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)
2010年4月16日 星期五
2010年4月13日 星期二
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
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
2010年4月9日 星期五
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."
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.”
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/
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
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.
2010年4月5日 星期一
Pope's immunity could be challenged in Britain
By PAISLEY DODDS, Associated Press Writer Paisley Dodds, Associated Press Writer – Sun Apr 4, 11:27 am ET
LONDON – Protests are growing against Pope Benedict XVI's planned trip to Britain, where some lawyers question whether the Vatican's implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
More than 10,000 people have signed a petition on Downing Street's web site against the pope's 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million). The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live. British judges have been more open to the concept than those in other countries.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn't a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the U.N.
Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
"It's a fascinating kind of academic, theoretical discussion," said Crane, who prosecuted Sierra Leone's Charles Taylor when he was still a sitting head of state. "At this point, there's no liability at all."
But Geoffrey Robertson, who as a U.N. appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.
"Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don't accept these things at face value," Robertson told The Associated Press on Saturday. "The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini."
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in U.S. sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
"Those who would claim that 'universal jurisdiction' could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction," he said in a statement to the AP.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It's a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel's former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with U.S. officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
"No one would question that the Church's response to widespread abuses has been atrocious, but it's very difficult for me to see how that would fit 'crimes against humanity,'" said Hannum.
Robertson is more in favor of challenging the immunity question.
"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
"If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority — i.e. the Catholic Church ... then the commander can be held criminally liable," Robertson said.
Even though the Vatican — like the United States — did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.
In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.
It was around 1929 when Mussolini decided that the Vatican — a tiny enclave about 0.17 of a square mile with some 900 people — was a sovereign state.
"The notion that statehood can be created by another country's unilateral declaration is risible," Robertson said.
Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
"My guess is the weight of opinion would allow the pope to enjoy immunity," said Hannum. "It's not automatically clear that the Holy See is a state, although it's treated as one for almost every purpose."
Last year, a Palestinian bid to have Barak — the Israeli defense chief who also served as prime minister until 2001 — arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.
In 2001, activists brought Israel's then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain's expected May 6 election.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
Associated Press Writers Gregory Katz and Raphael Satter in London, Nicole Winfield in Rome and Daniel Woolls from Madrid contributed to this report.
Copyright © 2010 The Associated Press. All rights reserved.
LONDON – Protests are growing against Pope Benedict XVI's planned trip to Britain, where some lawyers question whether the Vatican's implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
More than 10,000 people have signed a petition on Downing Street's web site against the pope's 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million). The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live. British judges have been more open to the concept than those in other countries.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn't a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the U.N.
Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
"It's a fascinating kind of academic, theoretical discussion," said Crane, who prosecuted Sierra Leone's Charles Taylor when he was still a sitting head of state. "At this point, there's no liability at all."
But Geoffrey Robertson, who as a U.N. appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.
"Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don't accept these things at face value," Robertson told The Associated Press on Saturday. "The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini."
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in U.S. sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
"Those who would claim that 'universal jurisdiction' could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction," he said in a statement to the AP.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It's a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel's former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with U.S. officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
"No one would question that the Church's response to widespread abuses has been atrocious, but it's very difficult for me to see how that would fit 'crimes against humanity,'" said Hannum.
Robertson is more in favor of challenging the immunity question.
"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
"If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority — i.e. the Catholic Church ... then the commander can be held criminally liable," Robertson said.
Even though the Vatican — like the United States — did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.
In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.
It was around 1929 when Mussolini decided that the Vatican — a tiny enclave about 0.17 of a square mile with some 900 people — was a sovereign state.
"The notion that statehood can be created by another country's unilateral declaration is risible," Robertson said.
Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
"My guess is the weight of opinion would allow the pope to enjoy immunity," said Hannum. "It's not automatically clear that the Holy See is a state, although it's treated as one for almost every purpose."
Last year, a Palestinian bid to have Barak — the Israeli defense chief who also served as prime minister until 2001 — arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.
In 2001, activists brought Israel's then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain's expected May 6 election.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
Associated Press Writers Gregory Katz and Raphael Satter in London, Nicole Winfield in Rome and Daniel Woolls from Madrid contributed to this report.
