Thursday, April 2, 2009
A U.S. federal district court judge has just ruled in al Maqaleh v. Gates that foreign nationals detained by the U.S. Military in Afghanistan at the Bagram Airfield Prison can seek habeas relief in U.S. district courts. The court ruled that the detained persons have such a right to habeas under the U.S. Supreme Court's 2008 decision in Boumediene v. Bush. To qualify, the detained persons must (1) not be citizens of the country where they are being held, (2) must not have been captured in the country where they are being detained, and (3) must have been held for an unreasonable length of time. Click here to read the court's decision.
Eugene Kontrovich of Northwestern University Law School has posted a new paper on The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals Here's the description from SSRN:
The United States' participation in international courts, and in particular, the potential accession to the International Criminal Court (ICC), which would have jurisdiction over U.S. nationals and U.S. territory, raises serious constitutional questions. These questions were thoroughly analyzed in the course of the debate about the constitutionality of international courts proposed by Britain in the early 19th century. This episode has never been examined by legal scholars or historians, despite its great relevance to a current legal and policy debates. This Article presents that historical debate over the slave trade courts, and draws lessons for the present legal questions.
The permissibility of joining international tribunals spans several major constitutional issues: delegating federal powers to supernational institutions; the limits if any on what can be done through the Treaty Power; and vesting judicial power in non-Article III courts. While these are all famously confused and contentious areas of law, a preponderance of scholarly opinion concludes that the Constitution does not bar joining international courts, the ICC included. However, the jurisprudence and literature on these questions has entirely neglected an important evidence.
In the wake of the Napoleonic Wars, a network of international tribunals to punish slave trading as created. Many European nations joined these "mixed courts." The United States, however, saw the courts as unconstitutional. It refused to join the mixed court system for forty-five years, spanning eleven presidencies. The constitutional objections were formulated by some of the leading statesmen of the early Republic, and even some members of the Founding Generation. They raised several constitutional objections of both structural and individual rights varieties: that the court would not be reviewable by the "Supreme" Court; and, even more importantly, that it would subject U.S. nationals to criminal trials without jury trial and other Bill of Rights protections. These objections were held unanimously in the distinguished Cabinet of James Monroe; shared by Congress; and undisputed by anyone for decades.
This suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would be unconstitutional. This does not mean that U.S. participation in international criminal courts would always be unconstitutional. Those interested in seeing the United States participate in such courts will find in the slave trade court episode not a constitutional straitjacket but rather a guide to tailoring their jurisdiction to avoid constitutional constraints. This Article unpacks the constitutional objections stated at the time and shows that some but not all international criminal courts are likely to be unconstitutional, while non-criminal international tribunals are far less problematic.
Aside from the precedential significance, the nineteenth century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions like the permissibility of non-Article III courts; constitutional restraints on the Treaty Power; and the binding effect of judgments of international courts. Additionally, nearly every argument made today about American exceptionalism in international law and the conflict between domestic and international law was rehearsed nearly 200 years ago.
Wednesday, April 1, 2009
Secretary-General Ban Ki-moon welcomed the announcement by the United States that it will seek a seat on the United Nations Human Rights Council, saying it embodies the country’s commitment to a “new era of engagement.”
“The Human Rights Council has a critical role to play in the protection and promotion of all human rights for all people, and the US has an important contribution to make to this end,” Mr. Ban’s spokesperson said in a statement. "Full US engagement on human rights issues is an important step toward realizing the goal of an inclusive and vibrant intergovernmental process to protect human rights around the globe,” the statement added.
The 47-member, Geneva-based Council replaced the Human Rights Commission – which faced increasing criticism over the years as being ineffective and not accountable – in 2006. The Council has several elements making it stronger, including its higher status as a subsidiary body of the General Assembly, its increased number of meetings throughout the year, equitable geographical representation and also the voting rights associated with membership. Despite these improvements, the US felt at the time that the Council did not go far enough and was among four countries that voted against setting up the new body.
“The Secretary-General also welcomes the announcement as a concrete embodiment of the US commitment to a ‘new era of engagement,’” the statement said.
The US State Department announced yesterday that the US will seek election to the UN Human Rights Council. According to a statement by US Secretary of State, Hillary Rodham Clinton, and US Ambassador to the UN, Susan Rice, the US hopes to make the Council more effective by joining as part of President Obama's "new era of engagement" with the international community. This decision represents another break with the Bush Administration policies, which boycotted the Council in part because of it was very critical of Israel, but refused to take a stronger position on human rights abuses by Sudan. The Obama Administration believes the US can be more effective in promoting and protecting human rights by working from within. The current structure of the UN Human Rights Council was created in 2005 as part of a largely unsuccessful attempt to bring broader reform to the UN. It was hoped that changes in the way members were elected, among other things, would make the body more effective. To date, most commentators agree that the Council has not been much more successful than its predecessor. Perhaps US commitment to the body will help it achieve its potential.
