Law Instruments Research Articles

Right to Repatriation of Abandoned Seafarers: A Study in Light of Maritime Labour Convention 2006, and International Covenant on Civil and Political Rights 1966

The abandonment of seafarers is one of the major challenges that seafarers onboard vessels may face. In 2022, 1555 seafarers were abandoned on 113 ships. The port state's role in seafarer abandonment is crucial because it can assist abandoned seafarers by facilitating their repatriation. In practice, however, it has been seen in many cases that the port state of the vessel had restricted the disembarkation of the abandoned crew from the vessel by citing the reason that the vessel cannot be left unmanned. The present study will assess such measures adopted by the port states in light of International Law instruments, including the Maritime Labour Convention, 2006 and the International Covenant on Civil and Political Rights, 1966.

The Ideality of Implementing Administrative Sanctions Against Environmental Damage

Based on the Government Regulation in Lieu of Law, it has reduced and changed the nomenclature for the imposition of administrative sanctions against environmental pollution and damage. As regulated in the Implementation of administrative sanctions from the instrument, five points are regulated by the government sanctions instrument. This article uses normative research methods with statutory and analytical approaches. Using primary and secondary data types using deductive logic analysis methods. The results of this study indicate that there is a change in administrative sanction arrangements, especially in administrative fines, where there is no specific indicator in providing the amount of fines. The revocation of business licenses is certainly in line with Good Governance, which lies in legal certainty, effectiveness, and efficiency. This is because the government has full responsibility for the legal position that is made to be implemented as fairly as possible. In addition, the government plays an active role in maximizing administrative law instruments wisely and responsibly.How to cite item: Ismail, Muhammad Rizky Akbar, and Lego Karjoko. “Ideality of Implementation Administrative Sanctions Against Environmental Damage in Indonesia.” Jurnal Cakrawala Hukum 14 no. 2 (2023): 200-211. DOI: 10.26905/idjch.v14i2.10420.

Integrasi Green Waqf Melalui Platform Digital Crowdfunding dan Dampak Sosialnya Bagi Masyarakat

This study aims at finding out the integration of green waqf through the crowdfunding digital platform and the social impacts provided for the community. This research applies library research method and qualitative analysis approach. The integration of green waqf through the crowdfunding digital platform and its relationship to embody the sustainable development between generations. Green waqf is one of instruments of Islamic law to deal with the problems of the ummah, one of which is environmental problems related to sustainable development and intergenerational justice. This research was conducted qualitatively using analytical descriptive design. The results show that green waqf is able to balance development and environmental sustainability that leads to sustainable environmental preservation and equality between generations, where future generations are still at the same level of utilization as the current generation, in terms of variety of choices and access to resources. natural. Green waqf is an environmental conservation innovation movement that begins with raising funds through a crowdfunding mechanism, which results in the purchase of critical land to be reforested. As the critical land gets verdant and has ecological value, it will be donated to the village community on the condition that the forest must be maintained and must not be damaged. Green waqf does not only answer the problem of natural damage, but also brings benefits from various aspects of ecology, energy sustainability, social, economic, and community welfare.

Estado e exceção econômica na periferia: acumulação primitiva e outras formas de expropriação do comum

The article seeks to demonstrate the permanence of the framework of economic exception on the periphery of capitalism, as well as the instrumentalization of State and Law to legitimize the expropriation of the “common”. It tries to understand, therefore, the actuality of concepts such as “primitive accumulation”, “formal subsumption” and “real subsumption” as appropriate analytical tools for criticizing the expropriation of social wealth, the deepening of the peripheral condition of countries like Brazil, and how the legal form and the political form are functional to this project of “plundering” that is located at the core of “neoliberal rationality” (Dardot, Laval). The discussions undertaken do not manifest automatic adherence to the authors used, but seek to build the argument presented from a critical dialogue with texts by Antonio Negri, Michael Hardt, Laura Nader, Ugo Mattei and, in Brazil, mainly, Leda Paulani, Paulo Arantes, Gilberto Bercovici and Francisco de Oliveira. The chosen method is dialectical materialism, which was applied to the bibliographic survey and to the tying of concepts directed to the critique of the contemporary economic exception. The usurpation of the commons is a global phenomenon, but one that evidently has a greater incidence outside the capitalist center. This justifies the focus given to Brazil as a locus for observing the phenomenon.

