Customary Right Research Articles

Coffee Management Intensification Has Changed the Tradition of Coffee Forest Use in Southwest Ethiopia

The coffee production system has changed the notion of a forest common resources pool in southwest Ethiopia. It is weakening the customary right on forest through time. The objective of the study was to explore forest resources use in relation to coffee management intensity in southwest Ethiopia. The effect of coffee management intensification was narrated based on the nature of accessing forest resources, local control system, level of forest dependency, and nontimber forest products usage through time. Qualitative data were collected through an interview and walk-in-the-woods. It is worth mentioning that an age-old customary right is devolved, and a modified forest management arrangement is emerging along with the coffee production system. The result showed that coffee agroforest drives the use of forest resources in southwest Ethiopia. Coffee production is replacing the tradition of forest management for nontimber forest products. Collection of nontimber forest products is overwhelmed with coffee harvesting. Honey production area (i.e., Luggoo) has been changed to coffee plot. Only coffee owners hold the right to access coffee agroforest. Individual decisions are bypassing the social arrangement of forest resources usage. The nature and level of forest dependency have been changed along with the intensification of coffee management. In contrary to what most people believe, the study findings showed that better-off households are more forest dependent compared to poor households due to coffee production. The storyline depicts the need for taking into account coffee agroforest in sustainable forest management. The study suggests to revisit the notion of recognizing traditional forest resource usage brings sustainable forest management.

Is the Establishment of Air Defence Identification Zones Outside National Airspace in Accordance with International Law?

Abstract Whereas the right of a state to establish an air defence identification zone (ADIZ) in national airspace falls squarely within its sovereignty, the question whether coastal states may claim such zones outside national airspace remains a matter of controversy. The latter category, referred to as ‘offshore ADIZs’, usually do not amount to sovereignty claims over the open airspace outside national airspace or involve threat or use of force. The right of coastal states to identify aircraft in the open airspace near coastal areas has arguably become part of customary international law. This customary right, however, only extends to ‘passive identification’ by radar detection, radio communication or close visual checks, which thus is only capable of justifying the establishment of offshore ADIZs for this purpose. The identification of aircraft in offshore ADIZs, through either voluntary or passive measures, is nevertheless within the parameters of the obligation of paying due regard to the freedom of overflight. This explains why ‘passive identification’ is ‘permissible’ under customary international law, while ‘voluntary identification’ is at least ‘tolerated’ albeit in the absence of a permissive customary rule.

State Responsibility for Protracted Displacement: An International Legal Approach to Durable Solutions

Abstract Since the Second World War, displacement has become increasingly protracted and return is in decline. Despite calls for greater international responsibility sharing, many displaced people are subject to a legal limbo, lacking recognition and reparation in international law. This article seeks to establish the legal contours of protracted displacement as an internationally wrongful act that can engage the responsibility of States of origin and result in redress for those displaced. The article argues that there is evidence of a customary international law right of return, which requires States to facilitate voluntary repatriation and provide restitution. Facilitation includes refraining from preventing or obstructing return, suppressing acts of retribution or discrimination, and addressing root causes of displacement. Restitution includes property restitution, compensation for material and moral damages as well as reintegration and reconciliation measures, and offering effective models for return. The article concludes that the progressive development and codification of the law on forced displacement should address temporality, the qualities of return, and the alleviation of extant crises.

Customary Right On The Sea By International Law Of The Sea Perspective Related To The Law Number 5 OF 1960

There are group of communities which still applied the customary law that has an impact to the emerge of the right which is the form consequence of the appliance of customary law, named customary right. The order of customary law ruled that land is handed over by the manager and its use to each of the existing tribes. This custom has been hereditary for a long time. Law Number 5 of 1960 concerning Regulations of Agraria states that the state basically provides protection for the embodiment of customary rights and rights which are similar to the customary rights of customary law communities, as long as in practice there are still conditions for the implementation of these rights. Conception of customary rights as applied in land areas is basically also known by international law of the sea in terms of traditional fisheries rights. However, UNCLOS 1982 on this case does not regulate specifically about the rights of the customary rights on the sea but only regulates the position of the community especially the fishing community to contribute with the government in the management and use of the sea on its territory. This research is juridical normative research that uses a statute approach and conceptual approach. This study aims to find out how the enforcement of customary rights on the sea area through the perspective of international law of the sea considering the sea area is an area whose boundaries must be agreed upon by countries under international law instruments.

