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.

ASIL 2019 Recap: The Law (and Politics) of Displacement

By Meredith Capps

ASILdisplacement.jpg
On Thursday, March 28, Jill Goldenziel of Marine Corps University moderated a discussion on legal and political challenges surrounding forced displacement, which is at an all-time high. Panelists included Itamar Mann of the University of Haifa; Daniel P. Sullivan of Refugees International; Alice Farmer, the Legal Officer for UN Office of the High Commissioner for Refugees (UNHCR)in Washington, D.C.; and Kristina Campbell, a clinical faculty member at the University of the District of Columbia.

Mann discussed some history of international law governing displaced persons, including the 1923 Treaty of Lausanne, which, in part, facilitated population exchange and redistribution between Greece and Turkey. In the human rights era following the World Wars, the forced movement of groups of persons became “the paradigm of a criminal act,”  with freedom of movement established in the Universal Declaration of Human Rights, and forced movement of populations prohibited in the Geneva Conventions. Mann identified the movement of Syrians out of Greece as a current challenge, and climate change as the impetus for movement a future issue.

Sullivan discussed the displacement of the Rohingya from Myanmar to Bangladesh, where roughly 1 million people now reside in camps. Rendered stateless in Myanmar as “illegal Bengalis,” the Rohingya are also not protected as refugees in Bangladesh (who has considered moving some to a disaster prone island in the Bay of Bengal). Despite clear evidence of criminal activity by Myanmar officials, an ICC referral may be blocked by Russia and China, and fact-finding missions and target sanctions have failed to impact change.

Farmer noted that with only 1/4 to 2/3 of displaced persons presently returning to their home state, traditional displacement solutions are no longer viable. Though some characterize migration north from Honduras, Guatemala, and El Salvador as economic migration, current patterns suggest a forced displacement, and UNHCR takes the position that many of those fleeing violence in these regions satisfy refugee criterion. The number of families migrating is particularly significant, and suggests that deterrence is ineffective. These changes in the nature of persecution test of weaknesses in international law, with adjudicators inconsistent in their approach to defining “refugee,” and burden sharing conversations amongst states fraught. While UNHCR is working to increase capacity in the Mexican asylum system and facilitate local integration, its capacity remains vastly below that of the U.S.

Campbell discussed U.S. immigration family detention centers, a new concept established during the mid-2000s. Per the Flores settlement agreement regarding detention conditions for minors, immigration authorities should preference release of minors to parents, and maintain humane, non-secure facilities. She described the few family detention centers in the U.S., and her clinic’s work assisting families in those centers, including credible fear reviews. Campbell said that the Trump administration’s June 2018 executive order did not, in fact, alter its zero tolerance policy that facilitated family separation, and it has no plan to reunite families separated as a result.

The panelists discussed several recurring, fundamental issues during the question-and-answer period. One was the idea of repatriation, with efforts to repatriate Rohingya during the 1970s cited as an effort that failed due to lack of political will, and safety concerns on the part of the group itself; when root causes remain unaddressed, repatriation is not a viable option. Domestic courts do, at times, enforce international norms to protect displaced persons, citing the East Bay Sanctuary Covenant case, but judicial enforcement can generate a backlash. Terminology used to characterize a situation can also either boost or diminishing political will. For example, when an NGO or state uses “ethnic cleansing,” rather than genocide or “crimes against humanity,” public sense of urgency may diminish. Conversely, frequent use of the term “crisis” or “surge” by advocacy groups and the media may desensitize the public.

Goldenziel also discussed the Global Compacts for Refugees and Migration, nonbinding agreements negotiated by many states, including the U.S., and adopted by the UN General Assembly, but whose status under international law is unclear. Negotiations resembled those for a treaty, with some states lodging statements similar to RUDs, and some states appear to consider it forceful despite its nonbinding status. The U.S. withdrew from the compact, citing sovereignty concerns.

Book Review: Reexamining Customary Law

By Jessica Pierucci

ReexaminingCustomaryLaw.jpgBrian D. Lepard (ed.), Reexamining Customary International Law (Cambridge University Press, 2017). 438 p. Hardcover $125.00.

