Customer

The CIP rule applies to a “customer,” which can be a “person” (individual, corporation, partnership, or trust) who opens a new account, an individual who opens a new account for another individual who lacks legal capacity, or an individual who opens a new account for an entity that is not a legal person (e.g., a civic club).

A “customer” excludes:

The general requirements of a bank’s CIP program are:

Verify the Identity of any Person Opening an Account

The CIP must include account opening procedures that specify the identifying information that will be obtained from each customer. It must also include reasonable and practical risk-based identity verification procedures that would enable the bank to form a reasonable belief in knowing the true identity of each customer.

Matrícula Consular Card

The federal government has no official position on the acceptance of the matrícula consular card by financial institutions as a valid form of identification in opening an account. According to Siegel, “It’s up to the particular financial institution to decide for itself how much risk to take with regard to verifying the identity of the person opening the account.”

More than 1.5 million Mexicans in the U.S. carry the matrícula consular card, which is accepted by 169 banks, 32 states, 153 counties, 363 cities, and 1,157 police departments nationwide.²⁵ In the wake of the 9/11 terrorist attacks, the Mexican government, which had been issuing the card to its citizens living abroad since 1871, redesigned it in 2002 with enhanced security features.²⁶

Maintain a Record of Information Used to Verify the Customer’s Identity

The CIP must include record-keeping procedures. At a minimum, the bank must retain the identifying information (name, address, date of birth for an individual, tax identification number [ITIN], and any other information required by the CIP) obtained at account opening for a period of five years after the account is closed. For credit cards, the retention period is five years after the account closes or becomes dormant. The bank must also keep a description of the following for five years after the record was made:

Determine Whether the Customer Appears on any Federal Government List of Known/Suspected Terrorists or Terrorist Organizations

The CIP must include procedures for determining whether the customer appears on any federal government list of known or suspected terrorists or terrorist organizations.²⁷ Banks will be contacted by the Treasury in consultation with their functional regulator when such a list is issued, at which time banks must compare customer names against the list within a reasonable time of account opening (or earlier, if required by the government). Banks must also follow any directives that accompany the list.
“Additionally, banks are expected to check customer names against the Section 314(a) list of the USA PATRIOT Act,” remarked Siegel. “This list took the place of the old FBI list and is sent to financial institutions every two weeks. Further, banks should check names against the OFAC list.” According to Siegel, both of these checks are outside of the Section 326 list, which has not yet been issued.

Additional elements of a CIP program include:

Adequate Customer Notice

The CIP must include procedures for providing customers with adequate notice that the bank is requesting information to verify their identities. The notice, which must summarize the bank’s identification requirements, must be designed so that a customer is able to view it or is otherwise given notice prior to account opening. The following sample language is provided in the regulation: “IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT – To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: when you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents.”

Reliance on Another Financial Institution

A bank (for illustrative purposes, Bank A) is permitted to rely on another financial institution (Bank B), including an affiliate, and to perform some or all of the elements of the CIP, if such reliance is addressed in the CIP of Bank A, and if the following criteria are met:

Use of Third Parties

A bank is permitted to use a third party, such as an agent or service provider, to perform services on its behalf. For example, a bank may arrange for a car dealer or mortgage broker, acting as its agent in connection with a loan, to verify the identity of its customer, or it can arrange for a third party to maintain its records. However, the bank is responsible for its third party’s compliance with the requirements of the bank’s CIP. Banks are thus recommended to establish adequate controls and review procedures for such relationships.

Other Legal Requirements

Nothing in the CIP rule relieves a bank of its obligations under any provision of the Bank Secrecy Act or other anti-money laundering rules, especially provisions concerning information that must be obtained, verified, or maintained in connection with any account or transaction.

The Department of Treasury and the financial regulatory agencies have provided financial institutions with frequently asked questions (FAQs), to be revised and updated periodically. The reader can find this and other related documents (e.g., the CIP rule) on FinCEN’s Web site at <www.fincen.gov>.

Documentation Issues

Since the establishment of the Center, an issue frequently raised in relation to immigrant access to financial services is that of documentation. Proper, legal documentation is a fundamental building block to pursue a normal livelihood in U.S. society, and to long-term economic success. The right to work legally in the U.S. depends on whether the worker holds a Social Security card of the appropriate type, while an ITIN, in connection with appropriate supporting documentation, is sufficient to open a transaction account. The following section details guidelines for obtaining a Social Security card, the different types of cards, ramifications of identity theft, the wage reporting process, methods for obtaining and uses of ITINs, and finally restrictions on obtaining state drivers’ licenses, which aside from the obvious use are also valuable identification documents.

Social Security Number (SSN)

Background

Maria Paradowski, a technical expert for the Social Security Administration (SSA), provided an overview of the Social Security number (SSN). Paradowski, who emigrated to the U.S. from Cuba, comes into daily contact with immigrants trying to obtain SSNs, but who lack the proper documentation. “The Social Security number and card open so many doors—it’s such an important and valuable document,” said Paradowski, who wants “to ensure that only those who should receive a number do so.”

A brief discussion on the history of the SSN revealed that it was never intended to serve as a general form of identification. Rather, the Social Security Act of 1935 created an enumeration system to keep an accurate record of workers’ earnings.²⁹ The Social Security numbering system was thus created to help determine workers’ eligibility for Social Security benefits.

Obtaining a Social Security Number and Card

To get a Social Security number and card, the applicant must first complete an Application for a Social Security card (Form SS-5). To get an application:

In addition, the applicant must provide original documents showing his or her age, identity, and citizenship or lawful non-citizen status. The SSA verifies birth documents for U.S. citizens aged one and older with the issuing office. The background of non-citizens are verified with the Department of Homeland Security (DHS). As soon as the SSA verifies the background and documentation of an applicant, he or she will receive his or her SSN and card.

