In his latest book, The Trump Administration and International Law (Oxford UP, 2018), Harold Hongju Koh provides an answer to the question that has perplexed international political and legal thinkers since President Donald Trump’s election: will the Trump administration’s policies permanently alter the post-war international order?

From the blurb for Harold Hongju Koh, The Trump Administration and International Law (Oxford UP, 2018):

Will Donald trump international law? Since Trump’s Administration took office, this question has haunted almost every issue area of international law. One of our leading international lawyers-a former Legal Adviser of the US State Department, Assistant Secretary of State for Human Rights, and Yale Law Dean-argues that President Trump has thus far enjoyed less success than many believe, because he does not own the pervasive “transnational legal process” that governs these issue areas. This book shows how those opposing Trump’s policies during his administration’s first two years have successfully triggered that process as part of a collective counter-strategy akin to Muhammad Ali’s “rope-a-dope.” The book surveys immigration and refugee law, human rights, climate change, denuclearization, trade diplomacy, relations with North Korea, Russia and Ukraine, America’s “Forever War” against Al Qaeda and the Islamic State, and the ongoing tragedy in Syria. Koh’s tour d’horizon illustrates the many techniques that players in the transnational legal process have used to blunt Trump’s early initiatives. The high stakes of this struggle, and its broader implications for the future of global governance-now challenged by the rise of populist authoritarians-make this exhausting counter-strategy both worthwhile and necessary.

This Law Library of Congress report contains data on 131 countries, indicating whether or not published books are subject to a mandatory deposit requirement at the national level and, if so, how many copies are required, where they must be deposited, and whether the deposit is part of the copyright system. Citations to the controlling legislation for mandatory deposits are provided. In all but thirteen of the jurisdictions surveyed, deposits are required. For some of these thirteen jurisdictions, deposits are voluntary, while in others, no information regarding deposit practices could be found.

The Foreign Law Web Archive is a collection of foreign legal materials, including gazettes and judicial sites. Many foreign legal materials are now posted online, with some jurisdictions dispensing with a print publication entirely. Certain jurisdictions’ legal materials are challenging to acquire or considered at-risk of disappearing from the web. The Law Library of Congress is now archiving the legal materials of selected jurisdictions to ensure we can continue to provide comprehensive and timely access to foreign legal materials to researchers from across the world.

From the summary of International Law and Agreements: Their Effect upon U.S. Law (RL32528, Sept. 19, 2018):

The status of an international agreement within the United States depends on a variety of factors. Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and inferior to the Constitution. Depending upon the nature of executive agreements, they may or may not have a status equal to federal statute. In any case, self-executing executive agreements have a status that is superior to U.S. state law and inferior to the Constitution. Courts generally have understood treaties and executive agreements that are not self-executing generally to have limited status domestically; rather, the legislation
or regulations implementing these agreements are controlling.

In yet another effort by the Trump administration to pull away from international organizations and agreements that it finds objectionable, yesterday the US withdrew from the UN Human Rights Council, citing as its reason the Council’s frequent criticism of Israel’s treatment of Palestinians. The Trump administration also likely wants to distance itself from a body critical of its own policies. New York Times story here. The Atlantic profiles the Human Rights Council here. — Joe

A Peace Treaty with North Korea? (R45169, April 19, 2018) “explores the possiblity of concluding a peace treaty with North Korea. Also known as a peace settlement or peace mechanism. North Korea always wants bilateral negotiations with the United States, but a peace treaty would require China, the other signator of the armistice that ended the Korean War. The United Nations Command, or UNC, would also be involved in negotiations. In the Six-Party talks, this idea was explored but fell apart, as it was in Four-Party Talks. Japan and Russia would also be concerned with any peace settlement. South Korean president Moon Jae-in has supported the idea and will push at the upcoming Inter-Korean summit. At stake is North Korea’s nuclear and missle programs and in what sequence the DPRK would denuclearize. Which comes first: treaty or denuclearization? Trump will hold a summit with Kim Jong-un soon, where this could be broached. China and Russia want parallel tracks to denuclearize and find a peace settlement. A question is what the impact would be on U.S. alliances in the region, including the presence of the U.S. military and the troops stationed in the region. Should a peace treaty be linked to North Korea’s human rights record or other factors? How closely should it be coordinated with South Korea? What is the U.S. and DPRK credibility for a deal?”

— Joe

Spokesperson for the UN High Commissioner for Human Rights Ravina Shamdasani yesterday issued the following statement about the Trump administration’s policy of separating immigrant families apprehended by immigration officers:

We are deeply concerned that the zero tolerance policy recently put in place along the US southern border has led to people caught entering the country irregularly being subjected to criminal prosecution and having their children – including extremely young children -taken away from them as a result.

