December 26, 2008
Questioning Witnesses About Their Immigration Status
How extensively should U.S. federal court judges question witnesses about the circumstances of how they entered the United States? Click here to read a thought-provoking post on this issue from Professor Colin Miller on the Evidence Prof Blog.
December 25, 2008
Inter-American Court Judgment Implemented in Nicaragua
The Nicaraguan Government has given the indigenous Awas Tingni community the title to its traditional ancestral territory. The Nicaraguan Government gave the Awas Tingni title to approximately 74,000 hectares of densely forested lands. The move followed the historic decision by the Inter-American Court of Human Rights on August 31, 2001 in the case of the Mayagna (Suma) Awas Tingni Community v. Nicaragua, where the Court found that Nicaragua had violated the rights of the Awas Tigni community by granting logging concessions within its traditional lands. The Court found that the right to property protects the traditional land tenure of indigenous peoples. Click here to read more about the Court decision in an article by S. James Anaya of the University of Arizona and Dean Claudio Grossman of the American University College of Law. (FYI, the article is about the court decision, not the return of land this month).
ICJ: Germany Sues Italy Before the World Court to Protest Italian Court Judgments
Germany has filed a complaint against Italy at the United Nations International Court of Justice over Italian court judgments that award damages to victims of Nazi war crimes. Germany claims that it has already paid reparations under international treaties with Italy. Germany also argues that as a sovereign state it has immunity in Italian courts, and that any Italian is therefore unenforceable. At the same time, it reiterated that Germany “fully acknowledges the untold suffering inflicted on Italian men and women” during World War ll. Here is a press release from the International Court of Justice with more background and context of this new litigation:
The Federal Republic of Germany instituted proceedings before the International Court of Justice against the Italian Republic, alleging that “[t]hrough its judicial practice . . . Italy has infringed and continues to infringe its obligations towards Germany under international law”.
In its Application, Germany contends: “In recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State. The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it”.
[Germany] recalls that enforcement measures have already been taken against German assets in Italy: a “judicial mortgage” on Villa Vigoni, the German-Italian centre of cultural exchange, has been recorded in the land register. In addition to the claims brought against it by Italian nationals, Germany also cites “attempts by Greek nationals to enforce in Italy a judgment obtained in Greece on account of a . . . massacre committed by German military units during their withdrawal in 1944”.
[Germany] requests the Court to adjudge and declare that Italy:
(1) by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945 to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law;
(2) by taking measures of constraint against ‘Villa Vigoni’ [the German-Italian centre for cultural exchange], German State property used for government non-commercial purposes, also committed violations of Germany’s jurisdictional immunity;
(3) by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity.
Accordingly, the Federal Republic of Germany prays the Court to adjudge and declare that:
(1) the Italian Republic’s international responsibility is engaged;
(2) the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany’s sovereign immunity become unenforceable;
(3) the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above.”
Germany reserves the right to request the Court to indicate provisional measures in accordance with Article 41 of the Statute of the Court, “should measures of constraint be taken by Italian authorities against German State assets, in particular diplomatic and other premises that enjoy protection against such measures pursuant to general rules of international law”.
As the basis for the jurisdiction of the Court, Germany invokes Article 1 of the European Convention for the Peaceful Settlement of Disputes adopted by members of the Council of Europe on 29 April 1957, ratified by Italy on 29 January 1960 and ratified by Germany on 18 April 1961. That Article states:
“The High Contracting Parties shall submit to the judgment of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.”
Germany asserts that, although the present case is between two Member States of the European Union, the Court of Justice of the European Communities in Luxembourg has no jurisdiction to entertain it, since the dispute is not governed by any of the jurisdictional clauses in the treaties on European integration. It adds that outside of that “specific framework” the Member States “continue to live with one another under the regime of general international law”.
The Application was accompanied by a Joint Declaration adopted on the occasion of German-Italian Governmental Consultations in Trieste on 18 November 2008, whereby both Governments declared that they “share the ideals of reconciliation, solidarity and integration, which form the basis of the European construction”. In this declaration Germany “fully acknowledges the untold suffering inflicted on Italian men and women” during World War II.
Italy, for its part, “respects Germany’s decision to apply to the International Court of Justice for a ruling on the principle of state immunity [and] is of the view that the ICJ’s ruling on State immunity will help to clarify this complex issue”.
December 24, 2008
Dear readers, on this Christmas Eve 2008, we would like to take a moment to wish you all a very happy holiday season (whatever holidays you celebrate in your country) and a great start to 2009. Thank you for being part of this new blog and please keep visiting us in 2009!
