People's Action Party: Post-independence years | Infopedia
A talisman is an object that someone believes holds magical properties that bring good luck to For example, several known medieval talismans featured geomantic signs and symbols in relation to planets symbols, which are However, these must be used in harmony with the elemental or planetary force chosen so as to. The relationship between Malaysia and Canada has been well-established and it Canadian companies such as the Bank of Nova Scotia, Talisman Energy Inc., Manulife Industrial relations are harmonious, with minimal trade disputes. Doing Business in Malaysia . and teams who endeavour to build more successful business relationships with Malaysian colleagues, suppliers and clients.
Foreign investors can hold percent of the equity in all investments in new projects, are allowed to employ expatriates where such skills are not available and are offered a wide range of tax incentives such as the Pioneer Status and the Investment Tax Allowance.
Industrial relations are harmonious, with minimal trade disputes. Malaysia offers an educated workforce — the quality is one of the best in the region. Literacy levels are high, workers entering the job market have at least 11 years of basic education.
The cost of studying in my country is very affordable and Malaysia would like to host more international students, including Canadians. Many Malaysians have also graduated from Canadian universities and they not only provide valuable connections to Canada, but also the skills sought by global companies.
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The country not only provides the strategic location with the physical and economic infrastructure for international investments but also the right ingredients for people to invest, work, live and play. The telecommunications network uses the latest digital and fibre-optics technology to provide high-quality telecommunication services at competitive prices.
The rapid embrace of the knowledge economy allows companies to operate in an environment that is geared toward information technology.
A well-developed financial banking sector and sophisticated financial facilities are available. There are robust and highly competitive small-and-medium scale industries. Malaysia also offers quality of life. Expatriates will enjoy a safe and comfortable living environment with modern amenities, good health care and medical facilities, excellent educational institutions and world-class recreational sports facilities — at costs much lower than in their own countries.
The diversity of cultures, a heritage derived from its racial mix of some of the oldest civilizations — Malay, Chinese and Indian — has turned Malaysia into a microcosm of Asia. Most Malaysians are able to speak at least two languages. Life in Malaysia is an unsurpassed adventure. From beaches to national parks to shop-until-you-drop experiences to culinary delights and Formula One races, Malaysia has it all, including island retreats and the best diving spot in the world, Sipadan.
What does this have to do with Malaysia? Well, the Malaysians have created their own automotive industry and are producing inexpensive cars that will soon be introduced into the North American market and compete in the same market segment once occupied by both Volkswagen, Honda and Hyundai. Informer Prime Minister Dr. Mahathir Mohamad helped found Proton, and today it is the largest Malaysian automobile manufacturer.
Their early vehicles were built in cooperation with Mitsubishi, allowing Proton to cut development and production costs by using proven Mitsubishi parts. Proton also acquired famed British brand Lotus in Lotus manufactures purpose-built lightweight sports cars that offer a no compromise driving experience.
The rapid development of Asia Pacific has resulted in huge demand for inexpensive cars within emerging markets. This demand has grown exponentially in the last 20 years. Malaysian manufacturers are producing vehicles precisely for this reason.
Defendants' concerted actions are purportedly demonstrated by, inter alia, a May 7, communication from the Government's Petroleum Security Office in Khartoum to a satellite office in Heglig. This directive, denominated as "very urgent," reads as follows: Plaintiffs claim that thousands of villages and at least seventeen churches were destroyed in the areas surrounding Talisman's oil fields, and that one, el-Toor, was located within walking distance of a Talisman site.
The same Government troops assigned to protect Talisman's oil operations participated in the armed campaign against ethnic and religious minorities in the Unity and Ruweng areas. In the last year, Talisman has expanded operations in Block 4. This expansion was preceded by an extensive Government military campaign against at least seven Nuer villages.
Talisman officials were and are aware of these military activities around its oil fields, and of the Government's tactics of targeting civilians.
At several points, the then-governor of Unity province advised Talisman officials of the violent displacement of the civilian population. In addition to this alleged direct support, Talisman also allegedly indirectly supported the Government's genocidal campaign. These roads were used by Government forces to launch military offensives against civilian targets. Similarly, Talisman expanded an existing dirt runway in Heglig to accommodate large transport planes. This runway was later regularly used, with Talisman's knowledge, for military purposes, including bombing and strafing attacks on civilian areas.
In Octoberthe Heglig airfield was used to bomb a United Nations relief site. Another Talisman airfield, in the Unity area is also used by the Government to attack civilian targets.
GNPOC has also provided vehicles for use by the Government in its war against ethnic and religious minorities in the south. Plaintiffs cite two examples. Second, Talisman worked with the Government to establish a military garrison at Wangkei. Plaintiffs also cite statements made by non-governmental organizations, United States government officials, United Nations officials, and others attesting to the gross human rights violations committed by Sudan.
