Joined Cases C-585/18, C-624/18, and C-625/18 concerning the independence of the Disciplinary Chamber of the Sąd Najwyższy (Polish Supreme Court) is the latest in a series of European Union (EU) Member States requesting the Court of Justice of the EU (CJEU) to rule on the independence of their judicial systems. While the organization of justice systems within Member States is a competence of Member States (and thus not for the EU to determine or decide), the CJEU has held that Member States are nevertheless required to comply with obligations under EU law to ensure effective judicial protection and, as a necessary corollary, judicial independence. The significance of the current case lies in the formulation by the CJEU of a “European” standard of judicial independence, and its finding that national judges may set aside the jurisdiction of courts found not to be independent against that standard and to disapply any national measure (in accordance with the principle of the primacy of EU law over national law) that gives jurisdiction to a non-independent court.

An Appellate Jurisdiction, which addresses municipal law cases on appeal from countries which accept this jurisdiction. To date, four Caribbean countries—Barbados, Guyana, Belize and Dominica—have accepted the appellate jurisdiction of the Court. The applicable law for each case under the appellate jurisdiction is the national law of the state from which the appeal emanates. The CCJ in its Appellate Jurisdiction is intended to replace the Judicial Committee of the Privy Council as the final court of appeal for Caribbean countries which were formerly British colonies.

The Supreme Court of the United States has decided four cases under the 1980 Hague Convention on the Civil Aspects of the International Child Abduction (hereinafter the Hague Convention), the most recent one coming this term in Monasky v. Taglieri. The Hague Convention, adopted in 101 countries, requires the judicial or administrative authority of a country that is party to the Convention to return a child who has been wrongfully removed or retained to the country of the child's habitual residence.The Convention also provides for a limited number of defenses to return. The obligation of return is a “provisional” remedy, in that the merits of any custody dispute will be determined by a court in the country of habitual residence. One of the most critical aspects of the Convention is this concept of “habitual residence,” which was the issue presented to the Court in Monasky.

On October 7, 2019, the United States Court of Appeals for the Second Circuit issued a decision in In re del Valle Ruiz that significantly expands the ability of parties to foreign legal proceedings to obtain discovery from U.S. courts. The Second Circuit reached two key conclusions that work to expand the reach of discovery by American courts: first, that the reach of 28 U.S.C. section 1782 applies to the full limit of constitutional due process, and second, that there is no bar on the ability of U.S. courts to order the production of documents outside of the United States under section 1782.

On April 22, 2020, the African Court on Human and Peoples’ Rights (the Court) rendered an order for provisional measures in the case Guillaume Kigbafori Soro and Others v. Côte d'Ivoire. In this decision, the Court found that the situation of the applicants who were facing criminal proceedings domestically was sufficiently urgent and grave to ask Côte d'Ivoire to halt the execution of the arrest and detention warrants issued against them, with a view to preserving their rights and avoiding irreparable harm against them.

On February 13, 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) announced its decision in N.D. and N.T. v. Spain. According to a press release from the Court, the case concerned two individuals (one from Mali and the other from Côte d'Ivoire) who were immediately returned to Morocco from Spain after unlawfully entering the autonomous Spanish city of Melilla on the North African coast. The individuals argued that their return to Morocco violated ECHR Articles 4 of Protocol 4 (prohibition of collective expulsion) and Article 13 (right to an affective remedy). The ECtHR disagreed, basing its decision on the fact that the two applicants unlawfully entered Melilla. The Court stated that because the two individuals had chosen not to make use of lawful channels for entry, their immediate return to Morocco without individual assessment of their cases for asylum "was thus a consequence of their own conduct" (para. 231). Because the Court found no violation of article 4, it could not make a finding with respect to article 13.