Paradowski recommended that parents obtain their child’s SSN right after birth. A newborn’s SSN application can be completed in conjunction with the application for his or her birth certificate, and most hospitals have the paperwork. The Social Security card will arrive by mail. Parents can also wait and apply for their child’s SSN at any SSA office, but they will have to provide proof of age, identity, and U.S. citizenship for the child as well as for themselves.

A child age 12 or older applying for an original SSN must have an in-person interview, in which such a child born in the U.S. must explain why he or she does not already have a Social Security number.

For an adopted child, a parent may want to wait until the adoption is complete. To claim the child for tax purposes while the adoption is still pending, on should contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions.³¹ For more information, ask for the SSA publication, Social Security Numbers for Children.³²

How Much Does It Cost?

The SSA does not charge for issuing an SSN and card. An applicant may also request an unlimited amount of duplicate cards for free, although the cards may only be requested one at a time and a new application must accompany each request. Anyone attempting to charge for any Social Security service should be reported to the Inspector General hotline at (800) 269-0271.

Types of Cards

There are three types of Social Security cards—all of which show the cardholder’s name and SSN.³³

An SSN will be issued for nonworking purposes only if there is an entitlement involved, such as:

The SSA will not issue an SSN if the applicant is applying solely to:

Protecting Social Security Numbers

The SSN is the sine qua non for identity thieves, who use personal information such as name, SSN, account number, or other identifying information of others to commit fraud or other financial crimes³⁴—frequently check or credit card fraud. Identity thieves have also used stolen information to open investment accounts, obtain mortgage loans, rent apartments, establish utility and cell phone services, and purchase expensive items, such as jewelry, furniture, and automobiles.³⁵ The repercussions of identity theft can be severe. Damaged credit resulting from identity theft can derail loan, employment, and insurance applications; but depending on the actions of a thief, victims can be subject to arrest, fines, and/or confinement for crimes committed using their identity, until they can prove the theft of their identity for criminal purposes.³⁶ Rectifying the situation can be costly and time-consuming.

Congressional concern with privacy issues regarding the SSN began in 1965 with the House of Representatives Special Subcommittee on Invasion of Privacy.³⁷ In the interim, Congress has held many hearings and issued several reports on the use of the SSN as a personal identifier, the linkage of records using the SSN, national personal data systems, commercial credit bureaus, and the effect of databases and computer searches on individual privacy. Concerned about the widespread use and mishandling of the SSN, Congress enacted the 1974 Privacy Act,³⁸ which made it unlawful for any agency to deny rights, benefits, or privileges to any individual who refused to disclose their SSN to a requesting agency. Numerous amendments have significantly limited the scope of the Privacy Act, however. Beginning in 1972, Congress also began to amend the Social Security Act to add penalties for the misuse of the SSN. Initial penalties established in 1972 made fraudulent use of the SSN a misdemeanor, and subsequent amendments in 1974 and 1981 made SSN misuse a felony.³⁹

The Tax Reform Act of 1976 permitted the states and smaller political subdivisions to use the SSN in tax, public assistance, driver’s licensing, and motor vehicle registration. The Act also further broadened statutory language—making the unlawful disclosure or compelling of disclosure of an SSN a felony.⁴⁰ The Anti-Drug Abuse Act of 1988 established that the general limit of $250,000 for felonies in the U.S. Code would apply to SSN violations under section 208 of the Social Security Act.⁴¹ Further, penalties for misuse of SSNs would apply in cases where the number is referred to by any other name (e.g., ITIN).⁴²

In 1998, Congress directly addressed the growing problem of identity theft by passing the Identity Theft and Assumption Deterrence Act (Identity Theft Act).⁴³ The Identity Theft Act created a new offense called “identity theft”—thus criminalizing the unauthorized acquisition of a person’s “means of identification” (e.g., name, SSN, date of birth, official state or government issued driver’s license or identification number, alien registration number, government passport number, employer or TIN) with the intention to commit fraud.⁴⁴ The laws prior to passage of the Identity Theft Act only applied to the fraudulent creation, use, or transfer of identification documents and did not address the theft or criminal use of an individual’s personal information. Notably, the Identity Theft Act has enabled the prosecution of unauthorized use of any “means of identification” as a violation of the new law or in conjunction with other federal statutes.

More recently, the Internet False Identification Act of 2000 has helped facilitate the prosecution of those who manufacture, distribute, or sell counterfeit identification documents (e.g., counterfeit Social Security card).⁴⁵ In addition, the Identity Theft Penalty Enhancement Act of 2004 (ITPEA) was signed into law by President Bush on July 15, 2004.⁴⁶ Requiring mandatory imprisonment following conviction for the knowing and unauthorized transfer, possession, or use of another person’s means of identification,⁴⁷ the ITPEA can be used to prosecute “phishing” scams—e-mails purportedly from a legitimate enterprise (usually a financial institution) that are sent to a user in an attempt to defraud the user into surrendering private information to be used for identity theft.⁴⁸ The e-mails usually direct the user to a Web site where he or she is asked to update personal information—such as passwords and credit card, Social Security and bank account numbers—which the legitimate organization would already have. With identifying information in hand, thieves then use it to secure credit cards, loans, and potentially commit fraud or other crimes using the victim’s identity. Before the ITPEA, laws prohibited only the transfer of identifying information to others, but did not prohibit simple possession.⁴⁹ With the advent of the ITPEA, the mandatory minimum for identification fraud (including possession) is two years in prison and up to five years if the offense involves a terrorist act.
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Steven W. Kuehl is a Consumer Regulations Director at the Federal Reserve Bank of Chicago. Mr. Kuehl conducts seminars and workshops and prepares articles and other material dealing with consumer compliance banking regulations. Mr. Kuehl is admitted to practice in Illinois and is a member of the American Bar, Illinois State and Chicago Bar Associations.

