Alleged Violations Research Articles

Non-Procedural Replacement of Constitutional Court Justices: A Threat to Democracy and Judicial Independence

The dismissal of Constitutional Court Justice Aswanto and the appointment of Guntur Hamzah as his replacement by the DPR, ratified by the President, have sparked public outcry over alleged violations of the Constitutional Court’s (MK) independence. This study aims to analyze the phenomenon of democratic regression and the erosion of MK’s independence resulting from the replacement of Constitutional Court Justices in violation of the Constitutional Court Law. The study addresses two main research questions: First, how does the non-procedural replacement of Constitutional Court Justices contribute to democratic regression? Second, what are the implications of such non-procedural actions by the DPR on the independence of the Constitutional Court? This research employs a doctrinal legal method, analyzing relevant regulations and literature. The findings reveal that, first, the non-procedural replacement of Constitutional Court Justices constitutes a symptom of constitutional backsliding that poses significant risks to democratic governance. Second, the independence of the MK’s judicial authority has been increasingly marginalized due to the non-procedural dismissal and appointment of Constitutional Court Justices, ultimately distorting the principle of checks and balances.

How Political Risk Influences FDI Destinations for MNEs: Evidence from Statistical Analyses, Interviews and a Survey Experiment on Investor–State Dispute Settlement

Foreign direct investment involves substantial and long-term investments by foreign companies, which have sometimes been expropriated by national governments. Over the past 35 years, international investment treaties have enabled private companies to sue governments at international tribunals for alleged treaty violations, a shift from traditional state-to-state judicial actions. This dissertation explores how such disputes impact foreign direct investment destinations through statistical analyses and interviews. Additionally, a survey experiment in the U.S. empirically examines factors shaping public preferences for government behavior in these disputes. The findings enhance the existing literature and contribute to policy discussions on redefining the international investment regime.

PENGUATAN DEWAN KEHORMATAN PENYELENGGARA PEMILU DALAM PENEGAKAN HUKUM KODE ETIK PENYELENGGARA PEMILU

The Election Organizer Honorary Council as an institution formed to handle violations of the code of ethics of election organizers applies the principles of maintaining justice, independence, impartiality, and transparency in enforcing the rules or ethical norms that apply to all election organizers, as stipulated in Law Number 7 of 2017. The method used in this study uses a normative legal approach. The results of the study, First, the legal framework for handling violations of the code of ethics of election organizers in Indonesia is a mandate of Law Number 7 of 2017, in Article 1 number 24 which states that the Election Organizer Honorary Council is an institution tasked with handling violations of the code of ethics of Election Organizers. Second, The urgency of law enforcement for violations of the code of ethics of election organizers as an effort to present the integrity of election organizers is the main capital in realizing democratic elections, the presence of the Election Organizer Honorary Council as an institution that is given the authority to handle violations of the code of ethics of election organizers is important in order to realize election organizers with integrity. Third, the Election Organizer Honorary Council in the process of handling alleged violations of the code of ethics of election organizers can be carried out including by carrying out prevention, action, and innovation in various forms of activities carried out in the process of law enforcement against alleged violations of the code of ethics of election organizers.

Resolution of Election Disputes for DPD Members Through Administrative Court Decisions Based on Law No. 7 of 2017 on General Elections (A Case Study of the DPD in West Sumatera Province)

This research aims to analyze the Jakarta Administrative Court Decision No. 600/G/SPPU/2023/PTUN.JKT related to the election dispute of DPD (Regional Representative Council) members in 2023, from the perspective of Law No. 7 of 2017 on General Elections and fiqh siyasah (Islamic political jurisprudence). The focus of the dispute is the alleged violations by the General Election Commission (KPU) in the process of establishing the permanent voter list and determining the election results. This study employs a normative approach with a case study to address how election disputes for DPD members are resolved through Administrative Court decisions. The analysis reveals that the Jakarta Administrative Court Decision has integrated principles of justice and transparency as outlined in fiqh siyasah, and complies with the legal provisions of Law No. 7 of 2017. However, the study also highlights some challenges in enforcing accountability and transparency by the election organizers. This decision has strategic implications for governance and strengthening democracy in Indonesia, particularly within the context of Islamic constitutional law.

Application of the Int'l Conv. for the Suppression of the Financing of Terrorism & of the Int'l Conv. on the Elimination of All Forms of Racial Discr. (Ukr. v. Russ.) (Merits) (I.C.J.)

