Gonzaga Of Law

A Call for Change: The Military Extraterritorial Jurisdiction Act Volume 13 - Issue 2 (2009 - 2010) Written by First Lieutenant James E. Hartney    Notwithstanding moral obligations, the inability to prosecute crimes negatively affects a state's international reputation. For over forty years, overseas crimes committed by American civilians accompanying the military went unpunished. The Military Extraterritorial Jurisdiction Act of 2000 ("MEJA") closed the gap. While this was the MEJA's original intent, it also established federal criminal jurisdiction over felony crimes committed overseas by former military members with absolutely no remaining ties to the service. This paper will analyze the road to the MEJA and the first MEJA cases involving such former military members, and it will ultimately prove this aspect of the Act must be addressed by legislatures for the following reasons: 1) federal courts are ill-equipped to administer justice to this unique subset of United States citizens; 2) the MEJA was never intended to be used this way; and 3) the MEJA's inadequacy and a lack of alternatives requires that action be taken to ensure justice.   The Future of the Korean and European Union Constitutions: A Comparative Analysis of Rights... Volume 13 - Issue 2 (2009 - 2010) Written by Dr. Donald D.A. Schaefer    Both South Korea ("Korea") and the European Union have witnessed struggles regarding the rights of the accused. In the case of Korea, more than fifty years of political turmoil since the founding of the first republic in 1948 has complicated and inflected the debate over these rights. The current Korean Constitution, which became law in 1987, is largely based upon the European constitutional court system. Human rights in Europe are the province of the European Court of Justice (ECJ), which may rule on matters concerning the European Union (EU). Established in 1952 as the Court of Justice of the European Coal and Steel Community, the ECJ grew in power and influence with the 1957 Treaty of Rome, which created the European Economic Community (EEC). In November 1993 the EEC was officially renamed the "Treaty of Rome," and is today referred to as the "EC Treaty." It is from this treaty that many of the current rights concerning the accused within the EU are derived. The ECJ bases many of its rulings regarding the accused upon this treaty. In recent Korean history, the Bill of Rights in the 1987 Constitution has had the most dramatic impact on the rights of the accused. The constitutional change was a response to the political struggle and massive civil unrest that year that led to the collapse of the authoritarian-military regime. Even in the wake of these changes, however, rights for the criminal defendant/accused are still far from complete. By the same token, one may argue that the rights of the accused within the ECJ are still evolving. Yet, as in the Korean case, progress has been made. In 1968, in Stauder v. City of Ulm, the ECJ held that the fundamental human rights are "enshrined in the general principles of Community law and protected by the [ECJ]." By upholding Human Rights, particularly those of accused criminals, the ECJ continues to change the legal framework of its Member States. The 1993 Maastricht Treaty ("MT") brought with it a new Treaty on European Union ("TEU"), which added a political entity, the "European Union" ("EU"). The TEU introduced a number of additional rights for the accused in criminal proceedings. The Treaty of Amsterdam, which subsequently came into force on May 1, 1999, amended the TEU. Its framers sought to bring to the forefront the issue of human rights through formal recognition. The TEU was "superimposed" over the EC Treaty, thereby adding a number of new laws concerning justice and national security. Still lacking, however, was a European Bill of Rights that specifically laid out the rights of the accused in criminal proceedings. The Charter of Fundamental Rights of the European Union ("Charter"), introduced in 2000, along with the Treaty of Nice, introduced in 2001, set in motion the EU's eastward expansion by paving the way for an additional ten countries to enter the EU in 2005 and two more in 2007, bringing the EU's membership to 27. This number will surely rise as more countries seek membership. The Charter was originally part of the proposed Treaty Establishing a Constitution for Europe, which has not yet been ratified. If introduced within the EU Constitution, the Charter will have an impact throughout Europe. Specifically, it will guarantee certain rights of the accused that are explicitly contained within Chapter VI (Articles 47-50). It will further guarantee that those who are brought before the ECJ will have the opportunity to be tried fairly in accordance with a set of guidelines on which judges, prosecutors, defense lawyers, and the accused can rely. As it stands, the Charter is legally binding as part of the recently ratified Lisbon Treaty. However, the Lisbon Treaty will not act as an EU Constitution, but instead simply amends the TEU and the Treaty of Rome. As such, the impact of the Charter will likely be limited as countries simply may choose to opt-out of its provisions. Therefore, a clear need to have the Charter as part of the proposed EU Constitution remains. This is the background for the comparison of the rights of the accused found within the Korean Constitution and those within the proposed European Charter, to which this paper will now turn.