What is the legal basis of diplomatic immunity? I'm guessing there was an intentional convention/treaty on universal diplomatic protocols (is it one of the Vienna conventions?) But suppose one sued or prosecuted a diplomat in a court of the host country; what legal basis would the judge dismiss it on? Must the international treaties be implemented as domestic laws adopted by the national legislature? Such as the GDPR is implemented in the Data Protection Act 2018 in the UK, and the ECHR is in the Human Rights Act 1998 for England, Wales and Northern Ireland. Is there a more general principle that states that domestic courts can only cite national statutes and not international agreements directly? I'm thinking tangentially of judge baraitsers dismissals of appeals to us UK extradition treaty's clause barring extradition on political offences of last year. Conversely and for perspective I suppose that the American constitution hails ratified international agreements as also the law of the land..?
You are indeed thinking of the Vienna Convention on Diplomatic Relations of 1961. This codified a portion of existing customary international law on diplomatic immunity. It is the result of several years of legal negotiations at establishing a common set of rules that would be generally acceptable. The basic concept of immunity for ambassadors is very ancient, and there is still a body of customary international law that was not codified. For example, the 1961 Convention only deals with permanent missions, not temporary ones like for multinational summits. The history and practice are also helpful for interpreting the Convention itself, such as when considering the scope of diplomatic duties which are protected, as opposed to extracurricular activities which might not be. In the UK, the Convention is implemented by the Diplomatic Privileges Act 1964. This mostly repeats the relevant parts of the Convention text, in Schedule 1, and also includes sections integrating those provisions with domestic law. As far as the courts, section 4 says that If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. This means that what happens procedurally in a UK court is that someone wanting to claim immunity must come with a letter from the Foreign Secretary attesting that they are a real diplomat and not just making it up. The court then considers, from that fact, what legal consequences follow, depending on the type of diplomat involved (e.g. heads of mission have broader protection), the nature of the case (criminal case where the diplomat is accused? civil case where they are the respondent?), etc. That is a matter of interpreting the Convention, plus maybe customary international law - it doesn't mean the diplomat gets to wave their certificate and end the proceedings. The purpose of section 4 is to avoid the court entering its own fact-finding process about whether someone is a real diplomat. That is felt to run the risk of the court causing diplomatic offence by accident - consider Israel and Palestine and China and Taiwan for potential pitfalls. The doctrine of &quot;one voice&quot; obliges the courts to follow the executive's lead. Prior to the Act of 1964, diplomatic immunity was covered by several other enactments, but with the same basic model for implementing immunities in court. There were different regimes for Commonwealth countries and others, which is not the case any more. The first such Act was passed in 1708 after an embarrassing situation with the then ambassador from Russia, who was imprisoned for his debts, angering the Tsar. In general, domestic courts in the UK can take account of customary international law if it is relevant. They can also look at treaty texts, even ones the UK has not signed, to help interpret international law. (In the same way, they can look at academic articles, travaux préparatoires, etc., which have no formal status as law.) If the UK signed the 1961 Convention but did not pass the 1964 Act, then courts might be able to treat the Convention as &quot;background&quot; - but would still be bound by the 1708-1955 Acts on the topic, as far as the actual procedure and rules to follow. A diplomat would not be able to avail themselves of their specific 1961 rights, unless perhaps there was some gap or ambiguity in the domestic law where they could squeeze in an argument that the Convention supplied the proper interpretation of whichever point of customary international law was involved.
There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ. The host country probably has jurisdiction because a military base, unlike an embassy, is not generally immune from domestic criminal law jurisdiction, although the host country is within its rights to decline to exercise that authority and the status of forces treaty with that country would control. The belief that the military cannot prosecute the perpetrator under the Uniform Code of Military Justice because the perpetrator is a civilian who is not subject to the UCMJ is mistaken, and the easiest way to address the issue may be to point this out to the responsible JAG officers and commanding officers with jurisdiction over the case. Generally speaking, as set forth more fully below, the UCMJ does apply to civilians on military bases. See 10 USC 802(a)(11) and 10 USC 802(a)(12). There is also probably U.S. civilian criminal law that is applicable to civilians on a military base much like other federal territories. Historically, these offenses could be presided over in ambassadorial courts of the U.S. ambassador to the country in question, but the current practice is for such prosecutions to be made by the Justice Department before a U.S. District Court judge (I believe from the U.S. District Court for the District of Columbia, although I may be mistaken on that point). Who Is Subject To The UCMJ? Section 802 of Title 10, set forth in the block quote below expressly states who is subject to the Uniform Code of Military Justice. Mostly, the UCMJ applies to members of the U.S. military, broadly defined, with some of the potentially close cases described with specificity. A lot of the detail in this definition goes to the issue of when non-active duty military personnel (1) are subject to the UCMJ, (2) are subject to state versions of the UMCJ in lieu of the UCMJ, or (3) are not subject to the UCMJ at all. The UCMJ also applies to some civilians and people who belong to other military forces, most of which involve (1) people who are civilian employees of the military or civilian military contractors, (2) civilians and members of foreign militaries who are traveling with the military or present on military bases, and (3) prisoners of war broadly defined. These exception cases are emphasized in bold in the blockquote setting forth 10 USC § 802 below. (a) The following persons are subject to this chapter: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it. (2) Cadets, aviation cadets, and midshipmen. (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (4) Retired members of a regular component of the armed forces who are entitled to pay. (5) Retired members of a reserve component who are receiving hospitalization from an armed force. (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial. (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces. (9) Prisoners of war in custody of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field. (11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war. (b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. (c) Notwithstanding any other provision of law, a person serving with an armed force who— (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. (d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of— (A) a preliminary hearing under section 832 of this title (article 32); (B) trial by court-martial; or (C) nonjudicial punishment under section 815 of this title (article 15). (2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was— (A) on active duty; or (B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President. (4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces. (5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not— (A) be sentenced to confinement; or (B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)). (e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2))
No. There are almost no constitutional lawyers (at least, that I have seen make pronunciations on the subject) who seem to think that this is a serious means of forcing a no deal Brexit; such an attempt would be obviously unconstitutional and would almost certainly be injuncted in court within hours of such an order being issued. Orders of council cannot stymie an Act of Parliament, this is a well established constitutional principle. See https://davidallengreen.com/2019/09/brexit-padfield-and-the-benn-act/
"Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional).