In January 2020, the UN Human Rights Committee ruled that states cannot deport people who face “climate change-induced conditions that violate the right to life.” According to a UN press release, the complaint in this case was filed by Ioane Teitiota who was denied asylum in New Zealand and deported with his family to his native Kiribati. Following his deportation, he filed a complaint with the Human Rights Committee, alleging that his deportation violated his right to life and that the rise of the sea level and other climate change impacts rendered Kiribati uninhabitable. Though the Committee determined that, on the facts, Mr. Teitiota's right to life was not violated, the Committee specifically indicated that “"this ruling sets forth new standards that could facilitate the success of future climate change-related asylum claims.” In particular, the Committee determined that asylum seekers need not demonstrate that they would face imminent harm if returned to their home states because the negative effects of climate change can occur suddenly and more slowly, over the longer-term.

On March 28, 2019, less than two weeks after the Christchurch, New Zealand massacre, the United Nations Security Council unanimously adopted Resolution 2462. It stands as a signal of the United Nations' continued recognition of the critical importance of finance in combatting and countering global terrorism. Unfortunately, it may also be an indication that states are not doing what they have been urged to do in previous resolutions. The text of 2462 and its preamble are riddled with language like “Reminding,” “Reaffirming,” “Encouraging,” and “Noting with Concern,” rather than with language and ideas that break new ground.

The judgment of the European Court of Human Rights (ECtHR, or the Court) in Mammadov v. Azerbaijan was the first “infringement procedure” judgment pursuant to Article 46(4) of the European Convention on Human Rights (ECHR, or the Convention). This procedure was introduced to the Convention by Protocol 14, which entered into force in 2010. The idea behind it was that the Committee of Ministers—the body of the Council of Europe that supervises the execution of judgments of the ECtHR—could return the case to the Court to confirm that the responded state had failed to enforce it. Although there are quite a few instances of non-execution, this procedure has not been in use because it is difficult to initiate and its results are uncertain. The Mammadov judgment was a test of the effectiveness of infringement procedures, but it failed to provide a definitive answer as to whether such procedures were effective in terms of state implementation of ECtHR judgments. The applicant in this case was a political prisoner and the Committee of Ministers fruitlessly tried for a number of years to force Azerbaijan to release him. Soon after the Article 46(4) request reached the Court, the Azerbaijani authorities conditionally released the applicant. That said, all other negative consequences of his criminal conviction, such as an inability to run for election, have yet to be removed, so the judgment has not been implemented in full.

This Resolution was adopted in October 2019 following a report of the Committee on Legal Affairs and Human Rights. It has to be seen in the context of previous Council of Europe activity on this topic as well as the European Union (EU) Directive on the protection of persons who report breaches of Union law. The content of the EU Directive was agreed earlier in 2019 and EU Member States are obliged to transpose it into national legislation by December 2021.

In a January 31, 2019 decision, the European Court of Human Rights (ECtHR, or Court) held that Russia, the respondent state, should pay Georgia, the applicant state, 10 million euros as just satisfaction for violations committed by Russia against Georgian nationals; these violations had previously been established in the Court's main judgment in 2014 (Georgia v. Russia). The Court also held that Georgia should distribute this amount to approximately fifteen hundred Georgian victims, which had been identified in the Court's main judgment in 2014. In this important decision, the ECtHR continued to build on its recent case law, in holding that just satisfaction, in the form of monetary compensation, was appropriate and available in an interstate dispute.

On April 30, 2019, the Court of Justice of the European Union (CJEU) rendered Opinion 1/17 on the compatibility with European Union (EU) law of the Investment Court System (ICS) under the Comprehensive Economic and Trade Agreement between Canada and the European Union and its member states (CETA). In a momentous decision that is likely to have consequences beyond the CETA, a full court of the CJEU held that the ICS provisions were compatible with EU law.

On November 13, 2019, the U.K. Supreme Court issued a judgment in R v. Reeves Taylor, holding that members of non-state armed groups may, under certain circumstances, qualify as “officials” for purposes of § 134(1) of the Criminal Justice Act of 1988 (CJA). The Court's decision and reasoning represent an important contribution to case law interpreting the scope of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as concerns conduct by individuals who are not public officials at the time of the alleged abuse.

