SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS v. RAHMATULLAH: Defining the Scope of Extraterritorial Obligations to Foreign DetaineesWritten by Kristi Scriven
 UKSC 48
During the commencement of the Iraq War, the United States, the United Kingdom, and Australia signed a Memorandum of Understanding, outlining the process for transferring and removing persons captured during the war. The terms of this Memorandum of Understanding accord with the Geneva Convention Relative to the Treatment of Prisoners of War ("GC3"), the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ("GC4"), and customary international law. In the recent decision Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah, the Supreme Court of the United Kingdom considers how these Conventions and customary international law affects the United Kingdom’s obligations toward detainees, and seeks to define who may enjoy the protection of the Geneva Conventions and customary international law.
AE104F 1, 1 (Jan. 15, 2013)
In Marbury v. Madison, the Supreme Court recognized that when executive discretion is exercised no authority could interfere with such power. Political issues "respect the nation, not the individual rights, and being entrusted to the executive, the decision of the executive is conclusive." The judiciary has consistently found that national security issues create political questions that are best deferred to the executive branch. Executive deference is necessary because judges are perceived to lack the requisite expertise in foreign policy to discern what information can be disclosed to the public and when disclosure will compromise national security. Furthermore, executive deference is given to inhibit the judiciary from usurping executive functions. National security policies post-9/11 have been challenged on the grounds that they infringe upon individual rights guaranteed by the Constitution.
EWEIDA & OTHERS V. U.K.: Losing My Religion? Restricting the Manifestation of Religious Beliefs in the WorkplaceWritten by Kathryn M. Pando
HUDOC (Jan. 15 2013)
The rise of religious diversity and “hardening of secularism” in contemporary European society raises concerns over the presence of religion in the work place. Employers and employees are increasingly placed at odds in a society “riven by conflict” between religion and sexual orientation. May an
employer restrict an employee’s right to personally display a religious symbol? Can an employee be dismissed for refusing toprovide services to homosexuals due to his religious convictions? In the recent case, Eweida & Others v. U.K., the European Court of Human Rights answered these very questions and determined permissible restrictions on the right to manifest religious beliefs in the work place.
No. 11 C 4798, 2012 WL 2396866, (N.D. Ill. Jun. 21, 2012)
Over time, tax evasion has cost the United States government billions of dollars. Over the course of the last few decades, wealthy American citizens have exacerbated this problem by moving their assets to Swiss bank accounts. The appeal of storing assets in a Swiss bank account is clear, in part because Switzerland has enacted some of the strictest account holder privacy laws in the world. Failure on the part of a Swiss bank to protect the identities of their clientele can result in harsh fines and even imprisonment.4 As such, American citizens have used these accounts as “tax havens” to hide their assets from the government, and avoid paying income tax.
The recent case, Thomas v. UBS AG, dealt with the duties owed by Swiss banks to their American clientele in relation to these new regulations. In Thomas, the Plaintiffs claimed UBS acted negligently and in breach of its fiduciary duty by not supplying them with proper forms required by the QI Agreement with the IRS. Plaintiffs maintained that these forms would have alerted them of their income tax obligations, and enabled them to avoid withholding penalties. The United States District Court for the Northern District of Illinois, Eastern Division, dismissed all five causes of action alleged by the Plaintiffs against UBS, opining that a fiduciary duty did not exist between the parties with regard to the QI Agreements, and that the Plaintiffs failed to give UBS adequate notice of the claims against them.
PROSECUTOR V. CHARLES TAYLOR: Did the Special Court for Sierra Leone Meet Its Sentencing Objectives?Written by Maggie O’Connor*
Recently, in Prosecutor v. Charles Taylor, the SCSL convicted Charles Taylor, the former President of Liberia, on eleven counts of aiding and abetting war crimes. The court found that Taylor assisted, directed, and controlled the warring factions in conducting the armed attacks. Taylor supplied rebel forces with arms and ammunition, supported specific military operations, and provided military training. In return, the rebel forces delivered diamonds mined from areas in Sierra Leone. Without Taylor’s support, the rebel forces responsible for the commission of these horrific crimes might have been stopped much earlier.
2012 U.S. App. LEXIS 17732 (7th Cir. 2012)
The expropriation of property during the Holocaust was dually effective in carrying out the genocide of Hungarian Jews. By effectively stealing and selling Jewish property, the Nazi regime was able to simultaneously fund the transport and murder of their victims and also ensured that survivors were deprived of an opportunity to reestablish themselves. In an attempt to compensate Holocaust survivors, many European countries devised programs to distribute compensation to survivors and their heirs. Hungary established The Jewish Heritage of Hungary Public Endowment program in 1991 in order to provide restitution for private property taken from Hungarian Jews during World War II. Compensation, however, was limited; those eligible received only between 5 and 10% of property market value of their expropriated property in vouchers, which could only be used to buy shares in domestic privatized companies or state bonds. Furthermore, this program did not distribute compensation for certain types of assets, such as bank accounts.
680 F.3d 781 (7th Cir. 2012)
The Hague Convention (“the Convention”) is a multilateral treaty that seeks to deter child abduction and secure the prompt return of children wrongfully removed from their habitual residence. A court determining a Convention petition is limited to deciding if a child was wrongfully removed and whether any exceptions to the Convention apply. The Convention does not permit courts to make custody determinations. Rather, custody disputes are resolved in the country of the child’s habitual residence.
