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Legal news from Thursday, October 6, 2011




EU court advisor supports pollution fines against foreign airlines
Andrea Bottorff on October 6, 2011 2:24 PM ET

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[JURIST] The EU Court of Justice (ECJ) [official website] advocate general Juliane Kokott on Thursday issued an opinion stating that an EU law forcing foreign airlines using EU airports to pay fees for greenhouse gas emissions is lawful [opinion, text]. Kokott said that the carbon emission fees do not violate international law, as several US and Canadian airlines have argued. The airlines filed for judicial review of an EU Directive 2008/101/EC [PDF], which announced that airlines would have to comply with heightened emissions regulations while using EU airports beginning on January 1, 2012. The airlines argued that the directive violated the Chicago Convention, the Kyoto Protocol and the Open Skies Agreement [PDFs]. However, Kokott said that the directive does not violate the international agreements, noting that the EU is not a party to the Chicago Convention. The opinion of the advocate general is advisory and not binding on the ECJ, which will subsequently rule on the issue.

The EU has played an active role in environmental issues. Last month, the ECJ ruled [JURIST report] that France's ban on the cultivation of a genetically modified (GM) maize was illegal. Although France has the right to impose a ban on GM maize, the court stated that France acted illegally by not following proper EU protocol [Reuters report]. In order to impose a ban, EU members must demonstrate that the product poses a serious risk to the environment or human or animal health, and notify the European Commission [official website] authorities of the need to take emergency measures. In March, ECJ Advocate General Paolo Mengozzi issued an opinion [JURIST report] stating that a French ban on cultivating genetically modified (GM) crops was illegal. The use of GM organisms, whether through experimentation or cultivation, is governed by EU law.




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Pakistan top judge orders political parties to cut ties with criminal gangs
Andrea Bottorff on October 6, 2011 1:26 PM ET

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[JURIST] Pakistani Supreme Court Chief Justice Iftikhar Mohammad Chaudhry [official profile] on Thursday issued a judgment urging political parties to stop financing criminal groups [order, PDF] responsible for increased violence in the city of Karachi. In the judicial decision, Chaudhry announced that militant groups have gained strength because of support from local political groups and ordered the Pakistani government to help address the corruption:
The problem can only be solved through application of special means as well as requesting political leadership to eliminate militancy from their wings. The political face of the city has been taken hostage by militant groups of political parties. Political parties are penetrated by the criminals under the garb of political groups who use party flags. The militants and criminals are taking refuge in the lap of political and ethnic parties which use the flags of these parties to commit illegal activities with impunity.
Chaudhry quoted Article 9 of the Pakistani Constitution [text, PDF], upholding the fundamental rights of individuals to life and liberty under the law. He also suggested that the government create committees to investigate and encourage police forces to take action against gang members, despite the criminals' political connections. Nearly 1,000 people have been killed this year [AFP report] because of the rising violence in Karachi, the financial capital of the country.

Pakistan faces an ongoing struggle dealing with politicians allegedly involved with violent crime. Pakistani Judge Shahid Raffique in August ordered that the property of former Pakistani president Pervez Musharraf be seized and his bank account frozen [JURIST report] in connection with his alleged involvement in the assassination of former prime minister Benazir Bhutto [JURIST news archives]. The judge ordered the nation's Federal Investigation Agency (FIA) [official website] to conduct the seizure because Musharraf had failed to respond to multiple subpoenas [Al Jazeera report]. Musharraf was arrested in February [JURIST report] because he had not cooperated during the investigation of Bhutto's death, and investigators alleged that Musharraf did not provide adequate security [DAWN report] for Bhutto when she was assassinated during a campaign rally in Pakistan in 2007.




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Bahrain grants retrials to 20 convicted medics
Dan Taglioli on October 6, 2011 12:58 PM ET

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[JURIST] Bahrain [JURIST news archive] on Wednesday announced retrials will be given to 20 medical staff convicted last month of participating in the country's pro-democracy protests against the ruling regime. Dr. Ali al-Boainain, Bahrain's attorney general, stated that the department of public prosecution had studied the judgment rendered against the 20 Shiite medics by the National Safety Court of Appeal and determined that the cases should be retried in the civilian courts [AFP report]. The 13 doctors, one dentist, nurses and paramedics who were jailed for providing treatment to injured protesters all worked at the Salmaniya Medical Complex in Manama, which was stormed by security forces in March after they drove protesters out of the nearby Pearl Square—the focal point of protests inspired by uprisings that have swept the Arab world. Among other terrorism charges, the 20 were accused of having possession of an AK-47, Molotov cocktails and other weapons for the purposes of ousting the ruling regime, confiscating medical equipment, spreading lies, inciting hatred against the regime and violating various other laws and regulations with an aim to disturb public security. The prosecutor stated that the medics' cases will start from scratch and the individuals should not be punished merely for their political views. The retrials will be conducted before the highest civil court in Bahrain, and the 20 will remain out of government custody, pending the outcome of their trials. The National Safety Court of Appeal, a court composed of military prosecutors and civilian and military judges, was set up in the wake of the March crackdown on pro-democracy protests led by the Shiite majority against the Sunni ruling family.

