Suchergebnisse

Territory — Title — Native tide — Mabo v. Queensland (No 2) — Common law recognizing native title in relation to land — Native Tide Act 1993 (Commonwealth) — Section 223(1) of Act — Criteria for determination of native title — Section 6 of Act — Territorial application — Whether native tide existing over marine areasSea — Tide — Native tide rights and interests — Whether native tide existing offshore — Mabo v. Queensland (No 2) — Relevance of common law — Native Title Act 1993 (Commonwealth) — Section 223(1) of Act — Section 6 of Act — Interpretation of Act — Whether native tide rights and interests in relation to sea — Whether common law recognizing rights and interests over sea and seabed — Whether native title rights and interests enforceable under Australian legal system — Whether native title rights and interests in relation to sea conferring exclusive possession, occupation, use and enjoyment of sea and seabed in claimed areaSea — Territorial sea — Sovereignty — Great Britain acquiring sovereignty over Northern Territory in 1824 — Seas and Submerged Lands Act 1973 — Seas and Submerged Lands Case 1975 — Subsequent legislation — Relevance of radical title to offshore native title rights and interests — Extent of Australia's 321territorial sea — Whether common law recognizing native title rights over sea claimed by indigenous peoplesRelationship of international law and municipal law — International principles — New source of law to resolve ambiguous municipal law — International law influencing development of common law — Australia party to International Convention on the Elimination of All Forms of Racial Discrimination — Convention given effect by Federal ParliamentHuman rights — Property rights — Legal rights of indigenous people to sea — Universal human rights — Elimination of racial discrimination — Australian indigenous peoples — Preservation of traditional society and culture — Need to protect indigenous land and resources — The law of Australia

353Territory — Title — Aboriginal people in Australia — Declarations sought by plaintiff — Whether Commonwealth of Australia owing fiduciary duty to original people of Australia — Alleged illegal invasion, war crimes and genocide — Whether fiduciary duty extending to require Australia to move United Nations General Assembly to obtain Advisory Opinion from International Court of Justice — Whether Aboriginal people having separate rights and legal status including territorial sovereignty — Whether fiduciary relationship requiring Australia to negotiate with plaintiff with respect to obtaining Advisory Opinion — Whether declarations appropriate — Genocide Convention Act 1949 (Commonwealth) — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Whether justiciable "matter" — Commonwealth Constitution, Sections 75 and 76 — The law of Australia

