Complex Legal Framework Research Articles

Emergence of Differential Social License: A Case of Impact and Benefit Agreements in Nunavut, Canada

Impact and Benefit Agreements (IBAs) are intended to be a negotiated agreement between an industrial proponent and a community, local or regional citizens’ organization. Although the elements have grown over the past two decades from a simple agreement to exceedingly complex legal frameworks, the intention remains the same: to outline the roles and responsibilities of the two stakeholders and the natural resource development on their lands beyond environmental assessment. These agreements were born out of comprehensive indigenous land claims and have become the cornerstone of community engagement today in most indigenous nations. In the case of mixed communities, those that have beneficiaries of land claims and those who are not, social acceptance remains uneven and reflective of an unequal distribution of decision-making power (political ecology). This Differential Social License can cause conflict and a breakdown of the societal fabric that binds communities of diverse populations, resulting in inequality, fictitious wealth generation and failure of infrastructure. This paper presents a case study of how the development of Differential Social License developed in the Hamlet of Cambridge Bay, Nunavut as a result of an IBA negotiated between Tahera Diamond Corp. and the Kitikmeot Inuit Organisation in 2004 for the Jericho Diamond Mine.

The Ñeta law, the Ñeta world: Ethics and imaginaries in circulation between the South Bronx, Barcelona and Guayaquil

The Asociación Los Ñetas was born in the prison system of Puerto Rico in the 1980s. Following different waves of immigration, the group circulated and developed in New York, Guayaquil (Ecuador) and Barcelona (Spain). Los Ñetas have put in place a complex internal legal framework with sets of rules and sanctions. The aim of this article is to understand how Ñeta law and state law interact. The main argument is that the dichotomization between the formal and the informal teaches us little about this interaction because it rests on a narrow definition of what constitutes law. Rather, one should emphasize how the Ñeta law constitutes an ethical framework.

WAYS OF IMPROVING EFFICIENCY OF PASSENGER COMPLEX OF UKRAINE

The importance of passenger transport in the economically developed society is the key topic of the article. Passenger transportation included the variety of modes of transport, place, role and geographical position and each of them depends on many factors. Maximum quality and meeting the demand of people in traffic mostly accompanied by rational and economic use of technology. Passengers considering the quality of transport services, choosing a mode of transport what finally forms transportation cost.Competition leads to better quality transport service for passengers and efficiency of all systems components. Conditions of transportation performance of cause to many complex problems, characterized by constant changes in traffic volumes, increased requirements for their implementation and in conducting energy conservation policy, compliance efficiency of fixed assets of transport and lack of depreciation assets. When objective and subjective difficulties of socio-economic importance are present, the demand of passenger transport to society is constantly increasing.The article disclose the ways of improving the efficiency of passenger transport by counting the Ukraine possible further improvement of complex government regulation and legal framework of the transportation system of passengers restructuring passenger transport management based on market economy principles and orientation of the system to the needs of the passenger. In addition, it is important to ensure maximum coordination of those integration of all elements of the transportation process each mode of transport, cooperation of all, to ensure the introduction of integrated transport systems authorized for passenger traffic. Providing high quality services to the population, combined with effective use of rolling stock can achieve rationalization organization of passenger transport schedules movement of vehicles on the basis of a compromise on service passengers, who recognized the comparison of costs, revenues and profit definition.

Can a “Lone wolf ” quasi-investigative journalist substitute low functionality of the law enforcement system?

The present article analyzes a relatively unusual case, in which a quasi-investigative journalist, working in an entirely independent capacity, succeeded in uncovering and foiling an international money laundering attempt. This extremely significant story reveals the existence of a complex legal framework for tackling money-laundering operations in the EU. In this particular instance, local police and prosecutors were unable to take action against the perpetrator of illegal activity, as the case did not fulfill conditions of local legislation. The present study thus draws attention to the weakness of anti-corruption and anti-money laundering legislation. It provides evidence that a non-affiliated journalist can also be a great asset to society, although the actual mostly low coverage of the case indicates a poor media understanding of the social implications of crime detection across both the Czech Republic and Slovakia.

The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?