On January 31, 2024, marking the tenth anniversary of the Russo-Ukrainian war, the International Court of Justice (ICJ) delivered its eagerly anticipated judgment on the merits in Ukraine v. Russia concerning alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This was the first case lodged by Ukraine against Russia back in 2017, in response to alleged numerous violations arising from Russia's occupation of Crimea and its proxy war in Donbas. Although Ukraine might have hoped for a more favourable outcome, the majority only established narrow and rather minor violations under ICSFT and CERD, despite a plethora of claims advanced by Ukraine under both Conventions. A 13:2 majority found that Russia violated Article 9, paragraph 1 of ICSFT due to its failure to investigate individuals who allegedly committed terrorism financing offences upon receiving the information from Ukraine. As for CERD, another 13:2 majority found that Russia violated Articles 2, paragraph 1(a), and 5(e)(v) of the Convention with regard to the implementation of school education in the Ukrainian language in Crimea. In addition, an 11:4 majority found that Russia violated the provisional measures order, which obliged Russia to lift restrictions on the Mejlis, the highest representative executive organ of Crimean Tatars in Crimea banned by Russian authorities, and imposed the non-aggravation measure. The judges were divided on the scope of the non-aggravation measure, and questioned the appropriateness of establishing the violation of the provisional measures order in part concerning the Mejlis in the absence of the majority's finding of the corresponding violation under CERD on the merits.

Artificial Intelligence, Copyright Registration, and the Rule of Doubt

Artificial intelligence (“AI”) technology has detonated an explosive burst of seemingly creative expression. Stories, images, music, and even entire books are now being generated very quickly. This development is a major headache for copyright registrars because the copyrightability of works created in this way is uncertain. The almost limitless variability in the extent of human involvement in the creation of a work using an AI tool compounds the uncertainty. In some cases, copyrightability is easy to determine, such as where an author only claims rights in the selection and arrangement of AI-generated output rather than the output itself. But in many cases the registrability of a work created with the aid of an AI technology is far from certain. In these situations, the Copyright Office should apply a rule of doubt to allow registration. This solution appears to be a novel idea, at least as a permanent solution to the problems AI has generated. Nevertheless, approaching the problem in this way would protect authors’ rights to any original contributions they make to AI-assisted works, authors’ interests in the privacy of their creative processes, the interests of authors whose works may have been used without their consent to train AI, and the ability of alleged infringers to challenge the existence and scope of claimed copyrights in AI-generated and AI-assisted works. It would also ease the burden on copyright examiners.

Alleged Violation of Article 17 of Law Number 5 of 1999 Regarding Transportation Management Services for Shipping (Export) of Clear Lobster Seeds, Decision Number 04/KPPU-I/2021 Decision Date 09 June 2022

This study examines the alleged violation of Article 17 of Law Number 5 of 1999 related to the transportation management services for the delivery (export) of clear lobster seeds, based on the Decision of the Business Competition Supervisory Commission (KPPU) Number 04/KPPU-I/2021 dated June 9, 2022. In this case, there are strong indications that several business actors have carried out unhealthy market control practices, which have a negative impact on business competition in the transportation management sector for clear lobster seeds in Indonesia. This study analyzes the impact of the alleged violations on business actors, service quality, innovation, and the development of the national fisheries sector. The conclusions drawn emphasize the importance of law enforcement and regulatory reform to maintain healthy competition in this sector. Recommendations provided include stricter law enforcement, regulatory reform, increased innovation, and protection for small business actors and fishermen affected

Pornography, sexual privacy and copyright

This article proposes a new paradigm in the consideration of privacy in pornographic works in copyright enforcement actions. It focuses particularly on attempts to threaten individuals with copyright infringement action based on a speculative invoicing model. We approach this issue from the perspective of the right to sexual privacy of alleged infringers, which, as we argue, is particularly pertinent for pornographic works. The courts in England and Wales have broadly recognised the role of individual privacy and embarrassment caused to alleged infringers in the leading cases of Golden Eye and subsequently in Mircom, but the law remains unclear with no real recognition of, or meaningful mechanisms in place to address, the underlying issues. The article points out that this is due to a fundamental lack of appreciation of sexual privacy at a conceptual level in the context of consumption of pornography in the internet age, and consequent failure to consider this in copyright enforcement proceedings. We argue that the law should achieve a balance between the right holder's interest and the sexual privacy of alleged infringers, and copyright enforcement actions need to be approached with this in mind. This calls for a fundamental reconceptualisation of the right to privacy, and we call upon the courts to recognise and balance the sexual privacy rights of the alleged infringers of copyright in pornographic works with the interests of the right holders in certain copyright enforcement actions to achieve fair and equitable outcomes.