Land Grabbing and Customary Land Rights in Uganda: A Critical Reflection of the Constitutional and Legislative Right to Land

Abstract Despite the constitutional and legislative guarantee to land in Uganda, customary land tenure seems to suffer from inadequate legal protection, a situation that is analogous to that in the colonial and the immediate post-independence era. This article critically examines the normative content of the constitutional and legislative right to land in Uganda and argues that the customary land right is not adequately protected as the other categories of land tenure, in which land is owned and legally recognised in Uganda. It also serves to illustrate that the inadequate protection of customary land rights is analogous to the situation in the colonial and immediate post-independence era, and that weak customary land rights could be susceptible to the occupants’ deprivation during land grabbing. There is a need to address this situation in order to holistically ensure and promote an effective land governance regime that respects and protect customary land tenure.

ANALISA HUKUM PERALIHAN HAK TANAH ULAYAT KAUM YANG BELUM DIDAFTARKAN DI KABUPATEN DHARMASRAYA

Ulayat land has a social function passed down from ancestors. Tanah Ulayat is a customary community right that cannot be transferred to outsiders, in the Minangkabau kinship system, it is only used for 4 things: gadang girly house, dead body lying in the middle of the house, unmarried girls, upholding the heirloom title. However, at the moment there are a lot of transfers of customary land rights, both sale and purchase. The research uses an empirical juridical approach. The data used are primary data obtained by interview and secondary data obtained through literature study. The results of research into the existence of the transfer of rights to customary land that have not been registered are increasingly high, namely in the form of buying and selling, which has an impact on the social function of customary land has been lost. The practice of buying and selling communal land for people in Koto Baru in the Dharmasraya Regency consists of buying and selling a plot of land and buying and selling a plot of land followed by a customary land grant. Collective Rights on customary land will change to individual rights if there is a transfer of rights to the communal land. This will result in ulayat land which will become private / individual land that will automatically cause harm to the people themselves. Customary philosophical values will fade both high pusako property and low pusako property. And no longer subject to the provisions of customary law.

The expansion and existence of the indigenous rights of sea in indigenous villages (review of the customary right of coastal and marine areas of Halong state)

PurposeTo know the control of Halong State against coastal and marine areas in the area that has been divided into Latta village and Lateri urban villages.Design/methodology/approachThis type of writing of research is in the field of law, so the research method used is juridical normative, by using the approach of legislation and conceptual approach, intending to answer the temporary problem issues encountered.FindingsArticle 18B paragraph (2) of the 1945 Constitution of the State of the Republic of Indonesia is the constitutional basis of the state's recognition of the unity of indigenous and tribal peoples based on their traditional rights. One of the rights of customary law community is the control over its territory, which is called indigenous rights for both land and coastal and sea. In its development, there are some areas of indigenous village released for villages' formation or villages in coastal and marine areas. However, the expansion of indigenous villages did not affect the loss of customary village tenure to the Indigenous rights of coastal and marine areas in the area of a village or urban village which was expanded from a custom village.Originality/valueRelated to this Halong State in Ambon City is one of the indigenous villages which occupies the area within the bay of Ambon Island which has the right of customary law community area in the land area, and has a sea fishing territory. In its development, part of Halong State has been divided into a village and urban village, namely Lata Village and Lateri Urban Village. Latta village and Lateri village are also located in the coastal area of Ambon Bay. The problem that arises from the division is whether the coastal areas and the sea in Latta and Lateri villages remain part of the Halong state territory or not.