Freedom of religion and the manifestation of religious belief can clash with working life in a number of ways, including time away from work for religious observance, conflicts over religious clothing and jewellery in an employer’s dress code or a request for a variation of duties based on a particular religious belief. Guidance issued by the Equality and Human Rights Commission (2013) following Eweida and others v. UK [2013] 57 EHRR 8 seems to suggest that employers in Great Britain should consider the ‘reasonable accommodation’ of religion in the workplace and, in particular, how an individual chooses to manifest that religious belief. Subsequently, there has been much debate about whether this is a better way of dealing with religious discrimination cases than the current complex legal framework of direct and indirect discrimination in the Equality Act 2010. Section 20 of the Equality Act 2010 already allows for reasonable adjustments to be made to working practices and the physical working environment for disabled employees. Should this duty be expanded to include religion and what would be the consequences and impact of such an accommodation or adjustment on the employment relationship?

The Structure of Local Groundwater Law for Sustainable Groundwater Policy in Japan

Groundwater is extremely important to all societies. It provides in many places a reliable and ample supply of water for home use, irrigation, and industry. Japanese groundwater policy consists of complex laws and rules. The law governing groundwater nationally is inadequate. The main controversy has been that a river law exists only at a national level, whereas groundwater law does not exist in the national law of Japan. When local government faces problems with groundwater, the policy makers have to solve the problem following their local rules. Each local government solves problems case by case. Local government is used to obeying local rules and old traditions. Local common law becomes the local groundwater rule. Groundwater policy has recently been progressively promoted to an evolution of the local groundwater ordinances for sustainable groundwater conservation. This paper describes the complex legal framework of the related local groundwater policy and regulations under Japanese law. This is a bibliographic survey of Japanese groundwater laws and local groundwater ordinances. It is used to analyze the functions of local autonomy and the role of ordinances and to explain its changing functionalities of groundwater ordinances. Local ordinances are known as the strongest conservation legal network for sustainable groundwater policy in Japan. This is the first paper to try to explain the basic principles of the Japanese groundwater law for an international journal.

The Human Rights of Indigenous Peoples and Forest-Dependent Communities in the Complex Legal Framework for REDD+

The Human Rights of Indigenous Peoples and Forest-Dependent Communities in the Complex Legal Framework for REDD+

Withdrawal of a Contracting Party from the ECHR: Is it Possible and What are the Legal Consequences?

The United Kingdom is faced with general elections in 2015. It is very likely for at least one of the political actors to propose a major reform to the British human rights law. The most radical of which, is the withdrawal from the ECHR. Yet, what are the legal implications from such a withdrawal? Is it legally possible? Could the UK renegotiate the terms on which it joined the ECHR? The purpose of this paper is to analyse those questions and look for possible answers. However, as it will be observed, from a legal point of view many of those answers remain blurred. This blurring effect is caused by the fact that the complex legal framework is also often dictated not only by legal considerations but also by the political and diplomatic reality as well.

Conflict and Cooperation in Cyberspace: The Challenge to National Security. Edited by Panayotis A. Yannakogeoros and Adam B. Lowther. Boca Raton, FL: Taylor and Francis Group, 2014.

Conflict and Cooperation in Cyberspace: The Challenge to National Security. Edited by Panayotis A. Yannakogeoros and Adam B. Lowther. Boca Raton, FL: Taylor and Francis Group, 2014. ISBN 978-1-4665-9201-8. Tables. Figures. Sources cited. Index. Pp. xxviii, 332.

Ethics and data protection in human biomarker studies in environmental health

Human biomarker studies in environmental health are essential tools to study the relationship between health and environment. They should ultimately contribute to a better understanding of environmentally induced adverse health effects and to appropriate preventive actions. To ensure the protection of the rights and dignity of study participants a complex legal and ethical framework is applied, consisting of several international directives, conventions, and guidelines, whether or not translated in domestic laws. Main characteristics of ethics and data protection in studies using biomarkers in the field of environmental health are summarized and current discussions on related questions and bottlenecks highlighted. In the current regulatory context, dominated by the protection of the individual study participant, difficulties are reported due to the different interpretation and implementation of the regulations of concern within and across borders. Advancement of consistency and compatibility is recommended and efforts are ongoing. An increasing demand for secondary use of data and samples poses additional challenges in finding a right balance between the individual rights of the study participants on the one hand and the common interest of, and potential benefit for the public or community at large on the other. Ethics committees could play a key role in assessing problems originating from the sometimes competing needs at individual and societal level. Building trust in science amongst (potential) study participants and within the community allows the inclusion of arguments from the societal perspective. This requires increased attention for respectful communication efforts. Striving for public participation in decision making processes may promote policy relevant research and the related translation of study results into action.