The practice of separating families amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child. While the rights of children are generally held in high regard in the US, it is the only country in the world not to have ratified the UN Convention on the Rights of the Child. We encourage it to accede to the Convention and to fully respect the rights of all children.

The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children.

Children should never be detained for reasons related to their own or their parents’ migration status. Detention is never in the best interests of the child and always constitutes a child rights violation.

Information from various sources suggests that several hundred children have been separated from their families since last October. The practice of separating children from their parents is being applied to both asylum-seekers and other migrants in vulnerable situations, and we note that the American Civil Liberties Union has brought a class action case on behalf of hundreds of parents who have been forcibly separated from their children.

The majority of people arriving at the U.S.’s southern border have fled Honduras, Guatemala and El Salvador – in many cases either because of rampant insecurity and violence, or because of violations of a range of other rights, such as health, education, and housing.

The US should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offence – that of irregular entry or stay in the US.

We call on the US authorities to adopt non-custodial alternatives that allow children to remain with their families and fulfil the best interests of the child, their right to liberty and their right to family life.

H/T to Immigration Prof Blog. See also, Law and Farce: The Forced Separation of Families on Take Care Blog. — Joe

The General Data Protection Regulation (GDPR) is a regulation in EU law on data protection and privacy for all individuals within the European Union. It also addresses the export of personal data outside the EU. The GDPR aims primarily to give control to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. It was adopted on April 14 2016, and after a two-year transition period, becomes enforceable on May 25 2018. Any company that stores or processes personal information about EU citizens within EU states must comply with the GDPR, even if they do not have a business presence within the EU.

What types of privacy data does the GDPR protect?

  • Basic identity information such as name, address and ID numbers
  • Web data such as location, IP address, cookie data and RFID tags
  • Health and genetic data
  • Biometric data
  • Racial or ethnic data
  • Political opinions
  • Sexual orientation

Kelly LeBlanc’s Europe’s GDPR to Set New Standards in Data Protection and Privacy Law focuses on the GDPR’s over-arching purpose and mission, common misconceptions, and the road to compliance. Recommended. — Joe

American businesses operating or serving customers in the EU must comply with the EU’s GDPR which becomes effective on May 25. A recent survey found that 91 percent of American businesses lack awareness surrounding the details of the GDPR, while 84 percent don’t understand the GDPR’s implications for their specific business. On Recode, Nancy Harris offers a practical guide to the European Union’s GDPR for American businesses. — Joe

“On Wednesday,” wrote Rick Noack “North Korea postponed talks with South Korea and threatened to cancel the summit scheduled with Kim and President Trump on June 12 over joint air force drills taking place in South Korea. North Korea also urged the United States to stop insisting that it should “unilaterally” abandon its nuclear program. The North Korean regime appeared dismayed by U.S. suggestions that a Libya-style solution could work with North Korea. (Libya’s regime was toppled with Western military support after giving up its nuclear weapons program.) … So, why is North Korea suddenly playing tough again after toning down its rhetoric? One answer: Because that’s what it has always done.” To prove his point, the Washington Post published this timeline of North Korea’s backtracking on denuclearization talks. — Joe

From the introduction for US Decision to Cease Implementing the Iran Nuclear Agreement (R44942 May 9, 2018):

On May 8, 2018, President Donald Trump announced that his Administration would cease implementing U.S. commitments under the 2015 multilateral Joint Comprehensive Plan of Action (JCPOA) with Iran and reimpose all U.S. sanctions that were in place prior to the JCPOA. His announcement made reference to his previous statements on the issue, including an October 13, 2017 announcement of U.S. strategy on Iran and a January 12, 2018, statement pledging to leave the agreement unless Congress and U.S. allies acted to address the full range of U.S. concerns on Iran. In his May 8 and earlier statements, President Trump asserted that the agreement does not address the full range of potential threats posed by Iran, or permanently ensure that Iran cannot develop a nuclear weapon. President Trump also again asserted that asserted that the JCPOA provided Iran with additional financial resources with which to pursue its ballistic missile program and support its regional “malign activities.” In his May 8 statement, President Trump indicated that reimposed U.S. sanctions would succeed in pressuring Iran to renegotiate the JCPOA to accommodate Administration demands.