Bahraini King Hamad bin Isa Al Khalifa [official profile] announced in August that he will dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations in the country. In June, Khalifa announced that an independent commission will investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, the OHCHR announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. The National Safety Courts were instituted in mid-March under Khalifa's three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW). The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations.




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Derrick Bell: November 6, 1930 - October 5, 2011
Matthew Shames on October 6, 2011 12:34 PM ET

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[JURIST] Derrick Bell, a leading legal scholar and the first tenured African-American professor at Harvard Law School [official website], died Wednesday in New York of carcinoid cancer. Born and raised in Pittsburgh, Pennsylvania, Bell graduated from the University of Pittsburgh School of Law [official website] in 1957, the only African-American in his class. He subsequently worked for the US Justice Department and the NAACP before beginning an academic career in the 1960s. Bell pioneered a new approach to the study of racism known as critical race theory, exploring the extent to which racism is fully embedded into societal institutions, including laws. He theorized that a majority population would only support efforts to improve the position of a minority when and to the extent that the interests of the groups converge. In his own scholarship Bell embraced allegorical storytelling rather than traditional legal analysis. His parable The Space Traders [PDF], published in 1992, is perhaps the best known example of this still controversial approach.

Throughout his life, Bell repeatedly took public stands against what he perceived as racism. In 1959, he resigned his position with the Justice Department rather than give up his membership in the NAACP. In the 1980s, he resigned as Dean of the University of Oregon School of Law [official website] when he believed that minority candidates were not being properly considered for the faculty. After returning to Harvard Law School, Bell engaged in a public battle regarding the school's hiring practices and lack of diversity, ultimately leading him to take an unpaid leave of absence in 1990, followed by the school formally removing him in 1992. Bell continued to work as a scholar and visiting professor at New York University School of Law [official website, faculty profile] until his death. In 2003, Bell contributed an essay to an early JURIST online symposium on the Gratz and Grutter affirmative actions cases then recently decided in the US Supreme Court.




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Federal judge again refuses to enjoin most of Alabama immigration law
Dan Taglioli on October 6, 2011 12:11 PM ET

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[JURIST] A judge for the US District Court for the Northern District of Alabama on Wednesday denied [order, PDF] an emergency motion to issue a temporary injunction on those portions of Alabama's recently passed immigration law [HB 56 text] that the same judge last week ruled did not meet the requirements for a preliminary injunction. The plaintiffs in the case this week sought to temporarily enjoin the immigration law while they appeal last week's memorandum opinion, which refused to enjoin a majority of the law's provisions [JURIST report] during the trial in which the plaintiffs will ultimately seek to overturn the law entirely by challenging its constitutionality. Chief Judge Sharon Lovelace Blackburn cut through this procedural web by denying the whole of the emergency motion, citing precedent that an order for an injunction pending an appeal of an earlier decision on an injunction "is considered an 'extraordinary remedy'" requiring movants to show they have a substantial case likely to prevail on its merits:
For the reasons set forth in the court's Memorandum Opinion, the court finds that plaintiffs have not shown that they are "likely to prevail" nor that they have a "substantial case" on the merits. The court carefully and thoroughly reviewed all issues raised by the parties and its lengthy Memorandum Opinion represents the product of its time and effort. It does not foresee a "substantial" case for reversal. ... The court has found that plaintiffs are not likely to be able to show that Sections 10, 12, 27, 28, and 30 [of the law] are due to be enjoined. Alabama has an interest in enforcing laws properly enacted by its Legislature and not likely to be found unconstitutional.
Alternatively the plaintiffs requested a temporary injunction while they file the same motion for a temporary injunction with the Eleventh Circuit Court of Appeals. Blackburn denied that request as well.

