Embassy Law Web Log   
Washington, DC, USA      

Supremes Confirm Altmann

Today, the United States Supreme Court affirmed 6 - 3 the California decision in Republic of Austria v. Altmann. The United States Court of Appeals for the Ninth Circuit had found in favor of Altmann in its interpretation of 28 U.S.C. §1330(a) of the Foreign Sovereign Immunities Act, see Cert. Granted in Altmann Case. The Supreme Court limited its analysis to the question of whether the FSIA would apply to pre-FSIA facts which it answered in the affirmative. "The floodgates are open," comments FSIA expert Thomas G. Corcoran.  - Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Immunity for Iraq

Today, the D.C. Circuit held against 17 soldiers who sued Iraq for damages and obtained a default judgment in the United States District Court for the District of Columbia, in the amount of $959 million.

The decision, published by Findlaw, in the matter of Clifford Acree et al. v. Republic of Iraq et al. is partially based on the intervention of the United States which argued that the Foreign Sovereign Immunities Act would deprive the court of its jurisdiction.

The court of appeals rejected this argument but found that as in its prior ruling in Elizabeth A. Cicippio-Puleo et al. v. Islamic Republic of Iran, Iranian Ministry of Information and Security of January 16, 2004, the plaintiffs had failed to state a claim. Jurisdiction would lie with the court based on the terror exceptions to the FSIA. -- Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Systemic U.S. Violations of Vienna Convention

Today, the International Court of Justice decided the matter of Avena and Other Mexican Nationals between Mexico and the United States of America in favor of Mexico after finding persistent and systemic violations by the United States system of justice. Links to the various opinions by the justices are at Findlaw's database of the case history.

The instant case, number 128, concerns the mandates of Article 36 of the Vienna Convention of April 24, 1963 which also protects American citizens abroad by requiring that foreign arrests of Americans be reported to the American consul, among other things.

The United States opposed the complaint by referring to its change of practices after the ICJ case LaGrande (Germany v. United States of America) which related to German citizens executed in the United States without consular notification. Mexico's complaint involves similar circumstances affecting 52 Mexican citizens arrested and convicted in nine states of the United States in violation of the Convention.

The court disagreed with the United States procedurally and substantively, except for one vote. With 14 votes, it found the United States to violate systemically and persistently the Convention through various, major flaws in its criminal justice system. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP.

Link to Iraqi Interim Constitution

The Law of Administration for the State of Iraq for the Transitional Period, also known as the Interim Constitution of March 8, 2004, is published there at Findlaw.

Open Source: International Support for Licenses?

While nations, international organizations and businesses conference about encouraging the use of Open Source software and content, a key piece for the foundation of its international success is still missing: an internationally valid open source license. Currently, the most frequently found Open Source licenses suffer from defects that are reflected in cases such as IBM's counterclaim against SCO and in Civil Law systems which find systemic problems with something for free, but with strings attached, no consideration of consumer protection laws and wholesale waivers for liability. Pragmatically, Open Source licenses overcome that barrier by barring the use of the underlying product or work where the license would not be valid.

That pragmatic approach is of little value, from a legal perspective, if Open Source licenses should be defective in a considerable number of systems. The barrier impedes wide distribution and support of Open Source products. At present, the licenses seem to be at least questionable.

Therefore, promoters of Open Source licensing should also consider an international legal umbrella for such licenses, possibly supported by international organizations keen on using and releasing Open Source products and nations that have recognized that their economic future lies with Open Source. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP.

Cicippio-Puleo Ruling

The United States Court of Appeals for the District of Columbia Circuit released its opinion in the matter of Elizabeth A. Cicippio-Puleo et al. v. Islamic Republic of Iran, Iranian Ministry of Information and Security on January 16, 2004 for download from there. The case number is 01cv01496 in the lower court, and 02-7085 in the appellate court. The case was argued at the appellate level on December 15, 2003.

The decision is not the last word on this matter. The court dismissed the case to the extent that plaintiffs failed to state a claim under the terrororism exception of section 1605(a)(7) of the Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1602-11, and the Flatow Amendment in 28 U.S.C. § 1605 which allow exceptions to the rules of foreign sovereign immunity. But the court remanded the matter to allow plaintiffs to pursue other avenues because they may have been confused by the law. The decision also appears to encourage the Congress of the United States of America to decide whether a cause of action should lie against foreign states. Courts themselves may not imply a cause of action where Congress has not affirmatively decided to permit one, the appellate court determined.

The case centers around the distress caused Joseph Cicippio's family by his being held hostage for 1908 days in hostile conditions, beginning in 1976, by Hizbollah, which the opinion states to be an agent of the defendant. -- Contributed by Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.