Reexamining Customary International Law starts with a forward by Michael Wood, the International Law Commission’s (ILC) Special Rapporteur for “Identification of customary international law.” Wood discusses the need for a reexamination of customary international law (CIL) and how this book fits with the ILC’s work on identifying CIL. The opening leads nicely into the introduction by the editor describing the sweeping use of CIL across topic areas and beginning discussion of some of the ways scholars are interrogating issues within the often complex world of defining and demonstrating CIL.

The book then turns to Part I Reexamining Historical and Theoretical Perspectives on Customary International Law. J. Patrick Kelly focuses on the historical aspect by problematizing how CIL was a development of the most powerful Western states, ignoring the practices of non-Western and less powerful Western states and seeming to justify colonial expansion by situating European norms as CIL. Kelly then describes how the persistent objector principle is a relatively recent phenomenon appearing in the ninth edition of Oppenheim’s International Law, not in the first eight editions (p. 79). He argues that this principle makes CIL inconsistent by allowing demonstrations of non-consent to have value despite CIL generally being a set of norms applicable to all nations. The next three chapters all make theoretical arguments surrounding some of the complicated aspects of CIL. Fernando R. Tesón explores fake custom, listing myriad ways fake custom can be perpetuated and why this is a concern. Neils Peterson uses examples and charts to demonstrate the impact of consent in CIL and discuss benefits of rethinking how CIL works in practice. Thomas Kleinlein delves into the murky waters of the relationship between CIL and general principles. Each chapter is filled with dense analyses of this complex area of international law.

Parts II-IV reexamine CIL in different contexts, all interrogating the evidence used to demonstrate CIL and proposing ways to effectively show CIL in each topic area. Jean-Marie Henckaerts and Els Debuf discuss the International Committee of the Red Cross Customary International Humanitarian Law study and Customary IHL database, including how these resources have been used in practice and their impact on shaping the discussion of international humanitarian law. This provides an interesting glimpse into the impact of a nongovernmental organization laying out its take on the rules of CIL in a topic area. Noora Arajärvi discusses examples of international criminal tribunals invoking CIL, examining how opinio juris and state practice show up, or fail to do so, in tribunal judgments.

Turning to human rights, Brian D. Lepard examines the important question of whether human rights norms can be considered CIL given that so many states regularly violate human rights norms, thus challenging the state practice component of CIL. Lepard advocates for a new formulation of CIL in the human rights context. Anne Williams Shavers uses Lepard’s new formulation as a jumping off point to argue for a complementary approach in upholding women’s human rights.

Turning to the skies, Sofia Michaelides-Mateou reviews the evolution of international aviation law, giving particular attention to the relationship between air law treaties and CIL in the context of aviation, and some parallels with law of the sea. Frans G. von der Dunk turns to outer space law arguing that CIL plays a lesser role in outer space law than in other areas of international law with treaty law playing a central role in outer space law.

Part V concludes the book with reflections by Brian D. Lepard connecting the essays to one another and explaining how they collectively contribute to reshaping understanding of CIL. The conclusion brings the book’s title into full view by sharing the big picture of how Lepard believes CIL can and should be reexamined in light of the essays and how the editor believes CIL will move into the future.

CIL is a crucially important but often opaque component of international law. This book is a good, but dense, read for someone seeking to elucidate how CIL is used in different areas of law and understand critiques of that use. This book would fit well in any library looking to build their international law collection.

 

ASIL 2019 Recap: Late Breaking Panel: BREXIT and International Law

BrexitBy Marylin Raisch

Moderator: Oonagh Fitzgerald, Director of the International Research Program, Centre for International Governance Innovation, Ontario, Canada

Speakers: Robert Howse, New York University School of Law; Jessica Simonoff, U. S. Department of State; Sir Michael Wood, 20 Essex Street Chambers; Joao Rodrigues, European Parliament Liaison Office

The fact that the very day of this panel at ASIL was originally “Brexit Day,” that is, the day the UK Parliament was to exit the European Union, says a great deal about Brexit and the crisis at the nexus of international and constitutional law that it represents. However, it may happen April 12 if she cannot get her plan passed on this day, which would have given the UK until May 22nd instead.[1] (Or, as of this writing, at the end of this year if Labour cannot join up? Who knows…). This late-breaking panel was scheduled to end at 10:30 a.m., when the straw polling in Parliament on Prime Minister Teresa May’s proposal was to begin. And so it goes. (We learned soon after the panel session broke up that the proposal failed).