20. U.S. Treasury – Office of Foreign Assets Control Web site at <www.treas.gov/offices/enforcement/ofac/faq>.
21. H.R. 3162 (Jan. 3, 2001) available at <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:h3162enr.txt.pdf>.
22. The Federal Reserve’s Bank Secrecy Act Examination Procedures for Customer Identification Programs are available at <www.federalreserve.gov/boarddocs/srletters/2004/sr0413a1.pdf>.
23. When the account is a loan, the account is considered to be “opened” when the bank enters into an enforceable agreement to provide a loan to the customer.
24. A bank may prove that it knows the true identity of a customer by showing that prior to the issuance of the final CIP rule on October 1, 2003, it had comparable procedures for the identity verification of persons who had accounts with the bank. A bank may also show proof of an active and long-standing relationship with a particular person, evidenced by such things as a history of account statements sent to the person, information sent to the IRS about the person’s accounts without issue, loans made and repaid, or other services performed for the person over a period of time. This alternative, however, may not suffice for persons deemed high risk by the bank.
25. Remarks by the Honorable Carlos M. Sada Solana, Consul General of Mexico, at the conference titled, Financial Access for Immigrants: Exploring Best Practices, sponsored by The Federal Reserve Bank of Chicago’s Consumer and Community Affairs division and the Latin American Chamber of Commerce, Chicago on Wednesday, July 21, 2004.
26. Ibid.
27. As of the date of these procedures, there were no designated government lists specifically for CIP purposes. Customer comparisons to lists required by the Office of Foreign Assets Control (OFAC) and the USA PATRIOT Act section 314(a) requests remain separate and distinct requirements.
28. Federal functional regulator means: Board of Governors of the Federal Reserve System; Office of the Comptroller of the Currency; Federal Deposit Insurance Corporation; Office of Thrift Supervision; National Credit Union Administration; Securities and Exchange Commission; or Commodity Futures Trading Commission.
29. For additional historical background on Social Security, see the Social Security Administration’s Web site at <www.ssa.gov/history/history.html>.
30. To find your local SSA office on the Internet, go to <https://s044a90.ssa.gov/apps6z/FOLO/fo001.jsp>.
31. Internal Revenue Service Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions is available at <www.irs.gov/pub/irs-pdf/fw7a.pdf>.
32. SSA publication, Social Security Numbers For Children, SSA Publication No. 05-10023, is available at <www.ssa.gov/pubs/10023.html>.
33. Social Security Administration, Your Number and Card, SSA Publication No. 05-10002, available at <www.ssa.gov/pubs/10002.html#types>.
34. For more information, see the Federal Trade Commission’s home page on identity theft at <www.consumer.gov/idtheft>.
35. Profitwise, Summer 2001, available at <www.chicagofed.org/publications/profitwise/2001/pwsummer01.pdf>.
36. FTC’s home page on identity theft at <www.consumer.gov/idtheft>.
37. The Privacy Act of 1974 A Reference Manual for Compliance, by Aruthur A. Bushkin and Samuel I. Schaen, published by System Development Corporation (McLean, Virginia), 1975.
38. See Pub. Law No. 93-579, 88 Stat. 1896 (1974).
39. The United States Attorneys’ Bulletin, Prosecuting Social Security Number Misuse: Attacking Identity Theft at its Source by John K. Webb, published by the United States Department of Justice Executive Office for United States Attorneys Office of Legal Education, (Washington, D.C.), January, 2005, Volume 53, Number 1. Available at <www.usdoj.gov/usao/eousa/foia_reading_room/usab5301.pdf>.
40. See Tax Reform Act of 1976, Pub. L. No. 94-455, § 1211, 90 Stat. 1520, 1711 (1976); codified at 42 U.S.C. § 405(c)(2)(C)(i) (the 1976 Act). Also, remarks by Maria Paradowski, technical expert for the Social Security Administration at the conference titled, Financial Access for Immigrants: Exploring Best Practices, sponsored by The Federal Reserve Bank of Chicago’s Consumer and Community Affairs Division and the Latin American Chamber of Commerce, Chicago, on Wednesday, July 21, 2004.
41. See P.L. No. 100-690.
42. Social Security Online History page available at <www.ssa.gov/history/ssn/ssnchron.html>. Also, remarks by Maria Paradowski, July 21, 2004.
43. See Pub. L. No. 105-318, 112 Stat. 3007 (1998).
44. See 18 U.S.C. § 1028(a)(7).
45. See Pub. L. No. 106-578, 114 Stat. 3075 (2000).
46. See Pub. L. No. 108-275; 18 U.S.C. § 1028A.
47. Ibid (italics added).
48. See “phishing” defined at <www.webopedia.com/TERM/P/phishing.html>.
49. See Webb, Prosecuting Social Security Number Misuse: Attacking Identity Theft at its Source, 7.

Thoughts on the creation of the United Nations Human Rights Council

By Mark E. Wojcik

The U.N. Human Rights Commission had been created with good intentions for protecting and promoting international human rights law, but along the way the countries who were elected to membership on the Commission had terrible human rights records. Unfortunately, that brought discredit upon the entire body—especially when combined with the complete exclusion of the United States as one of the members. Reform of the Human Rights Commission became one of the more publicized aspects of U.N. reform generally.

Although the new Human Right Council recently approved by the United Nations is not perfect (as few things in life are), it presents a major reform effort and it offers the possibility of creating an effective human rights body within the United Nations system. If upcoming elections of members produce a selection of true champions of human rights under international law, this will be an important achievement.

On March 15, 2006, the U.N. General Assembly approved a proposal to create a new U.N. Human Rights Council. This U.N. Human Rights Council will replace the existing U.N. Human Rights Commission.

