ASIL 2023 Annual Meeting Recap: Protecting Cultural Heritage in Conflict Zones: Multidisciplinary Approaches

By Charles Bjork

This year’s annual meeting of the American Society of International Law in Washington, D.C., concluded with a special panel discussion on Protecting Cultural Heritage in Conflict Zones.  The discussion was held off-site at the National Museum of Asian Art on Saturday, April 1st.  Conference attendees who registered for this special event enjoyed private small-group tours of the museum before it opened to the public.        

            The panel consisted of Patty Gerstenblith, Distinguished Research Professor of Law and Director of the Center for Art, Museum, and Cultural Heritage Law at Loyola University (Chicago) College of Law; Brooke Guven, Head of Environmental, Social, Governance, and Sustainability at Cerberus Capital Management; Richard Kurin, Distinguished Scholar and Ambassador-at-Large at the Smithsonian Institution; and Zaydoon Zaid, President of the American Foundation for Cultural Research.  Tess Davis, Executive Director of the Antiquities Coalition, served as the moderator.

To begin the discussion, Davis asked Kurin to justify devoting time and treasure to protecting cultural heritage in the midst of an armed conflict when there is so much human suffering that needs to be alleviated.  Shouldn’t the humanitarian needs of non-combatants take precedence?  Or, to put it the question another way, isn’t the protection of cultural heritage a luxury that we should only indulge in during peacetime?  Kurin insisted that cultural heritage shouldn’t be seen as a luxury, but rather as an essential source of strength and resilience and strength during times of adversity and suffering.  As an example, he pointed to the makeshift conversion of Kiev’s subway stations into concert venues to provide a safe space for both classical and contemporary music performances while the city is still vulnerable to Russian missile and drone strikes.

Kurin also noted that armed conflicts aren’t fought exclusively over land and natural resources.  Many also have a cultural component.  Indeed, one impetus for Vladimir Putin’s war of aggression against Ukraine is the destruction of its cultural identity as something unique and distinct from that of Russia.  Fortunately, the war seems to have had precisely the opposite effect.  Gerstenblith agreed with Kurin’s remarks about the cultural dimension of warfare, noting that Rafael Lemkin’s original draft of the 1948 Genocide Convention included a cultural heritage provision.  Although this provision was not included in the final draft of the treaty, the fact that it was given serious consideration indicates that the protection of cultural heritage has deep roots in international law.

Gerstenblith provided an overview of the international legal framework for the protection of cultural property.  The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict obligates state parties to adopt protective measures to designate and safeguard cultural property within their respective jurisdictions during peacetime.  It also requires state parties engaged in armed conflict with another state, or occupying the territory of another state, to respect cultural property and refrain from looting or endangering it.  These obligations include the creation of special military units charged with safeguarding cultural property by, for example, creating “no-fire lists” of buildings and monuments that should not be targeted for military strikes.  State parties also are required to enact criminal sanctions for violations of the convention. 

The 1970 UNESCO Convention Prohibiting the Elicit Import, Export, Transfer of Ownership of Cultural Property establishes a framework for state parties to enact preventative measures to combat trafficking in cultural property.  These include periodic inventories, export certifications, trade monitoring, and criminal sanctions.  The treaty also establishes restitution provisions for the recovery of illegally exported cultural property, as well as measures to facilitate cooperation, the exchange of information, and mutual assistance among state parties. 

The bifurcated approach established by these two foundational treaties offers many advantages.  However, complications can arise when a country has ratified one of the treaties but not the other.  For example, in the aftermath of the U.S. invasion and occupation of Iraq in 2003, efforts to combat the destruction and looting of cultural heritage sites initially were hamstrung by the fact that the U.S. had signed but never ratified the 1954 Hague Convention.  As a result, U.S. military personnel were not subject to the same rules and procedures for the protection of cultural property that guided the operations of coalition forces from jurisdictions that had ratified the treaty.  Eventually, U.S. commanders concluded that the only way to effectively safeguard Iraq’s cultural heritage was for the U.S. to voluntarily adopt the rules and procedures specified under the treaty.  This experience provided the impetus for the U.S. Senate to finally ratify the Hague Convention in 2009.

Kurin explained how the belated ratification of the Hague Convention by the U.S., and the subsequent enactment of its implementing legislation, led to the creation of the Cultural Heritage Coordinating Committee (CHCC) by the State Department in 2016.  Building upon the legacy of the “Monuments Men” during World War II, the CHCC coordinates the federal government’s diplomatic, military, and law enforcement initiatives to protect and preserve cultural heritage sites throughout the world, to combat trafficking in illegal antiquities, to disrupt trafficking networks, and to facilitate the lawful exchange of cultural property.  Kurin described the establishment of the CHCC as a game changer that has enabled 16 federal agency partners to more effectively communicate with each other and better coordinate their efforts to safeguard the world’s cultural heritage.