Political Law of Sidawangi Society towards Customary Rights Over Oro-Oro Land

The study concerning political law of Sidawangi society towards customary right over “Oro-Oro” land is commonly triggered by the presence of the arbitrary village officers. Historically, “Oro-Oro” land is characterised as a communal land, but its management is initiated exclusively through an agreement and doubtful rights. The legal law concerning customary right over “Oro-Oro” land is truly expected by Sidawangi society. The action of arbitrary village officers is deemed to be one of crucial factors to realise their expectation.Furthermore, the rumour of switching “Oro-Oro” land into plantation land by the corporation also toughens the strong desire of Sidawangi society to realize their expectation. The present study aims to investigate the significance of legal law and the warranty of customary rights both in the 1945 Constitution, agrarian law and international conventions. This study is conducted through an interview to Sidawangi society and literature studies regarding customary right over “Oro-Oro” land as expected by Sidawangi society. Customary right over “Oro-Oro” land, initiated by Sidawangi Society in Sumber Sub-District, originally refers to a communal area which has been exclusively possessed. In other words, this type of land is not privately preserved. The people in Sidawangi society are only allowed to maintain and gather the result. The arbitrary of village officers seize trees in “Oro-Oro” land without any kinds of certain customary right. The phenomenon in Lampung has provided insight regarding the conflict occurs when the people expect is not fulfilled. The residents inevitably expect the existence of political law in society towards customary land. The legal protection towards customary right over “Oro-Oro” land is essentially guaranteed by 1945 constitution, Basic Agrarian Law Constitution, and international convention of indigenous community.

1111 and Canon Law in Rome

1111 and Canon Law in Rome Uta-Renate Blumenthal With the Concordat of Worms of September 1122 the bitter struggle between the reformed papacy and the Empire over investiture of ecclesiastics with ring and crozier came practically to an end.1 To be sure, it was a compromise as Robert Benson phrased it,2 but it endured despite occasional attempts from either the papal or the imperial side to introduce advantageous changes. Ernst Bernheim showed in a detailed textual analysis that the agreements exchanged in 1122 at Worms were based on the records of two earlier attempts to settle the burning issues that destroyed the traditional harmony of regnum and sacerdotium: the negotiations in February and April 1111 in Rome and of 1119 at Mouzon.3 This paper will focus on the first set of these, since [End Page 157] they form an often neglected but illuminating aspect of the background to the Concordat of Worms. In August 1110 King Henry V set out for Rome for his imperial coronation, accompanied by an unusually large army.4 Henry's chancellor, Archbishop Adalbert of Mainz, and lay magnates were sent by the king from Aquapendente as emissaries to Rome. They met in February 1111 with representatives of Paschal II, chief among them Petrus Leonis (Pierleone). The delegations negotiated in the church of Santa Maria in Turri, a part of the complex of the basilica of St. Peter's. The location was not chosen by accident as this paper will show, for nearby were three bronze portals leading into the basilica inscribed with the names of the possessions of St. Peter's, its patrimonium.5 On February 4 the imperial party presented Henry's promise, a document to be exchanged with Paschal during Henry's coronation as emperor, envisioned for February 12. 'Rex scripto refutabit omnem investituram omnium ecclesiarum in manu domni pape … in die coronationis sue … Et postquam domnus papa fecerit de regalibus sicut in alia carta scriptum est …'. read the most significant sentences in the [End Page 158] imperial document,6 supported by oaths there and then, and by an oath on behalf of Henry V on February 9 at Sutri.7 The alia carta is Paschal's promise, as first formulated on his behalf by Petrus Leonis on February 4 at S. Maria, and repeated in similar but briefer form in Paschal's Privilegium primae conventionis intended for Henry's imperial coronation.8 This 'other document' to be granted in exchange for the long wished-for renunciation of investiture by Henry V contained an order to the bishops present at the coronation to return the regalia to the king and to the kingdom, with the famous definition of what constituted the regalia:9 Civitates, ducatus, marchias, comitatus, monetae, teloneum, mercatum advocatias regni, iura centurionum et curtes quae [manifeste] regni errant, cum pertinentiis suis, militiam et castra [regni]. On the day of the planned coronation, February 12, these documents were to be exchanged by the two parties. But what should have been a highpoint of Paschal's reign, Henry's renunciation of investiture, turned into a 'dramatic … fiasco'.10 Violent opposition to Paschal's proposal prevented the coronation, and by nightfall the pope and almost all cardinals—including Cardinal Gregory of S. Grisogono, author of the canonical collection Polycarpus11—were captured and imprisoned by the king and his army.12 After two months of [End Page 159] captivity Paschal II abandoned the fight for the liberty of the church as formulated during the Gregorian reform. At Ponte Mammolo on April 11 he granted Henry V the imperial crown and the customary right of investiture, in a privilege that was known almost immediately as the Pravilegium and could have meant the end of Paschal's pontificate if not calmer voices like that of Ivo of Chartres had prevailed.13 'It is hardly possible to imagine the consequences the planned action [regarding the regalia] would have had for the government and for the economy', concluded Tellenbach.14 Fried emphasized that the regalia that were to be returned, 'Herrschaftsrechte, Gerechtsame und Grundbesitz', constituted the essential parts of the regnum, the kingdom, and stood in contrast to everything that did not pertain to...