The European Court of Human Rights (ECtHR) Grand Chamber decided in Ilias and Ahmed v. Hungary that the holding of the applicants, who were asylum-seekers, in the “transit zone” between Hungary and Serbia did not amount to deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR). On this point, the Grand Chamber overruled the unanimously adopted Chamber judgment. At the same time, the Grand Chamber ruled that Hungary had violated Article 3 ECHR since Hungary did not assess the risk of ill-treatment for the applicants in Serbia.

On February 5, 2020, the District Court of the Hague in the Netherlands issued a judgment (currently only available in Dutch) that the U.N. Special Rapporteur on extreme poverty and human rights, Philip Alston, has hailed as a "clear victory for all those who are justifiably concerned about the serious threats digital welfare systems pose for human rights." N.J.C.M. et al. v. The Netherlands involved a challenge to the use of a benefits fraud detection tool called "System Risk Indication" or SyRI, which Mr. Alston had criticized in an amicus curie brief for the Court as "pos[ing] significant potential threats to human rights, in particular for the poorest in society" (para. 38). The District Court of the Hague agreed, ordering that the use of SyRI be ceased because it violated international human rights norms. In particular, the Court's human rights evaluation focused on the right to respect for privacy in Article 8 of the European Convention on Human Rights and Article 17 of the International Covenant on Civil and Political Rights (paras. 6.20-6.26) and the right to protection of personal data under EU law (paras. 6.27-6.36). The judgment can still be appealed.

On August 23, 2020, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Mitchell v. U.S., denying a certificate of appealability to the petitioner who sought a motion to vacate his conviction and sentence of death. The petitioner, Lezmond Mitchell, argued that his conviction and sentence must be vacated in light of an August 12, 2020, report by the Inter-American Commission on Human Rights that concluded that Mr. Mitchell's trial and sentence were a violation of his rights under the American Declaration on the Rights and Duties of Man. Mr. Mitchell, the only Native American on federal death row, argued that the IACHR report created rights binding on the U.S. “‘(1) because they are derived directly from the OAS Charter, a treaty within the meaning of the U.S. Constitution; and (2) because they are derived, through the OAS Charter, from the American Declaration, a statement of human rights norms the United States has not only adopted, but helped to draft.’” The Ninth Circuit concluded that Mr. Mitchell's motion to vacate “did not make ‘a substantial showing of the denial of a constitutional right’” under 28 U.S.C. § 2253(c)(2) and denied his motion. In its reasoning, the Court explained that “reasonable jurists would not find debatable the district court's conclusion that the IACHR's decision is not binding in federal court.” It agreed with the District Court's conclusion that IACHR rulings are not binding on the U.S. because the OAS Charter is “not self-executing” and there is no U.S. statute which implements it. Moreover, the District Court correctly determined that because the American Declaration is not a treaty, it creates no binding legal obligations, nor does the “IACHR's governing statute, the Statute of Inter-American Commission on Human Rights . . . give the IACHR power to make binding rulings with respect to nations, like the United States, that have not ratified the American Convention.” The Ninth Circuit thus joins the other federal courts of appeals that have addressed this issue by concluding that neither the American Declaration, nor the IACHR's recommendations related thereto, is a source of binding obligations for the United States under international law. Cf. Cardenas v. Stephens, 820 F.3d 197, 203 (5th Cir. 2016); Tamayo v. Stephens, 740 F.3d 991, 997–98 (5th Cir. 2014); Flores-Nova v. Attorney Gen. of U.S., 652 F.3d 488, 493 (3d Cir. 2011); Igartua v. United States, 626 F.3d 592, 603 n. 11 (1st Cir. 2010); In re Hicks, 375 F.3d 1237, 1241 n. 2 (11th Cir. 2004); Garza v. Lappin, 253 F.3d 918, 925 (7th Cir. 2001); Roach v. Aiken, 781 F.2d 379, 381 (4th Cir. 1986).