1War and armed conflict — War crimes and crimes against humanity — Responsibility of individuals — London Declaration, 1942 — Moscow Declaration, 1943 — United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968 — European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, 1974 — Charter of the International Military Tribunal for the Prosecution and Punishment of Major War Criminals, 1945 — Australian citizen alleged to have committed war crimes during Second World War in German occupied Ukraine — Accused having no connection with Australia at the time of the commission of the acts — Whether conduct constituted a war crime under the rules of international law — Whether in violation of the laws and customs of war — Whether defence of superior orders available — War Crimes Act 1945 (Commonwealth), as amended, Section 9 and Sections 6, 7(1) and 17 — Whether empowering State to take appropriate action to bring war criminals to justice — Whether "serious crime" under the municipal law of the Commonwealth of Australia — Validity of provisions — Whether exercise of external affairs powers and defence powers — Whether Australia having interest or concern in war crimes committed during Second World War — Whether subject matter of international concern — Commonwealth Constitution, Section 51 (xxix)Jurisdiction — Universal jurisdiction — Scope — War crimes and crimes against humanity — Enforcement of the laws of war — Principle of universality — Whether crimes against ius gentium — Whether such crimes existed in international law between 1942 and 1943 — Conduct alleged to have taken place outside Australia — Conduct amounting to crimes against international law alleged to have been committed in Ukraine when under German occupation — Australian legislation extending to war crimes committed outside Australia — War Crimes Act 1945 (Commonwealth), as amended — Whether legislation a law with respect to external affairs — Whether valid exercise of legislative power by Parliament — Whether implementing an obligation or concern in international law — Whether Act facilitates the exercise of a right of universal jurisdiction existing in international law — Whether similar to piracy having universal cognizance, sui generis, to be punishable by any nation into whose hands the offender falls — Whether municipal law providing for universal jurisdiction recognized by international law — Whether appropriate courts to exercise universal jurisdiction2Jurisdiction — Extraterritorial jurisdiction — War crimes and crimes against humanity — Australian citizen alleged to have committed war crimes in German occupied Ukraine — Charged with offences against the municipal law of Australia — Legislative power of Parliament to pass laws having extraterritorial effect and to create the offences defined by the Act — Whether extraterritorial conduct having sufficient connection with Australia to enliven the external affairs powers — Whether ex post facto creation of war crimes justified — Whether clear intention of Parliament that the Act have retrospective operation — Whether Commonwealth Parliament in the exercise of its legislative powers may create retrospective law including criminal laws with an ex post facto operation — Whether Act amounts to a bill of attainder — Whether legislative usurpation of judicial power — Commonwealth Constitution, Chapter III — War Crimes Act 1945 (Commonwealth), as amendedRelationship of international law and municipal law — War crimes and crimes against humanity — Relationship between legislative competence in international law and the external affairs powers of the Commonwealth of Australia — Act relating to armed conflict occurring in Europe during Second World War — Whether provisions of the Act giving effect to an obligation arising under international law to translate into municipal law the international law definition of war crimes — Whether provisions of the Act correspond with the provisions of international law — Whether retrospective criminal legislation contrary to international law — Whether breach of the principle of nullum crimen sine lege — Whether statutory exclusion of the defence of superior orders consistent with international law — Nuremberg Charter, Article 6(c) — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article II — War Crimes Act 1945, as amended, Sections 7(3), 6(c) and 9Treaties — Treaty obligations of States — Geneva Conventions, 1949 — War crimes and crimes against humanity of serious international concern — Australia's acceptance of legislative obligations implemented into municipal law by the Geneva Conventions Act 1957 (Commonwealth) — Act retrospective in application to war crimes — Geneva Conventions not retrospective in effect — Whether Act breach of the principles nullum crimen sine lege and nulla poena sine lege — Principle of retroactivity — International Covenant on Civil and Political Rights, 1966, Article 15(1) — European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 7 — 3Universal Declaration of Human Rights, 1948, Article 11(2) — War Crimes Act 1945 (Commonwealth), as amended, Section 9Sources of international law — Custom — General practice of States — Opinio juris — War crimes and crimes against humanity — Obligations of States under customary international law in respect of extraterritorial war crimes — War criminals from the pre-1945 years to be sought out and tried — Absence of widespread practice of States exercising such extraterritorial jurisdiction — Whether Australia under any legal obligation to seek out Second World War criminals and to bring them to trial — Whether War Crimes Act 1945, as amended, gives effect to an international obligation — The law of Australia

The past year has brought a variety of appellate court decisions (and a few legislative actions) in the evidence area. Some of these are merely affirmations of well-established principles; others answer questions about evidence law which have troubled lawyers and judges in the Commonwealth for some time. And, inevitably, some of them raise questions in areas once thought to be definite and certain.

Human rights — Genocide — Northern Territories Aboriginals Ordinance 1918 — Whether Ordinance authorizing acts of genocide — Whether satisfying definition of genocide in Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Whether Ordinance validRelationship of international law and municipal law — Treaties — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Genocide Convention Act 1949 (Commonwealth) — Northern Territories Aboriginals Ordinance 1918 — Whether Ordinance authorizing acts of genocide — Whether Ordinance valid — Whether Genocide Convention having effect upon Australian law — The law of Australia