Legal Regulation on Nuclear-Powered Ships Activity in Indonesian Waters Territory

On 17 September 2021, Australia, the United Kingdom and the United States signed the AUKUS agreement legitimizing the ownership and development of Australian nuclear-powered submarines. This has direct implications for Indonesia, which has a strategic position as a trade route. In response to this, Indonesia has taken several political steps at the regional level as well as in multilateral forums. This research is intended to analyze legal steps that can be taken by Indonesia to regulate the navigation and safety of nuclear-powered submarines considering that international maritime law instruments do not accommodate these concerns. Through a normative legal approach, using the theory of Critical Legal Studies and the Concept of Legal Politics, this research finds that Indonesia needs to regulate provisions for the navigation and safety of nuclear-powered submarines at the national level.

National Policies on Immigration Detention and the Global Compacts: A Comparative Analysis of Canada and France

ABSTRACT The adoption of the Global Compacts on Migration and Refugees in 2018 marked a turning point in international migration governance. According to objective 13 of the Global Compact for Migration, States Parties have committed to use immigration detention as a measure of last resort and work towards alternatives. As for the Global Compact on Refugees, States Parties and relevant stakeholders also pledged to contribute to the development of non-custodial and community-based alternatives to detention, particularly with respect to children. Five years later, the enhancement of human rights protection for migrants, refugees, and asylum seekers within national territories remains a challenge. We argue that two states of the Global North – Canada and France – are actually using the Global Compacts to push forward their own agenda on the international scene, as a tool to influence other states. Even if Canada and France have engaged in multilateral discussions on the regulation of migration and the protection of refugees through soft law instruments, we find that national practices have not been altered since 2018. As such, this paper will demonstrate that the implementation of the Global Compacts is, in fact, used to advance foreign national policy for both states.

Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?

Abstract Since India has no established refugee regime, most developments in this sphere have arisen from judgments. However, the lack of relevant applicable law means that these developments are piecemeal and humanitarian at best, failing to make true advances in jurisprudence, and anti-refugee at worst. This article argues that through recourse to international law, these hurdles can be surmounted to ensure more robust protection to refugees. Further, it is argued that constitutional and international law obligations binding India mandate that the Indian judiciary refer to these international law instruments. Doing so would ensure significantly stronger protection for refugees and less deference to the executive’s ad hoc stance.

Taking Soft Law Into Account... of Course! But What Does That Concretely Mean?

This study attempts to verify what concretely the Grimaldi doctrine entails for national courts. According to this landmark decision, a national court is bound to take European soft law into account when adjudicating disputes. Although more than 30 years have passed since its adoption, its role in the domestic legal order still appears ambiguous. In the hope of highlighting what the Court had meant to state, this paper intends to grasp the real implications of this leading case. First, in order to outline the scope of the duty enshrined by the Court, some aspects will be examined, such as the addressees of the doctrine, the types of EU soft law measures involved, and the legal basis of this obligation. Secondly, while bearing in mind what some have argued, namely that Grimaldi imposes either a duty of consistent interpretation or a duty of effort, this article intends to suggest a third way, which is the 'soft duty to apply' EU soft law. This obligation, of course, is not to be understood in the narrow sense of the word and varies in intensity depending on the situations in which national courts find themselves. In this respect, it will be appropriate to explore what implications these measures entail for domestic courts and what the latter should concretely do when dealing with EU soft law instruments. Finally, this study identifies the possible consequences of the 'soft duty to apply' EU soft law in the framework of the dialogue between courts by focusing on the dynamics governing the procedure under Article 267 TFEU and accordingly suggesting the applicability of Foto-Frost and CILFIT doctrines to proceedings where a source of European soft law is at stake.

Sustainability Status of Pond Aquaculture in Tambakbulusan Village on Social or Cultural Dimension and Legal or Institutional Dimension

