Suchergebnisse

Most scholars and courts assume that the Eleventh Amendment emerged from a sudden 'shocked' public reaction to the Supreme Court's decision in Chisholm v. Georgia. The Supreme Court's decision in Hans v. Louisiana has been subject to particular criticism for extending the doctrine of sovereign immunity beyondthe text of the amendment and the particular subject matter before the Court in Chisholm. This article contends that the modern emphasis on Chisholm v. Georgia as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of compelling a state to defend itself in federal court at the behest of an individual. That debate preceded Chisholm and would not reach critical mass until the state of Massachusetts responded to its own suit in Vassal. All sides in this debate accepted the idea that the national government could invoke sovereign immunity against similar suits. Denying states the same immunity called into question whether they remained sovereign entities and retained the non-delegated sovereign rights and powers that Federalists had promised in the state ratifying conventions. More was at stake than mere betrayal, or even fiscal liability. Whether the states remained sovereign entities under the Constitution affected the basic rules of constitutional construction for, according to the Law of Nations, delegations of power from a sovereign are to be strictly construed. Allowing suits against states thus implicated the principle of limited federal power across all areas of delegated authority. The key to understanding the Eleventh Amendment is the text's focus on the proper judicial construction of delegated power in Article III - a demand that federal courts respect the retained rights of the people in the states and apply the background rule of strict construction.

2/5/1793: Chisholm v. Georgia argued.

State immunity — Jurisdictional immunity — Commercial activity exception — Distinction between sovereign and commercial acts — Whether Bank of Jamaica's activities commercial or governmental in nature — Whether having sufficient jurisdictional nexus with United States — Whether Bank entitled to immunity — Foreign Sovereign Immunities Act 1976Relationship of international law and municipal law — Act of State doctrine — Relationship between act of State doctrine and commercial activity doctrine — Whether action barred under act of State doctrine — The law of the United States of America

On January 21, 2021, the European Court of Human Rights (ECtHR or Court) issued its judgment in the interstate case of Georgia v. Russia (II). Georgia complained that Russia committed systemic human rights violations in the course of the 2008 war in South Ossetia and Abkhazia. Both of these regions are de jure parts of Georgia, but they have not been effectively governed by central Georgian authorities since the collapse of the Soviet Union in 1991. During the night of August 7–8, 2008, Georgian artillery attacked Tskhinvali (the administrative capital of South Ossetia). Russian forces entered South Ossetia and Abkhazia the next day. Russian and Georgian troops engaged in hostilities for five days, before agreeing a ceasefire on August 12, 2008. Since then, a significant military contingent of Russian troops has remained in South Ossetia and Abkhazia. The Georgian authorities complained of systemic violations of European Convention on Human Rights (ECHR) Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty), and 8 (right to privacy), ECHR Protocol 1 Articles 1 (right to private property) and 2 (right to education), and ECHR Protocol 4 Article 2 (Freedom of movement).

On July 3, 2014, the Grand Chamber of the European Court of Human Rights (Court) rendered its judgment in Georgia v. Russia, concerning Russia's collective expulsion of a large number of Georgian nationals between October 2006 and January 2007. The Court held that Russia had violated several provisions of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR), in particular Article of Protocol No. 4 to the ECHR (prohibition of collective expulsions). Because the Russian government had failed to cooperate with the Court by providing relevant information, the Court also found a violation of Article 38 of the ECHR, which obliges states to furnish "all necessary facilities" for the effective conduct of the Court's investigation of the case. The Court deferred its decision on the question of "just satisfaction" under Article 41 pending further submissions by the parties. This was the first of three interstate proceedings that Georgia has brought against Russia under the special procedure of Article 33, and it is the first decision on the merits of these cases.