Legal regulation of the asylum granting and ensuring of the refugees’ rights in the European Union

The article is devoted to the study of the legal regulation of the asylum granting and ensuring of the refugees’ rights in the European Union. Within the framework of the article, the legal basis of the Common European Asylum System functioning, the creation of which is laid down in the constituent treaties of the European Union, is investigated. In particular, it is determined that the purpose of such a common system is to establish unified standards for determining the criteria for admissibility of applications for asylum or international protection, a similar procedure for considering such applications and the grounds for refusing or suspending the status of a refugee or a person seeking temporary protection, as well as determining the state, responsible for providing asylum, uniform standards for ensuring the rights of refugees, as well as common principles of cooperation between the Member States and partner states that are not members of the Union. The key provisions of the Directive on qualification criteria, on the procedure for granting asylum and international protection, on the conditions of reception and rights of refugees, as well as the Dublin Regulation and the Eurodac Regulation were analyzed. The authors put an emphasis on the fact that because of the full-scale invasion and emergence of the war on the territory of Ukraine, significant changes were made to the process and procedures for granting refugee status and providing asylum within the framework of the legislation of the European Union. The latest Pact on Migration and Asylum was analyzed, especially regarding changes in ensuring border security, quick and effective procedures for considering and obtaining the status of a refugee or a person seeking international protection, solidarity and responsibility among countries that are obliged to provide asylum, as well as strengthening international cooperation in the field of migration. The authors express their support for those concerns regarding alleged violations that may occur after the entry into force of the Pact, in connection with the threat of violations of fundamental human rights. It was concluded that ensuring dignity and respect for human rights is a priority, considering that refugees are recognized as persons who have already suffered violations and were forced to leave their homes.

Self-Determination v Remedial Secession: The Status of Republic of Artsakh (Nagorno-Karabakh) under International Law

Nagorno-Karabakh is a region situated between Azerbaijan and Armenia, which has been the subject of a territorial dispute between the two neighbouring countries. The region declared independence as Republic of Artsakh and separated from Azerbaijan. Azerbaijan accused Armenia of unlawfully intervening in the formation of Artsakh, while Artsakh claimed its independence was legal under the Soviet's Law of Secession, asserting its right to self-determination. Artsakh also pointed to human rights abuses and systematic discrimination by Azerbaijan as reasons for its secession. This paper examines the legitimacy of Artsakh's secession and considers the role of alleged human rights violations by Azerbaijan for its legitimacy. International law demonstrated that practices of secession were somewhat accepted provided that a lawful ground has been adequately fulfilled as a mandatory part of divorcing a territory from its mainland. However, Artsakh’s secession from Azerbaijan is not provided by a solid, reasonable measure as a “remedial” for all the casualties that had taken place. Also, on historic ground, Artsakh failed to provide sufficient records and proof to attest to its legitimacy as a separate entity utterly detached from Azerbaijan.

Legal Protection Against the Use of Brand Names for Geographical Indications on Trusmi Cirebon Batik

The importance of conducting this research is because there is an allegation of violation of the law against the object of Geographical Indication registered as a brand name by an entrepreneur using the name "Batik Trusmi" because it contains things related to geographical indications such as the place of origin of goods, production area, type of goods and character owned by a place. The purpose and purpose of this study is to research an alleged violation in the naming of a registered trademark because it uses a name that is identical to a geographical indication with logical legal reasons and grounds based on a legal perspective, analyzing the certainty of legal protection for the name "Batik trusmi" which is used as a trademark through legal discovery based on the perspective of existing legal regulations, and provides important information to see the facts through the legal science possessed by the author. The method used in this study is normative juridical to examine the problem of trademark infringement with normative research, and the material collection technique used is a literature study including laws, scientific articles, doctrines, etc. The study's results elaborated on the problem that, based on the legal sources collected, the naming of trusmi batik as a registered trademark is contrary to a general naming and a geographical indication naming. It was found that the trusmi batik artisan community has sought a form of protest against the naming of trusmi batik through trademarks in familial ways but has not met maximum results.

The 2022 ICJ Judgment in Nicaragua v. Colombia: Towards a Theory of Exclusivity in Allocating Rights and Jurisdiction between the Coastal and Other States?

