國際公法期中考各單元複習重點

以下資訊提供大家參考，敬祝各位期中考順利。



第七章－國際法上的繼承

國家繼承 v. 政府繼承；國家繼承之理論；國家繼承之情況（全部繼承與部分繼承）；國家繼承之事項（特別注意條約、財產、檔案及債務之繼承）；政府繼承之原則與例外


→ 請務必參考演習課補充資料（十）




第八章－國籍、個人與人權

國籍之意義與重要性；國籍法基本原則（國籍必有、國籍單一、不歧視原則、有效國籍原則、國民待遇原則）；1955年國際法院「諾特朋案」與美義調解委員會「墨琪夫人案」；難民不得送回原則；引渡制度；庇護制度（領域庇護與外交庇護）




第九章－國家的領土

國家領域之概念（完全權力區域、部分權利區域、無權力區）；航空法上之九大航權；占有保持主義；國家領土取得與喪失之原因（特別注意先占與時效之異同）；台灣領土權歸屬問題；釣魚臺領土主權歸屬問題




第十一章－管轄

國內管轄權（規範管轄、執行管轄、審判管轄）；國際刑事管轄權基本原則（屬地管轄、屬人管轄、保護管轄、普遍管轄、依條約建立之有限性普遍管轄）




第十二章－管轄的豁免

國家豁免理論（絕對主權豁免、限制主權豁免）、主權行為 v. 非主權行為（判斷標準？）；國家豁免之國際實踐（特別是2004年聯大通過之國家及其財產管轄豁免公約之相關規定）；外交與領事代表之特權及豁免（請參閱演習課補充資料十一）




第十三章－國家責任

國家責任之定義、構成要件、免責事由、解除事由；國際索賠之要件；用盡當地救濟規則 v. 卡爾伏條款




第十四章－國家對外關係的機關

請參閱演習課補充資料（十一）




第十五章－國際組織

國際組織之定義與種類；超國家組織 v. 政府間組織（特別注意歐盟規範之法律效力）；非政府組織（NGO）之法律地位；聯合國宗旨與目標及其基本原則（憲章前言至第2條）、組織架構（主要機構、附屬機構、專門機構、地區性機構）與會籍資格（憲章第4條之規定）




第十六章－國際爭端的和平解決

聯合國憲章有關爭端解決之基本原則（憲章第2條第3項）與具體方案（憲章第33條第1項→非裁判性解決、準裁判性解決、裁判解決）；國際法院之訴訟主體（國家）、管轄權基礎與種類（訴訟管轄與諮詢管轄）、訴訟程序、判決效力與執行





教學部落格時事


留意本年度時事，特別是以紅色字體標明之處，並思考涉及課堂所學何主題的何項爭議




(本篇由助教張貼)

982TA期中問卷填答

如題。

問卷填答期間: 4/23(五)至4/30(五)。

期中問卷採線上填寫方式進行，大約需花費三分鐘左右的時間，非常期待也很希望能夠各位學弟妹們能針對TA本學期迄今的教學方式與內容踴躍提出批評與建議，以作為改進之用。

由於此份問卷採匿名填寫方式進行，故請放膽填入真心話!!

教學發展中心將於23日當天寄發群組信給大家，煩請各位於期限內填寫。


(本篇由助教發布)

課務公告: 982國際公法分組報告名單

如題。
請各組確認下列基本資料是否正確，若有錯誤，煩請e-mail給TA(97253501@nccu.edu.tw )

各組請牢記報告時間，並及早準備。
依據本學期初的討論，有分組報告的同學無須考期末考，其他同學還是要考喔!!

本學期討論方式同上學期，各組須於課堂報告前一週另找時間與TA進行預演，以提供各組寶貴意見，屆時再麻煩各組與我聯繫另約時段討論。



國際環境法專題－美加鍊礦所餘跡仲裁案(Trail Smelter Arbitration Case, The United States of America v. Canada) (5/5)

法律三 96601035 陳成翰

法律三 96601061 顏嘉慶

法律三 96601066 劉世羣

法律三 96601092 李文陽

法律三 96601112 陳文澤

法律三 96601145 張宇脩

法律三 96601074 葉泓志

法律三 96601050 鄭崇孝



國際經貿法專題－中國毛巾傾銷案 (5/12)

法三甲 96601103 李美萱

法三甲 96601073 林育嫻

法三甲 96601115 方含宇

法三乙 96601011 周庭安

企三甲 96305065 黃靖文



國際海洋法專題－2001年國際法院「卡達與巴林間海洋劃界及領土問題案」(Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Qatar v. Bahrain)  (6/2)

