Domestic Law Research Articles

Law and politics from the sea

AbstractRecent scholarship in law and society has engaged in novel ways with maritime spaces, articulating how they inform legal theory more broadly. This essay builds on such scholarship, and on a broad-brushed survey of maritime history, to make two basic arguments. First, a look at political and legal processes regarding maritime spaces reveals that law is transnational ‘all the way down’. Legal theorists often assume that transnational legal processes are an added layer beyond domestic and international law. But the maritime perspective reveals that transnationalism comes first, both analytically and historically, as a constant negotiation of the relationship between what is ‘inside’ and what is ‘outside’ a polity. Second, the maritime space begins, at least in dominant legal traditions, as an absolute exteriority – imagined as outside or beyond polities and jurisdictions. But with the climate crisis and the emergence of the Anthropocene we may observe an inversion, the sea now appears as a record of harmful human activity; a mirror showing a troublesome collective portrait of humanity. The inversion from a maritime exteriority to the intimacy of ubiquitous environmental harm defines the parameters of law and politics today. The essay concludes with reflections on how the maritime perspective may best be engaged today in responding to that image through political action. It conceptualizes what I call the ‘commonist lifeboat’ – a model of bottom-up universalism for tumultuous times.

Workplace Sexual Harassment in Vietnam: A Review of Current Legislation

The issue of sexual harassment in the workplace has long been a concern in the Vietnamese society. However, it is only in recent years that this issue has been acknowledged and addressed through Vietnamese laws and regulations. This article critically examines Vietnamese legislative approaches to the problem of sexual harassment in the workplace. It first analyzes existing domestic laws and regulations pertaining to sexual harassment in the workplace in Vietnam, taking into account their characteristics, advantages, and limitations. It then proposes potential changes that could strengthen the prevention of and combat against sexual harassment in the Vietnamese workplace. The paper employs doctrinal legal research methodology to analyze the content of law while utilizing a law-in-context approach to explore the social and cultural aspects at play. In Vietnam, legislation regarding sexual harassment in the workplace has developed gradually, with increasing complexity and coverage. This development encompasses various aspects, including definitions, procedures, liability, remedies, and sanctions. The government and relevant authorities are committed to revising and strengthening these laws to address the evolving nature and magnitude of sexual harassment. Key changes include the introduction of new provisions in the Labour Code 2019 to rectify previous shortcomings, as well as the issuance of Decree No. 145/2020/ND-CP and Decree No. 12/2022/ND-CP to clarify responsibilities, prevent harassment, and impose sanctions. Despite these improvements, there remain challenges in achieving a safe and harassment-free workplace.

Environmental Impact Assessment in the context of armed conflicts

The Environmental Impact Assessment (EIA) is a legal, procedural tool that allows to identify, predict, evaluate and prevent or mitigate the impacts of a planned project on the environment. An inherent element of this process is public participation that shall be assured at all times.
 EIA is regulated by domestic environmental laws of a given county, but an imminent influence on these regulations is exerted by EU EIA Directive (Directive 2011/92/EU text codified) and international conventions, especially the ESPOO Convention.
 EU legislation and international EIA-focused treaties do not determine if armed conflicts affect the EIA procedures and, if the answer is positive, in which way, especially whether the EIA procedure remains required under these exceptional circumstances or it may be postponed until cease of conflict or even omitted.
 For this reason, it was of high importance to determine whether EIA-related obligations set by EU and international laws are suspended or remain valid and in force during armed conflicts.
 The research revealed that the above-mentioned acts do not have provisions that explicitly regulate the effect of armed conflicts on the obligations relating to the EIA procedures. Furthermore, current jurisprudence and doctrine do not provide clear answer on the scope of application of international environmental law during armed conflict. It is often explained by the fact that environmental law is not yet fully formed in that respect and it is still not commonly agreed how it relates to international humanitarian law.
 Based on findings of the research, some conclusions are proposed that aim at providing advise on the application of EIA during armed conflicts and suggestions to supplement discussed bodies of law.
 This article will discuss the main results of the study conducted on this important and very up-to-date subject.

