Crimes against Humanity, Reasonableness and the Law: the Simon Case in the Supreme Court of Argentina

In the Simón case, decided in June 2005, the ArgentineSupreme Court held unlawful the application of amnesties tocrimes against humanity. The Court relied heavily on the Conventionon the Non-Applicability of Statutory Limitations to War Crimesand Crimes Against Humanity, ratified in 2003 by Argentina.In so doing, however, it ignored significant constitutionalconstraints that give priority to the right not to be judgedby an ex post facto law. The other arguments provided by theCourt also fail to respect the Argentine constitutional order.Thus, notwithstanding the laudable aim of preventing and punishingall crimes against humanity, this decision is regrettable.     

Polluting Environment, Polluting Constitution: Is a 'Polluted' Constitution Worse than a Polluted Environment?

The Indian Supreme Court has been praised as one of the mostsocially active courts in the world, especially so in the environmentalfield. Yet it is arguable that many of the benefits claimedfor judicial involvement are far from real. Three phases ofacti­vism are identified. In the 1970s, the Court developedthe concept of environmental rights based on ensuring that thedirective principles of state policy and the funda­mentalright to life contained the Constitution worked in mutual support.This was followed by a period when the Court extended liabilityprinciples. The most recent and most controversial phase hasinvolved the Court increasingly acting in an exec­utivefunction and effectively both making and implementing policies.The Court’s enthusiasm in environmental matters has nowdented India’s institutional balance. By being preparedto judicialise all problems of life into problems of law, theCourt has undermined the strength of citizens to engage collectivelywith institutions of the State—the Court should now withdrawfrom its self-imposed alchemist role.     

Why People are Committed to Human Rights and Still Tolerate Their Violation: A Contextual Analysis of the Principle–Application Gap

We report results from two experimental studies that show a large gap between support for general principles contained in the Universal Declaration of Human Rights and denunciation of concrete violations of these principles. Participants in both studies read different scenarios involving human rights violations committed by various authorities in Western contexts. In all situations, attributes or actions of the victims could be used to justify the violations. Participants indicated their level of support for each human right and the unacceptability of violations of it. A dual principle was found to organize positioning towards the violations: participants with a rights-based orientation denounced the violation independently of the victims attributes, whereas context-oriented respondents relied on the perceived deservingness of victims and considered the violation a just sanction of an unacceptable act. Judgmental differences were moderated by the situational context and participants extent of agreement with human rights.     

The “Waiver of Right” Issue in Chinese Civil Claims for War Reparations from Japan—Review of the Two Judgments of the Supreme Court of Japan on April 27, 2007 —Review of the Two Judgments of the Supreme Court of Japan on April 27, 2007

It is still a hot debate: Does China still have the rights to civil claims for war reparations from Japan in spite of its signature of the Sino-Japanese Joint Communiqué of 1972? The Supreme Court of Japan has recently made a number of relevant judgments on this issue, which have cited several specific reasons and have touched on the principles of customary international law and the officially disclosed negotiation documents on the normalization of China-Japan diplomatic ties. This paper is a response to the reasons cited by the Supreme Court of Japan, which analyses the controlling doctrines and issues involved in this debate, including the Framework of Peace Treaty of San Francisco with Japan, the legal effect of the Sino-Japanese Joint Communiqué and its relationship with the Peace Treaty between Japan and Taiwan (China). Through this analysis, this paper reaches the conclusion that the Sino-Japanese Joint Communiqué does not waive the civil claims of China for war reparation.     

Guantánamo Bay: Towards Legality?

This article outlines the US Supreme Court's approach to the habeas corpus entitlements of suspected terrorists detained in Guantánamo Bay and argues for the extension of constitutional habeas corpus rights to them. The article considers two ways in which the Supreme Court might carry out this task: first, 'the territorial approach' (based on domestic legal principles of 'unincorporated territories' and principles of leasehold), and secondly, 'the extraterritorial approach' (based on international purposive approaches to the reach of human rights treaties exemplified by the European Court of Human Rights' Article 1 jurisprudence). For reasons of effectiveness of protection, the Article expresses a clear preference for the latter. The House of Lords decision in R (Al-Skeini) v Secretary of State for Defence (2007) is proposed as a template for such a development. Finally the article refutes arguments rejecting such a development based on the 'trade-off thesis' and perceptions of judicial competence.     

