International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2010 Issue

cases of note


Brzak v. United Nations (2nd Cir. Mar. 2, 2010)

Click here for document (approximately 11 pages)

In Brzak v. United Nations, the U.S. Court of Appeal for the Second Circuit was asked to review a lower court’s dismissal of a case against the United Nations and its staff. The Second Circuit affirmed the dismissal for lack of subject-matter jurisdiction, holding that the UN and its officials “enjoy[ed] absolute and functional immunity.”

The plaintiffs, two former UN staff, sued the UN and several of its officials, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 for alleged misconduct that occurred at a 2003 meeting in Geneva. The lower court, applying the Convention on Privileges and Immunities of the United Nations (CPIUN), ruled that the UN and its officials enjoyed absolute immunity, and, unless this immunity was waived, the court lacked jurisdiction. Since the UN never waived its immunity, the judge concluded, the suit had to be dismissed. The plaintiffs appealed the dismissal to the Second Circuit.

The question before the Second Circuit was whether the CPIUN was self-executing, i.e., whether the protections found therein had domestic legal effect. Reviewing the language of the CPIUN, the ratification history, and the statements made by the executive branch, the Second Circuit held that it had “little difficulty concluding that the CPIUN is self-executing.” It went on to affirm the lower court’s holding.

Graham v. Florida (U.S. May 17, 2010)

Click here for document (approximately 84 pages)

In Graham v. Florida, the U.S. Supreme Court held that the imposition of a life in prison sentence without the possibility of parole on juvenile offenders who have not committed murder was unconstitutional.

The petitioner originally pleaded guilty at the age of sixteen in Florida to armed burglary. Pursuant to a plea agreement, petitioner was put on probation, with no formal adjudication of guilt. A few months later, the petitioner was arrested and charged with other crimes thus violating the terms of his probation. This time, the trial court sentenced him to life in prison without the possibility of release for the earlier crime and the additional charges. After the state appellate court affirmed the lower court’s sentence, the petitioner appealed to the U.S. Supreme Court alleging violation of the Eighth Amendment’s cruel and unusual punishment clause.

Relying on its own precedent, the Court held that to “determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’” To ascertain the changing “standards of decency,” the Court reviewed current state practice in the United States, global practice, and international instruments.

However, the Court also acknowledged that while the “community consensus” played an important role, it was the Court’s own “exercise of independent judgment” that mattered. Here, the Court took note of scientific studies that supported the assumption that the maturity level of juveniles is different than that of adults: “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” It also noted the different types of crimes: “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.”

Notably, the Court acknowledged that while other countries have not outlawed life in prison without parole sentences for juvenile offenders, data clearly showed that the United States was the only country where this type of sentence could be imposed on “juvenile nonhomicide offenders.” The Court concluded that “[t]oday we continue that longstanding practice in noting the global consensus against the sentencing practice in question.”

Justice Thomas, with whom Justice Scalia and Justice Alito joined (Justice Alito joined in Parts I and III), dissented. He criticized the majority’s reasoning as overbroad, “intrud[ing] upon areas that the Constitution reserves to other (state and federal) organs of government.” The dissenting justices particularly disliked the majority’s reliance on “community consensus”: “the Framers did not provide for the constitutionality of a particular type of punishment to turn on a ‘snapshot of American public opinion’ taken at the moment a case is decided.”

Khatib v. County of Orange (9th Cir. May 3, 2010)

Click here for document (approximately 9 pages)

Recently, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a claim by a Muslim woman alleging that her rights were violated when she was ordered to remove her “hijab” (headscarf) while she was held in a California Superior Court holding cell awaiting her probation hearing. The Court concluded that the plaintiff did not meet the statutory requirements of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects “the religious exercise of institutionalized persons.”

The main disagreement between the majority and the dissent (Chief Judge Alex Kozinski vehemently dissented) centered on the interpretation of the RLUIPA. The majority held that the holding cell was not within the statute’s enumerated types of institutions; Chief Judge Kozinski, meanwhile, declared that “[t]he statute here clearly covers courthouse holding facilities like the one where [plaintiff] was confined and forced to uncover her head in the presence of men who were not her husband . . . . I can see no plausible reason why a facility which has a permanent staff of 20 deputies and handles thousands of inmates” should be exempted from RLUIPA.

U.S. President Obama Signs Daniel Pearl Freedom of the Press Act (May 17, 2010)

Click here for Act (approximately 2 pages)

President Obama has signed the Daniel Pearl Freedom of the Press Act meant to promote press freedom around the world. According to NY Times, the Act is “a bipartisan measure inspired by the murder in Pakistan of Daniel Pearl, the Wall Street Journal reporter, shortly after the attacks of Sept. 11, 2001.” The Act amends the Foreign Assistance Act of 1961 to include in the Annual Country Reports on Human Rights Practices information on freedom of the press in foreign countries.


Abbott v. Abbott (U.S. May 17, 2010)

Click here for document (approximately 49 pages)

The United States Supreme Court ruled, six votes to three, that a parent has a right of custody under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) if the parent has a ne exeat right, a right to consent before the child can be removed from a country by the other parent. The Court held that ruling otherwise would render the Convention, which protects the rights of minor children, “meaningless.” The petitioner, Timothy Abbott, asked the Supreme Court to review the Fifth Circuit’s ruling that a ne exeat right did not constitute the right of custody required under the Convention.

