scholarly journals Closed material procedure in civil proceedings

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
United States ◽  
Human Rights ◽  
Common Law ◽  
The United States ◽  
European Convention ◽  
United States Government ◽  
Sensitive Information ◽  
Significant Activity ◽  
True Nature ◽  
Civil Proceedings

<p>"Items of historical significance of two wars Iraq and Afghanistan Significant Activity, Sigacts, between 0001 January 2004 and 2359 31 December 2009 extracts from CSV documents from Department of Defence and CDNE database…This is one of the most significant documents of our time removing the fog of war and revealing the true nature of 21st century asymmetric warfare…" ¹ This was part of the message sent along with the documents later known as Iraq and Afghanistan war logs from Chelsea Manning, a United States solider, to the website of WikiLeaks - an international, online, non-profit organisation which publishes secret and sensitive information. The release of the war logs was referred as “the largest leak of classified documents in its history” and the release of diplomatic cables exposed numerous unguarded comments and revelations regarding critiques and praises about the host countries of various United States embassies; United States intelligence and counterintelligence efforts and other diplomatic actions. These leaks put the United States in great controversy considering its actions in the Iraq and Afghanistan wars and caused quite an embarrassment due to its comments regarding diplomatic actions. Chelsea Manning was convicted and Julian Assange, the founder of WikiLeaks, is facing potential criminal prosecution, despite being granted political asylum. While WikiLeaks still works as an important role of exposing the “truth” to the public, it imposed great concerns to many of the governments around the world towards their government policies, national security and general reputation. The consequence of WikiLeaks releasing sensitive information about United States government rang the alarm of the importance of governments safeguarding secret information. The motivation of the United Kingdom government issuing the Justice and Security Act arguably comes from the concern of exposing sensitive information. The Introduction of the Act reads that the JSA is “to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes”. This Act, based on the objectives mentioned above, introduced closed material procedure to the civil proceedings, which is regarded as a response to the judgment of Al Rawi, undoubtedly generated huge discussions across boundaries as to the matter of security and liberty; security and due process; security and justice; the Act’s in relation to the common law as well as its relationship with Article 6 of the European Convention on Human Rights. While many of the scholars accused JSA of “turning off the light”, this paper would like to direct attention to the Wikileaks incidents and consider the views of both the British government and the promoters of human rights and common law. This paper will first introduce the effect of CMP in the criminal proceedings, and then look at Al Rawi and Tariq. It will conclude the conflicts when adopting CMP and by interpreting JSA to draw some concerns and the certain “light”, as well as some suggestions towards CMP in JSA. 1. Denver Nicks. 'Private: Bradley Manning, WikiLeaks, and the Biggest Exposure of Official Secrets in American History' (Chicago Review Press, Chicago, 2012) at 137-138.</p>

scholarly journals Closed material procedure in civil proceedings

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
United States ◽  
Human Rights ◽  
Common Law ◽  
The United States ◽  
European Convention ◽  
United States Government ◽  
Sensitive Information ◽  
Significant Activity ◽  
True Nature ◽  
Civil Proceedings

<p>"Items of historical significance of two wars Iraq and Afghanistan Significant Activity, Sigacts, between 0001 January 2004 and 2359 31 December 2009 extracts from CSV documents from Department of Defence and CDNE database…This is one of the most significant documents of our time removing the fog of war and revealing the true nature of 21st century asymmetric warfare…" ¹ This was part of the message sent along with the documents later known as Iraq and Afghanistan war logs from Chelsea Manning, a United States solider, to the website of WikiLeaks - an international, online, non-profit organisation which publishes secret and sensitive information. The release of the war logs was referred as “the largest leak of classified documents in its history” and the release of diplomatic cables exposed numerous unguarded comments and revelations regarding critiques and praises about the host countries of various United States embassies; United States intelligence and counterintelligence efforts and other diplomatic actions. These leaks put the United States in great controversy considering its actions in the Iraq and Afghanistan wars and caused quite an embarrassment due to its comments regarding diplomatic actions. Chelsea Manning was convicted and Julian Assange, the founder of WikiLeaks, is facing potential criminal prosecution, despite being granted political asylum. While WikiLeaks still works as an important role of exposing the “truth” to the public, it imposed great concerns to many of the governments around the world towards their government policies, national security and general reputation. The consequence of WikiLeaks releasing sensitive information about United States government rang the alarm of the importance of governments safeguarding secret information. The motivation of the United Kingdom government issuing the Justice and Security Act arguably comes from the concern of exposing sensitive information. The Introduction of the Act reads that the JSA is “to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes”. This Act, based on the objectives mentioned above, introduced closed material procedure to the civil proceedings, which is regarded as a response to the judgment of Al Rawi, undoubtedly generated huge discussions across boundaries as to the matter of security and liberty; security and due process; security and justice; the Act’s in relation to the common law as well as its relationship with Article 6 of the European Convention on Human Rights. While many of the scholars accused JSA of “turning off the light”, this paper would like to direct attention to the Wikileaks incidents and consider the views of both the British government and the promoters of human rights and common law. This paper will first introduce the effect of CMP in the criminal proceedings, and then look at Al Rawi and Tariq. It will conclude the conflicts when adopting CMP and by interpreting JSA to draw some concerns and the certain “light”, as well as some suggestions towards CMP in JSA. 1. Denver Nicks. 'Private: Bradley Manning, WikiLeaks, and the Biggest Exposure of Official Secrets in American History' (Chicago Review Press, Chicago, 2012) at 137-138.</p>