Abstract In Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), the International Court of Justice delves into the matter of exclusivity when assessing alleged violations committed by foreign States within an Exclusive Economic Zone. Additionally, the Court examines the legality of legislative acts concerning the contiguous zone and outlines criteria for the drawing of straight baselines. The Court’s aim seems to be establishing a comprehensive theory of exclusivity, seeking to allocate and balance the rights and jurisdiction of coastal States and other States involved. In this context, it becomes apparent that the abstract notion of freedom of navigation imposes limitations on coastal States, preventing them from enacting legislation that expands the scope of their jurisdiction or adopts a liberal interpretation of permissible conditions within relevant regulatory frameworks. The implications of this theory for the evolution of the legal order pertaining to maritime spaces warrant significant attention.

Analisis Pelanggaran Hak Pada Manusia Dalam Kasus Pembunuhan Laskar FPI Di Km.50

This murder case involving Laskar members is an incident that has a significant impact on the rights of every human being. This violation of human rights resulted in the deaths of six members. Law enforcement in this case has attracted various controversies, especially regarding the use of force which was allegedly excessive or disproportionate. Every individual, including members of this organization, has the right to be protected from physical violence or threats of death. One of the principles of the rights that every human being has is that it is necessary to carry out an independent and transparent investigation into every alleged violation of human rights, this includes cases of murder of irregulars. The implementation of the rights of every human being can also include various aspects of accountability for the officers involved in this case, namely that they must be responsible for their actions in accordance with applicable regulations, and also a judicial process that is carried out as fairly as possible.

A Contemporary Aristotelian–Thomistic Perspective on the Evolutionary View of Reality and Theistic Evolution

This article presents a coherent and comprehensive proposal of a renewed contemporary Aristotelian–Thomistic approach to the evolutionary view of reality and the position of theistic evolution. Beginning with a proposal of a hylomorphically–grounded essentialist definition of species—framed within a broader revival of biological essentialism—a constructive model of the Aristotelian–Thomistic metaphysics of evolution is being offered, together with a reflection on the alleged violation of the principle of proportionate causation in evolutionary transitions and the role of teleology and chance in evolution. The theological part of the article addresses a number of questions concerning the Thomistic school of theology in its encounter with the evolutionary worldview, including the question of whether God creates through evolution, the query concerning the concurrence of divine and created causes in evolutionary transitions, and the question regarding evolutionary and theological notions of anthropogenesis. A list of ten postulates grounding a contemporary Thomistic version of theistic evolution is offered as a conclusion to the research presented in the text.

Substitution modeling can coherently be used in attributional life cycle assessments

AbstractMost life cycle assessment (LCA) studies use the attributional methodology. This approach attributes a share of global environmental impacts to one or multiple functions provided by a normatively circumscribed system. Multifunctional systems that are not technologically subdivisible between co‐functions are frequently encountered in LCA studies. It then becomes necessary to resort to co‐production modeling techniques, like the substitution approach. The use of substitution modeling in attributional LCA (ALCA) is, however, discouraged amongst practitioners, due to the alleged violation of central requirements of the attributional methodology. The objective of this research is to shed light on common misconceptions about the compatibility of substitution with ALCA. The first misconception is that the use of substitution in ALCA violates the conservation of total environmental impacts. We find that this idea arises from a confusion regarding the attribution of impacts to the secondary product(s). The second misconception stipulates that substitution is not coherent with the state‐descriptive characteristic of ALCA. We conclude that we can describe a given system as resulting from an inferred (substitution) change, rather than as disrupted by this change. Finally, we discuss the choice of the substituted technology, and argue there is a logic to marginal substitution in ALCA. We therefore recommend accepting substitution modeling in ALCA.

Inspiration or infringement? Social media ‘viral’ trends: a case study on TikTok

Abstract Short-form videos have recently gained popularity thanks to social media platforms like TikTok. Some of the videos created by users go ‘viral’ and are ‘reproduced’ by others as they become trends on this platform. This article examines whether viral social media trends can warrant copyright protection and whether, by recreating such trends without permission, a potential infringement takes place. The idea–expression dichotomy will form the basis of the analysis so that the question is whether the infringer merely borrows an unprotected idea or rather copies a protectable expression. Additionally, as hinted in the pending referral in Mio (C-580/23), the Court of Justice of the European Union (CJEU) is yet to determine how the assessment of similarity, when examining an alleged infringement, must be conducted—is this one of recognizability or rather overall impression? Exceptions and limitations—most pertinently, pastiche—also form part of the discussion as questions are raised on the application of this undefined concept, pending the judgment in Pelham II (C-590/23). A balancing approach shall be taken between the interests of the different stakeholders at hand, including having regard to freedom of expression and protection of IP.