法三甲 96601106 陳虹米

法三乙 96601077 張雅淳

法律三 96601069 劉芳妤

法律三 96601097 張維真

法律三 96601127 方筱涵

法三甲 96209040 呂佩娟

法學四 95601008 黃則馨



國際人權法專題－盧安達種族屠殺事件 (6/9)

法律三 96202002 顏碩瑋

政治四 95202040 王晨瀚

法律四 94202010 謝志遠

民族四 95209041 林芳儀

法三丙 96601048 吳政緯



(本篇由助教張貼)

British Campaigners Threaten Pope With Arrest

British Author and Campaigner Richard Dawkins Argues That the Pope Does Not Have Immunity From Prosecution


Reuters

LONDON


British author and atheist campaigner Richard Dawkins will try to have Pope Benedict arrested to face questions over the Catholic church's child abuse scandal when he visits Britain later this year, one of his lawyers said Sunday.

Dawkins, a scientist and outspoken critic of religion, has asked human rights lawyers to examine whether charges could be brought against the pope.

The four-day trip, from September 16 to 19, will be the first papal visit since Pope John Paul II's pastoral visit in 1982 and is the first official papal visit to Britain.


The Catholic church has rejected claims the pope helped to cover up abuse by priests and the Vatican has accused the media of waging a "despicable campaign of defamation" against him.


Dawkins and the English journalist Christopher Hitchens have commissioned lawyers Geoffrey Robertson and Mark Stephens to explore ways of taking legal action against the pope.


In an email to Reuters, Stephens said there are three possible approaches: a complaint to the International Criminal Court in the Netherlands, a private or public prosecution "for crimes against humanity" or a civil case.

They will argue that the pope does not have diplomatic immunity from prosecution as a head of state because the Vatican has "permanent observer status" at the United Nations rather than full membership and voting rights.


Dawkins, author of "The God Delusion" and "The Selfish Gene," told the Sunday Times newspaper that he suspected child abuse by church members had been covered up.


Hitchens, who published a book in 2007 called "God Is Not Great: The Case Against Religion," said: "This man is not above or outside the law. The institutionalized concealment of child abuse is a crime under any law."


Critics have accused Benedict of negligence in handling abuse cases in previous roles as a cardinal in his native Germany, and in Rome.


The Vatican has denied any cover-up over the abuse of 200 deaf boys in the United States. The pope has not commented directly on the wave of sexual abuse allegations that has shaken the church around the world, including the United States, Ireland, Italy and Germany.


(Reporting by Peter Griffiths; Editing by Michael Roddy)


Copyright 2010 Reuters News Service. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.



Copyright © 2010 ABC News Internet Ventures

http://abcnews.go.com/print?id=10346056

Judge's warning over Europe's legal power

http://www.independent.co.uk/news/uk/home-news/judges-warning-over-europes-legal-power-1934061.html

Britain's most senior law official attacks influence of Court of Human Rights
By Robert Verkaik, Law Editor
Friday, 2 April 2010

British courts must have the final say over European human rights law, the country's most senior judge has warned.



In an unprecedented defence of Britain's sovereignty, the Lord Chief Justice, Lord Judge, said that the European Court of Human Rights in Strasbourg is threatening to "assume an unspoken priority over [UK] common law".


In a speech to Inner Temple, published yesterday by the Directorate of Judicial Offices for England and Wales, he asked: "Are we becoming so focused on Strasbourg and the Convention [European Convention on Human Rights] that instead of incorporating Convention principles within and developing the common law accordingly as a single coherent unit, we are allowing the Convention to assume an unspoken priority over the common law?"

The judge continued: "We must beware. It would be a sad day if the home of the common law lost its standing as a common law authority." His intervention, although not intended to be politically controversial, will be seized upon by Eurosceptics who have long argued that judges in Strasbourg have too much influence on affairs in Britain. "What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court," said Lord Judge.



Jodie Blackstock, an expert in European law at the civil rights group Justice, said: "The suggestion that we are losing the common law ignores our position in the Council of Europe. It also ignores the approach the Supreme Court has taken to Strasbourg, interpreting its decisions in light of our particular law and procedure."
But Lord Judge warned: "Very often, too often, we are asked to consider decisions from Strasbourg – you see them all listed – which have already been considered or must have been considered in the House of Lords or the Supreme Court. That is the decision which binds us.

"After all, once the Supreme Court has considered decisions of our Court of Appeal, the authority of those decisions evaporates. Who quotes a decision of a Court of Appeal once the Supreme Court has considered the case? No one. Surely we should apply the same rigour to decisions from Europe."