Mr. and Ms. Abbott moved from the United States to Chile and separated. The Chilean courts granted Ms. Abbott full custody rights, including the right to “daily care and control of their minor son.” The courts granted the father visitation rights and the ne exeat right to consent before Ms. Abbott could take the son outside of Chile. Without first obtaining permission from the father or the Chilean courts, Ms. Abbott brought her son to Texas. Mr. Abbott sued, seeking an order that the son be returned to Chile. Both the district court and the Fifth Circuit held in favor of Ms. Abbott.

The main question before the Supreme Court was whether the Convention recognizes a ne exeat right to be a “right of custody,” thus allowing the father to decide whether his child can be removed from a country. The Court relied on the text of the Convention, concluding that the ne exeat right is “best classified as ‘joint right of custody’” under Article 3(a), which in turn “include[s] rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” The Court recognized that this broad reading “does not fit within traditional physical custody notions” but added that this argument was irrelevant as “the Convention’s definition of ‘rights of custody’ controls.”

The Court also stressed that the uniform reading and application of the Convention would be in the interest of the child so as to limit domestic and regional interpretations of treaty language.


EU – U.S. 2010 Declaration on Counterterrorism (June 3, 2010)

Click here for document (approximately 3 pages)

The United States and the European Union (including its Member States) have issued a declaration detailing several measures necessary in “forging a durable framework to combat terrorism within the rule of law.”

The declaration emphasizes the need to ensure that all measures taken by the two parties are “in accord with . . . fundamental values and with full respect for the sovereignty of nations and the rule of law.” Notably, both parties reaffirmed their commitment “to implement prohibitions on torture, as well as on cruel, inhuman and degrading treatment and punishment.” Also significant is the parties’ commitment to ensure that terrorist suspects receive a fair and effective trial, “within a legal framework that provides for meaningful due process rights.” Finally, the declaration stresses the need to avoid racial, ethnic, and/or religious discrimination in combating terrorism. With respect to this latter commitment, the Spanish Interior Minister Alfredo Rubalcaba, whose country currently chairs the European Union, declared that “[t]his declaration is a message to the Muslim world . . . . We will be firm in the defence of our values, but we will show our tolerance vis-à-vis other cultures.”

Samantar v. Yousuf (June 1, 2010)

Click here for document (approximately 24 pages)

The U.S. Supreme Court ruled that the Foreign Sovereign Immunities Act (FSIA), which provides that a foreign state shall be immune from U.S. jurisdiction except as provided in the Act, does not apply to the actions of an individual foreign official. The Court, affirming the Fourth Circuit, narrowly interpreted the terms of the statute, holding that an agency or instrumentality of the state does not refer to an individual.

The petitioner, former Minister of Defense of Somalia, was sued in U.S. courts by Somali nationals, who allege that he authorized and controlled the commission of torture and killings by Somali military forces.

The Court remanded the case to the federal district court to determine “whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him.”

Rent-A-Center West v. Jackson (U.S. June 21, 2010)

Click here for document (approximately 27 pages)

The Supreme Court, reversing the judgment of the Ninth Circuit, held that under the Federal Arbitration Act, a former employee’s challenge of the validity of his employment contract as a whole, rather than the specific agreement to arbitrate, is left for the arbitrator to consider. The decision, which will impact both national and international arbitrations and arbitration agreements, follows the pro-arbitration view adopted by the U.S. Supreme Court in recent years.

Respondent Antonio Jackson sued his former employer, Rent-A-Center, challenging the arbitration agreement contained in his employment contract. Jackson alleged that the arbitration agreement, under which he agreed to have an arbitrator resolve any dispute arising out of his employment or regarding the enforceability of the agreement, was unconscionable and thus unenforceable under Nevada law.

Relying on previous case law, the Supreme Court held that only claims challenging specifically the validity of the agreement to arbitrate are relevant to a court’s determination whether the arbitration agreement is enforceable. The Court, establishing that Jackson’s argument referred to the agreement as a whole, concluded that the arbitrator, not the court, could hear the claim.

Holder et al. v. Humanitarian Law Project et al. (U.S. June 21, 2010)

Click here for document (approximately 65 pages)

The U.S. Supreme Court recently ruled that the Material Support Statute, 18 U.S.C. §2339B, as it applied to the support the plaintiffs in the case intended to provide to two terrorist organizations, was not unconstitutionally vague and did not violate the plaintiffs’ Fifth and First Amendment rights.

The Material Support Statute makes it a crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.”

Plaintiffs, two U.S. citizens and six domestic organizations, intended to provide support to two organizations (the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)). Both organizations are designated as terrorist organizations by the Secretary of State. Plaintiffs commenced suit, asking U.S. courts to enjoin the enforcement of the Material Support Statute as it violated their constitutional rights. The lower court partially enjoined the enforcement of the Statute and the Night Circuit affirmed. Thereafter, both the plaintiffs and the U.S. government cross petitioned for writ of certiorari.

The Supreme Court reviewed the relevant provision and concluded that Congress had clearly spoken on the issue of what types of actions were prohibited by the Statute: “Congress has prohibited the provision of ‘material support or resources’ to certain foreign organizations that engage in terrorist activity.” Plaintiffs’ intended activities, including the “training [of] PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka,” clearly fell within the range of activities prohibited by the Statute. The Court, relying on statements issued by Congress, held that foreign organizations engaging in terrorist activity “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”

The Court remanded the case to the lower courts for further proceedings.

Justice Stephen Breyer, with whom Justices Ruth Bader Ginsburg and Sonia Sotomayor joined, dissented. While he agreed with the majority that the Statute was not unconstitutionally vague, he disagreed with the “conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives.” In his view, “the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government’s compelling interest in combating terrorism.”


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