Normative Conflict Research Articles

Detrimental impact of Indonesian food estate policy: Conflict of norms, destruction of protected forest, and its implication to the climate change

In response to the food crisis threat due to the Covid-19 pandemic, the Indonesian Government initiates a national food supply enhancement program recognized as food estate which was then established as a part of National Strategic Programs. To maintain its implementation, the Indonesian Ministry of Environment and Forestry through PermenLHK 24/2020 allows the legalization of forest land utilization, including the protected forest land for the food estate program. This study aims to analyze emerging conflict norms related to the utilization of the protected forest in Indonesia’s food estate program. The method used is normative legal research conducted by reviewing various forestry-related legal instruments and principles in Indonesia. The main findings reveal that the legalization of the utilization of protected forests for food estate projects by PermenLHK 24/2020 does not meet legal certainty and contradicts the norms incorporated in the hierarchical higher related regulations. In connection to climate change, the legalization of utilizing protected forests for the food estate program will open up opportunities for deforestation and encourage degradation of the protected function of these forests. The forestry sector has become one of the largest contributors to greenhouse gas (GHG) emissions in Indonesia, with deforestation and land degradation as the root of the problem. The implication of food estate becomes a regressive action for the realization of Indonesia’s commitment to reduce GHG emissions from the forestry sector up to 17.2% with unconditional mitigation scenario (CM 1) and 23% with conditional mitigation scenario (CM 2) by 2030.

Kewenangan Mengadili atas Penerapan Choice Of Law Pada Asuransi Pengangkutan Laut

Transportation is currently developing very rapidly in the aspect of life, there are many transportations that provide cheaper prices than other transportation. To avoid the risks in sea transportation using sea freight insurance, but sea freight insurance still uses English law and its provisions. So that in the sea transportation insurance agreement the choice of law applies. The study examines the position of the choice of law in the settlement of maritime transportation disputes and explains the procedure for resolving disputes over the choice of law on the authority to adjudicate sea transportation. This study uses a normative research method with a statutory approach because there is still a conflict of norms, sourced from primary and secondary data. In the Civil Code Articles 1320 and 1338 it has been determined that the conditions for the validity of an agreement and agreements made legally will become law for those who make them. So apart from that, the choice of law in the jurisdiction to adjudicate is also contained in international civil law, thus in the settlement of maritime transportation insurance disputes that still use English law, it can be resolved by looking at the facts contained in the sea freight insurance agreement with the applicable laws. apply.

Tax Sovereignty and Investor Protection: Why the Proposed Global Minimum Tax Is not the Final Frontier for Corporate Tax Arbitrage

Over the past decade, international tax governance has evolved with bewildering speed in response to the challenges of digitalization and widespread corporate tax avoidance. Since the launch of the Group of 20 (G20)-Organisation for Economic Co-operation and Development (OECD) base erosion and profit shifting (BEPS) initiative in 2012, 135 countries and 14 international organizations have joined the BEPS Inclusive Framework, committing to implement new global standards on corporate tax, which has already been lauded as a revolution in the architecture of international tax law and policy. Even further expanding the scope of the OECD’s work on international taxation in a landmark announcement in March 2021, the U.S. administration further proposed imposing a global minimum corporate tax at a rate of 21% to be implemented through an international agreement by mid-2021. If the new OECD initiative is agreed, will the plan to implement a minimum corporate tax be fully implemented by G20 members, and if so, will it do enough to address the tax challenges of digitalization embodied in corporate tax arbitrage? Although the evidence suggests legislative and public policy compliance is likely to be high among G20 members, this article argues the minimum tax initiative is unlikely to go far enough to address deficiencies in global tax dispute resolution, which are extremely germane to the success of the proposed minimum tax. As explained in this article, U.S. leaders and global policymakers must enhance the mutual agreement procedure (MAP), a cornerstone of tax dispute resolution, given a growing body of tax litigation in investment law that threatens the implementation of BEPS 2.0. To do so, global policymakers must also reconcile the conflict of norms between tax sovereignty and investor protection contained in the investor-state dispute settlement (ISDS) regime. Only by addressing the conflict between the principles of tax sovereignty and investor protection can they prevent a tidal wave of investor disputes that will challenge the implementation of the minimum tax through national tax laws.

