scholarly journals Transboundary Civil Litigation for Victims of Southeast Asian Haze Pollution: Access to Justice and the Non-Discrimination Principle

2018 ◽  
Vol 8 (1) ◽  
pp. 119-142
Author(s):  
Prischa Listiningrum
Keyword(s):  
International Law ◽  
Legal System ◽  
State Level ◽  
Southeast Asian ◽  
The State ◽  
Civil Litigation ◽  
Environmental Damage ◽  
Access To Justice ◽  
Haze Pollution

AbstractThis article examines access to justice for victims of the Southeast Asian haze pollution within the legal system of Indonesia as the source-of-origin state. It argues that bringing civil claims against the polluting companies before Indonesian courts offers a more effective avenue towards justice than relying on resolution at the level of state to state. The article first discusses barriers to resolving the problem through the state-to-state level. It then considers whether, under international law, the source-of-origin state is obliged to provide remedies for victims of transboundary environmental damage. The article then reviews the efficacy of pursuing remedies for transboundary civil claims against polluters through the legal system of the source-of-origin state. Finally, the article considers the limitations of the laws of the affected states, which, as a consequence, mean that transboundary civil litigation in the source-of-origin state may be the most effective avenue for redress.

International Law within the Israel Legal System

1990 ◽  
Vol 24 (3-4) ◽  
pp. 451-484 ◽  
Author(s):  
Ruth Lapidoth
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
The State ◽  
Laws Of War ◽  
International Treaties ◽  
The Status ◽  
The Military ◽  
State Of Israel ◽  
High Seas

Since the establishment of the State and up to the present day, Israeli law has had to deal with a great number of various problems in the field of international law, e.g. whether the State of Israel is a successor to the obligations of the Mandatory government; the jurisdiction of the Israeli courts with regard to offences committed in demilitarized zones or beyond the State's boundaries (on the high seas or abroad); the immunity of foreign states and their representatives from the jurisdiction of Israeli courts and from measures of execution; the status of international organizations and of their employees; the effect and implications of official acts performed within the territory of a state which is at war with Israel; the effect of international treaties in Israel; the question whether the Eastern neighbourhoods of Jerusalem are part of Israel; various issues concerning extradition, and of course, many questions regarding the laws of war: the powers of the military governor, and in particular his power to expropriate land in the territories under Israeli control and to expel residents from the territories, the extent of his legislative powers, etc.

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

scholarly journals Extraterritorial Jurisdiction: From Theory to International Practices and the Case of Vietnam Law

2020 ◽  
Vol 13 (1) ◽  
pp. 151
Author(s):  
Thi Thu Phuong Tran
Keyword(s):  
International Law ◽  
Legal System ◽  
The State ◽  
Legal Practice ◽  
National Sovereignty ◽  
Long Time ◽  
Extraterritorial Jurisdiction

Extraterritorial jurisdiction is a concept that has been studied and applied for a long time in the legal practice of a number of states. With the evolution of international law, the jurisdiction of each state is established not only on the basis of territorial factor, but also of other factors that represent certain relationship with the state, such as the nationality, the effect of the act on the nation and national sovereignty. These jurisdictions are extraterritorials. However, the grounds for establishing this extraterritorial jurisdiction arouse a lot of debate. The paper analyzes the relationships that make up extraterritorial jurisdiction in accordance with international law and relates to the practice of Vietnam law to clarify the changes of the legal system of Vietnam at present in establishing its jurisdiction over persons and things.

International Criminal Law

1985 ◽  
Vol 20 (2-3) ◽  
pp. 206-242 ◽  
Author(s):  
Yoram Dinstein
Keyword(s):  
International Law ◽  
Legal System ◽  
The State ◽  
International Criminal Law ◽  
Human Being ◽  
Human Beings ◽  
Corporate Entity ◽  
The Veil ◽  
The Individual ◽  
Individual Human

The individual human being is manifestly the object of every legal system on this planet, and consequently also of international law. The ordinary subject of international law is the international corporate entity: first and foremost (though not exclusively) the State. Yet, the corporate entity is not a tangible res that exists in reality, but an abstract notion, moulded through legal manipulation by and within the ambit of a superior legal system. When the veil is pierced, one can see that behind the legal personality of the State (or any other international corporate entity) there are natural persons: flesh-and-blood human beings. In the final analysis, Westlake was indubitably right when he stated: The duties and rights of States are only the duties and rights of the men who compose them.That is to say, in actuality, the international rights and duties of States devolve on human beings, albeit indirectly and collectively. In other words, the individual human being is not merely the object of international law, but indirectly also its subject, notwithstanding the fact that, ostensibly, the subject is the international corporate entity.

Revolutionary Law Abidance: Kachin Rebel Governance and the Adoption of ihl in Resistance to Myanmar State Violence

2019 ◽  
Vol 19 (5) ◽  
pp. 872-904
Author(s):  
Alicia de la Cour Venning
Keyword(s):  
Civil Society ◽  
International Law ◽  
Legal System ◽  
Nation Building ◽  
Field Research ◽  
State Violence ◽  
The State ◽  
Ethnographic Research ◽  
Rebel Governance ◽  
International Legal System

Although armed opposition actors are increasingly prevalent within contemporary conflicts, ethnographies seeking to understand and explain their relationship with international law are scarce. While scholars highlight the state-centric nature of international law, discussing at length how it privileges state over non-state actors, few examine the way rebels perceive and relate to the international legal system. Drawing on seven months of field research among Kachin civil society and the Kachin Independence Organisation / Army (kio/A), this article demonstrates how the kio/A’s nascent engagement with international law is being strategically pursued as part of a broader rebel governance project. Ethnographic research exposes the oft neglected rebel perspective. It reveals how rebels interact with international humanitarian norms as a means to facilitate and mediate relations with both local and international actors, in an attempt to promote nation building aspirations and thereby strengthen resistance to state violence.