Davis asked Zaid to comment on the ongoing civil war in Yemen and how the situation there differs from recent conflicts in Syria and Iraq.  As in Syria and Iraq, Zaid explained, insurgent groups with political aspirations have been looting cultural heritage sites trafficking in cultural property to finance their operations.  However, the scale of pillage is even greater in Yemen, due to the total collapse of central authority in much of the country.  This power vacuum has opened the door for criminal gangs, with no political agendas, to join the in the looting and trafficking.  The withdrawal of most Western observers and aid workers, due to safety concerns, makes it impossible to accurately monitor what is happening.  Despite this dire state of affairs, a few bright spots have emerged, most notably the recovery of 77 Yemeni cultural objects recently seized by U.S. government, which will be held for safekeeping at the National Museum of Asian Art on behalf of the Republic of Yemen, pending a resolution of the conflict. 

Davis asked Guven to comment on the role of the private sector in protecting cultural property and cultural heritage.  Guven said that there is a common misconception that investors are indifferent, if not actively hostile, to laws and regulations that safeguard cultural heritage.  In fact, many of the wealthy clients of Cerberus Capital Management and other private equity firms also are patrons of the arts.  They don’t want to invest in businesses or projects that cause damage to cultural property or endanger cultural heritage.  The problem is that the executives and fund managers who run Cerberus don’t speak the language of cultural preservation.  Guven described her role as akin to that of a translator.  She makes sure the legal and regulatory frameworks that protect cultural heritage are communicated to the relevant decision makers using terminology that is familiar to people whose background is in finance and accounting (due diligence, liability, risk management, etc.)  Some of her biggest challenges are spotting the potential for investments to damage or endanger cultural property, connecting the dots, and navigating inconsistencies in regulatory regimes among jurisdictions.

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 2 of 3)

By Charles Bjork

For Pt. 1 of the post recapping this session, see ASIL 2023 Annual Meeting Recap:  Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3).

Pritchard-Kelly noted two other important differences between the physical environment of space and the physical environment of the oceans.  First, the oceans are more accessible, making it far less costly and more technologically feasible remove debris from the oceans than it currently is to remove debris from space.  Second, unless plastic debris is removed from the oceans, it will remain there forever.  Space debris orbiting the Earth has a more limited lifespan.  Over time, its velocity will diminish until it eventually falls out of orbit.  When it does, all but the very largest pieces debris will burn up and disintegrate upon contact with the Earth’s atmosphere.  The primary danger posed by most space debris is its potential for colliding with functioning satellites and space vehicles while it remains in orbit. 

Dadwal noted that the European Space Agency recently unveiled its “Zero Debris” initiative, which aims to eliminate the generation of new space debris in low-Earth orbits by 2030.  She then asked the panel members what steps must be taken to meet this ambitious goal.  The good news, as Pritchard-Kelly observed, is that the dangers posed by space debris are now universally recognized and acknowledged.  State actors and private sector actors, regardless of their nationality, want to protect their expensive space assets from damage and loss.  The European Space Agency, NASA, and other national space agencies have responded by adopting soft-law instruments to encourage the adoption of more sustainable practices in the design of new satellites and space vehicles.  Contractors who wish to do business with these space agencies must adhere to their sustainable design principles.  National regulatory bodies that license satellites are increasingly open to enacting sustainable design regulations.  As a result of these soft law and regulatory initiatives, the next generation of satellites are being “designed for demise,” meaning that their component materials and the methods used to construct them are being altered to ensure that they will rapidly burn up when they de-orbit and reenter the Earth’s atmosphere, thereby minimizing the chances that any debris will be left behind.  Nelson stressed that these soft-law instruments have significant limitations and are no substitute for updating the now woefully out-of-date Space Liability Convention of 1972.  Nevertheless, they are a step in the right direction.

NASA image, Public domain, via Wikimedia Commons

Pritchard-Kelly cautioned that even if the European Space Agency’s Zero Debris goal is met, we still have to find ways to remediate the enormous amount of space junk currently in orbit, as well as the new space junk that will be generated when older satellites, that were not built using sustainable design principles, reach the end of their working lives.  Encouragingly, a handful of entrepreneurs have founded start-up companies to determine if there is sufficient demand from the private sector to pay for the removal of space junk on a commercial basis.  It remains to be seen if any of these start-ups will prove to be commercially viable in the long-run. 

An even thornier issue for the international community to resolve is the potential use of anti-satellite (ASAT) weapons to incapacitate or destroy satellites for strategic purposes.  To date, only handful of jurisdictions (the U.S., Russia, China, and, most recently, India) have shot down some of their own satellites to demonstrate their ASAT capabilities.  While no one questions the inherent right of states to defend themselves, the ASAT testing that has been done to date appears to have generated significant amounts of space debris.  The volume of debris, and the potential for it to cause collateral damage, has ended speculation that ASAT weapons could be routinely used to dispose of older, decommissioned satellites.

Dadwal asked Villegas to comment on recent developments in international law governing marine resources and their implications for the future development of space law.  Villegas began with a brief overview of the new multilateral Convention on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdictions (popularly known as the BBNJ Treaty).  He explained that the new treaty was drafted by the Intergovernmental Conference on Marine Biodiversity convened by the United Nations in 2017.  After nearly six years of negotiations, the Intergovernmental Conference reached an agreement on the text of new treaty on March 4, 2023.  It establishes a framework for the creation of marine-protected areas and the enactment other conservation measures in the high seas, beyond the jurisdictions of individual nation states.  Villegas expects the Intergovernmental Conference to formally adopt the draft text of the proposed BBNJ Treaty at its next meeting in June and to move expeditiously to open the treaty for signature and ratification. 

