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Legal news from Sunday, December 4, 2011




Afghanistan civilians struggle to exercise human rights: HRW
Maureen Cosgrove on December 4, 2011 3:19 PM ET

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[JURIST] The Afghan government has failed to ensure and protect human rights [press release] since the Taliban government ended ten years ago, Human Rights Watch (HRW) [advocacy website] reported Sunday. Afghanistan created a transitional government and announced intentions to hold elections and create a new constitution when the Bonn Agreement [text] was signed on December 5, 2001. HRW reports that in the last ten years, the Afghanistan justice system "remains weak" and that human rights abuses are rampant in the alternative traditional justice system, where civilians are often forced to resolve disputes in Taliban courts. HRW also reported that Afghan leaders have not done enough to encourage increased political representation by women. HRW Asia director Brad Adams enumerated some of the failed reforms:
Human rights, and in particular women's rights, were cited as a key benefit of the defeat of Taliban rule in 2001. But ten years later, many basic rights are still ignored or downplayed. While there have been improvements, the rights situation is still dominated by poor governance, lack of rule of law, impunity for militias and police, laws and policies that harm women, and conflict-related abuses.
HRW has called on leaders who will attend the upcoming Bonn Conference to support Afghanistan in the ongoing reform of justice, women's rights, health and education.

Afghanistan's human rights record has been scrutinized in recent years. The UN Assistance Mission in Afghanistan (UNAMA) [official website] reported in October that prisoners in some Afghan-run detention facilities have been beaten and tortured [JURIST report]. HRW reported in September that the Afghan Local Police (ALP) force is committing serious abuses [JURIST report], and the Afghan government is doing little to hold the officials accountable. Corruption, abuse of power and a focus on short-term security goals in Afghanistan have intensified the issue of poverty [JURIST report] affecting more than two-thirds of the population, according to a March 2010 report [text, DOC] from the UN's Office of the High Commissioner for Human Rights (OHCHR) [official website]. A year earlier, UN High Commissioner for Human Rights Navi Pillay [official profile] delivered a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] that said Afghanistan's human rights progress has been thwarted by armed conflict, censorship, abuse of power and violence against women.




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Wall Street groups sue CFTC over trade regulation
Maureen Cosgrove on December 4, 2011 2:05 PM ET

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[JURIST] Wall Street organizations International Swaps and Derivatives Association (ISDA) and Securities Industry and Financial Markets Association (SIFMA) [official websites] on Friday filed a lawsuit challenging a regulation [complaint, text] implemented by the Commodity Futures Trading Commission (CFTC) [official website] that limits speculative trading. The CFTC adopted a Position Limits Rule on October 18 on the grounds that the rule was authorized by the Commodities Exchange Act [CFTC backgrounder], and published the rule in the Federal Register. The regulation restricts the maximum number of derivatives contracts to purchase or sell a commodity a trader or group of traders may hold during a specified period of time. The trade groups argue that, in contravention of the Administrative Procedure Act (APA) [text], the Commission acted "arbitrarily, capriciously, and contrary to law" by failing to support the regulation with sufficient evidence and that the Commission was not obligated by statute to implement the position limits:
Congress did not require the Commission to establish position limits without regard to whether they would harm the US economy by increasing the cost of food, energy, and other necessities. Rather, Congress authorized the Commission to establish position limits only if it first finds that they "are necessary to diminish, eliminate, or prevent" "an undue and unnecessary burden on interstate commerce" caused by "[e]xcessive speculation," and are otherwise "appropriate." The Commission did not make those findings here.
The trade groups further argue that the Commission's cost/benefit analysis of the rule was inadequate, and are seeking injunctive relief.

The CFTC has been tasked with regulating the derivatives market as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act [text, PDF]. The Act was signed into law [JURIST report] by President Barack Obama in July 2010 and created the new regulatory council to monitor financial institutions in order to prevent companies from becoming "too big to fail." In addition to creating the US Financial Stability Oversight Council (FSOC) [official website], the legislation also gives the Federal Reserve [official website] new oversight over the largest financial institutions, creates a bureau of consumer protection, introduces multitudes of new regulations on derivatives and other financial instruments and limits the amount of capital banks can invest in hedge funds. JURIST contributor Andrew Cali-Vasquez argues that position limit regulations may carry unexpected consequences [JURIST op-ed] that "could impinge upon the operations of domestic businesses by reducing the availability of financing."