These statements also allege that the oil exploration and extraction activities taking place in Sudan are fueling the war on civilians. Plaintiffs Plaintiffs in this action claim to be the victims of the genocidal acts allegedly committed by Sudan and Talisman. They are pursuing this action on their own behalf and on behalf of all non-Muslim, African Sudanese residents of areas within fifty 50 miles of the GNPOC or other oil concession areas and transportation routes in Sudan.
Presbyterian Church of Sudan The Presbyterian Church of Sudan "Presbyterian Church" is an unincorporated association of people of the Presbyterian faith who are or were residents of Sudan.
Talisman - Wikipedia
Its parishes are located in a broad area of Upper Nile province within and adjacent to the Unity and Heglig oil concessions. Plaintiffs claim the Presbyterian Church's churches have been bombed and destroyed and that its church leaders and parishioners have been displaced by Government forces because of their religion and proximity to the oil fields.
John Sudan Gaduel Rev. As a result of the alleged actions of defendants, Rev. Gaduel was forced to seek refuge in Kenya for his own safety. Gaduel established the South Sudan Operation Mercy ina non-denominational relief organization to coordinate emergency relief efforts for the displaced people of southern Sudan. Nuer Community Development Services in U. Its mission is to assist Nuer refugees in the United States and those who remain in Sudan.
Members of NCDS are refugees who fled areas within or adjacent to Talisman's oil concessions in southern Sudan due to defendants' "ethnic cleansing" campaign against non-Muslim Africans. Relatives of NCDS members in Sudan have been the subject of extrajudicial killings and kidnappings and have had their property destroyed or confiscated. On April 4,as part of the Government's "ethnic cleansing" campaign against non-Muslim, African Sudanese in oil producing areas, his village was attacked by helicopter gunships and infantry forces.
Garbang is a Nuer of the Bui tribe and was born and raised in Bentiu. Inshe and her husband were living in Ler when her village was bombed, allegedly as part of the Government's "ethnic cleansing" campaign against non-Muslim, African Sudanese in oil producing areas.
Garbang fled with her family and survived for twenty-one days hiding in the bush. After seeking refuge in Kenya, Garbang returned to Ler and attempted to reestablish her home; however, repeated Government attacks in support of oil exploration and extraction activities made this impossible.
He was living in Kier in when the government attacked his village with infantry units and heavy bombers. During the attack, civilians were killed and children were sold into slavery.
Cluol fled the area, first to Ethiopia and later to the United States. Prior Proceedings Plaintiffs filed their class action complaint on November 11,and filed an amended complaint on February 25, Plaintiffs seek a declaration that defendants have violated international law; an injunction restraining defendants from continuing to cooperate in committing "ethnic cleansing" against non-Muslim, African Sudanese; compensatory damages from both defendants; punitive damages from Talisman; and attorneys' fees.
Talisman moves to dismiss this action on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, lack of standing of plaintiffsforum non conveniens, international comity, act of state doctrine, political question doctrine, failure to join necessary and indispensable parties, and on the grounds that equity does not require a useless act.
Nature of the Alleged Violations of International Law 1.
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The statute was passed by the first Congress as part of the Judiciary Act of How Far Will it Go? Royal Dutch Petroleum Co.
Judge Friendly proclaimed that "[t]his old and little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act [ That changed with the landmark case of Filartiga v. In that case, two Paraguayan citizens living in the United States brought an action for wrongful death against a Paraguayan police official who had allegedly tortured and killed the son and brother of the plaintiffs.
The Second Circuit reversed the district court's dismissal for lack of subject matter jurisdiction and held that the ACTA provided a means of redress for violations of international law, such as the right to be free from torture. In this sense, the Filartiga court held that the ATCA does not grant new rights to aliens, but simply operated to open the federal courts "for adjudication of the rights already recognized by international law. The Second Circuit's interpretation of the ACTA was intended to be a "small but important step in the fulfillment of the ageless dream to free all people from brutal violence.
Filartiga proved to be a watershed opinion, catapulting a largely overlooked statute into the limelight as a means of vindicating rights under international law.
Later decisions by both the Second Circuit and other courts have upheld and expanded the reasoning of the Filartiga court. An important aspect of this case is the nature of the alleged violations of international law. In order to be actionable under the Alien Tort Claims Act, a defendant's conduct must violate "well-established, universally recognized norms of international law.
Courts must "interpret international law not as it was inbut as it has evolved and exists among the nations of the world today.
This in turn requires an examination of what international law is. According to the Statute, the sources are as follows: The Supreme Court's articulation of the sources of international law is similar.
However, unlike the International Court of Justice, which does not operate on the basis of stare decisis or the Supreme Court, which can choose whether or not to follow its own precedent, this Court, as an inferior court, is obligated to accept the law as it has been interpreted by the Supreme Court and Second Circuit.