The US Department of Justice (DOJ) [official website], joined by several rights groups, appeared before the court last month [JURIST report] to make arguments against the law's enactment, at which point Blackburn issued the temporary injunction to forestall enactment of the challenged provisions while she evaluated their contention with federal statute. Religious groups and representatives of several rights groups including the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), the Southern Poverty Law Center (SPLC) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] have stated that the Alabama law is the most extreme of the recent state anti-immigration laws influenced by controversial Arizona SB 1070 [JURIST news archive]. Alabama lawmakers have defended the legislation, which was signed into law [JURIST reports] in June. Since that time, 16 countries filed briefs [JURIST report] in the Alabama district court against the controversial law, arguing that it provides unfair treatment to citizens of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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HRW releases Ivory Coast post-election war crimes reports
Michael Haggerson on October 6, 2011 12:10 PM ET

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[JURIST] Human Rights Watch [advocacy website] released a report on Thursday calling for the Ivory Coast government to prosecute both sides [report, PDF] of the post-election violence [BBC backgrounder] equally. The violence began last November when Alassane Ouattara defeated incumbent president Laurent Gbagbo [BBC profiles], but Gbagbo refused to cede power. The report alleges that pro-Gbagbo forces then began a "targeted campaign of violence" against Ouatarra supporters and political leaders. The report further alleges that during the pro-Ouattara supporters' coordinated offensive to take over the country, they executed unarmed pro-Gbagbo militiamen and men from ethnic groups aligned with Gbagbo. During the six-month conflict at least 3,000 civilians were killed and more than 150 women were raped. Charges have been brought against 118 Gbagbo supporters, but not a single member of the pro-Ouattara forces has been prosecuted for their role in the post-election violence. The report warns that such conduct creates the risk of "victor's justice" and that the government must "send a message that a new era of impartial justice and human rights has begun." Although the International Criminal Court (ICC) [official website] has agreed to open an investigation, the report stressed the importance of domestic trials in order to "help maximize the rebuilding of respect for rule of law."

The ICC granted the request [JURIST report] of Chief Prosecutor Luis-Moreno Ocampo to open an investigation into the Ivory Coast's post-election violence earlier this week. Ocampo officially requested permission [JURIST report] from ICC judges in June to begin the investigation after determining that war crimes and crimes against humanity have been committed. The Ivory Coast announced earlier in that month that it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo. In April, HRW urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Supreme Court hears arguments on ministerial exception, foreign copyrights
Erin Bock on October 6, 2011 8:34 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC [transcript, PDF; JURIST report], the court considered whether an employment discrimination claim can be brought under the Americans with Disabilities Act (ADA) [text] against a religiously affiliated school despite the Act's "ministerial exception." The exception allows religious organizations to give "preference in employment to individuals of a particular religion" and to "require that all applicants and employees conform to the religious tenets of such organization." The Equal Employment Opportunity Commission (EEOC) [official website] and Cheryl Perich brought a claim against the Hosanna-Tabor Evangelical Lutheran Church and School alleging that the school had unlawfully terminated Perich in violation of the ADA because she was diagnosed with narcolepsy. The US Court of Appeals for the Sixth Circuit [official website] held that the school violated the ADA and that the ministerial exception did not apply. Counsel for the school argued that the ADA did not apply due to the exception, Perich's only recourse was to ask for a hearing before the church's administrative board, and the case should not be heard in civil courts. Counsel further argued to draw a bright line distinction between who is to be considered a minister under the exception and who is not, stating that the case could be tried if the label of "minister" was a sham. Counsel for the EEOC and Perich argued that the exception clearly applies to ministers and religious leaders, but Perich was responsible for numerous secular duties that should not be considered under the exception. Counsel alleged there was no difference between the employment dispute with the religious organization and a similar dispute with a secular organization stating that "the government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct."

In Golan v. Holder [transcript, PDF; JURIST report], the court heard arguments to determine the copyright status of foreign works that used to be in the public domain. Specifically, the issue for the court to consider is whether section 514 of the Uruguay Round Agreements Act of 1994 (URAA) [text], which restored copyright protection to thousands of foreign works previously in the public domain, violates the Progress Clause and First Amendment [text] of the US Constitution. The US Court of Appeals for the Tenth Circuit [official website] held that section 514 did not violate the constitutional principles. Counsel for the government argued that the URAA was necessary in order to align the country with international intellectual property rules, stating that the Act was "of vital importance to protecting one of our most valuable economic exports, intellectual property." Counsel for the petitioners, which included orchestra conductors, educators, performers, film archivists and motion picture distributors, argued that the URAA imposed a "remarkable" burden on speech.

There can't be any doubt ... that performance has a huge amount of original expression bound up in it. It's the reason it's different to see King Lear at the Royal Shakespeare Company; it's the reason it's different when John Coltrane plays a jazz standard. [There is a] huge amount of expression.
Counsel further argued against the government's position that the US needs to be aligned with the intellectual property policies of other countries. Counsel argued that the court had previously recognized a "critical speech interest" in publishing, performing or showing the work of another and that "the burden here is [the URAA] took speech rights of 250 million Americans and turned them into the private property of foreign authors, all on the bare possibility that [it] might put more money in the pocket of some US authors."




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