After briefly reviewing the timeline from the referendum in 2016, moderator Oohagh Fitzgerald provided a summary of the U.K. Supreme Court Decision of R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5]  (January 24, 2017). This is notable since the ruling of the court established that the UK executive could not just notify the European Council of its intention to withdraw from the EU; as with other UK treaties, an Act of Parliament would be required to permit that communication. (There is now in fact a European Union (Notification of Withdrawal) Act 2017 as of Royal Assent dated March 16, 2017). With at least this basic context in place, and some reference to the role of House of Commons speaker Bercow in requiring substantial changes before another vote on the same matter could take place, the Moderator posed a series of questions to the panel.

  1. What is the state of international law in the UK in light of BREXIT? Does it demonstrate that international law is working as it should?

Panelists articulated several perspectives on this excellent question and seemed to cover the range from internationalist to newer reassertions of sovereignty. For example, Sir Michael Wood, who participated in negotiation of the UK treaty of access to the EU in his time as an EU-focused lawyer, stated that EU law is not really autonomous. It is embedded in treaties and so it is largely part of public international law. The issue of Northern Ireland, and the UK ideally remaining in some sort of customs union to avoid a hard border, may become one of rules of interpretation. There is disagreement between the UK and the EU on whether the art. 50 withdrawal mechanism operates to contract the UK out of even customary international law rules. While Sir Michael pointed out that some MPs think “fundamental” and “unforeseen” changes in circumstances are manifested in the backstop situation, and Brexiteers (pro-Brexit MPs and ministers) think this might permit departure from the Brexit agreement (and its backstop under art. 62 of the 1969 Vienna Convention on the Law of Treaties), he is not sure that this would be so. (Brexiteers want to prevent an eternal tie to the customs union). Many are skeptical that evidence of concern over an issue such as that, expressed in advance, could ever allow that issue to be called “unforeseen.” This panelist shared that skepticism, as he is more of an internationalist and former lawyer working with the UN International Law Commission and the Foreign and Commonwealth Office.

A different view was taken by the panelist from the current US State Department. Jessica Simonoff viewed Brexit as an outsider and saw it as not about development of supranational governments but rather as showing the ongoing significance of national identity. The rules are developed by consent, as underscored by the ability to depart from a treaty.  International law is alive and well because even after the UK delegated some of its international negotiating authority to the EU, it now can re-familiarize itself with some international law rules.

Professor Howse of NYU Law then contributed insights from international economic law as he pointed out that the UK would still be under the multilateral rules of the WTO. The logistics of new trade agreements and the hard border are not like the arrangements around which supply chains are organized. Pro-Brexit forces seem to him not to understand how new globalized trade actually works now, and a hard Brexit would create initial chaos with serious shortages of goods, at least temporarily. He also commented on the politics of Brexit, which he attributed in part not to a return to lost sovereignty, but to the work of elites using populism for political career advancement.

Panelist Rodrigues quipped that he “owns” his hat as EU bureaucrat. However, he prefers the term civil servant, a profession her noted ironically was established by the British.  The EU is an international organization, but one created by a body of laws that has a constitutional nature. He sees Brexit not really a legal question, because it is allowed under the treaty in the procedure outlined by the UK case. Moreover, a case went to the European Court of Justice on the issue of unilateral withdrawal from the Brexit process, and it was ruled permissible if done democratically. So the legal part is all sorted. But he asked the political question of how does a member state get itself to a decision to leave? What is disturbing is that here we are on Brexit Day and there is no clear manifestation of British will. International law is well; political process in Britain is not.

