Conclusion

2019 ◽  
pp. 260-286
Author(s):  
Kate Purcell
Keyword(s):  
Climate Change ◽  
Legal Order ◽  
Legal Limits ◽  
State Practice ◽  
The Law ◽  
The Stability ◽  
State Rights ◽  
International Boundaries ◽  
Coastal Land

This Conclusion brings together the results of the preceding analyses in an account of the limited legal significance of geographical change for maritime jurisdiction. It considers some final instances of State practice that may appear to support the ambulatory thesis. It is demonstrated that while the relevant practice is not unlawful, it does not show that maritime limits must be adjusted in response to geographical change under international law. More broadly, geographical change, including climate-related change, does not threaten the ‘legal order of the seas and oceans’ in the manner that some recent commentary on the implications of climate change for maritime jurisdiction suggests. The existing law does not provide for ambulatory maritime limits or condition continuing entitlement to maritime space on geographical circumstances remaining unchanged. States wishing to retain established entitlement to maritime space and unilaterally established maritime limits in the event of coastal change are permitted to so, unless they no longer possess territorial sovereignty over coastal land (which also depends on whether they intend to give it up). International boundaries, including maritime boundaries, may be fixed or ambulatory, but unless there is clear evidence that an ambulatory boundary was intended, there will be a presumption that established boundaries will not shift with subsequent changes to either the coast or territorial sea baselines. The law was not developed in ignorance of the changeability of coastal geography but makes use of geography in ways that do not leave sovereignty, sovereign rights, or legal limits and boundaries vulnerable to the vicissitudes of nature. The role of geography in the law of the sea contributes to rather than undermines the stability of a spatial and functional division of State rights in the sea. In this regard, it is not necessary to amend the existing law in response to the impacts of climate-related change on the oceans and coasts; instead, it is important to better understand it.

Projecting Change

2019 ◽  
pp. 155-180
Author(s):  
Kate Purcell
Keyword(s):  
Coastal Environment ◽  
Natural Variability ◽  
Coastal Change ◽  
Water Line ◽  
Legal Limits ◽  
Natural Objects ◽  
History Of ◽  
The Law

This chapter looks at debates over whether the charted or ‘actual’ low-water line constitutes the normal baseline in commentary considering the implications of climate-related coastal change for maritime jurisdiction. It suggests that there has been some conflation of legal lines with the geographical objects by reference to which they are constructed or described. This seems to have encouraged the attribution of the natural variability of features of the coastal environment to both cartographic constructs and legal limits. The chapter revisits the text and drafting history of UNCLOS and the 1958 Conventions to explain why the identification of natural objects and qualities with either or both cartographic and legal constructs misunderstands the role of charted geographical features in the law.

The Law of Neutrality and State Practice

2020 ◽  
pp. 43-87
Author(s):  
Gabriela A. Frei
Keyword(s):  
Great Britain ◽  
Coherent State ◽  
Case Studies ◽  
Domestic Legislation ◽  
State Practice ◽  
Foreign Office ◽  
The Law

Chapter 3 explores how Great Britain applied and implemented its neutrality policy after 1870, building a coherent state practice based on its Foreign Enlistment Act. Several case studies from various conflicts after 1870 highlight the main areas of dispute between neutral Great Britain and belligerent powers, dealing with the sale of ships, coaling, contraband, and the destruction of ships. More broadly, the chapter shows the challenges which Great Britain faced in the application of its domestic legislation. It shows the important role of the Foreign Office and the Law Officers of the Crown in dealing with these matters, and how they shaped the understanding of neutrality more generally.

scholarly journals Glosa do postanowienia Sądu Najwyższego z dnia 23 marca 2016 r., sygn. akt: III CZP 112/15

2020 ◽  
Vol 26 ◽  
pp. 209-221
Author(s):  
Agata Kozioł
Keyword(s):  
Supreme Court ◽  
Legal Order ◽  
Applicable Law ◽  
The Law ◽  
Court Proceedings ◽  
Polish Law ◽  
Double Nature ◽  
Mandatory Provision