Sustainability in the management of aquaculture activities is very important because it will make the welfare of the stakeholders. The research objectives initiated in the context of this discussion include several things, 1) Analyzing the status or index of sustainability that extends to other dimensions including social or cultural, and legal in relation to aquaculture ponds in Tambakbulusan Village Karangtengah District Demak Regency, 2) Knowing what are the sensitive attributes (levers) that affect the sustainability of aquaculture in Tambakbulusan village. The benefits of research is expected to provide benefits to the provision of comprehensive information, especially for stakeholders will describe the status of the sustainability of aquaculture ponds Tambakbulusan village. The implementation time of the research is detailed in March to April 2023 with the chosen setting is Tambakbulusan Village, Karangtengah District, Demak Regency. The determination of methods related to data analysis is with quantitative methods assisted by qualitative data results. The data obtained came from primary and secondary data. Primary data were collected from direct observations and interviews in the field with 47 (forty-seven) respondents. The analysis used is Multidimensional Scalling Rapid Appraisal for Fisheries (MDS-RAPFISH) to analyze several aspects or dimensions of sustainability. The results of the sustainability analysis obtained are in the social or cultural dimension of 61.441 including also quite sustainable and in the legal or institutional dimension of 42.909 including less sustainable. Sensitive attributes in the social or cultural dimension are the attributes of participation in development forums, labor absorption, and family participation in aquaculture, and in the legal or institutional dimension, sensitive attributes are known to include the attributes of the intensity of law violations in relation to aquaculture, the existence of financial institutions, the availability of cultivator groups, and the existence of customary or religious law instruments.

The Right to Construct Yourself and Your Identity: The Current Human Rights Law Framework Falls Short in Practice in the Face of Illegitimate Interference to the Mind.

Propaganda and manipulation have long been employed to influence and shape individuals' thoughts and identities. In the advent of the digital era, these techniques have become more sophisticated and invasive, and are utilized to further various causes. This article investigates the extent to which international human rights law affords protection against manipulation techniques such as microtargeting and behavioral reading, which can negatively impact individuals' mental health and autonomy by threatening their right to construct their own identity. The right to freedom of thought in the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (Article 18), and the European Convention on Human Rights (Article 9) offers absolute protection to individuals' inner selves and covers the protection against manipulation on paper. However, in practice, the right has not received much attention and has not reached its full potential due to its abstract and ambiguous nature. This Article analyzes the preparatory works of these human rights law instruments, with a particular focus on the right to freedom of thought, to clarify its origins and the intention behind its creation. The Article contends that the historical origins of the right do not provide sufficient answers to the current issue and contribute to the ineffective application of the right against emerging manipulative practices. The Article also proposes potential ways to clarify and strengthen the legal framework related to the right to freedom of thought.

Wybrane problemy procesowej kontroli i utrwalania rozmów

This study addresses certain aspects of procedural surveillance and recording of wiretapped calls which are relevant to prosecutorial practice. This subject matter, regulated in Chapter 26 of the Code of Criminal Procedure, involves fundamental rights of individuals which are strictly protected under the Constitution and the highest-ranking instruments of international law. Therefore, it is of utmost importance to not only appropriately elaborate the legal regulations that permit the surveillance of citizens, but apply them in the everyday practice of law enforcement and the judiciary. The author discusses the evolution of procedural wiretapping in the Polish legal order in order to facilitate the understanding of the current regulations in this field. He also points out to specific difficulties in interpreting certain vague terms such as ‘an urgent case’, whereby a public prosecutor may order surveillance and recording of the content of telephone conversations; or a ‘particularly justified case’ which constitutes the grounds for extended surveillance and wiretapping of telephone conversations. In addition, the article takes a closer look at a possibility of procedural wiretapping under a relatively new legal institution, i.e., the European Investigation Order. With regard to this issue, mention was made of numerous controversies amongst legal scholars as to the amendment to Article 237a of the Code of Criminal Procedure, which has eliminated the so-called ‘subsequent consent of a court of law’ and placed the decision on the use of the information obtained by way of procedural wiretapping in the hands of a public prosecutor within the framework of expanding the objective or subjective boundaries of surveillance.

The utilisation of legal instruments by United Nations actors to restrict the exposure of children to unhealthy food and beverage marketing: a qualitative content analysis of UN instruments

IntroductionUnited Nations (UN) agencies are influential global health actors that can introduce legal instruments to call on Member States to act on pressing issues. This paper examines the deployment and strength of global health law instruments used by UN actors to call on Member States to restrict the exposure of children to unhealthy food and beverage marketing.MethodsGlobal health law instruments were identified from a review of four UN agencies that have a mandate over children’s exposure to marketing of unhealthy food and beverage products namely: the World Health Organization (WHO); the Food and Agriculture Organization (FAO); the United Nations General Assembly (UNGA) and the UN Office of the High Commissioner for Human Rights (OHCHR). Data on marketing restrictions were extracted and coded and descriptive qualitative content analysis was used to assess the strength of the instruments.ResultsA wide range of instruments have been used by the four agencies: seven by the WHO; two by the FAO; three by the UNGA; and eight by the UN human rights infrastructure. The UN human rights instruments used strong, consistent language and called for government regulations to be enacted in a directive manner. In contrast, the language calling for action by the WHO, FAO and UNGA was weaker, inconsistent, did not get stronger over time and varied according to the type of instrument used.ConclusionThis study suggests that a child rights-based approach to restricting unhealthy food and beverage marketing to children would be supported by strong human rights legal instruments and would allow for more directive recommendations to Member States than is currently provided by WHO, FAO and UNGA. Strengthening the directives in the instruments to clarify Member States’ obligations using both WHO and child rights mandates would increase the utility of global health law and UN actors’ influence.