The Variety of Legal Traditions in the Judicial Practice of Yekaterinoslav Region in the last quarter of the 19th century

The article is devoted to the description of regional features of the judicial system of Yekaterinoslav province (1783–1796) and Novorossiysk province (1796–1802). The source of the study consists of two groups of materials. The first group is the documents of the highest judicial and administrative institutions of the province. The second group is represented by the county level of judicial institutions. On the basis of the analysis carried out, separate territories of the mentioned administrative-territorial units, which had legal specifics, were singled out. The first region is the lands of the former Hetmanate, which in the form of Kremenchuk, Poltava districts became part of the governorship in 1783. According to the decree of 1777, the use of the norms of "Little Russian law" was allowed here which was based on the Lithuanian Statute of 1588 and the Magdeburg Law. The documents are often instructed specifically on these legal documents; use of their special terminology; subordination of their norms with the customary right of Ukrainians of these territories. The second region are the northeastern provinces of the governorate (in 1783 Bakhmut, Sloviansk, Donetsk) which bordered on Slobidska Ukraine and the lands of the Don troops. The peculiarity of the cases from this corner of the governorship is the appeal exclusively to the Russian imperial legislation. Since the landowners involved the Don Cossacks to land conflicts there these clashes were more aggressive, court proceedings were more complicated. Also, the settlements which were inhabited by the Dons were distinguished by other principles of organization of social life, have specific family relations, which was reflected in the types of crimes. During the period of the existence of the Novorossiysk province (1796–1802), its provincial institutions were audits for cases sent from the Crimea. Immediately in 1783–1784, in order to stabilize the situation, the division into six kaimancies (provinces), which were divided into cadillics (counties), continued to operate there. They were judged, respectively, by the Caimakans and the Kadia. Criminal cases were considered at the courts of the imperial standard, and then they were sent to the Revolutionary Courts of Novorossiysk. Here we note the lack of understanding from the side of Russian bureaucracy of local traditions. The customs of marriage-family, inheritance law have often been ignored by general courts. It is concluded that the named administrative-territorial units in their size could not be a homogeneous field of implementation of the 1775 reform. The polyethnic composition of the population, the local traditions power could not be ignored until then and was forced to consider them in the organization of the judicial system and legal proceedings.

Case Study on the prescriptive acquisition of a customary real right of graveyard : Supreme Court en banc Decision 2013Da17292 Decided January 19, 2017

Case Study on the prescriptive acquisition of a customary real right of graveyard : Supreme Court en banc Decision 2013Da17292 Decided January 19, 2017

Implications of the Application of the 'Hot Pursuit' Principle in the Cyberspace: An Analysis of the Case 'Microsoft v. United States of America'