In the recent case Khan v. Fatima, a wife fell victim to her husband’s abuse. When the opportunity presented itself, she fled with her child. Despite the harm child abduction may cause to a child, domestic violence necessitated drastic measures for the safety of herself and her child.27 The district court in Khan, through a narrowly-tailored application of 13(b), did not consider the father’s abuse “serious” or that the child’s habitual residence was unable to give the child adequate protection. However, the Seventh Circuit, in a broader, more humane approach, determined that the district court conducted an insufficient evidentiary process, and that there was sufficient evidence to conclude that the child should not be returned to her father.
MOHAMAD V. PALESTINIAN AUTHORITY: The Torture Victim Protection Act of 1991 Applies Only Against Natural Persons and Not OrganizationsWritten by Amanda A. Rottermund
132 S. Ct. 1702 (2012)
The Torture Victim Protection Act of 1991 (TVPA) provides a cause of action in U.S. courts against individuals who “under actual or apparent authority, or color of law, of any foreign nation” torture a person or takes part in an “extrajudicial” killing. On its face, the TVPA appeared to make U.S. courts an attractive forum for civil recovery claims in international torture and extrajudicial killing cases. However, despite the TVPA’s broad language the statute has not been construed as a catchall law “to avenge” all “torture and killings overseas.” The Supreme Court’s holding in a recent case, Mohamad v. Palestinian Authority, reiterates Congress’ intent to narrowly limit the TVPA’s power by rendering the TVPA largely “toothless” against all but “individuals.”
WULTZ V. ISLAMIC REPUBLIC OF IRAN: Expanding the Extraterritorial Jurisdiction of American Courts Under the State-Sponsored Terrorism Exception to the Foreign Sovereign Immunities ActWritten by Paul Greco
2012 U.S. Dist. LEXIS 66593 (D.D.C. 2012)
The heightened threat and increased public awareness of international terrorism, particularly in the wake of domestic catastrophes like the World Trade Center bombing of 1993, the Oklahoma City bombing, and the September 11th terrorist attacks, has motivated legislative efforts to rein in the financial support behind terrorist organizations.Since the early 90’s, legislation drafted with the specific aim of creating a private cause of action against terrorist organizations and supporters of terrorism worldwide have included the Antiterrorism Act of 1991 (ATA), the Torture Victim Protection Act of 1991 (TVPA), and provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The state-sponsor of terrorism exception to the Foreign Sovereign Immunities Act of 1976 (FSIA) has also developed through federal statutes subsequent to AEDPA and case precedent5 to become an effective means of targeting states that financially support acts of terrorism.
The recent decision in Wultz v. Islamic Republic of Iran tested this new provision as well as the rapid expansion of the exception that has occurred in the past fifteen years. In Wultz, the District Court for the District of Columbia entered a default judgment in favor of the plaintiffs, the estate, and the family of a sixteen-year-old American citizen killed in a suicide bombing in Tel Aviv. The case was brought under the private cause of action provision of § 1605A against Iran and Syria for supporting the terrorist organization that carried out the attack and vicariously committing an extrajudicial murder. The court ultimately awarded plaintiffs $332,068,634 in compensatory and punitive damages. The decision in Wultz demonstrates the Court’s agreement with Congress as to the statute’s aim of holding state supporters of terrorism accountable for their actions. It also demonstrates the merits underpinning the concern that lack of cooperation on the part of Iran, Syria, and other defendants in future cases brought under § 1605A will likely hinder the more concrete goals of compensating victims of terrorism and cutting off sources of funding for terror.
TIFFANY LLC v. QI ANDREW: Do the Principles of International Comity Shield Chinese Bank Records from Discovery?Written by Courtney Morgan
276 F.R.D. 143 (S.D.N.Y. 2011)
Tiffany’s little blue box has become an international symbol of class and luxury in high-end jewelry; so much so that foreign counterfeiting operations have become a common practice. Recently, in Tiffany v. Andrew, the U.S. District Court for the Southern District of New York denied Tiffany's motion to compel financial records held by Chinese banks that Tiffany believed would shed light on the international trademark infringement at issue. The Court pointed to the existence of “true conflicts” between United States and Chinese banking laws that preclude discovery under the principles of international comity. The decision highlights areas of contention in the comity analysis, particularly the issue of whether or not China is likely to comply with requests for information under the Hague Convention.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff, Tiffany, brought a trademark infringement action against Defendant, Qi Andrew, in the Southern District of New York, claiming that Defendant established several websites in the United States to elicit the sale of counterfeit jewelry. Defendant allegedly used several Chinese banks in connection with the counterfeit operations, and Tiffany attempted to acquire all related bank records on the basis that defendant accepted payment in U.S. dollars and used PayPal. In January 2011, Tiffany served the New York branches of the Chinese banks with subpoenas and a preliminary injunction permitting Tiffany’s motion for expedited discovery for all records in the banks’ “possession, custody, or control” involving the defendants’ financial transactions, including financial records from all of the China-based banks.