— Joe

Hat tip to Bob Ambrogi’s LawSite’s post about the launch of GDPR IQ by Parsons Behle & Latimer. This new and very timely tool generates the complete set of required policies, procedures and proof-of-compliance documents under the EU’s General Data Protection Regulation (GDPR). The GDPR takes effect May 25, 2018 and research indicates that 78% of affected US businesses do not yet have a GDPR plan in place so this new tool may be very helpful in achieving compliance by May 25th. — Joe

Despite some contradictory statements — typical of the Trump Administration communications strategy — President Trump has set his sights on NAFTA. Of course, the Congressional Research Service provides a timely analysis. From NAFTA Renegotiation and Modernization (Oct. 12, 2017 R44981):

Congress will likely continue to be a major participant in shaping and potentially considering an updated NAFTA. Key issues for Congress in regard to the renegotiation or modernization include the constitutional authority of Congress over international trade, its role in revising or withdrawing from the agreement, the U.S. negotiating objectives, the impact on U.S. industries and the U.S. economy, the negotiating objectives of Canada and Mexico, and the impact on broader relations with Canada and Mexico. The outcome of these negotiations will have implications for the future direction of U.S. trade policy under President Trump.

NAFTA renegotiation may provide opportunities to address issues not covered in the original text. Technology and industrial production processes have changed significantly since it was negotiated. The widespread use of the Internet has affected economic activities and the use of e-commerce, for example. A modernization could incorporate elements of more recent U.S. FTAs, such as digital and services trade and enhanced IPR protection. Many U.S. manufacturers, services providers, and agricultural producers oppose efforts to eliminate NAFTA and ask that the Trump Administration strive to “do no harm” in the negotiations because they have much to lose if the United States pulls out of the agreement. Other groups contend that NAFTA should be rewritten to include stronger and more enforceable labor protections, provisions on currency manipulation, and stricter rules of origin.

— Joe

A snip from European Union Efforts to Counter Disinformation (Dec. 1, 2016 IN10614):

The European Union (EU) is increasingly concerned about the use of propaganda by both state and non-state actors and has sought to devise new strategies to combat disinformation. On November 23, the European Parliament (EP) adopted a resolution entitled “EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties.” In passing this non-binding resolution (by a vote of 304 to 179, with 208 abstentions), the EP added its support to European Union efforts to counter what Brussels believes are propaganda and disinformation campaigns against the EU and its member states by Russia and non-state actors such as the Islamic State terrorist organization.

In adopting the resolution, Members of the European Parliament (MEPs) expressed the view that propaganda and disinformation campaigns seek to distort the truth, incite fear, provoke doubt, discredit the EU institutions, divide the EU and its North American partners, and paralyze decision-making.

Check out the text of the EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties. — Joe

Options to Cease Implementing the Iran Nuclear Agreement (September 7, 2017 R44942)

From the summary:

Trump Administration statements indicate that the Administration does not believe that the 2015 multilateral nuclear agreement with Iran, the Joint Comprehensive Plan of Action (JCPOA), addresses the full range of potential threats posed by Iran. Administration officials assert that the Administration is considering ending or altering U.S. implementation of the JCPOA. This report analyzes some of the options the Administration might use to end or alter U.S. implementation of the JCPOA, if there is a decision to do so. These options, which might involve use of procedures in the JCPOA itself or the Iran Nuclear Agreement Review Act (P.L. 114-17), are not necessarily mutually exclusive. This report does not analyze the advantages and disadvantages of any specific option, or examine in detail the implications of any particular course of action.

— Joe

Here’s the abstract for Kristen Eichensehr’s Data Extraterritoriality:

Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere, but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity.

These implications of data’s intangibility challenge traditional international law on jurisdiction. International jurisdictional rules rest in large part on States’ sovereignty over a particular territory and authority over people and things within it, and they presuppose that the location of people and things are finite and knowable. The era of cloud computing — where data crosses borders seamlessly, parts of a single file may exist in multiple jurisdictions, and data’s storage location often depends on choices by private companies — raises new and difficult questions for States exercising enforcement authority, companies receiving requests from law enforcement agencies, and individuals seeking to protect their privacy.

As a part of the Texas Law Review’s symposium on the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, this Essay critiques Tallinn 2.0’s rules and commentary on the international law governing jurisdiction, especially its treatment of extraterritorial jurisdiction. The Essay first describes the Manual’s rules and commentary on extraterritorial jurisdiction, and then raises a procedural objection to the Manual’s approach, namely that ongoing debates about how to determine data’s location make the law too unsettled for a restatement project. The Essay then highlights several substantive concerns with and questions raised by the Manual’s approach. In light of these critiques, the Essay concludes with some suggestions on how to make progress in resolving conflicting international claims to jurisdiction over data going forward.

— Joe