DISPUTE SETTLEMENT MECHANISMS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: THE WAY FORWARD FOR MALDIVES

The maritime boundary delimitation judgment by the International Tribunal for the Law of the Sea between Mauritius and the Maldives was the first Maldivian dispute settled at an international court or tribunal. Regrettably, misinterpretation and misinformation regarding international laws and the Maldivian domestic laws related to the dispute became prevalent among the Maldivian community. One of the core concerns that need to be addressed is how Maldives got subjected to a legally binding dispute settlement mechanism concerning a dispute that was initially regarding the sovereignty over the Chagos Archipelago between two other States, namely: Mauritius and the United Kingdom. Additionally, it is important to determine whether Maldives has any other legal means to safeguard its maritime zones from future maritime disputes. The main objective of this paper is to explore the dispute settlement mechanisms under Part XV of the United Nations Convention on the Law of the Sea (LOSC) and determine how these provisions can be utilised to safeguard the Maldivian maritime zones. This research is primarily a doctrinal legal research. Firstly, the article outlines the provisions under Part XV of the LOSC whilst exploring its drafting history. Next, the article analyses the optional exception on maritime delimitation under LOSC Article 298(1)(a) and its significance to the Maldivian situation. It suggests that considering the undelimited outer continental shelves of Maldives, Maldives should consider declaring an optional exception under LOSC Article 298(1)(a). The article concludes that optional declarations serve as safeguards against premature and costly dispute resolution.

Sexual Violence Against Children And Criminal Sanctions Towards Actors Based On The System Of Indonesian Law

This study aims to describe how the criminal law regulates sexual violence in Indonesian positive law and to analyze how criminal sanctions for perpetrators of sexual violence against biological children are in Indonesian positive law. This research was conducted using normative legal research in the form of library research using three types of legal materials, namely primary legal materials, secondary legal materials and tertiary legal materials, with a qualitative descriptive research analysis.The results of the study stated that the crime of sexual violence as a whole is regulated in the Criminal Code (KUHP), the Human Rights Law Number 39 of 1999, the Elimination of Domestic Violence Law Number 23 of 2004. And specifically against children as victims regulated in Law Number 35 of 2014 concerning Amendments to Law number 23 of 2002 concerning Child Protection. The results of other studies state that criminal sanctions for perpetrators of sexual violence in the Criminal Code against minors are formulated in Article 285 of the Criminal Code, namely imprisonment for a maximum of twelve years. Whereas in the Child Protection Act, imprisonment based on Article is a minimum of 5 (five) years and a maximum of 15 (fifteen) years and a maximum fine of Rp. 5,000,000,000.00 (five billion rupiah). Parents, guardians, caregivers of children, educators, or educational staff, then the penalty is added to 1/3 (one third) of the criminal threat as referred to in paragraph (1).

Tort Liability for Trans-boundary Marine Environmental Pollution: Japans Radioactive Wastewater Discharge into the Sea as an Entry Point

Currently, the problem of trans-boundary marine environmental pollution is becoming increasingly prominent and Japans insistence on discharging nuclear wastewater despite protests from other countries has raised concerns among the population. Researchers have found that international conventions and other sources of international environmental law are lack of a liability system for trans-boundary environmental pollution. Therefore, this paper looks for gaps by applying the normative analysis method to retrieve the relevant liability system at the institutional level in order to compare and analyze it, and secondly, using the case analysis method to think about how to improve the liability system through case law practical perspective. The study concludes that it can be constructed from two perspectives, namely the responsibility of the State and the tort responsibility of private subject to adopt the system of tortious responsibility and both serve in parallel with that caused by environmental pollution compensate for damage. Due to the irreversibility of environmental pollution, initiating legal proceedings for redress after the event is often not the ultimate goal. Therefore, the ex-ante blocking mechanism need to be further improved and domestic law needs to be constantly improved to compensate for the shortcomings of international law. That help our country deal with the marine environmental pollution to provide methods and ideas.

Outer Space: The Final Frontier of Taxation

As the pace of commercial space exploration quickens, the question arises: is the global tax framework equipped to handle the complexities tied to revenues from outer space? The very nature of these revenues, derived from a deemed sovereign-free source, clashes with traditional tax principles like the source and residence doctrines. While the Outer Space Treaty, accepted by the majority of countries, bars any claims of sovereignty in space and complicates taxation, countries like the United States and Luxembourg have introduced domestic laws granting their residents rights over resources retrieved from space. Additionally, emerging space industries bring to light challenges in areas such as transfer pricing and satellite taxation, highlighting the pressing need for international consensus on these intricate tax matters.