The hot pursuit principle is defined as the right of a nation-state to pursue and seize a non-national vessel suspected of having committed a crime within the nation-state's internal waters and territorial sea and arrest it on the high sea (Churchill & Lowe, 1999). The hot pursuit allows a nation-state to enforce its laws and regulations against non-national ships that flee onto the high seas where the nation-state lacks jurisdiction (Reuland, 1993). Pursuit must be continuous and it must end as soon as the chased ship enters into the territorial sea of its own nation-state or a third nation-state’s (Churchill & Lowe, 1999). The hot pursuit is officially recognized by the Convention on the Law of the Sea (UNCLOS) from 1982. In December 2013, a New York district Court judge issued a warrant requesting Microsoft to produce emails and private information associated to particular accounts hosted by Microsoft. The data was storage on a Hotmail server located in Ireland and was related to a drug trafficking investigation (HLR, 2015; Scott, 2014). According to the U.S. Department of Justice (DoJ), the U.S. government has the right to demand the emails of anyone in the world as long as the email provider has headquarters within U.S. borders (Thielman, 2015). Microsoft refused to deliver the names and accounts of the server stored in Ireland arguing that a U.S. Court has no jurisdiction over information stored out of U.S. territory. Similarly, the Irish government supported the Microsoft opinion and claimed that U.S. Courts do not have sovereignty to issue search warrants to be executed abroad (Goldman, 2016). Using the Microsoft case, this paper intends to analyze the implications of applying the “hot pursuit” principle into the cyber domain. For this purpose, the analysis will be centralized in the arguments and allegations of the involved parties by using the codification software Atlas-Ti. The research design will follow an inductive approach and will focus in the arguments about why one nation-state’s sovereignty should be applicable or not beyond the borders of its own territory. This proposal is important because it presents a concrete opportunity to study a long-time-suggested academic proposal of applying some of the elements of the law of the sea into the cyberspace. At this point existent studies focus in: a) applying the categories included in UNCLOS as part of a national security policy over the Internet packets, b) applying anti-piracy rules in case of copyright infringement and c) protecting the under-sea cables (Kalpokienė & Kalpokas, 2012; Sechrist, 2010; Steven, 2001). References Churchill, R. R., & Lowe, A. V. (1999). The Law of the Sea. Manchester University Press. Goldman, D. (2016). Microsoft is fighting the DOJ too. Retrieved March 31, 2016, from http://money.cnn.com/2016/02/23/technology/microsoft-ireland-case/ HLR. (2015). In re warrant to search a certain email account controlled & maintained by Microsoft Corp. Harvard Law Review, 128(3), 1019 – 1026. Kalpokienė, J., & Kalpokas, I. (2012). Hostes Humani Generis: Cyberspace, the Sea, and Sovereign Control. Baltic Journal of Law & Politics, 5(2), 132–163. Retrieved from http://www.degruyter.com/view/j/bjlp.2012.5.issue-2/v10076-012-0014-y/v10076-012-0014-y.xml?format=INT Reuland, R. C. (1993). The customary right of hot pursuit onto the high seas : annotations to article 111 of the Law of the Sea Convention. Virginia Journal of International Law. -. Scott, M. (2014, December 24). Ireland Lends Support to Microsoft in Email Privacy Case. The New York Times. New York, New York, USA. Retrieved from http://bits.blogs.nytimes.com/2014/12/24/ireland-lends-support-to-microsoft-in-email-privacy-case/?_r=0 Sechrist, M. (2010). Cyberspace in Deep Water: Protecting Undersea Communications Cables By Creating an International Public-Private Partnership. Harvard - Belfer Center for Science and International Affairs. Retrieved from http://belfercenter.ksg.harvard.edu/publication/20710/cyberspace_in_deep_water.html?breadcrumb=%2Fexperts%2F2223%2Fmichael_sechrist Steven, B. (2001). Innocent Packets? Applying navigational regimes from the Law of the Sea Convention by analogy to the realm of the cyberspace. Naval Law Review, 48, 56–83. Retrieved from http://unclosdebate.org/evidence/1115/unclos-provisions-transit-passage-provide-good-model-international-agreements Thielman, S. (2015). Microsoft case: DoJ says it can demand every email from any US-based provider. Retrieved March 31, 2016, from http://www.theguardian.com/technology/2015/sep/09/microsoft-court-case-hotmail-ireland-search-warrant