La gestion forestière communautaire comme source de revenus locaux : deux études de cas en Amazonie brésilienne

La gestion forestière communautaire (Gfc) apparaît comme une des voies permettant de protéger les forêts, tout en générant des revenus directs pour les petits propriétaires forestiers. Depuis le milieu des années 1990, les projets de ce type se multiplient en Amazonie brésilienne. Cependant, la plupart se heurtent à de nombreuses difficultés malgré des financements publics conséquents. Deux de ces projets, mis en oeuvre dans l'État du Pará (dans l'Est de l'Amazonie), ont fait l'objet d'analyses entre 2008 et 2010 qui visent à mettre en lumière les principaux obstacles s'opposant à leur viabilité financière sur le long terme et à déterminer les revenus de l'exploitation forestière réellement perçus par la communauté. Le premier obstacle majeur à la réussite des projets de gestion forestière communautaire est la lourdeur du processus réglementaire : il faut actuellement deux ans pour aboutir à l'approbation d'un plan de gestion. De plus, l'élaboration et la mise en oeuvre d'un tel plan de gestion est un processus onéreux. Aucun des plans de gestion analysés n'aurait réussi sans le soutien financier externe d'agences nationales ou internationales et sans assistance technique. D'autre part, dans le contexte actuel du marché amazonien, le bois n'apporte que des revenus directs limités pour les petits exploitants, alors même que leurs terres sont forestières à 80 %. L'accès aux marchés est très incertain et les groupes de petits exploitants ont beaucoup de mal à vendre leur bois à des prix rémunérateurs. Des garanties publiques assurant un prix rémunérateur minimum pour le bois issu de projets de gestion forestière communautaire, sont sans doute nécessaires pour qu'ils deviennent une source réelle de revenus pour les petits exploitants amazoniens.

Identifying the legal costs of operation of the Common European Sales Law

The EU Commission has proposed an optional Common European Sales Law (CESL) whose main purpose is the reduction of the legal costs of cross-border contracting. This paper outlines the Commission's view as to these current legal costs and how its proposal would reduce them, and then compares these with the likely costs of operation of the CESL. It identifies these likely costs as lying in the complex legal framework into which the CESL would be set; the relative uncertainty of the concepts used by the CESL and of its substantive scope; and the significance of national judicial evaluations required by the complex legal standards used by the CESL, of which the most prominent is 'good faith and fair dealing'. The paper concludes that a number of the costs which the Commission expects to be saved by use of the CESL are likely to find parallels in costs generated by its use and that, owing to its own characteristics, the CESL is likely to generate its own further and new legal costs.

Cloud Computing in Higher Education and Research Institutions and the USA Patriot Act

Institutions have started to move their data and ICT operations into the cloud. It is becoming clear that this is leading to a decrease of overview and control over government access to data for law enforcement and national security purposes. This report looks at the possibilities for the U.S. government to obtain access to information in the cloud from Dutch institutions on the basis of U.S. law and on the basis of Dutch law and international co-operation. It concludes that the U.S. legal state of affairs implies that the transition towards the cloud has important negative consequences for the possibility to manage information confidentiality, information security and the privacy of European end users in relation to foreign governments.The Patriot Act from 2001 has started to play a symbolic role in the public debate. It is one important element in a larger, complex and dynamic legal framework for access to data for law enforcement and national security purposes. In particular, the FISA Amendments Act provision for access to data of non-U.S. persons outside the U.S. enacted in 2008 deserves attention. The report describes this and other legal powers for the U.S. government to obtain data of non-U.S. persons located outside of the U.S. from cloud providers that fall under its jurisdiction. Such jurisdiction applies widely, namely to cloud services that conduct systematic business in the United States and is not dependent on the location where the data are stored, as is often assumed. For non-U.S. persons located outside of the U.S., constitutional protection is not applicable and the statutory safeguards are minimal.In the Netherlands and across the EU, government agencies have legal powers to obtain access to cloud data as well. These provisions can also be be used to assist the U.S. government, when it does not have jurisdiction for instance, but they must stay within the constitutional safeguards set by national constitutions, the European Convention on Human Rights and the EU Charter.UPDATE (11.06.13): Recent leaks around the PRISM surveillance program of the National Security Agency seem to support that these legal possibilities are used in practice on a large scale. Therefore, the authors have decided to publish a draft of their update paper on SSRN under the title 'Obscured by Clouds or How to Address Governmental Access to Cloud Data from Abroad'. The analysis is updated and it includes regulatory and policy solutions to the current legal reality.

