法律管理权essay [3]
论文作者:英语论文论文属性:作业 Assignment登出时间:2014-09-23编辑:zcm84984点击率:11220
论文字数:2890论文编号:org201409211323275271语种:英语 English地区:加拿大价格:免费论文
关键词:Law Essay法律管理权国家法案侵权活动
摘要:本文是加拿大滑铁卢大学的一篇争权和法律管理权的侵权活动的法律作业,主权和非主权活动之间的区别也只适用于合法的追求索赔侵权的声明下。”法院评估了核电厂作为商业活动的运营情况但是核电厂仍然归属给国有企业,而不是USSR(州)。
udged on the first ground that the dispute concerned acts, which were done by Germany in exercise of its authority, but the Brussels Convention was not applicable to public matters as it was explicitly proved in the recent case of Lechouritou. [13]
On the second ground of the objection the Court of Cassation referred the case back to the Court of Appeal to revise it. The Court of Cassation decided that the international rule as state immunity could be restricted by another international rule as ius cogens. Afterwards the court of Appeal came to the same decision after elaboration of Italian law, International treaty law and international court practices.
With the view of better structuring this big decision it is decided by author to divide it into two parts: firstly it will be considered the Italian law and international treaty law and then international court practice. And at the end this judgment will be accompanied with author’s comments and thoughts.
The Court of Appeal stated that according to the article 10 of Italian Constitution the customary international law is the part of national law of Italy. [14]
In turn the international treaty law recognizes the deportation and forced labour as international crimes. For example, in the Article 6(b) of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Establishing the Charter of the International Military Tribunal of 1945 it is stated that deportation to slave labour constitutes a war crime. Moreover, Germany itself recognized the gravity of its committed actions by establishing the Foundation law for compensation of damages for injured persons during WWII. [15]
However, there is no explicit norm on denial of state immunity in committing of war crimes in international dimension. Only the FSIA of USA was amended by such kind of explicit norm in 1996. As it was mentioned in the subchapter 1.4.1 this norm relates to terrorist acts.
The European Convention on State immunity and Article 12 of UN Convention on State immunity provide the denial of state immunity in committing torts, which violate human rights. But these treaties have territorial restrictions. However, according to the dissenting opinions of some judges of ECHR in the McElhinney case [16] it is clear that state immunity cannot be granted anymore in claims for compensation of damages on physical attacks. [17]
The same trend in denial of state immunity in violation of human rights was adopted by some national legislative acts, such as SIA of UK, Canada State Immunity Act. Canada as UK also recognizes that there is no state immunity privilege when human rights are violated but it also requires territorial nexus with Canada. [18] In the Houshang Bouzari case, [19] it was underlined by Ontario Superior Court of Justice that the denial of state immunity is impossible because of the lack territorial nexus with the forum state. Territorial nexus requirement is a decisive factor in the issue of state immunity in Canada state immunity act as well. [20]
Besides these legal acts on state immunity the Court elaborated the numerous judgments as well. Because of the big amount of elaborated cases by the Court it will be mentioned only the most significant ones here.
By the time of consideration of this case there were already enough court judgments, which had p
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