This is no less true with respect to questions of international law than any other question of law. Consequently, in this Court, the decisions of the Supreme Court and Second Circuit reflect the state of international law in addition to the traditional sources listed in the Statute of the International Court of Justice.
Jus Cogens Violations of International Law The allegations in the Amended Complaint include charges of genocide, war crimes, torture, and enslavement. It is not disputed that such acts violate universallyrecognized norms of international law though Talisman contends that corporations are not legally capable of violating international law. States practicing, encouraging, or condoning genocide, slavery or the slave trade, extrajudicial killings, torture, or systematic racial discrimination violate international law.
Individuals committing such acts may also be liable under international law. These types of acts alleged in the Amended Complaint are qualitatively different from other types of violations of international law.
Such acts violate peremptory norms, or jus cogens. Republic of Argentina, F. See also Declaration of James Crawford, S. Violations of jus cogens norms constitute violations of obligations owed to all "erga omnes".
A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism even where [no other basis of jurisdiction] is present.
In other words, states may exercise universal jurisdiction over acts committed in violation of jus cogens norms. In addition to triggering the potentially universal exercise of jurisdiction, jus cogens violations may entail not only state but individual responsibility. For example, it is well-established in the post-World War II world that individuals may be held liable for acts of genocide, war crimes, or torture.
The significance of this discussion is to emphasize that jus cogens violations of international law such as are alleged here are fundamentally different in character than other types of international law violations. It is not disputed that in considering a motion to dismiss pursuant to FED.
Plaintiffs claim jurisdiction in this case pursuant to 28 U. The instant motion to dismiss is made by Talisman only. The parties devote several pages of their briefs addressing the question of whether the Court has subject matter jurisdiction under 28 U.
In contrast, both parties relegate their discussion about jurisdiction under 28 U. Level of Review Talisman contends that the Court must engage in a searching review of plaintiffs' allegations, at least for purposes of determining whether the Court has subject matter jurisdiction over this action. For support, Talisman turns to the Second Circuit's Kadic decision: Because the Alien Tort Claims Act requires that plaintiffs plead a "violation of the law of nations" at the jurisdictional threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required under the more flexible "arising under" formula of section Thus, it is not a sufficient basis for jurisdiction to plead merely a colorable violation of the law of nations.
There is no federal subjectmatter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation of the law of nations or treaty of the United States.
Talisman claims that this language requires a Court to subject a complaint to elevated scrutiny with respect to whether or not plaintiffs allege that defendants have violated the law of nations. Talisman's conclusion that a court must conduct a searching review of an ATCA claim is far from self-evident. While it is true that the language of the ATCA does not contain the relatively flexible term "arising under," it does not necessarily follow that a strict pleading requirement should apply.
The court's holding in Kadic certainly does not mandate that result. Indeed, Talisman ignores the fact that the Second Circuit, on a motion for rehearing, emphasized that "the Alien Tort [Claims] Act has a broad scope [ Pleading rules are governed by FED.
It is unclear whether the "more searching review" contemplated in Kadic survived Swierkiewicz. Indeed, a prominent Post-Sivierkieivicz ATCA decision did not utilize a heightened pleading standard or "more searching review. In this case, however, the issue is moot, because the Court holds, infra, that it has subject matter jurisdiction over the action, whether or not a "more searching review" is utilized. A Corporation is Capable of Violating the Law of Nations Talisman contends that the Court lacks subject matter jurisdiction because corporations are legally incapable of violating the laws of nations.
It argues that international law applies to states and in some cases to individuals, but that "the law of nations simply does not encompass principles of corporate liability. Talisman relies primarily on affidavits submitted by two renowned international law scholars, James Crawford and Christopher Greenwood.
Both scholars, consulting a variety of international sources, conclude that there is no basis in existing international law for the liability of corporations. Nonetheless, a considerable body of United States and international precedent indicates that corporations may be liable for violations of international law, particularly when their actions constitute jus cogens violations. Talisman fails to cite a single Supreme Court, Second Circuit, or even Southern District of New York case holding that a corporation is "legally incapable of violating the law of nations.
Crawford and Greenwood, while citing a variety of international law sources, fail to cite a single United States case upholding their position. In fact, numerous Second Circuit cases, as well as cases from courts outside the Second Circuit, make it clear that corporations can be held liable for jus cogens violations.
Second Circuit Precedent Neither party cites any Supreme Court decision for the proposition that corporations are or are not potentially liable under the ATCA for violations of international law, nor is the Court aware of any such decision. While the Supreme Court has not yet addressed the question of whether corporations may be liable for international law violations under the ATCA, the Second Circuit has.
Clear and consistent Second Circuit precedent demonstrates that corporations may be held liable for jus cogens violations of international law. As noted supra, the transformation of the ATCA from an obscure statute passed by the first Congress to a widely-used tool to vindicate international law violations began with Filartiga.