Two Moralities of Consistency

A core tenet of the claim that international investment law promotes the rule of law is that it enhances legal certainty for foreign investors. The idea is that investment treaties function as credible commitments, which lessen the risk of arbitrary, discriminatory, or unfair State action, and enhance the predictability of the legal framework applicable to foreign investment. However, it turns out that the investment treaty regime itself suffers from systemic inconsistency – as interpreted across hundreds of published arbitral awards. The question is whether this regime thus recreates the same rule of law problems it purports to solve. While the extent of inconsistency in ISDS is glaring, this Chapter argues against analyzing the uncomfortable relationship between investment treaties and legal certainty in zero-sum terms. Consistency is one rule of law value among many, (such as fidelity, flexibility, and responsiveness). It is one which cannot be secured absolutely and should not be pursued at all costs. Drawing on the work of Lon Fuller, this Chapter seeks to distinguish between tolerable consistency deficiencies in investment treaty arbitration, and more structural inconsistencies that are inimical to the rule of law. I identify particular rule of law failures of the latter sort in the wide ranging arbitral inconsistency in the interpretation and application of key secondary rules governing applicable law, norm conflict, attribution, and interpretation.

КРИМІНАЛЬНА ВІДПОВІДАЛЬНІСТЬ ЗА НАСИЛЬНИЦЬКЕ ЗНИКНЕННЯ ЗА КРИМІНАЛЬНИМ ПРАВОМ УКРАЇНИ

The article is devoted to the issues of criminal liability for enforced disappearance in criminal law of Ukraine. The international legal conditionality of the appearance of this prohibition in the Criminal Code of Ukraine, its adequacy to the modern needs of combating this phenomenon as well as the compliance with the conditions of implementation of the provisions of international legal acts in the national criminal legislation are analyzed. It should be taken into account that international legal acts describe the need to criminalize socially dangerous behavior, and the form of such criminalization is chosen by states in accordance with national traditions of law-making. The article cites and analyses corpus delicti of the criminal offence provided for by Article 146-1 of the Criminal Code of Ukraine «Enforced Disappearance», which appeared in the criminal law as a result of the adoption of the Law of Ukraine «On the Legal Status of Missing Persons». Potential difficulties in applying the norm provided for by Article 146-1 of the Criminal Code of Ukraine to socially dangerous acts, cases of unjustified competition and conflict of norms are revealed. It is stated that the norm provided for by Part 1 of Article 146-1 of the Criminal Code of Ukraine, is partly special in relation to several norms provided for by other articles of the Criminal Code: Article 146 «Illegal confinement or abduction of a person»; Article 371 «Knowingly unlawful detention, compelled appearance, house arrest or taking into custody»; Article 365 «Excess of authority or official powers by a law enforcement officer»; Article 364 «Abuse of authority or office». It should be noted that before the introduction of Article 146-1 to the Criminal Code of Ukraine virtually all the behavior constituting enforced disappearance, the criminalization of which was the obligation of the Ukrainian state under the Rome Statute of the International Criminal Court and International Convention for the Protection of All Persons from Enforced Disappearance, constituted criminally prohibited behavior in accordance with the above mentioned «general» criminal law norms. The exception, in fact, is only the formal corpus delicti of indulgence, which is not covered by Article 364 of the Criminal Code of Ukraine and the introduction of which into the system of criminal offences under the current Criminal Code of Ukraine we completely approve. The article also analyses the prospects of the adoption of amendments to the Criminal Code of Ukraine, proposed in the draft Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine on the Implementation of Norms of International Criminal and Humanitarian Law», which offers to supplement the Criminal Code of Ukraine with Article 442-1 «Crimes against humanity». Thus, the Ukrainian legislator will react for the second time to its international legal obligations regarding the implementation of the norms of international humanitarian law. The following options for preventing real and potential threats in the criminal law regulation of liability for enforced disappearance are proposed: to borrow the German experience of criminal law regulation in this area of public relations as well as to adopt the law on international criminal law.

