PIL (Part 2) Flashcards
What is jurisdiction
What is civil jurisdiction?
What are the grounds for criminal jurisdiction?
What is the territorial principle?
What happened in the SS Lotus Case?
The floating territory idea has been compeltely discredited. The case is no longer the way that the world works. We now have a treaty based rule which says there is exclusive flag state jurisdiction. If you crashed into another boat, the flag of the boat that crashed would be the only nation to have criminal jurisdiction.
Is a foreign embassy considered to be in the territory of a state?
Yes. However, this is where immunties apply.
What is the nationality principle?
What is the protective security principle?
What is passive personality?
What is universal jurisdiction?
What are the defintions of crimes where universal jurisdiction can be exercised over?
Is their universal jurisdiction in a terrorist case?
Bring up Achille case & quasi universal jurisdiction case.
What is the difference between Yosuf and Yunis?
In Yosuf, there is no universal jurisdiction over terrorism, in Yunis they found passive personality and universal. Yunis was not endorsed by Court in Yosuf.
Can you use universal jurisdiction to begin an investigation into another state?
Caveat that this was for a state torture case but general principle applies.
What are the issues with universal jurisidiction?
Some argue that it only accounts to privacy and that it does not reach to other things. There is particular issue when the offender is not in the territory of the prosecuting state. You need to contrast Rumsfeld case with the South africa case.
Is a nation under an obligation to prosecute universal jurisdiction?
What is the ICC’s role in criminal jurisdiction?
What happened if custody was obtained unlawfully?
What is foregin state immunity?
A procedural bar to jurisdiction.
What is absolute immunity?
A number of states (communist states) adhere to absolute immunity.
What is restricitve immunity?
How does foreign state immunity work in Australia?
The FSI codifies the restricted immunity approach in Aus.
Explain the foreign state immunties act?
S9 creates a general immunity (subject to specified exceptions)
The immunity applies to proceedings, broad definition.
What are the key exceptions of the foreign states immunity act?
- Commercial transactions exception
What is the local torts exception?
What is the difference between the enforcement of a prosecution vs the prosecution of an an exception?
What immunity do foreign state officials have?
What is the difference between incumbent vs former heads of state? What immunity do they get?
What if you are suing a foreign head of state if it is in their private capacity?
Provide a summary of immunity for foreign heads of state?
What happens to a former head of state?
What are some general principles of state responsiblity?
What does attribution mean in state responsiblity?
What is the definition of attribution in state responsibility?
What is Article 7 in state responsiblity?
If it is not clear if a state’s actions are arrtibutable, what are good case’s to cite?
Can acts of private individuals be attributed to a state?
Art 5: A person or group is empowered by the law
Also Article 8 - Where individual or corporation is acting under the instruction of the state (not law).
What is the level of control for Art 8 to be active?
Conduct will be attributable to the state only if the state drected or controlled the specific operation and conduct complained of was an integral part of that operation (ILC commentary on Art 8).
What is the relevance of the Nicaragua case to understanding attribtuion?
What does the case of Tadic say in relation to attribution?
Overall control, not effective control.
What does the genocide case tell us about state responsibility?
What does Nuhanovic tell us about attribution?
Key difference is this case was applied by a domestic course
What is Article 9 in terms of attribution?
What is Article 10 of the attribution?
What is Articel 11 in terms of attribution?
If there is no attribution to the state but foreign interests have still been harmed, what action is there?
What does the case of Asian Agricultural products tell us?
What are defences to state responsibility?
What is the rainbow warrior ruling?
Although they took the special forces operations away from the island for hospital treatment, violating the principles. They then kept them there. They relied on defences of force majeure.
When can a state invoke the responsibility of another state?
What are remedies of state responsbility?
What rules govern the mistreatment of foreign nationals?
What other cases have explored the minimum case?
What is diplomatic protection?
What are the admissiblity requirements for diplomatic protection?
Who meets the requirements for a national?
What happened in the Nottebohm case?
For the courts to determine if diplomatic immunity applies, by extension can test whether there is a genuine connection between individual and nation. In this case, they found there was not a legitmate connection. There must be reciprocral rights and duties.
This only applies to circumstances where there not the person’s sole nationality.
What happens in cases of dual nationality?
What is the Barcelone Traction Case?
There has to be a clear breach of an obligation from which Belgium is a beneficiary.
If a shareholders interest are harmed, it must look to the company for recourse. BUT the situation is different if the act complained of is aimed at the direct rights of the shareholders (right to a dividend or right to attend a company meeting)
Outcome: They will not use diplotmatic protection for shareholders
When might the Barcelona Traction case allow diplomatic protection for shareholders?
What is 2006 Draft Articles on Diplomatic Protection?
Semi codification of barcelone traction case.
What is the Diallo Case?
Affirmed Bareclona case; Guiena does have standing here
What is the Diallo Case? Cont.
What is a summary of corporations and shareholders content?
What is the requirement for exhaustion of local remedies?
What are the exceptions for local remedies requirement?
Quite a tough rule to pass. Must exhaust the reasonably available local judicial remedies.
Must put in the key arguments and evidence in domestic proceedings (Electronica Sicula case).