The Plight of Safai/Sanitation Workers in Pune City: Issues and Challenges

Over the last two decades, the informal sector in India immensely leads to the infringement of the labour laws and social security measures for workers which enacted by the Constitution of India. While social scientists argued the forces of globalization in the Indian context could create adverse condition to the informal labour for driving the informalization of labour process which got affected peoples' employment, livelihood and incomes. This article is based on my doctoral work in 2012. In using the ethnographic method, the present article attempted to explore increasing plight of the caste based scavenging/sanitation/Safai labour and labourers in the informal employment in Pune. To understand the changing forms of labour activities over a decade in sanitation and conservancy departments of Pune Municipal Corporation (PMC) in regulating enforcement of the contractual system and mechanization of the scavenging labour process, this study intends to draw the case studies of contract workers across informal employment such as crematorium operators, garbage collectors, toilet cleaners and street sweepers. In this respect, the study attempts to employ the framework of ‘Dirty Work’ in relation to the stigmatized scavenging occupations which emerged from previous occupational studies. The study has been argued that how so called the ascribed customary right of scavenging castes are trapped their future generation in the vicious cycle of poverty and social exclusion. The increasing informalization of sanitation work in Pune has reproduced perceptible forms of precarious worksites in sanitation and conservancy work in Pune and thereby a rise of ingrained stigma and occupational hazard and risk. In conclusion, the discourse of dirty work helped us to derive miseries of sanitation/safai labour and labourers from the marginal worksites. The process of informalization of labour has caused to deprive the livelihood of workers and also pushed them to the fringe of society. As far as the youth generations of sanitary workers are concerned, most of them by their castes belonging to Dalits and Scheduled Castes are continued monopolizing in traditional caste based contractual scavenging employment in order to secure the job security and to get rid of inevitable exclusion.

Kontestasi antar orang asli Papua terhadap hak pertuanan di Kaimana

This article is addressed to describe the social relations within the Papuan ethnic groups and between Papua native and migrants concerning some customary rights in Kaimana district. This research describes the struggle of inland and beach tribes in fighting for customary rights of land in Kaimana. Moreover, it captures the respond of migrants in dealing with the customary right. This study shows the recognition of the the eldest ethnic in Kaimana is a strategy and discourse constructed by Papua ethnic groups that have felt marginalized while migrants have taken their resources. This right could be understood as the need for recognition of Papua ethnic groups. The most important issue is not who the native of Kaimana is, but what the proper ways to give recognition to Papua ethnic groups which had been left behind in development are. The relation between the Papua natives and migrants in Kaimana is not complicated as the migrants have no privileges in the political contestation. However, these relationship are affected by the differences in religious affiliations. The Muslim Papua ethnic groups generally have a closer relationship with the Muslim migrants. The analytical framework of this study using the theoretical framework of identity and ethnicity to look at the issue. Does the definition of identity and ethnicity according to sociological theories are still relevant to understanding the issue of claims of ethnic identity in the city of Kaimana.

Kontestasi antar orang asli Papua terhadap hak pertuanan di Kaimana

This article is addressed to describe the social relations within the Papuan ethnic groups and between Papua native and migrants concerning some customary rights in Kaimana district. This research describes the struggle of inland and beach tribes in fighting for customary rights of land in Kaimana. Moreover, it captures the respond of migrants in dealing with the customary right. This study shows the recognition of the the eldest ethnic in Kaimana is a strategy and discourse constructed by Papua ethnic groups that have felt marginalized while migrants have taken their resources. This right could be understood as the need for recognition of Papua ethnic groups. The most important issue is not who the native of Kaimana is, but what the proper ways to give recognition to Papua ethnic groups which had been left behind in development are. The relation between the Papua natives and migrants in Kaimana is not complicated as the migrants have no privileges in the political contestation. However, these relationship are affected by the differences in religious affiliations. The Muslim Papua ethnic groups generally have a closer relationship with the Muslim migrants. The analytical framework of this study using the theoretical framework of identity and ethnicity to look at the issue. Does the definition of identity and ethnicity according to sociological theories are still relevant to understanding the issue of claims of ethnic identity in the city of Kaimana.