  1. May cannot use crown prerogative per the Miller case, in this instance of a treaty, but now can she not move ahead with a statute in place?

Sir Michael Wood pointed out that even with some of the specific legal hurdles surmounted, the situation carries huge implications for UK constitutional law and there should never have been a referendum. While the rule of law and the idea that a minister cannot put same issue to vote twice in same Parliament is the same rule that in UN from parliamentary procedure.  Treaties are executive and Parliament is not usually part of negotiations. In this case it has led to big problems.

Ms. Simonoff and Professor Howse, sharing a US perspective, observed that whether the UK is able to pull out of treaty has been moved to Parliament as a matter of constitutional law. Simonoff then compared the process to NAFTA withdrawal and Congressional involvement in those types of agreements. Howse noted and agreed that NAFTA would need some Congressional action for withdrawal. For WTO withdrawal, he speculated, were it to be contemplated, it would have to be based on resolutions of Congress, because the provision for review works through a Congressional process.

Rodrigues noted that there the Task Force on Article 50 Negotiations website was quite transparent, and indicated publicly what they would or would not accept. The EU 27 were united in how to deal with situation. Unlike Professor Howse, however, he thought populism played a crucial role.

  1. Is there a new bilateralism? Will getting out of massive relationship make the UK able to enter into such new agreements? Moderator Fitzgerald noted that European Council President Tusk thought bridging gap between any popular vote and orderly obligations needs to be worked out ahead and we have not seen that here in concrete plans for a new arrangement.

While Sir Michael Wood observed that the EU is not really multilateralism of the usual kind, Jessica Simonoff of US State thought that while bilateralism may simplify a discussion, a treaty negotiation is never really bilateral, as there are other voices in the room. Actions in the UK will always affect the EU. Contracts in many areas will be affected in the realm of private parties (for example, phone roaming fees now in EU after Brexit).

Professor Howse noted that ironically the less-discussed fall-back rules for the UK is a much bigger WTO multilateralism. The EU has now proven that it is a community of choice and right to depart is a real right. Euro-skeptics can now be shown that this is not like the old Soviet Union (to exaggerate) and that the EU made a good faith response. In his role as the EU civil servant on the panel, Mr. Rodrigues agreed that the EU will have to be flexible and negotiate a new trade agreement with the UK itself, so that is certainly bilateral.

  1. Q and A from the attendees consisted of three main questions:
    1. Will there be a way to adjudicate new disputes if there is a hard Brexit?
    2. Will the Good Friday Agreement and human rights in general be respected through some inclusion of the EU treaties’ principles on fundamental freedoms, and equality before the law, as applied in Ireland/N Ireland?
    3. Can the panel address what can be fairly referred to as a dishonest referendum? It was a dishonest vote: had it been between Remain and a version of Brexit, Remain would have won. The referendum was not an exercise in democratic will because no specific version of withdrawal was proposed.

The panelists answered all three questions together. Sir Michael Wood does think that temporary fixes will be used in a hard Brexit regarding air travel etc. He mused that the UK is paying to leave, and what if they say won’t pay if EU does not approve withdrawal agreement? Ms. Simonoff agreed that now that more information available, a second referendum could be good idea and not anti-democratic. Professor Howse thought democracy was manifested in the first vote, but people are also free to change their minds. Joao Rodrigues stated that the EU just sees it as done deal. Some provisional measures were taken by Council and Parliament to address a no-deal Brexit, such as in areas of customs, pharmaceuticals, etc., about 18-20 special measures, in fact. He thinks financial obligations of the agreement will come into the negotiations for a new UK- EU trade agreement, and rights of citizens as between the two jurisdictions will also play a part. He bases this on the UK rebate on fees that Prime Minister Margaret Thatcher negotiated in the 1980s as manifestation of UK exceptionalism; they got it in 1984, so perhaps now as well.

As the panel ended and everyone left ready to check phones for news of the impending vote, all panelists- and attendees, no doubt- seemed to agree that whatever else it may be, Brexit has been good for stimulating interest in international law, and very good for lawyers.

