宪法上的自由之极限:美国"劳伦斯案"评析

基本自由权之逻辑终点,可分为内外两面:所有自由中自主性最高的那一个,可谓自由之内在极限;而在整体法秩序中,宪法实定法所能给出的最边界自由,可谓自由之外在极限。当代国家所面临的同性恋者权利问题,正是自由这两个面向结合最为紧密的法律难题之一。面对这样一个临界权利的难题,2003年的美国联邦最高法院,在公认是持保守主义观点的大法官占多数的格局下,却通过劳伦斯案判决,对当今人类实定宪法上的最为极限的自由,做出了一个颇为激进的自由主义宣告。     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.     

Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means

Granting immunity from suit to a foreign state or an international organisation, deprives the plaintiff of access to court and appears incompatible with the rule of law. Since the European Court of Human Rights judgment in Waite v Germany (1999), the availability of alternative means for dispute settlement has been emphasised in the context of international organisation immunity. However in the case of foreign state immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006). Likewise, foreign state immunity would be granted under the UN State Immunity Convention of 2004, regardless of whether there are alternative means. This Convention, rather than enhancing the rule of law, could lead to its attenuation. That several of these cases involve immunity in cases of torture sharpens their sensitivity.     

UPHOLDING STUDENTS’ DUE PROCESS RIGHTS: WHY STUDENTS ARE IN NEED OF BETTER REPRESENTATION AT,AND ALTERNATIVES TO,SCHOOL SUSPENSION HEARINGS

Suspension is the most common form of discipline in our schools. In some cases students facing suspension are removed from school for an extended period of time or referred for expulsion based on the findings made at the student's suspension hearing. Nevertheless, students have no legal right to have counsel participate in, or advocate at, suspension hearings. Additionally, schools for the most part do not offer students alternatives to suspension, such as mediation sessions or other programs designed to allow students to complete school or community work while on suspension. This Note discusses the problems associated with school suspension and suspension hearings. It also explains why providing students with legal advocates at suspension hearings will help promote due process and facilitate better decision making on the part of the student. Finally, it advocates for mediation as an alternative to suspension and suspension hearings, as research suggests that mediation would reduce suspension rates and the costs associated therewith.     

ADR中的国际商事调解制度及其对中国的启示

国际商事调解制度是ADR的重要组成部分。近年来，一方面由于它能够在协商解决问题的同时实现争议方利益的最优分配而在争端解决中备受青睐，另一方面又因为缺乏法律强制力等缺陷而导致在中国解决商事争端的实践中阻碍重重。调解和仲裁相互配合的多元化设计，应该是既节约成本又利益最优的不错选择，这一切还需要中国相应的国内立法予以确立。     

The Justiciability of Resource Allocation

A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between 'discretionary allocative decision-making' and 'allocative impact.' The non-justiciability doctrine in R v Cambridge Health Authority , ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.     

The Continuing Conceptual Crisis in the Common Law of the Contract of Employment

The effects on the common law of the contract of employment of the decision of the House of Lords in Johnson v Unisys Ltd are considered. The focus is on liability rather than remedies. It is argued that the case created conceptual instability in the common law understanding of a breach of a contract of employment. The logical consequence of the majority reasoning is that in some cases the existence or not of a breach by an employer is contingent on an employee's reaction. Relevant case law history and developments since the Johnson decision inform a detailed critique of the arguments that underpinned it. A solution is suggested according to which, prima facie, contracts of employment would be required to be performed in accordance with terms that have been implied by law.     

The ex turpi causa principle in Hounga and Servier

In Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.     

The Tragic Plight of HIV-Infected Haitian Refugees at Guantanamo Bay

Last June marked the 14th anniversary of the closing of the world’s first, and only, HIV camp at Guantanamo Bay. This article revisits the infamous legacy of the Guantanamo Bay camp and the plight of the HIV-infected Haitian political refugees during the early 1990’s. Part I summarises the development of the United States’ immigration policy and the government’s history for excluding immigrants for health related reasons. Part II details the factual and historical background leading to the mass exodus of the Haitians and the sequence of tragic events which resulted in their confinement at Guantanamo Bay. Part III focuses on the seminal case of Haitian Centers Council, Inc. v. Sale (II) (Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028, 1049 (E.D.N.Y. 1993)) which was responsible for bringing about the closure of the HIV camp and granting parole to all HIV-infected refugees to enter the United States. The anticipated revolutionary reform of the HIV-exclusion policy emanating from this legal triumph never materialized. The United States government successfully sought to have the case vacated from the Court’s books. Consequently, the landmark precedent does not technically exist today. What does remain is the notorious HIV-exclusion policy which was distorted by the United States government to justify their detainment. Although the epic legal and emotional struggles of the Haitians are forgotten by many, the legacy of Guantanamo Bay continues to haunt the lives of those who were prisoners of the HIV camp.     

Pammer and Hotel Alpenhof - ECJ decision creates further uncertainty about when e-businesses “direct activities” to a consumer’s state under the Brussels I Regulation

The European Court of Justice’s recent judgement in the joined cases C-585/08 and C-144/09 will have substantial long-term implications for European e-businesses and e-consumers trading across borders.The key question considered was whether the fact that a website can be consulted on the Internet in the Member State of the consumer’s domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of the Brussels I Regulation.