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

The Soering Case

1991 ◽  
Vol 85 (1) ◽  
pp. 128-149 ◽  
Author(s):  
Richard B. Lillich
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
International Criminal Law ◽  
European Convention ◽  
International Human Rights Law ◽  
Council Of Europe ◽  
European Court ◽  
Capital Murder ◽  
To Come

The unanimous judgment of the European Court of Human Rights in the Soering case, handed down on July 7, 1989, holds that Great Britain’s extradition of the applicant to the United States to stand trial for capital murder, an offense punishable under the applicable Virginia law by “death, or imprisonment for life,” would violate the prohibition against “inhuman or degrading treatment or punishment” in the European Convention on Human Rights. Aside from its effect on the future ability of the United States (and many other countries) to obtain the extradition from Council of Europe countries of persons charged with offenses carrying the death penalty, the judgment in Soering has implications of a far wider nature for international criminal law, the law of state responsibility, the jurisprudence of the European Convention, and international human rights law in general. Some of these implications are obvious and immediate; others are more speculative and long range. Like the proverbial pebble thrown in the pond, Soering will cause ripples for some time to come.

International Human Rights Litigation in the United States

2021 ◽  
pp. 168-200
Author(s):  
Paul Hoffman
Keyword(s):  
United States ◽  
Human Rights ◽  
Common Law ◽  
The United States ◽  
International Human Rights ◽  
Sovereign Immunity ◽  
Human Rights Abuses ◽  
The Past ◽  
Forum Non Conveniens ◽  
International Human

Paul Hoffman reviews the position in the United States regarding the imposition of liability on multinationals for human rights abuses occurring overseas. He focuses on corporate complicity cases brought under the Alien Tort Statute over the past 25 years. By reference to key decisions, he charts the development of the law which had had initially held out considerable promise for human rights victims but which has been gradually whittled away by decisions such as Kiobel in 2012 and Jesner in 2018. The scope of the statute and the concepts of aiding and abetting liability, the presumption against extraterritoriality, ‘touch and concern test’ and ‘foreign sovereign immunity’ are explained. The decision in Doe v. Nestle has resolved many of the uncertainties. Potential liability under various statutes to protect victims of torture, trafficking, terrorism, and corruption are outlined as is the experience of common law tort claims and forum non conveniens.

The Role of the Judge in Advancing Human Rights - Knight Errant or Slot Machine Automation?

1988 ◽  
Vol 57 (1) ◽  
pp. 29-46
Author(s):  
Justice Michael Kirby
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Long Time ◽  
Protection Of Human Rights

AbstractIn this paper, the author deals with the "role" of judges in "advancing" human rights. He cautions that the needs of different countries will vary. He starts with a reference to the recent failure of Judge Robert Bork to secure confirmation to the Supreme Court of the United States. Bork had been a long time proponent of judicial restraint in the interpretation of the Bill of Rights, urging that protection of human rights should normally be left to the democratically accountable branches of government - the executive and the legislature. After reviewing the theoretical and practical arguments for and against judicial restraint, the author states his own conclusions. These are that, especially where there is a constitutional charter of rights and particularly in common law countries, judges have an inescapable function in developing the law. Their decisions necessarily advance their view of human rights. In human rights cases, they may nowadays receive assistance from international statements of human rights and the jurisprudence developing around such statements. The author appeals for an international approach but acknowledges that this will be difficult for lawyers, traditionally jurisdiction bound. But he warns that there are limits to the activism of the judiciary in controversial human rights cases. Judges themselves do well to recognise these limits both for their legitimacy and their effectiveness. An important modern challenge to the judiciary is that of resolving this dilemma between the pressures for restraint and the urgency of action.

scholarly journals CONSTITUTIONAL AND LEGAL BASIS FOR THE FORMATION OF THE CORPS OF PROFESSIONAL JUDGES: FOREIGN EXPERIENCE

2021 ◽  
Author(s):  
Vitaliy Hudyma ◽  
Keyword(s):  
United States ◽  
Human Rights ◽  
Great Britain ◽  
United States Of America ◽  
Vocational Training ◽  
The United States ◽  
University Education ◽  
European Convention ◽  
National Council ◽  
Legal Basis

The article reveals the constitutional and legal foundations and features of the formation of the corps of professional judges in foreign countries. It has been established that in many countries there is an independent specialized body, whose competence is to ensure the training of candidates applying for positions of judges, for example, in France – the National School of Magistracy, Georgia – the High Council of Justice, Poland – the National Council of Judicial Procedure, Germany – a selection committee, Croatia – Council of State, United States of America – Senate Judicial Committee, Great Britain – Commission on the Appointment of Judges. It has been established that the process of training candidates applying for judicial positions should take into account the aspect of skills development provided for in the Convention for the Protection of Human Rights and Fundamental Freedoms. It has been proven that in the context of the implementation of special training for candidates applying for judicial positions, one should rely on the provisions of Recommendation Rec(2004) of the Committee of Ministers is the Council of Europe to member states on the role of the European Convention on Human Rights in university education and vocational training. It has been determined that the constitutional and legal basis for the activities of institutions conducting vocational training of candidates applying for positions of judges is determined by a special law in many countries. It was found that professional training of judges takes place in the formats of a combination of an interdisciplinary approach to training with a multidisciplinary one, the use of various practical methods for teaching, based on the requirements of European legislation, the development of a program to improve the leadership and management skills of candidates applying for positions of judges. It is proposed to take into account the experience of France, Georgia, Poland, Germany, Croatia, the United States of America, Japan, Great Britain, and other countries when forming the corps of professional judges in Ukraine.

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