The resolution creating the U.N. Human Rights Council reaffirms the human rights principles contained in the U.N. Charter, including “developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, achieving international cooperation in solving international problems of an economic, social, cultural or humanitarian character[,] and in promoting and encouraging respect for human rights and fundamental freedoms for all.” None of this is surprising of course, but the emphasis on developing friendly relations between sovereign nations may remind one that the issues of international human rights law are not to be decided by one nation alone, and that human rights violations are properly the concern of all nations.
The General Assembly reaffirmed the fundamental human rights documents, including the Universal Declaration of Human Rights and the Vienna Declaration and Program of Action. The resolution also “recalled” the International Covenant on Civil and Political Rights (which the United States ratified, albeit on the basis that it was a “non-self-executing treaty) and the International Covenant on Economic, Social, and Cultural Rights (which the United States never ratified). The General Assembly also referred to “other human rights instruments” without naming specific documents. Unfortunately, if the General Assembly had listed some of those other international human rights treaties the United States might have been embarrassed further; our nation has failed to ratify some of the more important international human rights treaties, including the Convention on the Elimination of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). In fact, the United States is one of only two nations that have failed to ratify the CRC (the other nation being Somalia, which lacks a functioning government).

The General Assembly reaffirmed that “all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing,” a concept that would seem to put to rest arguments that human rights are merely a “Western” concept not accepted or recognized in other countries. The General Assembly also stated that “all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis.” That observation might be thought to address the competition between political and civil rights on one hand, and economic and cultural rights on the other hand. If all human rights “must be treated in a fair and equal manner,” this eliminates debate on which rights should be recognized first, or which rights are more important.

The General Assembly resolution also addressed a particular question of religious and cultural views on human rights. The resolution reaffirmed that “while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms.” The General Assembly also emphasized that States have responsibilities (in conformity with the U.N. Charter) to “respect human rights and fundamental freedoms for all, without distinction of any kind as to race, [color], sex, language or religion, political or other opinion, national or social origin, property, birth or other status.”

With additional similar observations on the importance of human rights generally, and acknowledging positive work done by the U.N. Human Rights Commission, the U.N. General Assembly adopted a resolution that will disband the Commission and replace it with the new Human Rights Council.

The Human Rights Council will consist of 47 members elected directly and individually by secret ballot by a majority of General Assembly members. Membership will be based on “equitable geographical distribution” with 13 seats for the African Group, 13 seats for the Asian Group, six seats for the Eastern European Group, eight seats for the Latin American and Caribbean Group, and seven seats for the group known as “Western European and Others.” The Council will sit in Geneva, Switzerland.

Elected members will serve for a period of three years. They can be elected to a subsequent term, but they will not be eligible for re-election after two consecutive terms. Although one might construe this as meaning that each country would be limited to serving two terms, the limitation is only that no country should serve more than two consecutive terms. A country should be eligible for subsequent re-election after sitting out a term.

The Council “will be responsible for promoting universal respect for the protection of human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” The Council will also “address situations of violations of human rights, including gross and systemic violations, and make recommendations thereon.” The Council is also charged with promoting “effective coordination and the mainstreaming of human rights within the United Nations system.” The Council is to be “guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.”

The Council is also charged with making recommendations to the General Assembly for the further development of international law in the field of human rights.

The General Assembly adopted the resolution by a vote of 170 to 4. The four countries opposing the proposal were the United States, Israel, the Marshall Islands, and the Republic of Palau. Venezuela, Iran, and Belarus abstained from the vote.

I had the pleasure of working as Court Counsel for the Supreme Court of the Republic of Palau in 1994-95, during the year that Palau became an independent country (in free association with the United States). Before that time, Palau had been a Strategic Trust Territory of the United Nations, administered by the United States. Its legal system is based on U.S. law, and its law library is filled with U.S. court reports that the judges there cite when ruling on matters under Palauan law. It is not surprising that Palau would be one of the countries voting to support the U.S. position.

The New Human Rights Council will meet at least three times a year, with sessions lasting for a total duration of at least ten weeks. Special sessions can be called when needed. The first elections for members of the new Council are to be held on May 9, 2006, and the first meeting of the Council is to be convened on June 19, 2006.

Those first elections will really be the proving ground of this new human rights body. If responsible countries can be elected as members, then the reforms will have been successful, even if they did not fulfill the expectations of the U.S. Ambassador to the United Nations. If responsible countries are not elected, the human rights body will be seen as an embarrassment and questions of further reform will be much more politicized than they even already are. The reform needed is obviously more than merely changing the name “Commission” to “Council.”

The General Assembly Resolution A/60/L.48 establishing the United Nations Human Rights Council is available on the Web site of the United Nations, <www.un.org>.
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Professor Mark E. Wojcik of The John Marshall Law School is the immediate past section chair of the ISBA Section on International and Immigration Law and a member of the ISBA Human Rights Section Council.

Councils and Commissions: Is the new “Human Rights Council” simply a difference without distinction?

By Jacob A. Ramer¹

On March 15, 2006, the U.N. General Assembly voted 170-4 in favor of a resolution calling for the creation of a Human Rights Council, replacing the largely-criticized Commission on Human Rights. The only four nations voting against the resolution were the United States, Israel, the Marshall Islands, and Palau. Venezuela, Iran and Belarus abstained from the vote.

U.N. Secretary-General Kofi Annan first suggested the new body in a report submitted to the General Assembly in March 2005, citing severe problems with the Commission on Human Rights (“Commission”) whose purpose is to examine, monitor, and publicly report on general human rights themes and on country-specific situations.² The Secretary-General observed that some States sought membership on the Commission not to further human rights around the world but rather to deflect criticism directed towards their own flagrant violations. Critics of the Commission’s ineffectiveness and hypocrisy pointed to its membership, which in 2006 includes Bangladesh, Bhutan, China, Cuba, Morocco, Nepal, Nigeria, Pakistan, Saudi Arabia, and Zimbabwe. Perhaps the clearest recent affront to the institution’s integrity was the January 2003 election of Libya to the yearlong chairmanship.
When world leaders met at the U.N. World Summit in September 2005, they backed the Secretary-General’s proposal for a new human rights body. The President of the General Assembly, Jan Eliasson of Sweden, took up action on the issue, and after five months of tough negotiation in the General Assembly, he presented a draft resolution on February 23, 2006 for member States to examine in preparation for the vote.³ With no amendments, the resolution establishing the Human Rights Council (“Council”) overwhelmingly passed on March 15, hopefully signaling the end to, or at least the reversion of, the politicization of human rights.