Territory — Acquisition of sovereignty — Islands — Whether international law permitting acquisition of sovereignty over terra nullius by an individual — Whether State acquiring sovereignty over territory obliged to recognize existing private ownership — Whether rule deriving from customary international law — Whether rule deriving general principle of law — Article 38(1) of Statute of International Court of JusticeHuman rights — Property rights — Whether rights created by international law proprietary — Whether international law permitting acquisition of sovereignty over terra nullius by an individual — Whether State acquiring sovereignty over territory obliged to recognize existing private ownership — Sources of international lawSources of international law — Substantive — Customary international law — Content — Article 38(1)(b) of Statute of International Court of Justice — General principles of law — Article 38(1)(c) of ICJ Statute — Whether appellant establishing rule of customary international law — Whether Norwegian Supreme Court decision in Jacobsen sufficient — State practice — Opinio juris — Whether other jurisdictions dealing with similar issues under municipal law — Whether appellant establishing existence of general principle of law recognized by civilized nations — Whether deriving from municipal legal systems — Operation of Article 38(1)(c) — ICJ StatuteRelationship of international law and municipal law — Customary international law — Norwegian Supreme Court decision in Jacobsen — Status of decision — State practice — Opinio juris — Whether Jacobsen concerning content of municipal law or customary international law — Whether judicial authority for purpose of Article 38(1)(d) of Statute of International Court of Justice — Whether correct statement of international law — General principles of civilized nations — Whether focusing upon municipal systems — Article 38 of ICJ Statute — The law of Australia

War and armed conflict — Weapons — Nuclear weapons — Proceedings in municipal court — Statement of claim seeking declarations that threat or use of nuclear weapons in any circumstances prohibited — Whether use of nuclear weapons by Australia would be in breach of its obligations under municipal, international and transnational law — Respondent applying for summary relief — Whether statement of claim should be struck out — Whether statement of claim incompetent — Whether plaintiff possessing necessary standing — Whether statement of claim disclosing a reasonable cause of action — Whether subject-matter of proceedings justiciable — Constitutional and legal function of a municipal court — Whether municipal court appropriate forum — Whether statement of claim suitable vehicleInternational Court of Justice — Advisory jurisdiction — Australia Member State of United Nations — Australia having accepted jurisdiction of International Court of Justice — Plaintiff submitting two questions for Advisory Opinions — Whether threat or use of nuclear weapons in any circumstances permitted under international law — Whether use of nuclear weapons by a State in war or other armed 339conflict would be in breach of its obligations under international law — Whether consistent with Court's essential judicial character — The law of Australia

450Territory — Sovereignty — Recognition of State's claim to sovereignty over territory — Self-determination — East Timor — Australian recognition of Indonesian claims to East TimorJurisdiction — Non-justiciability — Whether courts can consider propriety of Executive's recognition of a foreign State's claim to sovereignty to a territory — Recognition by Australia of Indonesia's claim to sovereignty over East TimorRelationship of international law and municipal law — Treaties — Allegation that treaty inconsistent with international law and with State's international obligations — Whether rendering legislation enacted to implement that treaty invalid — Whether Legislature's competence to legislate on external matters subject to international law and State's international obligations — Australia-Indonesia Treaty establishing zone of cooperation in Timor Gap — Whether enabling legislation invalid — The law of Australia

State territory — In general — Acquisition of territorial sovereignty — Conquest and annexation — Acquisition of Australia in 1780-1788 — Terra nullius — Whether occupation or conquest — Rights of aboriginal people in land under international law — The law of AustraliaState territory — In general — Acquisition of territorial sovereignty — Occupation — Discovery — Acquisition of Australia in 1770–1788 — Terra nullius — Whether occupation or conquest — Validity and legal effects — Act of State — Whether aboriginal people had rights in land under international or Australian law — Procedure — The law of Australia

International law in general — Relation to municipal law — Charter of United Nations — Resolution of Security Council requesting Member States to take action against Rhodesian régime under Article 41 of United Nations Charter — Whether Charter binding upon persons in Australia as part of Australian law — Whether resolution of Security Council forms part of Australian law — Whether resolution of Security Council confers additional powers on Australian executive — The law of Australia

In American country clubs, there is a long tradition of discrimination against racial minorities and women. These clubs maintain that they are private and thus able to operate free from government sanction. In 2004, the Supreme Court of Kentucky ruled that the state's Commission on Human Rights had the statutory authority to investigate private country clubs to determine if they discriminate in their membership practices. In Kentucky, if a club is found to discriminate, its members are disallowed certain tax deductions. While this is a step in the right direction to end discriminatory practices at country clubs, the Supreme Court of Kentucky still points out that private clubs have the right to discriminate without fear of legal liability. This Note evaluates other states' reactions and statutes regarding discrimination at private clubs and contends that such approaches are more effective in eradicating discrimination in these clubs than tax consequences.