留学生宪法Law Essay [5]
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关键词:留学生宪法Law EssayUsa International Law司法管辖权FSIA
摘要:本文是一篇留学生宪法Law Essay,2010年4月在访问美国时,道路运输和高速公路部长卡迈勒?纳特因涉嫌参与1984年的锡克教徒暴乱问题而被联邦地区法院送去了通知。案件是司法部根据《外国人侵权索赔法案》对锡克教组锡克教徒的反人类,有辱人格的待遇和非法杀害的罪名提起诉讼。
tivities. The FSIA took these cases out of the political arena of the State Department, while leaving traditional head-of-state and diplomatic immunities untouched.”
In the Lafontant Case (supra), the District Court gave a similar view. As per the judgment:
“No statute has modified the long standing rule of international and common law... In 1976 the FSIA codified the doctrine of restrictive immunity and transferred the power to make determinations of sovereign immunity based upon public-private-commercial distinctions from the State Department to the federal courts… The critical question remains: does the common law head-of-state immunity survive the FSIA? The term “head-of-state” is not mentioned in the FSIA… [The Act’s] history does demonstrate that the FSIA is ‘not intended to affect either diplomatic or consular immunity’.”
The Court subsequently rejected the plaintiff's argument that in enacting the FSIA, Congress intended to completely eliminate the suggestion of immunity procedure.
The Restatement (Third) of Foreign Relations Law of the United States (1986) also buttresses this view of continuing head-of-state and diplomatic immunity. Reporter's Note 14 reads:
“Heads of state or government. Ordinarily, a proceeding against a head-of-state or government that is in essence a suit against the state is treated like a claim against the state for purposes of immunity.”
Procedure to claim Head of State Immunity
The determination of whether an individual is a recognized Head of State is the task of the executive, and is binding on the Courts. The procedure of applying to the State Department, has been followed even after the FSIA was enacted, and will continue to apply notwithstanding the US Supreme Court’s judgment in the Samantar Case [36] .
In the Lafontant Case (supra), it was expressly held:
“[T]he courts must defer to the Executive determination... Since determination of who qualifies as a head-of-state is made by the Executive Branch, it is not a factual issue to be determined by the courts. No judicial hearing or factual determination aside from receipt of the State Department's communication is warranted.”
The Court further stated thatL
“[I]mmunity extends only to the person the United States government acknowledges as the official head-of-state. Recognition of a government and its officers is the exclusive function of the Executive Branch. Whether the recognized head-of-state has de facto control over the government is irrelevant; the courts must defer to the Executive determination. Presidential decisions to recognize a government are binding on the courts, and the courts must give them legal effect.” [37]
This view, that the determination of the State Department is binding on the Courts has been taken in numerous other cases. In Ye v. Zemin, Chinese and American members of spiritual movement sued former president of People's Republic of China and Chinese-government office allegedly established to suppress movement, alleging that Chinese members were subjected to human rights abuses and that American members were prevented from traveling to Iceland during president's visit there. The Court of Appeals held that1 “suggestion of immunity entered by Executive Branch for Chinese president was binding on district court” [38] .
In US v. Nori
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