According to the resolution, the first elections for membership to the new Geneva-based Council are slated for May 9, 2006, with the first session scheduled to take place on June 19. The Commission will be officially abolished on June 16, 2006. In five years, the General Assembly will review the Council’s status.

The Council is significantly different than its predecessor. First, the Council will be an organ of the General Assembly, whereas the Commission is one of 26 subsidiary organs of the U.N. Economic and Social Council (“ECOSOC”). This serves to demonstrate the U.N.’s heightened commitment to human rights and to make the organization more transparent. Second, the Council will have 47 members, down from the 53 presiding on the Commission. Third, similar to the Commission, the Council will be based on equitable geographic distribution, but the actual number of representatives from each group has slightly changed. The African Group will have 13 members (down from 15 on the Commission), the Asian Group will have 13 members (up from 12), the Eastern European Group will have six (up from five), the Latin American and Caribbean Group will have eight (down from 11), and the Western European and Others Group, which includes the United States, Canada and Australia, will have 7 members (down from 10). Fourth, elected members will serve for three-year terms as they did on the Commission, but unlike the Commission, Council members will not be eligible for re-election immediately following two consecutive terms. As the terms are staggered, approximately one-third of the members will be elected each year. Fifth, the Council is required to meet at least three times a year for a total duration of no less than 10 weeks in contrast to the Commission’s once a year six-week session. With one-third membership support, members may call additional or special sessions, e.g., to address topical issues or respond quickly to emergency situations. Sixth, unlike the Commission, the Council is required to review on a periodic basis the human rights records of all countries, including Council members, meaning that members may not shield themselves from criticism simply by sitting as a member. Seventh, upon a two-thirds majority vote by the General Assembly, Council members may be removed for “gross and systematic violations of human rights”—the Commission possessed no such removal mechanism. This will prevent members from flagrantly abusing human rights while simultaneously sitting on a body designed to prevent such atrocities from occurring.

The final major difference, and perhaps the most significant improvement over the Commission, is that the General Assembly will directly, and by secret ballot, elect the members of the Council, meaning States must receive 96 votes in the General Assembly in order to attain membership. In contrast, only the 54 members of ECOSOC voted in the election of Commission members. Under this system, regional blocs put forth slates of candidates that were then elected by ECOSOC. This resulted in little influence by other States. Powerful regional members with poor human rights records used their influence to position themselves on the Commission with little or no input from non-regional member States, resulting in countries such as Chad becoming members. Countries now stand alone when being considered, and when electing members to the Council, States are urged to take into account the candidates’ contribution to the promotion and protection of human rights and to their voluntary pledges and commitments made thereto.

But the new Council is not completely scrapping all things Commission-related. Instead, it will retain some of the more successful measures undertaken by the Commission throughout its past six decades of experience. The Council will continue to use special rapporteurs to monitor human rights, allow civil society to present their grievances to an international body, afford NGOs the opportunity to participate in and contribute to the functioning of the human rights body, keep the system of independent human rights investigators as needed and the right to address human rights situations through country-specific resolutions.

Despite the improvements, the United States voted against the establishment of the Council. Throughout the negotiations, United States Ambassador to the U.N. John Bolton persistently called for a stronger institution, arguing that the proposal was simply more of the same and that it did not remedy the fundamental problems of the Commission. Immediately after the vote, Bolton addressed the General Assembly and reiterated a few of the reasons for voting against the body, namely, that members would not be elected by two-thirds majority, and that there was no automatic ineligibility for countries under Security Council-imposed sanctions related to human rights abuses or acts of terrorism. Bolton had lobbied hard for the two-thirds majority requirement, which mirrored the Secretary-General’s March 2005 proposal and initially advocated by groups such as Amnesty International and Human Rights Watch, but he could not muster enough support. It was urged that a two-thirds majority would further ensure that only deserving States were granted the privilege of membership. With respect to the sanctions disqualification, States were reluctant to give more power to the Security Council, especially considering that the five permanent members would, presumably, never be automatically disqualified due to their veto power.

Earlier Bolton had also criticized the size of the proposed Council, agreeing with the Secretary-General that a smaller body would benefit from greater selectivity, guaranteeing that only the best from each region attained membership status.⁴ Bolton stated the ideal size would be a membership of 20 and that he definitely did not want to see more than 30 members. He also backed the requirement that candidates be nominated and endorsed by at least half of their regional group before going to the General Assembly for election. Yet despite the United States’ negative vote and his expressed lack of confidence that the proposal would be any better than the Commission, Bolton stated that the United States “will work cooperatively with other Member States to make the Council as strong and effective as it can be.”⁵

The United States has drawn sharp criticism from the international community and human rights advocates, but in the end, the United States voted no because it required stronger membership criteria. The United States wanted measures intact that would prevent, without a doubt, the Sudans, the Chads, and the Libyas from ever sitting again alongside the true champions of human rights. Interestingly, in a case of no-budge diplomacy, Bolton stuck to his guns and never wavered from positions that the Secretary-General and groups like Amnesty International and Human Rights Watch eventually relinquished. They feared that sinking the proposal would further setback reform, or worse, eliminate the will to do anything at all. They believed that this was the best it could get at this point, and rather than destroy it completely, they would work with it in the best way possible. But whichever side one may lie, it is hoped by all that the new human rights body, which will take its place as the foremost international human rights body, is not simply a difference without distinction.
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1. J.D. Candidate, May 2006, Chicago-Kent College of Law, jramer@kentlaw.edu

2. In Larger Freedom: Towards Development, Security and Human Rights For All, Report of the Secretary-General, U.N. Doc. A/59/2005 (March 21, 2005), available at <http://www.un.org/largerfreedom/contents.htm>.

3. Draft Resolution submitted by the President of the General Assembly, Human Rights Council, U.N. Doc. A/60/L.48 (February 24, 2006), available at <http://daccessdds.un.org/doc/UNDOC/LTD/N06/245/90/PDF/N0624590.pdf?OpenElement>.