Continuity and Change of Traditional Islamic Law in Modern Times: tarjīḥ as a Method of Adaptation and Development of Legal Doctrines

Abstract In addition to ijtihād (independent legal reasoning), tarjīḥ (weighing up and preference) serves as a fundamental instrument of traditional Islamic law's operational work and was used on different levels. In modern times, tarjīḥ is still applied not only by individual scholars but also by collective fiqh institutions. However, the conception of tarjīḥ is undergoing a transformation in its current application. In the scope of this article, the first purpose is to provide a comprehensive overview of the conception and the diverse practical forms of the tarjīḥ in traditional Islamic law. The focus then lies on setting out how to apply tarjīḥ in modern Islamic jurisprudence. This article also aims to illustrate the conceptual and operational changes of tarjīḥ, paying special attention to the relation between tarjīḥ and ijtihād. Overall, this article intends, on the one hand, to contribute to the study of present Islamic law's developments; on the other hand, it examines the continuity and change of tarjīḥ from traditional Islamic law to contemporary fiqh institutions. It is argued that tarjīḥ in the modern age is not only used as a method of weighing and choosing a legal view that among the diverse views of pre-modern law most closely adapts to the current social circumstances, but that it is also integrated in the process of development of new legal doctrines.

Implementation of Criminal Law to Determine Persons of Environmental Pollution and/or Destruction in Court

Pollution and/or environmental damage continues to occur and according to the Environmental Quality Index (IKLH) the environment in Indonesia is increasingly damaged and many parties are harmed both humans and the environment itself but an effective settlement of environmental cases has not been found. Thus it is necessary to think about being able to resolve environmental issues that are effective and consideratejusticethe environment itself. A good and healthy living environment should be realized. This desire can be realized by applying appropriate laws that can deter perpetrators of environmental pollution and/or destruction. The purpose of this research is; to analyze and explain the effective resolution of environmental cases that takes into account the environment itself and the application of criminal law that can deter perpetrators of environmental pollution and/or destruction. The research method used is normative legal research to find the law for an in-concocreto case. Criminal law instruments in the settlement of environmental cases in judicial practice, there are still obstacles in presenting evidence, it is still necessary to think about other issues that are not regulated in the law, especially the formulation of environmental offenses. The use of criminal law instruments is more effective because prosecutors have wider powers of coercion, for example detention, search, and faster execution. Criminal law instruments not only deter people who violate them but are also aimed at other people so they do not commit acts that violate the law if they do not want to be subject to criminal sanctions.

Profiling and automated decisions concerning consumers in the insurance market and threats to their right to privacy and the right of disposal over their personal data

The innovation of insurance companies’ access to Big Data to collect additional information about the customer or verify the data provided by the customer can bring benefits to both parties, but also generate risks for the consumer. In the article, the author points out that in the business insurance market, profiling and automated decision-making should be distinguished depending on how personal data is used. This is relevant to decision-making by insurance companies in individual cases with regard to consumers without their consent based solely on automated processing, including profiling of their personal data. Within the scope of the analyzed issue, the obligation to provide information to the consumer about the fact of subjecting him to personalization treatments using automated data analysis tools was also presented. The consumer’s privacy mechanisms based on providing information to the consumer and obtaining the consumer’s consent are of debatable effectiveness. It seems that the protection of personal data in the current consumer trade should be regulated by public law instruments applied by regulatory bodies at the EU and member state levels.

Sovereignty and Transnational Corporations

The position and role of transnational corporations (TNCs) vis-a-vis the concept of sovereignty is specific. TNCs operate as an organism (an economic and social reality of a net created by a mother society, subsidiaries, and their suppliers anchored in different jurisdictions). The article presents three areas where the interaction of a state’s sovereignty and TNCs is the most visible. First, it discusses the issue of self-limitation with respect to administrative jurisdiction in cases related to foreign direct investment and the risk to the host state in situations where such autolimitation is not clearly framed. Second, the author presents the issue of human rights abuses committed by TNCs, the procedural challenges for redress, and the way-out created by soft law instruments adopted at an international level. Third, the concept of corporate citizenship is presented, which might undermine national sovereignty.

