Problems Of Jurisdiction Research Articles

Rightsizing Government

Public service providers everywhere are hearing the calls for government transformation, and a new wave of rightsizing initiatives has emerged under related concepts such as reengineering, restructuring and reorganization. With the scholarly literature largely focused on cases where cutback management has been practiced in recent decades, governments have been left to grapple with unsustainable fiscal and operational systems without any overarching logic, or guideposts, for change. Nowhere is this more evident than in the city of Detroit, where a swirl of initiatives in this decade has invoked different and potentially competing concepts of rightsizing: one, centered on comprehensive planning of the scope of local government, looking at its functions and organization; a second, centered on streamlining business processes within existing functions and organizations; and a third centered on consolidating the built environment so that public services can be more efficiently configured. Without adjusting the mix of service responsibilities within and across jurisdictions overlapping an area, it is hard to imagine that sustainable reforms of service delivery systems will be realized. A broad-based definition of the sources of a jurisdiction's problems must be demonstrated through data-driven analysis, so that all stakeholders can be engaged around a common roadmap for action.

More Than One Law for All: Legal Pluralism in Southeast Asia1

It is virtually an article of faith for politicians and lawmakers in common law countries that there must be “one law for all.” For these people, equality under the law means that all people must be treated in exactly the same way by the legal system, regardless of differences in cultural background or religious belief. Among neighboring countries in Southeast Asia, this is not the case. Legal pluralism exists in Malaysia, with a formal system of Shari'a for Muslims and a separate system of Shari'a courts. Additionally, native courts exist to resolve problems relating to members of indigenous communities. In Indonesia, Shari'a courts exist alongside the civil courts to hear family law and inheritance matters relating to Muslims. In some areas of Indonesia, broader Shari'a laws and regulations have been introduced. Islamic finance flourishes in both countries with its own structures and regulations. Adat (customary) rules also continue to exist alongside the formal legal system. Thailand and the Philippines also have multiethnic and multireligious populations and at least some recognition of pluralism in their legal systems. Legal pluralism is not without its difficulties. There have been problems of jurisdiction, difficulties in deciding whether a person belongs in a particular category subject to a certain law, and questions of what to do when a person evinces a desire to leave a category and what to do with cases involving persons from two or more different legal categories. Despite these problems it can be argued that in Malaysia, at least, legal pluralism works reasonably well. This article examines the origin of legal pluralism in Malaysia, Indonesia, and Thailand and outlines ways in which governments have sought to deal with the challenges it presents.

Donors' Justice: Recasting International Criminal Accountability

AbstractInternational legal scholarship to date has largely neglected the donor-driven dynamics of international criminal justice. This article advances what I term ‘donors’ justice’ as an analytic frame for interpreting the work of international criminal tribunals. Donors’ justice is defined as third-party financial support for tribunal activity. It imports market rationalities into the field of criminal accountability, which assume overlapping discursive, political, and economic forms. The Special Court for Sierra Leone provides a case study of the implications of donor-driven logics for international criminal justice, particularly the material problems of insecure funding and the ethical problems of limited personal jurisdiction.

The Problems of Jurisdiction on the Internet

The relationship between jurisdiction and the internet has been the subject of wide ranging discussion ever since the boom in domestic internet usage. Without clear legislation, laws have been created on an ad hoc basis, often in response to specific cases. It is difficult to predict whether any one law will ever be sufficient to cope with the great variety of alleged crimes which take place on the internet. This paper discusses the problems associated with jurisdiction on the internet, presenting sample cases which have influenced the current laws and have fuelled a long term debate that continues to get more heated especially in recent times with UK celebrities being exposed on sites such as Twitter.

Cyber terrorism and aviation—national and international responses

Cyber crimes and cyber terrorism are becoming increasingly menacing and the latter has been identified as a distinct threat requiring attention. At the 21st Aviation Security Panel Meeting of ICAO (AVSECP/21, 22 to 26 March 2010) a new Recommended Practice related to cyber threats was proposed for adoption by the Council as part of amendment 12 to Annex 17 (Security) to the Convention on International Civil Aviation (Chicago Convention). It was adopted on 17 November 2010, will become effective on 26 March 2011 and applicable on 1 July 2011. This Recommended Practice suggests that each Contracting State develop measures in order to protect information and communication technology systems used for civil aviation purposes from interference that may jeopardize the safety of civil aviation. At the 22nd Meeting of the Panel, conducted by ICAO from 21 to 25 March 2011, the Panel noted the value of vulnerability assessments pertaining to cyber security in aviation whose objectives are to evaluate the efficiency of existing mitigation measures and identify any vulnerabilities from a threat-based perspective and further noted that better understanding of residual risks will support a State’s efforts to refine its risk response. This article contains an analysis of what cyber crimes are as against cyber terrorism, measures taken to counter the threat along with a legal analysis of the threat as it affects aviation and addresses several issues, including a discussion on some national efforts at curbing the problem in some prominent jurisdictions.