THE SUPREME COURTS POST-MIRANDA RULINGS: Impact on Local Prosecutors

Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v. Arizona ruling. This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more. The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971. This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court.     

Improving the exclusionary rule: A remedial education model

This article reviews the United States Supreme Court decisions on the rationale for the exclusionary rule and numerous law review articles suggesting changes in the rule. A new model is proposed to dovetail with the rule. The courts would participate in developing a compendium of rules and regulations for officers to follow in order to protect constitutional rights. Evidence would continue to be excluded if it were illegally seized in a bad faith. All officers who violate constitutional rights would be subject to remedial education. Supervisory officers and training personnel would also be responsible for the violations committed by line officers. Violations of constitutional rights would be considered when promotions and other personnel decisions are made. Lastly, the victim would be compensated by the governmental agency employing the offending officer with the agency seeking reimbursement from the employee.     

The supreme court and police practices: The unusually busy 2003–2004 term

The 2003–2004 term of the Supreme Court was the most important term of the Court for the law enforcement community in the last decade. The Court decided 11 cases dealing with issues concerning actions taken by police officers, the largest number of “police practices” cases decided by the Court in the last nine years. In addition, several of these cases are among the most important of the 49 police practices cases decided during this time period. The Court: 1) upheld the arrest of all the occupants of a car when drugs are found in it; 2) permitted police roadblocks seeking information from the public in certain circumstances; 3) refused to suppress physical evidence obtained from Miranda violations; 4) expanded the availability of warrantless car searches incident to arrest to include arrests of recent occupants of the car; and 5) upheld statutes requiring persons stopped on reasonable suspicion to identify themselves.     

Re Herrington: aboriginality and the quality of human rights jurisprudence in end-of-life decisions by the Australian judiciary

In Re Herrington [2007] VSC 151 (King's Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory, and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.     

Copyright Infringement in a Borderless World - Does Territoriality Matter? Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers [2004] 2 SCR 427

The recent decision of the Supreme Court of Canada in Societyof Composers, Authors and Music Publishers of Canada v CanadianAssociation of Internet Providers [2004] 2 SCR 427 is significantfor two reasons: (a) the Canadian Supreme Court held that InternetService Providers should be exempted from copyright liabilityas long as they provide only a conduit service in transmittingcopyright materials between Internet users (a point which isconsistent with many national copyright laws); (b) the majorityof the Canadian Supreme Court arrived at the conclusion thatthe appropriate test to determine whether an infringement forthe unauthorized transmission of online copyright material hasoccurred within the Canadian jurisdiction is the ‘realand substantial connection’ test (LeBel J, however, dissentedand was of the view that the correct test to apply is the ‘hostserver’ test). This paper studies these two tests as propoundedby the Canadian Supreme Court and assesses their strengths andweaknesses, especially in light of the territoriality principlein copyright law.     

Relational Human Rights: Shed‐DNA and the Identification of the ‘Living Disappeared’ in Argentina

Through an ethnographic reading of an Argentine Supreme Court decision I explore the changing nature of the legal subject of human rights in light of emerging technologies. Guillermo Gabriel Prieto was suspected of being a ‘living disappeared’, one of the estimated 500 infants or young children forcibly abducted by the last military dictatorship in Argentina. They were raised by the perpetrators of the crime or their accomplices and kept unaware of their birth origins. The Court's deliberations focused on Guillermo's appeal of a lower‐court decision to carry out an identity test based on his shed‐DNA. The decision demonstrates that while the subject of human rights has often been equated with the bounded individual, new technologies challenge us to reconsider the subject's core characteristics: physical boundedness, autonomy, and individuality. I argue that the ruling offers us an alternative conception of the subject that could become the foundation for a new vision of human rights     

Dimensions of criminal justice policy: The Supreme Court,the Fourth Amendment and the trial court system

A full understanding of the role of the U.S. Supreme Court’s supervisory authority over the criminal justice process must recognize that the political and social environment affects local responses to Supreme Court directives. This paper reviews the development of Supreme Court Fourth Amendment decisions in which criminal court deliver justice. The authors suggest that future treatment of problems in Supreme Court’s supervisory role and the prospects of demands for Reform being generated from the larger political community.     