No enforceable contract can contain illegal clauses and work Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all. In germany, a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations.
If the FBI has reason to believe they have committed a crime under US law Being an official of a foreign (or domestic) government in a military or civilian capacity does not make a person immune from US law except in the specific case of diplomatic immunity. There are some US laws that apply even if the perpetrator is not and has never been in the US, for example, computer hacking and fraud. So, if the FBI has probable cause they can ask for and get an arrest warrant. If the US were at war with this person’s country then, barring war crimes or crimes against humanity, military action against the US is not a crime. Naturally, exactly the same circumstances apply to US citizens vis-a-vis foreign laws.
The general answer is "yes." Who ever said that only one set of laws applied? Jurisdiction isn't a matter of "one country's laws matter here, let's find out which one it is." All jurisdiction means is that your laws apply to the conduct, not that no one else's can as well. Broadly, there are a few sources of jurisdiction that are generally considered legitimate (to at least some degree) in international law: Territoriality: You have jurisdiction over actions performed in your territory. You also have jurisdiction over crimes where just one part of the crime happens in your jurisdiction (e.g. standing in country A and shooting someone in country B), or even if it just has a significant effect in your territory. Nationality: You have jurisdiction over crimes committed by your citizens anywhere in the world, regardless of whether or not they were breaking the law of wherever they were. Passive personality: You have jurisdiction over crimes committed against your citizens anywhere in the world. Protective: You have jurisdiction over crimes directly harming core state interests, like counterfeiting your passports or sabotaging your warship. Universal: A handful of crimes (like piracy or genocide) are so serious that every country in the world can exercise jurisdiction. If you catch a pirate, you can punish them. These are accepted to different degrees. Passive personality and protective jurisdiction tend to be iffier; territorial jurisdiction is unquestioned (although if it's just based on effects in your territory, it becomes a bit iffier as well). But any of them can be a basis for jurisdiction. If multiple countries have jurisdiction, whoever actually has the offender decides who will try them (jurisdiction to make an arrest is limited to the country in which the arrest is made). So: If you're located in a country, you have to comply with their laws, and they can regulate just about whatever they want, including what you're doing to foreign computers. The foreign country can also generally regulate what you're doing, because part of what you're doing is happening on their territory. Even if both you and the computer are in a foreign country, you may have to answer to the courts of your country of citizenship. Depending on what exactly you're doing, the protective principle may come into play. For instance, if you hack into a computer on a foreign military base, the foreign country could prosecute you for endangering their security. If you're coordinating a genocide, universality applies and anyone can prosecute you. If you hack the computer of a foreigner, passive personality may apply, although this tends to be controversial.
Julian Assange's current litigation is an appeal to the High Court, pursuant to section 108 of the Extradition Act 2003, against the Home Secretary's extradition order of 17 June 2022. The procedure for extradition appeals to the High Court is set out in section 3 of Part 50 of the Criminal Procedure Rules 2020. Rule 50.20 requires Assange to apply for leave to appeal by filing an appeal notice which identifies his grounds of appeal. There is also a requirement to file skeleton arguments under Practice Direction 50E in Division XI of the Criminal Practice Directions 2015. Rule 50.30 provides for an extradition appeal to be determined in appropriate cases by a divisional court. That is what happened in the last appeal, United States of America v Assange [2021] EWHC 3313 (Admin). The &quot;specialist court within the King's Bench Division of the High Court&quot; which determined that case is known as the Administrative Court. The Administrative Court is quite similar to the Court of Appeal and its senior members sit on both courts. The last appeal was determined by the Lord Chief Justice and a Lord Justice of Appeal. So, it would not be surprising if the orders made for case management of this Administrative Court proceeding adopted the practice of the Court of Appeal. The practice of &quot;perfection of grounds of appeal&quot; is described in section A8 of the Court of Appeal Criminal Division Guide to Commencing Proceedings (July 2021). In that jurisdiction, perfected grounds &quot;consist of a fresh document which supersedes the original grounds of appeal and contains inter alia references by page number and letter (or paragraph number) to all relevant passages in the transcript,&quot; which may not be available when the grounds are first prepared. Practice Direction 50A emphasises the importance of expedition in extradition appeals, especially &quot;where the issues are such that further information from the requesting authority or state is needed.&quot; It is likely that the case management orders made in Assange's appeal allowed him to file some initial grounds of appeal and later &quot;perfect&quot; them, possibly after receiving documents that were not available when the grounds were first lodged, or a grant of leave to appeal. This accords with the normal use of the verb &quot;to perfect&quot; in legal contexts (eg. the perfection of a judgment or security interest), which the Oxford English Dictionary defines as: To complete or finish successfully; to carry through, accomplish. In early use also: † to bring to fulfilment or full development (obsolete). Now chiefly Law and Finance.