Law, panelists discussed the rapidly spreading and often contradictory laws protecting consumer data, incorporating the perspectives of corporations (Geff Brown, Microsoft), consumer activist groups (Carolina Rossini, Access Now), academia (Peter Swire, Professor of Law and Ethics at Georgia Tech), and government (Justin Antonipillai, formerly of the Department of Commerce and currently of WireWheel). Here are five key take-aways:

  1. Data protection laws have gone from a parochial European phenomenon to a global trend.

Traditionally, European countries have been particularly active in pushing for data protection, as shown most recently in the EU’s enactment of the General Data Protection Regulation (GDPR). However, laws are spreading rapidly, with over one hundred countries implementing some sort of protections. All four of the BRICs countries have adopted or are considering data protection laws and the U.S. Congress is increasingly debating the issue. U.S. states are also passing data protection laws, including the recently enacted California Consumer Privacy Act and initiatives to pass laws in Vermont, Washington, and Massachusetts.

ASILFragmentation AccessNow homepage.PNG

Website of AccessNow, a consumer activism group, where panelist Carolina Rossini works.


2. Data’s move into the cloud means that data protection laws anywhere affect data everywhere.

Today, users anywhere may be accessing data on a server located anywhere and, as a result, domestic or regional data protection laws impact the entire world. U.S. organizations scrambling to comply with the EU’s GDPR are familiar with this, but the impact flows in the opposite direction, too. Before the recent passage of the U.S. CLOUD Act, a police officer who was investigating a local crime in the EU but needed evidence from a server in the U.S. might have to wait a year or more to get a warrant form a U.S. judge under the Electronic Communications Privacy Act. These concerns are not hypothetical- as a Belgian audience member heatedly complained, Microsoft’s Skype is currently fighting for its right not to provide wiretaps ordered by Belgian courts.

ASILFragmentation GDPR.PNG

GDPR website

 

 

  1. Fragmentation between data protection laws stems from different regions’ fundamentally different privacy frameworks.

European countries view privacy as a basic human right, enshrined in their Constitutions, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. This contrasts sharply with the U.S.’s strong emphasis on freedom of information. Typically, Americans assume that personal data can be used, unless there is a justification for prohibiting it, while Europeans assume that personal data cannot be used, unless there is a justification for permitting it. One panelist reported that an EU official privately confided that big data is probably illegal under the GDPR. If this conflict is not resolved, it will upend industries that have premised their future on massive use of big data.

ASILFragmentation WireWheel homepage.PNG

Website of WireWheel, where panelist Justin Antonipillai works.

 

  1. Compromises have broken down.

For years, U.S. companies and European countries accommodated their conflicting frameworks through a deal in which U.S. companies publically pledged to comply with EU data protection laws, allowing the U.S. Federal Trade Commission to take action against the companies for misrepresentation under U.S. law if the companies violated EU law. However, the future of this deal is in doubt, as the EU grows increasingly concerned with privacy. In 2015, the European Court of Justice (ECJ) struck down the original version of the deal, called the U.S.-E.U. Safe Harbor, in Maximillian Schrems v Data Protection Commissioner, C-362/14. Although the U.S. Department of Commerce quickly negotiated a new deal, now dubbed the EU-U.S. Privacy Shield, Schrems challenged the new deal, too, and it is again headed back to the ECJ, its future dubious. If the ECJ decides that U.S. privacy protections remain inadequate, this will impact not only tech companies in the U.S. but in any country that does not share the EU’s high level of privacy protection.

  1. Consistent laws are needed- but not necessarily uniform laws.

The fragmentation of data protection law has left tech companies scrambling to reconcile hundreds of conflicting laws. Within the U.S., many now advocate for a single, national data protection law, including the Chamber of Commerce and panelist Justin Antonipillai. However, even panelist Geff Brown of Microsoft believed that it was not only unlikely but undesirable to push for uniform laws internationally. Instead, he encouraged countries to develop a global forum that would allow them to create laws that reflect their own values but are consistent enough to be interoperable.