LAW ENFORCEMENT AND PROTECTION OF NOTARIES IN THE CRIMINAL DOMAIN AND LAW OF NOTARY POSITION (CASE STUDY OF DECISION NUMBER 196/PID.B/2019/PN DENPASAR)

Notary is an official authorized to make an authentic deed in accordance with the provisions of Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Position of Notary (UUJNP). In carrying out his duties, the notary must uphold the moral values ​​and professional ethics and must obey the applicable law so as not to make mistakes which will carry risks for the notary himself and cause harm to the community. Risks arising from negligence for the notary public in their duties are in the form of enforcement of sanctions both civil sanctions, criminal sanctions and administrative sanctions. This study analyzes criminal enforcement of notaries, as well as norm conflicts that arise between criminal decisions by judges against notaries and the applicable laws. The aims of this study is to find out the enforcement and sanctions against notaries in the realm of criminal law and notary office law based on case study of decision number 196 / pid.b / 2019 / pn Denpasar), and to determine the form of legal protection against notaries. This study uses the normative juridical method. The results of this study revealed that there are two elements in law enforcement and protection of notaries, namely preventive and repressive. Preventive in the form of supervision of notary practices and repressively is the imposition of sanctions. The form of legal protection for notaries is carried out by the Notary Supervisory Board and the Notary Honorary Council.

Regulating Vessel Discharges on the International and EU Level

Abstract This study analyzes the legal requirements concerning discharges from ships, a matter that is characterized by a considerable degree of complexity. This complexity results, inter alia, from the highly technical nature of the applicable norms, but also from the fact that the relevant rules and principles are prescribed in a wide and often overlapping variety of instruments on different levels of law, namely public international law, European Union law (where applicable) and domestic law. Taking into account that the individual legal instruments within these sub-systems of law significantly differ in their spatial and substantive scopes and regulatory approaches, a risk of conflicts of norms exists both from a vertical (i.e., between different levels of law) and horizontal (i.e., between different instruments on the same level of law) perspective. This situation gives rise to legal uncertainties, which may ultimately threaten the lawful and effective application and implementation of the relevant norms. This study attempts to clarify the existing uncertainties and to suggest harmonized interpretations and applications of the pertinent rules and principles. It does not address the issue of pollution from ships in general, but focuses on three specific categories of vessel discharges, namely scrubber washwater, sewage and ballast water.

Land-Law Reforms in Vietnam and Myanmar: “Legal Transplant” Viewed from Asian Recipients

AbstractThis paper focuses on the conflict of norms in the interface between the “transplanted” formal law and the local social norms in the land-law reforms in Vietnam and Myanmar, each representing different legal families, while sharing commonness in that both have attempted law-making in the post-colonial independence period in order to restore the basis of the livelihoods of the local population. Both of the legal concepts of “land-use right” (quyen su dung dat) in Vietnam and “land-use right for cultivation” (loat paing kwint) in Myanmar have been the product of law-makers’ restorative attempts at farmland security, while intentionally avoiding usage of the term “ownership” that would result in the capitalist transaction of land as a commodity. However, the contemporary land-law reforms led by donor-oriented “legal transplant” in these countries have resulted in the plunder of such policy, by reintroducing the same mechanisms of land exploitation as existed in the colonial days. Roaring protests of the local agricultural population seem to be a rising-up of the social norm descended from the immemorial past as an unwritten Constitution to bring an end to the centuries-long movement of “legal transplant” of the modern capitalist law.

Striking A Balance Between Legal Certainty, Justice And Utility To End The Clash Between Bankruptcy And Criminal Proceedings In Court Decision No. 11/Pdt.Sus-Gugatan Lain-lain/2018/PN.Jkt.Pst and No. 3 K/Pdt.Sus-Pailit/2019

The clash between bankruptcy and criminal proceedings is one of the obstacles which has been long faced by law enforcement officials. One of many examples of the intersection of the two proceedings is the case between the Bankruptcy Trustees of KSP Pandawa Mandiri Group dan Nuryanto with Depok District Attorneys. The case caused issues with the confiscated assets that were the objects in the bankruptcy and criminal court decisions. It stemmed from the conflict between provisions in Indonesian Bankruptcy Act and Criminal Procedure Code. This Note was conducted to analyze the judges' judicial decision-making concerning the three aspects of legal certainty, justice and utility as one way to resolve the conflict of norms. Generally, the Commercial Court and Supreme Court decisions have complied with the regulations of the prevailing laws and legal principles. However, the judgments are still not comprehensive and not quite right in the decisions. The Panel of Judges should not only stick on the legal certainty aspect but also the justice and utility aspects. Concerning the three aspects, the bankruptcy assets in the case should be handed over to the Bankruptcy Trustees.