PENGAKUAN HUKUM TERHADAP HAK ULAYAT MASYARAKAT HUKUM ADAT

Recognition of the existence of customary rights by Article 3 of the Basic Agrarian Law is a natural thing, because along with the customary rights of indigenous communities have existed before the formation of the state of Republic Indonesia. However, many cases of communal land which arise in the regional and national scale, will never obtain settlement completely without any objective criteria necessary as a benchmark determinants of the existence of customary rights and their implementation. Criteria for deciding about the existence of customary rights is composed of three elements, namely the existence of a particular customary law community, the presence of certain customary rights into the environment and the purpose of taking the lives of indigenous people, and the existence of customary law regarding the maintenance of order, control and use lands which apply and be adhered to by the indigenous peoples. Metode of reserach is juridis normative. The results of reaserach shows that there is no regulatory of customary right, and the rule is still from the society. The rule of customary right can be gap to customary rights, in fact lowest.Kata Kunci : Pengakuan hukum, Hak ulayat Masyarakat Hukum Adat

Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for those Seeking to Access Surrogate International Human Rights Protection

Both geographic and normative constraints restrict access to surrogate international human rights protection for those seeking a haven from serious human rights abuses. Primary among territorial restrictions has been the fall-out from the US Supreme Court's decision in Sale v. Haitian Council Centers in which the court explicitly ruled that nothing in US statutory law, or in the 1951 Convention on Refugees or its 1967 Protocol, precluded the interdiction of Haitian refugees in international waters and their return to the country of origin without an effective interview on their protection clams. This ruling is in transparent contradiction to the general international law norm of non-refoulement according to modern scholarship and emerging case law. This paper concludes that Sale should be overturned by statute as should related pre-screening practices. A new standard of “jurisdiction” should be adopted which does not depend on territorial access to a signatory state but on whether the state is exercising power in fact. Similar concerns exist with respect to safe third country agreements which often offend the international customary right of the asylum seeker to choose where his or her claim will be filed. This paper argues that the right of choice should be recognized and onward travel and admission to the country of destination allowed. This result is especially called for where return of the alien by the country of first contact raises serious concerns under the law of non-refoulement. Imbalances noted in this paper include those generated by the new terrorism related grounds of inadmissibility in the United States and the summary denial of children's asylum claims flowing from gang violence. Other questions are raised in this paper concerning work authorization and detention of asylum seekers. Access to an employment authorization document for those filing colorable claims should be recognized by statute to render US practice consistent with that of most other states. Release from detention, on the other hand, for asylum seekers has now been broadly recognized by the US Department of Homeland Security where the asylum seeker's identity can be ascertained and the claim is non-frivolous in nature. This approach is largely consistent with international law, although there have been unnecessary delays in implementing it. On the substantive law, the international customary norm of non-refoulment has been expanded considerably through the development of opinio juris by scholars and the practice of states. This paper traces efforts in Europe to develop a law of temporary refuge for those fleeing civil war situations characterized by humanitarian law violations. Similarly, case law under the European Convention of Human Rights has now come to focus on the harm the claimant would suffer as the result of conditions in the country of origin without identifying an explicit agent of serious harm. Related to these developments has been the notion of complementary protection under which relief can be conferred where the alien would suffer serious harm upon return to the home state but not for a Convention reason. These approaches have now received approval in the European Union Asylum Qualification Directive so that international protection may now be conferred either because the alien would suffer serious harm on account of the intensity of human rights violations taking place in the country of origin, or those conditions, taken in conjunction with the claimant's personal situation, support a finding that the claimant would be impacted. This paper argues that this latter standard has now been made a part of the customary norm of non-refoulement and that it should be recognized by statute as a basis for non-return and coupled with status where the new standard can be met. Such a measure would help restore the nation's commitment to human rights and humanitarian concerns.