‘Doing Harm Was the Point’

Abstract This article analyses the Trump administration’s policy of forcibly separating thousands of immigrant families at the border. Using a rights-based and childist approach, I explore the policy’s severe consequences for children’s rights to family unity and protection from cruel and degrading treatment. I argue that family separations abandoned the best-interests principle and entailed severe rights violations and due process irregularities. The policy deliberately inflicted suffering and trauma on immigrant families to deter immigrants and coerce asylum-seekers into relinquishing their claims to protection, contrary to treaty obligations and domestic laws. The article also examines the policy’s formulation and implementation, which were characterised by cruelty, chaos and confusion. This case provides incontrovertible evidence of the myriad strategies governments use to exclude immigrant children from the benefits of the global children’s rights regime.

Article 6 of the Anti Tax Avoidance Directive – Living a Life on Its Own?

Art. 6 of the Anti Tax Avoidance Directive (ATAD) includes a minimum harmonization standard for so-called General Anti Abuse Rules (GAARs) in the field of corporate income taxation. A significant number of Member States has not enacted the provision but referred to their domestic law already fulfilling the demands of the directive. While this is possible, it could point towards a lack of awareness of what ramifications Art. 6 ATAD has on Member States’ tax systems. Against this background, the article aims to shed light on the life Art. 6 ATAD has, as part of EU law, begun to live on its own. In doing so, we will reflect on five dimensions: (i) the impact of the Philip Morris line of case law on Member States’ ability to go beyond the minimum standard included in Art. 6 ATAD, (ii) the relation between Art. 6 ATAD and the EU’s general anti-abuse principle, (iii) the impact of the EU fundamental rights protection on the application of the national implementation of Art. 6 ATAD, as well as (iv) the interpretational insights to be won from other secondary EU and (v) state aid provisions. ATAD, GAAR, abuse, tax avoidance, principle, implementation, interpretation, fundamental rights, unshell, state aid

Between Ideal and Reality: Professional Activation Facilities and the Employment of People on the Autism Spectrum

Abstract Profit maximization is a process that companies go through to determine the best production levels and prices to achieve their goals. It would seem that the market’s ‘no limit’ applies, yet there are in fact impassable limits, set by law. Labour law and related human rights are undoubtedly well established among these limits. The balance in this area oscillates around an equilibrium, but time and again, niches of disproportionality are revealed on both sides. For example, although the right to work is effectively guaranteed by international law and domestic Polish law, only 2% of people on the autism spectrum are in work. This is all the more alarming because, due to the noticeable increase in the number of people diagnosed with autism in Poland and around the world, it is increasingly becoming a topic of public debate. A systemic way to include such people in the labour market is primarily through vocational development centres (ZAZs). This article presents the legal framework in question, in juxtaposition with the results of an empirical study conducted in 2022. Out of a total of 127 ZAZs operating in Poland, only four employ more than one person on the autism spectrum. The increase in the number of autistic people, along with the stagnation of the labour market supply aimed at them, prompts demands for remedial measures, such as incentive-based offers of financial support for ZAZs linked to employment quotas for autistic people.

Peaceful settlement of inter-state energy disputes: applicable law, defence arguments, and remedies in the ICC arbitration between Iraq and Turkey

Abstract At this critical juncture in the energy transition dominated by debates over armed conflicts, advisory opinions on climate changes, and investor-State arbitration, it is critical to also consider developments in the peaceful settlement of inter-State energy disputes. One central dispute between the Republic of Iraq and the Republic of Turkey arose out of the Crude Oil Pipeline Agreement for the supply and purchase of crude oil. Iraq filed a request for arbitration in May 2014 under the International Chamber of Commerce Rules of Arbitration. The Tribunal awarded Iraq nearly United States Dollars (USD) 1.5 billion. The Tribunal’s unanimous final award in 2023 discusses fascinating aspects of international energy transactions, including the choice of domestic law in a treaty dispute, defences under the law of treaties, a putative norm of jus cogens to prevent genocide, and possible remedies in an inter-State pipeline arbitration.