Reliability of Notary Deals Issuing Authentic Assets Using Electronic Networks

This study uses normative research because this research is only aimed at the study of various written regulations. Referring to the provisions of Law of the Republic of Indonesia Number 2 of 2014 concerning the Position of Notary Public (Law No.2-2014), it’s known that Notaries have an important role and function in determining the validity of transactions in Indonesia. Even the Notary is also known as a trusted third party. Likewise, in the scope of the task of carrying out the position of a Notary, namely providing the evidence needed by the parties in a certain legal action, and the evidence is at the level of civil law, where the Notary prepares a deed because of a request from the attending parties. Without requests and requests from the parties, the Notary will not make any deeds, and in making the intended deeds, taking into account the evidence or statements or statements of the parties that are stated or explained or shown before the Notary. Then the Notary prepares systematically, straight forwardly, formally and materially in the form of a Notary deed. Conflict of norms between Article 15 paragraph (3) and Article 16 paragraph (1) letter m of Law no. 2 of 2014 can be completed by continuing to use Article 15 Number (3) of Law no. 2 of 2014 and can also make a notary deed in general as long as the implementation of the article is in accordance with Article 16 paragraph (1) letter m and Article 38 of Law No. 2 of 2014 and must also meet the elements in Article 1868 of the Civil Code which is a requirement for the authenticity of the deed.

Problems of legal regulation of copyright to official works in the IT sphere under the legislation of Ukraine

The article examines the problems of legal regulation of copyright in official works in the IT field. According to the results of the study, it is established that in the legislation of Ukraine, computer program — a set of instructions in the form of words, numbers, codes, diagrams, symbols or in any other form, expressed in a form readable by a computer, which actuate it to achieve a certain goal or result (this the concept covers both the operating system and the application program, expressed in source or object code). In this case, it is proposed to supplement the legislative definition with an indication that a computer program is an algorithm. It has been found that modern software, which often makes extensive use of graphic images, is more like a work of art than a literary one. Unlike literary works, the text of a computer program (source or object code) have no independent value without the possibility of their application in a computer. It has been established that the conflict of legal norms regarding copyrights to official works, including computer programs, also remains unresolved. It is illustrated that despite the existing presumption of authorship in the legislation, courts take into account only documentary evidence of such authorship. It is established that improper registration of relations between the employee and the employer, as well as the distribution of property rights to the object of copyright created by the employee is one of the most important mistakes in this area. It is proposed to legislate the content of the agreement on the creation of a computer program as an official work. In particular, the content of this type of contract is proposed to include conditions for the transfer of property rights, all methods and limits of use computer program as a service work, an indication of that from which moment the property rights are transferred to the employer. It is emphasized that the fact of transfer of property rights to a computer program as an official work should be confirmed by a separate act. Key words: legal regulation, copyright, official work, IT sphere, computer program.

Формирование, развитие и современное состояние системы Особенной части уголовного законодательства УК Франции

he study of the formation of the system of special part of the French criminal law is relevant. The importance of the research is determined by foreign experience value from the point of view of formation and development of criminal law norms. The latter regulates criminal prosecution for specific criminal acts from the perspective of economic development of the country. It enables us to draw a conclusion to implement a positive French experience into Russian criminal legislation. The main idea of this work is to study the main stages of the formation and development of the system of the special part of criminal law of France comitting reviewing in detail specific groups and types of criminal acts, which is not possible in one publication and will form the basis of the author’s subsequent publications.
 Problem statement. The criminal law of France today is an example of unification and harmonization of the criminal law system of European countries. Thus, for effective structuring of elements of the Special part of the Russian criminal legislation, it is necessary to study the experience of the special part of the French criminal legislation formation.
 The aim of the paper is to develop a scientific understanding of the main stages of the formation and evolution of the system of the special part of criminal legislation in the context of a possible design of certain provisions of the system of Russian criminal law based on the study of the experience of legislative presentation of specific criminal law norms in the Criminal Code of France.
 Research methods: dialectics, analysis, comparative legal, system-structural, formal-logical, specifically historical.
 Results and key conclusions: it should be noted that at the present stage of its development the Russian criminal legislation is not a perfectly structured system. This statement has been proved by a range of researches carried out by different specialists during recent years. In this regard, it was established that to improve the effectiveness of legal and technical design of the provisions of the Special part of the national criminal legislation, it is extremely important to refer to foreign experience taking into account conflicts of foreign criminal law norms and gaps made in the systematization of certain provisions of the Special Part.