An Introduction to Cyber Crime: General Considerations

Cyber crime reflects a peculiar type of techno-sophisticated criminality having different features. This criminality is posing the challenges to existing national legal systems and it appear to be difficult to control and combat these crimes within the existing framework of legal system. Specially, the problem of jurisdiction, identity crises and lack of legal recognition of most of acts make it difficult for legal systems to effective deal with the crime. The location and trans-national character of these crimes again added the flavor makes it too dangerous to imagine. This article has attempted to identify the characteristic features of cyber criminality and the its varied nature over the traditional criminality. Cyber crime may be categorized in two classes. One where the computer is instrument, and another where computer is incidental. It is not difficult to control the cyber crimes fall in former categories as here, computer is only an instrument and traditional legal system is better to coup up these problem by merely recognizing it, however, it is difficult to deal with the later class of criminality as computer technology is itself new to the legal system and it cannot be deal with the merely old principles which is territorially sensitive, jurisdictionally responsive, and susceptible to paper based culture and identity. This article has focused on the latter aspect of cyber criminality.

Jurisdiction of Control

Reading judgment and case law is a typical exercise within common law scholarship. Yet, although the interpretation of judgment forms a central mode of legal science in the common law tradition, a theoretical account of the authority that attaches to the aesthetic of judgment within this tradition remains more marginal. This article argues that the authority of judgment can be assessed less productively through an attention to its outcomes, reasons and rationalisations than through the technological problems of jurisdiction and with what one can call its ‘procedural forms’. While the jurisdiction of federal courts to issue ‘interim control orders’ against persons for the purpose of preventing a terrorist act in Australia was affirmed in the High Court case of Thomas v Mowbray, one question remaining from this case is how the procedure of ‘control’ itself might shape the legal authority of adjudication.

Profit-sharing investment accounts in Islamic banks: Regulatory problems and possible solutions

As interest-bearing deposits are not permitted by the rules and principles of the Islamic Shari’ah, Islamic banks typically raise deposits in the form of profit-sharing investment accounts. These accounts differ from conventional deposits not merely by virtue of the profit-sharing nature of the returns they offer, but also because the contact between the depositors and the bank is not a debt contract, and the deposits are in consequence not ‘capital certain’ (that is, the depositors are required to accept negative returns or losses). This latter characteristic leads to serious regulatory problems in jurisdictions where bank deposits are required by legal definition to be ‘capital certain’. More generally, the presence of such ‘puttable instruments’ in the capital structure of Islamic banks leads to complications in assessing their capital adequacy. In addition, the fact that the profit-sharing investment account holders are a type of equity investor without the governance rights of either creditors or shareholders raises a major problem of supervision. This article explains these problems in further detail, and proposes a solution in the form of a structural distinction between the Islamic bank in the narrow sense on the one hand, and the entity that manages the profit-sharing investment accounts on the other hand.

The Maritime Border Areas of Ireland, North and South: An Assessment of Present Jurisdictional Ambiguities and International Precedents Relating to Delimitation of 'Border Bays'

Since the time of Partition of the island of Ireland in the 1920s, there have, for good political reasons (such as particularly the pre-Belfast Agreement Irish claim to all the territorial waters around Northern Ireland), been no agreed international maritime boundaries between either jurisdiction North or South: either in the two border bays lying to the north-west and north-east of the land boundary (Lough Foyle and Carlingford Lough, respectively) or in regard to the lateral boundaries extending further seawards from these loughs. Nor have any official closing lines been agreed to indicate that the two border bays contain internal waters. The past lack of maritime boundaries has been mitigated in the more recent past by the unique cross-border jurisdiction relating to fisheries in Lough Foyle from 1952, as now extended under the Belfast Agreement to Carlingford Lough, through the enhanced joint regime administered through the Loughs Agency (part of a North-South body). However, for other jurisdictional purposes, such as criminal law enforcement, security, and planning aspects for marine uses such as windfarming, the lack of territorial sea/internal waters boundaries has led to Anglo-Irish problems and jurisdictional vacuums. This article looks at the past and present of such jurisdictional problems—including those relating to the new Loughs Agency—in the light of border bay precedents elsewhere in the world, and suggests maritime boundary solutions which might be mutually adopted