4. Statement by Ambassador John R. Bolton, U.S. Permanent Representative to the United Nations, Moving Forward on Establishing a Credible and Responsible Human Rights Council, January 11, 2006, available at <http://usinfo.state.gov/is/Archive/2006/Jan/11-463865.html>.

5. Explanation of Vote by Ambassador John R. Bolton, U.S. Permanent Representative to the United Nations, on the Human Rights Council Draft Resolution, in the General Assembly, March 15, 2006, United States Mission to the United Nations Press Release #51(06), March 15, 2006, available at <http://www.usunnewyork.usmission.gov/06_051.htm>.

The need for international law and a global perspective

By Joshua Fellenbaum, Second-Year Law Student, Cleveland-Marshall College of Law

I was awarded a scholarship from the International Law Students Association and the Dispute Resolution Institute of Hamline University School of Law to study this summer at Queen Mary School of Arbitration in London, England. The certificate program in Global Arbitration Law and Practice: National and Transborder Perspectives, provided me with an unparalleled opportunity to further my previous international experience by speaking with leading scholars of the transborder arbitration bar, by living and studying with law students and young lawyers from around the world, and by learning about the salient aspects of arbitration.

Queen Mary is considered the leading teaching and research center for international arbitration in the world. During the month-to-month program, not only were the professors leading scholars of the transborder arbitration bar, but also partners in global law firms who practice international arbitration. Because arbitration is a private and nonjudical trial procedure for adjudicating disputes, learning from partners in global law firms provided each participant with a unique practical insight into the field of arbitration.

Also, each professor was more than willing to assist participants by offering networking contacts or career advice. One professor attended a conference at the Hague and brought my resume to share with an international arbitrator from New York. Another professor, who is the editor-in-chief of a leading arbitration and mediation publication, encouraged participants to submit articles for publication. Other professors provided networking contacts at various arbitral institutions and one professor, who is a leading international arbitrator in a global law firm, provided networking advice for participants interested in pursuing international arbitration within the oil and gas industry. As a result of having direct contact with leading arbitrators, a number of participants have solidifed positions within the field of arbitration and have arranged articles in leading arbitration publications.

The intense program covered many aspects of arbitration including a foundation course on U.S. arbitration law. This course examined various types of arbitration agreements, arbitral institutions, doctrines such as Kompetenz-Kompetenz, and The Federal Arbitration Act. After gaining a solid understanding of U.S. arbitration law, the next three courses focused on international commercial arbitration. One course focused on UNCITRAL and the importance of the New York Convention. Others courses were an extension on international commercial arbitration and focused on international trade and investment disputes. Specifically, the courses looked at ICSID, Bilateral Investment Treaties, the World Trade Organization, and NAFTA. The last course was an interactive workshop where participants focused upon advocacy in the arbitral proceeding, including presenting an opening statement, effective cross-examination, and interacting with the arbitrators.

Unfortunately, I was traveling to class with four attorneys from India on July 7th when a 22-year-old young man exploded a bomb on a tube adjacent to mine, which caused my train to shake violently and come to a sudden halt. While trapped in a tunnel with sirens and helicopters roaring above, I remembered the scene in downtown Washington D.C. on September 11, 2001. After an hour and a half, emergency crews calmly escorted passengers’ through the tunnel to safety. Although I was lucky, seven individuals lost their lives at the hands of that terrorist. As a result of the bombings in London, I gained a deeper respect for an international rule of law to deter future attacks and resolve disputes. I constantly, I think of what could have been if the four bombers would have rationally sat down and expressed their dissatisfactions rather than killing innocent individuals.

Fortunately, I have been privileged with the opportunity to spend time abroad and gain a global perspective, while learning about international law. My experiences have provided me with the opportunity to understand how cultural implications of international agendas relate to international law. In 2002, I was selected through an international competition as one of four Auschwitz Jewish Center student scholars to spend a summer in Oswiecim, Poland. I had the opportunity to gain an understanding of the Holocaust, international law in East/Central Europe, and the depleted status of Jewish cemeteries throughout Poland. Recognizing my need for more experience learning about international law, I studied in Prague during the spring 2003 semester at Charles University. During my semester studying in Prague, I had the opportunity to learn from former ambassadors, war-time heroes, Fulbright scholars, and well-known historians.

Also, I had the honor of serving as the only American intern in the Czech Senate for presidential candidate Senator Jaroslava Moserova. The Senator sent me as her representative to Budapest during the European Referendum. In Budapest, I was not only the youngest representative, but also the only participant from the United States to attend a conference sponsored by the European House, a Hungarian Civil Association. From this singular experience, I gained a rich understanding of Hungarian Nonprofit law, European Union law, and I had the opportunity to work closely with a number of officials from various countries.

My experience in East/Central Europe, complemented internships I have held in Washington D.C. and Cleveland, Ohio. I worked in the offices of United States Senators Joseph Lieberman and George V. Voinovich. During those internships, I had the opportunity to serve alongside international interns from Oxford University, giving me yet another perspective on international law. In addition, during the past two summers, I was privileged to intern for the international law firm Squire, Sanders, & Dempsey LLP.

These experiences have allowed me to understand different views, while utilizing international law as a bedrock for resolving disputes. Having the opportunity to participate in a program with such an intense focus on arbitration has provided me with an invaluable knowledge and a comprehensive view on how to effectively advocate for a client outside the courtroom using international law.
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About the author: Joshua Fellenbaum is currently a second year law student at Cleveland-Marshall College of Law. During his first year of law school, Joshua was the recipient of an international scholarship from the International Law Students Association and the Dispute Resolution Institute of Hamline University School of Law to spend the summer of 2005 studying at The School of International Arbitration, Queen Mary University of London.