Last year, at a meeting in Nairobi, the 175 member states of the U.N. Environmental Assembly, the governing body for the U.N. Environmental Program, passed a resolution to draft another new multilateral treaty to reduce plastic pollution.  A key component of the proposed treaty will be to effectively manage the “total life cycle of plastics,” from their initial production, to their reuse, recycling, and disposal in a responsible manner that minimizes the risk of pollution.  This holistic approach to the management of plastics could serve as model for a future convention governing the lifecycle of objects that are launched into space.  Villegas cautioned that significant fault lines have emerged between states that favor binding commitments to reduce the use of plastics and to practice responsible disposal methods and states the favor a more aspirational, soft-law approach. 

Turning next to the ever-expanding role private actors in space, Dadwal asked the panel if this phenomenon helps or hinders efforts to reduce the volume of space junk and promote greater sustainability.  Pritchard-Kelly said there is no question that the commercialization of space will increase the volume of space junk in the short term.  She noted that when the multilateral treaties that govern the use of space were negotiated in the late 1960s and early 1970s, only state actors (and, in practice, only the U.S. and the Soviet Union) had the capacity to launch objects into space.  Shortly thereafter, in the late 1970s, the telecommunications satellite industry began to emerge.  Today, as the number of commercially operated satellites continues to grow, private actors are on the cusp of developing whole new industries, such as space mining, space manufacturing, and even space tourism.  Yet, the existing legal framework for space operations has very little to say about the regulation of private sector actors.

In the absence of a more robust regulatory framework, Pritchard-Kelly anticipates that economic incentives will drive the private sector to embrace greater sustainability.  Villegas concurred with this assessment, noting that companies like Elon Musk’s SpaceX, Jeff Bezos’s Blue Origin, and Richard Branson’s Virgin Galactic are pioneering the development of reusable launch systems and reusable space vehicles.  These new businesses will not be scalable or profitable in the long-term unless recyclable components become the norm, not the exception, in space.  The private sector’s willingness to embrace reuse and recycling – even if motivated more by economic necessity than principle – will significantly reduce the volume of new space junk generated in the future. 

While government regulatory agencies will continue to play an important role in promoting sustainability, Nelson observed that they are subject to significant limitations.  .He cited the turf wars that occasionally erupt between NASA, the Federal Aviation Administration, the Federal Communications Commission, and other federal agencies responsible for overseeing various aspects of the emerging space industries.  He also cited a lack of consistency in regulatory regimes and licensing standards among jurisdictions.  Nelson noted that insurance companies, which act as informal regulators in space, often operate more rationally and predictably than their governmental counterparts, which may be constrained by industry lobbying and political meddling.  Pritchard-Kelly wholeheartedly agreed with Nelson on the critical role played by the insurance industry in promoting safety.  She expects insurers to lead the way in establishing minimum standards of conduct for emerging space industries by penalizing companies whose operations cause accidents resulting in losses and by refusing to insure companies that fail to adopt best practices. 

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3)

By Charles Bjork

The annual meeting of the American Society of International Law, held each spring in Washington, D.C., usually features at least one panel sponsored by the Space Law Interest Group.  In prior years, some of these panels have focused on the kind of attention-grabbing topics that have inspired generations of Hollywood screenwriters, such as how the nations of the world might respond if scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage.  The subject of this year’s space law panel was a bit more mundane:  the problem of space junk and what to do about it.  Space junk is defined as any artificial (human-made) object within the Earth’s orbit that no longer serves a useful purpose.  The term encompasses everything from defunct satellites and spacecraft, to the remnants of launch vehicles, to tiny fragments left behind after the disintegration or collision of other pieces of space debris.  Panel members were asked to consider whether, and to what extent, international legal regimes developed to protect marine ecosystems and remediate pollution in the world’s oceans could be applied to address the issue of space junk.        

NASA, CC0, via Wikimedia Commons

The panel consisted of Timothy G. Nelson, a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, specializing in international litigation and arbitration; Ruth Pritchard-Kelly, a senior advisor on regulatory and space policy at OneWeb, a satellite telecommunications network based in London; and Andrés Villegas, co-chair of the International Litigation and Arbitration Division at Sygna Partners (Paris) and a former senior legal advisor at the Ministry of Foreign Affairs of the Republic of Colombia.  Viva Dadwal, an associate attorney at King & Spalding specializing in international arbitration, served as the moderator.

Dadwal provided a contextual framework for the discussion by sharing some rather alarming statistics comparing the enormous amount of plastic waste that has accumulated in the world’s oceans with the rapid proliferation of space junk orbiting the Earth.  Each year more than 300 million tons of plastics are produced worldwide, and at least 14 million tons of plastic waste end up in the world’s oceans.  Plastics now account for roughly 80 percent of all marine debris, from surface waters to deep-sea sediments.  Unlike organic matter, plastics do not decompose and so will remain present in marine ecosystems indefinitely.  Nevertheless, many commonly used plastics are prone to breaking down over time into smaller and smaller particles, known as micro-plastics.  Of the estimated 50 to 70 trillion pieces of plastic in the oceans, the majority of these are micro-plastics.  By 2050, according to some estimates, there may be more plastics in the oceans (by weight) than fish. 