Auditing government-nonprofit relations in the Brazilian post-reformist context

Abstract Recent decades have been marked by a rising interaction between the State and nonprofits in order to address increasingly complex public issues. Government-nonprofit relations were guided by a complex and diverse legal framework, that transformed not only the implementation of public policies, but also the auditing practices and control of such relations. Previous studies have shown the influence of NPM reforms in auditing practices and institutions, of particular interest to this research is the Theory of the Audit Explosion (TEA). This paper analyzes the control of government-nonprofits relations, under the perspective of the TEA, specifically trying to comprehend if there is a causal relationship between the growth of government-nonprofit relations and the audit explosion in the Brazilian context, as predicted by the theory. A field research, based on documentary data and interviews, was undertaken in three Brazilian SAIs. The conclusions highlight the limitations of the explanatory capacity of TEA in Brazil. Although a formal

A Model-Driven CASE tool for developing and verifying regulated open MAS

This paper describes a CASE tool for developing complex systems in which heterogeneous and autonomous agents may need to coexist in a complex social and legal framework. Model-Driven Technologies are used to integrate the design of systems of this kind with the verification of the models and with the generation of executable code from these models. The verification module is based on model-checking techniques to check the coherence of a modeled legal context at design time is presented and it is exemplified with a case study.

The Chad-Cameroon Pipeline Project--Assessing the World Bank's Failed Experiment to Direct Oil Revenues towards the Poor

The World Bank's engagement with projects involving extractive industries has not proven particularly successful. Especially in Sub-Saharan Africa, it has actually often made matters worse. Borrower countries' economies failed to grow, and corruption increased; the poor did not benefit from the revenues that were generated. This paper assesses the complex legal and institutional framework of the World Bank project that many hoped would change this bleak record: in the highly publicized and controversial Chad-Cameroon Pipeline Project, the Bank catalyzed the largest private investment in the history of Sub-Saharan Africa. This model project featured new and untested contractual, statutory, institutional and fiscal mechanisms which were intended to make Chad's oil revenues transparent and compel the Government of Chad—one of the world's poorest—to expend its oil revenues on areas consistent with the project's agreed poverty reduction objective, such as education and health. Despite these heroic measures, in 2008 the revenue allocation program collapsed, and the Bank's projects in Chad terminated prematurely. Not for the first time, the government of Chad had unilaterally altered the underlying laws to enable more security and military spending. Yet again, the poor had not profited from the oil revenues. We analyse in this paper whether the Bank's failure in the Chad-Cameroon Pipeline Project was due to specific errors in the framework of contracts, laws and institutional structures the Bank deployed—errors which could, in theory, be taken as lessons for a future project making use of an improved revenue allocation system—or whether generally the Bank's entire concept of contractually imposing a revenue allocation system is flawed, such that any attempt to revive such a system on another occasion is misguided and futile.