Joshua’s interest in international law began during the summer of 2002 when he was selected as the youngest of four individuals internationally as an Auschwitz Jewish Center Student Scholar. He spent the summer living in Oswiecim “Auschwitz” Poland and undertook the immense task of restoring Oswiecim Jewish cemetery, which was in deplorable condition. He understood that cemeteries have always played an integral role within the Jewish community and are an important cultural aspect of Polish history. Joshua became ill because of his work cleaning the cemetery and had to return to the U.S. early, but he continued to raise awareness of the current status of Jewish cemeteries in Poland by publishing articles. Throughout the process of publishing articles and speaking to prospective donors, Joshua learned of the many legal difficulties in order to restore Jewish cemeteries in Poland. He had to understand the many complexities of international law including the process of transferring money between international profit and non-profit organizations, the process of obtaining rights to restore each cemetery, and the process of who would control the money while restoring and maintaining each cemetery.

As a result of Joshua’s work in Poland, the Maltz Museum of Jewish Heritage recently nominated him to be on their wall of recognition, which honors individuals from Cleveland who have made outstanding contributions to the community.

This summer, Joshua was selected as a summer associate in DLA Piper Rudnick’s Prague office. In addition to studying at Cleveland-Marshall College of Law and The School of International Arbitration, Queen Mary University of London, Joshua has studied at American University in Washington D.C. and Charles University in the Czech Republic.

Joshua can be contacted at JFellenbaum@law.csuohio.edu.

Seventh Circuit upholds citizenship revocation of former Nazi

By Jacob A. Ramer¹

In United States v. Kumpf, the Seventh Circuit affirmed the district court’s decision granting summary judgment in favor of the government, where the government had sought to revoke citizenship conferred in 1964 to a former member of the German SS Waffen. 438 F.3d 785 (7th Cir. 2006).

During World War II, Josias Kumpf, an ethnic German born in Yugoslavia in 1925, was a member of the German Waffen Schutzstaffel (“Waffen SS”), a unit within the SS. Distinct from the regular German Army (the Wehrmacht), the SS was the paramilitary arm of the Nazi Party and was in charge of state security and the operation of concentration camps. After Germany’s invasion of Yugoslavia in April 1941, German officials came to Kumpf’s town in October 1942 and instructed him and the other townspeople to report for a medical examination. Kumpf complied and later reported to the train station where he was sent to Oranjenburg, Germany to engage in basic military training. He subsequently began his service in the Waffen SS and was assigned to guard prisoners at the Sachsenhausen concentration camp in Oranjenburg, about twenty miles north of Berlin. Like all concentration camps, the conditions were horrific. In October 1943, Kumpf was transferred to Trawniki labor camp in German-occupied Poland where approximately 8,000 prisoners were executed only a few days after his arrival. Kumpf admitted to “guarding” the huge pits containing the executed prisoners and being instructed to shoot any escaping prisoners, but he claimed that he did not shoot anyone because there were no survivors. The bodies were then pilfered and burned, which Kumpf admitted to witnessing.

Kumpf next transferred to Occupied France in early 1944 and guarded prisoners forced to labor on military installations. After the invasion of Normandy, Kumpf retreated to Germany with his unit and was ultimately captured by Soviet forces on the eastern front. He remained a POW for the rest of the war. After the war, he met his family in Austria and later married in 1948. In his 1956 visa application to the United States, Kumpf stated that he had served in the “Germany Army” in Germany, Poland, and France, but he did not mention that he served in the SS. His visa application was approved and he was admitted along with his wife and three children in mid-1956. In February 1964 he applied for naturalization and again did not reference his service in the SS, only stating that he served in the “German Army.” On May 9, 1964, the United States granted Kumpf citizenship.

Upon receiving new information, the government brought an action against Kumpf seeking to revoke his citizenship, claiming that it had been illegally obtained. The Eastern District of Wisconsin granted the government’s motion for summary judgment, holding that Kumpf had procured admission into the country in violation of the Refugee Relief Act of 1953, thus rendering him ineligible for subsequent naturalization. United States v. Kumpf, 2005 WL 1198893 (E.D.Wis. May 10, 2005). Kumpf appealed on the grounds that the federal courts lack subject matter jurisdiction over the citizenship determination, that his citizenship was not illegally procured, and that the revoking of his citizenship violated equal protection under the US Constitution.

Citing two recent cases, the Seventh Circuit quickly determined that it did have jurisdiction to review the visa process. United States v. Wittje, 422 F.3d 479 (7th Cir. 2005); United States v. Tittjung, 235 F.3d 330 (7th Cir. 2000).

The Court then considered whether Kumpf’s visa application and subsequent approval was valid under the Refugee Relief Act of 1953, which provides that a person who “personally advocated or assisted” in persecution is disqualified from obtaining a visa. Pub.L. No. 83-203 § 14(a), 67 Stat. 400 (1953). The Court examined whether Kumpf’s service in the Waffen SS as a guard was sufficient to constitute “personal” assistance in persecution. Kumpf admitted that persecutions did occur at the prison camps where he worked but claimed that he did not “personally” assist in them. During his tenure as a prison guard, he claimed that he did not personally harm anyone. The Seventh Circuit disagreed, stating that the “lack of affirmative acts … does not undermine the fact that he fulfilled his role as a guard,” and that his “personal presence functioned to discourage escape attempts and maintain order over the prisoners. His participation was not through monetary contributions, mere membership, or other indirect actions. Rather, he presided over and witnessed the torture and murder of helpless people. …[H]is personal presence as an armed guard clearly assisted in the persecution of the prisoners.”

Kumpf, 438 F.3d at ___. The Court cited the Eighth Circuit in United States v. Friedrich, 402 F.3d 842, 845 (8th Cir. 2005), in holding that only personal assistance in persecution is required, not direct persecution; therefore, it is irrelevant whether Kumpf affirmatively acted in persecutory acts.

Kumpf also claimed that his service was involuntary. The Seventh Circuit dismissed this argument, noting that the United States Supreme Court had already held in Fedorenko v. United States, 449 U.S. 490, 513 (1981), that the voluntariness of the service in determining whether the individual personally assisted in persecution is irrelevant under the Refugee Relief Act.