Although space junk is a more recent phenomenon than plastic waste in the oceans, the accumulation of debris orbiting the Earth is no less alarming.  According to models produced by the European Space Agency’s Office of Space Debris, there are currently an estimated 36,500 objects greater than ten centimeters in diameter within the Earth’s orbit.  The volume of smaller space debris is even greater:  an estimated 1 million objects between one and ten centimeters in diameter and an estimated 130 million objects between one millimeter and one centimeter in diameter.  The danger is that repeated collisions of space debris over time could result in a cascade effect, in which larger and larger clouds of accumulated debris will make it increasingly difficult for satellites to operate in Earth’s orbit.  This phenomenon, also known as the “Kessler syndrome,” could, in a worst-case scenario, make it impossible to safely launch new satellites into orbit around the Earth or to safely launch exploratory vehicles into outer space. 

To kick off the discussion, Dadwal quoted from a letter to editor published in the March 10^th issue of Science magazine, in which several prominent scientists asserted that, like the high seas before it, the Earth’s orbit is being treated as a global commons, and that the exploitation of what appears to be a free resource obscures the true cost of environmental damage.  The authors of the letter went on to call for international cooperation to address the urgent need to reduce the volume of space debris before the Earth’s orbit suffers the same fate as the world’s oceans.  Dadwal asked Nelson if he agreed with the underlying premise of the scientists who wrote the letter to the editor, namely that the international legal regimes developed to protect the world’s oceans can be applied to remediate environmental damage in space.

Nelson agreed with the underlying premise in principle.  Nevertheless, he emphasized that there are critical differences between the physical properties of space and those of the world’s oceans.  These differences are easily obscured by pop cultural references that equate space travel with maritime navigation.  Long before space exploration became a reality, science fiction writers deployed maritime terminology to describe what are now universally referred to as spaceships.  So ingrained in our popular culture are these maritime metaphors (These are the voyages of the starship Enterprise.) that it is tempting for the casual observer to assume that space law can simply adopt the legal paradigms designed to safeguard the oceans.  In practice, Nelson noted, these paradigms must be modified to reflect the profound physical differences between the maritime environment and the space environment.

Foremost among these physical differences is the fact that space debris orbiting the Earth at very high speeds possesses enormous amounts of kinetic energy.  As a result, even debris as small as one centimeter in diameter has the potential to cause catastrophic damage if it collides with a satellite or a space vehicle.  Any new legal regimes developed to address the problem of space junk must take this intrinsic danger into account.  In contrast, human-made maritime debris, known as flotsam and jetsam, poses little risk to travel and shipping on the high seas.  Larger ocean-going vessels can sail through it, and smaller vessels can navigate around it. 

ASIL 2023 Annual Meeting Recap : “International Law as a Tool Against Democratic Backsliding”

By David Isom

In recent years, events in countries including Brazil, Hungary, India, Indonesia, Israel, Poland, the Philippines, Russia, Turkey, the United States, and many others have led to fears that democracy worldwide is backsliding. With antidemocratic leaders co-opting the language of human rights to serve their own purposes, can international law guide the public regarding what really are and aren’t matters of human rights? Can international law offer protection for human rights defenders who are increasingly under attack, both figuratively and literally? In the face of democratic backsliding, what role can national courts play in promoting human rights? At this year’s American Society of International Law Annual Meeting in Washington, DC, Professor Diane Desierto of Notre Dame Law School moderated a session titled “International Law as a Tool Against Democratic Backsliding” which addressed such questions and the broader role that international law might play in countering antidemocratic trends.

The panel featured Shahrukh Alam, a human rights advocate at the Supreme Court of India; James Cavallaro, Executive Director of the University Network for Human Rights and a lecturer at Yale Law School; Professor Olabisi Akinkugbe of Dalhousie University Schulich School of Law; and Omar Shakir, Israel and Palestine Director at Human Rights Watch. The discussion of how a diverse range of groups (theocrats in the United States, Hindu nationalists in India, neo-imperialists in Russia) have all sought to justify their positions using the language of human rights law was fascinating, and it was interesting to hear the panelist’s views of how democratic backsliding is or is not happening in the countries on which they focus. As always, time constraints prevented the discussion from delving deeply into the subject, but it was a very strong session on a timely topic and a highlight of the conference.

From left to right: Diane Desierto, Olabisi Akinkugbe, Omar Shakir, James Cavallaro, Shahrukh Alam (on screen)

Participating from India by video, Alam began the discussion by calling the use of the vocabulary of human rights law to justify antidemocratic action as an “autoimmune disorder of democracy,” citing hate speech in India by the ruling caste and the Bharatiya Janata Party towards the country’s Muslim minority as an example. Further aggravating this problem, Alam said, is the colonial criminal justice system India inherited, which puts arrest at the beginning of the procedural process rather than at the end of an investigation: police can keep people in prison for 90 days without charges, and holders of public office are immediately suspended from such roles—making it a powerful weapon against political enemies. Increasingly, arrests for ordinary acts of speech and protest—particularly of Muslims and members of lower castes—are being made under the special terror acts instituted in the wake of the 2008 Mumbai attacks, which allow detention on terror charges for up to 180 days.