Overview of recent cases before the European Court of Human Rights and the European Committee of Social Rights (June 2023 – December 2023)

This case law report discusses two cases before the European Court of Human Rights and two cases before the European Committee of Social Rights. The first case (Pająk and others v. Poland) concerns the introduction of a lower and different retirement age on the basis of sex for judges of the Polish Constitutional Court. In the case X and others v. Ireland, the ECtHR had to examine the extent to which the residence requirement for child benefits violated Article 14 ECHR, read in conjunction with Article 8 ECHR and Article 1 of the Additional Protocol to the ECHR. Child benefits were paid only to claimants who were fully resident in Ireland, and the applicants, who were awaiting a decision on their residency status, did not fulfil this requirement under Irish law. The collective complaint no. 167/2018 (Sindacato autonomo Pensionati Or.S.A. v. Italy) concerned an alleged violation of Article 12 (3) ESC due to the total or partial suspension of the automatic indexation of a large share of pensions in 2011. The measure was extended in 2015 and revised in 2018, taking into account the position of particularly vulnerable persons. In the last case (collective complaint no. 185/2019, European Roma Rights Centre (ERRC) v. Belgium), the applicants argued that their right to social assistance had been violated, as they had not received social assistance benefits following a police investigation. The ECSR did not go along with the applicants’ claim.

Studi Perbandingan Kewenangan Antara MK Indonesia Dengan MK Korea Selatan Terkait Dengan Impeachment Presiden

Impeachment is carried out by authorized institutions against the president for alleged violations. The purpose of this writing is to compare impeachment in Indonesia and South Korea. To find out whether the impeachment process in Indonesia is possible to implement. Looking at the reasons for the dismissal of the President, South Korea has differences with Indonesia regarding the constitution. The process of dismissing the President in Indonesia needs to be reorganized and revised again regarding the correct regulatory provisions and in accordance with the concept of a country that adheres to and upholds democratic legal principles

PROHIBITION OF COLLECTIVE EXPULSION OF ALIENS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The European Court of Human Rights (ECtHR) refers to the issues regarding aliens and migration on numerous occasions. These cases concern, inter alia: illegal migration, deprivation of liberty of illegal migrants, conditions of their detention, illegal migrant minors, unaccompanied migrant minors, etc. The analysis of these issues involves numerous rights and freedoms enshrined in the Convention. However, there are only three provisions of the European Convention on Human Rights (ECHR) that do focus explicitly on aliens. Those guarantees include Article 16 (prohibition of restricting the public activity of aliens) and Article 4 of Protocol No 4 to the ECHR (prohibition of collective expulsion of aliens) and Article 1 of Protocol No 7 to the ECHR (procedural guarantees regarding the expulsion of aliens). Despite very few explicit references to ‘aliens’ in the Convention, the judicial achievements of the ECtHR in this area are extremely extensive, actually incomparable to other international mechanisms for the protection of individual rights and freedoms. ECtHR has wide jurisprudence concerning Articles 2, 3, 5, 6, 8, 13 in this regard. Most of the issues concerning alleged violations of those provisions were subjected to analysis. However, the very provision which clearly focuses on the prohibition of collective expulsion of aliens is often omitted or treated as ‘secondary’ provision in this regard. The main aim of this article is to focus solely on Article 4 of Protocol No 4 to the ECHR and its role in the process of protecting the rights of aliens within the European Paradigm of their protection. The article will also seek to examine the current application of this provision.

Pemilu Tanpa Pelanggaran: Asas Netralitas Demi Mewujudkan ASN Berintegritas

Neutrality is a crucial aspect of elections that has an important role in ensuring that the election process is carried out fairly, transparently, and openly for all election participants. Neutral elections can also ensure that every voter's vote is counted accurately and provide equal opportunities for all participants to compete fairly in elections. Many demands were made by the community for the creation of civil servants who were neutral and did not side with anyone in practical politics. Field facts have proven that in the 2019 election alone there were 1536 alleged violations of the neutrality of civil servants with a division of 914 alleged violations in elections and around 1398 in regional elections. This article is prepared using a qualitative approach. Qualitative study method is a method that seeks to produce information in the form of records and data that are descriptive in research, In the data collection technique, this research uses literature studies or library research, namely by using primary sources in the form of reading materials such as books, journals, documents, official websites, and other literature. As a matter of comparison in the application of the principle of neutrality, regulations in Singapore have limited the relationship between civil servants and political officials aimed at minimizing violations of the Code of Conduct for Ministers of 2005.