The Seventh Circuit lastly held that Kumpf’s claim of an equal protection violation stemming from potential differential treatment to those entering under the Refugee Relief Act of 1953 and those entering under the earlier Displaced Persons Act of 1948, was wholly without merit. Therefore, the Seventh Circuit affirmed the district court’s decision that Kumpf’s service in the SS disqualified him for a visa under the Refugee Relief Act, thus rendering him ineligible for naturalization and resulting in the revocation of citizenship.
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1. J.D. Candidate, May 2006, Chicago-Kent College of Law, jramer@kentlaw.edu

China placed on the Priority Watch List

By Jeffrey V. Sok

On January 13, 2005, Wu Yi, Vice Premier of the State Council (PRC), addressed the attendees of the China-US Intellectual Property Rights Roundtable.¹ Vice Premier Wu spoke to the Roundtable on issues dealing with the measures China has taken to enforce intellectual property rights. (“IPR”) He spoke with confidence, stating, “I believe that you have already seen the new headway made by China in protecting intellectual property in the past year, during which a huge amount of work was done in intensifying internal coordination, strengthening criminal enforcement, and staging specialized campaigns. Marked progress was made.”² Vice Premier Wu outlined how the progress was made, from the formation of an IPR Protection Working Group to Judicial Interpretation on IPR Infringement Crimes. Finally, he concluded by saying, “I am satisfied with the development of IPR undertaking in China over the last year and I am full of confidence in its future.”³

Just three months after this speech the U.S. Trade Representative (“USTR”) issued its annual Special 301 report that elevated China to the Priority Watch List.⁴ The Special 301 is issued to identify countries that deny adequate protection or market access for intellectual property.⁵ The issuance of this report is in conflict to the statements given by Vice Premier Wu in January but he should have been aware the USTR was monitoring China’s implementation of IPR. In the 2004 Special 301 report the USTR stated that it would conduct an Out-of Cycle Review (“OCR”)⁶ and evaluate China’s progress in IPR.⁷

Therein exists a conflicting viewpoint on whether China is doing enough to combat infringement of intellectual property rights. With its accession to the World Trade Organization (“WTO”) on December 11, 2001 China had to demonstrate it ability to monitor and enforce IPR. From the standpoint of the United States, China is not living up to their promises. This is evidenced in testimony given by Eric H. Smith, President of the International Intellectual Property Alliance⁸ (“IIPA”), before the Trade Policy Staff Committee on September 14, 2005. Mr. Smith outlined the current problems with China’s criminal remedies and their failure to meet WTO standards. For instance, the thresholds mandated by Chinese law to support a criminal prosecution are so high they fail to act as a deterrent. Mr. Smith views this as a failure to offer a “WTO-compatible criminal remedy in China.”⁹ He comments that foreign rightsholders rely on administrative procedures that constitute seizing and destroying materials.¹⁰ This process is not effective because the manufacturers of the pirated materials see this as a cost of doing business and continue their daily operations with no fear of reprisal from the authorities. The most shocking statistic to support Mr. Smith’s claims is that China’s piracy rate hovers around 90 percent.¹¹

China’s view of their compliance is in stark contrast to the view taken by the USTR and IIPA. At a nationally televised news conference Zhang Zhigang and Shen Deyong¹² commented that “China is among the countries that are meting out the most severe punishment for IPR crimes” and “…to accuse China of misconduct or lack of protection of IPR is unreasonable.”¹³ China’s top officials believe that they have set in motion policy that will deter piracy and protect IPR. China has taken steps to combat piracy, which is agreed by both parties, but are the steps enough to make difference in a country with 1.3 billion people?

The U.S. does not think so and has threatened to use the Dispute Settlement Body of the WTO to hold China accountable. These threats cast a dark cloud over already shaky foreign relations. Accordingly, the US should tread lightly in the IPR arena and continue to monitor China’s enforcement. The USTR will be keeping a close eye on developments in China and the music and the entertainment industry will be waiting for the next Special 301 report due out in April 2006.
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Jeffrey Sok, January 2006 graduate of The John Marshall Law School. Mr. Sok can be reached at jeffsok@gmail.com.

1. Speech at the China-US IPR Roundtable (January 13, 2005), available at <http://ipr2.mofcom.gov.cn> (last visited Sept. 11, 2005).

2. Id.

3. Id.

4. Special 301 Report Finds Progress and Need For Significant Improvements Results of China OCR Released, China Elevated to Priority Watch List, News Release (The Office of the United States Trade Representative) April 29,2005.

5. 19 U.S.C.A. § 2242 (2005).

6. The Special 301 review takes place each April. An OCR allows the USTR to evaluate a particular country at any time during the year when developments dictate it should.

7. “In early 2005, the United States will conduct an out-of-cycle review under the Special 301 provisions of U.S. trade law.” 2004 Report to Congress On China’s WTO Compliance at 60, (United States Trade Representative) Dec. 11, 2004.

8. The IIPA is a coalition of associations representing copy-right based industries. IIPA members include but are not limited to MPAA, RIAA, and AAP. <http://www.iipa.com> (last visited Oct. 2, 2005).

9. E-mail from Eric H. Smith, President, International Intellectual Property Alliance, to Ms. Gloria Blue, Executive Secretary, Trade Policy Staff Committee (Sept. 1, 2005) (on file at <www.iipa.com>) (last visited Oct. 2, 2005).

10. Id.

11. Written Statement of Eric H. Smith before the Congressional Executive Commission on China’s Issue Roundtable, May 16, 2005.

12. Zhang Zhigang is the Vice Commerce Minister and Shen Deyong is the Deputy Chief Judge of the Supreme People’s Court of the People’s Republic of China.

13. Lateline Press, “China Announces 2,600 arrests for product piracy” (June 28, 2005), available at <http://news.muzi.com/news/ll/english/1369223.shtml>.