Cindy, Cyndee, Mark, and Mike
December 23, 2008
Terrorism judgment against Libya to be nullified
In January 2008, a group of American families obtained a U.S. $6 billion judgment in U.S. District Court against Libya in connection with the 1989 bombing of UTA Flight 772 in which 170 persons lost their lives, including 7 Americans. See Pugh v. Socialist People's Libyan Arab Jamahiriya, 530 F.Supp.2d 216 (D.D.C. 2008). The Americans sued under the 1996 Anti-Terrorism Act and the Foreign Sovereign Immunities Act. In August, the governments of Libya and the U.S. reached a settlement agreement pursuant to which Libya agreed to pay the U.S. $1.5 billion in settlement of these claims and others. According to the U.S. State Department, the beneficiaries of the seven American victims will each be eligible to receive approximately $10 million. Some of the Pugh families are unhappy that they took their case to court and won, only to have the judgment nullified by the U.S. government and their award significantly reduced. On the one hand, it may be argued that the U.S. government used these families to pressure Libya into a settlement by encouraging them to invest significant resources, financial, emotional and otherwise, in a lawsuit. On the other hand, the families did get the public condemnation of LIbya they say they desired and they are much more likely to actually recover money from Libya under the settlement than through efforts to collect on their judgment, so perhaps this result is not so bad in the long run. As a legal matter, the President's power to enter into agreements with foreign nations to settle monetary claims has been upheld numerous times in cases, such as Dames & Moore, Garamendi, Pink, and Belmont. In this case, it appears the President is on particularly solid legal ground because Congress has approved the settlement agreement in the Libyan Claims Resolution Act.
For more background, see the N.Y. Times article at: http://www.washingtonpost.com/wp-dyn/content/article/2008/12/22/AR2008122202050.html?wpisrc=newsletterse
Singapore Treaty on the Law of Trademarks will Enter into Effect on March 16, 2009
Trademark that hologram? Or a three-dimensional product? The Singapore Treaty on the Law of Trademarks (“the Singapore Treaty”) will enter into force on 16 March 2009, thanks to the ratification by Australia (which became the tenth country to ratify the treaty). The text of the treaty was approved by member States of the UN World Intellectual Property Organization (WIPO) in March 2006. WIPO's Director General, Francis Gurry, said that the entry into force opens the way for the branded goods industry to register and manage trademark rights cost-effectively and efficiently. The Treaty standardizes procedural aspects of trademark registration and licensing and enables trademark owners and national trademark authorities to use modern communications technologies to manage trademark rights. Thus the Singapore Treaty explicitly recognizes that trademarks are no longer limited to two-dimensional labels on products. Indeed, the Regulations under the Singapore Treaty expressly mention new types of marks, such as hologram marks, motion marks, color marks, and marks consisting of non-visible signs, such as sound or taste marks. Click here to read more
December 22, 2008
Transitional Justice and the Rule of Law
The American Society of International Law (ASIL) Transitional Justice and Rule of Law Interest Group and the United States Institute for Peace International Network to Promote the Rule of Law (INPROL), in cooperation with the American Bar Association Section of International Law, will host a seminar on “Transitional Justice and Rule of Law.” The speakers will be Ambassador John Herbst (Coordinator for Reconstruction and Stabilization, U.S. Department of State) and Ambassador Clint Williamson (Ambassador at Large for War Crimes Issues). The moderator will be Melanne Civic, Senior Rule of Law Advisor at the U.S. Department of State. The event will be Thursday, January 22, 2009, from 6:00 to 8:00 p.m. at the American Society of International Law, 2223 Massachusetts Avenue, NW, Washington, DC 20008. Click here for more information.
December 21, 2008
Trade Adjustment Assistance
In the United States, federal Trade Adjustment Assistance (TAA) programs provide cash benefits and job retraining to workers and farmers who have been displaced by the off-shoring of U.S. jobs, falling prices resulting from increased imports, and other consequences of international trade. But workers and farmers have been seriously hampered in their attempts to gain TAA benefits by persistent and pervasive mismanagement of the TAA programs by the U.S. Department of Labor and the U.S. Department of Agriculture. That's the point made by Professor Steven Schwinn of The John Marshall Law School in Chicago, whose new article describes some of the problems that workers and farmers have faced in applying for and receiving TAA benefits. While legislative changes may address some of these problems, the article argues that legal counsel for workers and farmers is a necessary component of any plan to ensure that TAA benefits reach those they were designed to help.
Click here to download the article. (Click on the link, then click on Download this paper)