When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case

In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. In this respect, the case resembles the Soering case, although the applicants were, unlike Soering, not on British territory but on occupied Iraqi soil before they were handed over. This aspect raises the question of Iraqi sovereignty as a norm competing with the UK's human rights obligations. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and analyse the UK judgments and the ECtHR's admissibility decision in the Al-Saadoon affair from this angle. Furthermore they consider the doctrinal consequences of the ECHR's extraterritorial effect in cases like Soering and Al-Saadoon , where contracting parties violate guarantees of the Convention by exposing a person within their jurisdiction to a risk of a treatment contrary to these guarantees by a third state. Finally, they test the argument brought forward by the UK that not transferring the applicants would have violated Iraqi sovereignty and establish patterns how the ECtHR and the UK Courts did cope in the past with international law norms potentially competing with the Convention.

Planning the optimal level of local maternity service for small rural communities: A systems study in British Columbia

To develop and apply a population isolation model to define the appropriate level of maternity service for rural communities in British Columbia, Canada. Iterative, mathematical model development supported by extensive multi-methods research in 23 rural and isolated communities in British Columbia, Canada, which were selected for representative variance in population demographics and isolation. Main outcome measure was the Rural Birth Index (RBI) score for 42 communities in rural British Columbia. In rural communities with 1h catchment populations of under 25,000 the RBI score matched the existing level of service in 33 of 42 (79%) communities. Inappropriate service for the rural population was postulated and supported by qualitative data available on 6 of the remaining 9 communities. The RBI is a potentially pragmatic tool in British Columbia to help policy makers define the appropriate level of maternity service for a given rural population. The conceptual structure of the model has broad applicability to health service planning problems in other jurisdictions.

Civil Procedure - Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet: Dudnikov v. Chalk & (and) Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008)

Civil Procedure - Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet: Dudnikov v. Chalk & (and) Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008)

The Evolving Jurisdiction of the International Centre for Settlement of Investment Disputes

This article deals with the examination of the jurisdictional requirements for ICSID arbitration set out in Article 25 of the ICSID Convention, as interpreted in ICSID case law. Emphasis is put on some of the most recent jurisdictional problems: competing jurisdictions, extension of MFN clauses to dispute resolution matters, definition of investment, effect of umbrella clauses and widely drafted dispute resolution clauses, and extent to which investors from non-Contracting States can avail themselves of ICSID arbitration. The article concludes that ICSID tribunals have shown a tendency towards liberal interpretation that favours assumption of jurisdiction. This attitude leads to the creation of a global investment protection system where a wide variety of investors, irrespective of their nationality, are able to go before ICSID in protecting their various economic activities, including purely contractual ones.

The Cardinal of King Henry VIII of England. Thomas Wolsey

Thomas Wolsey was created Cardinal by Pope Leo X in September 1515. That he was, as was so often the case, had little to do with Wolsey’s spirituality or the needs of the English Church, rather the Pope’s need for international political support. Francis I had begun his invasion of Italy the previous month and Wolsey’s elevation was a naked ploy to buy the support of Henry VIII. To a degree it worked for there is no doubt that Henry took Wolsey’s creation as a significant personal compliment1. More importantly Wolsey’s creation as Cardinal and crucially later as Legate a latere gave Henry VIII complete control over the English church including power to override even the Archbishop of Canterbury and the exempt orders. This was vitally important for Henry VIII who already he had a series of jurisdictional problems with the Church. Wolsey’s promotion gave the king a minister who had absolute authority over both church and state2. None of this set England or Wolsey apart from continental norms or previous English practice3. But in many other senses Wolsey was different for England. In the previous century King Henry V had blocked the ambitious royal born Henry Beaufort from becoming a Cardinal. In contrast Henry VIII was more than content for Wolsey to hold wide ranging ecclesiastical jurisdiction because Wolsey owed everything to the king and could be trusted (or so he thought) to exercise papal powers in the national interest and for royal benefit. Another difference is that un [...]

Dispossession and empowerment in the ethnography of Palestinians in the occupied territories

This article is a review of two recent ethnographies on Palestinians in the West Bank: Resistance, Repression, and Gender Politics in Occupied Palestine and Jordan, by Frances Hasso (2005), and Law, Violence and Sovereignty Among West Bank Palestinian by Tobias Kelly (2006). Hasso examines the significant and unique role of women in organizing the Democratic Front for the Liberation of Palestine in the Occupied Territories, as compared to Jordan, while Kelly examines the jurisdictional and practical problems of labor disputes for male workers in a West Bank village. The two books exemplify how ethnographies of Palestinians in the Occupied Territories oscillate between documenting dispossession and empowerment.