Islamic Theological Studies at the University of Vienna

This paper deals with the legal basis for establishing Islamic theological studies at the University of Vienna and the corresponding conflict of norms between academic freedom and the right to (religious) self-determination. The author’s central claim is that the relevant legal provision is in accordance with neither the constitutional principle of equality nor the constitutional guarantees on the status of legally recognised churches and religious societies. The study begins with a comparison between the legal situations in Germany and Austria on Islamic theological studies. This is followed by a discussion of § 24 of the Islam Act of 2015, the main legal basis for Islamic theological studies, and a comparison with the legal status of Evangelical theological studies. Finally, the paper examines the role of the Islamic Community in Austria in the appointment of teaching personnel and its self-definition, based on its teachings, tradition and constitution.

Conflict of norms in Indonesia’s sustainable development policy: Mineral and coal mining sector

This study aims to identify the conflict of norms in the mineral and coal sectors particularly after issuing Law No. 3 of 2020. The type of this research is normative-legal research, which analyses the contents of some relevant Indonesian Law and some principles of law on Mineral and Coal. The data are qualified as the primary legal materials and collected through study documents. They are then analysed qualitatively. The main findings show that there is norm conflict post Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal is enacted. The norm conflict can be seen in Indonesian sustainable development policy and law, such as Indonesian sustainable development the Law No. 16 of 2016 concerning Ratification of the Paris Agreement to the UNFCCC, The Presidential Regulation of No. 59 of 2017 concerning the Implementation of Achieving the Sustainable Development Goals, and the Low Carbon Development concept. Both the national policy and the Law will have significant effects on Indonesian commitment to reduce GHGs by 2030 to 29% with business as usual and to 41% with international supports. Relation of it with climate change issues is both the national policy and the law only accommodate the interests of coal industry players. but not the interests of the people in the mining areas and indigenous peoples. It means that the accommodation of mineral and coal industries’ interests will threaten the environment, as it is known that they are one of the worst contributors to GHGs in the world.

Tokyo Gubernatorial Election During Pandemic: Democracy VS "Demo" Crazy

COVID-19 has plunged the world into chaos. Global cases increase every day, impacting economic, social and political sectors. Japan is among the impacted countries. How does it deal with the pandemic? The aim of this article is to examine the election in the Tokyo Prefecture area during the pandemic. It is a gubernatorial election that was held on July 5, 2020. The election was held when a seat vacancy occurred as demanded by democratic processes. At the same time, the election was held while the COVID-19 pandemic was spreading across the country, which included Tokyo. Therefore, this article juxtaposes the term democracy against "demo"crazy (you crazy) to show the conflict of norms between the demands of democracy and the madness of holding elections when the situation is considered inappropriate. The term “demo”crazy is a mix of Kelantan Malay words representing you and crazy (madness). The combination of the words translates as "you are crazy." It also reflects that holding elections at the wrong time is considered to be madness. How did the candidates conduct their campaigns and the voting? What was the content of the campaigns during the pandemic? What was the effect of the elections? This study uses the library research methodology to answer these questions. This study found that the demand for democracy was more important than waiting for a possible recovery in the situation. Although holding an election was considered a crazy move, as a supporter of democracy, an election was still considered to be a priority.