Tuesday, March 31, 2009
I received a tip from James Levenson about an interesting new case on diplomatic immunity. The case is Swarna v. Al-Awadi, No. 06 Civ. 4880(PKC), 2009 WL 773446 (S.D.N.Y. Mar. 20, 2009). Here's an excerpt from the decision to give you a flavor of what the case is about and what the court held.
Plaintiff Swarna Vishranthamma brings this action against her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan (“Individual Defendants”) and the State of Kuwait (collectively, “defendants”). At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations (“Kuwait Mission”), and plaintiff was employed as the Individual Defendants' live-in domestic servant. Mr. Al-Awadi now lives in Paris, France. Plaintiff, asserting jurisdiction under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, seeks damages against the Individual Defendants for subjecting her to slavery and slavery-like practices, including trafficking, involuntary servitude, forced labor, assault and sexual abuse (“ATCA claims”). Plaintiff also brings claims under New York law for failure to pay legally required wage, N.Y. Labor Law §§ 190, et seq. and 650, et seq. , fraud, unjust enrichment and breach of contract (“labor law claims). Plaintiff seeks damages against Kuwait on the grounds that Kuwait is vicariously liable on the ATCA and labor law claims, and that Kuwait ratified Mr. Al-Awadi's ants and aided and abetted the Individual Defendants' allegedly unlawful conduct.
Defendants have not answered or otherwise moved with respect to the complaint. Plaintiff now moves for a default judgment pursuant to Rule 55(b)(2), Fed.R.Civ.P. Defendants have filed a Notice of Appearance and argue that this Court lacks subject matter jurisdiction because the Individual Defendants have diplomatic immunity under the Vienna Convention on Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, and because Kuwait has sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1607. For the reasons explained below, plaintiff's motion for a default judgment is granted with respect to her claims against the Individual Defendants, but is denied with respect to her claims against Kuwait. Plaintiff's motion for authorization to seek discovery from Kuwait is denied as moot.
Hat tip to James Levenson!
In the past week, there have been two signifiant trademark decisions involving well known alcoholic beverages - Budweiser and Club Havana.
Last week, Europe's second highest court rejected a European-wide trademark application by Anheuser- Busch, now owned by InBev, to register the Budweiser trademark in the EU. Although Anheuser-Busch InBev owns the Budweiser or Bud trademark in 23 of the 27 EU Member States, the Court of First Instance upheld the decision of the Office for Harmonization of the Internal Market or OHIM, that a Czech company, Budejovicky Budvar, has the right to use the Budweiser name in some EU Member States based on its prior use there. Both companies have used the name for many years due to connections with the Budweis region in Germany. The decision may be appealed to the European Court of Justice.
In other trademark news, the U.S. District Court for the District of Columbia dismissed a lawsuit by Cubaexport, Cuba's state-owned export agency, yesterday seeking to renew its U.S. trademark rights for Havana Club rum. Although Havana Club is not sold in the U.S. due to the trade embargo, Cuba originally obtained a trademark for the name in 1976 in anticipation of being able to sell the product when the embargo is lifted. In 1998, Congress passed a law that prohibited the registration or renewal of Cuban trademarks, partly at the urging of Bacardi, which wants to use that brand in the U.S. Of course, all this may change if the U.S. decides to ease the Cuban embargo.
I took a group of students from Stetson University School of Law (Florida) and the University of Lucerne Faculty of Law (Switzerland) to the United Nations and other international organiizations in Geneva. The students had a great time there. Here is a photo of part of the group.
Our group also visited two of the Chambers of the Supreme Court of Switzerland (in Lucerne), and in Geneva the group visited the International Committee of the Red Cross (ICRC) and its museum, the World Health Organization (WHO), the Embassy and Permanent Mission of Benin, and the World Trade Organization (WTO).
A big thank you to everyone who made the week possible, including especially John Cooper (Stetson) and Prof. Dr. jur. Alexander H.E. Morawa (Luzern) and their teams who helped coordinate our visits and the program.
Congratulations to the American Society of International Law for a highly successful meeting last week in Washington DC. More than 1200 persons attended the meeting and by all accounts it was a smashing success. Congratulations also to the Interest Groups (including TILIG, the ASIL Interest Group for Teaching International Law).
Monday, March 30, 2009
Momentum appears to be building for a further easing of the U.S. embargo on Cuba. According to a Washington Post article today, there will be a news conference on Capital Hill tomorrow to announce a new bill easing travel restrictions for Americans who want to go to Cuba. The bill appears to have greater support than similar ones introduced in Congress in the past. President Obama already lifted restrictions put in place by the Bush Administration on travel and foreign remittances by Cuban Americans with family in Cuba. His action appears to be consistent with his call for a "new strategy" with respect to Cuba. There is talk that President Obama will lift travel restrictions on all Americans who wish to go to Cuba prior to his participation in the Summit of the Americas in Trinidad and Tobago in mid-April. While the President alone cannot end all aspects of the embargo on Cuba without Congressional involvement, the Treasury Department does have significant leeway to tighten or loosen the embargo through its regulations and its decisions to grant or refuse licenses for transactions with Cuba. Stay tuned!