Cavallaro said that the human rights movement has traditionally advocated for a thin notion of human rights, primarily by reacting to atrocities—environmental and economic justice did not have much of a presence in human rights activism until relatively recently. Vladimir Putin—who has justified Russian aggression on the grounds of “self-determination of the Russian people”—does not have a monopoly on distorting human rights law—so how can ordinary people distinguish between what are real human rights issues and what aren’t? Few media sources are capable of covering this well, but we can delegate to human rights organizations that work to document such phenomena. Finally, he said, the fact that the terminology of human rights law has been co-opted should be seen as a sign of its arrival as a real influence.

Akinkugbe pointed out that democratic backsliding isn’t happening everywhere—for example, the governments in Kenya, South Africa, and Nigeria have allowed recent protests by opposition parties (though recent events in Zambia and elsewhere show that this is not the case across all of Africa). He also observed that democratic backsliding happens differently in different places, and said that we should distinguish the co-optation of human rights language by political parties trying  to rally their bases from actual democratic backsliding. In various national courts in Africa, claimants have adopted the language of human rights to get a foothold in court, and such “democratized disinformation” continues to be a challenge.

Shakir stated that while it might be fair to say that democracy specifically for Israelis has backslided, it’s more difficult to say this in the broader regional context, as democracy for Palestinians has been lacking for decades. He agreed that the general public might well be persuaded by human rights offenders who claim that they are following human rights doctrine, but said that the work of factfinders like Human Rights Watch is the best remedy, citing the 2018 Gaza protests (with war crimes by both Israeli armed forces and Palestinian armed groups documented by Human Rights Watch) as an example. Shakir also noted that as a region, the Middle East has few mechanisms for human rights (no regional human rights court, and little respect for human rights in domestic courts), which allows such atrocities to go unchecked.

IALL 2022 Recap: The Challenge of Building a Sustainable Tribal Law Infrastructure That Respects Tribal Sovereignty

By Joan Policastri

Finding tribal law is hard. Professor Elizabeth Reese’s talk to IALL annual course attendees outlined the difficulties, the reasons those exist, and proposed ways in which she feels the problems should be addressed.

The first problem is understanding the difference between Federal Indian Law and Tribal Law. Federal Indian Law is law made by the Federal Government in relation to Indian nations and is relatively easy to find in standard sources of case law, legislation, and regulations. Tribal Law is the law made by sovereign tribal governments for their own citizens. There are currently 574 federally recognized tribes and finding their laws is not easy; there is no Westlaw or Lexis that brings them all together in a nice neat searchable database as there is for State laws. And Tribal law is rarely taught in law school, so the demand for it is limited.

In order to demonstrate the challenges facing researchers of tribal law, Reese asked the attendees to find the Constitution of Santa Clara Pueblo and its tribal code, and to consider the date on which the material they find was published, and whether that the most current? She then asked attendees to find the Constitution of the Navajo Nation; there is not one, and the Navajo Nation’s tribal code is over 1,000 pages, with all changes incorporated into one PDF document. (For fun, try these searches yourself…and keep track of all the broken links that you encounter.)

David from Washington, DC, CC BY 2.0, via Wikimedia Commons

As Reese’s students regularly do this research, she is working with a Stanford Law Librarian to keep a spreadsheet of resources, but she feels that there has to be a better way! Tribal Law needs to be made as available as state laws and needs an infrastructure to sustainably support it. Right now the best resources for tribal law are non-profits (NILL/NARF, or LLMC’s Indigenous Law Portal), or university programs (Oklahoma, Arizona), but these are dependent on funding or individual interest, and are understaffed and underfunded.

Reese identified several problems related to building a sustainable tribal law infrastructure that also respects tribal sovereignty.  The laws belong to the tribes, who may not have the funds to devote to maintaining records of tribal law and tribal court decisions. Primarily thanks to colonialism, Tribes are constrained in the ways in which they can raise money. They do not own their own land (the Federal government does) so property taxes are not an option. Most tribes are not wealthy and the tax base is small.  While many tribes have developed Tribal businesses, from gambling to Tribal beer, developing documentation systems is lower on the priority lists than funding the Tribal Courts or the Tribal Police. Federal grants are a major source of tribal revenue.

Another issue is that the tribes may not want to share their laws and make them publicly available. Many tribes have had bad experiences with publishers and academics. Data sovereignty is a priority for tribes whether dealing with a private publisher or the Federal government. Everyone doing the work, whether Tribal governments or researchers, is keeping their own records, for their own purposes. A central repository with adequate funding and staff is needed to maintain the information.

While the efforts of non-profits and universities is appreciated, Reese believes that a bigger solution would be to create demand and start breaking down the paywalls at the major vendors. Access to Tribal Law needs to be normalized as equivalent to State laws. It should not be an exception or an add-on or part of a larger package. Indian Tribes are the third sovereign of US law and should not be packaged and made too expensive to access. It is a foundational question. Major publishers need to provide access.  