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Myanmar president approves peaceful protest bill
Ashley Hileman on December 4, 2011 11:41 AM ET

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[JURIST] Myanmar President Thein Sein [BBC backgrounder] on Friday gave his official approval to a bill allowing the country's citizens to conduct peaceful protests, if the protests are approved in advance. The bill includes requirements [AFP report] that demonstrators must comply with in order to hold a peaceful protest, one of which involves notifying the authorities five days in advance of when, where and for what purpose they will be protesting. If notice is not given, protesters face up to one year in jail. The law, which overturns previous restrictions banning all protests [Sydney Morning Herald report], was passed by the parliament in November but will now become effective, having received the president's approval. The passage of the bill is the latest measure the new government has taken in an attempt to improve its international reputation following a transfer of power from a military regime to a civil system in March after holding its first elections in 20 years.

While Myanmar continues to take steps forward in its reformation efforts, it has recently faced struggles with regards to the status of human rights within the country. Last month, human rights group Partners Relief and Development [advocacy website] said that Myanmar soldiers may be committing war crimes [JURIST report] in the form of torture and forced labor against ethnic communities in Kachin State. The group issued a report [text, PDF, graphic content] documenting the war crimes which allegedly began on June 9 after a 17-year ceasefire agreement was broken to begin a war between the Myanmar army and the Kachin Independence Army [BBC backgrounder]. Evidence for the alleged war crimes was gathered from first-hand interviews of witnesses in Myanmar. The report calls attention to Myanmar's legal obligations and highlights that it has failed to honor its obligations under human rights law and the Geneva Convention [ICRC backgrounder] and that it may also be subject to charges from the International Criminal Court (ICC) [official website]. The report calls on the UN to conduct an investigation into the war crimes in Myanmar. Earlier in November, the Myanmar National Human Rights Commission (MNHRC) urged Sein to release political prisoners [JURIST report]. In an open letter to Sein published in three state-owned newspapers, the MNHRC indicated that domestic and international support would follow the prisoners' release. Sein had granted amnesty to 6,359 prisoners in October following a similar open letter issued by the MNHRC.




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Federal judge denies injunction request by Apple in Samsung patent case
Ashley Hileman on December 4, 2011 10:56 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Friday declined to issue a preliminary injunction against Samsung Electronics [corporate website; Bloomberg backgrounder], as requested by Apple [corporate website; Bloomberg backgrounder]. District Judge Lucy Koh's ruling against Apple [Reuters report] is the latest decision in a legal battle, which began in April when Apple filed a complaint [JURIST report] against Samsung alleging that its "Galaxy" line of products copies Apple's iPhone and iPad technology. As a result, Apple had requested that the court prevent Samsung from selling three of its smartphone models as well as its tablet, the Samsung Tab 10.1 in the US market. However, in deciding to deny the preliminary injunction, the judge held that it was not yet clear that the requested remedy would prevent Apple from being irreparably harmed. Apple may still prevail on its claims, but needs to prove both infringement and validity. Apple has attempted to ban sales of Samsung products in other countries as well. On Friday, an Australian court extended a ban on the sale of the products [Reuters report], which was set to expire at 4 p.m., by at least a week, giving Apple an opportunity to appeal a high court decision that overturned a temporary ban that had been in effect since July.

As smartphones and tablets continue to increase in popularity, companies increasingly seek to protect the technology involved in their creation. Last month, the US International Trade Commission (USITC) [official website] ruled [JURIST report] for Apple on a patent complaint [JURIST report] brought by HTC [corporate website; Bloomberg backgrounder]. The USITC found that Apple had not violated Section 337 of the Tariff Act of 1930 [PDF] by reasons of infringement of Patent Nos. 6,658,146, 6,683,978, 6,775,417 and 7,043,087 [texts]. These patents relate to HTC's recently acquired subsidiary S3 Graphics Co. The USITC ruling rejects the request to limit imports of MAC computers, the iPhone and the iPad. The decision also calls into question the rationale of the S3 acquisition [Bloomberg report] and could put pressure on HTC stock shares. HTC said it may challenge the ruling in the US Court of Appeals for the Federal Circuit [official website], which specializes in patent law. This USITC ruling followed an earlier one in July which held that HTC infringed two Apple patents [JURIST report] relating to the Android operating system.




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