He also warned that changes brought about by the Lisbon Treaty will have a "significant impact" on criminal cases in the UK. The British judiciary, the judge said, will need to be trained to deal with these developments. He predicted that in 20 years' time there would be a very different judiciary to the one today.


But he warned against following the continental model of a "career judiciary". Instead, he urged a new approach to the appraisal system, by assessing part-time judges in court before they are given full-time posts.

The Tory leader David Cameron has said he will act to prevent EU judges gaining greater control over the British criminal justice system by negotiating deals to protect it.

Ms Black said: "The legislation being considered by the EU will build upon Convention rights to create practical, binding measures. This is a positive step. We have nothing to fear from the Luxembourg Court [of Justice] interpreting legislation such as this. For example, the EAW [European Arrest Warrant] is ripe for reform and a ruling by Luxembourg."

ASEAN new dispute rule to add pressure on Myanmar

http://www.thejakartapost.com/news/2010/04/06/asean-new-dispute-rule-add-pressure-myanmar.html

ASEAN new dispute rule to add pressure on Myanmar


Lilian Budianto , The Jakarta Post , Jakarta
Tue, 04/06/2010 10:19 AM
World


The new ASEAN dispute settlement mechanism will increase the pressure for Myanmar to uphold its human rights commitment ahead of its upcoming election, says a commissioner for the grouping’s rights body.


Rafendi Djamin, Indonesian commissioner for the ASEAN Intergovernmental Commission for Human Rights, said the dispute settlement mechanism (DSM) was an option Jakarta could resort to when the military junta refused to hold an inclusive election, which includes the opposition party leader.


The dispute settlement mechanism, which will be signed by 10 ASEAN member states in its 16th ASEAN Summit in Vietnam this month, allows members disputing the implementation of the ASEAN Charter to take in a third party to help them solve differences.

The DSM, however, does not rule on sanctions for non-compliance members.


“There have been many negotiations concerning how we should implement the ASEAN Charter, including the establishment of its human rights body and the standard of rights enforcement as mentioned in the Charter,” Rafendi said.


“Members are forced into compromising their standard level because of the differences.


“But with the new DSM, we have more options to push countries, which block the way to move forward in rights enforcement, into obedience mode,” he said.

Rafendi said the credibility of the result of Myanmar’s election could be challenged and taken to DSM level if members found that the junta did not commit to upholding human rights principles as enshrined in the ASEAN Charter.


The new poll regulations issued by the junta has denied a convict to take part in its first election in two decades — a movement observers said would prevent Myanmar opposition party leader Aung San Suu Kyi from running for office.

Surin Pitsuwan, ASEAN secretary-general, said there was no certainty about whether Suu Kyi could participate in the election but added the grouping had been increasing efforts to ensure that the elections would be inclusive.


“The issues have been discussed in various forums in ASEAN but it will be interesting to see what the end result is,” said Surin on the sidelines of a symposium on regional conflict at the ASEAN Secretariat on Monday.


“The constitution and legislation are there but we do not have clear indication about how the issue will develop.”


The DSM allows four options to settle disputes arising from different interpretations of the ASEAN Charter implementation.


They are mediation, conciliation, good office and arbitrary measures.


Human rights enforcement is said to be the provision in the Charter that is most susceptible to disputes, considering the different levels of rights enforcement and democratization among the 10 members.


“There are many ways to intervene in ASEAN affairs,” said Jusuf Wanandi, board of director member of the Centre for Strategic and International Studies, at the symposium. “But the question is how willing are we to undergo the intervention? Because mostly it is civil groups, and not so much the government, that is pushing for a reform in Myanmar.”

Act of state doctrine, the Moçambique rule and the Australian Constitution in the context of alleged torture in Pakistan, Egypt and Guantanamo Bay

http://conflictoflaws.net/

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Act of state doctrine, the Moçambique rule and the Australian Constitution in the context of alleged torture in Pakistan, Egypt and Guantanamo Bay


Posted: 08 Apr 2010 11:46 PM PDT
In Habib v The Commonwealth [2010] FCAFC 12, a Full Court of the Federal Court of Australia considered whether the applicant’s claim against the Commonwealth for complicity in alleged acts of torture committed on him by officials of the governments of Pakistan, Egypt and the United States was precluded by the act of state doctrine. The Court allowed the claim to proceed. In doing so, the Court has, it seems, concluded that the act of state doctrine cannot, consistently with the Australian Constitution, preclude an action against the Commonwealth based upon an allegation that the Commonwealth has exceeded its executive or legislative power.