الوسائل القانونية لمكافحة ظاهرة تسول الأطفال في فلسطين

The phenomenon of child begging has been largely spreading lately and has impacted society and child beggars alike. Nevertheless, there are many ways to counter this phenomenon in all its aspects. Since this research paper is limited to studying the legal aspect of this phenomenon, the focus has been placed on the lawful means to achieve that purpose. This research paper analyses the legal rules in international conventions and domestic laws enacted to counter this phenomenon. It found a considerable insufficiency of legal regulations in both procedural and substantive rules at the domestic level that would hinder the process of countering this phenomenon.

Enforcement of EU Law: Effectiveness and Fundamental Rights as Limits to the Ius Puniendi Exercised by Member States in Fiscal (Criminal) Proceedings

Abstract This article analyses the limits to Member States’ powers in the field of enforcing (criminal) penalties for infringements of EU law, with particular focus on the protection of the EU’s financial interests. The article addresses the issue of the broad interpretation of the concept of ‘fraud’ within the meaning of Article 1(1) of the PFI Convention, which resulted in imposing an obligation on Member States to establish criminal penalties for certain serious VAT fraud. Next, the article analyses the requirements of effectiveness and equivalence of penalties established in domestic law for infringements of EU law, which may affect not only the severity of penalties, but also the rules of criminal procedure (limitation periods in pre-trial and judicial proceedings). Finally, the article presents the main developments in the context of limitations of ius puniendi, which stem from the obligation to protect fundamental rights under the Charter of Fundamental Rights.

Legislative aspects and doctrinal opinions regarding legislative events

Through this study, we want to bring back to attention the legislative events provided by law 24/2000, as a result of the appearance in their list of consolidation, which is regulated by law as not having legal effects. There is a similar legal institution in the Union legislation which has the value of republication in domestic law. 
 That's why we have briefly analysed the legislative events provided by the law and the effects they have produced, comparing them to the new technical procedure called consolidation.

전시(戰時) 입법과 전쟁 대응에 대한 공법적 검토

War and law have been primarily a concern of international law, but sustained North Korean provocations, the war between Russia and Ukraine, and the war between Israel and Hamas have made it necessary to have domestic public law concerns as well. In times of war, wartime readiness legislation, which has a significant impact on the rights and obligations of citizens, is still incomplete in many areas.
 This study analyzes the issues of improving wartime readiness legislation through wartime legislation such as emergency orders at the time of the Korean War, and attempts to derive suggestions for legal readiness to protect the lives and property of the people.
 Although many of the same provisions as the emergency order at the time of the Korean War have been established in current legislation, it is preferable to prescribe in advance the contents currently required rather than creating numerous emergency orders.
 However, the executive branch has prepared the draft War Standby Law and the draft Emergency Order, which are not less problematic from the standpoint of democracy. Either they should be administered by Congress rather than the executive branch, or if their contents are absolutely necessary, they should be enacted by law in advance for the predictability of the public and the public officials concerned.
 For the response to war, the content needs to take effect at the time war is imminent, not after it has occurred, but it is necessary to conceptualize the point in time for such a response. In addition, legal issues in economic and scientific and technological responses tailored to modern warfare should continue to be considered.
 Taking these matters into account in preparing for war would go a long way toward protecting the lives and property of the people and safeguarding the nation's existence in a wartime situation.

Theoretical and practical aspects of invalidation of a transaction in civil proceedings in Ukraine and foreign countries

The paper examines the doctrinal foundations and legal grounds for invalidation of transactions under the civil law of Ukraine and foreign countries. The author highlights the main problems of national and foreign judicial practice in challenging typical transactions. The author establishes that valid transactions play a primary role in establishing, modifying and terminating legal relations between subjects of civil turnover. Invalidity is a specific result of assessing a transaction for compliance with applicable civil law, and the place of the institution of transaction invalidity in the system of civil procedure law of Ukraine is determined by the need to protect the violated rights of bona fide persons in cases where the requirements of civil law regarding a transaction are not met. The author analyzes and establishes that a transaction is void if its invalidity is established by law (voidable transaction), and no court invalidation is required. In contrast to a voidable transaction, a transaction is disputed if one of the parties denies its validity and tries to prove such a legal fact in a court proceeding. The study has determined that in domestic civil law, the rule that a disputed transaction can be invalidated only through the involvement of a court is mandatory. However, as practice shows, the judicial process in Ukraine has a number of drawbacks, in particular, due to the length of the proceedings. In view of this, many European countries have an out-of-court procedure for invalidating transactions, which is implemented by filing a statement of challenge. Such a mechanism has at least one obvious advantage - the speed of resolving the issue of invalidity of a transaction. The prospect of introducing an out-of-court procedure for challenging typical transactions will allow Ukraine to reduce the burden on the judicial system and speed up the process of considering other, equally important, civil cases.