Currently the best solution for researchers is to call the tribe. Be polite and be clear about the type of materials you are requesting. Many Tribal Court decisions are not online and each Tribe keeps records in the best way that they can. It is up to each Tribe to decide what to make accessible. Criminal law materials are generally the most accessible as Federal laws such as VAWA (the Violence Against Women Act) contain certain requirements for preservation.

Reese’s dream is to be able to go to same sources for Tribal Law as for other legal materials. She, and all researchers, want to know the material is up-to-date, and that the resource is reliable. She would like to see the Codes put online in an annotated format. (Why was this law passed? What was involved in the decision?) Some tribal law is quite unique and the context for its development is important. While the knowledge exists, it is being lost as the people who made the decisions leave office or retire. Interestingly, Facebook has a lot of this information as that is where discussions are preserved.

During the Q&A, audience participant Sherri Thomas (Tiwa-Taos Pueblo) of the University of New Mexico noted that the Native Peoples Law Caucus (AALL) has a grant to compile laws. She sees training the tribal librarians and courts to keep records as an important step. She also pointed out that local governments have the same issues as tribes. The talk ended with an audience comment about the Bluebook’s neglect of tribal law – it needs expanded recognition of Federal Tribes and how to cite Tribal materials.  Professor Reese warmly and emphatically endorsed these comments!

IALL 2022 Recap: National Security and Accountability in the Courts

By Michael McArthur

The final talk of the International Law Libraries Annual Course was another sobering perspective on the U.S. administration, most notably the absence of judicial review under the guise of national security. Stanford’s Professor Shirin Sinnar gave the presentation, titled “National Security and Accountability in the Courts.”

She began with the story of Professor Xiaoxing Xi, whose home was raided by the FBI in 2015 on account of an accusation that he was sharing private scientific technology with China. The news made the headlines and his life was turned upside-down, only to have the charges dropped a few months later. In an attempt to clear his name, he sued the FBI agents and the FBI for malicious prosecution based on his Chinese background. His claim was dismissed, unable to get past the threshold of Bivens action that protects federal agents for constitutional violations. The court went on to say that there was no comparable alternative remedy. Professor Xi was out of luck.

In the years since the September 11^th attack in 2001 many case arose out of the sprawling war on terror. Early on, courts pushed back on the broad expansion of power, but in the last decade, national security deference has strengthened. Professor Sinnar provided examples of this trend through four SCOTUS cases. The first was the 2013 Clapper v. Amnesty case, the court denied standing to a journalist who was the target of U.S. government surveillance. This has created an lack of oversight by the courts to monitor the activities of the NSA, FBI, and other security bodies.

Seals of U.S. intelligence agencies,
United States Government, Public domain, via Wikimedia Commons

Next, in the 2018 Trump v. Hawaii case, the court focused on the facial words of the law rather than the obviously bias language of the President. The glaring issue provoked references to the infamous Korematsu case in Sotomayor’s dissent. The third case was this year’s U.S v. Husayn, which dealt with torture by the U.S. government in Poland. The fact that it happened in Poland was not at issue, as the Polish government had verified the fact and it had been reported in various media outlets, however the court still ruled that allowing formal testimony of that fact would go against national security and state secrets. The final case was Egbert v Boule (2022), which confirmed broad deference to the Border Patrol, even for actions on private land.

To sum up, Professor Sinnar explained that there are a few reasons why government discretion should be kept in check. First, the effects of national securing deference falls hardest on minority communities that are most likely to be seen as security threats. Race has always been an issue for the people the nation should be protecting. And secondly, court application can be both expansive and selective at the same time. Expansive in the broad immunity law enforcement enjoys, but selective when it comes to particular topics such as targeting national security issues while limiting other policies such as those addressing climate change.

IALL 2022 Recap: Immigration Litigation and Advocacy in the Post-Trump Years

By Michael McArthur

The final day of the 2022 IALL Annual Course opened with an eye-opening review of U.S. immigration law and policy, presented by the founding director of Stanford’s Immigrants’ Rights Clinic, Jayashri Srikantiah. The presentation was titled, “Immigration Litigation and Advocacy in the Post-Trump Years,” but reflected a more open-ended outline of U.S. immigration law generally up until 2016, and then the impact of the Trump Administration and attempted reversals by the Biden Administration, through the lens of a few case studies.

Beginning with a general introduction, Professor Srikantiah used the analogy of a dinner table to describe questions related to immigration. Who do we want to invite to the dinner party? How long will they stay? What are their obligations, if any? And when do you expect them to leave? This visual was followed by a description of the broad categories that those seeking to enter the country fall within and how the federal law governs the process and enforcement. She noted that Congress normally would guide the executive in this process, but as they have been inactive in this area since the 1990s, recent administrations have played an outsized role in the process, and states have also weighed in significantly through the use of litigation.

Image of the White House, https://www.nps.gov/places/white-house.htm

Professor Srikantiah broke down the Trump Administration’s actions into three general categories: 1) interior enforcement of those already within the country, 2) humanitarian enforcement against asylum seekers, and 3) regulating access through travel bans. One of the major actions was to rescind all prosecutorial guidelines so every violation of federal law would be treated equally, granting broad power and discretion to local officers. Metering and turn-backs, “remain in Mexico,” and Title 42 were some other administrative policies that were discussed.

