Remedies For Rights Violations Research Articles

PERLINDUNGAN HUKUM ATAS TANAH ADAT DALAM KAITAN PEMBERIAN IZIN USAHA PERKEBUNAN KELAPA SAWIT

Rule point 3 of the UUPA states that the use and exploitation of agrarian lands, especially the management of ulayat land, is carried out by customary leaders (Kepala Adat) and the utilization is intended for both members of the customary law community concerned and people who are not part of the customary or local law community. Every citizen has the right to obtain legal remedies as well as remedies for violations of rights they have suffered as well as a fair legal settlement. In this case, the state has an obligation to ensure the fulfillment of these rights. Based on access to justice which is a constitutional guarantee of human rights. Likewise in the explanation of Law no. 39 of 1999 concerning Human Rights Article 6 Paragraph (1) states that customary rights which are actually still valid and upheld within the customary law community must be respected and protected in the context of protecting and enforcing human rights in the community concerned by taking into account the law and regulations. laws and regulations. The approach method used in the preparation of this thesis is normative juridical research (normative legal research method). The normative juridical research method is a legal research library conducted by examining library materials or secondary data. By using the deductive method of thinking (a way of thinking in drawing conclusions from something general that has been proven true and that conclusion is aimed at something specific). Based on the analysis that the author conducted regarding the Recognition of Ulayat Rights in the Republic of Indonesia, the district/city government is the first line to provide recognition and protection of customary rights over customary law community lands. Regional autonomy, which forms local governments that are close to the people, is expected to increase legal recognition and protection of the customary rights of customary law communities which are often neglected in state life.
 
 Key Word: Oil Palm, Law Protection, Customary Land.

Recalibrating the Debate on MiFID’s Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under a general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my article’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which—to the best of my knowledge—have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

Africa is characterised by, inter alia, oppressive political systems, a culture of impunity of those who govern, and the use of state sovereignty mantra in the face of gross and systematic rights violations. Yet, African states have, through the establishment of the African Human Rights Court, created an avenue for judicial scrutiny of their laws and executive action that affect human rights. While the Court holds great promise in relation to fighting impunity and the provision of effective remedies for rights violations, ensuring respect for human rights, and fostering Africa’s quest for good governance, development and regional integration, it operates amidst state resistance and other complexities, which threaten its effectiveness and existence. This article considers whether, against this background, the Court has shown restrictiveness or progressivity in its enforcement of rights.

Recalibrating the Debate on MIFID’S Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID-provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my paper’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. More specifically, I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which – to the best of my knowledge – have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.

Migrant Workerss Access to Remedy for Exploitation in Australia: The Role of the National Fair Work Ombudsman

Exploitation of temporary migrant workers in Australia has emerged as a significant human rights concern. However, limited attention has been paid to the State’s responsibility to ensure individual workers can access remedies for rights violations. This article considers whether Australia’s government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice. Drawing on new empirical data, it focuses on the role of the national labour inspectorate, the Fair Work Ombudsman (FWO). FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency. We illuminate structural factors contributing to migrants’ reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.

Migrant workers’ access to remedy for exploitation in Australia: the role of the national Fair Work Ombudsman

ABSTRACTExploitation of temporary migrant workers in Australia has emerged as a significant human rights concern. However, limited attention has been paid to the State’s responsibility to ensure individual workers can access remedies for rights violations. This article considers whether Australia’s government agencies and institutional frameworks are suitable to enabling remedies for temporary migrant workers, and how well they deliver remedies to individuals in practice. Drawing on new empirical data, it focuses on the role of the national labour inspectorate, th Fair Work Ombudsman (FWO). FWO has undertaken various education, compliance and deterrence initiatives directed to systemically improving conditions for migrant workers. This article considers the extent to which individual migrant workers seek assistance from FWO to recover their personal unpaid wages, and the remedial outcomes of individual claims lodged with the agency. We illuminate structural factors contributing to migrants’ reluctance to engage with FWO, as well as factors contributing to low wage recovery rates for those who do contact FWO. We conclude that although these challenges are numerous and multi-layered, they are not all inevitable. Reforms should incorporate a new migrant-centred approach that recalibrates the risks and costs of seeking remedies against the likelihood of obtaining a just outcome.