RETRACTED: Revisiting Indonesia's governance and conservation of cetaceans

Over the past few decades, Indonesia's marine conservation governance has been criticized. This article analyzes the overlaps and gaps in domestic law and policy regimes for cetaceans or marine mammal management and examines issues of institutional arrangements and legal frameworks related to cetacean conservation in Indonesia. The legal framework's progress on cetacean governance shows three distinct phases: 1975-1985 (species-focused governance approach), 1990-2009 (area-based approach), and 2010-present (broader marine governance approach). This study reveals that the main shortcoming of the legal framework is unclear mandates and overlapping jurisdictions. This study suggests several urgent policies that should be accommodated in the current legal regime to strengthen cetacean conservation. In addition, this research also recommends creating a collaboration mechanism between institutions and encouraging Indonesia to join as a full member of the International Whaling Commission and the Conservation of Migratory Species of Wild Animals Convention to strengthen cetacean governance and conservation.

SOSIALISASI MASYARAKAT DESA TEGALREJO TERHADAP UU NOMOR 23 TAHUN 2004 TENTANG KEKERASAN DALAM RUMAH TANGGA DAN KESETARAAN GENDER

The problems in this activity are the lack of knowledge or information received by the community about domestic violence law; lack of legal understanding of the contents of Law Number 23 Year 2004 related to domestic violence; and the existence of domestic violence that is not found. Problem solving is done through legal communication. Legal communication is the process of delivering messages in accordance with the law that contains the contents of a legal rule, with the aim of creating mutual understanding or understanding of the law, resulting in changes in the thoughts, attitudes and behavior of the recipient, without any change. coercion from outside. This service activity is a seminar forum model with light dialog because it adjusts to the scope and quality of human resources at the service location. Delivery of material by dialog and giving examples in everyday life. The results of the activity show an increase in the understanding and knowledge of residents regarding the rules / laws governing the elimination of domestic violence, which initially had a knowledge value of 55.25, after implementing the project had a knowledge value of 74.75. Activities like this need to be carried out in the future, by continuing to provide understanding and knowledge related to community life rules.
 Keywords: Gender Equality, Domestic Violence, Household.

The Domestication of International Law in African Settings: Seven Normative Options in Ghana

Abstract In this article, we explore seven ways in which Ghana absorbs principles of International Law into her bosom. The safest mechanism Ghana has utilised over the years for this purpose has been the domestic ratification of international conventions through the mechanism of a law passed by her Parliament. Another mechanism is the ratification of such conventions by the passage of a Resolution by her Parliament. Furthermore, existing principles of Ghanaian law may coincide with principles of International Law. Again, principles of Customary International Law are considered a part of the Common Law of Ghana. There are also instances where Domestic Law incorporates International Law by reference. A sixth mechanism is where there is a lacuna in Ghanaian law regarding a particular issue and government officials and judges resort to principles of International Law to fill that void. Finally, International Law may find expression in domestic Ghanaian law where judges, in the process of elaborating on domestic legal principles, call in the principles of International Law.

Regulations on Voting Rights for Persons with Disabilities: A Comparative Study between Indonesia and Australia

Indonesia as well as Australia have signed and ratified Convention on the Rights of Persons with Disabilities. This action is regarded as a new chapter for two countries to strengthen their commitment to fulfill political rights for persons with disabilities. Article 29 of the Convention calls on all states to assure that persons with disabilities can participate effectively and fully in political sphere, included the right and opportunity to vote in the election. All states have to ensure that voting procedures, facilities and materials in the election are appropriate, accessible and easy to understand and use. This article aims to explore more and compare the implementation of voting rights for persons with disabilities in Indonesia and Australia, and also how both countries regulate the procedure and mechanism of voting rights into domestic laws based on the Convention. The result is found that either Indonesia or Australia has formulated accommodative and responsive laws to uphold the voting rights for people with disabilities. However, in certain aspects, regulations in Australia are more progressive and innovative than in Indonesia.