Pengobatan Medis oleh Perawat dan Bidan dalam Manajemen Terpadu Balita Sakit

This study analyzed a normative legal research on conflict resolution of norms of legislation related to the implementation of Integraded Management of Childhood Illness abbreviated as IMCI or Manajemen Terpadu Balita Sakit abbreviated as MTBS which discusses two problem fornulations, namely: first, are nurses and midwives have authority to conduct medical treatment in the application of MTBS? Second, what are the juridical consequences of medical treatment by nurses or midwives in the application of MTBS? This research uses a statue approach and conceptual approach. Nurses and midwives do not have the authority to provide medical treatment in the application of MTBS on the basis of Permenkes Nomor 25 Tahun 2014 tentang Upaya Kesehatan Anak Pasal 25 ayat (2) dan ayat (3) that MTBS is performed by trained nurses and midwives and in its implementation should be supervised by the doctors who have been trained, as this may lead to conflict of norms of existing legislation because of the authority to make clinical decisions based on the diagnosis of a disease and medical treatment efforts in the application of MTBS is the authority of the medical or doctor as regulated in Undang-Undang Nomor 29 Tahun 2004 tentang Praktik Kedokteran Pasal 35 ayat (1). Health workers in carrying out practices should be conducted in accordance with the authority based on their competence to ensure legal certainty and sense of justice in order to improve the welfare of the community. On the one hand providing protection for doctors, nurses and midwives and on the other hand provides protection also for users of health services to achieve a quality service, safe, non-discriminatory and remain affordable.

Gender norm conflict and marital outcomes

AbstractWe investigate the impact of male–female conflict over gender norms on marital outcomes. As marriage requires mutual agreement regarding the role of husband and wife, we hypothesize that a person who is less likely to encounter a potential mate with similar gender norms will face a lower chance of marrying. Even if two parties marry despite a difference in gender norms, their marriage may be more vulnerable to external shocks, making divorce more likely relative to their counterparts without gender norm conflict. Finally, we predict that in the presence of gender norm conflict, high-skilled individuals may be less likely to get or stay married relative to low-skilled individuals, as the former group faces better outside options. Estimates from an analysis of U.S. marriage markets differentiated by birth cohort, state, race, and skill level support our theoretical predictions. Additional extensions explore heterogeneous effects and additional outcomes such as the presence of children in the household.

Perkawinan Beda Agama dalam Perspektif Hak Asasi Manusia di Indonesia

Presence of law number 1 Year 1974 about marriage can not provide legal protection as a whole in every marriage phenomenon, particularly in marriage different religions in Indonesia. Marriage law legitimately based on religion, but on human rights as privileges asserted freedom and marriage customs, embraced religion as a fundamental right that cannot be intervened by anyone. Problems of research 1) How marriage settings different religions in Indonesia? 2) How different religious marriage is a logical consequence of human rights perspective? This research is normative method, legal research with the study of the library of primary and secondary legal materials. Based on the findings of the research: 1) the Act of marriage has not provided certainty for couples who make marriage difference religion, there’s still a void marriage norms about different religions and conflict norms regarding legitimately marriage. 2) Different religious marriage discriminatory, religion is fundamental right that has been reserved and disinterfacking, the phenomenon raises consequences for one party with bowed themselves follow the religion of her partner. The Government expected to conduct observations regarding the effectiveness of the rules marriage and harmonization in Indonesia was not going empty, blurred or conflict of norms.

Constitutional Courts and International Investment Law in Latin America: Between Escalation and Conditional Coexistence

Constitutional courts are important actors in the development of international investment law). I argue here that constitutional courts can exert more influence and protect human rights and national constitutional values more efficiently if they operate within a method of conditional coexistence. This path implies that constitutional courts manage normative conflicts between investment agreements (IIAs) and a national constitution by defining a set of minimum conditions that IIAs must satisfy before they enter into force. The very exercise of setting conditions for IIAs can allow a constitutional court to monitor the application and interpretation of that IIA, providing themselves with leeway to react to a range of possible dynamics in respect of the future development of an investment treaty.

On the Structure of Specialized Norms of Contemporary Russian Law

This article examines theoretical issues related to specialized norms of modern Russian law. The author determines their status, types, provides a reasoned author's position on the issue of their structure, which is closest to the structure of regulatory norms of law, but has specific features. Among the specialized norms of law, conflict norms, consisting of a hypothesis and a disposition, stand out.