R. V Dubois Case Summary

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R. V Dubois Case Summary



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Booker T Washington vs W.E.B. DuBois -- Analyzing Their Differences

In , a UN safe haven was established in the Bosnian enclave of Srebrenica. Members of the Dutch battalion Dutchbat were based at Srebrenica and were entrusted with the safeguarding of the enclave. As a result, between 8 and 10 citizens were killed who had taken refuge in the town para 2. Is the immunity enjoyed by the UN absolute or is it subject to a test of its compatibility with, inter alia , the right of access to a court guaranteed by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights?

If absolute, should immunity prevail because the claims are based on accusations of involvement in genocide and other grave breaches of fundamental human rights? Articles and of the UN Charter. Articles 31 and 32 of the Vienna Convention on the Law of Treaties. United States of America in which the ICJ interpreted Article of the UN Charter to mean that the Charter obligations of UN Member States prevail over conflicting obligations from another international treaty, whether earlier or later in time than the Charter, the Supreme Court of the Netherlands came to the conclusion that the UN enjoys absolute immunity.

The Court of Appeal therefore erred by examining whether the right of access to the courts guaranteed to the Association by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights prevailed over immunity on the basis of the criteria of legitimacy and proportionality paras. The Supreme Court then examined whether the immunity of the UN should prevail in light of the gravity of the alleged charges by reasoning through analogy with State immunity. The judge rejected this view, and I agree with him.

He based his judgment, I think, on the view that a power or an object conferred on a company to borrow cannot mean something in the air: borrowing is not an end in itself and must be for some purpose of the company; and as this borrowing was for an ultra vires purpose that is an end of the matter. Counsel for the defendant bank I think agreed that if sub-cl. I answer that by saying that you cannot convert a power into an object merely by saying so. Sub-clause N cannot in truth stand by itself any more than certain other of the clauses of this memorandum, for instance sub-cl.

D , which states. Then there is sub-cl. I , which is, to promote any other company for the purpose of acquiring any property or rights or converting any of the liabilities of this company or of its undertaking. And there are other similar sub-clauses which are clearly ancillary powers although under the concluding words they are stated to be independent objects. Counsel for the defendant bank relied on the well-known case, Cotman v. Brougham [ AC ] and, in particular, the speech of Lord Parker of Waddington, where one finds this passage:. I would agree that if the defendant bank did not know what the purpose of the borrowing was it need not enquire, but it did know, and I can find nothing in Cotman v.

Brougham to protect it notwithstanding that knowledge. The first words of the headnote are as follows:. I agree with the judge [ 2 All E. I would dismiss the appeal. You are commenting using your WordPress. You are commenting using your Google account. These undertakings apply also to the position of Sandra Lovelace. The Committee considers, however, that it is not necessary for the purposes of her communication to decide their extent in all respects. The full scope of the obligation of Canada to remove the effects or inequalities caused by the application of existing laws to past events, in particular as regards such matters as civil or personal status, does not have to be examined in the present case, for the reasons set out below.

This fact persists after the entry into force of the Covenant, and its effects have to be examined, without regard to their original cause. Among the effects referred to on behalf of the author quoted in paragraph 9. In this respect the significant matter is her last claim, that "the major loss to a person ceasing to be an Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family, friends and neighbours, and the loss of identity". It has to be considered whether Sandra Lovelace, because she is denied the legal right to reside dn the Tobique Reserve, has by that fact been denied the right guaranteed by article 27 to persons belonging to minorities, to enjoy their own culture and to use their own language in community with other members of their group.

The rights under article 27 of the Covenant have to be secured to "persons belonging" to the minority. At present Sandra Lovelace does not qualify as an Indian under Canadian legislation. However, the Indian Act deals primarily with a number of privileges which, as stated above, do not as such come within the scope of the Covenant. Protection under the Indian Act and protection under article 27 of the Covenant therefore have to be distinguished.

Persons who are born and brought up on a reserves who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian and has only been absent from her home reserve for a few years during the existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as "belonging" to this minority and to claim the benefits of article 27 of the Covenant.

The question whether these benefits have been denied to her, depends on how far they extend. The right to live on a reserve is not as such guaranteed by article 27 of the Covenant. Moreover, the Indian Act does not interfere directly with the functions which are expressly mentioned in that article. However, in the opinion of the Committee the right of Sandra Lovelace to access to her native culture and language "in community with the other members" of her group, has in fact been, and continues to be interfered with, because there is no place outside the Tobique Reserve where such a community exists.

On the other hand, not every interference can be regarded as a denial of rights within the meaning of article Restrictions on the right to residence, by way of national legislation, cannot be ruled out under article 27 of the Covenant. This also follows from the restrictions to article 12 1 of the Covenant set out in article 12 3. The Committee recognizes the need to define the category of persons entitled to live on a reserve, for such purposes as those explained by the Government regarding protection of its resources and preservation of the identity of its people. However, the obligations which the Government has since undertaken under the Covenant must also be taken into account. In this respect, the Committee is of the view that statutory restrictions affecting the right to residence on a reserve of a person belonging to the minority concerned, must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole.

Article 27 must be construed and applied in the light of the other provisions mentioned above, such as articles 12, 17 and 23 in so far as they may be relevant to the particular case, and also the provisions against discrimination, such as articles 2, 3 and 26, as the case may be. It is not necessary, however, to determine in any general manner which restrictions may be justified under the Covenant, in particular as a result of marriage, because the circumstances are special in the present case. The case of Sandra Lovelace should be considered in the light of the fact that her marriage to a non-Indian has broken up.

It is natural that in such a situation she wishes to return to the environment in which she was born, particularly as after the dissolution of her marriage her main cultural attachment again was to the Maliseet band. Whatever may be the merits of the Indian Act in other respects, it does not seem to the Committee that to deny Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the identity of the tribe.

The Committee therefore concludes that to prevent her recognition as belonging to the band is an unjustifiable denial of her rights under article 27 of the Covenant, read in the context of the other provisions referred to. In view of this finding, the Committee does not consider it necessary to examine whether the same facts also show separate breaches of the other rights invoked. The specific rights most directly applicable to her situation are those under article 27 of the Covenant. The rights to choose one's residence article 12 , and the rights aimed at protecting family life and children articles 17, 23 and 24 are only indirectly at stake in the present case.

The facts of the case do not seem to require further examination under those articles. The Committee's finding of a lack of a reasonable justification for the interference with Sandra Lovelace's rights under article 27 of the Covenant also makes it unnecessary, as suggested above paragraph 12 , to examine the general provisions against discrimination articles 2, 3 and 26 in the context of the present case, and in particular to determine their bearing upon inequalities predating the coming into force of the Covenant for Canada. Accordingly, the Human Rights Committee, acting under article 5 4 of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts of the present case, which establish that Sandra Lovelace has been denied the legal right to reside on the Tobique Reserve, disclose a breach by Canada of article 27 of the Covenant.

Individual opinion submitted by a member of the Human Rights Committee under rule 94 3 of the Committee's provisional rules of procedure Communication No. In the Lovelace case, not only article 27 but also articles 2 para. The Act is still in force and, even though the Lovelace case arose before the date on which the Covenant became applicable in Canada, Mrs. Lovelace is still suffering from the adverse discriminatory effects of the Act in matters other than that covered by article Walter Surma Tarnopolsky, pursuant to rule 85 of the provisional rules of procedure, did not participate in the consideration of this communication or in the adoption of the views of the Committee under article 5 4 of the Optional Protocol in this matter.

Lovelace married a non-Indian. As such, she ceased to be a member of the Tobique band.

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