 

[1] Update and Brexit timeline summary from a research report posted at the official Parliament website: “In a referendum held on 23 June 2016, the majority of the UK electorate voted to leave the European Union.

On 29 March 2017, in writing to European Council President Donald Tusk, the Prime Minister formally triggered Article 50 and began the two-year countdown to the UK formally leaving the EU (commonly known as ‘Brexit’).

The UK has long been expected to leave the European Union at 11pm on 29 March 2019.  However, following a House of Commons vote on 14 March 2019, the Government sought permission from the EU to extend Article 50 and agree a later Brexit date.

On 20 March 2019 the Prime Minister wrote to European Council President Donald Tusk, asking to extend Article 50 until 30 June 2019.

Following a European Council meeting the next day, EU27 leaders agreed to grant an extension comprising two possible dates: 22 May 2019, should the Withdrawal Agreement gain approval from MPs next week; or 12 April 2019, should the Withdrawal Agreement not be approved by the House of Commons.”

 

New FCIL Librarian Series: Spring Cleaning: Weeding the International Reference Print Collection

By Sarah Reis

This is the fourth post in a series of posts about adjusting to my new position as a foreign and international law librarian. I started my position at the Pritzker Legal Research Center at Northwestern Pritzker School of Law in February 2018.

Reis - I REF Collection.jpg
Our library has a collection of international reference materials (I, REF) in print that includes items such as dictionaries, research guides, directories, and encyclopedias intended for in-library use only. In anticipation of upcoming renovations, I have been doing a bit of spring cleaning—reviewing our international reference collection to determine which books should stay in our new downsized reference section and which books should be sent to our closed stacks/basement, off-site storage, or withdrawn.

I created a spreadsheet with all of the titles in the collection to keep track of my recommendations for where the various books should go. We had a little over 250 titles (including series) for a total of nearly 900 individual books spanning over three short bookcases in the international reference collection. It was easier than expected for me to recommend reducing the size of this collection down to about 15% of that initial size (to approximately 125 books).

A significant number of titles in this collection were either outdated or available electronically, which made it easy for me to suggest for them to be stored elsewhere. But occasionally, I would recommend for us to keep a print copy of a title in our reference collection despite having online access. I primarily suggested keeping titles such as the bilingual/multilingual legal dictionaries as well as dictionaries or encyclopedias pertaining to specific areas of international law (e.g., international trade, terrorism, human rights).

During the course of this project, I discovered several items for which we also have electronic access either through one of our subscription databases or freely available online. For instance, we had digital access to many of the encyclopedias in this collection, such as the Oxford Encyclopedia of the Modern Islamic World (via Oxford Islamic Studies Online), Encyclopedia of Genocide and Crimes Against Humanity (via Gale Virtual Reference Library), and the Oxford Companion to Politics of the World (via Oxford Reference Premium Collection). Additionally, many other titles were available through HeinOnline. I am brainstorming effective methods to make students aware of the availability of electronic access to many of these international reference books, whether it be by adding them to our A-Z database list or perhaps creating a new research guide on international reference materials available electronically.

Many items in the collection were outdated, particularly the directories, but also items like Treaties in Force (we had 2012 and 2013 on the shelf!) and research guides geared toward conducting research online from 1996 or 2000. On several occasions, I even discovered that our online access to a title was more up-to-date than the print copy on the shelf.

A project like this would be beneficial for a new FCIL librarian who is looking for a good way to familiarize herself or himself with an important part of the law library’s FCIL collection. Going forward, I intend to review this international reference collection every year or two to ensure that it remains fresh and up-to-date. Too many outdated titles bring down the usefulness and perceived value of the collection as a whole. The collection also needs space to grow. I am eagerly awaiting the arrival of new materials that will be “planted” in this collection, such as the International Citator and Research Guide: The Greenbook!

From the Reference Desk: Public Participation in Constitution Drafting

By Amy Flick

A request came through the library’s Student Research Consultation Request form, asking for help finding national constitutions that meet the human rights requirement of public participation, as well as the primary documents with the background or legislative history on the drafting process.