Comprehensive Review of the Maritime Safety Regimes: Present Status and Recommendations for Improvements

This article presents a comprehensive review of the maritime safety regimes and provides recommendations on how to improve the system. The results show a complex legal framework which generates a high amount of inspections and overlapping of inspection areas where no cross‐recognition is established by the various stakeholders. While the safety system seems to be successful in eliminating substandard vessels and while average insurance claims costs are substantially lower for inspected vessels than non‐inspected vessels, the results indicate that the economic conditions of the shipping market also have an effect on safety quality besides the frequency of inspections. No significant differences can be found between industry inspections and port state control inspections with respect to decreasing the probability of casualty. The system could be made more effective by combining data sources on inspections and using them respectively to improve risk profiling and to decrease the frequency of inspections performed on ship types such as tankers. The results further indicate a lack of proper implementation of the International Safety Management Code (ISM code) and conventions with reference to working and living conditions of crew (ILO 147). A revision of the ISM code and more emphasis on enforcement of ILO 147 could further enhance the level of safety at sea. The authors would like to thank several inspection regimes for their cooperation in providing inspection data and in allowing the observation of surveys and inspections on 26 vessels. In addition, the authors would like to acknowledge the data providers for the casualty data, Clarksons for the economic data as well as two P&I Clubs in making data on insurance claims available.

The European Company (SE): Practical Failure or Model for Other Supranational Company Types?

Since 2004, European undertakings have had the possibility to opt for a supranational type of company: The “European Company” or “Societas Europaea” (SE). A considerable – though overall not huge – number of enterprises have already availed themselves of this new opportunity, including, inter alia, famous names like the German industry giants Allianz SE, BASF SE, and Porsche Automobil Holding SE or the French reinsurer SCOR SE. The paper will first provide an overview of the salient features of this new supranational “European” type of company. The primary focus will be on the most important advantages (e.g., cross-border transfer of seat and restructuring, flexibility with respect to internal structure, “European corporate identity”) and disadvantages (e.g., rather complex legal framework, no special tax provisions) of using this supranational corporate vehicle, both from a legal and an economic point of view and illustrating the respective aspects by way of examples from the practical experience gained with the SE so far. Based on this, the paper will then examine whether the SE has really turned out to be the “practical failure” that many predicted or whether it could actually serve as a model for other supranational company types ? not only on the European level, but also on a wider international or even global level, especially for Asian countries as well.

Medical marijuana and the developing role of the pharmacist

The pharmacology, therapeutic uses, safety, drug-drug interactions, and drug-disease interactions of medical marijuana are reviewed, and the legal issues related to its use and the implications of medical marijuana for the pharmacist are presented. Marijuana contains more than 460 active chemicals and over 60 unique cannabinoids. The legal landscape surrounding marijuana is surprisingly complex and unsettled. In the United States, 11 states and several municipalities have legalized medical marijuana. Another state provides legislation that allows patients to claim a defense of medical necessity. Nevertheless, patients using medical marijuana may never interact with a pharmacist. Marijuana is a Schedule I controlled substance and its use is illegal under federal law. Marijuana has a number of purported therapeutic uses with a broad range of supporting evidence. There are five general indications for medical marijuana: (1) severe nausea and vomiting associated with cancer chemotherapy or other causes, (2) weight loss associated with debilitating illnesses, including HIV infection and cancer, (3) spasticity secondary to neurologic diseases, such as multiple sclerosis, (4) pain syndromes, and (5) other uses, such as for glaucoma. Marijuana is associated with adverse psychiatric, cardiovascular, respiratory, and immunologic events. Moreover, marijuana may interact with a number of prescription drugs and concomitant disease states. Several states have legalized the use of marijuana for chronic and debilitating medication conditions. Pharmacists need to understand the complex legal framework surrounding this issue so that they can protect themselves and better serve their patients.

Public health law and disaster medicine: Understanding the legal environment

Disaster medicine specialists, policy makers, and the public often feel frustrated when they encounter the complex legal framework that surrounds public health emergencies and disasters. Such a framework is particularly difficult to understand when one considers that the federal government has no express powers over public health or disaster management. In fact, under the US Constitution, the states, rather than the federal government, possess public health governance. Although public health sovereignty formally resides within the states, and notwithstanding the federal government's lack of express constitutional powers over public health crises and disaster management, the federal government has gradually taken on a greater leadership role in managing public health emergencies. In order to clarify the state and federal responsibilities surrounding public health emergencies and disasters, this article explores necessary and pertinent legal topics. These topics include public health duties, public health disasters, state sovereignty, governmental coercion, de facto constitutional empowerment, separation of powers, limited powers, federalism, state police powers, general and federal declarations of emergencies, the Model State Emergency Health Powers Act (MSEHPA), and public health and national security.