From: nicholso@pioneer.arc.nasa.gov (Melvin H. Nicholson YBH)
Subject: **** Australian citizens kidnapped ...****
Organization: NASA Ames Res. Ctr. Mtn Vw CA 94035
Date: Mon, 27 Jul 92 18:33:58 GMT

I have not included any of the previous articles, because that would
probably entail including part of the "flame war" which has spawned and
is mostly out of control.  I do want to make a few points which I think
are pertinent and could stand summary from the now nebulous thread.

The primary dispute revolves around a notion of jurisdiction.  The
following points I take for granted:

	o To the Australian Government, the children are Australian citizens.
	o To the Malaysian Government, they are Malaysian citizens.
	o The Australian court award custody to the mother.
	o The Malaysian court awarded custody to the father.
	o The father took the children from Australia to Malaysia

The question at hand is: which court's ruling has precedence?

While the children were in Australia, the Australian ruling had
precedence, since Australia is governed by the Australian Government and
its laws.  According to those laws, the father could not legally take
the children out of Australia.  In doing so, he defied the court's order
and was quite correctly found in contempt of the Australian court.

However, both he and the children are now in Malaysia.  The Australian
laws do not apply there, and the ruling has no hold over him there.  If
he were to return to Australia at some later date, then the Australian
ruling would again take precedence, and he could be legally arrested,
and punished according to Australian law.

Legally, the father is now under warrant in Australia, but is not within
their jurisdiction. 

This has been view repeated from the view of the Australian government's
point of view, and what recourses they have.  The summary is that they
may petition for extradition, plead to the UN to apply injunctions or
other pressures, or try to remove the prince and/or children from the
country by force.  This last option would be an act of war, and while
not unlike the Prince's own actions, would have the difference that when
a governement makes this sort of action, it is an act of war, whereas
for an individual, it is merely criminal behavior.

The mother's point of view is even more bleak.  She can petition
virtually anyone, or try to counter-kidnap the children and become a
criminal with trespect to the Malaysian government.

What has not been explored as much is the position of the Malaysian
Goverment.  They have quite a bit more choice in this matter (at least
from a legal standpoint, if not a practical one).  They may deport the
prince and children, defering to the notion that the Prince has acted
against the laws of Australia while in that country.  They may also
deport the Prince but not the children.  This would enforce the idea
that the Prince acted illegally in another country, and repect that
notion of Australia's soveriegnity in that respect, but not cede the
point of the custody of the children, who having not broken any laws
themselves, are not criminally extraditable.  The problem here is that
this leaves the children with no guardian (a problem the Malaysian
courts could internally remedy).  Further, the Malaysian government
can refuse the Australian request on various grounds:

	o They could claim their own laws have precedence everywhere and
	  refuse to acknowledge the Australian Government soveriegn
	  rights even in Australia (This would not be that bright an
	  idea and would likely put them at odds with the political
	  community).

	o They could insist that they are offering the father and
	  children assylum from the Australian government.  This would
	  force the Australian Government to place a priority on the
	  issue and decide what action they felt justified, if any.

	o They could claim diplomatic privaledge for the Prince based on
	  his status.  (with the same affect as the above, but more
	  likely to provoke action from the Australian governement)

In considering all of these, remember that the underlying driving force
to all of internation law is the threat of war.  The last recourse for
any country (or other group of people or individual) is violence.  When
people (or governments, which are really people in disguise) decide that
some action in intolerable, they can go to war (whether that action be a
military venture into a third country, overt militry buildup, diplomatic
insult, pumping out toxic fumes which blow across national boundaries,
or whatever other motive).

Sanctions and limited military conflict, as well as other diplomatic
pressure are all based the threat of war.

That being said, I await the actions of the two governments and all the
individuals involved, and hope that a peaceful settlement of the problem
which exists is found.

Mel
 
	
Newsgroups: soc.culture.australian,soc.culture.asean,aus.general