The role of art. 57 § 1 of Polish Family and Guardianship Code in proceedings concerning international divorce is disputed and gives rise to many questions concerning its nature. The provision, addressed to the Polish courts dealing with divorce cases, obliges the seized court to rule on fault of spouses in the breakdown of marriage. It may then seem to remain unclear if the court shall apply art. 57 § 1 when the law applicable to divorce does not state for fault based grounds for dissolution of marriage, while the legal order applicable to maintenance obligation between former spouses requires, among other prerequisites, that the fault of the former spouse obliged to alimony is declared in court proceedings. This paper analyses the judgement of Polish Supreme Court from 23rd of March 2016, in which this issue was raised. The Author rejects the opinion of Supreme Court that the provision in question has a procedural nature. The view, that it constitutes an example of overriding mandatory provision should also be denied. As a provision of double nature: material and procedural, it should be applied by Polish courts as an instrument that enables to rule on fault in all those cases when applicable law provides for fault grounds for divorce; it should be also applied by foreign court deciding on dissolution of marriage when Polish law is applicable.

Legal Continuity

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Comparative Study ◽  
Social Theory ◽  
Legal Theory ◽  
Legal Order ◽  
Critical Legal Theory ◽  
The Law ◽  
The Comparative Study ◽  
The Revolution

This chapter critiques the binary dichotomy between the concepts of “continuity” and “rupture” within theoretical conceptualizations of the law. Whereas legal theories such as Kelsen’s emphasize rupture, theories such as Dworkin’s emphasize continuity. These theories fail to account for legal continuity and rupture because the law is neither a gapless system nor a coherent whole. Building on the comparative study of the role of law during revolutions, the chapter shows that a revolution maintains varying levels of legal rupture and continuity with the pre-existing legal order. Building on critical legal theory and social theory, it argues that the relation between revolution and legality cannot be represented systematically because law—whether prior to or after the revolution—is incoherent and thus generates a plurality of voices.

Climate Change and Sea-Level Rise

2021 ◽  
Vol 23 (2-3) ◽  
pp. 133-157
Author(s):  
Vladyslav Lanovoy ◽  
Sally O’Donnell
Keyword(s):  
Climate Change ◽  
Sea Level Rise ◽  
Sea Level ◽  
Law Of The Sea ◽  
Legal Fiction ◽  
Temporary Solution ◽  
The Law ◽  
The Stability ◽  
Key Aspects ◽  
And Sea Level

Abstract This article examines the challenges that climate change and sea-level rise pose to certain key aspects of the law of the sea. Sea-level rise is likely to impact maritime baselines, the qualification of maritime features and the entitlements they generate, and ultimately the stability of maritime boundaries, which are critical for the peaceful co-existence of sovereign States. This article examines whether some of the relevant provisions of the United Nations Convention on the Law of the Sea can accommodate a liberal interpretation so as to provide some, even if incomplete, answers to the challenges posed by sea-level rise to the law of the sea regime. It is argued that the legal fiction of permanency that underpins key elements of this legal regime, and thus ignores future physical changes to coastlines, is the most appropriate temporary solution, unless and until new rules are agreed by States to deal comprehensively with sea-level rise.

Reflections on the Concept of Proportionality in the Law of Maritime Delimitation

2001 ◽  
Vol 16 (3) ◽  
pp. 433-463 ◽  
Author(s):  
Tanaka Yoshifumi
Keyword(s):  
Case Law ◽  
International Courts ◽  
State Practice ◽  
The Law

AbstractThe concept of proportionality is one of the important relevant circumstances in maritime delimitation. In the case law relating to maritime delimitations, the role of proportionality has been enlarged geographically as well as functionally by international courts and tribunals. However, such an enlarged role of proportionality is not free from problems. Thus, this paper purports to examine the concept of proportionality in maritime delimitation from a critical viewpoint by analysing relevant judgments and state practice.

scholarly journals Pengetahuan Sejarah Dekolonialisasi Pernanan Pendidikan dan Implementasi Hukum Islam di Indonesia

2019 ◽  
Vol 3 (3) ◽  
Author(s):  
Ryan Kurniawan
Keyword(s):  
Islamic Law ◽  
Legal Order ◽  
Space And Place ◽  
Civil Case ◽  
Time Space ◽  
Starting Point ◽  
The Law ◽  
Colonial Government ◽  
Dutch Colonial