In response, the Biden administration promised to undo all of the prior administration’s actions. In practice, however, this has been significantly hampered through state litigation, getting back to the title of the lecture. The Attorneys General of Texas, along with other states, have used favorable courts to put nationwide injunctions in place to prevent these decisions. Professor Srikantiah used a few deep dive examples to illustrate further. For the prosecutorial discretion policies, which are pending before the U.S. Supreme Court this term, she walked through the history of the practice. The government had guidelines discouraging actions against parents of minors that are U.S. citizens, for example. Biden’s attempts to reinstate the guidance has been subject to extensive delay, essentially wins for the Texas and Louisiana plaintiffs. Another dive drew on the “remain in Mexico” policy, where asylum seekers are required to make their complicated petitions in a very limited timeframe, often virtually. She provided the startling figures that in 2020, a little over 500 claims were approved out of more than 42,000 applications. This time Texas sued the government saying that there needs to be a formal process for retracting these policies. These delaying tactics are likely to continue working until Congress takes up their lawmaking role again and clarifying the process formally.

During the short question-and-answer period, the audience posed international questions about how a current Canadian Supreme Court case could impact the situation or if there was a mobilization on the Mexican side. One question pondered if there was also a silver lining in the rapid fire mobilization of lawyers from around the country that stepped up at the beginning of the Trump era. In response, Professor Srikantiah expressed encouragement by the increase in communication between big cities and providing more representation for those in deportation hearings, but less hopeful that Congress could work together to get legislation passed, especially considering the recent inability to reach any type of resolution on DACA and other related immigration policy.

IALL 2022 Recap: Copy-Paste: Comparative Constitutionalism as Intellectual History

By David Isom

Dan Edelstein, Professor of French at Stanford University, gave a presentation titled “Copy-Paste: Comparative Constitutionalism as Intellectual History” on October 12, 2022—the final day of IALL’s 2022 Annual Course at Stanford. As the title of the session suggests, he discussed the spread of ideas demonstrated by constitutions which paraphrased or directly copied language from other constitutions and declarations of rights, with a focus on the 19^th century. As an academic who works in French language, history, political science, and digital humanities—but not law—Edelstein offered a refreshing perspective on comparative constitutionalism.

At the outset of his presentation, Edelstein stated that it is precisely the multiplicity of sometimes-ephemeral constitutions (e.g. the French Constitution of 1793, which was ratified on August 10 but suspended on October 10^th) that makes them interesting to him. He also noted the challenges to this approach to studying constitutions. First, digital versions of historic constitutions are not always readily available. The open-access Constitute Project, for example, includes only France’s current constitution, and only in Arabic, English, and Spanish—not the original French. By comparison, World Constitutions Illustrated includes a rich set of French constitutions and related documents in both the original language and in translation, beginning with the Declaration of the Rights of Man and of the Citizen (1789), but is only available by subscription. To be sure, the original texts of many constitutions are available somewhere online, but access can be surprisingly challenging. The second issue is that searching and comparing the texts of a multilingual corpora like historic constitutions from around the world is not easy—neither Constitute nor World Constitutions Illustrated, for instance, allows multilingual searches, and Constitute’s “Compare” view does nothing more than allow the texts of multiple constitutions to be viewed side-by-side (World Constitutions Illustrated lacks even this capability).

Original minutes from the sessions of the National Assembly, September 30, 1789 (National Archives of France)

Edelstein provided numerous examples of the “copy-paste” phenomenon: the Bolivian Constitution of 1826 mimicked language from the Norwegian Constitution of 1816 regarding the kinds of rights that were deemed worthy of inclusion; the Venezuelan Constitution of 1811 closely followed numerous sections of the 1789 Declaration, as did the Argentine Constitution of 1819; the Constitution of Cádiz of 1812, though written in defiance of French occupation, nonetheless borrows language from the 1789 Declaration; and the Portuguese Constitution of 1822 begins with a declaration of rights that closely follows the 1789 Declaration.

Edelstein believes that historians should be excited by this phenomenon because constitutions show how widely these rights were accepted at particular times, thus giving evidence of their universality—but he also noted that constitutions often go beyond the mere “copy-paste” approach to create new rights. Constitutions themselves do not, of course, tell the whole story about rights—as Edelstein pointed out, the Constitution of the U.S.S.R. of 1936 afforded many more rights than other constitutions, but did not prevail in establishing them as legal practices.

“We See the Future of Our Country,” Constitution of the Soviet Union (1936) (Claremont Colleges Digital Library)

During the Q&A that followed the presentation, a commenter remarked that while the presentation had focused on “copy-paste” in Europe, the French influence also extended to the Japanese Meiji Constitution (1889). Edelstein agreed that the phenomenon is by no means limited to Europe, adding as an example that the Vietnamese Proclamation of Independence can be seen as “trolling” France (“Nevertheless, for more than eighty years, the French imperialists, abusing the standard of Liberty, Equality, and Fraternity, have violated our Fatherland and oppressed our fellow-citizens.” (para. 4, Declaration of Independence of the Democratic Republic of Vietnam, September 2, 1945).