439Territory — Water boundaries — Interpretation of boundary treaty — Boundary formed by north channel of river — Effect of islands emerging after conclusion of treaty — Use of right-angle principle in delimitation — Boundary at mouth of river — Location of mouth of river in absence of specific geographical headland — Avulsion — Additions to island mass occurring over time as result of engineering works — Effect on boundary — Lateral seaward boundary — Equidistance principle — Treaty of Beaufort, 1787Territory — Acquisition of — Prescription — States of American Union — Boundary rivers — Boundary treaty giving all islands to Georgia — South Carolina exercising sovereignty over islands — Effect of inaction by GeorgiaTreaties — Interpretation of boundary treaty — Boundary formed by north channel of river — Islands emerging after treaty — Whether treated as pre-existing — Whether determination of sovereignty over islands consistent with treaty — Demarcation of seaward boundary — Whether demarcation consistent with treaty — Treaty of Beaufort, 1787 — The law of the United States

487Human rights — Treaties — Scope of application — European Convention on Human Rights, Article 1 — Application during international armed conflict — Application to State in respect of events outside territory of that State — Rule on exhaustion of domestic remedies — European Convention on Human Rights, Article 35(1) — Applicability in inter-State case — Administrative practice allegedly in violation of the Convention — Conflict between Georgia and Russian Federation in 2008 — Joinder of issues to the merits — Six-month time limit — Similarities between case and case before International Court of JusticeClaims — Local remedies rule — Application in human rights cases — European Convention on Human Rights, Article 35(1) — Inter-State case — Allegation of administrative practice in violation of the ConventionInternational tribunals — European Court of Human Rights — Jurisdiction — Procedure — Decisions on admissibility — Joinder of issues to the meritsWar and armed conflict — Applicable law — Relationship between international humanitarian law and human rights law — European Convention on Human Rights

349Claims — Inter-State cases — Claims for just satisfaction — Whether Article 41 of European Convention on Human Rights, 1950 applicable to inter-State cases — Judgment in Cyprus v. Turkey — Whether Article 41 of Convention applicable to present case — Whether present case fulfilling three criteria set out in Cyprus v. Turkey — Whether award of just satisfaction justified — Determination of sufficiently precise and objectively identifiable group of people — Criteria for award of just satisfaction for non-pecuniary damage — Requirement for distribution of damages to members of groupHuman rights — European Convention on Human Rights, 1950 — Article 41 — Inter-State case — Claims for just satisfaction for breach of human rights — Non-pecuniary damage — Whether victims identifiable — Determination of sufficiently precise and objectively identifiable group of people — Whether claim could be submitted under Article 41 of Convention — Whether award of just satisfaction justified — Criteria to be appliedInternational tribunals — European Court of Human Rights — Damages — Non-pecuniary damages — Inter-State case — Damages awarded for distribution to group of nationals — Supervision of distribution — Role of Council of MinistersState responsibility — Obligation on State responsible for internationally wrongful act to make reparations — Just-satisfaction rule deriving from public international law principles relating to State liability — Duty of States to co-operate under European Convention on Human Rights, 1950 — Obligation on State to abide by final judgment of European Court of Human Rights

333Aliens — Expulsion — Collective expulsion — Arrests and detention — European Convention on Human Rights — Protocol No 4 — Prohibition of arbitrary expulsion — Arbitrary nature of collective expulsion and arrests which preceded it — Russian expulsion of Georgian nationals in 2006Claims — Local remedies rule — Application in human rights cases — European Convention on Human Rights, Article 35(1) — Inter-State case — Allegation of administrative practice in violation of the ConventionHuman rights — Aliens — Expulsion — Collective expulsion — Arrests and detention — Deprivation of liberty — Protection against arbitrary treatment — Conditions of detention — Whether amounting to inhuman and degrading treatment — Duty to provide a remedy — Discrimination — European Convention on Human Rights, Articles 3, 5, 13 and Article 4 of Protocol No 4 — Rule on exhaustion of domestic remedies — European Convention on Human Rights, Article 35(1) — Applicability in inter-State case — Administrative practice allegedly in violation of the ConventionInternational tribunals — European Court of Human Rights — Jurisdiction — Procedure — Decisions on admissibility — Joinder of issues to the merits