<em>Role, Education, and Implementatation Islamic law developed along with the development of Islam in various regions, causing Islamic law to have different styles in each region it came. Indonesia is one of these regions. Differences or uniqueness that arise together with the acceptance of Islamic law in Indonesia by experiencing various kinds of changes in accordance with the time, space and place of the law applied. The role of various kingdoms in disseminating Islamic teachings is legitimate evidence, how Islam becomes an integral part of the Indonesian Nation. Changes began to occur when the Dutch colonial government ruled Indonesia. The receptio in complexu theory, and the receptie theory are proof of the attachment of the Dutch legal order in Indonesia which began in the V.OC era. Independence as the starting point of the struggle to reduce the influence of the two theories with efforts to decolonize Islamic law through receptie exit theory. This theory directs that the development of Islamic law in Indonesia is based on Pancasila and the 1945 Constitution, which is marked by the emergence of KHI as a guideline compiled and formulated to fill a substantial legal vacuum in the courts in the religious court that tried the Islamic civil case in 1991</em>

Introduction

2021 ◽  
pp. 1-16
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Big Data ◽  
Optimal Design ◽  
Legal Order ◽  
New Paradigm ◽  
Legal Rules ◽  
The Law

This chapter introduces the main themes of the book. Personalized law is a new paradigm of legal order, where uniform rules are replaced by commands that vary across people. Like other personalized schemes, personalized law would rely on algorithms that sort through Big Data to identify personal features relevant to the optimal design of personalized legal treatments. The chapter illustrates this novel regime by imagining a day in the life of a typical household. It then outlines the benefits, but also the challenges and problems of personalized law, and maps out how the book addresses them. Part I of the book examines the benefits of personalized law. Part II demonstrates personalized legal rules in a variety of areas. Part III addresses the problem of equality under the law. Part IV explores additional problems of coordination, manipulation, and the power of data in the hands of governments. The concluding chapter discusses the role of human lawmakers in personalized law.

The Role of the Law of the Sea in Climate Change Litigation

2020 ◽  
Vol 11 (1) ◽  
pp. 141-169
Author(s):  
Elise Johansen
Keyword(s):  
Climate Change ◽  
Ghg Emissions ◽  
Law Of The Sea ◽  
Refugee Law ◽  
Legal Obligations ◽  
The Law ◽  
Tackle Climate Change ◽  
The Relationship ◽  
Untapped Resource

People around the world are turning to the courts to ensure that steps are taken to tackle climate change, using litigation as a tool to force action. An emerging trend in climate litigation is to look to other legal regimes for sources of climate obligation and there is a growing number of climate change cases looking at the relationship between human rights and climate change, and refugee law and climate change. This paper looks at the role of the law of the sea regime in climate change cases, in which some connections to ocean issues are identified – either because the activities that contribute to GHG emissions takes place in the ocean space, or because the effects are felt there. One main finding is that that the use of the law of the sea-based rights and obligations is almost non-existent in climate litigation. Another main finding, based on an analysis of one of the relevant cases, namely the Norwegian Climate Change Case, is that the general obligations established by section 1 of Part XII of the LOSC represent an untapped resource to legal obligations in climate litigation.

The Shifting Boundaries of Legitimacy in International Law

2018 ◽  
Vol 87 (4) ◽  
pp. 436-465
Author(s):  
Alexis Galán
Keyword(s):  
International Law ◽  
Causal Link ◽  
Legal Order ◽  
Explanatory Role ◽  
Central Concern ◽  
International Legal Order ◽  
Dynamic Dimension ◽  
The Stability ◽  
Shifting Boundaries

Legitimacy has become a central concern in international law. This article analyses an important aspect of the concept, namely the often-presumed link between legitimacy and the stability of institutions and norms. The explanatory role of legitimacy hinges on the descriptive elements attributed to legitimacy because, only by fixing those elements, a causal link can be established. The article contends that due to its conceptual features legitimacy cannot be circumscribed descriptively, making the tracing of its relationship to the stability of institutions and norms in the international legal order an intractable task. The article suggests that international lawyers should embrace the open-ended nature of legitimacy and focus on its dynamic dimension: legitimation. Legitimacy is treated as a rhetorical tool whereby actors try to pursue certain courses of action. The importance of legitimacy then lies in its employment for the shaping of perceptions with regard to how institutions ought to be.

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