Allemansrätten in Sweden: A Resistant Custom

By studying parliamentary proposals, debates, and reports as well as governmental inquiries and proposals from the first half of the twentieth century, the authors analyse the status of the allemansrätt – ‘every man’s right’ to public access - in Sweden. The founding principles of this use-right have been generally accepted since the late nineteenth century, but for almost as long there has been a feeling that it has been used (and abused) for commercial as well as personal interest, first by ‘for-profit’ berry harvesters and later on by tourist companies. These uses have been questioned by a minority of conservative and (to a less extent) liberal landowners, who have tried to limit the right of public access to private land by addressing the issue in the parliament. At the same time, a political majority of socialists, liberals, and conservatives has defended the right from being either limited or regulated by law. This resistance is explained by the economic characteristics of the resources at stake, and by the difficulties associated with transferring a customary right into law, i.e. an informal institution to a formal institution.

Fictitious States, Effective Control, and the Use of Force Against Non-State Actors

This Article examines how states respond to violent non-state actors operating from “fictitious” states. Fictitious states possess international legal personality but they lack effective control over their territories and populations. Examples of fictitious states include Pakistan, Yemen, and Somalia. These entities are not states that “failed” but territories where the paradigm of traditional statehood is inapplicable.In contrast to much of the literature analyzing the use of force vis-a-vis contemporary threats, this Article contends that the global security problem posed by fictitious states is more fundamental than that posed by terrorism or failed states. The modern threat emanating from fictitious states is most vividly illustrated by Al Qa’ida; however, violent non-state actors have long exploited territories beyond the writ of any central government. Often, when threatened by these non-state actors, victim states have responded with transborder force.This Article discusses key incidents over the past two centuries that elucidate the extensive and under-appreciated history of a state’s right to exercise defensive force against non-state actors in ungoverned territory. Such incidents include US intervention in Spanish Florida, British intervention in New York State, and Russian intervention in Mongolia. These incidents show that: (1) there is a well established customary right of self-defense of victim states that is not contingent upon the consent of host states; and (2) this customary right was preserved by the United Nations (UN) Charter.The challenge for the international community is identifying the conditions under which a victim state may act in self-defense against a non-state actor. The state practice and legal claims investigated in this Article demonstrate that the principles governing such action are the same as those that apply to state-to-state self-defense: necessity and proportionality. This Article explains how these principles structure the use of force against non-state actors and delineate the battlefield in a conflict between a victim state and a non-state actor, such as the Unit-ed States’ conflict with Al Qa’ida.

Fictitious States, Effective Control, and the Use of Force Against Non-State Actors

This Article examines how states respond to violent non-state actors operating from “fictitious” states. Fictitious states possess international legal personality but they lack effective control over their territories and populations. Examples of fictitious states include Pakistan, Yemen, and Somalia. These entities are not states that “failed” but territories where the paradigm of traditional statehood is inapplicable.In contrast to much of the literature analyzing the use of force vis-a-vis contemporary threats, this Article contends that the global security problem posed by fictitious states is more fundamental than that posed by terrorism or failed states. The modern threat emanating from fictitious states is most vividly illustrated by Al Qa’ida; however, violent non-state actors have long exploited territories beyond the writ of any central government. Often, when threatened by these non-state actors, victim states have responded with transborder force.This Article discusses key incidents over the past two centuries that elucidate the extensive and under-appreciated history of a state’s right to exercise defensive force against non-state actors in ungoverned territory. Such incidents include US intervention in Spanish Florida, British intervention in New York State, and Russian intervention in Mongolia. These incidents show that: (1) there is a well established customary right of self-defense of victim states that is not contingent upon the consent of host states; and (2) this customary right was preserved by the United Nations (UN) Charter.The challenge for the international community is identifying the conditions under which a victim state may act in self-defense against a non-state actor. The state practice and legal claims investigated in this Article demonstrate that the principles governing such action are the same as those that apply to state-to-state self-defense: necessity and proportionality. This Article explains how these principles structure the use of force against non-state actors and delineate the battlefield in a conflict between a victim state and a non-state actor, such as the Unit-ed States’ conflict with Al Qa’ida.