Misunderstanding the question, I prepared a quick list of my standard sources for searching national constitutions: the Constitute Project, and the databases for Hein Online’s World Constitutions Illustrated, Oxford Constitutions of the World, and the Max Planck Encyclopedia of Comparative Constitutional Law.

sr107-democratic-constitution-making-coverWhen the student arrived, I found that these weren’t the resources the student needed. She wanted examples of national constitutions whose drafting processes involved public participation. Searching within constitutions got us constitutional provisions for referenda and amendments, but not the drafting of the constitutions themselves.

I mapped out what I thought would be our four steps: see if there are any books or articles specifically on public participation in constitution drafting, find more general secondary sources on constitution drafting requirements, find specific constitutions that meet the requirements, and then find the documents related to those constitutions.

That was not the route we took either. As it turns out, there has been much written about public participation in constitution drafting. And many of those resources include multiple specific examples of national constitutions, complete with document citations.

We started with law review articles in Hein Online. “Constitution making” and “constitution building” worked better as search terms than “constitution drafting,” and not all articles that mentioned “public participation” provided on good examples. We refined by topic to “comparative law,” since some of our original results were not on foreign law. Most were on specific countries, including Iceland’s efforts to crowdsource a constitution. We did find some that compared the process in different countries, including:

  • David Landau, Constitution-Making Gone Wrong, 64 Ala. L. Rev. 923, 980 (2013)
  • Abrak Saati, Constitution-Building Bodies and the Sequencing of Public Participation: A Comparison of Seven Empirical Cases, 10 J. Pol. & L. 13, 25 (2017)

Our catalog had some good print resources that compared the drafting processes in multiple countries, and these included discussions of public participation, the issues with constitution drafting, and a lot of citations to other books and articles. Two of the relevant books in our collection are:

  • Tania Abbiate, Markus Böckenförde & Veronica Federico, Public Participation in African Constitutionalism (2018)
  • Framing the State in Times of Transition: Case Studies in Constitution Making (Laurel E. Miller ed., 2010)

The Max Planck Encyclopedia of Comparative Constitutional Law was helpful as well. There was an entry by Joel I. Colón-Rios on Drafting of Constitutions, and it included a bibliography, plus a few document citations.

We tried a Google search for some of the cited documents, and we expanded from there to a more general search for “constitution drafting public participation.” We found several helpful articles and documents that way. I wasn’t sure how authoritative some of our results were, but they included many examples of constitution building to work from. Our better finds included:

Having found all this, we had plenty of examples for the student to look at. She planned to read further to focus on the better examples of public participation in drafting national constitutions. With specific examples in mind, I suggested more resources for books and articles.

  • vLex Global has books on the constitutions of the Latin American countries, including Ecuador
  • Index to Foreign Legal Periodicals on Hein Online
  • Emory’s library catalog has books on South Africa’s constitution drafting process
  • Oxford Constitutions of the World has constitutional overviews with discussion of the constitution drafting process, as well as bibliographies
  • Hein Online World Constitutions has scholarly articles on the constitutional history of many constitutions, most of them available on Hein Online

Finding the primary documents on the drafting process was more difficult. The secondary sources we found included discussions of the drafting process for many constitutions, and the secondary sources may be the best, and most available, sources for the student to cite. Although some of the books and articles included URLs for constitutional assemblies and other government sources, few of the URLs or links still worked. WorldCat had a few entries for reports and working papers from constitutional conferences and assemblies, but these could be more difficult to get through interlibrary loan, and would amount to a great deal of material to read through without specific page or date citations.  Where the secondary sources included citations to Official Gazettes, sources for those include:

For this student’s paper on public participation in the drafting of national constitutions, I recommended that the student focus on a few of the best examples. She is looking at Iceland and South Africa, but she may add one or two additional countries. This was a good project for letting secondary sources do a lot of the work of pointing out the best examples and providing citations, as well as including scholarly analysis. Finding the primary documents might be possible, but the student should let the secondary sources narrow down where to look.