Individual Liability of Private Military Personnel under International Criminal Law

The article examines the present status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and touches briefly on the question of corporate criminal responsibility of the PMC itself. It will be argued that, in theory, international criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.

Towards understanding personal jurisdiction in cyberspace

Purpose – The purpose of this paper is to show that the internet together with cyberspace form an “everywhere and nowhere proposition” and to discuss numerous problems concerning legal issues, the most vital being confusion as to jurisdiction.Design/methodology/approach – The research was based upon theoretical sources and empirical data.Findings – It was found that a probable solution could be extracted from the US experience for all the nations coming under the virtual framework of cyberspace. Some hi‐tech nations are facing this problem; and the USA is one of them. Even the USA – a large federal state – faces the jurisdictional problem and conflict as regards its own provinces; and the US courts, legal institutions and intellectuals are resorting to established principles of law – domestic or international. Decisions of US cases have been keenly observed to find out how the US courts and legal scholars have taken the help of traditional territorial tenets and precepts to resolve jurisdictional conflict...

Federal Wetlands Jurisdiction – The Quagmire of Rapanos v. United States

Federal jurisdiction over wetlands under the Clean Water Act (“CWA”) 1 has always been difficult to delineate. Wetlands, by definition can be difficult to classify as either water or land. The CWA attempts to regulate these areas; it prohibits discharge of material without a permit into “navigable waters,” which are in turn defined in section 1362(7) of the CWA as the “waters of the United States.” The Army Corps of Engineers 2 is charged with granting permits, and must make the determination of whether or not certain areas of wetlands fall within the jurisdiction of the CWA.3 The Corps has interpreted the phrase “navigable waters” very broadly to include waters “which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce.”4 The tributaries of any of these “waters” also fall within the Corps’ jurisdiction.5 Intrastate waters are covered if their “use, degradation or destruction . . . could affect interstate or foreign commerce.”6 Wetlands “adjacent” to waters, such as those described above, except waters that are themselves wetlands, also clearly fall within federal jurisdiction under the CWA.7 Jurisdictional problems arise however when there are bodies of water or wetlands close to but not directly connected to navigable waters. These areas may still have significant impact on the neighboring navigable waters if a developer fills them in, or an industrial site discharges pollutants into them. Thus the Corps of Engineers has sought to regulate some of these wetland areas, in order to hold true to the CWA’s overall goals “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.

Is a right to affirmative action the solution to the Orwellian postulate that all are equal but...

Legislation often prescribes the broad parameters of social development, particularly in the creation of socio-economic entitlements and rights. In some cases such prescriptions may even be quite detailed. However, it is through the courts that these parameters are defined, narrowed, broadened, given substance and, ultimately, applied. It is thus the courts that create the body of jurisprudence that helps us to understand, and thus to analyse, such legislation. This article adopts as its starting point legislation that has been enacted to address the issues of the pervasive inequalities inherent in South African society, goes on to analyse the approaches adopted to solve similar problems in other jurisdictions, and then analyses the approaches adopted by South African courts in interpreting the legislation and giving content to the will of the legislature; ultimately addressing the question of whether affirmative action can now be described as a right. Regular readers of Transformation will note that the article by Morris Montalti and Adrian Bellengere is not presented in the usual Transformation style. The original article we received was written for a legal audience. The editors and our referees felt that the submission was important but needed to be made more accessible to a broader audience. We have, therefore, asked the authors for 'parallel texts', with a narrative that runs along the top, and a further narrative, in the endnotes, that delves deeper into the legal issues for those who may be interested in this.

Waste management policy revisions: lessons learned from the Katrina disaster

The main objective of this paper is to identify debris and waste management policies that need to be changed based on the lessons learned from Hurricane Katrina. Policy issues addressed include fragmented jurisdictional problems, issues related to types of debris, burning of house hold debris, wood infestation with Formosan termites and banning of yard wastes from landfills. Current practices and trends in the building material waste management following disasters are examined from a building life cycle standpoint or cradle to cradle concept. Completing the proper planning before the disaster is critical. Having a plan in place can allow for maximum, integrated recycling, resource optimisation, waste reduction and deconstruction. Examination of the waste management hierarchy and life cycle management of material is used to improve the understanding of reuse and recycle opportunities. Based on the lessons learnt from Hurricane Katrina proposed changes in debris management policy following natural disasters.