Saturday, January 24, 2009
The United Nations High Commissioner for Human Rights welcomed the decision by the new United States administration to close the detention facility in Guantánamo Bay, as well as the decision to ban methods of interrogation that contravene international law. Navi Pillay also called for a review of the US approach to detaining individuals abroad, in countries such as Afghanistan and Iraq, as well as the practice of ‘rendition,’ in order to ensure conformity with international law.
The UN’s human rights chief also welcomed the fact that President Obama’s Executive Order sets a framework for regularizing the situation of the remaining detainees in Guantánamo. She also raised the issue of compensation for those judged to be innocent and called for a thorough investigation into allegations of torture at the Guantánamo centre. “Under international law, there is an absolute prohibition against torture, and other cruel, inhuman and degrading treatment,” she said. “There must be accountability for those who have ordered such practices or carried them out, and victims should receive recompense.”
Ms. Pillay saluted Mr. Obama for taking such an important step so swiftly upon taking office. “This is a good day for the rule of law,” she noted.
(mew) (from a UN Press Release)
In December 2007, the European Council decided to establish a “Reflection Group”, headed
The formal overall objective remains nevertheless extremely (too?) ambitious as the group’s mandate is to anticipate the key issues and challenges which the Union is likely to face in the long run (“horizon 2020 – 2030”) and to analyze how these might be addressed. The Reflection Group must present its report to the European Council meeting of June 2010.
The list of key issues identified by the Council is quite interesting in itself: strengthening and modernizing the European model of economic success and social responsibility, enhancing the competitiveness of the EU, the rule of law, sustainable development, global stability, migration, energy and climate protection, and the fight against global insecurity, international crime and terrorism.
But in another illustration of what is wrong with the EU, or rather with the national politicians’ lack of strategic focus and excessive passion for horse-trading, it took almost a year to select members of the group. To make matters worse, its Chairman recently questioned whether its work should be “open to the entirety of society in an interactive way.” Of course, it should. Participatory democracy may not be a panacea but it offers a better option than secrecy when it comes to reaching out to European citizens. We shall soon realize whether this long gestation will lead to the production of an influential report or one that will, like many others before it, be briefly praised before being buried.
Thursday, January 22, 2009
Dean Symeon Symeonides of Willamette University College of Law has sent us a link to the 22nd Annual Choice-of-Law Survey, published in the American Journal of Comparative Law. Here's the abstract from SSRN:
This is the Twenty-Second Annual Survey of American Choice-of-Law Cases. It covers cases decided by American state and federal courts from January 1 to December 31, 2008, and reported during the same period. Of the 3,249 conflicts cases meeting both of these parameters, the Survey focuses on those of the 1023 appellate cases that may add something new to the development or understanding of choice of law. The Survey is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States. Its purpose is to inform, rather than to advocate.
The following are among the cases discussed in this Survey: Two U.S. Supreme Court cases and several intermediate court cases delineating the extraterritorial reach of the Constitution and federal statutes, and one Supreme Court case on the domestic effect of a judgment of the International Court of Justice; A New Jersey Supreme Court case abandoning Currie's interest analysis in tort conflicts in favor of the Restatement (Second), and a New Mexico Supreme Court case abandoning the traditional approach in contract conflicts (but only in class actions) and adopting the "false conflict doctrine" of the Restatement (Second); Several cases applying (and one not applying) the law of the parties' common domicile to torts occurring in another state; Cases involving cross-border torts and applying the law of whichever of the two states (conduct or injury) favors the plaintiff; Product liability cases granting forum non conveniens dismissals in favor of alternative fora in foreign countries and those countries' responses by enacting "blocking" statutes; Cases refusing to enforce clauses precluding class-action or class-arbitration; Cases illustrating the race to the courthouse between insurers and their insureds; Cases recognizing Canadian or Massachusetts same-sex marriages, and a case refusing to recognize a Pakistani talaq (unilateral, non-judicial divorce); and a case refusing to recognize a foreign judgment that conflicted with a previous judgment from another country.
There are a couple of interesting cases involving interpretations of the Foriegn Sovereign Immunities Act (FSIA), 28 U.S.C. sec. 1605, working their way through U.S. Courts.
Earlier this month, the U.S. Supreme Court accepted cert in Republic of Iraq v. Beaty, Docket No. 07-1090, in which Iraq seeks to overturn a judgment against it obtained by U.S. citizens seeking damages for emotional distress they suffered during the time when their fathers were held hostage by the former Iraqi regime under Saddam Hussein in the 1990s. Iraq claims that it enjoys foreign sovereign immunity, but the U.S. District and Circuit Courts determined that its sovereign immunity had been waived or abrogated under the state-sponsored terrorism exception to FSIA. Briefing in the case should be completed by March, with oral argument to be scheduled sometime thereafter.
