Suchergebnisse

AbstractIn January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.

AbstractThis article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal's application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court's statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett's reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court's reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.

AbstractThis article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal's application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court's statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett's reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court's reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect. ; This is the author accepted manuscript. The final version is available from Cambridge University Press via http://dx.doi.org/10.1017/S0020589315000524

AbstractInKhurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunityratione materiaefrom the criminal jurisdiction of a foreign State by examining key examples of State practice.

Adapted from the source document.