IALL 2022 Recap: International Copyright and the Problem of Orphan Works

By Meredith Capps

On Wednesday, October 12^th, Paul Goldstein, the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School and of counsel at Morrison & Foerster LLP, spoke at the International Association of Law Libraries Annual Course about legal approaches in the U.S. and abroad to copyright law governing “orphan works” (copyrightable works for which a rights-holder cannot be identified).  He began his talk by describing an instance in which he advised a non-profit entity hoping to digitize photographs taken of antiquities and make those photographs available online, when a diligent search to establish the origin of the works would be expensive, and potentially fruitless.  Though he advised the organization to take an intermediate approach, conducting a reasonable search but relying on the fair use doctrine to provide legal protection should an unknown rights holder raise a claim, the group ultimately decided not to pursue the project due to concern regarding legal risk.  Goldstein called the volume of orphan works “indescribable,” with potentially hundreds of millions of such works in circulation; one estimate suggests that as many as 90% of works in British museums have no identifiable rights holder.

Question Copyright 2.png Stephan Baum SVG: Ttog, CC BY-SA 3.0, via Wikimedia Common

Goldstein then described five legal approaches to usage of orphan works, several of which ask users of a work to conduct some type of search and pay a form of compensation, either directly to a later-found owner or to a rights management entity (“search and pay” systems).

1. The approach provided in European Union Directive 2012/28/EU, which requires users who are non-profit institutions to conduct a diligent search for the work’s rights holder, to document that search, and to compensate the owner should they come forward.
2. The approach taken in Canada and the United Kingdom, wherein interested users of a work must seek permission from a central authority to use the work, who if it approves the request will assess a fee intended to compensate rights holders should they come forward within a designated time period.
3. A draft U.S. proposal considered that would limit remedies available to those later asserting rights in orphan works to “reasonable compensation” if the user conducted a diligent search, and exempting non-profit institutions from that compensation requirement (see discussion in the Copyright Office’s Report on Orphan Works). 
4. Extended collective licensing systems, utilized by some Nordic countries and Germany, wherein a local reproduction rights organizations (RROs) grants licenses to utilize non-licensed works.
5. Approaches that do not require search or payment, and instead rely on protection from doctrines such as fair use.

Goldstein typically advises, as illustrated in his initial anecdote, that users in the U.S. conduct a diligent search for potential owners of orphan works, because although a diligent search is not an element of fair use analysis, that analysis does consider whether users are acting in good faith, and a diligent search can establish good faith.  However, Goldstein acknowledged uncertainty surrounding application of the fair use doctrine, particularly the element concerning the transformative nature of a work, and he believes that the U.S. Supreme Court might soon limit this element and thus certain fair use defenses.  His preferred policy approach is the extended collective licensing model, in part because such a system provides a database of works, with his second preferred policy being the U.S. proposal which would limit compensation requirements for those who conducted a diligent search.  Goldstein then discussed another mechanism that might provide users some protection, and that is already utilized to some degree in the entertainment industry – error and omissions insurance.  “I don’t like arguments; I like systems that work,” he stated in concluding his discussion of his preferred approaches to the problem of orphan works.

AALL 2022 Recap: Teaching FCIL Research Roundtable

By Meredith Capps

On Monday, July 18^th during the AALL annual meeting, the FCIL-SIS held its first in-person roundtable discussion in several years (hip hip hooray!) to discuss teaching FCIL research.  Meredith Capps of Vanderbilt University Law School introduced the featured speaker, Janet Kearney of Fordham University Law School.  Janet spoke about her efforts to enhance her own FCIL resource course, which she described in brief in the February 2022 FCIL-SIS newsletter article, Work-in-Progress: A Research Framework in FCIL Teaching?, for which she received the SIS’s Newsletter Article of the Year award. 

Janet described the first iteration of her 2-credit course as “disparate.”  In considering how to better organize the course, she considered the four-step research process upon which she relies in her first-year legal research course: 1) research planning, 2) secondary sources, 3) statutes and regulations, and 4) cases.  To adapt this framework for FCIL research instruction, Janet opted to reframe steps 3 and 4 and collapse them into a single category of primary sources.   Approaching each week’s content with this framework, Janet encouraged students to first plan their research, then identify secondary sources that might answer their question, and then locate relevant primary authorities.  Janet asked students to consider which sources of law might govern their problem, which would be binding, and in what way they would be binding (or persuasive).  Her students responded positively to the new framework, and as of this writing Janet is drafting a longer article discussing her experience in designing the course – stay tuned!

 

Breather breather, CC0, via Wikimedia Commons

            As is typical in a roundtable format, after discussing the initial topic of utilizing process frameworks in instruction, participants explored a number of other topics, questions, and concerns informally for the balance of the time, including:

• The needs of JD v. LLM students, and whether and when to teach separate JD and LLM research courses,
• How to better incorporate private international law problems into our courses, including utilizing trade and family law hypotheticals,
• How many sources to cover in a typical class, and how best to organize those sources for student reference,
• Encouraging students to first consider the subject before the jurisdiction,
• To what extent we utilize niche databases in our courses that students may not have access to in practice,
• Challenges associated with students’ variable knowledge of international law upon enrolling in an FCIL research course,
• Addressing student confusion in distinguishing between primary and secondary authorities…

…and more – it was a busy hour!