In a second recent FSIA decision from a U.S. Court of Appeals, the Fourth Circuit adopted the minority view that FSIA does not immunize foreign officials from lawsuits in this country. In Yousef v. Samantar, Docket No. 07-1893, natives of Somalia brought suit under the Alien Tort Statute and the Torture Victims Protection Act alleging that Mohamed Ali Samantar, the former minister of defense from 1980-1986 and prime minister from 1987-1990, knew or should have known about and tacitly approved the Somali government's acts of torture and murder against them or their family members. Samantar claimed immunity under FSIA. The Fourth Circuit sided with the Seventh Circuit in finding that individual foreign officials do not fall within the definition of an "agency or instrumentality of a foreign state" entitled to immunity under FSIA. The Court held that the statutory language contemplates a political body or a corporate entity, not an individual. Moreover, even if the FSIA does apply to individual defendants, the Court held that it would not shield former government officials such as Samantar. At least four other circuits have taken the opposition position, making this case a good candidate for review by the U.S. Supreme Court.
Wednesday, January 21, 2009
PUBLIC HEARING ON PROPOSED NEW OR AMENDED ILLINOIS SUPREME COURT RULES
The Rules Committee of the Illinois Supreme Court will hear comments at a public hearing on Monday January 26, 2009 on proposals to require consular notification for foreign nationals in criminal proceedings, and to clarify current rules dealing with expedited appeals in child custody cases.
The hearing will begin at 10 a.m. at 160 N. LaSalle Street, Room C-500, Chicago, Illinois
One of the proposals would create a new Supreme Court Rule 404 that would require a judge to advise in open court that any foreign national who is arrested has the right that his consular representatives be given notice of the arrest and that the defendant has the right to communicate with consular representatives. The rule is intended as a backup to Article 36 of the Vienna Convention on Consular Relations which requires the arresting authority to inform a foreign national of these rights “without delay,” usually before the national’s initial court appearance. This proposed rule requires a judge to so advise the defendant as a backstop in case the arresting or detaining authority failed to give the information or kept no record of giving it.
Honoring Article 36 helps U.S. consular representatives to similarly assist United States citizens in foreign countries, notes a committee comment to the proposed rule.
The International Gay and Lesbian Human Rights Commission (IGLHRC) announced that Cary Alan Johnson will be the organization’s next Executive Director. He succeeds outgoing Executive Director, Paula Ettelbrick, whose six-year term ends on March 1, 2009. Johnson is currently IGLHRC's Senior Africa Specialist, a position he has held for four years, and manager of the organization's office in Cape Town, South Africa. He has developed partnerships with African LGBT, HIV and human rights organizations to challenge arrests and abuse in countries such as Cameroon, Nigeria, Uganda, and Senegal. Johnson will relocate from IGLHRC's South Africa office to its New York City headquarters. IGLHRC also has an office in Buenos Aires, Argentina, and staff in Washington, DC and Quezon City, the Philippines. For more information on IGLHRC, click here.
The U.S. Foreign Intelligence Surveillance Court of Review--the appellate panel under the Foreign Intelligence Surveillance Act--has affirmed a lower FISA court ruling that the Protect America Act of 2007 did not violate the Fourth Amendment. Click here to read more on the Constitutional Law Prof Blog.
Tuesday, January 20, 2009
Monday, January 19, 2009
The International Court of Justice (ICJ) issued a decision today with respect to Mexico's request for interpretation of the ICJ's March 2004 judgment in Avena. The Court found that the matters raised by Mexico in its request for interpretation were not matters decided by the Court in its March 2004 judgment and, thus, cannot give rise to the interpretation requested by Mexico. The ICJ stated that there is no real disagreement between the parties regarding the fact that the Avena judgment creates an obligation of result for the United States. The Court further stated that the March 2004 Avena judgment gave the United States a choice of means for implementation and did not address the issue of the judgment's direct effect on state courts in the United States. However, the United States is under a continuing obligation to find a way to comply with that judgment. The Court also held that the United States had breached the Court's July 2008 Order for Provisional Measures by allowing Mr. Medellin, one of the Avena defendants, to be executed in August 2008. For more information, click here: http://www.icj-cij.org/docket/files/139/14937.pdf?PHPSESSID=a35daaeaab35b653b05acc57c35791bc
Sunday, January 18, 2009
EU Law is rarely amusing but it can happen. Here is a recent example. A French newspaper has suggested that the EU should remedy an important problem: Contrary to many organizations or countries, the EU does not use an animal as one of its symbols.
It may be worth mentioning that the EU already has its own flag (twelve yellow stars on a blue background) and its own anthem (the “Ode to Joy” from the Ninth Symphony by Ludwig van Beethoven). Strangely enough, when it was decided to codify these symbols in the so-called EU Constitution – a text which never entered into force following two negative referenda in
Anyhow, returning to the question of which animal the EU should chose, the newspaper has found that two animals have the favors of the EU politicians it talked to: the dove and the bull. The dove is certainly a good symbol for those keen to emphasize that, by contrast to the US, the EU is above all a “soft power.” The bull is favored by the history-minded. Indeed, in the Greek mythology, Europa was the name of a Princess abducted by Zeus and carried off from Phoenicia