The applicant was allegedly arrested in Pakistan a few days before the US commenced military operations in Afghanistan in October 2001. He alleged that while there, and afterwards in Egypt, he was tortured by Pakistani and then Egyptian officials, with the knowledge and assistance of US officials. He alleged that he was then transferred to Afghanistan and later Guantanamo Bay, where he was tortured by US officials. He alleged that Australian officials participated in his mistreatment. The applicant claimed damages from the Commonwealth based on the acts of the Australian officials. His claim was that the acts of the foreign officials were criminal offences under Australian legislation (which expressly had extraterritorial effect), that the Australian officials aided and abetted those offences, that this made them guilty of those offences under the Australian legislation, that committing those offences was outside the Australian officials’ authority and that the Australian officials therefore committed the tort of misfeasance in public office or intentional infliction of indirect harm.

The Commonwealth contended that the Court could not determine the applicant’s claim, because it would require the Court to sit in judgment on the acts of governments of foreign states committed on their own territories. This was said to infringe the act of state doctrine, as explained in decisions such as that of the United States Supreme Court in Underhill v Hernandez 168 US 250 (1897) and the House of Lords in Buttes Gas and Oil Co v Hammer [1982] AC 888. The doctrine has been approved by the High Court of Australia: Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30; [1988] HCA 25.


The Full Court rejected the Commonwealth’s contention. Jagot J (with whom Black CJ agreed) reviewed the US and UK cases and concluded that they recognised circumstances where the act of state of doctrine would not apply. In particular, she said that the UK cases supported the existence of a public policy exception where there was alleged a breach of a clearly established principle of international law, which included the prohibition against torture. She considered that the Australian authorities were not inconsistent with this approach and that it applied in this case. She also considered that the same result would be reached by considering the factors said to be relevant by the US Supreme Court in Banco Nacional de Cuba v Sabbatino 376 US 398 (1964).

More fundamentally, as noted above, Jagot J (again with Black CJ’s agreement) concluded that for the act of state doctrine to prevent the Federal Court from considering a claim for damages against Australian officials based upon a breach of Australian law would be contrary to the Australian Constitution. This was because the Constitution conferred jurisdiction upon the High Court ‘[i]n all matters … in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’. The Federal Court has been invested with the same jurisdiction by legislation.


Indeed, the other member of the Court, Perram J, based his decision entirely on this constitutional ground. In doing so, Perram J made the obiter comment that it would be similarly inconsistent with the Constitution to invoke the Moçambique rule in response to a claim which asserted that the Commonwealth had exceeded its legislative or executive power. He considered that a previous decision of the Full Court, Petrotimor Companhia de Petroleos SARL v The Commonwealth [2003] FCAFC 3; (2003) 126 FCR 354, which treated the act of state doctrine as going to whether there was a ‘matter’ within the meaning of the Constitution, was plainly wrong. Having reached this conclusion, it was unnecessary for Perram J to consider whether there was a human rights exception to the act of state doctrine. However, without reaching a definite conclusion, he considered the point in some detail, in particular the contrasting views of whether the act of state doctrine is a ‘super choice of law rule’ requiring the court to treat the foreign state acts as valid or a doctrine of abstention requiring the court to abstain from considering those acts.

This case represents a significant development in Australian law on the act of state doctrine and, so far as Perram J’s comments are concerned, the Moçambique rule. The position adopted by the Full Court is, at the least, contestable. If it is accepted that the Moçambique rule and the act of state doctrine are legitimate restraints on State Supreme Courts, which have plenary jurisdiction, why should they not also restrain the federal courts, which have limited jurisdiction? Not every restriction on the exercise of federal jurisdiction is unconstitutional: limitation periods, procedural rules, the requirement to plead a cause of action and the rules of evidence all do so. The Moçambique rule and the act of state doctrine were well understood principles at the time of federation. It seems surprising to suggest that the Constitution operates to oust those principles without any express words, simply because it sets out limits on federal power and contains a general conferral of jurisdiction on the High Court. Indeed, in the case of the Federal Court, the Court’s jurisdiciton is provided not by the Constitution but by legislation, albeit picking up the words of the Constitution. The question is one of the construction of that legislation, not the Constitution, and whether it purported to oust those principles. In any event, both in the Constitution and the relevant legislation, reading the word ‘matter’ — which it is accepted contains limits on the Courts’ jurisdiction (eg precluding advisory opinions) — as informed by, not ousting, the Moçambique rule and the act of state doctrine is at least arguably more consistent with the historical position.

It remains to be seen whether the Commonwealth seeks special leave to appeal to the High Court.