Justifying Class Action Limits: Parsing the Debates over Ascertainability and Cy Pres

The federal class action has lost its way. It was created about fifty years ago in a major revision to Rule 23 that envisioned a functional aggregation device aimed at promoting litigation efficiency and effective rights enforcement. Over the past twenty years, however, courts have added technical limitations that restrict the Rule’s functional efficacy. This Article, a contribution to a symposium on the fiftieth anniversary of the modern class action, examines two such limitations: a strict version of class ascertainability, and restrictions on Cy Pres relief. These two limitations are closely linked. The availability of Cy Pres reduces the pressure to require strict ascertainability, and insisting on strict ascertainability eases the pressure to use Cy Pres. Courts justify both limitations in functional terms as promoting the efficiency and fairness of class action litigation, but the functional arguments fail. In fact, requiring strict ascertainability and limiting the availability of Cy Pres have the opposite effect: they undermine the class action’s functional efficacy. This raises an important question: Why is support for these limitations so strong when the functional justifications are so weak? The answer, I argue, is that strict ascertainability and limited Cy Pres have less to do with functional efficacy and much more to do with adjudicative legitimacy. Framed in legitimacy terms, the arguments are more difficult to address. The concern with adjudicative legitimacy implicates two related beliefs. The first holds that civil adjudication is primarily about compensating injured parties. Deterrence matters, but only if it is accompanied by a substantial compensatory benefit. The second belief is closely related to the first. It holds that civil adjudication is about adjudicating and enforcing legal rights belonging to individual right holders. Thus, even if class actions promote the effective enforcement of the substantive law, they can still lack legitimacy when they involve anonymous class members and prioritize deterrence over compensation for rights violations. These beliefs fit a plausible conception of civil adjudication. Together, they describe a core feature that distinguishes adjudication from legislation and administration: its focus on legal rights and on remedies for rights violations. Yet this feature does not demand strict ascertainability or the Cy Pres limits that have become popular in recent years. Small-claim class actions, such as those enforcing consumer protection laws, share much in common with the less controversial 23(b)(2) class action for classwide injunctive relief. I develop the (b)(2) analogy and show how it can be used to justify the legitimacy of small-claim class actions with unidentifiable class members and liberal use of Cy Pres.

A Modest Proposal: A Global Court of Human Rights

Despite significant gains, the majority of the global population still lacks the right to effective judicial remedy for rights violations. Scholars have recently considered the possibility that creating a Global Court of Human Rights could remedy this problem. This article proceeds in three sections. It begins with a discussion of the most prominent historical proposal for an International Court of Human Rights, underscoring the early recognition that a Global Court of Human Rights was needed. The next section assesses the need for the Court by reviewing the current human rights enforcement and monitoring mechanisms. It then turns to concerns with the creation of a Global Court of Human Rights. After considering these arguments, the article identifies three key benefits of creating the Court and proposes a sketch of a Global Court of Human Rights.

Business and children's rights

Kirsten Anderson, legal research and policy manager at Coram Children's Legal Centre, examines a child's right to access a remedy for rights violations caused by transnational business operations

Reflections on the ECOWAS Community Court Protocol and the Constitutions of Member States

AbstractOnly recently, the jurisdiction of the Court of Justice of the Economic Community of West African States, which was hitherto opened only to Community States, was expanded to allow direct human rights violation claims by individuals. Though the court has since started to function, its impact is yet to be felt ‐ citizens of recalcitrant Community States still live in wanton violation of their rights in most of the States, where national courts are weak and effective remedies for rights violations largely nonexistent. This is consequent upon the failure of Community States to align their national laws with the new legal order represented by the Community Court; national laws and indeed national courts are still very hostile to the court and its judgements, thereby discouraging citizens from attending the court. This Article takes a look at the relevant provisions of the constitutions of Community States and advocates an urgent need for the cooperation to be forged between national legal systems and the community legal system through the amendment of hostile laws, as a prerequisite to the achievement of the virile community legal order.