诚实信用与权利滥用——我国台湾地区“最高法院”九一年台上字第七五四号判决评析

诚实信用和权利滥用是民事法律的基本原则,一般具有指导及终极裁量的功能。我国台湾地区“最高法院”九一年台上字第七五四号判决确立了诚实信用原则和权利滥用原则在法律适用上的规范功能,对于原则具体裁决功能的发挥起到开创作用。探讨诚实信用原则和权利滥用原则的内容和相互关系,对于法律解释与实践发展具有重要意义。     

Two Concepts of the Margin of Appreciation

The doctrine of the margin of appreciation that the EuropeanCourt of Human Rights has developed in its case law has givenrise to considerable criticism. In this article I draw a distinctionbetween two different ways in which the Court has used the doctrine.The first one is in cases where the Court has to decide whethera particular interference with a Convention freedom is justified.In answering that question, the Court often uses the label ‘marginof appreciation’ without drawing on a substantive theoryof rights that can justify the conclusion reached. The seconduse appears in cases where the Court refrains explicitly fromemploying a substantive test of human rights review on the basisthat there is no consensus among Contracting States on the legalissue before it. My aim is to highlight the principles thatcan be used to justify each use of the doctrine, by locatinghuman rights within broader issues in moral and political philosophy.Particular emphasis is placed on the distinction between reason-blockingand interest-based theories of rights as well as on the natureof the duties of the European Court, as a matter of internationalhuman rights law.     

South African Supreme Court rules on copyright in software and computer-generated works

The South African Supreme Court of Appeal considers a numberof fundamental issues concerning copyright protection of computerprograms and computer-generated works; in doing so, the courtanalyses a number of basic copyright principles, notably themeaning of originality and the meaning of ‘substantialtaking’ in infringement cases.     

Military Criminal Procedures and Judicial Guarantees: The Example of Switzerland

Since the Nuremberg and Tokyo Trials, scant attention has beendevoted to military tribunals. Only with the creation of theICTY and the ICTR has civil society started reconsidering thequestion of which fora might be better suited for trying individualsresponsible for war crimes and other gross human rights violations.The aim of this paper is to illustrate the Swiss military judicialsystem. It analyses, on the one hand, the judicial guaranteesprovided for in the Swiss Military Penal Code and the Code ofMilitary Penal Procedure. On the other hand, it discusses thejudicial guarantees afforded in the only two war-crimes trialsheld by the Swiss military justice — the G case and theNiyonteze case — which involved civilians with foreignnationality. Finally, the paper argues against the abolitionof military judicial systems.     

INSTITUTIONAL AND POSTRELEASE BEHAVIOR OF FURMAN-COMMUTED INMATES IN TEXAS*

In 1972, the United States Supreme Court ruled in Furman v. Georgia that the death penalty as administered constituted cruel and unusual punishment. This ruling also invalidated the death sentences of over 600 inmates in the United States, who subsequently had their sentences commuted to life imprisonment. This article examines the institutional and postrelease behavior of the 47 Furman inmates in Texas from 1973 to 1986. Prior to the release of these inmates into the general prisoner population, prison officials and clinicians stated that they were dangerous and constituted a substantial threat to other inmates and to the security staff. The institutional and release behavior of the Furman inmates is compared with that of a cohort of like violent offenders. The Furman inmates committed few serious rule violations. They did not kill other inmates or staff. A minority of inmates in both groups committed the majority of prison rule violations. Of the 31 Furman inmates released on parole, 1 committed a new homicide. No cohort inmate killed again. The conclusion is that the execution of these 47 inmates would not have greatly protected society.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Injunctive relief in US patent practice

Legal context. Injunctive relief is available in civil actionsin the United States. Patent litigation is no exception andthe US patent statute explicitly permits it. Because it is aneffective remedy, injunctive relief is commonly sought togetherwith the monetary (legal) remedies which are available to patentowners when enforcing patent rights. Key points. On 15 May 2006 the US Supreme Court in eBay, Incet al v MercExchange, LLC altered the prevailing practice sayingthat ‘the decision whether to grant or deny injunctiverelief rests within the equitable discretion of the districtcourts, and that such discretion must be exercised consistentwith traditional principles of equity, in patent disputes noless than in other cases governed by such standards’. Practical significance. This article will focus on the availabilityof permanent injunctions in patent infringement actions in lightof the Supreme Court's recent ruling in eBay, Inc et al v MercExchange,LLC.