In that case, the Second Circuit reaffirmed that United States courts are, in the absence of a congressional enactment, "bound by the law of nations, which is a part of the law of the land.
After conducting an examination of international law, the court held that deliberate torture perpetrated under the color of law violated universally accepted rules of international law. Consequently, the Second Circuit reversed the district court's determination that subject matter jurisdiction did not lie in that action. In Filartiga, the alleged acts of torture that violated international law were committed by an individual who acted under color of official authority.
This left open the question of whether non-governmental actors could be culpable under the ATCA. Defendant Karadzic was the president of the self-proclaimed Republika Srpska, the Bosnian Serb entity.
In Kadic, Karadzic argued inconsistently that while he was the president of the entity, he was not an official in any government. See Kadic, 70 F.
The district court held that Karadzic was not acting under color of law because the Republika Srpska, even if a state, was not recognized by other states. On that basis, it dismissed the action, accepting Karadzic's contention that "acts committed by non-state actors do not violate the law of nations.
The Second Circuit reversed the district court. In its ruling, the Second Circuit flatly rejected the notion that the reach of international law was limited to states and those acting under color of state law: We do not agree that the law of nations, as understood in the modern era, confines its reach to state action.
Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.
The Second Circuit noted that historically the law of nations had been applied to certain acts of individuals, such as piracy. Pirates were considered hostis humani generis an enemy of mankind in part because they acted without the pretense of state authority.
Over time, slave traders grew to be considered enemies of mankind, subject to liability under international law. In the modern era, the hijacker, war criminal and genocidaire have also come to be considered hostis humani generis.
These crimes of "universal concern" are synonymous with jus cogens violations discussed supra. The Second Circuit went on to analyze specific crimes. It first looked at international jurisprudence concerning genocide, including declarations of the United Nations General Assembly and the Convention on the Prevention and Punishment of the Crime of Genocide, 78 U. In particular, the court noted that under the Genocide Convention, "Persons committing genocide or any of the other acts enumerated in article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
The Second Circuit held that the U. The Kadic court then turned to the question of whether war crimes could be imputed to individuals not acting under color of law. In the instant case, plaintiffs accuse defendants of violating the law of nations and customary international law "relating to [ Plaintiffs do not address the existence of a prerequisite for the commission of most war crimes; namely, an international armed conflict.
Plaintiffs do not allege, nor is there evidence to support a finding, that the conflict in Sudan constitutes an international armed conflict. Indeed, all evidence suggests that the conflict is internal. There is no suggestion that rebel forces in the south are acting as proxy forces of another country.
People's Action Party: Post-independence years
Thus, the four Geneva Conventions would appear not to apply to the conflict in Sudan. Sudan acceded to the Geneva Conventions on September 23, However, common article 3 applies to armed conflicts which are not of an international character. Common article 3 mandates the following: To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: Geneva Convention I art.
The Amended Complaint sets forth sufficient facts to allege a violation of common article 3 as well as customary international law protecting non-combatants. In Kadic, the Second Circuit, reviewing the Geneva Conventions, concluded that violations of common article 3 could be imputed to the acts of individuals: The offenses alleged by the appellants, if proved, would violate the most fundamental norms of the law of war embodied in common article 3, which binds parties to internal conflicts regardless of whether they are recognized nations or roving hordes of insurgents.
The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, [ On this basis, the Kadic court held that it had subject matter jurisdiction over claims of war crimes and the treatment of civilians during internal armed conflicts. Finally, the Kadic court considered whether acts of torture, summary execution, and rape could lead to the liability of an individual not acting under color of law.
While Filartiga marked the birth of modern ATCA litigation, Kadic established that individuals, even those not acting under color of law, can be held liable for certain violations of the law of nations i. The district court dismissed the suit on the basis of forum non conveniens, international comity, and failure to join an indispensable party. In Jota, the Second Circuit addressed these issues, and ultimately vacated the district court's decision and remanded the case.
It did not explicitly address the question of subject matter jurisdiction, and the parties had apparently not raised the issue on appeal. See also Westmoreland Capital Corp. The fact that the Second Circuit did not address an obvious jurisdictional question sua sponte indicates that it had no reservations about the ATCA reaching the acts of corporations. The Second Circuit's holdings in later cases confirms this impression.
Talisman's claim that in Jota and other cases the Second Circuit merely "assumed the possibility of liability" is not compelling, because subject matter jurisdiction, unlike other issues, represents the most fundamental question of whether a court has the legal power to hear a case, and a court has a duty to determine the issue of subject matter jurisdiction, whether or not the parties raise the issue.
By reaching the merits in Jota, the Second Circuit tacitly acknowledged that subject matter jurisdiction lay in that case.