• United Nations Security Council Resolution 1907 – Peace and Security in Africa (Dec. 23, 2009)

• United Nations Security Council Resolution 1904 – Threats to International Peace and Security Caused by Terrorist Acts (Dec. 17, 2009)

• Memorandum of Understanding between the European Commission and the Organization of American States (Dec. 17, 2009)

World Trade Organization

• China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Appellate Body Report (Dec. 21, 2009)

United States Court of Appeals for the District of Columbia Circuit

• Al-Bihani v. Obama (Jan. 5, 2009)

United States District Court for the District of Columbia

• United States v. Slough (Dec. 31, 2009)

• European Union Deposits Instruments of Ratification of the World Intellectual Property Organization Copyright Treaty (Dec. 14, 2009)

• Ministers for Foreign Affairs and Representatives of the 47 Council of Europe Member States Adopt Protocol No. 14bis to the European Convention on Human Rights (Dec. 5, 2009)

United Nations Security Council Resolution 1907 – Peace and Security in Africa (Dec. 23, 2009)

Click here for document (approximately 6 pages)

Acting under Chapter VII of the United Nations Charter, the United Nations Security Council, by a vote of thirteen to one, has imposed sanctions and an arms embargo against Eritrea for its role in assisting Somali rebels and for its refusal to withdraw its forces and equipment from the disputed border with Djibouti.

The Security Council has authorized all Member States to not only inspect all cargo to and from Somalia and Eritrea but also seize and dispose of all illegal items discovered.

United Nations Security Council Resolution 1904 – Threats to International Peace and Security Caused by Terrorist Acts (Dec. 17, 2009)

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The United Nations Security Council adopted Resolution 1904 on the listing and delisting of individuals and entities associated with Al-Qaida, Usama bin Laden, and the Taliban. The Resolution is meant to improve the often criticized sanctions regime instituted pursuant to Resolution 1267 in the aftermath of 9/11.

The Resolution creates new listing and delisting procedures, notably the Office of the Ombudsperson for an initial period of eighteen months to review delisting requests. The Ombudsperson, “an imminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields,” is to be appointed by the United Nations Secretary General in consultation with the Sanctions Committee.

This development comes as a response to growing criticism in several countries about the lack of transparency and procedural safeguards in the listing of individuals and entities. In recent years, national and international bodies have ordered that assets of alleged supporters of Usama bin Laden and Al-Qaida be unfrozen and that the accused individuals and entities be delisted. Arguably, this resolution is part of a continuing attempt to ensure that procedural guarantees afforded to individuals and entities are protected.

Memorandum of Understanding between the European Commission and the Organization of American States (Dec. 17, 2009)

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The European Commission and the General Secretariat of the Organization of American States (OAS) have signed a Memorandum of Understanding (MoU), or a “framework for inter-institutional dialogue and cooperation,” to improve their cooperation in “sectors of mutual interest.” More specifically, the two parties seek to focus on 1) the protection and promotion of human rights; 2) development; 3) democracy; and 4) any other area of transnational significance.

The OAS described the MoU as “an important milestone of political will for increased cooperation between the OAS and the European Union, and an opening for potential contractual relations as well as for identifying specific opportunities for collaboration between the two sides.”

World Trade Organization

China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Appellate Body Report (Dec. 21, 2009)

Click here for Appellate Body Report (approximately 195 pages); click here for summary of the Report (approximately 4 pages)

The Appellate Body of the World Trade Organization (WTO) has issued its report in China —Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products recommending that the WTO Dispute Settlement Body (DSB) request China to bring measures found to be inconsistent with China’s Accession Protocol, China’s Accession Working Party Report, the General Agreement on Trade in Services (GATS), and the General Agreement on Tariffs and Trade (GATT 1994) in conformity with China’s obligation under these instruments.

In April 2007, the United States requested consultations with the Chinese government regarding certain measures restricting trading rights and distribution services of certain types of publications and audiovisual entertainment products. The United States alleged that China’s statutory reservations—allowing only specific Chinese state-designated and wholly or partially state-owned enterprises the right to import films, audiovisual home entertainment products, sound recordings, and publications into Chinese territories—violated China’s obligations under the WTO Protocol of Accession. The United States further claimed that various other measures instituted by the Chinese government imposed market access restrictions or discriminatory limitations on foreign service providers seeking to engage in the distribution of publications and certain audiovisual home entertainment products. This unequal or less favorable treatment, the United States argued, amounted to violation of GATS, GATT 1994, and the Protocol of Accession.

In August 2009, a WTO panel concluded that China had acted inconsistently with the provisions of GATS, GATT 1994, and the Protocol of Accession. The panel recommended that the DSB request China to bring the relevant measures into conformity with its obligations under those agreements. Both China and the United States appealed the panel report to the WTO Appellate Body, which for the most part agreed with the panel’s conclusions.