Study on the Copyright Law of Short Video "Handling" Phenomenon

As the speed of mobile transmission continues to escalate, in the era of information explosion, the use of short videos as a carrier to record daily life entertainment has gradually become mainstream. However, under the evolution of capital marketization, the economic attributes of short videos have gradually become obvious, and the success of Li Ziqi's video commercial operation has further promoted the rapid development of the short video industry. In this paper, we first analyse whether the disputed short videos meet the criteria of work composition from the perspective of the basis of copyright rights. As China's copyright has not yet made specific provisions for short videos in relation to the classification of works, it is necessary to explore what criteria short videos need to meet in order to constitute "audiovisual" works. Secondly, this article focuses on the main elements of infringement in short-form video infringement disputes, and thus in determining whether a short-form video constitutes a work, more emphasis should be placed on the three characteristics of audience appreciation and response, original expression and specificity of plot. The possible infringement situations of short video works are divided, and the boundaries between the obligations of short video platforms and the fair use of other users are explored from the perspective of the common infringing subjects in infringement disputes. On this basis, we analyse the types and modes of existing regulatory instruments of short-form video copyright law, and provide a theoretical basis for later proposing the standards and obligations of different subjects in determining short-form video infringement. Finally, on the basis of the existing means of regulation, new suggestions for regulation are explored, i.e. the scope of indirect and direct infringement liability of short video platforms should be expanded, and short video infringement should be regulated from the process of production, review, dissemination and reproduction, requiring higher platform liability. As far as other users are concerned, the whole-process fair use standard should be adopted to determine whether infringement of another's work is constituted, with emphasis on the impact caused by the user to the original creator in the actual use.

The U.S. Experience in Drafting Guidelines for Judicial Interviews of Children and Its Translation to Hague Abduction Convention Return Proceedings Globally

This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a soft law instrument on this important information-gathering tool.

‘Faith for Rights’ in Armed Conflict: Lessons from Practice

Abstract This article examines how the Beirut Declaration and its 18 Commitments on ‘Faith for Rights’ have been implemented in practice since 2017. It focuses on case studies from Afghanistan, Cyprus, the Democratic Republic of the Congo and hypothetical ‘cases to debate’ of the #Faith4Rights toolkit. The latter provides a peer-to-peer learning methodology to share the experiences of faith-based actors in dealing with tensions among human rights and in addressing armed conflicts across the globe. The 2017 Beirut Declaration, and the underlying 2012 Rabat Plan of Action on the prohibition of incitement to hatred, acknowledge the positive or negative roles of religious leaders and their responsibilities during armed conflict and beyond. These declarations have been considered soft law instruments since they are regularly referred to in reports by the United Nations Secretary-General, High Commissioner, Special Rapporteurs, Treaty Bodies, the European Union and the Council of Europe. Furthermore, social media companies and Meta’s Oversight Board use the Rabat threshold test when making content moderation decisions on Facebook and Instagram, including in situations of armed conflict or in regions that have a recent history of conflict. This article concludes that the #Faith4Rights toolkit provides a rights-based approach for bringing together the two worlds of faith and human rights. Its peer-to-peer learning methodology seeks to reflect and facilitate measurable changes rather than focusing only on inter-religious dialogue as such. It also provides concrete guidance to the—often daunting—task for facilitators of peer-to-peer learning events and for mediators in an armed conflict.

Pathological arbitration clauses: problems and solutions

This article is devoted to the issue of arbitration clauses, called in doctrine and jurisprudence “pathological” clauses, which are drafted poorly, being likely to prevent the proper conduct of arbitration due to incomplete, imprecise, unclear or contradictory stipulations. The remedies for the affected clauses depend on the category and severity of the pathology affecting each clause, and, often, the deficiencies of these clauses are removed, as far as possible, by applying the various methods of interpretation of the contractual clauses, which have crystallized in national legislations, uniform law instruments and comparative jurisprudence. In remedying the pathological causes, the courts must seek a balance between the favoring of arbitration as an alternative method of dispute resolution and the control of state jurisdictions over the validity and effectiveness of some defective clauses, by way of clarifying and respecting the real will of the parties expressed in their agreement on how to regulate the disputes that arise between them.