Legal Aid for Ensuring Access to Justice in Bangladesh: A Paradox?

2017 ◽  
Vol 4 (1) ◽  
pp. 257-275
Author(s):  
Farzana AKTER
Keyword(s):  
Legal System ◽  
The State ◽  
Access To Justice ◽  
Intention To Use ◽  
Legal Aid ◽  
Actual Performance ◽  
Legal Provisions ◽  
The Poor ◽  
The Government

AbstractThis article examines the government-funded legal aid system of Bangladesh. It indicates that the Bangladeshi legal aid system is lacking in terms of both legal provisions and the actual performance of the Legal Aid Services Act. The inadequacies in the implementation of the Act even raise the concern of whether the government has any intention to use the legal system to improve the condition of the poor or whether it intends to establish a legal aid system that is directed to providing mere lip service to the poor. The Bangladeshi legal aid system is therefore in a paradox; the state has established an institution that exposes its drawbacks and is not able to meet the needs of the beneficiaries. The article finally makes recommendations in order to redress the deficiencies of the system and thus to ensure effective access to justice for those who are in need of the service.

Italy’s Compliance With ICJ Decisions vs. Constitutional Guarantees: does the “Counter-limits” Doctrine matter?

2013 ◽  
Vol 22 (1) ◽  
pp. 185-200 ◽  
Author(s):  
Fulvio Maria Palombino
Keyword(s):  
International Law ◽  
The State ◽  
Access To Justice ◽  
Basic Principles ◽  
Constitutional Order ◽  
Res Judicata ◽  
International Legal Order ◽  
The Icj ◽  
The Right ◽  
Right Of Access

One of the most common obstacles to the domestic enforcement of international decisions is represented by the presence of a constitutional impediment. Indeed, most national constitutions, though open to international law, can prevent the implementation of an international decision, insofar as the latter conflicts with the basic principles of the constitutional order. This article argues that in such cases it is necessary to preserve a space where the State continues to retain full sovereignty and whose protection acts as an unbreakable “counter-limit” to the limitations deriving from the international legal order (“counter-limits” doctrine). Yet recent judicial and legislative practice in Italy concerning the implementation of the ICJ decision in Jurisdictional Immunities of the State seem to overlook the need to preserve this “space”. As a consequence, certain fundamental constitutional guarantees, such as the right of access to justice, the rule of res judicata and the principle of non-retroactivity of the law, have inescapably ended up being compromised.

Legal Acts and Legal Agreements in the Legal System

2021 ◽  
Vol 4 ◽  
pp. 5-14
Author(s):  
V. V. Ershov ◽  
Keyword(s):  
International Law ◽  
Research Methods ◽  
Legal System ◽  
The State ◽  
Multilevel System ◽  
Modern Period ◽  
General Scientific ◽  
Made In

The article analyses both general scientific and special research methods, including comparative legal and historical legal methods. The following conclusion was made: In accordance with the scientifically grounded concept of the integrative understanding of law, objective law is primarily expressed in its principles and norms contained in a single, evolving and multilevel system of forms of national and/or international law implemented in the state, traditionally in legal acts and legal agreements in the modern period.

The English Legal System

2019 ◽  
Author(s):  
Alisdair Gillespie ◽  
Siobhan Weare
Keyword(s):  
Legal System ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Judicial Independence ◽  
Civil Litigation ◽  
Access To Justice ◽  
Legal Aid ◽  
Police Powers ◽  
System P ◽  
Civil Justice System

The English Legal System presents the main areas of the legal system and encourages a critique of the wider aspects of how law is made and reformed. The book is structured in five parts. Part I looks at the sources of law including domestic and international sources. Part II looks at the courts and the practitioners. It considers the structure of the courts and tribunals, judges and judicial independence, and the legal professions. Part III examines the criminal justice system. It begins by looking at police powers and the decision to charge and prosecute a suspect. It describes issues related to lay justice, trials, and criminal appeals, including access to justice and legal aid. The next part is about the civil justice system. It looks at civil litigation, remedies, appeals and alternative dispute resolution, as well as the funding of civil litigation. The final part looks to the future.

International Law as a System of Legal Pluralism

2020 ◽  
pp. 531-555
Author(s):  
Frédéric Mégret
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Pluralism ◽  
The State ◽  
Value Pluralism ◽  
Functional Systems ◽  
International Legal System

This chapter examines how international law might be understood as a legally pluralistic system. International law is rooted in value pluralism, but that value pluralism does not translate evidently into legal pluralism. What legal pluralism there is within the international legal system is very much at its discretion and characterized by the ascendancy of states, themselves often not paragons of pluralism. That is not the end, however, of the ways in which international law and legal pluralism might be conceptualized. To say that international law is pluralistic might mean that there are distinct regimes of international law within international law, that international law is uniquely decentralized, that spaces exist between states that manifest plurality, that international law is a series of functional systems of regulation, that international law encourages domestic legal pluralism, or that international law includes a range of actors that are already shaping it plurally beyond the state. The chapter concludes with some thoughts on the desirability and challenges of ordering pluralism.

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