United States Court of Appeals for the District of Columbia Circuit

Al-Bihani v. Obama (Jan. 5, 2009)

Click here for document (approximately 34 pages)

The United States Court of Appeals for the District of Columbia Circuit has issued a decision upholding the district court’s order denying Ghaleb Nassar Al-Bihani’s (Al-Bihani) petition for writ of habeas corpus.

Al-Bihani, a Yemeni citizen who served in a Taliban affiliated group, was captured in Afghanistan by the Northern Alliance and transferred to U.S. authorities in early 2002. He was then sent to Guantánamo Bay for detention and interrogation.

Al-Bihani filed a habeas corpus petition challenging his detention. In part, he argued that the basis of his current detention—his alleged support of al Qaeda—was in violation of laws of war. According to Al-Bihani, he was not a member of an official state military and thus was a civilian to be afforded proper rights. The district court denied his petition and held that the government was authorized to detain anyone that had been a part of or supported Taliban or al Qaeda forces “or associated forces that are engaged in hostilities against the United States or its coalition partners.” The district court primarily relied on Al-Bihani’s own admissions and refused to rely on admissions that he later recanted. Al-Bihani appealed the district court’s order “alleging numerous substantive and procedural defects.”

The Court of Appeals unequivocally stated that the government is authorized to detain individuals and that international laws of war “have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” As a result, the court found the petitioner's reliance on international law "both inapposite and inadvisable." For the court, “international laws of war are helpful to courts when identifying the general set of war powers” but were not binding or authoritative. The court concluded that Al-Bihani’s detention was legitimate and that the government, not international law, should determine “a workable legal standard to identify individuals it can detain.” Reviewing the evidence presented by the government, including Al-Bihami’s own admissions, the appellate court concluded that the lower court had not erred in denying his petition.

The court also discussed at length the proper habeas corpus procedures to be afforded to individuals currently detained at Guantánamo Bay. Al-Bihani had argued that the lower court’s habeas process had not met the Suspension Clause requirements and that he deserved a new hearing with additional protections. Analyzing the history and the development of habeas protections, the court concluded that “[h]abeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions.”

United States District Court for the District of Columbia

United States v. Slough (Dec. 31, 2009)

Click here for document (approximately 90 pages)

The United States District Court for the District of Columbia dismissed the indictment against five former Blackwater security guards. These defendants had been charged with voluntary manslaughter and firearms violations stemming from a 2007 shooting incident in Iraq in which the defendants allegedly shot and killed fourteen civilians and wounded twenty others. The defendants argued that U.S. government had violated their constitutional rights by using statements made immediately after the incident and compelled by threat of job loss. The government acknowledged that the U.S. Supreme Court decision Garrity v. New Jersey—holding that the government is barred by the Fifth Amendment privilege against self-incrimination from using statements made under a threat of job loss—applied; it also conceded that the prosecution, investigators, and key witnesses “were exposed” to the compelled statements. However, the government argued that such exposure was harmless beyond a reasonable doubt and thus admissible in court against the defendants.

Judge Ricardo M. Urbina disagreed, citing to evidence presented by the defense demonstrating that the key witnesses, the prosecution team, and those investigating the incident had been tainted by statements made by the five defendants. Judge Urbina added that the government was in a position to take “certain common sense precautions before presenting its case,” especially since “[t]he prosecutors and investigators were . . . aware from the very moment they were assigned to this case . . . that there was a significant taint problem.” Failure to properly take the necessary precautions, Judge Urbina concluded, amounted to “reckless violation of the defendants’ constitutional rights.” As a result, he granted the defendants’ motion to dismiss the indictment.

European Union Deposits Instruments of Ratification of the World Intellectual Property Organization Copyright Treaty (Dec. 14, 2009)

Click here for press release (approximately 1 page)

According to a World Intellectual Property Organization (WIPO) press release, the EU has deposited instruments of ratification to the WIPO Copyright Treaty. The treaty will enter into force on March 14, 2010.

The WIPO Copyright Treaty is an agreement under the Berne Convention obligating contracting parties to comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic Works (1886). The treaty protects copyright of computer programs and compilations of data or other material “which by reason of the selection or arrangement of their contents constitute intellectual creations.”

Ministers for Foreign Affairs and Representatives of the 47 Council of Europe Member States Adopt Protocol No. 14bis to the European Convention on Human Rights (Dec. 5, 2009)

Click here for press release (approximately 2 pages)

On December 5, 2009, Ministers for Foreign Affairs and Council of Europe member states’ representatives adopted Protocol No. 14bis to the European Convention on Human Rights, thus improving the capacity of the European Court of Human Rights to process applications. The Protocol provisions apply only to those states that have ratified it.

The Protocol introduces two major changes meant to streamline the review of applications received by the Court: it authorizes a single judge to reject applications as inadmissible (a process once requiring three judges), and, instead of a chamber of seven judges, three-judge committees will be able to declare applications as admissible and decide the merits of “well-founded and repetitive cases.”

The Protocol will be opened for signature on May 27, 2010, and requires ratification by three states before entering into force.