Copyright © 2010 The Associated Press. All rights reserved.
2010年3月20日 星期六
72國反對 黑鮪禁令遭封殺
大西洋黑鮪禁止國際貿易案在聯合國杜哈會議被否決，許多人又重提日本是大黑手，其實日本只是本案殺手之一，另外還有71個殺手，大多是開發中國家，包括中國和南韓。72國反對這項禁令，原因無他：經濟和就業至上，只好委屈黑鮪魚。
南韓媒體說，南韓投反對票的理由，除了南韓是重要捕鮪國，另一理由是怕「惡例」一開，將來延伸到其他鮪類，影響漁業。
管轄大西洋黑鮪的兩大單位，一是「瀕臨絕種野生動植物國際貿易公約」 (CITES)，通稱「華盛頓公約」，一是「國際大西洋鮪類保育委員會」 (ICCAT)。
ICCAT去年年會未能大幅限制大西洋黑鮪年捕量，摩納哥訴諸CITES，提出全面禁貿令，日本當時揚言反對任何禁令。
但肉美價貴的大西洋黑鮪注定繼續走向滅絕之路。徹底支持禁令者只有美國、挪威、肯亞，18日投票支持禁令的43國，包括歐盟，不少主張緩議。
非洲、亞洲、拉美、加勒比海的漁業國家說，禁令傷害漁民，而且大西洋黑鮪危機危言聳聽。18日會議上，利比亞代表帶頭，聲震全場，直指提案者摩納哥提供的科學證據全是誤導視聽的謊言。保育組織希望交付工作小組繼續辯論，但利比亞要求立即表決，結果就是如此。
向來被指為黑鮪危機禍首的日本樂得順水推舟，大大賣乖，出席會議的水產廳審議官宮原正典說，日本向來不遺餘力關心大西洋黑鮪過去50年來銳減80%的命運，但主管此事的不應該是CITES，而應該是ICCAT，因為CITES的禁令不切實際，ICCAT走降低漁獲配額的路線，日本願意接受。
宮原說，日本聽ICCAT的，而ICCAT有大西洋黑鮪復育計畫，因此CITES案未過，對日本也是沉重的結果，因為日本自覺更有責任協助復育。
【2010/03/19 聯合晚報】 @ http://udn.com/
南韓媒體說，南韓投反對票的理由，除了南韓是重要捕鮪國，另一理由是怕「惡例」一開，將來延伸到其他鮪類，影響漁業。
管轄大西洋黑鮪的兩大單位，一是「瀕臨絕種野生動植物國際貿易公約」 (CITES)，通稱「華盛頓公約」，一是「國際大西洋鮪類保育委員會」 (ICCAT)。
ICCAT去年年會未能大幅限制大西洋黑鮪年捕量，摩納哥訴諸CITES，提出全面禁貿令，日本當時揚言反對任何禁令。
但肉美價貴的大西洋黑鮪注定繼續走向滅絕之路。徹底支持禁令者只有美國、挪威、肯亞，18日投票支持禁令的43國，包括歐盟，不少主張緩議。
非洲、亞洲、拉美、加勒比海的漁業國家說，禁令傷害漁民，而且大西洋黑鮪危機危言聳聽。18日會議上，利比亞代表帶頭，聲震全場，直指提案者摩納哥提供的科學證據全是誤導視聽的謊言。保育組織希望交付工作小組繼續辯論，但利比亞要求立即表決，結果就是如此。
向來被指為黑鮪危機禍首的日本樂得順水推舟，大大賣乖，出席會議的水產廳審議官宮原正典說，日本向來不遺餘力關心大西洋黑鮪過去50年來銳減80%的命運，但主管此事的不應該是CITES，而應該是ICCAT，因為CITES的禁令不切實際，ICCAT走降低漁獲配額的路線，日本願意接受。
宮原說，日本聽ICCAT的，而ICCAT有大西洋黑鮪復育計畫，因此CITES案未過，對日本也是沉重的結果，因為日本自覺更有責任協助復育。
【2010/03/19 聯合晚報】 @ http://udn.com/
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